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COMMONWEALTH PENNSYLVANIA v. ROBERT PLEXICO (10/05/79)

SUPERIOR COURT OF PENNSYLVANIA


filed: October 5, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
ROBERT PLEXICO, APPELLANT

Nos. 120 and 121 Special Transfer Docket, APPEAL FROM THE DECISION OF THE COURT OF COMMON PLEAS, CRIMINAL TRIAL DIVISION OF PHILADELPHIA COUNTY, DISMISSING MOTION TO QUASH INFORMATION, AT OCTOBER TERM, 1976, NOS. 1490 - 1492

COUNSEL

Joseph T. Kelley, Jr., Philadelphia, for appellant.

Suzanne McDonough, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Watkins, Manderino and Cirillo, JJ.*fn*

Author: Cirillo

[ 270 Pa. Super. Page 545]

This is an appeal from an order of the court below dismissing a motion to quash the case on the grounds of former jeopardy. The defendant had been previously tried for the crimes of conspiracy, possessing instruments of a crime, and murder. After the jury in that trial had deliberated for approximately 18 hours, they reported to the trial judge that they were hopelessly deadlocked, and the judge declared a mistrial over the objections of the defendant. Prior to the second trial, the defendant filed a motion to dismiss, alleging that the declaration of a mistrial had been improper and, therefore, double jeopardy came into play.

When a jury is discharged for failure to reach a verdict, a retrial is permissible if the discharge was manifestly necessary. The most recent case on this subject is Commonwealth v. Sullivan, 484 Pa. 130, 398 A.2d 978 (1979). In that case, the defendant objected to his trial and conviction on a third trial for murder on the grounds of alleged double jeopardy. The court concluded that the second trial was properly declared a mistrial after the jury had deliberated for 20 hours and were hopelessly deadlocked. In that case, 8 jurors reported that they were hopelessly deadlocked. In this case 10 of the 12 jurors reported that they were hopelessly deadlocked and they had repeatedly reported to the court during the 18 hours of deliberation that they had been deadlocked. The court in Sullivan stated that 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. In this case, we hold that the trial judge did not abuse his discretion and properly granted a mistrial.


*fn* Justice Louis L. Manderino of the Supreme Court of Pennsylvania, and Judge Vincent A. Cirillo of the Court of Common Pleas of Montgomery County, Pennsylvania, are sitting by designation.


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