Commonwealth v. Leister

instructions, accept Rather than de- these Packel, John Assistant Public W. Defend- fense, chose, instead, challenge the er, Philadelphia, appellant. for judge’s trial of narration events.6 Gardner, Peter Assistant J. District Attor- first, judge grew trial in- Tolerant at Com., ney, Philadelphia, appellee. irate, until, creasingly finally, he denounced POPOVICH, Before STEVENS and' addition, proceedings as futile. MONTEMURO*, JJ. judge trial suffer abuse claimed to de- Admitting fense that he had counsel. STEVENS, Judge: adopted personal, condemnatory opinion a of appeal This is an from the order of the approach strategy, the entire defense Philadelphia Court of Common Pleas of judge trial recused himself declared a County denying Appellant’s motion to bar sponte. mistrial sua Herein, jeopardy grounds. retrial on double began, Appellant Before a new moved Appellant judge the trial contends that im- retrial, relying jeopardy to bar the double on properly sponte declared a mistrial sua with- provisions of Federal both the and State and, therefore, out necessity,” “manifest that jeopardy Though Constitutions. had at- judge’s judicial the trial actions constituted judge himself, tached before recused the trial preventing Appellant’s misconduct retrial. Culpepper, See Commonwealth v. Pa.Su- We affirm. (1972) per. 472, (jeopardy 293 A.2d undisputed. The facts this case are On jury attaches in a case a when the without 9,1996, July proceeded Appellant to a bench subjected charge accused to a been has charges corrupting trial on the of the morals evidence),. hear begun court has minor,1 assault,2 of making a indecent terror- lower court denied the motion. The trial threats,3 witness,4 intimidating istic a and judge found the mistrial issue within an ex- against During retaliation a witness.5 a com- ception jeopardy prohibition, to the double petency hearing to determine testimonial and held that for recusal mani- the need six-year-old alleged fitness of the victim as festly necessary. Opinion, Lower Court subsequent well as the child’s testimo- appeal This followed. 6/27/97. ny, employed defense counsel abusive trial standing only judge’s tactics. It While several feet is within the discre witness, mistrial, and, tion from the child defense counsel ob- to declare a. absent an discretion, jected presence of of no to the the witness’ child abuse that reversal of its advocate, exercise will Commonwealth v. accused the Commonwealth of result. Gains, witness, repeated coaching questions Pa.Super. 556 A.2d 870 answer, Nonetheless, judge may the witness could not called the wit- a declare a only incompetent, quarreled oppos- sponte manifestly ness mistrial sua when necessary ing public justice or ends of counsel. The result counsel’s tactics where the * Superior § assigned Retired Justice Court. 18 Pa.C.S. 4952. 5. § 1. 18Pa.C.S. 6301. Contrary to the conclusion reached in the dis- sent, nothing there the record to indicate §

2. 18 Pa.C.S. 3126. merely seeking that defense counsel was instruc- § 3. 18Pa.C.S. interrupted tion from when counsel and declared a mistrial. § 4. 18 Pa.C.S. 4952. exert particularly a must when defeated. United States be would otherwise (22 U.S.) 579, Perez, a bench trial demands. 6 L.Ed. 165 9 Wheat. broad discretion Smith, (1824); Balog, supra. also Commonwealth Pa.Su See Commonwealth Where 535 A.2d per. Berrigan, (1987) necessity” (holding for a trial while a need there is “manifest sponte, neither the sua where his bias never mistrial declare have declared jury, necessity Fifth Amendment to the United States Con his recu- required infected I, § Pennsylva nor 10 of the stitution Article “one without during sentencing allow sal nia will bar retrial. Common appellant” Constitution to exer- animosity hint toward wealth, Aytch, rel. ex. Walton ... “largely discre- cise unfettered such (1976). However, any doubt A.2d tion.”). at 104. Id. necessity declaring a about the manifest to leads this Court con- record here The must resolved in the defendant’s mistrial be trial, Appellant’s bench the during clude Diehl, 214, 532 favor. v. Pa. Commonwealth reacting per- he presiding judge, to what (1992). 217, 690, A.2d 691 615 pro- tactic of continuing a defense ceived as no Reviewing use mechanical for courts intimidation, cedural abuse and witness in a trial court determining mula whether fairly ability preside to his own doubted a had a manifest need to declare mistrial. Specifi- effectively and recused himself. thus Rather, .vary “.. Balog, 576 A.2d at 1095. cally, concerns judge the articulated his ing unique aris[e] often situations ability he impartial to remain when about his the criminal the .[and] course a trial.. getting anywhere, are “we not stated judge trial broad discretion to the reserved doing things that here don’t like the consistently in has such circumstances been that, something like .... do When reiterated_” Somerville, Illinois v. 410 put up going I’m not don’t like it here. 458, 462, 1066, 1069, U.S. 93 35 L.Ed.2d S.Ct. it_ today_ You abused (1973). 425 Far more conversant with the mistake,” pp. big N.T. 31-32. is a This 7/9/96 factors relevant to the determination than judge, factual basis before the we Given the be, any reviewing possibly trial court can the judicial sincerity this the cannot doubt authority is in his or judge, who the foremost response.7 courtroom, usually best-positioned her is necessity in determine recusal judge’s deci though Even trial Hunter, ease. 336 U.S. individual Wade these circum a mistrial under sion to declare (1949); 684, 834, In 69 S.Ct. 93 L.Ed. 974 deference, great See stances is entitled to Morrow, 339, Pa.Super. 400 583 Interest of 497, 824, Arizona, S.Ct. 54 434 98 U.S. 816, This principle assumes (1978), inquiry our does not end L.Ed.2d great weight involves how the when issue still “sound judge A must exercise there. presentation conduct of of evidence or the by declaring a consid in mistrial discretion” parties affects trial’s Ari a fact-finder. See contributing to ering those factors 497, 514, Washington, zona v. 434 U.S. possible remedies less problem as well as 824, 834-35, (1978); 54 L.Ed.2d S.Ct. Diehl, at a 532 Pa. than mistrial. drastic Smith, 51, Commonwealth Indeed, 217, it is when 615 A.2d at 691. 888, 467 A.2d completely acts reasons unre judge “... purports to problem to the trial which judges When doubt their own abili lated ruling [that] the mistrial ty adjudicate impartially, they should re- be the basis for Ari scrutiny appropriate.” is Boyle, appellate close cuse themselves. Commonwealth at (1982); zona, n. 98 S.Ct. 832- 486, 490, 434 U.S. at 510 447 A.2d Appellant argues Morrow, 717. 33 n. 54 L.Ed.2d 583 A.2d at Such Interest of requisite judge objective' the trial abandoned inability an creates a manifest be declaring a mistrial, by of sound discretion necessity for of a exercise the declaration following judge clearly election to debate the be- counsel’s record shows confrontation The judge judicial and defense counsel instructions. tween emotionally case, especially charged defense ly Transp., Pa. by rather than Pa. Southeastern attempting defuse (1985). However, with a recess. unlike the disagree. matters We Reilly, animosity in this circumstances Appellant misconstrues the manifest developed during AppeEant’s case own case necessity judge to require standard to case, in an direct- rather than unrelated choose, practicable, whenever an alternative strategy ed at defense rather than the entire However, than “mani less drastic recusal. counsel, merely was can- at defense necessity” proof require fest does not that a didly judge. the trial The with- admitted only option judge. mistrial was the facing therefore, ease, distinguishable Rather, Supreme the United States Court Reilly. reviewing has indicated courts should Accordingly, we find that the trial strict, assign literal definition to the judge abused his made neither discretion nor “necessity.” Instead,

term the courts should sua declaring an law in error of a mistrial simply insist that a trial first consider sponte. There was manifest necessity per options declaring less drastic before a mistri act, Arizona, Appel mitting the to so al. 434 U.S. at at S.Ct. jeopardy was not lant’s avoid double 54 L.Ed.2d 717. Where the record reveals Accordingly, violated. we affirm. consideration, allays any such the trial appreciate gravity he fear that failed to Affirmed. of a defendant’s valued have his fate to one tribunal. See United in determined POPOVICH, Dissenting opinion by J. Jorn, States 400 U.S. S.Ct. POPOVICH, Judge, dissenting: (1971); Arizona, supra. L.Ed.2d review, Upon I respectfully must dissent case, judge the within trial the opinion majority. from the of the I cannot only measures, not considered less drastic my agree eoHeagues’ learned conclusion with but exhausted in also those measures at that the court exercised discre- lower “sound Indeed, tempting adjudicate fairly. to before recusing a mis- granting tion” in himself and recusal, judge the trial called the tumultuous reviewing transcript, I trial. the trial After proceeding to recess a shaken and allowed proceedings am that far convinced the were child witness time to collect The herself. “tumultuous,” counsel from and that defense judge trial could have recusal at considered judge. upon inflict “abuse” did not the trial favored, in point proceedings, that but he Further, any I am as while as concerned instead, temperate route of admonish sensitivity jurist particular with about Only ment and instruction. the failure after six-year-old which examination of a vic- oral judge drastic trial less measures did the conducted, tim must be am not convinced turn to mistrial as a solution. speeifieaEy that to defense undertook Moreover, judge allayed witness, the trial fear the child her to intimidate reduce Appellant’s that he failed to consider interest testify. her Rath- tears or render unable to standing er, in one tribunal when he simply designed to counsel’s actions were acknowledged, record, Appellant on the protect rights constitutional defen- of the “suffer consequences” would of defense dant. p. counsel’s abusive tactics. N.T. 7/9/96 transcript no The trial this case is Thus, significance Appel- of a twenty-nine lengthy, consisting means apparent

lant was to the trial one col- pages, with three-and-one-half-inch obviously into his decision. factored There- N.T., double-spaced type per page. umn of fore, we convinced that the 7/9/96, pp. began 4-33. The trial with a acting “sound exercised discretion” before request the Commonwealth clear the from this matter. N.T., 7/9/96, courtroom, granted. which was Finally, Pennsylvania pp. we note that the Su- A discussion between counsel and 4-5. preme animosity, concerning Court has ensued court’s held that stand- the court then alone, permit ing lawyer representative between a decision to Reilly by Reil- to a in the irrelevant recusal issue. Crisis Center to remain Women’s Heather, your birth- you remember do testimony, stand the child’s courtroom year? touch date this direetly the vic- behind the victim 7/9/96, N.T., pp. 5-7. her chair. tim and Yes. THE WITNESS: permit- Despite objection, counsel’s date What was the MS. CARPINO: standing behind the the woman remain ted birthday again? your 7/9/96, N.T., testimony. during her victim February 19. THE WITNESS: 6-7. PP- February or 16? MS. CARPINO: Next, of the the Commonwealth examined THE WITNESS: purpose of deter- six-year-old victim for the Objection. MR. SCOTT-SEDLEY: N.T., testify. competency her mining Objection THE sustained. COURT: 7/9/96, pp. 8-15. Defense counsel did February 16. THE WITNESS: voir during the Commonwealth’s intellect then examined dire. Defense counsel you about that? Are sure MS. CARPINO: and, upon completion, competency child as February 16. THE WITNESS: objected being permitted to the to testi- child you old turn How did MS. CARPINO: 7/9/96, N.T., The found fy. pp. 15-21. February? competent testify. child THE Six. WITNESS: compe- Following reopening of the brief any- Do remember MS. CARPINO: determination, be- tency the Commonwealth your night at thing happened at house of the child. The entire gan its examination February birthday, your after after of the trial follows: remainder Harry? you. MS. CARPINO: Thank to talk I don’t want THE WITNESS: Heather, to turn around and want about it. guy right at in the

take a look there to talk You want MS. don’t CARPINO: green shirt. about it. Defense counsel— to talk I don’t want THE WITNESS: about it. pointed that I Let the record reflect the defendant. it. about You have to talk MS. CARPINO: is, You you very know who he Heather? is a nice man. Okay,

Do him. need to tell THE WITNESS: Yes. I to. don’t want THE WITNESS: is his name?

MS. CARPINO: What Heather, Harry do did MS. CARPINO: Harry. THE WITNESS: you? something to Harry. you How do MS. CARPINO: Yes. THE WITNESS: Hzrry know ? [sic] Har- what Tell MS. CARPINO: Harry your friend? Is mom’s ry you. did to Judge, is if she MR. SCOTT-SEDLEY: I to. don’t want THE WITNESS: competent, need be led. she doesn’t have You You have to. MS. CARPINO: No, see that as— I don’t THE COURT: to. follow, I logically and will that doesn’t have good You He is a man. Tell him. permit leading. some to tell him. you. Thank MS. CARPINO: to ob- going I’m MR. SCOTT-SEDLEY: said, thing I the main THE COURT: Like she point. It could be because ject this at is, from Heather. I want hear to tell the truth. being is admonished Very well. MS. CARPINO: very well be It could MS. CARPINO: a six- is you have like the mother intimidated. She THE COURT: If she is because year-old child. here— record Let SCOTT-SEDLEY: mom is here. She’s MR. CARPINO: The MS. in front standing right I’m reflect that testify. going to Well, then, my My very client. client well be MR. couldn’t SCOTT-SEDLEY: her, intimidating Judge, me ask that—- could he? let I’m you THE No. I’ll tell I am COURT: what Let the record reflect that give you do. I will' this going put a— my the line of vision of client. in B Put this in B are Court. Court. We See, your you just THE COURT: lost anywhere, getting I not and don’t like girl got crying, situation. I have a little you things doing are here. you your bickering and are about client. myself. I’ll Put it in B recuse Court. good. No that, don’t you something When do like I upset. The child is now and I crying I’m going put it up like here. a recess in this call case. recusing myself, in B put it. I am and it Heather, break, okay? let’s take a Court. you, Take Heather with counsel re- my edifi- MR. SCOTT-SEDLEY: Just place. main in cation, room, colleague I my being (The excused) child is bearing it. don’t know what that has on May I MR. SCOTT-SEDLEY: ask that do, you THE COURT: don’t owe sequestration order remain? you explanation, getting an are not THE COURT: You what that is. know one.

You can’t talk You about the case. cannot Your today. the Court You abused you discuss and cannot discuss the child’s reap consequences. client those You’ll will testimony. big go to B Court with this. This is a

Now, may the child leave. mistake. Now, Sedley, you Mr. about a foot I will were MS. CARPINO: file an oral child, her, away possible tower over and ask for the earliest date. Carpino, thing. and Ms. You the same are THE CRIER: How much time do forth, arguing back and now the child take, expect going ease is because really upset, crying. You and starts they going question? to ask that argue way can’t with a witness child We have two wit- MS. CARPINO: other room, is, happens because what nesses, long. but not real About an hour. her down. breaks concluded) (Hearing , Now, it, okay, we will come back to N.T., 7/9/96,pp. 25-33. may put anything you you on the record agree a certainly majority I with the that want. grant has the discretion to a Judge, I a MR. SCOTT-SEDLEY: sponte manifestly mistrial sua when such is away three child. good feet from the public necessary justice or the ends of would I’ll I’ll give you THE COURT: one. defeated, otherwise be and we will not dis you away. three feet give absent an turb that decision abuse of leaning MR. I was SCOTT-SEDLEY: Perez, United States v. 9 discretion. Wheat. against deliberately, deliberately, here 579, (1824); 580, 6 L.Ed. 165 Commonwealth Judge, so as her. I not to intimidate did Bartolomucci, 338, 468 Pa. 234 v. 362 A.2d deliberately to allow her the freedom (1976); Gains, Commonwealth 383 Pa.Su quotes, testify freely to to Court. 208, (1989); per. A.2d 556 870 Common 158, Balog, THE COURT: And what I could do is to wealth v. (1990). Further, you agree you show how much know about the that a he thing. freedom I’ll have sit at the must himself when he believes that recuse standing impartially and right fairly table. You have no to be cannot hear a matter. 486, Boyle, to have this 498 Pa. there. And have no Commonwealth (1982). Also, lawyer asking agree a other here. You are for A.2d 250 that when side, proceed a everything your impartially, it is unable to to be on jus- manifestly necessary ridiculous. mistrial is to insure Smith, composure counsel. tice. Commonwealth v. 321 Pa.Su- victim’s loss of as defense (1983). N.T., 7/9/96, per. p. 467 A.2d 30.1 However, Second, certainly sympathize we must be that a I can with ever mindful judge’s grant particularly protective a the court’s concern for decision recuse himself and only “scrupulous six-year-old vic- well-being made after a the emotional tim, judicial exercise of discretion.” but I fail to see action which war- United Jorn, 470, 485, Certainly, crying by a States 400 U.S. 91 S.Ct. ranted a mistrial. 547, 557, Any 27 L.Ed.2d assault is not unusual 556-57 child victim sexual counsel, propriety by given doubt in the of a mistrial must be oral examination subject inquiry. resolved favor of the Bartolo- sensitive matter of the accused. mucci, However, supra. judge’s anger While the court’s decision is frustration and deference, great Supreme attorneys, especially entitled to coun- with both defense sel, mistrial, recognized grounds Court has that the failure to con are not for a absent rendering sider less drastic alternatives constitutes an such emotions the court unable Washington, proceed impartially. abuse of discretion. Arizona v. in the record Nowhere 497, 511, 824, 833, 434 U.S. 98 S.Ct. 54 does the court state that it could not lower (1978); Diehl, adjudicatory impartially L.Ed.2d 717 Commonwealth v. execute function its 214, 216-18, Rather, 532 Pa. abrupt 615 A.2d the court’s without bias. sponte appears declaration of a mistrial sua record, reviewing After I am convinced punishment per- to be a for what the court municipal judge’s decision to ceived, reflection, adequate without to be “scrupu- recuse himself was not upon based N.T., 7/9/96,p. “abuse.” Further, judicial lous exercise of discretion.” Third, the court’s appellant’s right decision violated I do not believe that the lower court to control adequately the course to be in the followed considered alternatives to mistri- event of error have his case deter- al. The court declared a recess excused Dinitz, began mined one trial. United cry. States the witness after she Immedi- 600, 609, 1075, 1080, thereafter, ately U.S. 96 S.Ct. the court unleashed his ire (1976); counsel, L.Ed.2d upon special Commonwealth v. both disdain 24, 29, Ferguson, and, only la- defense counsel a few minutes (1971). Therefore, ter, sponte. I am convinced that the declared mistrial sua Not prohibition against jeopardy double re- bars once before the recess did the trial court See, Diehl, (retrial appellant. tactics, trial of supra chastise defense counsel for his trial by jeopardy barred except displeasure double if court its general abused to indicate his N.T., 7/9/96, granting discretion in began cry. mistrial without con- after the witness alternatives). sidering p. appar- less drastic 29. And when defense counsel was ently going to ask the court how it would like decision, rendering my I considered the conducted, the remainder the trial to be First, following: I do not believe that interrupted abruptly informed lower court was “abused” defense going counsel that he was to transfer prosecution manner. both the While judge in case to another another courtroom. may firmly and defense counsel have acted actions, N.T., 7/9/96, p. 31. on such Based child-witness, towards the the record does do not that the court even considered believe substantially not reveal their actions measures, other less drastic much less “scru- deviated from their duties to court pulously exercise his discretion” to declare Moreover, estimation, my their clients. mistrial. defense counsel’s examination of the child sum, overly was neither confrontational nor hos- I am convinced that the lower Adso, important intemperate tile. to note that court’s action was and without expressly recognized court warrant- lower the reflection and due consideration sponte. prosecutor just responsible granting a as for the ed when mistrial sua fact, began cry prosecution’s questions. during 1. In the child the Com- refused to answer the examination, monwealth’s direct when the victim in the absolutely nothing There is record to

suggest applied that the considered or court

less drastic measures. submit that a recess child-victim, coun-

to allow regain composure, coupled

sel all their specific instructions with

regard to both conduct counsel’s have

remainder of trial would remedied Certainly, if such

the situation. measures

failed, the court could have thereafter de- upon

clared a mistrial based “manifest neces- However, present

sity.” circum- under

stances, propriety I doubt of mistrial.

Since we must the issue in the ac- resolve Bartolomucci, favor, supra, I cannot

cused’s determination,

agree majority’s with the appellant

I would find that of would retrial place

impermissibly jeopardy. him twice Matter

In the Nomination Petition BERG,

Phil Democratic Candidate Office of Governor.

Appeal KOZLOFF, of Louis B.

Petitioner. Pennsylvania.

Commonwealth Court

Heard 1998. March April

Decided April

Publication Ordered

Case Details

Case Name: Commonwealth v. Leister

Court Name: Superior Court of Pennsylvania

Date Published: May 21, 1998

Citation: 712 A.2d 332

Court Abbreviation: Pa. Super. Ct.