Commonwealth v. Bartolomucci

Opinion by Cercone, J., The sole basis of this appeal is whether the appellant should have undergone a second trial, on a narcotics charge which resulted in his conviction,1 after the jury [561] in the first trial was dismissed before reaching a verdict. The first trial, which lasted only four hours, presented a simple issue of credibility, i.e., whether to believe the undercover agent who testified that a sale was made to him by the appellant or to believe the appellant and his alibi witnesses. There was only one count and one charge for the jury to consider. The jury commenced their deliberations at 11:35 a.m. and deliberated until 8:45 p.m. taking an hour for lunch and an hour and a half for dinner. At 8:45 p.m. the Foreman instructed the tipstaff that they were not able to reach a decision. At this time the trial judge was out to dinner. At 10:10 a conference was held in the judge’s chambers which was attended by the judge, the tipstaff, and counsel for the appellant and the Commonwealth. In this conference the appellant’s attorney asked the tipstaff what he had said to the jury when they told him they were deadlocked. The tipstaff responded: “When they told me they were deadlocked, I told them Judge Acker had instructed me that we would be keeping them out for a considerable amount of time, to have due consideration, and that unless they absolutely insisted, I wouldn’t call him back just to have him consider that because they would be considering it anyway. In other words, they were to stay out.” At 10:46 a second conference was held in the judge’s chambers. The Judge asked the tipstaff what was the latest message from the jury. The tipstaff responded: “The buzzer rang. I went in, and the foreman said, we’re hopelessly deadlocked. Please tell the Judge that we can’t reach an agreement.” On this basis and over the objections of appellant’s counsel, who requested further instructions to the jury as to their ability to return a verdict, the judge declared a mistrial and discharged the jury at 10:55 p.m. The appellant was tried again and found guilty. The appellant [562] now appeals claiming that the lower court improperly-dismissed the jury in the first trial, before they had reached a verdict, and thereby forced the appellant to undergo a second trial which offended his constitutional protections against double jeopardy. We regrettably must agree with the appellant. The dilemma which confronts a trial judge when he is faced with a deadlocked jury is articulated in Commonwealth v. Baker, 413 Pa. 105, 114-115 (1964.): “If a Judge discharges a jury before it returns a verdict, the defendant will likely plead at the second trial ‘double jeopardy’, unless he has expressly consented to its discharge. On the other hand, if a Judge urges a jury to resume deliberating, and it thereafter brings in a verdict of guilty — the defendant will frequently contend that the jury’s verdict was coerced. ... A Judge must tread cautiously in this highly controversial field, being extremely careful to protect society and at the same time not to impinge upon or deny a defendant’s constitutional rights.” A thorough analysis of this problem, in light of Federal and Pennsylvania law, is set forth in the recent case of Commonwealth v. Monte, 459 Pa. (1974), where the Pennsylvania Supreme Court held the dismissal of a jury after 6y2 hours of deliberation was proper. That case is similar in many respects to the present case but different in one very important aspect. In the Monte case, supra, the trial judge personally gave the deadlocked jury further instructions on two separate occasions when the foreman reported that they were unable to agree on a verdict, and then prior to discharging the jury the trial judge again communicated with them a third and final time by the following colloquy: “The Court-. Mr. Foreman, would you advise the Court as to the status of the deliberations of the jury? [563] 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.” In the present case the trial judge denied the request of appellant’s counsel to give further instructions and conducted no colloquy with the jury in an attempt to determine at the time of their discharge if there was a reasonable possibility of a verdict. Instead the trial judge relied solely on the messages he received through his tipstaff. The Monte case, supra, states, “Where the court from its communications with the jury had every reason to believe that further deliberations would have been futile, it is left with no alternative but to dismiss them as was done.” Implicit in this statement is the fact that before a jury can be properly dismissed the trial judge must ascertain the position of the jury from his or her personal communications with the jury. The judge must be satisfied that further deliberation to reach a verdict would be futile, especially where defendant objects to dismissal without further instructions being given. This case is such that the jury could have been appropriately dismissed had the trial judge first determined through personal communication that a unanimous verdict could not be reached. Here, this was not done, nor were further instructions given, and therefore we hold that the jury at appellant’s first trial was improperly dismissed, which resulted in appellant’s second trial being violative of appellant’s right against double jeopardy. Judgment of sentence reversed. Footnotes [1] The conviction was based on a violation of The Controlled Substance, Drug, Device and Cosmetic Act, 35 P.S. § 780-113 (a) (30), 1972, April 14, P.L. 233, No. 64, § 13, imd. effective, as amended 1972, Oct. 26, P.L. 1048, No. 263, § 1, imd. effective.