No. 499 Philadelphia 1983, Appeal from the Order of the Court of Common Pleas, Lehigh County, Criminal Action, No. 1174 of 1980.
Before Cavanaugh, Montemuro And Hester, JJ.
The sole issue presented on appeal is whether the trial court abused its discretion in granting a mistrial and, therefore, subjects the appellant, Andrew Jones, to double jeopardy.
A defendant may be tried twice without violation of his right not to be placed in double jeopardy if his prior trial concluded for reasons of manifest necessity. United States v. Wilson, 420 U.S. 332 (1975). Manifest necessity exists and wischarge of the jury is justified when it appears that there is no reasonable probability of agreement on a verdict. Commonwealth v. Murray, 498 Pa. 504, 447 A.2d 612 (1982). The determination of length of time a jury should continue deliberation is within the sound discretion of the trial judge. Commonwealth v. Sullivan, 484 Pa. 130, 398 A.2d 978 (1979). Factors to be considered include the number, complexity, and gravity of the charges, and the volume of evidence presented. Commonwealth v. Monte, 459 Pa. 495, 329 A.2d 836 (1974).
Under the facts of the instant case, the trial court did not abuse its discretion in determining that manifest necessity existed for declaring a mistrial. While the four charges against appellant included the serious offense of armed robbery, the trial was not of a complex nature and lasted only two and one-half days. The primary factual issues before the jury were straight forward: whether a Commonwealth witness correctly identified the defendant as one of the masked perpetrators, and whether they believed the alibi testimony. The case was given to the jury at 12:15 p.m. At 4:30 p.m., the jury reported that they were having difficulty reaching a unanimous decision, and the judge called them back to the courtroom and advised them of their duty to continue deliberating. The jury returned to the courtroom at 8:55 p.m. and the foreman announced that they still could not reach a unanimous verdict, that no progress had been made in the over four hour period since the court's instruction to continue deliberating, and that further deliberation would positively not achieve any new result. The foreman was unequivocal and the judge sua sponte declared a mistrial.
In light of the brevity of the trial, its lack of complexity, the concerted four-hour effort by the jury to overcome its impasse, and the certitude of the foreman's responses that the jury was hopelessly deadlocked, the trial court's determination that there was no reasonable probability of unanimity was proper. See, Commonwealth v. Monte, id. Appellant's complaint that the trial judge should have individually questioned the jurors on this point is not persuasive. There is no requirement that the court do so. Commonwealth v. Kiulin, 267 Pa. Super. 279, 406 A.2d 799 (1979).
The order of the lower court is affirmed.