468 Pa. 338 - Commonwealth v. Bartolomucci

MANDERINO, Justice

¶1(concurring).

¶2I join in the majority opinion by Mr. Justice Eagen. I should like to add that the issue of double jeopardy is similar to an issue of subject matter jurisdiction. It may be raised at any time, even initially on appeal. Constitutionally, no court has jurisdiction to try or sentence a person twice, in violation of the Federal and Pennsylvania Constitutions. See Commonwealth v. Walker, 468 Pa. 323, 362 A.2d 227 (1976) (filed June 6, 1976).

POMEROY, Justice

¶3(dissenting).

¶4In Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974), our Court, over the dissent of this writer,1 discarded the “basic and fundamental error” exception to the long-standing rule that errors not objected to at trial would not be reviewed on appeal. Thus since Clairour policy of refusing to review errors of even constitutional dimension when objections to the errors were not properly raised in the proceedings below has been pursued without exception.2 Today, the Court departs from this unwavering and generally desirable course. Because of a perceived conflict between the rule of Clairand the *354substantive law of double jeopardy, the majority concludes that we may overlook appellee’s failure to object to an alleged error which is the basis of his appeal,3 and *355reach the merits of his double jeopardy contention. While I welcome a move in the direction of modifying the rigid constraints which Clairhas imposed on our ability to review errors of a basic and fundamental nature, i. e., such as to deprive a defendant of a fair trial, this is not, in my view, the case in which to make that move. Because I believe that Claircompels the conclusion that appellee’s double jeopardy claim is not properly before us, I respectfully dissent.4

¶5The majority concludes that the rule of Clairmay not be applied because its application would “invite a serious conflict with the substantive law of double jeopardy.” Opinion of the Court ante at 346, 362 A.2d at 238. I fail to discern this conflict. Clairis a procedural rule which dictates that the basic and fundamental nature of an alleged error of a lower court will not serve to preserve claims of error which have not previously been asserted in a timely fashion. The substantive law of double jeopardy, on the other hand, guides our consideration of those claims which have been properly preserved for appellate review. The only tension which may be said to exist between the two is that the potentially basic and fundamental nature of a double jeopardy violation will not preserve an allegation of error not timely raised in the proceedings below. This “tension”, however, has existed in all allegations of constitutional error which we have heretofore refused to review.5 As there is, in my mind, nothing about a double jeopardy claim which could serve to distinguish it from these other allegations of constitutional error, I can find no satisfactory basis upon which to spare a “manifest necessity” allegation from *356the dictates of Clair.6Absent such a basis. I feel constrained to adhere to Clair, for to depart from its teaching without meaningful guidelines can only serve to cast our appellate processes into a state of unavoidable uncertainty. Accordingly I would hold that Mr. Bartolomucci’s failure to object to the trial judge’s dismissal of a deadlocked jury without first conducting a poll of the jury precludes our review of his double jeopardy claim based, as it is, on this alleged error.

¶6. See Commonwealth v. Clair, 458 Pa. 418, 422, 326 A.2d 272, 274 (1974) (dissenting opinion of Pomeroy, J., joined by Eagen and O’Brien, JJ.)

¶7. See, e. g., In re Mortorano, 464 Pa. 66, 346 A.2d 22 (1975) (due process); Commonwealth v. Bryant, 461 Pa. 309, 336 A.2d 300 (1975) (illegal arrest and double jeopardy); Commonwealth v. Jones, 460 Pa. 713, 334 A.2d 601 (1975); Commonwealth v. Roundtree, 458 Pa. 351, 326 A.2d 258 (1974) (speedy trial).

¶8. Before deciding to discharge the jury, the judge engaged in the following in-chambers colloquy with defense counsel:

“THE COURT: Mr. Rodgers, [defense counsel] what is your position concerning the question of whether or not they should be discharged?

“MR. RODGERS: I would request that they be called in for instructions.

“THE COURT: What instructions would you propose that we give them?

“MR. RODGERS: Well, I think that they should be given a review of their responsibilities to consider each other’s positions, the right to each of them to retain their won [sic] position if they cannot consciously change it .

“THE COURT: Well, What you’re suggesting is that which we have done before in the Charge. . . . I’m of the opin-

ion that nothing concrete or constructive can be accomplished by keeping this jury out any further, nor do I believe that merely repeating to them what we told them initially in the Charge is going to change their position. As we know, the Allen Charge or so-called dynamite charge has been specifically frowned upon, and trial Courts have been specifically instructed in Pennsylvania both by the Third Circuit and by the Supreme Court of Pennsylvania, it can no longer be used even though the United States Supreme Court itself has never had occasion to reverse the Allen Charge; that takes the Allen Charge away from the trial courts, and without the Allen Charge or modification of it, I have serious question as to the effect of merely repeating to the jury what they have already been told, and so we aré going to elect to declare a mistrial and call the jury in arid inform them that there is a mistrial.

“After the second conference in chambers, Trial Judge Acker went into the courtroom and discharged the jury at 10:55 p. m.

“The appellee and his attorney, although in court at the time, did not request that the jury be polled as to its inability to reach a verdict.” See Agreed Statement of parties filed pursuant to Rule 45 of the Rules of the Supreme Court of Pennsylvania at pp. 8a-lla.

¶9It is clear that defense counsel never objected to the discharge Of the jury on the theory that it had not first been polled. Moreover, even if it be assumed that the above-quoted exchange sufficiently states an objection to the judge’s contemplated discharge of the jury without allowing further deliberation on a requested supplemental charge, such an objection would not suffice to preserve the “failure to poll” theory which was not timely asserted when the jury was actually discharged. See Commonwealth v. Mitchell, 464 Pa. 117, 346 A.2d 48 (1975).

¶10. Because, in my view, the claim is not properly before us, I intimate no opinion on the merits of appellant’s contention.

¶11. See cases cited note 2 supra. A recent United States Supreme Court decision suggests that this tension does not pose constitutional problems. See Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976).

¶12. The Majority states in the course of its analysis that “[t]he Supreme Court of the United States, albeit in a more limited context, has stated that waiver concepts have little relevance in the context of double jeopardy. United States v. Dinitz, supra at 609, 96 S.Ct. at 1081.” Opinion of the court ante at 346, 362 A.2d at 238. With respect, I submit that this statement is misleading. In Dinitz, appellant contended that he was compelled to move for a mistrial because of egregious conduct on the part of the court. When a defendant is so compelled, appellant argued, he cannot be said to have knowingly and intelligently waived his constitutional right not to be twice placed in jeopardy. In response to this argument, the Court declared that a defendant’s request for a mistrial is not conceptually the same as a waiver of his double jeopardy protection and that in this context waiver concepts have litle relevance to double jeopardy. In Dinitz the Court was addressing the concept of waiver in the sense of a knowing and intelligent waiver of a constitutional right, see Johnson v. Zerbst, 394 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), not in the sense of a failure to preserve an issue for appeal. The United States Supreme Court has subsequently made it clear that these two usages of the term “waiver” are discrete and that a waiver of an issue in the latter sense need not meet the Zerbst standards. Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976) [44 U.S.L.W. 4609, 1976].

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