Commonwealth v. Wilson

WATKINS, President Judge:

This is an appeal from the judgment of sentence of the Court of Common Pleas of Bucks County, Criminal Division, by the defendant-appellant, Forrest Wilson, after *417conviction in a jury trial of attempted robbery, attempted larceny, assault and battery and two counts of conspiracy; and from the denial of post-trial motions.

The defendant was first brought to trial on October 11, 1973, before the Honorable Arthur B. Walsh, Jr. and a jury. A mistrial was declared on the motion of defense counsel when it was discovered during the trial that one of the jurors had a hearing problem.

On October 31, 1973, the defendant was again brought to trial before the Honorable Robert M. Mountenay and a jury. Again, on motion of defense counsel, a mistrial was declared as a result of prejudicial statements made in front of the jury by a prosecution witness.

On November 20, 1973, the defendant was again brought to trial before a jury, with the Honorable Lawrence A. Monroe presiding. The jury retired for deliberations at 4:00 P.M. on November 21, 1973. At 7:00 P.M. the jury reported to the court that they were hopelessly divided and could not reach a verdict and the court then declared a mistrial over the objection of the defendant. On January 14, 1974, the appellant’s application to quash the indictment on the ground of double jeopardy was denied by Judge Monroe.

On January 14 and 15, 1974, the appellant was tried before the Honorable Edmund V. Ludwig and a jury and was found guilty. Post-trial motions were denied and this appeal followed.

The appellant had moved to suppress evidence as to a statement made by him subsequent to his arrest and the search made pursuant to the arrest. He also complained of the examination at the hospital and alleged that the warrant secured by the arresting officer was not based upon probable cause.

The laws of Pennsylvania have defined probable cause as facts or circumstances, within the knowledge of the arresting officer at the time of arrest, which are suf*418ficient to warrant a reasonable man to believe that the suspect has committed a crime. Commonwealth v. Milliken, 450 Pa. 310, 300 A.2d 78 (1973). In this case then, we must deal with the problem of whether an informative tip can satisfy the requirement of probable cause to issue an arrest warrant. The Supreme Court of the United States has recognized that informants’ tips are but hearsay. Nevertheless, they may constitute probable cause when two standards are met:

(1) There must be underlying circumstances which enable the issuing magistrate to judge the validity of the informant’s claim.
(2) The officer seeking the warrant must present facts from which the magistrate can infer the tip is a reliable one.

Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1974); Spinelli v. U. S., 393 U.S. 410, 89 S.Ct. 584 21 L.Ed.2d 637 (1967); Commonwealth v. Davis, 466 Pa. 102, 351 A.2d 642 (1976).

Appellant contends there was no showing of reliability. However, the informant described the circumstances surrounding the robbery which is an indication of reliability. As it was pointed out in Spinelli, supra, 393 U.S. at page 416, 89 S.Ct. at page 589, 21 L.Ed.2d at page 644:

“In the absence of a statement detailing the manner In which the information was gathered, it is especially important that the tip described the accused’s criminal activity in sufficient detail that the magistrate may know that he is relying on something more than a casual rumor circulating in the underworld or an accusation based merely on an individual’s general reputation.”

The standard for probable cause to arrest was satisfied by the informant’s tip.

*419As the Honorable Arthur B. Walsh, Jr. stated in his opinion:

“In reaching his decision not to suppress the evidence, the hearing judge recognized that the information stated by the officer to the magistrate failed to include specifically how the informer linked defendant’s name with the robbery. It was felt, however, that the circumstances surrounding the reported assault were in themselves sufficient to negate the possibility that the ‘tip’ was merely an unsupported rumor or fabrication. First and foremost was the victim’s statement that he had shot two assailants. Secondly, at the time the officer received the tip he had firsthand confirmation that at least one man was wounded and in custody. Thirdly, the street address given in the tip was in the neighborhood of the assault. Fourthly, the very nature of the tip that the alleged assailant was at that moment lying wounded on his couch was such as to belie fabrication. These circumstances together with the other information given to the magistrate sufficiently protected the defendant from invasion of the constitutional guaranty against unreasonable searches and seizures.”

We find the search warrant valid and the denial of suppression by the court below proper.

Over the objection of the defendant, Dr. William Chamberlain, the Director of Surgery of Lower Bucks County Hospital, testified that he examined the defendant, Forrest Wilson, on March 28, 1971. This witness testified that upon examination he noted a “puncture-type wound” in the chest and shoulder area of the defendant and that based upon his observations of the wound and his consultation with and examination of certain X-Rays of the patient, he concluded that the wound was caused by a “projectile”. This evidence was offered for the purpose of corroborating the testimony of the victim, *420Mr. Sloan, who testified that upon arrest he noted a wound in the shoulder area of the defendant.

The defense contends that the evidence was inadmissible because it was “prejudicial” and that its inherent prejudice outweighed its value as admissible evidence. The defense contends in part, that the Commonwealth’s failure to produce “qualified witnesses” to substantiate that the X-Rays relied upon were in fact those of the defendant was error.

In resisting this claim, the Commonwealth relied on Commonwealth v. Thomas, 444 Pa. 436, 282 A.2d 693 (1971), in which the Supreme Court clearly indicated that a medical expert may express his opinion, even though the opinion is based in part upon the reports of other persons which are not in evidence. In concluding that such an opinion is admissible as an exception to the hearsay rule, the court concluded that the opinion was based upon the reports of others to which the expert witness customarily relies in the practice of his profession.

Appellant further contends that the declaration of a mistrial by the court below after the conclusion of the November 20, 1973 trial was improper as having been ended without the requisite manifest necessity and barred subsequent trial so as to constitute “double jeopardy”.

The factual situation preceding the declaration of a mistrial appears to be as follows:

On Wednesday, November 21, 1973, after a two-day trial before the Honorable Lawrence A. Monroe, the jury retired at 4:00 P.M. to deliberate. At some time during the course of their deliberations, (time undetermined from the record) the jury directed an inquiry to the court via a note sent through the tipstaffs. At 5:42 P.M. the court called the jury to the courtroom and instructed them as to the question contained in the note, and thereafter, sent the jury out for further deliberations.

*421At 6:35 P.M. after the jury had been deliberating for 2 and hours, defense counsel asked “that the jury be permitted to go out to have something to eat, and afterward they can continue with their deliberations in the case.” After stating on the record that there had been no requests by the jury to suspend deliberations Judge Monroe requested that counsel inquire of the defendant whether he was agreeable to having the jury retire during mealtime. After the defendant agreed to his counsel’s request, the court declared its intention to “. bring the jury in, first of all, and ask them whether they are near a verdict, and if they state they are not, we will ask them whether they care to go out and eat.”

At 6:40 P.M. the court directed that the jury be brought into the courtroom whereupon the following colloquy ensued.

THE COURT: Members of the Jury: I am not asking the question for the purpose of putting any pressure upon you whatsoever. The question is this: Are you near to reaching a verdict or do you think you are going to need considerably more time before you reach a verdict?
THE FOREMAN: I think we will need considerably more time.
THE COURT: Very well. So you want to go out and eat, and then come back and deliberate? I do not know whether we can get out to a restaurant that will serve all twelve at the County’s expense. The County has not made arrangements with any restaurant to accommodate twelve jurors in a situation like this.
Would you want to discuss this among yourselves and report back to me or retire and discuss whether you want to continue with your deliberations, or whether you want to interrupt by going out to dinner?
*422If you want to go back now and discuss what I have just presented to you, take five or ten minutes.
THE FOREMAN: We will do this very promptly.

Thereafter, the jury again retired. At some time after the jury retired, the court requested a conference with counsel, in chambers, to discuss the circumstances under which one of the jurors had found herself unprepared for her monthly period which had “suddenly come upon her.” After counsel had agreed that this particular juror be permitted to leave temporarily the tipstaff handed the court an additional note from the jury which read as follows:

“In addition to my spoken word, we anticipate a divided jury no matter how long we talk.”

Thereafter, the court inquired as to the advisability of declaring a mistrial, and noted on the record certain “complications” it considered in suggesting this course of action. The court noted the difficulties in making dinner arrangements, the possibility of the separation of the jurors, and “the inability of the jury . . . apparently to agree . . .” In addition, Judge Monroe noted that it was “the eve of Thanksgiving Day, and the women on the jury who have chores to prepare for tomorrow’s celebration, which may have some effect upon their verdict.” The court also noted that defense counsel “express some concern about the Clergyman, who might have his congregation in mind, and not be able — to give all those matters consideration . . .” Although there is nothing definitive in the record regarding this “Clergyman” there was some mention made that one of the jurors had expressed some concern regarding the convening of his congregation later that evening — at the conclusion of the court’s remarks on this subject counsel for defendant agreed that the court had properly stated the facts concerning this incident.

*423After placing these matters on the record, and noting the defendant’s objection to the declaration of the mistrial, the court reconvened the jury. At this point the court asked the eleven remaining members of the panel whether they agreed with the latest note from the foreman and after questioning, the following conversation took place:

THE COURT: ... I have received this note, ladies and gentlemen:
“In addition to my spoken word, we anticipate a divided jury no matter how long we talk.”
Is that the note of the jury?
THE FOREMAN: That is right, Your Honor.
THE COURT: Do each and every one of you eleven agree with this note?
THE JURORS: Yes.
THE COURT: Is it your opinion no matter how long you discuss this matter, you will be unable to reach a verdict?
THE JURORS: Yes.
THE COURT: Each and every one of that opinion?
THE JURORS: Yes.
THE COURT: All shaking your head and answering in the affirmative?
THE JURORS: Yes.
THE COURT: Is there anyone upon the jury who is not of the opinion that further discussions would be fruitless? (No response)
THE COURT: Very well. In the opinion of the Court, to require the jury to continue to deliberate under the present circumstances would be coercive

At 7:00 P.M., after the jury had deliberated for three (3) hours, the court declared a mistrial.

*424Whether or not the facts present a case of manifest necessity is one of degree and each case must turn on its own facts. The resolution of the variables of each case is left to the sound discretion of the trial judge. Under all the facts and circumstances of this case the court below did not abuse its discretion in declaring a mistrial. The inability of a jury to agree on a verdict is clearly a ground for a mistrial. Commonwealth v. Spencer, 442 Pa. 328, 275 A.2d 299 (1971); Commonwealth v. Kent, 355 Pa. 146, 49 A.2d 388 (1946). Had the court insisted upon further deliberations under these circumstances it would clearly have put him into a position where coercion could be claimed by the appellant had a guilty verdict resulted. Cases are numerous wherein our courts have declared that a properly declared mistrial does not give rise to double jeopardy upon subsequent retrial. Commonwealth v. Shaffer, 447 Pa. 91, 288 A.2d 727 (1972).

Judgment of sentence is affirmed.

HOFFMAN, J., files a dissenting opinion in which SPAETH, J., joins.