No. 140 Special Transfer Docket, Appeal from the Order of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, Nos. 193, 194, 195, 196 March Term, 1975.
Lewis S. Small, Philadelphia, for appellant.
Suzanne McDonough, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Wieand, Nix and Wekselman, JJ.*fn* Wieand, J., concurs in the result.
[ 272 Pa. Super. Page 27]
On July 29, 1975, appellant was brought to trial and on August 4, 1975, was convicted by a jury of murder in the third degree, conspiracy and robbery. His post-trial motions resulted in the award of a new trial on the basis that testimony concerning a polygraph test was improperly given by a Commonwealth witness at trial. He was tried for a second time in March of 1976.*fn1
After the jury in the second trial reported itself as deadlocked, the trial judge sua sponte declared a mistrial. Prior to commencement of the third trial, defendant filed a motion to dismiss based upon double jeopardy, alleging that the jury in his second trial had not deliberated for a sufficient length of time and that the mistrial was declared by the trial judge without manifest necessity. At that time, he also reasserted the alleged Rule 1100 violation which he had raised at the second trial. His contentions were not persuasive to the hearing court and his motions were denied. In September of 1976, he was tried for a third time and, once again, found guilty of murder in the third degree, conspiracy and robbery. He filed post-trial motions which were sustained on the basis that an inculpatory statement made by appellant was improperly admitted into evidence at the third trial. Prior to his fourth trial, appellant filed a motion to dismiss based on a double jeopardy assertion and the alleged Rule 1100 violation at his second trial. That motion was denied and the matter is now before this Court on appeal from that Order of denial.
[ 272 Pa. Super. Page 28]
Appellant argues that a fourth prosecution should be barred on grounds of double jeopardy because:
1. Deliberate statements by a Commonwealth witness with respect to a polygraph test constituted prosecutorial misconduct.
2. The jury was discharged at appellant's second trial without adequate time to deliberate and no manifest necessity was present for the discharge of the jury.
3. The prosecutor at his third trial improperly introduced a patently inadmissible inculpatory statement, once again ...