No. 80-3-803, Appeal from the Judgment of Sentence imposed by the Court of Common Pleas of Schuylkill County on October 24, 1980, at Nos. 9-1980; 9A-1980 Criminal Division
David Katz, Ellen Edge Katz, Stroudsburg, for appellant.
Thomas J. Nickels, Adam D. Bavolack, Asst. Dist. Attys., for appellee.
Roberts, C.j., and Nix, Larsen, Flaherty, McDermott and Zappala, JJ. Nix, J., files a concurring opinion in which Larsen, J., joins. Hutchinson, J., did not participate in the consideration or the decision of this matter.
This is a direct appeal from an order of sentence of the Court of Common Pleas of Schuylkill County, following the conviction of appellant for voluntary manslaughter, attempted voluntary manslaughter and aggravated assault.
Mr. Mehmeti was charged with killing one William Haslam, and injuring James Dietrich, in a shooting incident which occurred on December 25, 1979. He was originally tried on these charges on March 18, 1980. This trial ended on March 22, 1980, when a mistrial was declared due to a jury deadlock. The declaration of mistrial was objected to by appellant's counsel. Thereafter, new charges were filed, and appellant filed a "Motion for Dismissal of Charges", asserting double jeopardy as a bar to retrial. This motion was denied and on May 5, 1980, appellant's second trial was begun.
At this second trial the Commonwealth was permitted to introduce, over the objection of appellant's counsel, a head and shoulders photograph of the deceased victim in which he was clean shaven and dressed in a suit. The picture had been taken at the wedding of the victim's son, three years
prior to the shooting. The victim's son was permitted to identify the photo, and to tell when and where it had been taken. The trial judge admitted this photograph, and permitted it to go out with the jury during their deliberations.
On May 8, 1980 the jury returned a verdict of guilty on all charges. Post-trial motions were timely filed, raising the issue of double jeopardy, as well as the propriety of admitting the photograph of the deceased. The trial court denied these motions, and appellant was sentenced to a prison term of not less than two years, nor more than fifty-nine and a half months, plus a fine of $2,500.00 on the voluntary manslaughter charge. He was also given identical prison terms on the other two charges, with all sentences to run concurrently. This appeal followed.
As a rule double jeopardy attaches if a mistrial is declared without manifest necessity, or without the defendant's request or consent. However, a genuine inability of the jury to agree on a verdict can constitute manifest necessity, and the declaration of a mistrial in such circumstances will not bar re-prosecution. Commonwealth v. Santiago, 492 Pa. 297, 424 A.2d 870 (1981); Commonwealth v. Sullivan, 484 Pa. 130, 398 A.2d 978 (1979).
Appellant argues that the facts of this case do not indicate that the jury at the first trial was deadlocked. A review of the record indicates otherwise. After two days of deliberations the jury reported to the trial judge that they were hopelessly deadlocked. At that point the trial judge spoke with the jury and impressed upon them the importance of trying to reach a unanimous verdict. (N.T. Trial No. 1, Vol. IV at 29-30, March 21, 1980.) The jury agreed to deliberate further in an attempt to reach a verdict. Approximately three and one half hours later, the jury returned to the courtroom and the following exchange took place:
THE COURT: Members of the Jury, have you reached a verdict?
JURY FOREMAN: There is no verdict. No, your Honor. At this point we are hopelessly deadlocked.
THE COURT: Is that the opinion of the entire jury panel?
JURY FOREMAN: Everyone in the group was polled and the decision was that it could not be changed.
THE COURT: And no one would change their vote. Am I correct?
JUROR NO. 5: It wasn't unanimous about the deadlock.
JURY FOREMAN: No, it wasn't unanimous. I beg your pardon. After it was polled and I asked if anyone had any intention to change their vote, if anyone had intention of changing, ...