Commonwealth v. Block

PER CURIAM:

Appellant Mark James Block appeals from the order of the Honorable A. Thomas Wilson which denied appellant’s motion to dismiss on double jeopardy grounds.¹ We affirm.

On March 3, 1981, a complaint was filed charging appellant with theft by failure to make required disposition of funds, unauthorized use of a vehicle and misuse of a credit card. Appellant was arraigned on May 6, 1981, and on June 8, 1981, a jury was selected and sworn. Testimony was to begin on August 3, 1981.² On July 17, 1981, however, the Commonwealth requested a continuance because of the unavailability of the primary witness. Appellant did not object to the continuance and the case was scheduled for October 5, 1981. At that time, appellant and his attorney appeared and selected a second jury which was sworn and directed to return for testimony on October 8, 1981. Appellant failed to appear on October 8 and a bench warrant was issued.' Appellant remained at large for nearly a year until he surrendered himself on September 14, 1982. Thereafter, having obtained new counsel, appellant filed a motion to dismiss, asserting that the selection and swearing of the second jury violated the constitutional prohibition against double jeopardy. Judge Wilson disagreed, denied the motion to dismiss, and ordered the case to trial before the original jury.

The underlying purpose of the double jeopardy prohibition is to prevent an accused from being subjected to trial and possible conviction more than once for an alleged offense. Serfass v. United States, 420 U.S. 377, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975). Under double jeopardy principles, a criminal defendant has the right not to be subjected to the state’s repeated attempts at conviction, Serfass v. United States, supra, to expect that a judgment, once made, be final, and to expect that a jury, once selected and sworn, will hear his case. Crist v. Bretz, 437 U.S. 28, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978). None of these rights are violated by Judge Wilson’s order that appellant be tried by the first jury selected. Cf., Commonwealth v. Beatty, 500 Pa. 284, 455 A.2d 1194 (1983). It is illogical, and unnecessary, to grant relief when no harm has been suffered. See, e.g., Commonwealth v. Vogel, 501 Pa. 314, 461 A.2d 604 (1983).

In addition, it is appropriate in this context to take into consideration the public’s “compelling interest in justice for all.” Commonwealth v. Stewart, 456 Pa. 447, 453, 317 A.2d 616, 619 (1974). An accused’s interests may, even under double jeopardy principles, be outweighed by “the competing and equally legitimate demand for public justice.” Illinois v. Somerville, 410 U.S. 458, 471, 93 S.Ct. 1066, 1074, 35 L.Ed.2d 425, 435 (1973).

Appellant argues that the swearing of the second jury caused the first jury to be discharged and that this “discharge” was the equivalent of a sua sponte declaration of mistrial.³ Since there was no manifest necessity for a mistrial, appellant reasons that he must be discharged. We do not believe that the inadvertent selection of the second jury, with the apparent acquiescence of appellant and his attorney,⁴ compels us to hold that the Commonwealth is forever precluded from bringing appellant to trial on these charges. Rather, we believe that the selection of the second jury should be considered a nullity and the case should proceed to trial with the first jury.

The trial court’s order denying appellant’s motion to dismiss is affirmed and the case is remanded for trial. Jurisdiction is relinquished.

WICKERSHAM, J., files a dissenting opinion.

1 . An order denying such a motion is considered a final order for purposes of appeal. Commonwealth v. Haefner, 473 Pa. 154, 373 A.2d 1094 (1977).

2 . Appellant’s counsel had been appointed only four days prior to jury selection.

3 . On the unusual facts of this case, there appears to be no precedent either for or against appellant’s position.

4 . While it is true that the lack of a specific objection will not constitute a waiver of a particular basis for relief under double jeopardy, Commonwealth v. Bartolomucci, 468 Pa. 338, 362 A.2d 234 (1976), it has also been held that a defendant cannot sit back and put the Commonwealth to the expense and time of presenting its evidence then later object to the proceeding on double jeopardy grounds. Commonwealth v. Splain, 242 Pa.Super. 503, 364 A.2d 384 (1976); see also, Commonwealth v. Dimming, 310 Pa.Super. 92, 456 A.2d 198 (1983).