Appeal from the Order of the Court of Common Pleas, Criminal Division, of Lawrence County, 1984, Nos. 778, 788A - D.
Dennis I. Turner, Pittsburgh, for appellant.
Annette M. Hutchinson, Assistant District Attorney, New Castle, for Com., appellee.
Rowley, Wieand and Del Sole, JJ.
[ 357 Pa. Super. Page 463]
This is an appeal from an Order denying appellant's Motion for Judgment of Acquittal. Appellant sought acquittal on the ground that the evidence presented at his first two trials, each of which ended in a hung jury, was insufficient. He asserts that we have jurisdiction of his appeal by virtue of Pa.R.A.P. 311(a)(5) because the denial of his motion to acquit "is tantamount to the grant of a new trial for the Commonwealth."
Appellant presents two issues for review:
1. Did the trial court err in denying his motion for judgment of acquittal?
2. Does the double jeopardy clause prohibit the Commonwealth from trying appellant a third time?
The record, as certified to us, reveals the following relevant facts. Appellant was charged with rape, burglary, robbery, involuntary deviate sexual intercourse and terroristic threats. He proceeded to a trial by jury. After 8 1/2
[ 357 Pa. Super. Page 464]
hours of deliberations, the jury was unable to reach a verdict and, on March 4, 1985, a mistrial was declared. Appellant was tried a second time before a jury and on May 23, 1985, when the jury was again unable to agree, a mistrial was declared. The trial court's opinion states that both mistrials were declared for manifest necessity. ...