manifest necessity stands as a command doctrine in Pennsylvania

1994As the United States Supreme Court in United States v. Jorn, 400 U.S. 470, 485 , 91 S.Ct. 547, 557 , 27 L.Ed.2d 543, 556-557 (1971), noted, “the Perez doctrine of manifest necessity stands as a command to trial judges not to foreclose the defendant’s option until a scrupulous exercise of judicial discretion leads to the conclusion that the ends of public justice would not be served by a continuation of the proceedings.” See also, Commonwealth v. Bartolomucci, supra. Of paramount concern in this area of the law is the right of the defendant to “retain primary control over the course to be follo

1994As the United States Supreme Court in United States v. Jorn, 400 U.S. 470, 485 , 91 S.Ct. 547, 557 , 27 L.Ed.2d 543, 556-557 (1971), noted, “the Perez doctrine of manifest necessity stands as a command to trial judges not to foreclose the defendant’s option until a scrupulous exercise of judicial discretion leads to the conclusion that the ends of public justice would not be served by a continuation of the proceedings.” See also, Commonwealth v. Bartolomucci, supra. Of paramount concern in this area of the law is the right of the defendant to “retain primary control over the course to be follo

1989Walton v. Aytch, supra; Commonwealth v. Stewart, 456 Pa. 447 , 317 A.2d 616 (1974).

1989Walton v. Aytch, supra; Commonwealth v. Stewart, 456 Pa. 447 , 317 A.2d 616 (1974).

1978However, in Commonwealth v. Bartolomucci, 468 Pa. 338 , 362 A.2d 234 (1976), the Supreme Court rejected this argument stating: “[T]he Perez doctrine of manifest necessity stands as a command to trial judges not to” declare a mistrial absent manifest necessity. . . .

1978However, in Commonwealth v. Bartolomucci, 468 Pa. 338 , 362 A.2d 234 (1976), the Supreme Court rejected this argument stating: “[T]he Perez doctrine of manifest necessity stands as a command to trial judges not to” declare a mistrial absent manifest necessity. . . .

1977Peters failed to plead double jeopardy prior to his second trial, and we now hold that such a failure constitutes a waiver of the issue under the circumstances presented. [2] *76 While we have held no objection is necessary to preserve such an issue where a trial court declares a mistrial sua sponte, Commonwealth v. Bartolomucci, supra; accord Commonwealth v. Fredericks, 235 Pa.Super. 78 , 340 A.2d 498 (1975); Commonwealth v. Abruzzese, supra, we created this exception to the ruling in Commonwealth v. Clair, 458 Pa. 418 , 326 A.2d 272 (1974) because "`the Perez [ United States v. Perez, 9 Whea

1977Peters failed to plead double jeopardy prior to his second trial, and we now hold that such a failure constitutes a waiver of the issue under the circumstances presented. 2 While we have held no objection is necessary to preserve such an issue where a trial court declares a mistrial sua sponte, Commonwealth v. Bartolomucci, supra; accord Commonwealth v. Fredericks, 285 Pa.Super. 78 , 340 A.2d 498 (1975); Commonwealth v. Abruzzese, supra, we created this exception to the ruling in Commonwealth v. Clair, 458 Pa. 418 , 326 A.2d 272 (1974) because “ ‘the Perez [United States v. Perez, 9 Wheat (22

1977Peters failed to plead double jeopardy prior to his second trial, and we now hold that such a failure constitutes a waiver of the issue under the circumstances presented. [2] *76 While we have held no objection is necessary to preserve such an issue where a trial court declares a mistrial sua sponte, Commonwealth v. Bartolomucci, supra; accord Commonwealth v. Fredericks, 235 Pa.Super. 78 , 340 A.2d 498 (1975); Commonwealth v. Abruzzese, supra, we created this exception to the ruling in Commonwealth v. Clair, 458 Pa. 418 , 326 A.2d 272 (1974) because "`the Perez [ United States v. Perez, 9 Whea

1977Peters failed to plead double jeopardy prior to his second trial, and we now hold that such a failure constitutes a waiver of the issue under the circumstances presented. [2] *76 While we have held no objection is necessary to preserve such an issue where a trial court declares a mistrial sua sponte, Commonwealth v. Bartolomucci, supra; accord Commonwealth v. Fredericks, 235 Pa.Super. 78 , 340 A.2d 498 (1975); Commonwealth v. Abruzzese, supra, we created this exception to the ruling in Commonwealth v. Clair, 458 Pa. 418 , 326 A.2d 272 (1974) because "`the Perez [ United States v. Perez, 9 Whea

1977See, e.g., Commonwealth v. Agie, 449 Pa. 187 , 296 A.2d 741 (1971); Commonwealth v. Newsome, 462 Pa. 106 , 337 A.2d 904 (1975); Commonwealth v. Clair, supra. Furthermore, all of the considerations which justify a finding of waiver of other issues in a pretrial context are equally applicable to a double jeopardy claim.

1977See, e.g., Commonwealth v. Agie, 449 Pa. 187 , 296 A.2d 741 (1971); Commonwealth v. Newsome, 462 Pa. 106 , 337 A.2d 904 (1975); Commonwealth v. Clair, supra. Furthermore, all of the considerations which justify a finding of waiver of other issues in a pretrial context are equally applicable to a double jeopardy claim.

1973As our Supreme Court recently said in Commonwealth v. Shaffer et al., 447 Pa. 91, 101 , 288 A. 2d 727 (1972), “In the absence of such a motion, the Perez doctrine of manifest necessity stands as a command to trial judges not to foreclose the defendant’s option until a scrupulous exercise of judicial discretion leads to the conclusion that the ends of public justice would not be served by a continuation of the proceeding.” (Quoting Jorn.) Appellant was exposed to two judicial proceedings before he was finally convicted in the third trial.

1973As our Supreme Court recently said in Commonwealth v. Shaffer et al., 447 Pa. 91, 101 , 288 A. 2d 727 (1972), “In the absence of such a motion, the Perez doctrine of manifest necessity stands as a command to trial judges not to foreclose the defendant’s option until a scrupulous exercise of judicial discretion leads to the conclusion that the ends of public justice would not be served by a continuation of the proceeding.” (Quoting Jorn.) Appellant was exposed to two judicial proceedings before he was finally convicted in the third trial.