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COMMONWEALTH PENNSYLVANIA v. EVERETT E. SHIREY (05/31/85)

filed: May 31, 1985.

COMMONWEALTH OF PENNSYLVANIA
v.
EVERETT E. SHIREY, APPELLANT



Appeal from the Judgment of Sentence of the Court of Common Pleas of Potter County, Criminal, at Nos. 29 and 31 of 1980.

COUNSEL

Dante G. Bertani, Public Defender, Greensburg, for appellant.

Perry S. Patterson, Deputy Attorney General, Coudersport, for Commonwealth, appellee.

Montemuro, Johnson and Montgomery, JJ.

Author: Montemuro

[ 343 Pa. Super. Page 191]

This case is before us for the second time. In Commonwealth v. Shirey, 333 Pa. Super. 85, 481 A.2d 1314 (1984), we remanded this case*fn1 and directed the lower court to transcribe the notes of testimony of May 15 and 16, 1980, in order to address appellant's contention that the double jeopardy clause of the Fifth Amendment barred this prosecution.

[ 343 Pa. Super. Page 192]

Appellant's double jeopardy argument is that the prosecution of appellant on other charges docketed at Nos. 28 and 30 of 1980 in Potter County should have been consolidated with the prosecution of the charges in the instant appeal, i.e., Nos. 29 and 31 of 1980, because all the charges arose from the same criminal episode. Over appellant's objections, the charges at Nos. 28 and 30 were consolidated for trial, and those at Nos. 29 and 31 were consolidated for a separate trial. The trial of Nos. 28 and 30 commenced on May 15, 1980 and ended on May 16, 1980 when the trial court declared a mistrial due to the inability of the jury to reach a verdict. The trial of Nos. 29 and 31 involved in the instant appeal commenced on July 10, 1980, and concluded with the jury returning a verdict of not guilty of indecent assault*fn2 and guilty of corruption of a minor*fn3 at No. 29, and not guilty of indecent assault and guilty of corruption of a minor at No. 31.

In the earlier appeal, we concluded that the crimes involved at Nos. 28 and 30 did indeed arise out of the same criminal episode as those charged at Nos. 29 and 31. Commonwealth v. Shirey, supra, 333 Pa. Superior Ct. at 131-33, 481 A.2d at 1341. Despite this fact, the Commonwealth decided to consolidate the charges as set forth above, and thereby "threatened a violation of appellant's constitutional right not to be placed in jeopardy twice for conduct arising from a single criminal episode." Id. However, the only prior prosecution which existed at the time of the No. 29 and No. 31 prosecution was the mistrial of May 16, 1980. After reviewing the applicable law, we determined there would be no violation of the double jeopardy clause if the first trial concluded without a verdict for reasons of manifest necessity. See Commonwealth v. Shirey, supra, 333 Pa. Superior Ct. at 131-33, 481 A.2d at 1341-43 and cases cited therein.

We have examined the notes of testimony from the May 15 and 16, 1980 trial and find a mistrial was properly

[ 343 Pa. Super. Page 193]

    declared by the trial court. In that proceeding, the jury began its deliberations at 4:33 p.m. on May 16, 1980. At 8:03 p.m., the jury expressed its difficulty in interpreting the law, was instructed by the trial judge for a second time, and resumed its deliberations. At 10:09 p.m., the jury returned again, this time to inform the court that it was unable to render a verdict. The foreman stated that there was a "six/six split" on the panel; the trial court polled the jury and every juror indicated his or her belief that there was a hopeless deadlock and no amount of time or further instruction would result in a verdict. We find the mistrial in these circumstances to have been manifestly necessary due to the lack of any reasonable probability that the jury would agree upon a verdict and, as such, conclude there was no violation of the double jeopardy clause when appellant was later prosecuted for the charges at Nos. 29 and 31. Commonwealth v. Murry, 498 Pa. 504, 447 A.2d 612 (1982).

Appellant's next contention to which we address ourselves is that the evidence was insufficient to support the verdict.

Preliminarily, we state our standard of review. In evaluating a claim of insufficient evidence, we must view the evidence in the light most favorable to the Commonwealth as the verdict winner and, drawing all reasonable inferences therefrom, we must determine if the Commonwealth has presented sufficient evidence to find every element of the crime beyond a reasonable doubt. The Commonwealth may sustain its burden based on wholly circumstantial evidence. The trier of fact in passing upon the credibility of all witnesses and determining the weight afforded the evidence, is free to believe all, part or none of the evidence. Commonwealth v. Harper, 485 Pa. 572, 403 A.2d 536 (1979).*fn4

[ 343 Pa. Super. Page 194]

At No. 29, appellant was charged with indecent assault and corruption of a minor,*fn5 the charges pertaining to alleged conduct toward Bobbi Jo Marshall (11 years of age); at No. 31, appellant was charged with the same crimes, the alleged victim there being Julie Lynn Marshall (aged 13). As to both victims, appellant was found not guilty of the indecent assault charges.

Regarding both corruption convictions, the informations specifically charged corruption of a minor by certain acts, viz:

1. committing the act of indecent contact;

2. showing the victim "obscene magazines and ...


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