dissenting:
Appellant contends that the double jeopardy provisions of the Pennsylvania1 and United States Constitutions2 barred his trial on charges of attempted robbery, attempted assault with intent to rob, aggravated assault and battery, and related counts of conspiracy.
On October 12, 1971, appellant was indicted for the attempted robbery of Paul F. Sloan in Bristol Township. On October 10, 1973, pre-trial motions were heard and denied. Appellant’s first jury trial began on October 11, 1973. Defense counsel’s motion for mistrial was granted when it was discovered that one of the jurors had a hear*425ing problem. A second jury trial was commenced on October 31, 1973, which also ended in a mistrial on the motion of defense counsel because of prejudicial statements by a prosecution witness.
On November 20, 1973, a third jury trial was commenced. At 4:00 p. m., on November 21, 1973, the jury retired to deliberate. At 5:42 p. m., the jury returned with a question and was sent back to deliberate shortly thereafter. At 6:40 p. m., the court summoned the jury to inquire about the progress of its deliberations and to determine what, if any, dinner arrangements would be necessary. The judge informed the jury foreman that there would be some difficulty in arranging dinner for all the jurors at county expense, but suggested that, if considerably more time would be necessary, it would be possible for the members of the jury to make their own dinner arrangements and return in the evening to deliberate. The foreman advised the judge that the jury would need considerably more time to reach a verdict. The judge suggested that the jury retire to discuss what dinner plans would best suit its needs.
While the jury was discussing its plans for eating, the tipstaff informed the judge that one of the jurors had begun her menstrual period and did not have any sanitary napkins with her. The court requested that the tip-staff make the necessary arrangements for the juror. Before the tipstaff departed, she handed the judge a note from the foreman which read: “In addition to my spoken word, we anticipate a divided jury no matter how long we talk.” The judge consulted with the attorneys for both sides and noted that various complications had arisen: the fact that in making dinner arrangements there was the distinct possibility that the members of the jury would be separated, the problem of the female juror’s unexpected menstrual period, the fact that female members of the jury might be anxious about the delay in preparing for Thanksgiving festivities, and the fact that *426one of the members of the jury was a clergyman who would be precluded from conducting services with his congregation. The court asked for consent of counsel to declare a mistrial. After consultation with his client, counsel for appellant objected. The court felt, nevertheless, that, if the jury were forced to reach a verdict, it would be subject to reversal on appeal on the grounds that it was coerced. The court then resolved to declare a mistrial.
The jury was called in and the following colloquy occurred:
“THE COURT: You will note that the jury is in the room and eleven of them are present. Number Two Juror is absent, for matters which I have put on the record.
“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 you 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)”
A mistrial was declared at 7:00 p. m.
*427On January 14, 1974, the court heard appellant’s motion to dismiss the indictment on the ground that a fourth trial, after the court’s sua sponte declaration of a mistrial, would constitute double jeopardy. Appellant’s motion was denied, and he was subsequently convicted of all charges. Post-trial motions were denied and this appeal followed.3
The issue is whether the sua sponte declaration of a mistrial over defendant’s objection under the circumstances of this case precluded appellant’s retrial. The Double Jeopardy Clause of the Fifth Amendment, made applicable to the States through the Fourteenth Amendment, Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), bars retrial unless the declaration of a mistrial was dictated by “manifest necessity” or the “ends of public justice.” United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971); United States v. Perez, 22 U.S. (9 Wheaton) 579, 6 L.Ed. 165 (1824); Commonwealth v. Wideman, 453 Pa. 119, 306 A.2d 877 (1973); Commonwealth v. Ferguson, 446 Pa. 24, 285 A.2d 189 (1971); Commonwealth v. Kennedy, 229 Pa.Super. 189, 323 A.2d 384 (1974); Commonwealth v. Culpepper, 221 Pa.Super. 472, 293 A.2d 122 (1972).
“Manifest necessity” is difficult to quantify, and “. . . virtually all of the cases turn on the particular facts . . . ”. Illinois v. Somerville, 410 U.S. 458, 462, 465, 93 S.Ct. 1066, 1070, 35 L.Ed.2d 425 (1973). *428“Manifest necessity” may result when a jury is deadlocked, but deciding when to abort the proceedings, however, is a difficult task: “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. See, for example, Commonwealth v. Clark, 404 Pa. 143, 170 A.2d 847, where this Court (a) held that the trial Judge erred in ordering a confused and overworked jury to continue its deliberations, and (b) reversed the judgment of first degree murder because the verdict was coerced, and (c) remanded the case for a new trial. Cf. also: Commonwealth v. Moore, 398 Pa. 198, 157 A.2d 65.” Commonwealth v. Baker, 413 Pa. 105, 114, 196 A.2d 382, 386.4
It is permissible for a trial judge to send a jury back several times even after they have indicated an inability to agree. Cf. Devault v. United States, 338 F.2d 179 (10th Cir. 1964); Commonwealth v. Kennedy, supra; Annot., 93 A.L.R.2d 627, 639 (1964). But a trial judge commits reversible error if he compels a jury to deliberate so long that its verdict is the product of impatience, fatigue, or confusion. See Commonwealth v. Clark, supra. “The reasonableness of the deliberation period depends upon such factors as the length of the trial, the nature or complexity of the case, the volume and nature of the evidence, the presence of multiple counts or multiple defendants, and the jurors’ statements to the court *429concerning the probability of agreement. Annot., 93 A.L.R.2d 627 (1964).” American Bar Association, Standards Relating to Trial by Jury § 5.4, Commentary Section 5.4(b) at 147-48 (Approved Draft, 1968).
To be sure, a trial judge must strike a delicate balance between the “defendant’s valued right to have his trial completed by a particular tribunal” and the “public’s interest in fair trials designed to end in just judgments.” Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974 (1949). The decision to declare a mistrial because a jury cannot agree or to urge the jurors to return to their deliberations is committed to the sound discretion of the trial judge; but appellate review of an exercise of that discretion is guided by the following standard: “As the United States Supreme Court said in Downum v. United States, 372 U.S. 734, 738, 83 S.Ct. 1033, 1035, 10 L.Ed.2d 100 (1963), any doubts as to the existence of a ‘manifest necessity’ of granting a mistrial must be resolved ‘. . .in favor of the liberty of the citizen, rather than [by exercising] what would be an unlimited, uncertain, and arbitrary judicial discretion.’ See Commonwealth v. Ferguson, supra, 446 Pa. at 30, 285 A.2d 189; Commonwealth v. Shaffer, 447 Pa. 91, 288 A.2d 727 (1972).” Commonwealth v. Culpepper, supra, 221 Pa.Super. at 477, 293 A.2d at 124.
In the instant case, the jury deliberated an hour and forty minutes before submitting its first written question to the court. After a brief interruption in the jury’s deliberations while the court gave its instruction, the jury was sent to resume its work. Less than an hour later, the court, during the discussion related to dinner arrangements, received its first indication from the foreman that substantial additional time would be needed to produce a verdict. When asked to discuss what dinner plans the jury wished to make, the jury sent its first note indicating that it was having trouble reaching a ver*430diet. Thus, the jury deliberated less than three hours before the mistrial was declared at 7:00 p. m.
Although there was multiple counts charged in the indictment, all arose out of the same transaction. The only issue necessary for a verdict was the relatively simple question of the identity of the perpetrator of the crime. The trial was relatively short, requiring only a few hours of testimony by a small number of witnesses. These factors might weigh in favor of curtailing the jury’s deliberations sooner than if there were more complex issues or more time-consuming testimony. The trial court was properly concerned about the numerous obstacles to reasoned deliberations. It should be noted, however, that the defendant was prepared to waive all objections to the verdict which might have rested on its potentially coerced nature.5
I would, therefore, hold that the “defendant’s valued right to have his trial completed by a particular tribunal” was prematurely terminated in the instant case. I do not believe that there was “no reasonable probability of agreement.” See Commonwealth v. Brown, 451 Pa. 395, 301 A.2d 876 (1973); Commonwealth v. Spencer, 442 Pa. 328, 275 A.2d 299 (1971). Had the jury continued its deliberations and found appellant guilty, appellant could not have objected to the verdict as being coerced — that objection was effectively waived. Appellant had made a counselled choice to continue with the jury empanelled at his third trial and was thus entitled *431to a verdict from this jury unless it became “hopelessly deadlocked.” The record is devoid of facts which would support the conclusion that the sua sponte declaration of a mistrial was compelled by “manifest necessity.” Thus I conclude that the declaration of the mistrial was premature and would hold that appellant’s retrial was barred by the Double Jeopardy Clause.
I would, therefore, reverse the judgment of sentence, and order appellant discharged.
SPAETH, J., joins in this dissenting opinion.. Pa.Const. art. I, § 10.
. U.S.Const. amend. V and XIV.
. Appellant also contended both in written post-trial motions and in his brief that: (1) it was error for the court below to admit certain expert testimony because it was hearsay; and, (2) it was error for the court to refuse to suppress a “search” of appellant’s body and certain statements made by appellant because they were the product of an unlawful arrest. The opinion of the court below indicates that appellant abandoned these issues by not arguing them orally, despite the fact that the record clearly reflects that these issues were preserved for appeal and were extensively discussed in briefs to the court below. Because I would hold that appellant’s retrial would be barred by double jeopardy, it is unnecessary to pass on these two arguments for award of a new trial.
. “Manifest necessity” may also result “. . . where the declaration of a mistrial implements a reasonable state policy and aborts a proceeding that at best would have produced a verdict that could have been upset at will by one of the parties, the defendant’s interest in proceeding to verdict is outweighed by the competing and equally legitimate demand for public justice. Wade v. Hunter, supra.” Illinois v. Somerville, supra at 471, 93 S.Ct. at 1074.
. I do not mean to suggest here that once a defendant elects to continue with a particular jury that a trial judge is precluded from declaring a mistrial for the reason that the jury has become exhausted, confused or impatient or for the reason that it shows “no reasonable probability of agreement”. Neither would it be appropriate or permissible for a trial judge to permit the jury to continue its deliberations after it is apparent that the jurors are “hopelessly deadlocked”, even if the defendant had once indicated his willingness to continue with the jury. Rather, the court should be guided by the decisions of Brown and Spencer, on the one hand, and Clark on the other to see that the public interest in fair trials is preserved.