Opinion by
On February 13, 1973, appellant was tried before a jury for unlawful possession and delivery of heroin. When the jury said, after four hours and twenty-six minutes of deliberation, that it was unable to agrée on a verdict, the trial judge declared a mistriаl. Defense counsel did not object to the declaration of a mistrial, nor did he object to the holding of a second trial on February 26, 1973. At the second trial appellant was found guilty by a jury of the same charges. After рost-trial motions were dismissed, appellant was sentenced, and the matter now before us is a direct appeal from that sentence.
Appellant’s first argument is that he was placed in double jeopardy by bеing tried for the same offense after the first trial resulted in a mistrial. Stated in this
It has recently been held that in certain circumstances a defendant may argue оn appeal that he was denied the effective assistance of counsel. One of these circumstances will arise where the defendant’s appellate counsel is different than his trial counsel. In that evеnt, if the grounds upon which the claim of ineffective assistance of counsel is made to appear of record, not only may appellate counsel argue in effective counsel, if he does not, the argument will be considered waived and it may not be made later, as for example in a proceeding under the Post Conviction Hearing Act, Act of January 25, 1966, P.L. (1965) 1580, §1, et seq., 19 P.S. §1180-1 et seq. (Supp. 1974). Commonwealth v. Dancer,
In undertaking this examination it should be borne in mind that appellant’s claim is that it was counsel at his second trial who was ineffective. The question to be decided, therefore, is whether the trial judge at the first trial erred in declaring a mistrial; for if he did not, counsel at the second trial cannot be faulted for failing to object to the holding of that trial.
The standard “for appellate review of the trial judge’s exercise of his discretion in declaring a mistrial without the defendant’s consent” is manifest necessity. Commonwealth v. Monte,
“There are too many variables in the trial of criminal cases which would prevent the formulation of predetermined periods of time for the jury’s deliberation. Each case differs in the complexity of the issues presented, the seriousness of the charges, the number of the charges to be considered, the amount of testimony to be digested and reviewed, thus requiring the reasonableness of the time for deliberations to be made on a case-by-case basis.”*384 Commonwealth v. Monte,459 Pa. 495 , 504,329 A.2d 836 , 840 (1974).
In addition, it is important to note that
“[t]he line between giving a jury sufficient time to explore all possibilitites for true unanimity and a cоerced verdict sometimes may be a fine one. If there is to be error, it should be on the side of avoiding a coerced verdict by the granting of a mistrial rather than by obtaining a decision through fatigue and frustration. Such mattеrs as the complexity of issues, the number of witnesses, and the length of the trial must all be weighed.” U.S. v. Corbitt, supra at 885.
Thus, six and one-half hours has been held reasonable where there were only two indictments on minor charges with relatively uncomplicated issues to be decided by the jury (Commonwealth v. Monte, supra); five hours, where the entire trial took only two days (U.S. v. Brahm,
In the present case, the jury had deliberated approximately two and one-half hours when they returned to the courtroom. The foreman informed the trial judge that there was a “slight possibility” of arriving at a unanimous verdiсt after further deliberation. The judge asked the jury to retire and deliberate further. One hour and fifty-six minutes later the jury again returned. Thus the jury had deliberated, in all, for-about four hours and twenty-six minutes. The judge questioned the foreman and the individual jurors. All agreed that it was impossible for them to arrive at a unanimous verdict. The case had begun on the morning of February 13, 1973. It concluded, and the jury began its deliberation, at 3:00
Appellant’s next argument is that he was prejudiced in his second trial by the remarks of the judge during the closing speech of defense counsel.
During closing argument, defense counsel stated that a man may not be convicted on the testimony of one witness alone. The trial judge interrupted counsel to state that that was not a proper statement of the law of Pennsylvania. Counsel reрlied that he was not stating the law, but was quoting from Deuteronomy. The judge then remarked, “Well, if you’re in church we’ll take up a collection.” Counsel then finished his argument to the jury without further reference to Deuteronomy. The judge began his instructions to the jury by referring to counsel’s statement of the law of Deuteronomy, explaining how it differed from the law of Pennsylvania.
Appellant contends that it was unfair for the trial judge not to let his counsel explain the source and meaning of his Biblical quotation, and that the judge’s remark about being “in church” belittled his counsel and prejudiced the jury against him.
It is the duty of a trial judge to instruct the jury as to the applicable law. Kimmel v. Yellow Cab Co.,
Appellant’s last argument is that the evidence was insufficient to warrant a verdict of guilty.
“The test of the sufficiency of the evidence . . . is whether, accepting as true all the evidеnce and all reasonable inferences therefrom, upon which if believed the jury could properly have based its verdict, it is sufficient in law to prove beyond a reasonable doubt that the defendant is guilty of the сrime or crimes of which he has been convicted.” Commonwealth v. Chasten,443 Pa. 29 , 31,275 A.2d 305 , 306 (1971); Commonwealth v. Hornberger,441 Pa. 57 ,270 A.2d 195 (1970); Commonwealth v. Frye,433 Pa. 473 ,252 A.2d 580 (1969); Commonwealth v. Whiting,409 Pa. 492 ,187 A.2d 563 (1963).
In the present case, a state police undercover agent testified as follows. During the evening of September 15, 1972, he was on duty in Easton, Pennsylvania. At about 10:00 p.m., hе and several others got into a car driven by a man, who was identified by the trooper at trial as appellant. A pregnant woman (later identified as Gwyndanita Smith, appellant’s common-law wife) and two children werе also in the car. The trooper said he “would like to get hold of some skag” (heroin). The
Appellant’s defense was two-fold. He claimed an alibi and also an error in identification. His alibi was that he was living with Ms. Smith in September, 1972, and never left their apartment without her save to go to work. Therefore, he claimed, he could not have been the driver of the car. Appellant also claimed that although he owned a car similar to the one described by the trooper, his car was not operable in September, 1972, and therefore could not have been used in the illegal transaction. Appellant’s identification defense was that there was an error in identity because the trooper testified that at the time of the transaction appеllant wore a “Ho-Chi-Minh” moustache, but not a full beard, whereas Ms. Smith testified that appellant had a full beard in September, 1972, and her testimony was corroborated by a photograph allegedly taken during that time.
In reviewing this еvidence, we must consider it in the light most favorable to the Commonwealth. Commonwealth v. Blevins,
The judgment of sentence is affirmed.