claims that informations charging continuing offenses against girls over a three month period were overly vague dismissed by this Court on the basis of Niemetz
How later courts described this case
- claims that informations charging continuing offenses against girls over a three month period were overly vague dismissed by this Court on the basis of Niemetz
Written by the judges who cited it.
Later courts went against this
Overruled on other grounds by Commonwealth v. Anderson, 379 Pa. Super. 589 (1988)
” Commonwealth v. Shirey, 333 Pa.Super. 85, 106, 481 A.2d 1314, 1325 (1984), overruled on other grounds, Commonwealth v. Anderson, 379 Pa.Super. 589, 550 A.2d 807 (1988).
The opinion
JOHNSON, Judge,
concurring and dissenting:
I join in the disposition of the appeals from the judgments of sentence at Nos. 28, 30 and 44 of 1980. I also join in the majority’s disposition of appellant’s claim of defective informations in the appeal at Nos. 29 and 31.
I must respectfully dissent from the majority’s analysis of the double jeopardy claim at Nos. 29 and 31 of 1980 and its determination to remand that case for transcription of the notes of testimony of May 15 and 16, 1980. In my view, an examination of the trial court’s declaration of mistrial to determine whether that declaration was manifestly necessary is inappropriate on the law as I understand it.
Following a trial at Nos. 28 and 30 on May 15 and 16, 1980, the jury was unable to reach a verdict and the trial judge declared a mistrial. On October 22 and 23, 1980, retrial was held on these same charges.
In the United States Supreme Court’s last term, the Court, in deciding Richardson v. U.S., — U.S. —, 104 S.Ct. 3081 , 82 L.Ed.2d 242 (1984), reaffirmed the principle “that a failure of the jury to agree on a verdict was an instance of ‘manifest necessity’ ”. Id. at 104 S.Ct. 3085 . Because Richardson holds that “a hung jury is not an event which terminates the original jeopardy,” Id. at 104 S.Ct. 3086 , there would be no reason to review the transcript of appellant’s first trial.
I therefore must dissent from the majority’s remand of the appeal at Nos. 29 and 31 of Í980 for the purpose of reviewing the proceedings at the first trial of Nos. 28 and 30.
*155 Since I find no merit in the double jeopardy argument, I would dispose of the other issues raised by appellant on this separate appeal. Finding the arguments concerning the denial of a mistrial motion, the failure to give a missing witness charge, and the sufficiency of the evidence to be without merit, I would affirm the judgment of sentence at Nos. 29 and 31.