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decided: March 9, 1979.


No. 2066 October Term, 1976, Appeal from the Order of the Court of Common (Criminal) Pleas of Lancaster County at Nos. 3219 and 3220 of 1975.


Richard A. Sprague, and with him, Pamela W. Higgins and Michael K. Simon, Philadelphia, for appellant.

D. Richard Eckman, District Attorney, and with him, John A. Kenneff, Assistant 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 opinion. Jacobs and Watkins, former President Judges, and Hoffman, J., did not participate in the consideration or decision of this case.

Author: Van Der Voort

[ 264 Pa. Super. Page 145]

The appellant, Richard Charles Haefner, was charged with involuntary deviate sexual intercourse and corruption of the

[ 264 Pa. Super. Page 146]

    morals of a minor. A jury trial commenced on January 27, 1976, in Lancaster County and on February 3, 1976, the presentation of evidence having concluded, the case was submitted to the jury. As more fully detailed below, the trial judge, on the latter date, sua sponte declared a mistrial, based upon the jury's failure to arrive at a verdict.

Thereafter, the appellant was scheduled to be tried again on the same charges. Inter alia, he filed a pretrial motion to quash indictments, based upon the argument that the trial court erred in its declaration of a mistrial, and that a second trial on the same charges would therefore be violative of his right to not be placed in double jeopardy. The lower court denied this motion and the appellant, on June 29, 1976, appealed that denial to our Court. The Commonwealth filed a motion to quash the appeal, contending that the order denying the appellant's motion to quash the indictments was interlocutory. This Court granted the Commonwealth's motion.

Appellant thereafter filed an appeal to the Pennsylvania Supreme Court. That Court, by a Per Curiam Opinion, on June 3, 1977, held that a denial of a pre-trial motion to quash an indictment, where the motion alleges that a second trial will violate a defendant's right not to be placed twice in jeopardy, is a final order, immediately subject to appellate review upon an appeal. Commonwealth v. Haefner, 473 Pa. 154, 373 A.2d 1094 (1977) (Former Chief Justice Jones not participating; Dissenting Opinion filed by Justice O'Brien, in which Justice Nix joined). Thus, the case was remanded to our Court for a determination of the appeal on the merits.

The record shows that appellant was tried before a Lancaster County jury from January 27, 1976 through February 3, 1976 on charges that he had engaged in indecent sexual contacts with a minor. Twenty-nine (29) witnesses testified during the course of the five days of trial. We need only highlight some of the most salient evidence and events of the trial for purposes of this Opinion.

The alleged victim was a twelve year old boy who claimed that the appellant, who employed him and other youths in a

[ 264 Pa. Super. Page 147]

    small family business, had engaged in sexual contacts in a garage which was part of the business premises. The incident was not reported to anyone by the boy until a month and a half after it allegedly took place. The appellant, who completely denied the charge, was an educator of some standing who had no prior criminal record.

After the trial court charged the jury on the morning of February 3, 1976, it retired at 11:50 A.M., to begin deliberations. A luncheon recess in these deliberations was observed. At 5:10 P.M., the jury returned to the courtroom, whereupon the following colloquy evolved:

THE COURT: Mr. Foreman, has the jury reached a verdict?


THE COURT: Well, members of the jury, as I stated and as you fully realize, this trial started last Tuesday, and I know you've been deliberating all afternoon, I know that the charge to the jury was completed about ten minutes of eleven. I understand that you returned from your lunch about 1:00, and have been deliberating since then. And under these circumstances, I'm going to direct that you return to the room for further deliberation, and I want to say to you that in order to return a verdict, each juror must agree thereto, that jurors have a duty to talk with another and to deliberate with a view to reaching an agreement, if it can be done without violence to individual judgments. Each juror must decide the case for himself, but only after an impartial consideration of the evidence with his fellow jurors. In the course of deliberations, a juror should not hesitate to re-examine his own views and change his opinion if convinced he should do this. No juror should surrender his honest conviction as to the weight or effect of the evidence solely because of the opinion of his fellow jurors or for the mere purpose of returning a verdict.

And, having stated that to you, members of the jury, I'm going to direct that you now return ...

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