COMMONWEALTH оf Pennsylvania v. Ronald H. ROBSON, Appellant.
Supreme Court of Pennsylvania.
Argued Dec. 3, 1974. Decided May 13, 1975.
337 A.2d 573 | 461 Pa. 615
JONES, C. J., and EAGEN, O‘BRIEN and POMEROY, JJ., concur in the result.
convict him of felony murder. We cannot agree. Appellant was not charged with burglary and thus the Commonwealth was not required to prove the corpus delicti of that crime.
Milton O. Moss, Dist. Atty., William T. Nicholas, First Asst. Dist. Atty., Stewart J. Greenleaf, Asst. Dist. Atty., Chief, Appellate Div., Norristown, for appellee.
Before JONES, C. J., and EAGEN, O‘BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.
OPINION OF THE COURT
ROBERTS, Justice.
Appellant was convicted in a jury triаl of voluntary manslaughter and sentenced to pay the costs of prosecution and to serve a term of five to ten years imprisonment. In this direct appeal,1 he contends that (1) he
I.
The facts on which appellant‘s double jeopardy claim is based are these. On May 16, 1973, appellant‘s first trial on the charge of which he was convicted began. On May 23, before the completion of the Commonwealth‘s case and during a recess, the trial judge became ill and the trial was continued by the president judge until May 29 in order to ascertain whether the original judge would be able to promptly resume the trial. When informed of the need for this delay, appellant‘s counsel orally moved for a mistrial to avoid the danger of prejudicing thе jury. Action on this motion was deferred until May 29.
At the hearing on May 29, appellant‘s counsel sought to withdraw the oral motion for a mistrial. The president judge, however, stated that he had granted the motion for a mistrial before reading the motion to withdraw it. He also observed that it would be several weeks before the original judge could resume his duties2 and concluded that it would be unfair to both parties and to the jury to continue the proceedings any further. The motion to withdraw the motiоn for a mistrial was formally denied and a mistrial declared. Subsequently appellant was retried and convicted of voluntary manslaughter. The claim that the second trial subjected appellant to double jeopardy has been asserted at all appropriate stages of the proceedings.
Our conclusion on this point is bolstered by United States ex rel. Russo v. Superior Court, 483 F.2d 7 (3rd Cir.), cert. denied, 414 U.S. 1023, 94 S.Ct. 447, 38 L.Ed.2d 315 (1973). In that case, the defendаnt moved for a mistrial at the end of the first day of jury deliberations on the ground that the jury was deadlocked. This motion was denied, but a mistrial was declared after the jury had deliberated for several hours the next day, the trial court expressing the view that the jury was exhausted and that forcing it to continue deliberations risked an unjust verdict. No new motion for a mistrial was before the court, but it asserted that it was “in effect” agreeing to the motion made the previous day. The Third Circuit held that a second trial would violate the double jeopardy clause. In disposing of the contention that retrial was proper because defendant had moved for a mistrial, that court wrote:
“Appellant‘s assessment of his chances with the jury could easily have changed after his request for a mistrial. We see no reason to lock him into a motion once it is made.”
Appellant then argues that it was improper for the court to declare a mistrial sua sponte, relying on Commonwealth v. Lauria, 450 Pa. 72, 297 A.2d 906 (1972). However, in Lauria, no opinion commanded a majority of the Court. Moreover, it has been superseded by Commonwealth v. Stewart, 456 Pa. 457, 317 A.2d 616 (1974). While there was some disagreement in Stewart regarding the effect of
It is well settled that a defendant may be retried after an earlier proceeding has terminated in a mistrial if there was “manifest necessity” for the mistrial. Illinois v. Somerville, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973); Gori v. United States, 367 U.S. 364, 81
“We think, that in all cases of this nature, the law has invested Courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances which would render it proper to interfere. To be sure, the power ought to be used with the greatest сaution, under urgent circumstances, and for very plain and obvious causes; and, in capital cases especially, Courts should be extremely careful how they interfere with any of the chances of life, in favour of the prisoner. But, after all, they have the right to order the discharge; and the security which the public have for the faithful, sound, and conscientious exercise of this discretion, rests, in this, as in other cases, upon the responsibility of the Judges, under their oaths of offiсe.”
While this standard fails to provide specific guidance for determining what constitutes “manifest necessity” for a mistrial, the outlines of that concept become apparent from consideration of the facts in those cases where the question has been decided. We think it clear that illness of the judge preventing continuation of the trial for a period of several weeks at the least constitutes “manifest necessity” for the declaration of a mistriаl. See Illinois v. Somerville, supra (discovery of a defect in the indictment depriving the trial court of jur-
Because the illness of the judge rendered completion of the trial by the original tribunal effectively impossible, there was no method by which appellant‘s “valued right to have his trial completed by a particular tribunal,” United States v. Jorn, 400 U.S. 470, 484, 91 S.Ct. 547, 557, 27 L.Ed.2d 543 (1971) (plurality opinion) (Harlan, J.), could be reconciled with the public interest in obtaining the adjudication of guilt or innocence. It is this factor which distinguishes the present case from those where insufficient weight was assigned to the former consideration when the mistrial was declared. E. g., Jorn, supra; Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963); United States v. Kin Ping Cheung, 485 F.2d 689 (5th Cir. 1973); United States ex rel. Russo v. Superior Court, 483 F.2d 7 (3rd Cir. 1973); Commonwealth v. Schaffer, 447 Pa. 91, 288 A.2d 727 (1972); Commonwealth v. Culpepper, 221 Pa. Super. 472, 293 A.2d 122 (1972).
Appellant places primary reliance on three cases: Commonwealth v. Wideman, 453 Pa. 119, 306 A.2d 894 (1973); Commonwealth v. Ferguson, 446 Pa. 24, 285 A.
In Wideman, a mistrial had been declared by a visiting judge when he discovered that the trial would extend beyond the period he had been assigned to preside in that court. There we held that “a trial judge‘s convenience does not constitute ‘manifest necessity‘” for a mistrial. 453 Pa. at 122, 306 A.2d at 895. Here, the mistrial resulted from the inability of the judge to preside because of seriоus illness, not mere personal “convenience.”
In Ferguson, the mistrial was declared because one of the prosecution‘s witnesses had become ill. There the defense suggested that the trial proceed on those charges as to which the ill witness was not necessary or that there be a brief continuance to obtain a medical diagnosis of the witness‘s illness and an estimate of its probable duration. These suggestions were rejected and a mistrial declared. We held that in the absence of more definite information on the nature of the illness or any effort to protect the defendant‘s “valued right to have his trial completed by a particular tribunal” there was no “manifest necessity” for declaration of a mistrial. Here, in contrast, there was a medical prognosis that the original judge would be unable to resume his duties for several weeks at least. No proceedings could be conducted in his absence unless a mistrial were declared.
In Brooks, there had been two mistrials before the trial in which the defendant was convicted. One of these was declared because of illness of the prosecuting attorney and the other because the jury had been unable to agree after nine hours of deliberation. The Superior Court held that each of the mistrials had been improper. Appellant seeks to analogize the illness of the prosecuting attorney in Brooks to the facts of this case. However, the opinion of the Superior Court does not indicate the nature of that illness, if indeed this was determined
We find appellant‘s claim that he was placed twice in jeopardy for voluntary manslaughter without merit.
II.
Appellant next contends that the evidence was insufficient to support his conviction of voluntary manslaughter. We cannot agrеe.
Voluntary manslaughter is the intentional, though non-malicious, killing of another person without justification or excuse. Commonwealth v. Campbell, 451 Pa. 465, 468, 304 A.2d 121, 122 (1973); Commonwealth v. Edwards, 448 Pa. 79, 83, 292 A.2d 361, 363 (1972); Commonwealth v. Conner, 445 Pa. 36, 38 n. 2, 282 A.2d 23, 24 n. 2 (1971). The test of sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the Commonwealth and drawing all proper inferences favorable to the Commonwealth, the trier of fact could reasonably have found that all of the elements of the crime had been established beyond a reasonable doubt. Commonwealth v. Boyd, 461 Pa. 17, 22, 334 A.2d 610, 613 (1975); Commonwealth v. Murray, 460 Pa. 605, 609, 334 A.2d 255, 257 (1975).
The decedеnt, Francis Carney, died of five stab wounds. Appellant admits that he inflicted these wounds but contends that he did so in self-defense.
After pouring appellant a drink and chatting briefly, the decedent went upstairs and, after a few minutes, called to appellant to join him. Appellant went to the second floor and found it darkened, except for a light in the bathroom. He moved toward the bedroom and, as he entered the doorway, decedent grabbed him in the groin. Appellant struck the decedent and ran downstairs, hoping to find an exit. He found none, for аll of decedent‘s doors were equipped with “burglar locks,” requiring a key to open from either side.
Decedent then appeared at the top of the steps, nude and waving a pistol. (This was in fact a starter‘s pistol, capable only of firing blanks, but appellant claims not to have known this.) A room-to-room chase through the house then ensued. Decedent fired two (blank) shots and appellant grabbed two kitchen knives to defend himself. Appellant, at various pоints in the encounter, inflicted several wounds on decedent, including the five fatal stabbings—three in the chest and two in the back. Appellant then escaped through a window, taking with him the gun, the knives, the glass from which he had drunk, and the keys to decedent‘s car.
However, as we recently said in Commonwealth v. Murray, 460 Pa. 605, 609, 334 A.2d 255, 257 (1975):
“It is the province of the trier of facts to pass upon the credibility of witnesses and the weight to be accorded the evidence produced. Commonwealth v. Smith, 457 Pa. 638, 641, 326 A.2d 60, 61 (1974); Commonwealth v. Pacquette, 451 Pa. 250, 257, 301 A.2d 837, 841 (1973); Commonwealth v. Garvin, 448 Pa. 258, 269, 293 A.2d 33, 39 (1972).
The fact-finder is free to believe all, part, or none of the evidence. Commonwealth v. Smith, supra; Commonwealth v. Roots, 452 Pa. 535, 541, 306 A.2d 873, 877 (1973); Commonwealth v. Williams, 450 Pa. 158, 162, 299 A.2d 643, 645 (1973); Commonwealth v. Oates, 448 Pa. 486, 490, 295 A.2d 337, 339 (1972).”
On the basis of these principles, a claim substantially identical to that presented by appellant was rejected in Commonwealth v. Harris, 444 Pa. 515, 519, 281 A.2d 879, 881-82 (1971).
This standard of appellate review is especially pertinent in a case such as this where other evidence tends strongly to contradict portions of appellant‘s account of events. Frederick Quay, the individual who introduced appellant to the decedent, testified that after he picked appellant up they performed mutual fellatio upon one another and that the agreed purpose of introducing the deceased, who was known to Quay as a homosexual,
The jury was not obligated to believe appellant‘s exculpatory account of the circumstances surrounding his admitted killing of Carney. The evidence was clearly sufficient to support the conviction of voluntary manslaughter.
III.
Finally, appellant alleges three errors in evidentiary matters. These concern (1) failure to suppress pubic hair samples which appellant claims were unconstitutionally seized, (2) the admission of expert testimony regarding thosе pubic hair samples, and (3) failure to declare a mistrial when a Commonwealth witness mentioned certain other indictments to which appellant had pleaded guilty but as to which no judgments of sentence had been imposed. We find no merit in any of these contentions.
The pubic hair samples were taken by a pathologist pursuant to a warrant issued after appellant had been taken
On the basis of these facts, authority was sought to take samples of appellant‘s blood and his pubic, body, and head hair. Appellant contends that there was no basis for believing that a sample of his pubic hair would have evidentiary value. However, the fact that the doors were all locked strongly suggested that the assailant had been freely admitted by the decedent. This, coupled with the nudity of the body and the apparently used condition of the bed gave probable cause to believe that sexual activity had occurred. From the fact that appellant had been arrested for the homicide pursuant to a warrant, the magistrate could properly assume that there was probable cause to believe him the assailant.5 Consequently, there was probable cause to believe that a sample of appellаnt‘s pubic hair would provide evidence concerning the crime. The seizure was thus entirely proper.
Appellant‘s last assignment of error is the trial court‘s failure to declare a mistrial after one of the Commonwealth‘s witnesses referred to an indictment against appellant as to which he had pleaded guilty but had not yet been sentenced. Because appellant had testified, the Commonwealth wished to introduce evidence of appellant‘s plea of guilty to an indictment for burglary in another county to impeach his credibility. It therefore called the deputy clerk of courts of that county as a witness. After establishing his name and official position, the following colloquy occurred:
“Q. What records or documents were you asked to bring with you, sir?
A. Indictments, number 586 et cetera, December, 1969, and the defendant is Ronald Robson.
Q. What do the records indicate?”
Appellant urged that evidence of conviction of other crimes is admissible for the purpose of impeachment only when there is a judgment of conviction; a plea of guilty upon which no judgment has yet been entered does not suffice. See Commonwealth v. Finkelstein, 191 Pa.Super. 328, 156 A.2d 888 (1959); Commonwealth v. Socci, 177 Pa.Super. 426, 428-29, 110 A.2d 862, 863 (1955). The trial court sustained this objection but rejected appellant‘s motion for a mistrial based on the testimony already heard by the jury. Appellant urges that denial of the mistrial was error.
The Cоmmonwealth urges two alternate theories for affirmance. First, it contends that evidence of a plea of guilty should be admissible even though no judgment of sentence has yet been entered upon the plea. Second, it argues that the error, if any, was cured by the vigorous corrective measures taken by the trial court. Because we agree with the latter position, we have no occasion to consider the former.
At the end of the sidebar conferеnce, the witness was excused and the trial court instructed the jury as follows:
“. . . the jury is directed to completely disregard anything the witness John Glenn has said to you. It has no probative value, it has nothing to do with the case, and if it enters your thinking about the case you will be doing an injustice to the defendant, and it seems to me all of us want to be fair and just to the defendant as well as to the Commonwealth and so you will completely disabuse your mind of any impression you may have gotten from the witness, John Glenn.”
Moreover, in its charge to the jury the court instructed:
“. . . that the defendant does not have a criminal record, any part of the testimony which indicated
In light of the minimal information conveyed to the jury and the immediate and emphatic curative instructions, we do not believe that it was error to refuse a mistrial. Sеe Commonwealth v. Senk, 412 Pa. 184, 193-94, 194 A.2d 221 (1963), vacated on other grounds, 378 U.S. 562, 84 S.Ct. 1928, 12 L.Ed. 2d 1039 (1964).
Judgment of sentence affirmed.
NIX, J., filed a concurring opinion.
NIX, Justice (concurring).
While I do not agree with the Majority that the illness of a trial judge where trial is with jury, is necessarily “manifest necessity“, see, Commonwealth v. Brooks, 225 Pa.Super. 247, 310 A.2d 338 (1973), I do however, believe the result is correct in view of defense counsel‘s original oral motion for a mistrial.