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filed: April 21, 1988.


Appeal from the Order of the Court of Common Pleas, Lawrence County, Criminal Division, at Nos. 778, 778A-D of 1984.


Dennis I. Turner, Pittsburgh, for appellant.

Brosky, Tamilia and Kelly, JJ. Kelly, J., concurs in the result.

Author: Brosky

[ 373 Pa. Super. Page 271]

This is an interlocutory appeal from an order denying appellant's motion to dismiss for violation of the double jeopardy clause. Appellant has previously been tried twice for a number of charges. Both trials ended in a mistrial after a finding that the jury had become hopelessly deadlocked during deliberation.

Appellant asks us to determine if the double jeopardy clause prohibits the Commonwealth from trying him a third time after his first two trials resulted in hung juries. We are compelled to find that it does not, and affirm the order appealed from.

It has been stated recently by our Supreme Court that the double jeopardy clause has been recognized as having three separate and distinct goals: the protection of the integrity of a final judgment, the prohibition against multiple prosecutions even where no final determination of guilt has been made, and the proscription against multiple punishment for the same offense. Commonwealth v. Zoller, 507 Pa. 344, 490 A.2d 394 (1985), rev'd 476 U.S. 140, 106 S.Ct. 1745, 90 L.Ed.2d 116 (1986). The present case would appear to involve the prohibition against multiple prosecutions

[ 373 Pa. Super. Page 272]

    even where there has been no final determination of guilt. Perhaps not coincidentally, this goal has been a prevalent one of the double jeopardy clause dating back to its origin in the common law of England. Our Supreme Court noted in Zoller, 490 A.2d at 397, [i]nterestingly, the concept of finality was never interpreted as precluding review of the entry of judgment in a criminal case by way of appeal. Rather, the focus was upon the second prosecution which was deemed offensive.

In the course of the debates over the Bill of Rights, there was no suggestion that the Double Jeopardy Clause imposed any general ban on appeals by the prosecution . . . . Nor does the common-law background of the Clause suggest an implied prohibition against state appeals. Although in the late 18th century the King was permitted to sue out a writ of error in a criminal case . . . ., the principles of autrefois acquit and autrefois convict imposed no apparent restrictions on this right. It was only when the defendant was indicted for a second time after either a conviction or an acquittal that he could seek the protection of the common-law pleas. The development of the Double Jeopardy Clause from its common-law origins thus suggests that it was directed at the threat of multiple prosecutions, not at Government appeals, at least where those appeals would not require a new trial. quoting United States v. Wilson, 420 U.S. 332, 342, 95 S.Ct. 1013, 1021, [43 L.Ed.2d 232] (1975).

Zoller, 490 A.2d at 397.

Further, along these lines, the Supreme Court noted that the "central design of the guarantee" was:

[ 373 Pa. Super. Page 273]

    state of anxiety and insecurity, as well as enhancing the possibility that even though innocent, he may be found guilty.

Zoller, 490 A.2d at 397, quoting Green v. United States, 355 U.S. 184, at 187-88, 78 S.Ct. 221, at 223, 2 L.Ed.2d 199 (1957).

Reinforcing this proposition is Commonwealth v. Bolden, 472 Pa. 602, 373 A.2d 90 (1977), which detailed the various implications of the double jeopardy clause. In acknowledging that reprosecution after a mistrial could violate the clause, the Pennsylvania Supreme Court stated: "[p]rosecution after mistrial raises no risk of multiple punishment. Thus, this situation most clearly shows that the double jeopardy clause is a prohibition against multiple prosecution." 373 A.2d at 101. Our Supreme Court also noted that "[t]he policies which underlie the prohibition are first, guilt should be established by proving the elements of a crime to the satisfaction of a single jury, not by capitalizing on the increased probability of conviction resulting from repeated prosecutions before many juries;" Commonwealth v. Mills, 447 Pa. 163, 286 A.2d 638 (1971).

As indicated above, where there has been a declaration of a mistrial reprosecution may be barred by the double jeopardy clause. Commonwealth v. Bolden, supra. Although in some circumstances an individual may be retried following a mistrial, due to the clause's policy of prohibiting multiple trials, retrial is "only grudgingly allowed," United States v. Wilson, 420 U.S. at 343, 95 S.Ct. at 1022, and is limited to cases in which the defendant consented to the mistrial or the declaration of a mistrial was "manifestly necessary." Bolden, supra. 373 A.2d at 101. One such case is where there is a discharge of the jury after they are found to be "hopelessly deadlocked." Commonwealth v. Mehmeti, 501 Pa. 589, 462 A.2d 657 (1983). In instances of a deadlocked jury, the jury may be discharged without prejudice to the Commonwealth to try the accused again on the same charges. It is perhaps less certain whether the Commonwealth can continue to refile charges upon consecutive "hung juries."

[ 373 Pa. Super. Page 274]

Although we believe the principles of the double jeopardy clause are compromised when the Commonwealth is given a third opportunity to obtain a favorable jury verdict, after twice failing to persuade the jury of the accused's guilt, apparently our Supreme Court does not.

In Commonwealth v. Sullivan, 484 Pa. 130, 398 A.2d 978 (1979), our Supreme Court addressed a situation where an accused was convicted after two juries were previously unable to return a verdict. Although addressing the propriety of the trial court's dismissal of the second jury, thus analyzing whether there was "manifest necessity" for declaration of mistrial, the Supreme Court gave no indication that the double jeopardy clause bars retrial after two hung juries.*fn1 As such, we feel compelled to affirm the order appealed from.

Order affirmed.


Order affirmed.

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