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COMMONWEALTH PENNSYLVANIA v. MICHAEL PETERS (06/05/79)

SUPERIOR COURT OF PENNSYLVANIA


decided: June 5, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
MICHAEL PETERS, APPELLANT

No. 52 Special Transfer Docket, Appeal from the Order of the Court of Common Pleas of Bucks County, Criminal Division at Nos. 1410, -1, -2, 1971 of 1971 Sessions.

COUNSEL

Dennis W. Lanctot, Morrisville, for appellant.

John J. Kevlock, Assistant District Attorney, Doylestown, for Commonwealth, appellee.

Hoffman, Eagen and Hess, JJ.*fn*

Author: Per Curiam

[ 266 Pa. Super. Page 538]

This is an appeal from a pre-trial order refusing to bar appellant's third trial on murder and related charges. Appellant's conviction at his second trial was reversed by the Supreme Court because of the admission of an involuntary confession, Commonwealth v. Peters, 473 Pa. 72, 373 A.2d 1055 (1977). Appellant now contends: (1) that double jeopardy bars a third trial because there was no manifest necessity for the trial judge to declare a mistrial sua sponte after the first trial when the jury was unable to reach a verdict after eight hours of deliberation, and (2) the trial judge erred in not accepting a partial verdict by the first jury contrary to the mandatory language of Pa.R.Crim.P. 1120(d).

Both of these alleged errors at the first trial could have and should have been raised in a pre-trial application for relief before the second trial. Pa.R.Crim.P. 306. Because they were not, these issues were waived. Commonwealth v. Peters, supra, 473 Pa. at 75-76, 373 A.2d at 1057. Additionally, the second contention is not preserved for our

[ 266 Pa. Super. Page 539]

    review because defense counsel did not object to the court's failure to accept the partial verdict, and in fact opposed the Commonwealth's request to take the partial verdict reached by the jury. Commonwealth v. Blair, 460 Pa. 31, 36 n. 3, 331 A.2d 213, 215 n. 3 (1975).


*fn* Chief Justice Michael J. Eagen of the Supreme Court of Pennsylvania and Judge Warren K. Hess of the Court of Common Pleas of Berks County, Pennsylvania, are sitting by designation.


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