Appeal from the Order of the Court of Common Pleas of York County, Criminal Division at No. 4352 C A 1994. Before UHLER, J.
Appeal from ORDER ENTERED March 6, 1996, in the Court of Common Pleas of YORK County, CRIMINAL, No. 4352 C A 1994. Before UHLER, J.
Before: Cavanaugh, Popovich and Olszewski, JJ. Opinion BY Popovich, J. Olszewski, J. files a Concurring Opinion.
The opinion of the court was delivered by: Popovich
This is an appeal from the order of the Court of Common Pleas of York County which denied appellant's motion to dismiss charges on double jeopardy grounds. *fn1
Herein, appellant raises a question of first impression. He contends the prohibitions against double jeopardy set forth in the constitutions of Pennsylvania and the United States bar his reprosecution where, in his first trial, the jury was deadlocked on charges of recklessly endangering another person and endangering the welfare of a child but had reached a verdict on the charge of aggravated assault, even though the aggravated assault verdict was not entered upon the record. Upon review, we find that double jeopardy bars the retrial of appellant on the charge of aggravated assault and its lesser-included offense of reckless endangerment, but appellant may be retried on the remaining charge of endangering the welfare of a child.
The record reveals that appellant was charged with aggravated assault, reckless endangerment and endangering the welfare of a child. The Commonwealth alleged that appellant shook his infant son and caused serious bodily injury to the child. At the Conclusion of appellant's five day trial, the lower court instructed the jury, and the jury retired to deliberate at 1:42 p.m., on September 15, 1995. Only minutes later, the jury asked the first of many questions, "Could we have a copy of the criteria needed to determine each of the charges and/or the definition of each charge?" N.T., Vol.III, p. 340. The Judge responded, "No, The law does not permit the providing of a copy of each of the charges, thus preventing undue focus on a portion of the charge over the entirety. If at any time the Jury would wish the Court to verbally repeat a portion, it will." N.T., Vol.III, p. 340. The jury then continued its deliberation.
At 3:35 p.m., the jury asked the court to "please explain Aggravated Assault, Recklessly Endangering Another Person, Endangering the Welfare of Children, reasonable doubt." N.T., Vol. III, p. 341. The court then gave a thorough answer to the jury's inquiry. See, N.T., Vol.III, pp. 343-350. The jurors then retired to deliberate until 4:55 p.m., when they again asked the court for further direction, as follows: "We need to hear once again the charges of Recklessly Endangering and Endangering Welfare. We specifically need an explanation of the term 'knowingly' as it relates to these charges." N.T., Vol.III, pp. 350-351. The Judge then reinstructed the jury as to reckless endangerment and endangering the welfare of a child and specifically indicated that "knowingly" is not involved in the charge of reckless endangerment. See, N.T., Vol.III, pp.353-358.
At 5:08 p.m., the jurors again returned to deliberate, but at 5:55 p.m., they informed the court, "We are split about equally on the second and third charges. There is no change or movement." And, they asked, "What do we do?" N.T., Vol.III, p. 358. The court then discussed the jury's question with counsel during which defense counsel stated, "If the jury is deadlocked, I would ask for a mistrial your honor." N.T., Vol.III, p. 360. The court decided, with counsels' approval, to inquire whether further deliberations might be fruitful. N.T., Vol.III, pp. 360-361. After a brief on the record colloquy of the jury's foreperson during which the foreperson indicated that further deliberations might result in verdicts, the court instructed the jury as follows:
All right. I'm going to reiterate your duties as Jurors and not go beyond that.
The term deadlocked means that no one is going to move one way or the other. I'm going to reiterate your duty as a Juror as I've outlined it to you originally. I do so because it is not likely that this case will be any better tried at any other time, and hopefully with this re-examination, at least you can make a determination if you are indeed hopelessly deadlocked.
Your verdict must be unanimous. This means that in order to return a verdict, each of you must agree to it. You have a duty to consult with each other and to deliberate with a view to reaching an agreement if it can be done without doing any violence to your individual judgment.
Each of you must decide the case for him or herself, but only after there has been an impartial consideration with your fellow Jurors.
In the course of deliberations, each Juror should not hesitate to re-examine his or her own views and change his or her opinion if convinced it is erroneous. However, no Juror should surrender an honest conviction as the the weight or effect of the evidence solely because of the opinion of his or her fellow Jurors, or for the mere purpose of returning a verdict.
It being represented to the Court that there is hope of some movement, if you do not feel there has been an impass [sic] that cannot be overcome, I'll of course permit you to return to deliberations ...