Robert F. Banks, Asst. Dist. Atty., Charles S. Hersh, Mercer, for appellant.
Herman M. Rodgers, Rodgers, Marks and Perfilio, Sharon, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Manderino, J., joined in this opinion and filed a concurring opinion. Pomeroy, J., filed a dissenting opinion. Nix, J., filed a dissenting opinion.
Frank Bartolomucci was brought to trial on November 15, 1973 for the unlawful delivery of methaqualone tablets in violation of the Controlled Substance, Drug, Devise and Cosmetic Act, Act of April 14, 1972, P.L. 233, No. 64, § 13(a)(30), 35 P.S. § 780-113(a)(30) (Supp.1975-76), as amended, October 26, 1972, P.L. 1048, No. 263, § 1.*fn1 The trial was completed about 11:30 a. m. on November 16 and jury deliberations began immediately. From 12:00 noon until 1:00 p. m., the jury recessed for lunch. At 1:00 p. m., deliberations resumed and continued until 5:15 p. m. when the jury recessed for dinner. Deliberations resumed at 6:45 p. m.
At 10:10 p. m., the trial judge, the district attorney, defense counsel and the tipstaff for the court attended a conference in chambers during which the following occurrences were noted of record: At 8:45 p. m., the foreman
had informed the tipstaff that the jury was "bogged down" and was unable to reach a verdict. The tipstaff then told the foreman the trial judge had left instructions that the jury be kept in session until a verdict was reached and that, unless the jury insisted, the tipstaff would not call the trial judge. The jury did not specifically ask to see the trial judge. Moreover, during this conference defense counsel indicated he had no objection to the colloquy between the tipstaff and the jury foreman earlier in the evening.
During the same conference, the trial judge sought both the district attorney's and defense counsel's position with regard to discharging the jury. Defense counsel stated he and Bartolomucci had anticipated the question and would not agree to the discharge. The trial judge then offered to repeat his instructions to the jury but defense counsel indicated he was not yet concerned with doing so.
At 10:46 p. m., another conference was held in chambers during which the tipstaff informed the trial judge, the district attorney, and defense counsel that the foreman had informed him the jury was hopelessly deadlocked and asked the tipstaff to so inform the court. The trial judge again sought the district attorney's and defense counsel's position with regard to discharging the jury. The district attorney indicated he thought discharge was appropriate. Defense counsel requested additional instructions, specifically, instructions relating to the responsibilities of jurors to each other and to themselves. The trial judge stated that such instructions had already been given in accordance with the American Bar Association's recommended Standards Relating to Trial by Jury, § 5.4 and that he had a serious question as to the effect of merely repeating such instructions. The trial judge thereupon recalled the jury to the courtroom at 10:55 p. m. and, without any further questions or inquiry, declared a mistrial and discharged the jury.
When the Commonwealth sought to bring Bartolomucci to trial again defense counsel objected on the grounds of double jeopardy but this objection was overruled. Bartolomucci was thereafter tried and convicted. Post trial motions were denied and judgment of sentence was imposed. Bartolomucci appealed to the Superior Court. That court, in a five-two decision, reversed the judgment of sentence stating, inter alia, that Bartolomucci's second trial violated his right against being put twice in jeopardy because the jury was improperly discharged in the first trial. The Commonwealth petitioned for allowance to appeal from the order of the Superior Court and we granted the petition.*fn2
The Superior Court ruled the discharge of the jury at the first trial was improper because the trial judge failed to communicate directly with the jury before declaring the mistrial. The Commonwealth urges this was error because Bartolomucci did not advance this particular issue in the Superior Court and that court raised it sua sponte. We find this position to have no basis in fact since Bartolomucci's brief in the Superior
Court*fn3 and his post-trial brief in the Court of Common Pleas*fn4 specifically argued that the failure of the trial judge to communicate directly with the jury rendered the jury's discharge constitutionally impermissible and hence resulted in a bar to any subsequent prosecution.
The Commonwealth also claims Bartolomucci has waived any claim of double jeopardy because under Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974), defense counsel was required not only to object to the discharge of the jury in the first trial, which he did, but to state the specific grounds of objection. The Commonwealth further argues, since defense counsel's objection, although specific, related to additional instructions and deliberation and not to a need for the trial judge to communicate directly with the jury with regard to the deadlock, ...