Nos. 200 & 210 January Term, 1977, Appeals from Judgments of Sentence of the Court of Common Pleas, Criminal, of Philadelphia, at Nos. 18 and 20 September Session, 1974
Stanley Bashman, Philadelphia, for appellant.
Robert B. Lawler, Chief, Appeals Div., Asst. Dist. Atty., Sheldon M. Finkelstein, Philadelphia, for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ. Manderino, J., concurs in the result.
Appellant, James Sullivan, was charged with murder, robbery and possession of an instrument of crime in connection with the death of Donald Hickok, which occurred on September 12, 1973. Appellant's first trial in the Court of Common Pleas of Philadelphia ended with the jury unable to reach a verdict on any count. In a second trial, appellant was acquitted of possession of an instrument of crime, but the jury could not reach a verdict on the remaining counts. Appellant was tried a third time and convicted of murder of the first degree and robbery. He was sentenced to imprisonment for life for murder and ten to twenty years for robbery. The record does not indicate whether the sentences are to be consecutive or concurrent; therefore they will be concurrent. Commonwealth v. Rice, 477 Pa. 221, 383 A.2d 903 (1978). Appellant appealed the judgment of sentence for murder to this court and the judgment of sentence for robbery to the Superior Court, which certified that appeal to this court.
Appellant first argues that his retrial after the failure of the jury to reach a verdict in his second trial constituted double jeopardy. He alleges that the judge acted improperly in terminating the second trial. The jury in that trial deliberated from 1:30 to 9:30 p. m. on August 13, 1975, and from 9:45 a. m. to 4:00 p. m. the next day, before telling the court it was deadlocked. The court instructed it to continue its deliberations. The jury did so until 10:15 p. m. and again advised the court that it was deadlocked. The court instructed the foreman to determine whether the jurors thought a verdict could be reached by further deliberation. Eight members of the jury believed that no verdict could be reached and the court then discharged the jury. We find no violation of appellant's protection
against double jeopardy. When a jury is discharged for failure to reach a verdict, a retrial is permissible if the discharge was manifestly necessary. Commonwealth v. Bartolomucci, 468 Pa. 338, 362 A.2d 234 (1976). The length of time that a jury should deliberate is left to the sound discretion of the trial judge, whose decision is reversible only if there is an abuse of discretion or if a verdict is the product of an overworked or fatigued jury. Commonwealth v. Campbell, 445 Pa. 488, 284 A.2d 798 (1971). In Commonwealth v. Kent, 355 Pa. 146, 49 A.2d 388 (1946), we approved of the discharge of a jury that was hopelessly deadlocked after forty hours of deliberation where there appeared to be a threat of physical exhaustion. We approved of similar action after twenty-four hours of deliberation over three days in Commonwealth v. Brown, 451 Pa. 395, 301 A.2d 876 (1973). In Commonwealth v. Monte, 459 Pa. 495, 329 A.2d 836 (1974), we found that six and one-half hours of deliberation were sufficient where the jury was deadlocked and the issues were not complex. In the instant case, the jury appeared to be deadlocked after approximately twenty hours of deliberation in two days. The court found that the factual issues were not complex in that they revolved around the credibility of an eyewitness, Charlotte Goodpasture. The judge's questioning of the jury indicates that he made a proper effort to determine whether a verdict could be reached. See Arnold v. McCarthy, 566 F.2d 1377 (9th Cir. 1978). We find that there was no abuse of discretion and that the retrial was proper.
Appellant alleges several errors in the conduct of the trial that resulted in his conviction. He alleges that Charlotte Goodpasture should not have been permitted to testify against him because she was his common-law wife. The trial court held a competency hearing and found that there was no marriage. Appellant claims that he and Goodpasture created a common-law marriage by agreeing to enter into a marital relationship. He attempted to support his claim by showing that they cohabited and were reputed to be husband and wife. The trial court, with support from the
evidence, found as fact that the agreement between appellant and Goodpasture was to marry in the future, that Goodpasture introduced appellant as her future husband, and that they only represented themselves as husband and wife for the purpose of ...