No. 2401 October Term 1976, Appeal from Judgment of Sentence of Court of Common Pleas of Lancaster County, Pa., Criminal Nos. 2111, 2112 of 1975.
Edward F. Browne, Jr., Assistant Public Defender, Lancaster, for appellant.
John A. Kenneff, Assistant District Attorney, with him D. Richard Eckman, District Attorney, Lancaster, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Price, J., files a dissenting statement in which Van der Voort, J., joins. Watkins, former President Judge, and Hoffman, J., did not participate in the consideration or decision of this case.
[ 259 Pa. Super. Page 185]
This appeal raises the question of whether the federal rule that jeopardy attaches once a jury is sworn, Illinois v. Somerville, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973); United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971); Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963); United States v. Pecora, 484 F.2d 1289 (3d Cir. 1973), is of federal constitutional dimension and therefore must be applied in state proceedings.*fn1
Appellant was charged with delivery of one ounce of marijuana in violation of the Controlled Substance, Drug,
[ 259 Pa. Super. Page 186]
Devise and Cosmetic Act*fn2 and with criminal conspiracy to deliver marijuana.*fn3 On Friday, November 21, 1975, appellant was brought to trial in the Lancaster County Court of Common Pleas. The jury was empaneled and sworn, but before testimony was taken the court recessed for the weekend. When the court reconvened at 9:00 a. m. on Monday, appellant was not present. Appellant's house was called, but there was no answer; police officers sent to the house were unable to find appellant. At 10:45 a. m. the court sua sponte declared a mistrial. No objection to the declaration was recorded by appellant's counsel. Next the court ordered appellant's bail forfeited and issued a bench warrant. Immediately thereafter, the police learned that appellant was at Lancaster General Hospital, and before noon, he was taken into custody.
New counsel was appointed to represent appellant.*fn4 He filed a motion to quash the indictments, arguing that a second trial would violate the double jeopardy clause of the Fifth Amendment of the United States Constitution because there had been no manifest necessity to justify the court's sua sponte declaration of a mistrial at the first trial. The motion was denied without a hearing.*fn5
[ 259 Pa. Super. Page 187]
At the beginning of the second trial, on January 21, 1976, counsel again argued that the trial would violate the double jeopardy clause. Counsel was allowed to make an offer of proof regarding the lack of manifest necessity. N.T. 3-5.*fn6
[ 259 Pa. Super. Page 188]
The court treated the offer as a hearing on the merits and rejected counsel's argument.*fn7 A jury convicted appellant on both charges. Timely post-verdict motions, raising inter alia the double jeopardy issue, were filed and denied, and sentence was imposed. This appeal followed; the only issue raised is the double jeopardy issue.
We must consider whether the double jeopardy issue has been preserved for our review. As mentioned, at the first trial appellant's counsel recorded no objection to the court's sua sponte declaration of a mistrial. Generally, counsel's failure to raise a claim in the court below precludes appellate review. Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974). However, in Commonwealth v. Fredericks, 235 Pa. Super. 78, 340 A.2d 498 (1975), we held:
While we agree that a discussion on the record concerning the reasons which impel the trial court to declare a mistrial would be instructive to any subsequent trial or appellate court concerned with a double jeopardy question, we do not readily perceive why it is the defendant's ...