APPEAL FROM THE ORDER ENTERED NOVEMBER 8, 1985 IN THE COURT OF COMMON PLEAS OF ERIE COUNTY, NO. 668 AND 848 OF 1985, Criminal Division.
Bruce L. Getsinger, Erie, for appellant.
Timothy Lucas, Assistant District Attorney, Erie, for Commonwealth, appellee.
Cirillo, President Judge, and Tamilia and Popovich, JJ.
[ 356 Pa. Super. Page 383]
This is an appeal from an order of the Erie County Court of Common Pleas denying appellant, John F. Learn's, motion to dismiss on the basis of double jeopardy. Appellant was charged with delivery of a controlled substance (marijuana), possession of a controlled substance and possession with intent to deliver. After a five hour trial, the jury retired for deliberations. It deliberated for a day and one-half and then informed the court that it was deadlocked. Defendant's counsel specifically requested that the court not grant a mistrial but rather send the jury back for further deliberations with appropriate instructions. The trial judge briefly discussed the matter with the jury foreman, asked a general question of the remaining jurors and then declared a mistrial. After receiving notice that he would be retried in the court's next term, Learn filed a motion to dismiss on the basis of double jeopardy which the court subsequently denied. This timely appeal followed.
On appeal, appellant contends that the trial court erred in determining that there was a "manifest necessity" for the declaration of a mistrial on the basis of a deadlocked jury. Appellant argues that the jury only deliberated a relatively short period of time. Additionally, he asserts that the trial court failed to conduct a sufficient colloquy to determine whether it was possible for the jury to reach a verdict.
Due to the recent Supreme Court case, Commonwealth v. Brady, 510 Pa. 336, 508 A.2d 286 (1986), this appeal is not properly before this Court. The issue in Brady, as framed by the Supreme Court, was whether an interlocutory appeal based on double jeopardy grounds was proper when the trial court specifically determined that the double jeopardy grounds are frivolous.
[ 356 Pa. Super. Page 384]
Prior to Brady, the viability of an interlocutory appeal based on double jeopardy grounds was governed by Commonwealth Page 384} v. Bolden, 472 Pa. 602, 373 A.2d 90 (1977).*fn1 The Court in Bolden determined that an interlocutory appeal based on these grounds was proper due to the nature of the double jeopardy right and the need for pre-trial vindication. The Court stated that "the basic purpose of the double jeopardy clause mandates that a defendant who has a meritorious claim have an effective procedural means of vindicating his constitutional right to be spared an unnecessary trial [and] . . . to subject an individual to the expense, trauma and rigors incident to a criminal prosecution a second time offends the double jeopardy clause." Bolden, 472 Pa. at 631-32, 373 A.2d at 104. (Emphasis added). Therefore, the Bolden Court concluded that exceptional circumstances exist to warrant immediate appellate review of a trial court's denial of a defendant's motion to dismiss based on double jeopardy grounds.
Pursuant to Brady, the Supreme Court has retreated somewhat from its position as espoused in Bolden. The Brady Court determined that an interlocutory appeal based on double jeopardy grounds is not permissible when the trial court finds that such grounds are frivolous. The Court concluded that under such circumstances the interlocutory appeal is ". . . unwarranted and review must be sought by means of a direct appeal following retrial." Brady, 510 Pa. 338, 508 A.2d at 287 (emphasis added). The Brady Court reasoned that Bolden, in combination with the automatic stay of proceedings pending on appeal,*fn2 resulted in indefinite delays of legitimate prosecutions in many cases.
In response to this problem of unnecessary delays, the Brady Court promulgated a new procedure for these types of appeals. If the ...