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decided: June 24, 1975.


Appeal from judgments of sentence of Court of Common Pleas of Northampton County, Aug. T., 1972, No. 83, in case of Commonwealth of Pennsylvania v. Stewart Fredericks.


Margaret H. Poswistilo, Assistant Public Defender, for appellant.

Alan B. McFall, Assistant District Attorney, and Charles H. Spaziani, District Attorney, for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Cercone, J. Jacobs and Price, JJ., concur in the result.

Author: Cercone

[ 235 Pa. Super. Page 80]

The instant appeal arises from appellant's conviction after his second jury trial of burglary and larceny, his first trial having resulted in a mistrial for failure of the jurors to agree. Appellant raises numerous allegations of error which we shall treat seriatim after setting forth the facts.

In the wee hours of March 26, 1972, Assistant Chief Krome was on patrol in Forks Township when he approached

[ 235 Pa. Super. Page 81]

    the Manufacturer's Discount House on Route 115 and observed a vehicle parked in the parking lot. The officer passed the store, but proceeded only a few hundred feet before deciding to investigate. As he again approached the parking lot, the car's headlights went on as it proceeded out of the lot and passed him going in the opposite direction. Officer Krome turned around, took the license plate number, model and color of the vehicle and noted approximately three persons in the car.

Two and one-half hours later, Officer Krome returned to the store and checked the front door. He then noticed a rock and broken glass lying on the floor inside the building. He walked to the rear of the premises where he saw a broken window and clothing strewn on the ground. There was broken glass both inside and outside the building, including pieces from which fingerprints were taken. The owners of the store confirmed that various items of clothing were missing.

Subsequent investigation revealed that the car which Officer Krome had observed belonged to appellant who, in connection with another arrest, had been fingerprinted by the Easton police. Officer Krome requested appellant's fingerprint card from the Easton police and forwarded it to the State Police for comparison with fingerprints lifted from the broken glass found at the scene. The prints matched.

In August Officer Krome interviewed appellant concerning his whereabouts when the burglary occurred. Appellant stated that he had loaned his car to two friends of his and was staying at another friend's house when the two returned with his car early in the morning. They told him that they had burglarized a store in Forks Township and that his car was loaded with clothing. According to appellant, he told them to remove the clothing, which they did, and then he drove his car home. Nevertheless, appellant was arrested on charges of burglary and larceny.

[ 235 Pa. Super. Page 82]

On April 10-11 of 1973 appellant was tried before a jury. At noon on April 11, the jury retired to deliberate. At 2:40 P.M. and 3:45 P.M. the jury returned to the courtroom for special instructions. At 4:25 the jury returned and informed the court that it was unable to reach a verdict. The instant discussion ensued:

"THE COURT: All right, I will have the foreman stand on behalf of the jury and report to the Court what your decision is with respect to being able to arrive at a unanimous verdict. Not any numbers or anything, but just whether you are able to arrive at a unanimous verdict.

THE FOREMAN: We have not arrived at a unanimous verdict.

THE COURT: Do you feel that there would be anything to be gained by sending you back for further deliberations or are you deadlocked to the point where you feel no progress could be made?

THE FOREMAN: I feel that no progress could be made by anymore deliberations.

THE COURT: All right, I will accept your statement, and on the basis of it I hereby declare that a mistrial has occurred in this proceeding by reason of the inability of the jury to arrive at a unanimous verdict.

By making that declaration that I have from the bench, that ends this particular trial. You will have absolutely no further responsibility in this case, and you will be returning to jury service tomorrow morning to the panel as a whole and then it remains whether you will be called for other cases. You are excused."

Appellant recorded no objection to the court's sua sponte declaration of a mistrial.

New counsel was appointed for appellant and, on February 27, 1974, a second trial was held on the same charges, wherein the jury returned verdicts of guilty.

[ 235 Pa. Super. Page 83]

At no time prior to or during that trial did appellant protest that the proceeding constituted a violation of the Fifth Amendment's proscription that one may not twice be ...

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