dissenting:
Because I find that consent to a mistrial was not properly given by appellant, I must respectfully dissent from the decision reached by my esteemed colleagues.
The record clearly shows that the trial judge, sua sponte, declared a mistrial. On Thursday, May 5, 1994, the fourth day of trial, the jury commenced its deliberation and did not reach a verdict after several hours. The trial judge recessed the jury and instructed them to return the following morning to resume deliberation. On Thursday evening, the trial judge, at his home, had a telephone conversation with a juror wherein the juror informed the judge that she would be absent from deliberation because she was attending her grandmother’s funeral in Illinois. The juror did not appear for deliberation on the morning of Friday, May 6, 1994. The trial judge held a conference with counsel in his chambers. In the judge’s chambers, the judge began his discussion with counsel by apprising them of the juror’s absence from deliberation and then stated as follows: “So we are going to have a mistrial in the case. I just wanted to inform counsel.” Conference in Chambers 5/6/94 at 2.
After his declaration of a mistrial, the trial judge informed counsel of the absent juror’s belief that the jury was “divided just about half and half, and neither side will give in.” Conference in Chambers 5/6/94 at 3. The majority herein finds that defense counsel then consented to a mistrial because defense counsel agreed that the jury would be divided in reaching a verdict even with eleven jurors.
I do not embrace the majority’s determination. “Accepting that [defense] counsel consented to the mistrial, under the circumstances, this was not a true consent or the type of consent the law contemplates to prevent double jeopardy from attaching.” Commonwealth v. Wideman, 453 Pa. 119, 122-24, 306 A.2d 894, 896 (1973) (supreme court finds consent to mistrial was not given where trial judge informed counsel in chambers on third day of trial that he would have to declare a mistrial because the trial at hand was longer than expected and interfered with his commitments in other cases; defense counsel did not object to trial judge’s declaration of a mistrial and defendant did not personally consent).
The trial judge’s decision to declare a mistrial was based solely upon his telephone *1372conversation with the juror on the evening of Thursday, May 5, 1994. It ought not follow that consent to a mistrial is derived from such a tenuous basis. Compare Commonwealth v. Hamilton, 460 Pa. 686, 384 A.2d 588 (1975) (consent to a mistrial was found where trial judge apprised defense counsel that he held a colloquy with the jury foreman and several other jurors and determined that the jury was unable to reach a verdict after thirty hours of deliberation).
The trial judge advised counsel that the absent juror told him that the jury was “divided just about half and half, and neither side will give in.” Conference in Chambers 5/6/94 at 3. Contrarily, defense counsel maintain that their investigation revealed the absent juror was one of only two jurors voting for a conviction at the time of recessing on Thursday evening, May 5, 1994, and that the remaining ten (10) jurors were voting for an acquittal and believed that progress was being made toward reaching a verdict. Hearing on Defendant’s Motion to Dismiss 6/16/94 at 26-27; R. 27. Also, defense counsel assert that their investigation showed that the absent juror returned home on Sunday, May 8, 1994, and was present at work on Monday, May 9, 1994. Hearing on Defendant’s Motion to Dismiss 6/16/94 at 9; R. 27.
Without adequately inquiring about the status of the deliberation and without exploring the possibility of a continuance, the trial judge did not make a sufficient finding for an informative decision to be made by defense counsel. Moreover, I am of the opinion that consent for a mistrial was not established because appellant was not present at the time his defense counsel apparently agreed to a mistrial. See Wideman, 453 Pa. at 120-22, 306 A.2d at 895. Compare Commonwealth v. Owens, 299 Pa.Super. 1, 445 A.2d 117 (1982) (consent to a mistrial by defendant himself was established where defendant was physically present at the time his counsel moved for a mistrial and made no objection to his counsel’s course of action).
A trial judge’s ruling to abort a proceeding without the defendant’s consent is appropriate only if the trial judge, upon his own scrupulous consideration of less drastic alternatives, determines that there is a manifest necessity for the mistrial. Commonwealth v. Balog, 395 Pa.Super. 158, 576 A.2d 1092 (1990).
In the case at bar, the mistrial was not initiated by a motion of the appellant. Instead, it stemmed from the express ruling of the trial court. Therefore, I disagree with the majority’s finding that defense counsel had an obligation to request less drastic alternatives. I find that the duty to probe into the alternatives paramountly belonged to the trial judge and that he did not give heed to this responsibility. Accordingly, I conclude that the lower court erred in denying appellant’s motion to dismiss the criminal charges against him on double jeopardy grounds.