No. 80-3-702, Appeal from the July 28, 1980 Order of the Court of Common Pleas of Philadelphia County, Denying Appellant's Motion to Dismiss the Bills of Indictment Numbers 1415-1419, August Term, 1979, on grounds of Double Jeopardy.
Vincent J. Ziccardi, Philadelphia, for appellant.
Robert B. Lawler, Chief, Appeals Div., Steven Cooperstein, Philadelphia, for appellee.
O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty, McDermott and Hutchinson, JJ. Flaherty, J., files a dissenting opinion in which O'Brien, C. J., and Roberts, J., join.
This is an appeal from an order of the Honorable Paul Ribner of the Court of Common Pleas of Philadelphia, denying the motion of appellant, Anthony Murry,*fn1 for dismissal on double jeopardy grounds, of charges of murder, robbery, conspiracy, and possession of an instrument of crime. We affirm.*fn2
Appellant had been tried for these offenses before a jury; which began its deliberations at 11:29 A.M. on March 27, 1980.*fn3 The jury deliberated throughout the day, at one point returning to the courtroom for clarification of the different degrees of murder. The jurors retired for the evening, and, after resuming deliberations on the morning of March 28, 1980, returned to the courtroom at 12:12 P.M. to inform the court that they had failed to reach agreement upon a verdict. The foreman indicated, however, that an agreement might be attainable if the court would explain whether all four bills of information required identical verdicts. After requested explanation was given, the jury resumed deliberations at 12:35 P.M. The jury reentered the courtroom at 2:52 P.M. and delivered the following written message to the court:
Your Honor, this jury cannot reach a unanimous decision on any of the four bills of information. After much deliberation, the jury feels that there is no possible way we will be able to reach any unanimous decisions on any of the four listed bills of information.
Notes of Testimony at 12.14 (emphasis supplied). The court responded that the jury had not yet deliberated for an undue amount of time, and, at 2:59 P.M., dispatched the jury to once again try to reach agreement on a verdict. At 3:45 P.M. the jury again returned to the courtroom and delivered to the court a second note:
Your Honor, it is the unanimous opinion and decision of this jury that the information as presented by both defense counsel and the Assistant District Attorney is insufficient. Therefore, we are unable to reach any unanimous Page 507} ...