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filed: September 19, 1979.


No. 248 April Term, 1977, Appeal from the Judgment of Sentence of the Court of Common Pleas Of Allegheny County, Criminal Division. No. 7507684.


Louis Dadowski, Assistant Public Defender, Pittsburgh, for appellant.

Robert L. Eberhardt, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.

Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Price, J., files an opinion in support of affirmance in which Van der Voort and Hester, JJ., join. Cercone, President Judge, files an opinion in support of reversal in which Hoffman, J., joins. Spaeth, J., files an opinion in support of reversal in which Hoffman, J., joins. Jacobs, former President Judge, did not participate in the consideration or decision of this case.

Author: Per Curiam

[ 270 Pa. Super. Page 70]

The six judges who heard this appeal being equally divided, the judgment of sentence is affirmed.


PRICE, Judge:

Following a jury trial on March 8, 1976, appellant was convicted of robbery,*fn1 recklessly endangering another person,*fn2 unlawfully carrying a firearm without a license,*fn3 and altering marks of identification.*fn4 Post-trial motions for a new trial and in arrest of judgment were denied, and appellant was sentenced to a term of imprisonment of ten to twenty years on the robbery count, one to two years on the reckless endangerment count, and two and one-half to five years on the count of unlawfully carrying a firearm without a license. The terms of imprisonment were to run consecutively. Sentence was suspended on the count of altering or obliterating marks of identification.

[ 270 Pa. Super. Page 71]

Appellant now appeals the November 5, 1976 order of the lower court which denied his motions for new trial and in arrest of judgment. He contends that he was placed in jeopardy twice, thereby violating his fifth amendment rights, and the warrantless search of his automobile was not justified by probable cause or exigent circumstances. Appellant also contends that the lower court was in error in admitting into evidence the in-court identification of appellant by the victim of the robbery, Russell Scipio, because the identification lacked a sufficient independent basis to purge the primary taint of an out-of-court one-to-one confrontation between appellant and Mr. Scipio. Finding merit to none of appellant's contentions, we would affirm the order of the court below.

Viewing the evidence in the light most favorable to the Commonwealth, Commonwealth v. Lee, 460 Pa. 374, 333 A.2d 773 (1975), the following was adduced at trial. Russell Scipio, an employee of Coca-Cola was delivering soft drinks in the Homewood section of Pittsburgh at approximately 2:00 p. m. on November 1, 1974, when he was accosted by appellant. Mr. Scipio testified that after he loaded his hand truck to make a delivery to one of his clients, he was approached by appellant who was carrying an automatic weapon. Appellant demanded money, and Mr. Scipio gave him what money he had. Appellant then reached into Mr. Scipio's shirt pocket, and Mr. Scipio grabbed appellant's hand, pushed the gun aside, and ran behind the back of his delivery truck. Appellant fired four shots at Mr. Scipio, none of which hit its mark. Appellant then entered a black Cadillac and fled the scene of the crime. Mr. Scipio reported the incident to the police and described appellant as a black male, approximately six feet tall, with an afro hairstyle, and wearing a blue cap, bluejeans and a green coat. Mr. Scipio also reported that although appellant was wearing a blue bandana over his face, he could detect a mustache under it. He also reported that appellant was carrying a .380 automatic weapon which had distinctive file markings on it. Wanda Whitely, a resident of the area, testified that from

[ 270 Pa. Super. Page 72]

    her apartment window she observed a black Cadillac cruising the area and that the car had a T.V. antenna on the trunk. After she heard three gunshots, she observed a black man in a coat, which she later identified as appellant's, run to the car and get in on the passenger side. The driver of the car, whom Ms. Whitely also described as a black male, then hastily drove the car from the area. Pittsburgh Police Officers Ronald May and Thomas Rogers, supplied with a description of appellant from Mr. Scipio and a description of the car from Ms. Whitely, stopped a black Cadillac at 2:27 p. m., approximately sixteen blocks from the location of the robbery. The car had a T.V. antenna on the trunk. As the officers approached the car, appellant disembarked. He was wearing light blue colored bluejeans and a purple flowered shirt. He had an afro hairstyle and a full beard. Officer Rogers noticed a blue cap on the front seat of the Cadillac. A black female was seated on the passenger side of the front seat, and two children were seated in the back seat. Appellant presented the police with his owner's card and driver's license. During this time, Officer William Giles arrived to supply back-up assistance. Officer Giles approached the passenger side of the vehicle, and as he opened the door, the female passenger inside kicked her purse, which was under her legs, against the front seat. This action brought Officer Giles' attention to the area under the front seat where he noticed a portion of a green jacket exposed. He reached down and grabbed the jacket, and as he did, he felt a gun*fn5 contained in one of the jacket pockets. He thereupon pulled the jacket from under the seat. Contained in another jacket pocket was a blue bandana. A search of appellant uncovered $49 in cash.*fn6 Appellant was arrested and taken to the East Liberty Police Station. There, a barium and antimony test was performed to determine whether appellant had fired a gun within the previous six hours. Test samples

[ 270 Pa. Super. Page 73]

    were sent to the Department of Treasury, Bureau of Alcohol, Tobacco and Firearms for analysis. The test results indicated that appellant had fired a gun within six hours of the test, and ballistic tests performed indicated that bullet fragments and cartridge casings found at the scene of the robbery were fired from the gun found in appellant's car.

After appellant's arrest, Mr. Scipio was notified by the police that they had a possible suspect and was asked to come down to the station for identification purposes. When Mr. Scipio first saw him at the police station, appellant was handcuffed and had a green coat draped over his shoulder. Mr. Scipio immediately identified appellant as the man who robbed him earlier that day. The police then put the cap and bandana on appellant and again asked Mr. Scipio whether appellant was the person who robbed him. Mr. Scipio responded affirmatively.

Appellant was indicted by a grand jury on November 13, 1975, and after a suppression hearing on January 18, 1976, the court below, per Judge Robert E. Dauer, granted a motion to suppress the identification of appellant made by Mr. Scipio at the East Liberty Police Station. Appellant's first trial was commenced on January 9, 1976, but a mistrial was declared, at appellant's request, on that same day because a Commonwealth witness referred to the suppressed identification. Appellant's second trial which commenced on January 13, 1976, resulted in the declaration of a mistrial because the jury, after over eleven hours of deliberation, reported to the court that they were hopelessly deadlocked. Appellant subsequently filed a motion to quash the indictment; this motion was denied on March 8, 1976. It was a result of a third trial on March 10, 1976, that appellant was finally convicted.

Appellant's first contention is that no manifest necessity existed to justify the lower court in declaring a mistrial in his second trial when the jury announced that it was hopelessly deadlocked. As a result, appellant contends that his third trial placed him in double jeopardy and thus violated his constitutional rights. We do not agree with appellant's contention.

[ 270 Pa. Super. Page 74]

A defendant may be tried without violation of his right not to be placed twice in jeopardy if his prior trial concluded without a verdict for reasons of manifest necessity. United States v. Wilson, 420 U.S. 332, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975); Commonwealth v. Sullivan, 484 Pa. 130, 398 A.2d 978 (1979); Commonwealth v. White, 476 Pa. 350, 382 A.2d 1205 (1978); Commonwealth v. Bartolomucci, 468 Pa. 338, 362 A.2d 234 (1976). Absent such manifest necessity, double jeopardy would attach and thus preclude a subsequent trial. United States ex rel. Stewart v. Hewitt, 517 F.2d 993 (3d Cir. 1975); Commonwealth v. Wideman, 453 Pa. 119, 306 A.2d 894 (1973).

On appellate review of the lower court's finding of manifest necessity, the circumstances of the trial must be examined to determine if any doubt exists regarding the propriety of the exercise of discretion by the lower court. Commonwealth v. Bartolomucci, supra. 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. Sullivan, supra. The supreme court emphasized in Bartolomucci the importance of having the court below inquire directly of the jury, either individually or through the foreman, about the possibility of the deadlock being overcome by further deliberations. Such an inquiry serves to remove any doubt, and thus, provides greater certainty as to the existence of a deadlock and the hopelessness of breaking it.

In the instant case, the jury was summoned back into the courtroom after eleven hours of deliberation. At that time, the following exchange occurred:

"THE COURT: All right, Members of the Jury, the Court has asked you to return to the courtroom, and I'd like to address a question to your foreman and ask him if he would advise the Court -- if he or she would advise the Court as to the status of the deliberations of the jury. If you are divided, I do not wish you to announce the numbers or what the divisions are, or who among you may

[ 270 Pa. Super. Page 75]

    be on which side of the question, or to indicate that in any way at all, but to state in a few words what your judgment is as to whether it is possible to arrive at a unanimous verdict in this case by continuing your deliberations this evening?


THE COURT: You can sit there.

JURY FOREMAN: Okay. We have discussed the case at great length and, in my own opinion, I feel that we are deadlocked. There are certain persons who are immovable on both sides.

THE COURT: All right, I don't want you to go into any more detail, but just for the sake of clarity and to make sure there would be no misunderstanding, I would ask you if you are morally certain that it is impossible to reach a verdict by continuing your deliberations either tonight or tomorrow morning after you would be recessed to retire to the hotel, sequestered until then, that is, if you are morally certain that regardless of the circumstances the deadlock would continue?

JURY FOREMAN: I am certain.

THE COURT: All right . . . ." (Partial ...

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