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COMMONWEALTH PENNSYLVANIA v. EDWARD T. KIVLIN (06/22/79)

decided: June 22, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
EDWARD T. KIVLIN, III, APPELLANT



No. 57 Special Transfer Docket, No. 58 Special Transfer Docket, Appeal from Judgments of Sentence of the Court of Common Pleas of Delaware County, Criminal Division, at No. 6945 A & G, December Term, 1975.

COUNSEL

Malcolm W. Berkowitz, Philadelphia, for appellant.

D. Michael Emuryan, Deputy District Attorney, Media, for Commonwealth, appellee.

Cercone, President Judge, and Roberts and Lipez, JJ.*fn*

Author: Roberts

[ 267 Pa. Super. Page 274]

Appellant, Edward T. Kivlin, III, was charged with shooting to death Ann Mauro a six year old girl, during an exchange of gunfire with Ann's father at the Mauro residence. On August 11, 1976, a jury convicted him of murder of the third degree and crimes with firearms. After denying post-verdict motions, the trial court sentenced appellant to a term of imprisonment of 10 to 20 years on the murder charge, a concurrent term of 2 1/2 to 5 years on the weapons charge and payment of costs. Appellant raises approximately 75 claims of error. We have examined each, find all without merit and affirm. Only three issues warrant discussion.

I

Appellant asserts that he was subject to double jeopardy in violation of the Sixth Amendment of the Constitution of the United States when he was tried twice on

[ 267 Pa. Super. Page 275]

    charges arising out of the killing of Ann Mauro. Appellant was tried first in May, 1976. The trial court declared a mistrial when the jury failed to reach a verdict after three days of deliberation. Before his second trial in July and August, 1976, appellant filed a motion, alleging double jeopardy and requesting discharge of the indictments against him. The court denied the motion.*fn1 We find no abuse of discretion.

The jury began its deliberations at about 5:00 p. m., Tuesday, May 25, continued until about 9:00 p. m. that night, resumed deliberations on Wednesday and Thursday and still had not reached a verdict on Friday afternoon, May 28. At about 3:00 p. m. that afternoon, the trial court called the jury into the courtroom:

"THE COURT: Mr. Foreman, the jury has been deliberating since about five o'clock on Tuesday afternoon. It is now three o'clock on Friday.

[ 267 Pa. Super. Page 276]

I want to know, if you deliberate any longer do you think you can ...


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