Appeal from the Order of December 9, 1983, in the Court of Common Pleas of Delaware County, Criminal Division, at No. 2623-83.
Frank J. Marcone, Media, for appellant.
Helen T. Kane, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Cavanaugh, Beck and Tamilia, JJ.
[ 340 Pa. Super. Page 466]
While fighting a fire at the house in which appellant Robert Marconi resided, firemen discovered various drugs and weapons. As a result of this information and further investigation, appellant was arrested and charged with possessing prohibited offensive weapons,*fn1 theft by receiving stolen property,*fn2 causing or risking a catastrophe,*fn3 recklessly
[ 340 Pa. Super. Page 467]
endangering another person,*fn4 and four violations of the Controlled Substance, Drug, Device and Cosmetic Act.*fn5
Trial before a jury commenced on October 19, 1983. During the trial two jurors were excused and replaced by the two alternates who had been chosen at jury selection. At the close of the Commonwealth's case, appellant demurred to the evidence. The court sustained appellant's demurrer to the charge of receiving stolen property and denied it with respect to all other charges. The defense indicated it would not present any evidence and rested.
Before the case could proceed to closing arguments, a juror informed the court that she had become aware of certain information about appellant as a result of a conversation with an acquaintance the previous evening, and that she felt she could no longer serve as an impartial juror. The court and both counsel agreed that it was necessary to dismiss the juror. This left the jury with only eleven members, because there were no more alternates. Appellant did not elect to proceed with the diminished jury (see Pa.R.Crim.P. 1103). Consequently, the trial court declared a mistrial. The instant appeal is from the denial of appellant's motion to dismiss on the grounds that principles of double jeopardy preclude further prosecution. For the reasons stated below we affirm.
The basis of appellant's double jeopardy claim is somewhat novel. Although inartfully asserted, in essence he contends that at this juncture the appellate court should review the trial court's ruling on his challenge to the sufficiency of the evidence. Appellant contends that if the appellate court finds the Commonwealth's evidence at the first trial insufficient, a second trial would violate appellant's right not to be placed twice in jeopardy, because the Commonwealth would receive a second chance at proving sufficient evidence when the first trial ended inconclusively
[ 340 Pa. Super. Page 468]
for a reason not appellant's fault. Essentially, appellant's argument reduces to a contention that the government shall not retry a defendant following the grant of a mistrial, whatever the precise circumstances surrounding the mistrial, if the mistrial is declared after the close of the prosecution's case and the prosecution, having ...