*3 PRICE, Before WATKINS, HOFFMAN and JJ.
PRICE, Judge: Appellants appeal from orders of the court common pleas denying their motions dismiss the indictments filed against them. They contend that prosecution on indict- double and that the jeopardy
ments is barred on the basis of sustain their motions. We refusing trial court erred in disagree. 20, 1977, and five other co-defend- May appellants
On an who were either or members of sympathizers ants1 were involved in organization known as MOVE a confronta- Philadelphia with the group’s headquarters. tion at police As a in various combina- they charged were consequence, riot,3 offenses: criminal following conspiracy,2 tions in- (generally),4 possessing instruments crime possessing (concealed),5 prohibited struments crime offen- possessing threats,8 sive reckless terroristic weapons,6 endangerment,7 During and conduct.10 failure to disperse,9 disorderly incident of thirty-seven photo- on a total May headquarters depicting were taken of MOVE graphs were activities. These appellants photographs in various motion, to a provided pursuant pretrial appellants testi- assistant attorney any district assured police having them as been mony by identifying present solely the scene of would come from direct obser- the crime Appeals raising the double 1. three of the other co-defendants from pending numbers 1344 are also before this court at issue Term, Term, (Delbert Africa), Orr 1460 October October Term, (Merle Africa) (Edward Good- Austin October Africa). appeal of Dotson was docket- man The defendant Consuella Term, prossed, but has non ed at 1506 October number defendant, Penn, appeal taken from and the Sharon has not an final the order court. of the trial 2. 18 Pa.C.S. §
3. 18 Pa.C.S. 5501. § *4 907(a).
4. 18 Pa.C.S. § 907(b).
5. Pa.C.S. §
6. 18 Pa.C.S.' 908. §
7. 18 Pa.C.S. 2705. §
8. 2706. Pa.C.S. §
9. Pa.C.S. 5502. §
10. 18 5503. Pa.C.S. § 20, 1977, on of prior police vation and contacts May is it unclear whether an appellants. Although express police disclaimer was made that the would be shown the not was photographs May implication taken on this pretrial conveyed during proceedings. 18, 1978,
On December a trial At nonjury commenced. trial, represented two of defendants were counsel defendants, while all of including the other appellants, pro- pro 19, 1978, ceeded se. On December Officer Julius Arm- of the Police to strong Philadelphia was called Department as to he on testify May events that witnessed During Armstrong Officer identified six testimony, the defendants been having present MOVE headquar- not, ters however, on that He identify appellants date. did Phil Smith Africa and Sims Africa. He Gail further assert- ed that his were identifications based observations of upon the six defendants incidents when MOVE had during prior engaged picketing various activities Philadelphia. 20, 1978, The next Armstrong December Officer day, again testified A. cross-examined attorney Johnson, Benjamin for counsel co-defendant Dot- Consuella cross-examination, son. During the officer he testified that had been shown thirty photographs May to taken on twenty 20, 1977, which depicted eight all engaged defendants in various activities at headquarters. Immediately, MOVE attorney Johnson moved for mistrial dismissal of the on charges the basis been to defendants had led believe that not shown Armstrong any Officer had and, photographs, thus their prejudice, the defendants had sought suppress the identification testimony motion, the officer. this becomes Following record confused with various defendants motions for mis- making dismissal, trial or making some motions for dismissal strictly but mistrial, not for and some engaging speeches denouncing legal system, District Office Attorney’s Department. the Philadelphia Police With remarkable restraint, the Honorable William Marutani attempted ascertain the In particu- nature each defendant’s motion.
424 of
lar, Africa dismissal requested Janet appellant Holloway Africa mistrial, Phil Smith appellant request- the or charges mistrial, and appellant ed a dismissal but did either dismissal not make a motion for Gail Sims Africa did aor mistrial. motions, Marutani admit-
After the Judge submission of the purge testimony ted whether he could he was uncertain case, and from his was concerned consideration if an remain even he made of would appearance impropriety the a he would not consider self-serving declaration that after which A recess was then taken prejudicial testimony. case he decide the without stated that could of but neverthe- testimony, consideration the identification less a mistrial the basis of compelled felt to declare on appearance of impropriety. on instant reprosecution now contend that
Appellants these In charges jeopardy. addressing would violate double claims, between Janet appellant must made distinction requested granting Holloway specifically Africa who mistrial, Africa and Gail Sims Phil Smith a motion. Africa who failed to assert such First, Afri respect appellant ca, on a defendant’s granted we note that a mistrial is when not bar a motion, do principles double See, v. Din g., e. United States reprosecution. subsequent itz, 1075, 47 267 600, 424 L.Ed.2d U.S. 96 S.Ct. 547, Jorn, v. 470, 91 27 L.Ed.2d States 400 Bolden, 472 (1971) 543 (plurality opinion); Dinitz, In United States Pa. 90 A.2d supra, Court determined the United Supreme States mistrial this rule is even when defendant’s applicable or error. prosecutorial judicial motion is prompted by Lee v. United 52 L.Ed.2d 97 S.Ct. its Dinitz estab (1977), ruling expanded Court reprosecution lished that bars jeopardy provision double if a is on motion a result declared a defendant’s if the error prosecutorial underlying error “[o]nly or prejudice ‘motivated to harass by bad faith undertaken Id. at quoting, United States v. 97 S.Ct. Dinitz, supra 424 U.S. at at 1081.11
In the instant the trial court found the that error prosecution that led to the of the granting mistrial was not committed or in bad faith with purposely prevent intent the defendants from an obtaining adjudication from finder of fact that had been selected Instead, to hear the case. testimony established that Officer Armstrong had been to the exposed photographs along of in group other an policemen February during associate, unrelated trial of an Sue Africa. Either assistant district attorney conducting the instant case did not recall that that exposure thought it was innocuous and of no identification, in consequence affecting espe in cially light of Armstrong’s express Officer statement that his identification of the six defendants was the result of prior contacts and was not the of product having viewed the in photographs of 1978. Under February these circumstanc es, we agree with the trial court that the prosecution’s failure to disclose photographic the earlier does exposure not bar reprosecution of Janet Africa. Holloway
Before
discussing
allegations
appellants Phil Smith
Africa,
Africa and Gail Sims
we must
first address the
Commonwealth’s contention that
the declaration of a mis-
trial as to those two defendants was also granted
their
upon
request. The Commonwealth
argues
both appellants
acquiesced in the motion for
proffered
by co-de-
fendant
Janet
Africa, or with
Holloway
reference to Phil
Smith
his
for dismissal
request
should be equated
Appellant
argues
prosecutorial
Janet
Africa
error
barring a retrial
is not
restricted to intentional misconduct
and
“gross negligence,”
Bolden,
citing
supra
includes
Commonwealth v.
cases,
After the initial motion Dotson, the trial judge counsel for Consuella charges by in that motion. joined other defendants inquired whether all that each defendant did they He was informed that Hollo- her own motion. Appellant would make his or a motion for mistrial or dismissal Africa then made way would like rest of brothers and sisters my stated that “[t]he Africa then (N.T. 4.54). the motion.” Phil Smith join Janet Africa’s motion.” joined stated that he “in sister my thereafter, Phil Africa retracted (N.T. 4.56). Shortly dismissal and joinder requesting and stated that he defendant followed this not a mistrial. At least one other *7 theme and that he also wished to secure a dismissal of stated a mistrial. Gail charges Appellant the but did not want at this time. Africa did not make a statement Sims for a request The contends that the Africa, Holloway in the motion of Janet contained her state appellants by was to both of the other imputed sisters would like ment that rest of brothers and my “[t]he without join to the We find this contention is in motion.” merit, that pronouncement for it was to the earlier contrary in motion Consuella join all defendants did not a similar own would make his or her Dotson and that each defendant Africa initial Moreover, motion. while Smith appellant mistrial, for he later retracted that ly joined the motion for dismissal and not for a statement and moved expressly circumstances, nei these we conclude that mistrial. Under Africa the adopted ther Phil Africa nor Gail Sims Smith Afri motion of nor did Phil preclude repudia in that motion later joinder ca’s initial tion to of mistrial. prior the declaration also contends that Phil Smith
The Commonwealth equivalent be deemed Africa’s12motion for dismissal should prosecution if of Janet Hollo- that even the motion The contends defendants, way imputed the not to all of the Africa for a mistrial is motion, granted, to a since if for a mistrial either the court terminating proceed- would have had the effect contention, ings point. In of its the support prosecu- that Scott, States v. 82, 98 cases, tion cites two denied, reh. 57 L.Ed.2d and Lee v. United supra, for the motion that a for dismissal and a motion proposition for a mistrial for of double equivalent purposes may jeopardy analysis. Lee, theft,
In the defendant was but under charged Indiana him law the information with the offense charging was failed to technically allege defective because it the proper mens rea. When this defect was to the brought court’s attention the trial prior commencement of means dismissal, of a motion took motion for under advisement. of trial completion prior At the verdict, the submission of a granted court motion to dismiss on the basis of the technical defect the informa- tion. In whether barred determining order reprosecu- tion, the defendant order for a argued court was dismissal of the and not mistrial. charges just holding not double did bar reprosecution, Supreme Court reasoned that under facts of that there was no difference motion between a for dismissal and motion for a mistrial. Unlike some dismissals which serve as an adjudication that the defendant not be may convicted Lee charged, offense the dismissal equivalent *8 such an was to the adjudication granting more akin of a mistrial a occurring as result of error during trial. Scott, supra, States v. a similar distinction made was when were charges prejudice arising dismissed a result by
motions for
Phil
and one
dismissal
Smith Africa
other defendant
imputed
Africa,
should be
to
Sims
motions
Gail
and because these
equivalent
mistrial,
grant
were
to
mistrial
a motion for
of a
to
upon
Gail Sims Africa
her
should be deemed to have
made
request. We find
merit
this contention is
since the motion
without
not,
for
equivalent
dismissal
is
in the instant
to a motion for
and,
by
as in the instance of
the motion
Africa,
adoption
the silence of
be
Gail Sims Africa cannot
deemed an
of Phil Smith Africa’s motion for dismissal.
the dismissal was not an
but
delay,
from preindictment
charges.
on the merits of the
of innocence
adjudication
Scott, we believe that
the motion
In contrast
to Lee and
by appellant
for dismissal submitted
Smith
under Pennsylvania procedure,
while
incorrect
technically
favor
charges
for a determination of
his
request
was
While he
the merits.13
was
termi-
upon
requesting
based
a.
upon
this
was based
stage,
request
nation of the trial at
innocence,
a mere
seeking
and he
an assertion of
instant
trial to
the Commonwealth
permit
termination of the
anew. Under
these circum-
to commence its prosecution
stances,
was not
equivalent
we believe that
mistrial, and the
of a mistrial as
entry
that of a motion for
Africa was sua sponte
to Phil
Africa and Gail Sims
request, express
implied.
and not the result of any
of their contention that the sua
the merits
Addressing
we
sponte
precludes reprosecution,
declaration of mistrial
1118(b)
judge
note
a trial
permits
that Pa.R.Crim.P.
motion
for
“only
declare a mistrial absent a defendant’s
14 Rather
necessity.”
adopting
reasons of manifest
than
brought prior
may only
to the com-
13. A motion for dismissal
trial,
alleged
prosecution would
mencement of
not serve as the basis for a motion for dismissal.
his
and the
error
Rather,
upon
based
protestations
“dismissal” mo-
of innocence as the basis for the
tion,
which should
we
the motion as a demurrer to the evidence
view
delayed
completion
until
case.
have been
Commonwealth’s
Mason,
(1979);
See Commonwealth v.
Hunt,
Pa.Super.
A.2d 640
1118(b) is as follows:
14. The full text of Pa.R.Crim.P.
during
prejudicial
occurs
trial
“When an event
to the defendant
mistrial;
only
may
motion shall be
the defendant
move for a
Otherwise,
may
judge
the trial
made when the event is disclosed.
declare a mistrial
necessity.”
only
for reasons of manifest
may
Appellants
only
move for a
contend that because
a defendant
trial,
occurring
response
prejudicial
this
mistrial in
prohibits
to a
event
sponte
the trial court on
the sua
declaration of a mistrial
They
provision empowering the
same
that the
basis.
contend
sponte grant
for reasons of manifest
trial
to sua
a mistrial
jury
necessity applies only
when the
is unable
in situations such as
see,
Sanford,
verdict,
g.,
429 U.S.
reach a
e. United States v.
Perez,
(9
22 U.S.
United States v.
Wheat.) 579,
power
(1824),
such
when
“We nature, all cases of this the law has invested justice courts of with the authority discharge a verdict, whenever, from jury in their giving any opinion, all taking consideration, the circumstances into there is a act, manifest for the necessity justice the ends of public would otherwise defeated. are to exercise a They sound discretion on the is subject; impossible it define all the circumstances which would render it proper sure, to interfere. To be to be used power ought the greatest caution, circumstances, under and for urgent causes; and, very plain and obvious in capital cases espe- cially, courts should be careful how extremely they inter- fere life, with any of the chances of in favor of the prisoner. But, all, after they right have to order the discharge; and the which the security public have for the faithful, sound and conscientious exercise of this discre- tion, rests, this, cases, inas other upon responsibility of the judges, under their oaths of office.” Somerville, 458, Illinois v. 1066, 410 U.S. 93 S.Ct. 1070,35 (1973), L.Ed.2d 425 the court undertook an analysis of events that result in may prejudice a sua requiring sponte declaration of a mistrial.
“A trial judge exercises his discretion to properly declare a if reached, an impartial verdict cannot be or if a verdict of conviction be reached but would could have to be reversed on appeal procedural due to an obvious error in the trial.”
In the instant argue Judge Maruta- ni’s concern appearance for the does impropriety a mistrial. We find this contention to be without merit and note that may properly prejudice a trial court declare a mistrial to avoid to a criminal defendant even absent his behalf. a motion filed on See Stewart, denied, Commonwealth v. 317 A.2d cert.
417 U.S. 94 S.Ct. Wilson, Pa.Super. *10 the of a necessity requiring
constitute manifest declaration issue, this we hold that a mis- resolving mistrial. Without because, trial was his later dis- despite declared properly claimer, judge question the statements raised a whether could receive an trial. impartial
The trial who was also to serve as the finder of fact judge, case, the instant admitted that he initially might unable challenged from consideration purge testimony he later Although professed a verdict. that he reaching information, could decide the case without reference to the we believe that his earlier admission raised the that spectre impartial Moreover, an trial was not possible. during motions, discussion of judge the defendants’ questioned whether in fact been Armstrong’s testimony Officer had harmful since it established the of some of merely presence 1977; 20, on he headquarters May defendants MOVE that, mind, intimated in his the Commonwealth still had not proven the elements of the offenses. The particular judge then recalled a trial in which he had been nonjury recent required to because acquit the defendant the Commonwealth had not established the elements of offense beyond doubt, reasonable but in which the judge personally believed the defendant was if guilty. Examining likely reaction he were in the instant placed posture in a similar stated, judge I where a day, person mentioned to the other you
“[A]s had implicated been-no in mind whatsoever-was question sick, in a I I let him out of the courtroom. felt rape, go Now, I enough. but under the law there was not whether would do that I don’t know.” N.T. 4.82-83 again (empha- added). sis admissions, we there was a light agree of these that an verdict could not be
strong possibility
impartial
reached,
circumstances,
those
did not
under
declaring
Thompson
err in sua
a mistrial.
sponte
See
271,
73,
(1894)
155
15
431
171,
(1891) (member
Finally, although by appellants Africa and Gail we feel to comment compelled Sims whether a sua sponte declaration of mistrial was manifestly as to them since necessary they had not been identified as having present at MOVE headquarters on May 1977. Although manifest necessity was established clearly *11 for those defendants who had been during identified of Phil testimony Armstrong, Officer Africa and Smith Gail Sims Africa were not if the arguably prejudiced even trial not, admitted, could purge as he from testimony Nevertheless, consideration of the case. man given the ner which the permeated officer’s the case and testimony the in tandem manner in which the defendant members of cases,15 MOVE conducted there plus pronouncement by the court that would acquittal be difficult even if the elements established, of the offenses were not we believe that the sponte sua declaration of a mistrial was manifestly as to necessary Therefore, the remaining appellants. double does jeopardy provision reprosecution. not bar
The orders the trial court are affirmed.
HOFFMAN, J., files a concurring dissenting opinion. 15. The defendants who were members of viewed the trial MOVE persecution philosophy throughout for their social and contended they together group that wished to be tried and treated as a and not proceedings as individuals. Pretrial motions and were conducted as group only divergence respect and the came with to the motions for opposed response testimony mistrial as to dismissal in to the Indeed, briefs, Armstrong. Officer in their Phil Smith Africa and Gail present arguments they Sims homologous Africa their as if were requested those defendants who had a mistrial but had been Armstrong. They identified Officer have not asserted their distin- guishing having element in not been identified as an additional factor determining necessity whether manifest existed to declare a mis- trial as to them.
432
HOFFMAN,
concurring
dissenting:
Judge,
I
of double
agree
majority
principles
with the
Janet
appellant
do not bar the
reprosecution
error which
prosecutorial
Africa because
Holloway
her to
a mistrial was not “motivated
prompted
United
prejudice.”
bad faith or undertaken to harass
Dinitz,
600, 611,
1075, 1081, 47
States
96 S.Ct.
States,
also Lee v. United
(1976). See
L.Ed.2d 267
432 U.S.
(1977).
I
also
agree
a mistrial as to
Phil
appellants
the declaration of
Smith
reviewed in
light
Africa and Gail
Africa must be
Sims
United States
“manifest
standard set forth
necessity”
Perez,
believe,
(9 Wheat.)
(1824).'
433
properly declared
resolve
doubt ‘in
any
favor of the
“[w]e
liberty
citizen,
of the
rather than exercise what would be an
”
unlimited, uncertain, and
judicial
arbitrary
discretion.’
U.S. at
(1972). Speaking
generally,
Supreme Court stated in
Illinois
Somerville,
35 L.Ed.2d
425 (1973), that
trial judge
exercises his discre-
properly
“[a]
tion to declare a mistrial
if an impartial verdict cannot be
reached, or if a verdict of conviction could be reached but
would have to be reversed on
due to an
appeal
obvious
procedural error
in the trial.
Id. at
In the present case the majority states that certain “state- ments by the judge raised a whether appellants question could receive an impartial trial.” Majority opinion at 544. I disagree. Any “question” about whether the trial judge could render an verdict impartial was answered judge himself when he “stated that he could decide the case without consideration of the identification testimony.” Id. at 541. The statements to which the refers in no majority way contradict the ultimate judge’s conclusion that he could render an impartial verdict. The narrow focus on majority’s the judge’s initial expressions of reservation ignore the judge’s final resolution of a question which he was best qualified to view, answer. the record my belies the majority’s conclusion that “there was a strong possibility that an impartial verdict could not be reached.” Id. at 545. Moreover, there can be no doubt that the trial stated judge’s reason for declaring mistrial-his desire to avoid the ap- pearance of not amount to impropriety-does manifest neces- sity abort a trial in which himself sat as the trier of fact. I dissent from Accordingly, portion majority’s opinion which holds that the double clause does not bar reprosecution appellants Phil Smith Africa and Gail Sims Africa.