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COMMONWEALTH PENNSYLVANIA v. MARION CURRY (03/09/84)

filed: March 9, 1984.

COMMONWEALTH OF PENNSYLVANIA
v.
MARION CURRY, APPELLANT



No. 1801 Phila., 1980, Appeal from the order of the Court of Common Pleas, Criminal Division, of Philadelphia County, at Nos. 791/797 June Term, 1979.

COUNSEL

Mark E. Kogan, Philadelphia, for appellant.

Gaele McLaughlin Barthold, Assistant District Attorney, Philadelphia, for Com., appellee.

Wickersham, Montemuro and Watkins, JJ.

Author: Watkins

[ 325 Pa. Super. Page 367]

This is an appeal from the order of the Court of Common Pleas, Criminal Division, of Philadelphia County, denying a motion to dismiss the granting of a mistrial. The charges in this case were burglary, robbery, rape and possession of instruments of crime. The jury returned verdicts of not guilty of burglary and robbery, but were unable to agree on rape and the possession of instrument of crime charges.

They were sent back for further discussion, but on the next day after deliberating a total of twenty hours, they sent a message to the judge that they were hopelessly deadlocked and were unable to reach a verdict on the rape and weapon charges. Judge Klein, the trial judge, found that there was manifest necessity to declare a mistrial on the remaining charges.

[ 325 Pa. Super. Page 368]

The defendant filed a Motion to Dismiss the remaining bills alleging that the prosecution on these charges was barred by double jeopardy. The motion was denied and this appeal followed.

We find that the trial judge properly declared a mistrial.

The alleged victim in this case, Mrs. Cheryl Freeman, testified that she was pregnant and was home alone with her two children, ages three and five, when the defendant and another male entered the house and at gunpoint ransacked it and at knifepoint brutally attacked and raped her. The defense was an alibi to the effect that at the time alleged he was at a wake.

The doctrine of collateral estoppel as decided by the federal constitutional proscription against double jeopardy "means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit." Ashe v. Swenson, 397 U.S. 436, 443, 90 S.Ct. 1189, 1194, 25 L.Ed.2d 469 (1970). To resolve the merits of such a claim a court must determine in a common sense fashion what facts the jury must have found to acquit the defendant. Commonwealth v. Steppke, 267 Pa. Superior Ct. 442, 448-49, 406 A.2d 1123, 1126-27 (1979). If it cannot be said with certainty that a question of fact, critical to the ...


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