Commonwealth v. Bycer

after post-verdict denied, facts motions were but before he should have sentencing, asked court to vacate the post-verdict order motions and to denying grant him leave to file a motion. If supplemental he learned the facts after before he filed sentencing appeal, but this he should have filed a for petition reconsideration for a hearing after-discovered evidence. If he learned the facts after he his appeal, only filed recourse was to raise the claim us, his brief to us when telling he had facts, learned the as so to enable tous decide whether we should remand hearing.

None these steps Therefore, if taken. appellant to pursue wishes the claim that counsel was ineffec- interest, of a tive because conflict he must do so aby Act, under Post-Conviction Hearing raising first question of effectiveness of post-verdict/appellate coun- sel.

385 A.2d 1367 Pennsylvania COMMONWEALTH of BYCER, Appellant. Arthur Lee Superior Pennsylvania. Court of

Argued Dec. 1976. April Decided Smith, Media, G. Guy for appellant.

D. Michael Assistant Emuryan, District Attorney, Media, Commonwealth, appellee. WATKINS, Before Judge, President and JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ.

PRICE, Judge: Arthur Appellant Lee Bycer indicted on two counts of involuntary manslaughter as the result of a motor vehicle accident which two pedestrians were killed. The instant lower court denying an of the is from order taken the lower discharge. We affirm motion for appellant’s order. court’s on January commenced the instant case

Trial in evidence, presentation the Commonwealth’s During photo- to introduce a attorney attempted district assistant informed the court deceased. He also of one of the graph of the other photograph offer similar intended to that he objection to appellant’s sustained The lower court victim. ground photographs introduction were prejudicial. testified, the court had declared

After three witnesses women, who were appar- recess several During recess. the assistant victims, were observed relatives of the ently holding pictures defense counsel attorney district to the them visible potentially as to make a manner such who were the courtroom. leaving of the jury members reconvened, objected counsel and appellant’s When court was refused and request initially mistrial. The requested The members of the were was cleared. the courtroom and observation concerning knowledge their questioned then as jurors they the indicated that incident. Two of of the seen several individu- courtroom, had leaving the were however, jurors, of the had None holding pictures. als pictures. the contents of observed the for lunch and conducted the court recessed At this point, attor- appellant’s with appellant, interview an in-chambers The trial attorney. district and the assistant ney have been may prejudiced case that explained appellant’s he was informed that Appellant the incident. because of He was also granted. the mistrial be retried if would motion, request cautionary withdraw told that he could with the first jury. to verdict and proceed instructions he the attorney, with his asked conferred After appellant Appellant instructions. cautionary with proceed court he this course he would waive if pursued was advised that as his case was prejudiced that to claim any right the incident. a result of

The assistant district attorney the opposed withdrawal of motion for stating mistrial that:

“The Commonwealth feels now with the clearing courtroom, polling Jury, session lengthy afternoon, Chambers this as well as anticipated cautionary instructions, it could well very prejudice the Common- wealth to have the Jury proceed with the evidence and we also feel and presented, would submit that al- though it on record that Mr. appears Bycer would know- withdraw ingly intelligently that Motion . regarding possibility later developments it an prove could to be unwise decision on Mr. Bycer’s part. (NT 24).1 ...”

The trial court informed the assistant district attorney that “Rule Criminal Procedure, states that only Defend- ant may mistrial,” (NT 24) move for a and thus rejected the argument that a mistrial should be granted simply because the Commonwealth’s case may prejudiced. been (See also NT 26).

The judge then informed the parties that he intended to declare a mistrial sua sponte, stating that:

“As I to you gentlemen, indicated I think that has permeated this entire Jury because of the necessity questioning entire and the fact Jury two of them did see and hear something; and I foresee problems convicted, future he is if as his own lawyer has stated.

Therefore, circumstances, under the the Court feels and holds that there is a manifest to necessity declare a mistrial. The prejudice permeated has the entire Jury by now as we have indicated. Very (NT 25). well.” The lower court then ordered a mistrial and discharged the jury.

Appellant subsequently filed a petition for a writ of corpus alleging retrial, habeas that his which was scheduled Testimony opinion The Notes of referred to in this are from a 24, 1976, hearing appellant’s petition held March for a writ of corpus. habeas on double jeopardy was precluded March for This after a hearing. was denied grounds. this court as to, accepted by, and was certified 501(b) to of the Appel- section appeal pursuant discretionary Act of 1970.2 Court Jurisdiction late that “the trial 1118(b) provides, part, Pa.R.Crim.P. for reasons of manifest only mistrial judge may declare requirement reiterates simply This Rule necessity.” Supreme the United States recognized by been long has repeated from making the state Court, prevent to designed alleged on an offense. convict an individual to attempts Wheat.) 579, Perez, (9 6 L.Ed. States n establishing clear cut rules adopting any than Rather our courts have necessity, pre- constitutes manifest what case on its own facts in of light to each ferred Perez, supra. from United States following language nature, think, all cases this the law has that in of “We justice authority discharge of with the invested courts whenever, verdict, in their opinion, from giving any consideration, there is a into all the circumstances taking act, public justice or the ends of for necessity manifest are to exercise a They defeated. would otherwise be it and is subject; impossible on the sound discretion circumstances, render it proper which would all the define sure, used power ought be with to interfere. To circumstances, and for caution, under urgent the greatest causes; espe- and obvious and cases very plain capital they careful how inter- extremely should be courts cially, life, of chances favor of any with fere all, have the to order the right after But, prisoner. public which discharge; security discre- faithful, conscientious exercise sound and 501(b) July No. P.L. P.S. § [17 2. Act Haefner, See 211.501(b) (Supp.1977-78)]. also Commonwealth § Bolden, (1977); 472 Pa. 373 A.2d (1977) (denial quash motion to on double 373 A.2d 90 appealable order). grounds jeopardy an constitutes

341 this, tion, rests, cases, as in other upon responsibili- ty judges, under their oaths of office.” 22 U.S. at Perez, Under a trial court has the authority declare a without mistrial constitutional implications if the trial court all considers the circumstances and in its sound discretion determines that there is manifest necessity the act. Stewart, Pa. (1974) A.2d 616 (lead opinion Chief by Justice Jones). It is beyond [former] case, that in the instant dispute the lower court conducted an extensive into the matter with inquiry both the jury and parties.

It true that if the may mistrial had not been granted, appellant could not have asserted with success that he was entitled to a new trial on the basis of the incident. Such conclusion, however, would not compel finding for appel lant this case. fact that in refraining from declar “[T]he ing mistrial the court would have committed no error does give rise to necessarily the converse proposition that in taking affirmative action the trial court erred.” Common Stewart, wealth v. supra, 456 Pa. at 317 A.2d at 619. Moreover, Stewart, as Mr. Justice Nix noted “[d]efense counsel have been may or he incompetent may been aware of another unrelated set of circumstances so favor able to the defense that he willing was to continue in the face of this To prejudice. prohibit the trial judge from acting trial, to abort the in such a circumstance, would make a contest proceeding between countervailing prejudices rather than a resolution of truth based on relevant evi dence.” 456 Pa. at 317 A.2d at 622 (concurring opinion). Appellant argues that there was no that the showing prejudiced incident. Commonwealth v. Stewart, however, supra, establishes that prejudice is not essential to a judge’s finding of manifest necessity. See also Gori United 6 L.Ed.2d There are cases which intimate that prejudice is See, e. g., necessary Shaffer, Commonwealth 727 (1972). 288 A.2d These distinguishable cases are in that before granting mistrial the lower court failed to con- matter and therefore failed on the inquiry a full

duct all the circumstances. consider case, are in this we presented the circumstances all Under the trial court abused its discretion to conclude unable of manifest grounds necessity. a mistrial ordering in is affirmed. of sentence judgment The in the result. CERCONE, J., concurs in which HOFFMAN, J., dissenting opinion files a J., SPAETH, joins. in participate President did

WATKINS, Judge, former this case. in decision the consideration HOFFMAN, Judge, dissenting: of Clause Jeopardy the Double contends Appellant 1118(b) and Rule of Constitution1 States the United bar his Procedure2 retrial Rules of Criminal Pennsylvania would, I there- manslaughter. agree involuntary for of the lower court denying appel- the order fore, reverse be and order that appellant corpus petition lant’s habeas discharged. officials filed County Delaware September

On with two counts of charging appellant complaint criminal from an charges stemmed manslaughter; involuntary Township accident Haverford 1, 1975 automobile August 26, 1976, trial January died. On in which two persons of in the Delaware County commenced before provides, to the United States Constitution 1. The Fifth Amendment subject any person part: be pertinent “. . . shall [N]or ” limb; jeopardy put . . life or . to be twice same offence incorporated guarantees the Due Process this clause are The are, therefore, Amendment and available of the Fourteenth Clause Maryland, proceeding. Benton v. in a criminal state a defendant L.Ed.2d Pa.R.Crim.P., Appendix, provides: 1118(b), “When an P.S. 2. Rule during only prejudicial the defendant occurs defend- event mistrial; may the motion shall be made when move for ant Otherwise, judge may the trial declare mistrial is disclosed. event necessity.” only for of manifest reasons Common Pleas. Commonwealth called as a witness the father one of the decedents and offered to introduce a of his deceased son into photograph evidence. The Assistant District also advised Attorney the court that the Common- wealth intended to offer a similar photograph of the other Appellant’s deceased victim. counsel objected, and the trial photographs court ruled the inadmissible because they would prejudicial. After the Commonwealth had presented witnesses, three the trial court declared a short recess. During recess, appellant’s counsel and the Assistant District Attorney ob- served some women holding up pictures the inadmissible the deceased a victims such manner as to be visible to the the leaving members of jury courtroom. When court m., reconvened at 12:15 p. appellant’s counsel moved for a mistrial. The trial court cleared the courtroom and ques- tioned the members of the as to jury they what had ob- jurors served. Two stated that they saw some people hold- ing pictures. However, up jurors none of the saw the content of the pictures and none could identify persons who pictures. had The displayed trial court instructed to not let this incident affect its deliberations in any a way and then declared recess for lunch, lunch. After at m., about 2:15 p. the trial interviewed appellant, counsel, appellant’s and the prosecutor his chambers. The trial court informed appellant if his that attorney’s motion for a mistrial were he granted, could be tried again. Alter- appellant could withdraw natively, the motion for mistrial cautionary and request However, instruction. if appellant chose pursue course, to the latter he would waive his right grounds appeal any prejudice generated this by incident. and his Appellant counsel then conferred privately for a few minutes and the possible canvassed alternatives. discussion, After this appellant’s counsel informed court that his client wished to withdraw his motion for mistrial and the following occurred: interchange . .

“[Appellant’s . your is opinion as counsel]: [W]hat to whether or not think you Jury prejudiced is or to continue with the Motion for wish you

whether or wish to withdraw the Motion for mistrial, you whether or with a instruction? cautionary proceed mistrial and it with the cau- proceed would prefer I “[Appellant]: instructions. tionary that that by doing you understand you [D]o

“[Counsel]: limiting rights certain realistically effectively and are if you are found particular have on might appeal, you we we Jury, appeal if take an and convicted guilty to claim as a any prejudice be able not in will not have seen or jurors may may those anything result of in their minds as result thought have may they anything saw, we because thought they saw or of what over it at this gone and we have thoroughly this discussed it, I and want the you have discussed and point, you with the trial with proceed in order to withdrawn Motion Jury. I do understand this. [Y]es, “[Appellant]: that, that is still understanding your [A]nd “[Counsel]: wish? I this is what would like do.” [Y]es,

“[Appellant]: whether he had appellant fully trial court also asked and still desired to withdraw the alternatives contemplated mistrial; responded affirmative- appellant motion for a the the case would proceed. court then stated that The trial ly. the trial court to Commonwealth asked At this the point, motion; the prose- to withdraw request deny appellant’s courtroom, the polling the the “clearing cutor stated that afternoon, in session Chambers Jury, lengthy cautionary as instructions anticipated well as Moreover, the Commonwealth.” well very prejudice could prove decision could appellant’s felt the Commonwealth unspecified developments. event of later unwise sua m., trial court declared mistrial 2:30 p. At about stated: sponte and preju- I think that the you gentlemen, I

“As indicated necessity because of the Jury this entire has permeated dice questioning for the entire Jury and the fact that two of them did see and hear I something; foresee future problems convicted, if he is as his own has lawyer stated.

“Therefore, circumstances, under the the Court feels and holds that there is a manifest necessity to declare a mistrial. The permeated has entire Jury by now as we have indicated. well.” Very

The Commonwealth scheduled a new for 22, March 17, 1976, 1976. March appellant On filed a petition for a writ of habeas corpus the Delaware County Pleas; petition Common alleged that a retrial would constitute double jeopardy. lower court denied this petition and this appeal followed.3 contends

Appellant that he cannot be retried consistently with the federal constitution’s guarantees against double jeopardy. “The Fifth Amendment’s prohibition against placing defendant ‘twice in jeopardy’ represents a consti- tutional policy for the finality defendant’s benefit in . criminal A proceedings. power government to subject the individual to repeated for the prosecutions same offense would cut into deeply the framework of procedural protec- which tions the Constitution establishes conduct of a criminal trial.” Jorn, 470, States 479, 547, 554, S.Ct. (1971) L.Ed.2d 543 (plurality opinion); Shaffer, 288 A.2d Multiple prosecutions subject a defendant to “embarrass- ment, expense and ordeal and him to [compel] live in a continuing state of anxiety and insecurity, as well [and possibility that even though innocent he may enhance] The lower court certified in its order that involved controlling question of law as to which there was a substantial ground opinion for difference of and the resolution which would materially litigation. advance the August termination of the On agreed appeal. July we to take this See Act of P.L. V, Parenthetically, No. art. 17 P.S. § 211.501. I § note Supreme that our Court has reviewed a denial of a writ of habeas corpus alleging that jeopardy a retrial would constitute double with explaining jurisdiction. out the basis of its See Stewart, 447, (1974), denied, 949, 317 A.2d 616 cert. 417 U.S. 3078, nom., affirmed, sub 41 L.Ed.2d 670 United States ex Hewitt, rel. Stewart v. (3rd 1975). 517 F.2d 993 Cir. 346 Green v. United 184, 355 U.S. guilty.”

be found See also 223, 2 L.Ed.2d 199 187-88, 78 S.Ct. Dinitz, 600, 96 47 v. 424 U.S. S.Ct. United States v. Superior ex rel. Russo States United (1976); 267 L.Ed.2d 1973) 7 Cir. cert. denied Jersey, of New (3rd 483 F.2d a mistrial 38 L.Ed.2d 315. When 94 414 U.S. S.Ct. his trial right “valued declared, a defendant’s is unduly compro bemay a tribunal” particular completed 834, 837, Hunter, 336 U.S. Wade v. S.Ct. mised. Dinitz, supra. v. (1949); United States 93 L.Ed. Perez, 579, 580, 6 States 9 Wheat. In U.S. articulated the stan- Mr. Justice STORY (1824), L.Ed. retrial, a declara- following whether determining for dard objection, constitutes mistrial over defendant’s tion of a jeopardy: double nature, the law has think, in all cases of

“We authority discharge with the justice courts of invested whenever, verdict, opinion, their giving any from consideration, into there is the circumstances all taking act, justice the ends of public for the necessity manifest to exercise a sound are They otherwise be defeated. would it to define all impossible and is subject; on the discretion it to interfere. circumstances, proper which would render used with the sure, ought greatest be power To be for and circumstances, very plain and caution, urgent under should cases; Courts especially, cases capital obvious and interfere with they any how extremely careful all, life, But, after prisoner. in favor of the chances discharge; security to order the right have the faithful, and conscien- have for the sound the public which discretion, rests, this, as in other of this tious exercise their cases, judges under upon responsibility Pennsylvania The United States and Su- of office.” oaths to this adhered consistently Courts have formulation preme formu- mechanical abjured application any and have Clause. Jeopardy of the Double detecting violations lae Somerville, Dinitz, Illinois United States supra; See Downum v. (1973); 35 L.Ed.2d 425 458, 93 S.Ct.

347 States, 734, 4033, United 83 S.Ct. 10 L.Ed.2d 100 v. (1963); Bartolomucci, Commonwealth 338, 468 Pa. (1976); A.2d 234 Commonwealth ex rel. Walton v. Aytch, 172, 466 Pa. 352 A.2d 4 (1976). However, in Illinois v. Somerville, supra 1066, 1070, at 93 S.Ct. the United Supreme suggested States that a general approach, premised on the of policy protecting public ends of justice4 enunciated Perez, States v. could be distilled from its cases on double “A jeopardy. trial exercises properly his discretion 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 appeal procedural an obvious error in the trial.” Pennsylvania United States and Supreme Courts have also cautioned trial courts “always temper the decision whether or not to abort the trial by considering the impor- tance to the defendant being able, of once all, and for conclude his confrontation with society through the verdict aof tribunal he might believe to be favorably disposed to his Jorn, fate.” United v. States supra, atU.S. 91 S.Ct. 558; Commonwealth ex rel. v. Walton Aytch, supra; Shaffer, supra. Any doubts as to the propriety declaring of a mistrial over objection of a defendant must be resolved in of favor liberty citizen. Downum v. United supra; Commonwealth Bartolomucci, v. supra; Commonwealth ex rel. Walton v. Aytch, supra. See also United States ex rel. Russo v. Superior Court of New Jersey, supra.

In considering guidelines suggested v. by Illinois Som- erville, I supra, note first that if appellant’s first trial had

proceeded completion and resulted in a verdict of guilty, could appellant attacked conviction on the injection discovery 4. When case involves the possibly of a element, prejudicial inquire a court should whether “the ends of or, justice” public precisely, public’s more “the interest fair trials designed just judgments”, Hunter, to end in Wade v. 336 U.S. justifies 93 L.Ed. 974 the declaration of a Bartolomucci, supra. mistrial. See Commonwealth v. See also Illi Somerville, supra; nois Robson, v. v. Commonwealth (1975); Stewart, supra. A.2d 573 Commonwealth from the stemming exposition possible grounds consultation with his after Appellant, the photographs. court, very preference made clear his and the counsel right to waive any the trial and his decision completing caused possible prejudice grounds binding. would have been waiver Appellant’s incident. Stewart, Cf. Commonwealth supra. Commonwealth the (1972). Accordingly, 741 187, Pa. 296 A.2d 449 Agie, the of future possibility considered erroneously trial court a failure to declare a from arising on problems appeal to be mistrial; “would have reversed on guilty a verdict error in the trial.” an obvious procedural due to appeal Somerville, 464, at 93 at v. 410 U.S. S.Ct. Illinois supra, 1070.5 a Somerville, intimates that trial

Illinois v. also supra, a if to declare mistrial exercises his discretion judge properly Thompson be reached. See also verdict cannot impartial an States, 39 L.Ed. 146 155 v. United States, United 148, 12 v. 142 U.S. S.Ct. (1894); Simmons Stewart, supra, Commonwealth In L.Ed. trial court’s decision abort reviewed a our Supreme verdict could not be reached. The an impartial trial because of murder. After trial was accused defendant Stewart that the victim’s father commenced, the trial court learned The attending jurors. as a employed tipstaff defendant, after consultation with that the ascertained court trial; with the defendant to continue desired attorney, on the issue of stem right appeal waived any tipstaff between the jury. the connection ming from a mistrial sua sponte. Nevertheless, the trial court declared corpus for a writ of habeas then filed a Defendant Somerville, supra, afford Commonwealth of Illinois 5. The facts case, a trial court declared mistrial sua In that comfort. little a valid in an indictment made sponte that a defect when it learned jurisdictional under Illinois impossible. The defect was conviction Supreme The Court held could not be waived. law and by allowing justice” public served trial to would “ends certainty. be a See also would when reversal continue Stewart, opinion by supra. (Dissenting Justice Commonwealth ROBERTS). alleging that retrial would constitute double jeopardy; petition. lower court denied this On appeal, Supreme Court affirmed the denial of the corpus, writ of habeas but a majority the court could not on an agree opinion support of its decision. Chief Justice JONES, in an opinion joined by Justices EAGEN and POM- EROY, invested the trial court with a broad range discretion to declare a mistrial when prejudice might bias a deliberations. jury’s See Gori v. 367 U.S. 6 L.Ed.2d (1961).6 S.Ct. NIX, Justice in an opinion joined Justice by POMEROY, focused on the highly prejudicial nature of the tipstaff’s with relationship “In jury: my exposure view the to the deceased’s father was so with pregnant the possibility of improper influence, the trial properly declared mistrial

. very nature of the crime involved and the held the deceased’s position father created an air of so as to demand a impropriety great mistrial.” 456 Pa. at O’BRIEN, 317 A.2d at 621. Justice also wrote concur- 6. In 367 U.S. Gori United 81 S.Ct. 6 L.Ed.2d 901 Court, 5-4, (1961), Supreme particu- the stated that trial had larly broad discretion to declare a mistrial when he in acted the sole However, Jorn, of supra interest the defendant. in United States v. HARLAN, at speaking 400 U.S. Mr. Justice Court, approach three other of employed members the stated that the policies underpinning jeopardy Gori subverted the the double provision. “Reprosecution unnecessarily after mistrial has been by obviously subjects declared the trial court the defendant to the personal insecurity regardless same strain and of the motivation underlying BRENNAN, judge’s (Mr. the trial action.” Justices BLACK and Gori, join dissenters did not Mr. Justice HARLAN’s plurality opinion Supreme because believed the Court lacked jurisdiction.”) States, supra; See also Downum v. United United Superior Jersey, supra; States ex rel. Russo v. Court of New Walden, (4th 1971); States v. 448 F.2d 925 Cir. United States v. Burdick, (E.D.Pa.1968); F.Supp. Shaffer, plurality supra. supra, agree opinion Jorn, I with the in United States v. analysis policies that Gori’s eviscerates the the behind Double Moreover, Jeopardy factually Clause. I believe the instant case is distinguishable from Gori because in the Gori defendant did not objection incident, prejudicial waive his to the object he did not mistrial, the declaration of the and question the lower court did not jurors prejudice the and discover that the of extent the was minimal. Shaffer, supra. See Commonwealth v. See also infra. underlined the circumstanc- special in which he ring opinion justice the of would be appearance in the case: es involved the father of a to allow homicide if a court were sullied officer with access to the jury. as a court victim serve ROBERTS, for Justice MANDERI- speaking Justice Finally, trial court that the argued, part, dissented and NO, prejudice to the of possibility as speculated impermissibly to ferret out all reasonable alternatives did not exhaust and Moreover, the court im- any eliminate prejudice. and possible prejudice upon its fears about imposed properly to waive to the any objections willing counselled defendant father as tipstaff. of the victim’s role were Justices NIX and O’BRIEN the votes of Because obtain a in Commonwealth majority in order to necessary turns on the Stewart, highly prejudi- I that believe Stewart the conduct of the trial and infecting of the error cial nature Stewart, In contrast justice.7 of the appearance case in the instant must be con- possibility trial court examined the jury minimal. The sidered not one saw content juror actually discovered who identify persons could held the or pictures displayed proceedings in the trial disruption photographs. short; jurors consumed a brief the polling quite and the interview in chambers after lunch of time amount short, attempted minutes. In expo- fifteen only lasted of the victims to the was not “so pictures jury sure of influence,” Com- possibility improper with pregnant Stewart, at at supra A.2d monwealth NIX), of Justice so offensive to the (Concurring opinion to have his appellant’s right fate justice appearance first should be impaneled compelled determined interest in fair trials to end designed to “the public’s to yield Stewart, supra, eventually in filed 7. The defendant Commonwealth corpus petition The in federal district court. district court habeas and, appeal, the Third Circuit affirmed. Stewart’s denied Hewitt, (3rd 1975). F.2d Cir. rel. Stewart v. United States ex Circuit, O’BRIEN, emphasized NIX and like Justices The Third prejudice tipstaff’s exposure great potential in the to the inherent public appearance impropriety would have jury that the and stated jury. necessarily infected Hunter, Wade v. just judgments.” at supra, 837; Somerville, at S.Ct. Illinois v. supra. The trial court should not have overridden appellant’s counselled decision to withdraw his motion for a mistrial8 and to waive any objection possible prejudice stemming from the incident. Shaffer, 447 Pa. 288 A.2d 727 (1972), provides controlling precedent for our consideration of Shaffer, In the trial appeal. court declared a mistrial sponte sua over defendant’s when objection the Assistant District in a Attorney inquired voice audible to the jury: “Is the man with the records here?” After being convicted at a retrial, defendant appealed the Supreme Court vacated judgment his of sentence because the trial court’s declara “ tion a mistrial deprived defendant of his ‘valued right to ” completed trial aby particular tribunal.’ at 288 A.2d at 733. See also United Jorn, States v. Hunter, Wade supra; supra. Shaffer,

In our Supreme Court allowed the defendant to measure the amount of prejudice caused to his case and to decide he whether wanted the trial to continue. I believe that Stewart only displaces defendant’s right to have his completed impaneled first jury when an error is so manifestly as to prejudicial necessarily poison the jury’s to bring deliberations or the processes of justice public into disrepute. putative prejudice case, the instant as in Shaffer,9 is this magnitude. as Resolving, must, we as doubt to the any of the trial propriety court’s decision to abort the favor proceedings of the liberty citizen, Downum United supra; Commonwealth v. Barto lomucci, supra; Commonwealth ex rel. Walton v. Aytch, appellant’s objection; The trial court declared a mistrial over it is constitutionally appellant time, of no moment had at one before questioned jury, requested the trial court a mistrial. United Superior States ex rel. Jersey, supra; Russo v. New Com- Shaffer, supra. monwealth v. may very 9. The in the case before us well have been less Shaffer, supra, questioned harmful than in since the trial court juror and determined that no had observed the content of the pictures. for a we grant appellant’s must I believe supra, discharged.10 and order him corpus writ of habeas dissenting in this SPAETH, J., joins opinion. 385 A.2d 1376 BRANNAN, Appellant, Stephen Neal, M.D., Eugene HOSPITAL, B. Hunter S. LANKENAU West, Jr., M.D., M.D., Appellees. Rex, F. Clifton Pennsylvania. Superior Court Argued Dec. 1976. 28, 1978. April

Decided my appellant’s Implicit federal constitutional conclusion necessity” my is there was no “manifest belief that claim has merit pursuant 1118(b), supra. to Rule justifying a of a mistrial declaration

Case Details

Case Name: Commonwealth v. Bycer

Court Name: Superior Court of Pennsylvania

Date Published: Apr 28, 1978

Citation: 385 A.2d 1367

Docket Number: 2314

Court Abbreviation: Pa. Super. Ct.