*1 Appellant. v. Lauria, October Before 2,1972. Argued Jones, Eagen, O. J., Nix Pomeroy, O’Brien, Roberts, JJ. Manderino, *2 Bar- G. him Lichtenstein & Freeland, Wendell with appellant. tiromo, for Attorney, Campbell, L.
Robert Assistant District Attorney, Mary District Los, with him Carol Assistant Attorney, Duggan, for Com- and Robert District W. appellee. monwealth, by 19, December O’Brien, Mr. Justice :
1972 Appellant, together a with was co-defendant, charged operating lottery conspiracy a and to do with alleged co-conspira- Appellant his an unlawful act. and jury a came waived trial and to trial before tor February judge 1970. At the conclusion for case counsel the two chief, Commonwealth’s demurred to Commonwealth’s evidence Defendants point, colloquy applied appellant. it At that a to as among district court, the assistant to ensued as what evidence the Com- defense counsel against appel- in chief was admissible monwealth’s case hearsay. colloquy lant and what was excludable as declaring concluded the trial court a mistrial, with sponte, certainly on the basis Court has that “the heard great a of that not be amount evidence would admissible, including prior the fact of a criminal record and addi- tionally the of Court finds there is a conflict representation in the both a defendants single attorney.” again the case came to Thereafter, jury. Appel- this time a trial, before another guilty charges lant was found of both and was sen- subsequent post-trial tenced dismissal his motions. appeal Superior An in affirm- Court resulted judgments equally ances of sentence an divid- Superior ed Court, with one member that Court fil- ing opinion. dissenting Lauria, Commonwealth v. Superior (1972). granted Pa. 2d Ct. 289 A. We allocatur and we reverse.
Appellant argues sponte that sua the declaration of a in mistrial the first a trial constituted violation of Pennsylvania 1118(b) of Rule Criminal Procedure and any in that, the second event, trial constituted double jeopardy, necessity since there nowas for the manifest sponte sua declaration of a mistrial in the first trial. Appellant questions concerning also raises a of conflict part on the of trial defense the suffi- counsel, ciency conspiracy of the evidence and whether the charge merge charge operating should the into of lottery. sponte Since we conclude that the declara- by tion a of mistrial the trial court was in violation of Rules the of Criminal Procedure and the second jeopardy, trial, therefore, constituted double we need any allegations not consider of the other of error. Pennsylvania Rule Rules of Criminal “(b) Procedure A states: motion to declare a mistrial prejudicial be shall made when the event is disclosed. only In all cases the or defendant the for the may move for a mistrial.” with, of the dissent the writer in are agreement We only “not excludes the rule that in Court the Superior of a mis- but a grant the Commonwealth a motion motion.” own court its trial the A. 446 Pa. v. Ferguson, “manifest the standard we discussed (1971), 2d there We of mistrials. in the declaration necessity” States Supreme United the the quoted language 470 (1971), 400 U.S. Jorn, States in United Court always must the judge “. . in the final analysis, that: . trial abort or not to the decision whether temper of be to the defendant considering importance confrontation conclude his once and for all, ing able, he might of a tribunal the verdict society through with fate.” to his favorably disposed to be believe circumstances which that held Ferguson We insufficient of the mistrial were induced the grant It the judgment. and arrested necessity show manifest circum- to examine the necessary was Ferguson aof mistrial led to the declaration stances which up ante-dated the promulga- because the trial that case Procedure. of Criminal tion of Rule 1118 the Rules on January 24, rule Court That was this adopted by more than became August 1, 1968, and effective one one-half before the first trial years appellant. in- and its The of the rule is obvious clear, language to remove from trial is, judges tendment inter alia, to declare mistrials sua sponte. power reversed, order of the Court is Superior discharged. are arrested judgments appellant *4 Eagen con- and Mr. Justice Mandeeino Mr. Justice in cur the result.
Concussing Mb. Justice Robeets: The concludes that Pa. R. Crim. majority correctly trial was violated the court’s sua sponte P. of a mistrial without consent. appellant’s declaration 76
The seems also to assume that correctly majority mistrial was declared without “manifest necessity”. Jorn, United States v. 400 U.S. 91 Ct. 487, S. 547, Pa. (1971); Shaffer, 91, 101, 288 A. 2d on other (dissents (1972) grounds).
The somewhat majority opinion is, however, ambig- uous to it as whether is the failure trial court to with Rule or the absence of a comply 1118(a) “manifest necessity” which second trial. precludes my view the second trial is on either prohibited ground.
The trial court the course of the trial felt during to declare a mistrial in compelled because of part apparent counsel’s conflict of representing two It defendants. be to direct might perhaps helpful attention to the ABA on Project Standards for Crimi- nal Standards Justice, Relating to the Function of the Trial §3.4(b) which Judge, (Approved Draft, 1972), “Whenever two or more provides: defendants who have been or jointly charged, whose cases have been consoli- are dated, the same represented by attorney, trial should into inqudre potential which may conflicts jeopardise each to the right fidelity his counsel” (Emphasis supplied.) The commentary Section 3.4(b) suggests that the trial court should determine to trial prior whether joint by the same representation attorney created a conflict interest. potential The commentary offers “A these waiver guidelines: right separate should not be representation accepted by the court unless the have each been fully defendants informed of and the probable hazards; voluntary character of their waiver is apparent.” (Emphasis supplied.) See ABA Project also Standards for Criminal Justice, to the Relating Standards Prosecution Function and the Defense Function, Defense Function, §3.5(b) 1971). Draft, (Approved Nix joins
Mr. Justice this concurring opinion. *5 Dissenting Jones: Mb. Chief Justice language fully cognizant con- I am While Pennsylvania 1118(b) Rules in Rule tained majority from the I must dissent Criminal Procedure, view this matter. only provides “In all cases that:
Rule may move for the defendant or the defendant added.) (Emphasis itself re- The Rule for a mistrial.” a Mistrial.” “Motion to Declare fers in its title to judges my intended to restrict the Rule was never view, sponte, of a mistrial. the declaration them, only in the “motions” “motions”; The Rule refers by parties or counsel Rule are made context of the pass upon is to function it not the court whose “'motions”. my Rule not and should belief that this does
It is appro- judge power deprive under of his inherent not justice priate in the interest circumstances and re- record A of the instant declare a mistrial. review right judge, protect this in order to that the veals very impartial trier foot, to a fair majority properly re- view a mistrial. declared protecting of a who was the action verses judicial right tradition. in the finest defendant’s I dissent. Pomeboy in this joins dissenting opinion.
Mr. Justice Appellant, Wanamaker. monwealth, Com