Jess D. Costa, Dist. Atty., Fred J. Sentner, Asst. Dist. Atty., Washington, for appellant.
Frank A. Conte, Washington, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ.
[ 243 Pa. Super. Page 291]
This is an appeal by the Commonwealth from an order of the Court of Common Pleas of Washington County, Criminal Division, dismissing a prosecution pursuant to 18 P.S. § 109, Act of December 6, 1972, P.L. 1482, No. 334, § 1, which provides in pertinent part:
"When a prosecution is for a violation of the same provision of the statutes and is based upon the same facts as a former prosecution, it is barred by such former prosecution under the following circumstances: (1) The former prosecution resulted in an acquittal. There is an acquittal if the prosecution resulted in a finding of not guilty by the trier of fact or in a determination that there was insufficient evidence to warrant a conviction. . . ."
Defendant-appellee was indicted on a robbery charge (arising from a purse-snatching in a supermarket parking lot) and tried before a jury on February 20 and 21,
[ 243 Pa. Super. Page 2921975]
. The Commonwealth's evidence included a positive identification of appellee by the victim. The defense was alibi. Appellee's demurrer at the close of the Commonwealth's case was overruled and his motion for a directed verdict after the closing arguments was denied. The jury retired at 11:15 A.M. At 3:25 P.M. the court read into the record a note it had received from the foreman advising, "We all cannot come to a decision because [sic] lack of evidence." The court instructed the jury to reconsider the matter, reiterating that the Commonwealth was required to prove guilty beyond a reasonable doubt. At 4:25 P.M. the court announced its receipt of a further communication advising that the jury was "Split down the middle 6-6." The court then discharged the jury, and told the prosecutor that he could list the matter for retrial.
On March 19, 1975, appellee filed an application for abandonment of prosecution, asserting that the foreman's note referring to "lack of evidence" was a "determination that there was insufficient evidence to warrant conviction" and that further prosecution was therefore barred.*fn1 The court below agreed. Its opinion states:
"We agree with the jurors' finding that there was a lack of evidence. It is unfortunate that they did not find the defendant not guilty. Apparently they could not. We have had this matter on suppression and at trial. The prosecution has no other testimony or evidence to bolster its weak case.
"Accordingly, we believe that retrial would be a waste of trial time and a burden on the system. We ...