Commonwealth v. McCord , 1997 Pa. Super. LEXIS 2635 ( 1997 )

OLSZEWSKI, Judge,

concurring.

I agree without reservation in the analysis and final disposition of the well-reasoned and thoughtful majority opinion. I write separately, however, only to stress that, but for the trial court’s erroneous application, of our procedural rules, we would not be constrained to hold that the Commonwealth is prohibited from retrying appellant for the aggravated assault and reckless endangerment offenses with which he was accused and tried.

Our Rules of Criminal Procedure provide that, while a jury may report a verdict, a court must receive and record such once reached. See Pa.R.Crim.P. 1120(d). This duty is mandatory. It is, therefore, surprising that the trial court in the instant matter intimates that the jury’s verdict had no legal import because the court refused to accept and record it. Further, the court states that appellant “cannot create an acquittal where no verdict had been required.” 3/6/96 at 16. In this same vein, I would note that the trial court cannot declare a mistrial where a verdict was reached and, through judicial error, relegated to the annals of legal uncertainty.

• Additionally, I note that the practical ramifications of this error cannot be ignored. Appellant was charged with several serious crimes involving the alleged abuse of his infant son. Because of the court’s disregard for the jury’s verdict, however, the issues of whether appellant was found guilty or not guilty must remain ever shrouded in mystery. Also, one cannot ignore the fact that, in the event that the jury found appellant guilty of the aggravated assault offense, the court’s action prohibits appellant from ever being legally responsible for his conduct.

As much as I would prefer for the history of this case to reflect a greater appreciation for our rules and mandates, I recognize that this Court is bound nonetheless by the record below. Based thereon, I concur with the majority and am constrained to hold that the proscriptions against double jeopardy prohibit appellant from being retried for aggravated assault and the lesser included offense of reckless endangerment.