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COMMONWEALTH PENNSYLVANIA v. TERRY SMITH (01/20/84)

filed: January 20, 1984.

COMMONWEALTH OF PENNSYLVANIA
v.
TERRY SMITH, APPELLANT



No. 1826 Philadelphia 1981, Appeal from the Order in the Court of Common Pleas. Criminal Division, of Lancaster County at No. 157 of 1981.

COUNSEL

Thomas G. Klingensmith, Assistant Public Defender, Lancaster, for appellant.

Michael H. Ranck, District Attorney, Lancaster, for Commonwealth, appellee.

Wickersham, Watkins and Montgomery, JJ.

Author: Wickersham

[ 324 Pa. Super. Page 158]

This is an appeal from the Order of the Court of Common Pleas of Lancaster County, denying a petition for dismissal based on double jeopardy.*fn1

The appellant, Terry Smith, was charged with two counts of indecent assault and one count of involuntary deviate sexual intercourse. The alleged victims of these crimes were ten and eleven year old sisters, who were neighbors of the appellant. A jury trial was held before the Honorable D. Richard Eckman. All of the testimony and evidence in this case was presented in one day, June 10, 1981. The jury was charged on the following morning and began its deliberations.

[ 324 Pa. Super. Page 159]

After approximately eight and one half hours, the jury declared itself hopelessly deadlocked on the two counts before them*fn2 and the court declared a mistrial. The Commonwealth quickly notified the appellant of its intention to re-try the charges, and on June 26, 1981, the appellant filed a motion to dismiss the charges based on double jeopardy grounds. The Commonwealth filed an answer and, on July 14, 1981, the court denied appellant's motion, on the basis that manifest necessity had warranted the court's declaration of a mistrial. It is from this order of court that this appeal was filed.

Appellant's question for us is not complex:

When a jury deliberates for a period of only eight hours did manifest necessity exist for a declaration of a mistrial?

Brief for Appellant at 1. Under the facts of this case, we find that manifest necessity did exist.

The double jeopardy clause of the fifth amendment provides, in part, that no person shall be subject for the offense to be twice put in jeopardy of life or limb. Our courts have adhered to the rule that in a jury case, jeopardy attaches when the jury is sworn. Commonwealth v. Carson, 259 Pa. Super. 183, 393 A.2d 778 (1978). No one ...


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