Com. v. Monte

• Decision Date: 22 November 1974
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Frank MONTE and John Testa, Appellant.
• Court: Pennsylvania Supreme Court

Page 836

329 A.2d 836

459 Pa. 495

COMMONWEALTH of Pennsylvania, Appellee, v. Frank MONTE and John Testa, Appellant.

Supreme Court of Pennsylvania.

Nov. 22, 1974.

Rehearing Denied Jan. 11, 1975.

Neil E. Jokelson, William D. Harris, Jokelson & Rosen, Klovsky, Kuby & Harris, Philadelphia, for appellant.

Steven H. Goldblatt, Milton M. Stein, Richard A. Sprague, Arlen Specter, Philadelphia, for appellee.

Before JONES, C.J., and EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.

OPINION

NIX, Justice.

Appellants in this appeal raise two objections: (a) that the dismissal of the jury after the second trial in this cause, before they had reached a verdict, and forcing the appellants to undergo a third trial which resulted in their convictions, offended the constitutional protections against double jeopardy; and (b) that appellants are entitled to a new trial because the evidence seized and introduced at their trial was procured through defective warrants. For the reasons to be discussed hereinafter we hold the objections to be without merit and affirm the judgment of sentence entered below.

The first trial, which was without a jury, ended when the court granted appellants' motion for a mistrial. The second trial, which forms the basis for appellants' first complaint, commenced December 15, 1969. The matter was heard before a court sitting with a jury and appellants were charged with setting up and maintaining an illegal lottery and conspiracy. ¹ The jury retired to begin its deliberations at 1:50 P.M. on December 17, 1969. At 4:20 P.M. they returned to the courtroom and reported they were having difficulty in reaching a decision. The trial judge, after stressing the need to participate in the discussions with an open mind, stated:

'Now, if you will do your best to arrive at a verdict in the meantime properly and sincerely and unanimously and the foreman tells me that in his solid judgment, it will be impossible to agree, I will then dismiss you. It is important, when a case is tried, that a Judge exhaust every proper means to bring about a unanimous verdict, and, if the jury are given plenty of time and do not come back in a relatively short time, they can reach a unanimous verdict. You will have to, therefore, try it again and for a much longer time, but do try to arrive at an agreement. If you cannot, then we must try the case again in another term of court, and we will, of course, but we prefer that this jury, if it can arrive at an agreement that is unanimous, that you do that. I don't think there is much that I can add.'

At 7:30, the jury again returned for further instruction on circumstantial evidence. After giving the requested instructions, the trial judge added, Sua sponte,

'There is another matter I might speak to you about which I would not do if the hour had not grown so late. I do not want to hold the jury until the late hours of the night because of the dangers that effect the streets in every large city. I don't want to do it and I won't, and if, after a reasonable period, the foreman comes into court and assures me that in his judgment, if they stay there until doomsday, they will not reach a verdict, I will then discharge you and this case must be heard again by another jury at a later time. It would be well if this jury could decide it by a unanimous agreement. Sometimes it almost looks as if it would be impossible ever to have a unanimous verdict, but the key to a unanimous verdict is this openness of mind, willing to listen and to discuss and to consider and then think and deliberate and then vote again.

I would ask you once again that you try to agree and I would suggest that you try it for one more half hour, and that will be all.'

At 8:15, the jury returned, unable to agree. At that point, the following colloquy ensued:

'THE COURT: Mr. Foreman, would you advise the Court as to the status of the deliberations of the jury? What is your judgment as to whether it is possible to arrive at a unanimous verdict in this case?

THE FOREMAN: It is impossible.

THE COURT: Are you morally certain that it is impossible?

THE FOREMAN: Morally certain.

THE COURT: The jury was sent out first at 1:50 P.M. It is now 8:25 P.M. That is six and a half hours of deliberation, and I take judicial notice of the fact that Philadelphia is not a safe place on the streets late at night and I am satisfied that you are telling me your honest conviction and it is impossible, no matter how long the jury remains out, for them to agree on a unaimous verdict. In view of that fact and since they have tried and I know you have tried diligently for six and a half hours, you are now discharged. Thank you for your service.'

Counsel for appellants objected to the discharge of the jury and subsequently filed an application to quash the indictments before the commencement of the third trial. The application to quash was denied and the appellants preserved this objection for our review.

After conviction, the dismissal of post-trial motions and the imposition of sentence, the Superior Court affirmed per curiam and this Court granted allocatur on September 13, 1972.

In Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969) the Supreme Court of the United States, reversing its earlier ruling in Palko v. Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288 (1937) held that the Fifth Amendment protection against double jeopardy was made applicable to the States under the Fourteenth Amendment.

'Our recent cases have thoroughly rejected the Palko notion that basic constitutional rights can be denied by the States as long as the totality of the circumstances does not disclose a denial of 'fundamental fairness.' Once it is decided that a particular Bill of Rights guarantee is 'fundamental to the American scheme of justice', . . . the same constitutional standards apply against both the State and Federal Governments.' (Citations omitted) 395 U.S. at 795, 89 S.Ct. at 2063.

In discussing the nature of the double jeopardy protection, that Court recognized the prohibition as representing 'a constitutional policy of finality for the defendant's benefit' in criminal proceedings. United States v. jorn, 400 U.S. 470, 479, 91 S.Ct. 547, 554, 27 L.Ed.2d 543 (1971). To justify that policy, the Supreme Court observed:

'A power in government to subject the individual to repeated prosecutions for the same offense would cut deeply into the framework of procedural protections which the Constitution establishes for the conduct of a criminal trial. And society's awareness of the heavy personal strain which a criminal trial represents for the individual defendant is manifested in the willingness to limit the Government to a single criminal proceeding to vindicate its very vital interest in enforcement of criminal laws. Both of these considerations are expressed in Green v. United States, 355 U.S. 184, 187--188, 78 S.Ct. 221, 223, 2 L.Ed.2d 199, 204--205, 61 A.L.R.2d 1119 (1957), where the Court noted that the policy underlying this provision 'is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty." 400 U.S. at 479, 91 S.Ct. at 554.

The Court, however, did recognize that all retrials should not be prohibited and that certain circumstances would justify the allowance of a second trial. To this end the Court affirmed the standard set forth in United States v. Perez, 9 Wheat. 579, 22 U.S. 579, 6 L.Ed. 165 (1824) of 'manifest necessity' as the test for appellate review of the trial judge's exercise of his discretion in declaring a mistrial without the defendant's consent. See also Illinois v. Somerville, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973). However, the Court in Jorn cautioned trial judges in exercising their discretion in this regard 'not to foreclose the defendant's option until a scrupulous exercise of judicial discretion leads to the conclusion that the ends of public justice would not be served by a continuation of the proceedings.' 400 U.S. at 485, 91 S.Ct. at 557.

It is, however, recognized that a genuine inability of a jury to agree constitutes a 'manifest necessity' to declare a mistrial over a defendant's objection without offending the defendant's Fifth Amendment rights. Green v. United States, 355 U.S. 184, 188, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957); Wade v. Hunter, 336 U.S. 684, 688, 689, 69 S.Ct. 411, 93 L.Ed. 440 (1949).

The decisions of this Court have been consistent with the guidelines set forth by the Supreme Court. E.g., Commonwealth v. Stewart, 456 Pa. 447, 317 A.2d 616 (1974); Commonwealth v. Wideman, 455 Pa. 119, 306 A.2d 894 (1973); Commonwealth v. Brown, 451 Pa. 395, 301 A.2d 876 (1973); Commonwealth v. Ferguson, 446 Pa. 24, 285 A.2d 189 (1971); Commonwealth v. Spencer, 442 Pa. 328, 275 A.2d 299 (1971). In Commonwealth v. Brown, Supra, we reiterated our approval of the American Bar Association Standard Relating to Trial by Jury § 5.4(c) which provides:

'The jury may be discharged without having agreed upon a verdict if it appears that there is no reasonable probability of agreement.'

Under the facts of the instant case the trial court properly determined that there was 'no reasonable probability of agreement.' Appellants first contend that a period of six and one-half hours for deliberations was inadequate to conclude that the jury could not reach a consensus. However, in Commonwealth v. Campbell, 445 Pa. 488, 284 A.2d 798 (1971) where the appellant therein argued the converse contention that the lower court had forced the jury to deliberate too long and thus the verdict reached was coerced (thus illustrating the dilemma the defense seeks to force upon the trial judge) we obse...