No. 380 January Term, 1978, Appeal from an Order denying a Motion to Dismiss on Grounds of Double Jeopardy, Court of Common Pleas, Criminal Trial Division, of Philadelphia, at Nos. 1370-1371 July Term, 1973.
Mead S. Spurio, Philadelphia, for appellant.
Robert B. Lawler, Chief, Appeals Div., Philadelphia, for appellee.
O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. Nix, J., filed an Opinion in Support of Affirmance. Larsen and Kauffman, JJ., filed an Opinion in Support of Affirmance. O'Brien, C. J., filed an Opinion in Support of Reversal in which Roberts and Flaherty, JJ., join. Roberts, J., filed an Opinion in Support of Reversal in which O'Brien, C. J., and Flaherty, J., join.
The Court being equally divided, the Order is affirmed.
OPINION IN SUPPORT OF AFFIRMANCE
Because of the error committed in the first trial, appellant has been awarded a new trial. The error was not of the nature that would taint a retrial, thus the award of a new trial is an adequate remedy. I therefore find no basis for barring retrial and immunizing this appellant from a fair trial on the charges for which he stands accused. See Commonwealth v. Hoskins, 494 Pa. 600, 432 A.2d 149 (1980), (Nix, J. Opinion in Support of Affirmance, 1981); Commonwealth v. Starks, 490 Pa. 336, 345, 416 A.2d 498, 501 (1980) (Dissenting Opinion, Nix, J.); Commonwealth v. Hogan, 482 Pa. 333, 393 A.2d 1133 (1978).
Opinion IN SUPPORT OF AFFIRMANCE
LARSEN and KAUFFMAN, Justices.
Appellant, William Kern Hallowell, was convicted by a jury in April of 1974 of murder of the first degree and robbery. The victim was his mother. After denial of his post-verdict motions, appellant was sentenced to life imprisonment for the murder conviction and ten-to-twenty years, consecutive, for the robbery conviction.
On direct appeal, this Court granted appellant a new trial due to prosecutorial misconduct. Commonwealth v. Hallowell, 477 Pa. 232, 383 A.2d 909 (1978). Prior to the reprosecution, appellant moved to dismiss the charges against him, asserting that the retrial would violate double jeopardy principles. The motion was denied by the Court of Common Pleas of Philadelphia County on December 11, 1978. Appellant then brought this interlocutory appeal to this Court pursuant to Commonwealth v. Bolden, 472 Pa. 602, 373 A.2d 90 (1977).
In the previous appeal before this Court, appellant raised numerous contentions of error, including several varieties of prosecutorial misconduct. He asserted that he had been deprived of a fair trial, and he asked this Court to remedy that unfairness by granting him a new trial. He did not ask Page 206} for a discharge on double jeopardy, or any other, grounds. We did all that was asked of us. We reviewed the voluminous notes of testimony (which filled several boxes) and all of the many pleadings and other documents, gave full consideration to all of the legal and factual issues presented by all the briefs (including a mammoth pro se brief of appellant), concluded that appellant had, indeed, been deprived of a fair trial and, finally, we granted appellant exactly the relief he expressly requested -- a new trial !
Having received the sole relief he requested, appellant belatedly has decided he wants something else, and is again before this Court armed with the exact same allegations of prosecutorial misconduct. He now asks us to re-examine those allegations, to re-engage the appellate judicial machinery, and to expend another sizeable chunk of judicial resources in his behalf, in order to grant him relief which he failed to request in January of 1978. We would refuse to indulge appellant's disregard for the Commonwealth's resources and would, accordingly, hold that appellant's request for the specific relief of a new trial, which relief was granted, constitutes a waiver of any other relief he could have sought in 1978.
As this Court has frequently held, a litigant who seeks and receives specific relief for a given error cannot seek additional relief at a later time. See, e. g., Commonwealth v. Hoskins, 485 Pa. 542, 554 n. 12, 403 A.2d 521, 526 n. 12 (1979) ("since [appellant] failed to do anything more than object and request the striking of testimony in some instances, he received all the relief requested and cannot now seek further relief."), and Commonwealth v. Hill, 479 Pa. 346, 388 A.2d 689 (1978).
Commonwealth v. Bartolumucci, 468 Pa. 338, 362 A.2d 234 (1976) is not inconsistent with this opinion. In Bartolomucci, counsel for defendant had asked the trial court to give additional instructions to the jury which had been deliberating for some eleven hours. The trial court denied this request. Shortly thereafter, the jury was recalled to the courtroom and the judge sua sponte declared a mistrial and
discharged the jury. When the Commonwealth brought Bartolomucci to trial again, he asserted a double jeopardy claim on the grounds that the jury should not have been discharged absent a determination that it was hopelessly deadlocked and that mistrial was therefore "manifestly necessary". The Commonwealth responded that the double jeopardy claim was waived because Bartolomucci did not state those specific grounds for objection at trial, but instead had requested additional instructions. The Court held that counsel's "mere silence" following the lower court's sua sponte declaration of mistrial did not amount to the request or consent to mistrial which would have been necessary to find a waiver of the objection.
Unlike Bartolomucci, we are faced with much more than mere silence and passive waiver. On the very same facts that are now before us, appellant vigorously sought a particular type of relief in 1978. The granting of that specific relief exclusively requested by appellant precludes him from returning to this forum to seek additional, ...