Commonwealth v. Beaver

cause of injury. applicability Its should not depend on the traditional distinctions tort and between contract law or the categorical rules discussed above.

I believe that cause of action appellants’ was properly law; therefore, products liability filed under I would hold summarily that it was error to dismiss their complaint due timely filing applicable to its within the six year limitations period. I

Accordingly, would reverse. Pennsylvania COMMONWEALTH of BEAVER, Appellant. Kenneth Superior Pennsylvania. Court of March

Submitted 1983. July Filed Puleo, Thomas I. Philadelphia, appellant. for Jane Cutler Greenspan, Assistant District Phil- Attorney, Commonwealth, for adelphia, appellee. HESTER, POPOVICH,

Before JOHNSON JJ. POPOVICH, Judge: interlocutory

This is an appeal appellant, Beaver, Kenneth lower Order denying court’s his to Dismiss Information “Motion on Double Jeopardy (Motion) We affirm. Grounds.”1 An examination of the facts following: reveals the Át a DiNubile, Jr., before the Hon. bench Victor J. presented its case against appellant on § charges (18 3921) Theft Pa.C.S.A. and Receiving Stolen § (18 3925). Property Pa.C.S.A. witness,

The first Louise Patricia Long, testified that she Rugby Philadelphia resided Street with her children, husband two Michelle and At approxi- Scott. mately March, 1981, 6:30 2nd of p.m. on the Mrs. Long left home, behind, with and Scott to remaining go Michelle school, but did not purse Bible she take her containing At p.m. about 9:30 she returned discover that $148.00. money gone. her children purse informed they her were ignorant its whereabouts or who have taken might Upon it. further Michelle inquiry, did appellant premises. admit had been on the This was con- by Scott, firmed who told his mother appellant was alone in the house during neighbor’s the time he went to house to inform Michelle that had appellant arrived see her. Mic- agreed Scott, according helle Long, Mrs. “when went to get Scott her have [appellant] could taken the He money. (RR. 14) was left the house alone.” ' As for the “food missing processor” her and husband’s rifles, shotgun pistol, Long two Mrs. could shed no on light theft, the circumstances attendant to their except mention that she the missing discovered former on March and the 5th latter on March 7th. gone pre-trial application denial an dismiss indictment or ground information on the the trial will scheduled violate the right placed jeopardy may appealed defendant’s not to be twice Bolden, the new before trial is held. Commonwealth v. Ross, A.2d A.2d 1298 was for the testify

The next witness home from how, returning after He recounted Long. Mr. clean- March, had intentions of he on the 7th of Oklahoma closet to he to the bedroom went pistol. P-38 When ing his his other along with gone, it was it, he discovered retrieve gave permission no one also stated Long Mr. weapons. his home. weapons to remove Long Mr. as to when questions series of Following a occurred exchange police, theft to the reported for both witness, judge and counsel involving the motion; mistrial to-wit: precipitated sides Attorney]: District MR. INGRAM BY [Assistant any today about to the defendant Did talk Q. you firearms, sir? your Long:] L.

[George

A. Yes. that?

Q. Where was Courtroom, 10 o’clock. about In the

A. Your Objection, [Appellant’s MR. BANK counsel]: Honor. Overruled.

THE COURT: BY MR. INGRAM: he say? did

Q. What officers any police DA or THE Was COURT: him? spoke to you when around proof. like an offer I would BANK: MR. MR. INGRAM: BY conversation with recess, there a During this

Q. counsel, and Mr. of defense presence in the defendant Long? you Mr. present is here who [sic] Moore the possession as to conversation There was A. had them. have might and who weapons not make client did my there and I was MR. BANK: proof. like an offer statements, I would any any have you this? Did you I ask May THE COURT: discovered you after defendant conversation today— conversation for the missing except guns BY MR. INGRAM:

Q. What was the conversation with the defendant today,

sir? Will tell you the Court.

MR. BANK: Objection. THE COURT: Overruled. You exception. have an — THE WITNESS: I told lawyer my MR. Objection, BANK: Your Honor.

THE COURT: Overruled.

THE WITNESS: I told him the weapons were if returned, we maybe could make an arrangement. I am willing to do this. Honor,

MR. BANK: Your I move a mistrial. for This line questioning designed to prejudice you. THE If COURT: there is a statement as to the fact that he stole guns, this is one thing is admissi- However, if ble. the statement merely deals with the probability of possibility that the defendant will [sic] make an adjustment or prosecutor, settlement to the then this type statement would be inadmissible and prejudicial. Yes,

MR. BANK: I and would move a mistrial. for THE COURT: I don’t have the idea slightest what was said to Mr. Long, and what he said to the defend- ant.

MR. BANK: The defendant is claiming is innocent and I move a mistrial. for

MR. INGRAM: This is not correct.

BY MR. INGRAM:

Q. Did you have a regarding conversation posses- your

sion of firearms?

A. Yes.

Q. Did the defendant tell you—

MR. BANK: Objection

THE COURT: Overruled.

BY MR. INGRAM:

Q. you Did he tell weapons where the were?

A. He said him and my daughter sold them. I committing Your Honor. perjury, BANK: He is

MR. I will take the stand. He never am a here. witness to this man. said that saying you told you

THE Are COURT: defendant daughter guns got sold the and your he and them? money for daughter he sold my

THE WITNESS: He said and Pinkey. guy to a named guns Bank, you have to call new Mr. will THE COURT: counsel. right here, not sitting is but he was

MR. BANK: He sequestered. if have to call new counsel

THE You will COURT: the stand. going to take you are Honor, highly prejudicial. this is BANK: Your MR. counsel. private wish to have I’m a witness and we clear, I am are and very The rules THE COURT: repre- If is on this. a Counsel who making ruling placed is in a situation where senting a defendant witness, then he to remove himself has has to be This is— to a witness. going he is be the case because I have I move a mistrial. BANK: again MR. for up you. This is to a mistrial. grounds plenty for in a half hour not tried an This could be THE COURT: testify. to opportunity Bank wants his hour. Mr. let this case as defendant’s try I him could We cannot be done. testify. and also attorney appoint private to this case adjourn have will counsel. to a continuation give have this BANK: You will

MR. counsel, somebody private as date, assign else take the I’m to- stand. going because Bank, Are try I am cases. Mr. here THE COURT: for mistrial? moving you hold May we this? INGRAM: MR.

THE COURT: I am going grant mistrial. New counsel will appointed have because Counsel here going abe witness2 (RR. 19-24) added) (Emphasis aforesaid, As can be ascertained from the appellant’s trial had attorney taking intentions of the stand to contradict the inculpatory statements attributed to the accused by Mr. Thus, Long. view the that the trial attorney “[i]n fact witness, was to become a the Court honored the himself [appellant’s trial attorney’s] request a mistrial.’’ for (Emphasis added) (Lower 2) Court Opinion The case was continued to appellant allow to obtain new counsel. started,

Before the second trial appellant filed a Motion alleging that the Commonwealth “forced” him to request a by mistrial in engaging prosecutorial misconduct (asking Mr. Long questions) intentionally provoke calculated to 4, 1981, mistrial. On a Rule November To Show Cause was issued, in proceeding which resulted being scheduled for January day, appellant’s 1982. On that counsel was going to testimony witness, have “the of one ... which (cid:127) would very Unfortunately, short. present.” [was] (N.T. 2) 1/7/82 at by When asked the court what this court, stated, witness would have testified to if in counsel “To the in conversation which occurred the courtroom that morning,” and by Long. testified to Mr. Id. The hearing judge agreed with the Commonwealth’s assessment that the facts did not indicate a of jeopardy case double and denied appellant’s appeal Motion. This followed and an Opinion DiNubile, Jr., (per Judge was filed which was concurred in Hirsh) in by Judge support of the January 1982 Order denying appellant’s Motion. reproduced

2. We note that transcript an examination of the judge reveals that the trial made various "corrections” to the aforecit- exchange. ed The "corrections” have been inserted into the discussion appropriate. appear where "corrections" conclusion of the record, (4) reproduced pages consist of four and are dated 2/11/82. judge signature verify The trial affixed his to the "corrections" to their authenticity. attack. The appeal, appellant two-pronged On launches in misconduct prosecution engaged initial one avers that the “first, it from Mr. it testimony Long, elicited because plea negotiations related to settlement discussions and/or because, and, seriously, testimony and most secondly prosecutor knowingly (Appel- elicited false.” 9) Alternatively, prong, appel- lant’s Brief at the second prove requisite lant seeks a remand “to intentional part faith on the of the Commonwealth’s bad misconduct[ ]” 14-15) Brief at attorney. (Appellant’s claims, of addressing appellant’s Prior to the merits we utilized instant- scope need to determine review be end, identified those circum- ly. Supreme To that our Court retrial Jeopardy stances which the Double Clause will bar sought prosecu- “if the defendant the mistrial as a result (Citations amounting overreaching.” misconduct torial 336, 340, omitted) Starks, Pa. subject “prosecutorial A.2d On stated: overreaching,” Court Starks princi has enunciated Supreme The United States Court overreaching. First pally types prosecutorial two prosecutorial designed there is the misconduct which second, perhaps in order to secure a provoke a mistrial favorable, the defendant. opportunity more convict Dinitz, 600, 611, 96 U.S. S.Ct. See United States [424 1075, 1081, (1976)]. there is the 47 L.Ed.2d 267 Second in preju misconduct undertaken bad faith to prosecutorial States, the defendant. See Lee v. United dice or harass 2141, 2147, 23, 32, 97 52 L.Ed.2d 80 U.S. S.Ct. [432 611, (1977) Dinitz, at 96 at ]; supra v. S.Ct. United States error, overreaching to prosecutorial 1081-82. In contrast and cannot part process not an of the inevitable integrity of the signals condoned. It breakdown represents type prose and judicial proceeding, clause was de jeopardy cutorial tactic which the double signed protect against. 341, 416 A.2d at 501. 490 Pa. at

Id. that, to hold interpreted “prosecu- has Starks Court rising to the level of will overreaching torial misconduct

97 specified retrial if the misconduct is only bar attributable to a bad effort to the defendant or an prejudice intent faith added) (Footnote (Emphasis omitted) a mistrial.” provoke (Citation omitted) Clark, 287 Pa.Super. Commonwealth v. 380, 390, 655, (1981). 660 430 A.2d Accord Commonwealth Yost, 305 316, 5, 549, v. 321 n. 451 A.2d 552 Pa.Super. n. 5 Anderson, Pa.Super. 1, 5-6, v. Commonwealth 294 720, 439 A.2d Smith, 722 v. 284 60, 67, 393, fact, In (1981). 425 A.2d 396 we have noted that “set forth an Starks authoritative standard for overreaching (Cita none previously cases where existed.” omitted) Clark, tions supra, 287 Pa.Su at per. 390 n. 430 A.2d at 660 n. 9.

It is appropriate point at the discussion to mention Supreme that United States recently Court found it necessary to delineate more had the fully than it bounds of the “narrow to the rule that exception Jeopardy the Double is no retrial.” Kennedy, Clause bar to v. 456 Oregon U.S. 667, 673, 2083, 2088, S.Ct. 72 L.Ed.2d Jus Rehnquist, writing recognized tice for the majority,3 language opinions taken the' Court’s earlier “would seem to broaden test determining violation of the [for Double Jeopardy provoke from one of intent Clause] motion for to a generalized a mistrial more standard of ‘bad faith conduct’ or on part ‘harassment’ judge prosecutor.” (Emphasis original) Id. S.Ct. at (“earlier opinions” referred to the Court consisted Dinitz, of United United supra, States and States v. Jorn, (1971)). U.S. S.Ct. 27 L.Ed.2d 543 Court further conceded Oregon that:

Because of the which varying confusion these statements question [—garnered standard in from the deci- sions in Dinitz, supra, United States United C.J., opinion by Burger, Rehnquist’s joined Justice lead White O’Connor, JJ., noting concurring with Justice Powell in his opinion ”join[ed] opinion holding that he also the Court's conduct, prosecutor intention of a determines whether his viewed (cid:127) mistrial, justifying the defendant and the court as bars a retrial of Jeopardy (Emphasis the defendant under the Double Clause.” in original) Id. 456 U.S. at 102 S.Ct. at 2091-2092. Jorn, courts, in supra—] have occasioned other

States deem it the confusion and its acknowledge we best in light previ- of these statements from justifiability do a flat opinion lay ous decisions. We not down in rule that where a defendant a criminal trial successful- mistrial, ly may moves for a not thereafter invoke the of second trial. But jeopardy against bar double we do which hold that the circumstances under such a defend- ant invoke the bar double in a second may jeopardy of try him are limited to those cases in which the effort conduct rise to the motion

giving successful for provoke was intended to into mistrial defendant added) (Emphasis a mistrial. moving for 679, 102 Id. at S.Ct. the Court admitted that a standard which examines

Albeit faith conduct” prosecutor, of the vis-a-vis “bad intent prosecutor, on the of the is part judge or “harassment” difficulties, it, nonetheless, practical free from entirely merely It manageable apply. felt such was “a standard is, fact. finding calls for the court to make a [That of intent from inferring the existence or nonexistence 675, 102 facts and Id. at S.Ct. objective circumstances[.]” at 2089. (cid:127) embarking for on an examination

Our reason is the contention decision Commonwealth’s Oregon Starks, upon supra reliance appellant’s if that a retrial is barred (where Supreme our Court held over- there is either intentional misconduct or bad faith no longer part prosecutor), on the reaching that, light position It is Commonwealth’s tenable. (i.e., when there only retrial is barred holding Oregon to pro- misconduct which is intended prosecutorial exists ' mistrial), is not the “the rule set down Starks voke a 3) (Commonwealth’s Brief at law.” Pennsylva- Supreme that to date the Court We observe expansive nor more neither a more restrictive given nia has Clause Pennsylvania’s Jeopardy Double interpretation § 10) Fifth Amendment (Art. 1, given than that

99 See, e.g., Commonwealth Supreme Court.4 United States J., (1979) (Nix, Klobuchir, 486 Pa. 241, 405 A.2d 881 v. joined by Affirmance O’Brien Support Opinion 1602, denied, 952, 63 100 S.Ct. cert. JJ.), 445 U.S. Larsen, 2178, 947, 64 denied, 446 U.S. 100 S.Ct. reh. 787, L.Ed.2d 270 Pa.Su Perry, v. Commonwealth (1980); 804 L.Ed.2d differently, (1979). Stated 412, 411 A.2d 786 “‘[i]n per. similarities between policy textual and of the light jeop constitutional and United States Pennsylvania [double concluded Supreme ardy] provisions’ Court] ha[s] [our 2056, 23 784, 89 S.Ct. v. Maryland, since Benton U.S. [395 inter clause must be (1969) Pennsylvania ], 707 L.Ed.2d coun with its federal at least co-extensive being as preted Hude, 492 v. Commonwealth (Citation omitted) terpart.” Common see also 313, 600, 613, A.2d 320 Pa. 425 (1980). Boerner, 505, 422 583 A.2d wealth v. Pa.Super. 281 protection Nonetheless, jeopardy that the double granted appli- made Fifth Amendment has been under the provided this “does Maryland, supra, Benton v. states, cable in its constitu- providing deter a necessarily state citizen____” (Citations for its protection an enhanced tion 333, 342, 393 v. Hogan, 482 Pa. Commonwealth omitted) Henderson, v. Commonwealth 1133, 1137 A.2d cf. (1981) (United Supreme 349, 437 A.2d 387 States 496 Pa. did not and federal constitution interpretation of Court’s interested-adult Pennsylvania’s force of could not disturb (1979) 479, 406 A.2d 735 Danforth, Reese v. rule); 486 Pa. law not be from federal common would (Precedents drawn official immuni- concerning followed this Commonwealth Bussey, v. defender); 486 public for a ty Bolden, 602, However, 472 Pa. 373 A.2d 90 v. in Commonwealth protec (1977), be afforded the held that an accused would the Court granted request at his if against reprosecution after a mistrial was tion part grossly negligent on the proved or misconduct intentional Perry, Pa.Super. judge. v. 270 prosecution See Commonwealth the 412, (1979). interpretation expansive stan of.the repudiated. jeopardy been double cases has since dard to be utilized in 241, (1979), Klobuchir, A.2d 881 v. 405 See Commonwealth 952, 1602, 787, denied, denied, L.Ed.2d reh. U.S. 100 S.Ct. cert. 947, 100 S.Ct. 64 L.Ed.2d 804 446 U.S. (Court to follow (1979) declined 221, 404 A.2d 1309 Pa. Butler, 99 S.Ct. 441 U.S. North Carolina Supreme to the held, according (1979) L.Ed.2d 286 interpretation and its supervisory powers Court’s Constitution, of one’s Mi- explicit waiver Pennsylvania any state- before mandatory requirement is a rights randa and intelli- knowingly voluntarily, considered ment will be Kauffman, given); Commonwealth gently has Court (1978) Supreme (Pennsylvania 392 A.2d set authority, to supervisory of its in the exercise right, by than that enunciated Pennsylvania standards for higher citizenry). its protect Supreme Court the United States our review of However, has not been evidenced such Jeopardy Double Pennsylvania’s interpreting case law by out 4, This is borne supra. note See Clause. which, it has evolved as jurisdiction, law of this decisional to the mistrials, consistently has adhered respect with States Su- United promulgated standard of review Pa. 493 Sample, v. See, e.g., Court. Commonwealth preme (1981); Washington, v. 347, 426 A.2d 582 Commonwealth v. 572, 1340 Commonwealth 424 A.2d 492 Pa. 75, 1232 Commonwealth Mitchell, Pa. 410 A.2d 488 Yost, supra; Com- v. Starks, Commonwealth supra; v. Clark, v. Anderson, supra; Commonwealth v. monwealth 528, 426 Simms, v. supra; Commonwealth Thus, types prosecuto- (1981). principal the two A.2d 620 pre- deciding if a mistrial to in overreaching looked rial misconduct in- 1) prosecutorial are: reprosecution cludes of a mis- the declaration trigger calculated tentionally undertaken bad misconduct trial; 2) prosecutorial Virtu, v. Commonwealth to harass the accused. See faith 198, n. 7 n. 432 A.2d 495 Pa. the dual mistrial viability of continuing A comment on Wallace, Pa. v. in Commonwealth appeared test an accused’s (1983), dealing a case with 455 A.2d Nix, Concurring in his trial. Justice request for new had supra, Kennedy, v. Oregon observed Opinion, as an overreaching” standard “prosecutorial disavowed barring a necessity” exception to the “manifest exception to the initial mistrial.5 objection retrial over a defendant’s Arelt, Likewise, Court, v. Commonwealth (1982), held that withdrawal Super. under reprosecution did not foreclose guilty plea appellant’s no inasmuch as there was of double theory jeopardy, the accused to desired prosecution of intent that proof action; v. Kenne citing Oregon and it did so take such supra. dy, (“intent” or “bad the dual standard

We find that faith”) any degree clarity articulated with review first Starks, upon supra, being premised v. Commonwealth (to subsequently “clarified” case that has been federal law suspect by is rendered somewhat only), one of “intent” Common- supra. generally See Oregon Kennedy, (Justice Concurring Opin- Nix’s Wallace, supra wealth v. Arelt, ion); supra. rulings dealing jeopardy double jurisdiction’s misconduct, ostensibly albeit prosecutorial scrutinized constitutions,6 turn on Pennsylvania

under the federal and the United States of review enunciated the standard is consistent with view Supreme approach Court. that we will follow such- decisions expressed by this Court in conflict with the law as determined though they are even courts. Commonwealth ex rel. appellate our own See by 419, 435, Rundle, 203 201 A.2d v. Goodfellow illuminating Majority Opinion since in Wallace is not otherwise 5. The prosecution the basis that the failed to a new trial was awarded on 83, 1194, Maryland, comply Brady 373 U.S. 83 S.Ct. 10 L.Ed.2d v. (1963). 215 347, (1981) Sample, v. 493 Pa. 426 A.2d 582 6. See Commonwealth jeopardy (Alleged clauses of both the United violations of the double Pennsylvania under the feder- Constitutions were evaluated States and Starks); Washington, in Commonwealth v. 492 al standard set forth 75, 572, Mitchell, Commonwealth v. Pa. 424 A.2d 1340 488 Pa. Boerner, v. Pa.Su- see also Commonwealth 281 11, 583, 505, (1980), A.2d n. 11 where it is per. n. 422 588 515-16 Supreme evidently simple Court treats a claim of that our mentioned jeopardy" to raise both the federal and state "double as sufficient claims. 102

615, 623 Notwithstanding such a we predisposition, it here, find under the appropriate, particular circumstances apply in pre-Oregon assessing standard of review appellant’s Stasak, August 550, claims. 492 Pa. 424 A.2d (1981) (Retroactive 1328 is a application matter of judicial basis). discretion which must a by be exercised on case case adopting application reasons for non-retroactive Oregon judice to the case sub are:

First, the decision resulted in a Oregon being “rule” “adopted,” 8, 8; U.S. at id. 456 678 n. 102 S.Ct. at n. (Justice Wallace, supra Commonwealth v. Nix’s Concur- ring Opinion), that narrowed prior standard of review mistrials, applicable i.e., cases holding overruled contrary.

Second, because the effect purpose and of the present (“intent” only) pre- rule review is consistent with the (“intent” standard, Oregon faith”) or “bad we do find that its operation will be retarded if not applied retroactive- ly-

Third, appellant’s appeal perfected having prior been decision, think, we Oregon equities, weighing “injustice hardship” or will be non-retroactivity, avoided i.e., the accused have the benefit of having will claims his scrutinized under the broader standard.7

Based on the preceding, Walker, see Linkletter (1965), U.S. 85 S.Ct. L.Ed.2d it we deem appropriate to appellant’s prosecutorial evaluate over- reaching against claims allowing standard bar to retrial where “intentional” “bad faith” engaged misconduct was the prosecution. Commonwealth, cases, In at least in some decisions retroactively applied have "benefiting” been have resulted in See, Hernandez, appellant. e.g., Commonwealth v. (1982) (McCutchen rule); Brown, A.2d 1268 Pa. instruction); (1981) (Insanity Stasak, August A.2d 431 905 492 v. 550, (1981) (Notice loss); Pa. 424 A.2d 1328 of insurance Re: In M.E.T., 316, Adoption (1983) (Clear Pa.Super. 313 A.2d 1247 459 of convincing adoption proceedings). standard would not apply Oregon Kennedy, supra, the case here if we were v. retroac- tively.

103 of facts, portion that the first the we see Turning appellant the con complained by of Long’s testimony Mr. told his the stated he accounting cerns an which witness the appellant attorney, during presence a recess the counsel, maybe “if weapons and his were retprned, arrangement. parties could make an [He [the involved] (RR. 21) Appellant’s counsel willing to do this.” was] statement, of this completion for mistrial at the moved since it the trial took no action on the motion but court to Mr. slightest have the idea of what was said “d[idn’t] Id. it Long, [appellant].” and what he said to Suffice the placement we do the aforesaid with say, equate information the trier prejudicial of such before highly been the declaration fact that recourse would have only so words, evidence was not of a mistrial. In other that the trier of fact prejudicial that we cannot assume put and arrive at would have been unable to it aside Conti, impartial adjudication. Compare Commonwealth v. Moreover, (1975). Pa.Super. 236 345 A.2d 238 because declared, the relief he appellant granted a mistrial was was Commonwealth, based on our sought, but the actions of law, case nowhere near the review come applicable See, a retrial.8 prosecutorial level misconduct held to bar Virtu, v. supra; v. Commonwealth e.g., Commonwealth Clark, Anderson, see supra; supra; Commonwealth Miele, 197, 446 A.2d Pa.Super. also 300 298 complaints upon prose-

The last of centers appellant’s query Long appellant cution’s Mr. as had told to whether Long him Mr. re- weapons “where the were?” To which (RR. my “He him and sold them.” sponded, daughter said Having Long’s testimony did not concluded that Mr. necessitate trial, barring granting we do of mistrial nor warrant second appellant’s Long’s testimony preju- not reach Mr. contention that dicial in that inferred that an offer to make an it could be therefrom see, arrangement subject e.g., (“compromise”) was made. On (1976); Melnyczenko, Pa.Super. Commonwealth v. A.2d 98 Luciano, Pa.Super. Commonwealth v. A.2d 881 Cohen, Whar- Evidence, (13th Ed.1973). § ton’s Criminal 22) No was motion made at time for a this mistrial. Rather, appellant’s counsel Mr. Long committing accused and, perjury, point, his prove going he was to take the stand to testimony. thereafter, refute the Immediately as matter, the though to the trial court clarify inquired of Mr. Long saying if that he was the had appellant told him that Mr. appellant Long’s had daughter sold the guns money and secured for them? Long replied, Mr. “He said he and my daughter sold the guns guy to a named Pinkey.” Id. No a motion for mistrial made at this juncture either. However, the trial appellant’s court advised attor- (Mr. ney Bank) if he "testify intended to he would have to, first, (RR. 23) “remove himself from the Curi- case[.]” ously enough, only at juncture the litigation did counsel “move for mistrial.” Id. Because the matter of, could not expeditiously disposed trial court refus- ed to let Mr. Bank “try as the case defendant’s th[e] Thus, attorney testify.” and also Id. court it thought adjourn” best “to to allow new counsel to be obtained. Mr. Bank, however, “a wanted continuation date” to accomplish all that was needed. the trial court Accordingly, accommo- dated Mr. and granted Bank a mistrial so new counsel (RR. 24) could be secured.

From the preceding, it is obvious the mistrial was sought, granted, not because Mr. Long’s testi mony attributing appellant admitting to the possession and sale of the but to guns,9 afford counsel for appellant Appellant’s allege appellate counsel does not that trial counsel was failing specifically being ineffective for to state that the mistrial was sought Long’s testimony attributing appellant because Mr. with the charged, seeking commission offenses in contrast time Thus, testify. secure new so that trial counsel counsel could such below, theory having appellate pur- raised waived been it is for Williams, poses. See Commonwealth v. 383 A.2d 503 (1978); Polof, Evidence, Kleiner, Henry Pennsylvania § on Rome, P., Pennsylvania Jack & Lawyers, Edwin Trial Handbook for position § buttressed fact that the lower opinion court’s treats basis for the mistrial motion as one consist- ing testify of trial counsel’s wish to as a witness on behalf of the of time period Since there was opportunity testify. recess') may statements alleged (during a when Mr. Long, Mr. prosecution, made only have been where attendance, deter- the defense appellant Bank and were as to testify counsel to necessary mined that it was for trial end, the trial Towards that his recollection of the event. decided, so, a mistrial. and to declare rightly court still as a and topic testifying the of counsel witness On case,10 of this Commonwealth remaining on the the courts have stated: during Long's transpired the

defense to rebut Mr. version of what court recess. waiver, an accused’s Even if we were to hold that there was no material, thus, subject proper the "admission” is relevant and and is Sherard, Pa. review the trier of fact. Commonwealth v. 456 See 505, Staino, 321 A.2d Commonwealth v. 204 372 Evidence, (1964); Henry Pennsylvania § on (1953) ("... against properly proved, voluntary once admissions inter- great weight, highest est are of kind of evidence and are entitled to against being presume party say anything it fair to that a would omitted)). (Footnote his own interest true.” unless it be possible inconsistency an advocate and a witness of the role of governing professional responsibility when has occasioned rules of may participate E.g., Disciplinary counsel as a witness. Rules 5-101 Responsibility provide of the in 5-102 Code of Professional pertinent part as follows: Refusing Lawyer Employment DR When the 5-101 Interests May Judgment. Impair Independent His Professional pending litigation undertake the testify: his firm (b) A lawyer ought shall not employment to be called as a ^[*] if he knows or it is obvious that he or ^[*] accept employment and he or a ^{[*] [*]} witness, lawyer ^[*] except in ^[*] contemplated his firm a lawyer may may (1) testimony solely If the will relate to an uncontested matter. (2) formality testimony solely If the will relate to a matter of there is no reason to believe that substantial evidence will be testimony. opposition offered in to the (3) testimony solely and value of If the will relate to the nature legal lawyer services rendered in the case or his firm to client. matter, (4) any hardship As to if refusal would work- substantial lawyer or his on client because of the distinctive value of particular case. firm as counsel Lawyer DR When the Becomes a 5-102 Withdrawal as Counsel Witness.

Unquestionably, participation as a counsel witness in the trial is to be discouraged. There are a number of concerns arise where counsel involved in becomes trial as witness. suggested It has been that once he personal credibility placed becomes witness his issue before the may and this lessen his [trier fact] effectiveness as an Code of Professional Re advocate. sponsibility Const., EC 5-9 Miller Electric Inc. Co., Devine Lighting F.Supp. n. 3 [v.] (W.D.Pa.1976); Rondeau, 79 Mass. 392 N.E.2d It has also been indicated that his involvement as a for his witness client causes him to easily subject impeachment be more for interest and thus lessens his as a effectiveness witness. hand, Id. the other participation On his a witness may as unfair, gain cause his client’s side advantage, be cause opposing counsel’s reluctance to aggressively (Footnote omitted) attack his credibility. Id. 537, 546-47, Floyd, A.2d 989-990 procedure followed instantly, partici- once counsel’s with, pation apparent, proper. became To was start there was no indication whether counsel was to be the last witness to or that the testify, securement of new counsel accomplished (RR. could be a half hour within or hour 23), the so that case could proceed interrup- without further Also, tion to its conclusion. the subject matter of appel- having lant’s counsel’s arisen a rather testimony, at propi- If, (A) undertaking employment contemplated pending after or litigation, lawyer lawyer a learns or it is obvious that or a he in his client, ought firm to be called as a witness on behalf of his he shall n withdraw from the firm, any, of the trial conduct and his if shall trial, representation except may not continue in the he that continue lawyer representation may testify the and he or in his firm in the 5-101(B)(l) through DR circumstances enumerated in If, (B) undertaking employment contemplated pending after or litigation, lawyer lawyer learns or it is obvious or a that he in his client, may be called firm as witness other than on of his behalf may representation apparent the continue until it is that his testimo- ny may prejudicial is or to his client. go and did moment, to a relevant issue tious was directed Lastly, just under circumstances the heart of the case. or testimo recounted, the counsel’s acceptance rejection critical to the decision to be by the trier fact was ny Charleston, reached the matter. Commonwealth Cf (1977) ('“[A] 380 A.2d have appellant’s alibi would been witness to corroborate appellant’s de important possible addition to single most ” circumstances, (Citation omitted)). these fense.' "Under [grant] and to to continue the decision [not] clearly motion for a mistrial was reasonable.” requested 549, 431 494 Pa. at A.2d Floyd, supra, at 991. to rule on hearing ap scheduled evidentiary

At the dismiss, new the sole witness counsel motion pellant’s (N.T. present[,]” have “not 1/7/82 proposed testify (90) since the 2), ninety days of some despite passage Thereafter, hearing judge denied the trial. original if informed the witness were by Motion when counsel testified, “To the which he would have conversation present later morning, in the courtroom which was occurred to, to, complain to be testified attempted testified matter, in this Mr. Long.” witness Id. ing neglected to seek a Aside from the fact that counsel produced so that could be continuance witness {see 301),'we agree with the observations made Pa.R.Crim.P. that, “What defendant wanted the Commonwealth [the ruling on the hearing pre-trial to do was to make a judge] a credibility Such deter- testimony. witness’ credibility of trier fact trial province mination is within the of a of [in here], pre-trial the the setting, applied as it to case 5-6) (Commonwealth’s at This dis- motions court.” Brief request Appellant for a remand. penses appellants version, present at his ample opportunity have retrial will or, wishes, Mr. Bank if he through testimony the of either himself, Long’s Mr. testimony. the stand refute by taking reasons, For foregoing the find our we from review of the entire record neither “intentional” nor “bad mis- faith” rising conduct to the level of “prosecutorial overreaching” entitling appellant requested. to the relief

Order affirmed.

JOHNSON, J. concurring files a statement.

JOHNSON, Judge, concurring: I share majority’s the view that the mistrial was not the product prosecutorial of misconduct as term that is defined Starks, (1980), instead but was necessitated by defense counsel’s to testify desire and hence the need continue the case for appointment of new I agree counsel. further that alternative claim of the appellant, that he entitled to a .is hearing, remand for new is meritless on facts of this case. appellant

Since I that agree should have benefit standard, our review of his claim applying Starks Oregon Kennedy, 456 U.S. 102 S.Ct. (1982) L.Ed.2d 416 applied retroactively should not be court, I believe it inappropriate to further discuss any possible ramifications resulting interpreta- the future tion in this I there- Oregon Kennedy Commonwealth. fore am unable to join portion majority I note, prefer would opinion at On a pp. 95-104. similar refrain from analyzing stewardship counsel’s exchange believe that issue between trial court might and counsel better evaluated as an aggregate, seeking portions rather than to evaluate the exchange separately. reasons,

For I these concur in the result.

Case Details

Case Name: Commonwealth v. Beaver

Court Name: Supreme Court of Pennsylvania

Date Published: Jul 15, 1983

Citation: 463 A.2d 1097

Docket Number: 188

Court Abbreviation: Pa.