*1 reinstated and appellant will plead original anew to all the charges. Judgment of Sentence is reversed new trial is
granted.
Superior Pennsylvania. Court of
Argued Feb. 1982. Sept.
Filed 1984.
Petition for Appeal Allowance of Denied Feb. *12 Bertani, Defender, Greensburg, ap- Dante G. Public for pellant. Patterson, General,
Perry Deputy Attorney S. Couders- Com., port, appellee. for JOHNSON, MONTEMURO,
Before and MONTGOM- ERY, JJ.
MONTEMURO, Judge: This matter is before court on three consolidated from of sentence in- appeals Shirey judgments Everett volving five different criminal complaints. compre- To both hend and these a thor- compartmentalize appeals, various ough understanding of the of the case is procedural history required. January
On was arrested on charges separate under four criminal actions docketed (1) Potter These County. four actions were as follows: 1980, appellant charged No. 28 of was with indecent as- sault,1 minor,3 indecent of a said exposure,2 corruption charges pertaining appellant’s alleged to conduct towards Marshall, (2) nine at No. 29 of age years; Michelle Renee 1980, appellant with indecent assault and charged was minor, corruption charges pertaining appellant’s of a said Marshall, age alleged conduct towards Bobbi Jo eleven (3) years; charged at No. 30 of with assault, corruption of a exposure, indecent indecent minor, alleged con- charges pertaining appellant’s said (4) Paucke, age eight years; duct Joy towards Michelle 1. 18 Pa.C.S. 3126. §
2. Id. 3127. § 3125, repealed Id. and reenacted as 6301. § § *13 indecent 1980, charged with appellant 31 of was
at No. minor, pertaining charges a said corruption and of assault Mar- Lynn towards Julie alleged conduct appellant’s on these hearing A shall, preliminary age years. thirteen 8, 1980, and February held on complaints was four criminal charges. on all the was bound over appellant on a arrested 13, 1980, the was February On was 44 of At No. charges. fifth set of assault, indecent indecent statutory rape,4 charged with minor, charges pertain- said of a corruption and exposure, Pamela Sue conduct towards alleged ing appellant’s preliminary A years. fourteen McMillan, age less than 19, 1980, and a February held on on No. was hearing charges. exist on all found to facie case was prima No. to consolidate motions presented The Commonwealth purpose No. for 30, and No. 29 with No. with in argued and to consolidation objected The appellant trial. 28, 29, and 31 be combined that Nos. the alternative mo- the consolidation granted court trial. The lower one the Commonwealth. requested by as tions 1980. May on Nos. 28 and 30 Trial held on was verdict, court lower to reach The unable jury was actions Trial of these 1980. May on declared a mistrial rescheduled. was and 31. on Nos. 29 11, 1980, trial was held 10 and July
On of the two on each guilty returned a verdict The of appellant’s After denial charges. of minors corruption the lower judgment, arrest for a new trial motions appeal timely has filed a Appellant sentence. imposed court of sentence. from this judgment 44. A held on No. was trial 16 and July On charges: four three of the rendered guilty was verdict of a minor. assault, corruption indecent rape, statutory and sentence were denied trial motions post appellant’s judgment from this appealed Appellant has imposed. of sentence. §
4. 18 Pa.C.S. *14 8, 1980, September On selection jury was held for the retrial of Nos. Appellant’s 28 and 30. counsel was not present at that proceeding because of a commitment in case, appellant’s another and motion to continue the jury selection was denied. The jury was chosen with acting pro se. 23, 1980,
On October and retrial was held on Nos. 28 and 30. A verdict was reached the by jury finding appel- guilty lant on each of the two indecent exposure charges, as well as each of the corruption two of minor charges. Mo- tions for a new trial in and arrest of judgment were denied and sentence was A imposed. timely appeal was filed from judgment the of sentence. us, therefore,
Before appeals are from: judgment of sentence on Nos. 28 and of judgment sentence on Nos. 29 and and the judgment sentence on No. 44. While several of the issues raised in appeals these three overlap, appeal unique. each is proceed, therefore, We appeal examine each individually.
I. APPEAL FROM NOS. 28 AND 30. Appellant raises six issues as well as several sub-issues in appeal. this general (1) Those issues concern: selection of in the jury appellant’s counsel, (2) absence of selection trial, six jury prior (3) weeks to the alleged defective informations, (4) nature of the failure to all consolidate offenses, (5) characterization of certain materials as “dirty” “obscene”, (6) instructions to the jury. While resolution of the first issue requires the granting a new trial, (2) we find that issues through (5) must still be addressed as they will recur undoubtedly upon retrial. Ac- cordingly, we consider these issues seriatim. Jury Selection in the Absence of Counsel.
Appellant argues that his fundamental right to counsel under the United States Constitution was violated trial requirement court’s that he select jury without the assistance of counsel. Selection the jury was scheduled for September 1980. During prior date, the week to that counsel, Bertani, appellant’s Dante communicated with phone trial and indicated that he judge by trying would be county murder case another on that date. Bertani stated Duvall, that he contact Coudersport would John a local attorney, request represent during that he selection. jury September
On Mr. Duvall appeared appel- with reported lant. Duvall that he was not there to represent the appellant but was there to selection of the only object “withdrew”, Thereupon, Bertani’s absence.5 Duvall judge the trial held a conference with the assistant *15 district attorney appellant. following exchange and the The took place: ____
THE go COURT: we will in and draw no[w] jury. you Do understand how to draw the jury? IMight MR. SHIREY: now make that formal to appeal be postponed? Record,
THE COURT: It is on the going but we are to jury today, draw the none the less.
MR. I my SHIREY: will do best. THE COURT: You will not waiving your objection be to drawing the virtue of jury today by doing so. But we are going jury today. to draw a That’s definite and that’s it. you waiving your But are not right legally object. I MR. SHIREY: understand. 8, 1980,
N.T. at 6-7. September Upon return to the court- room, examination,6 judge the trial conducted the voir dire and then the assistant district and the attorney exercised peremptory challenges. their The members were announced and court adjourned.
Before the commencement of trial on October Bertani took an to the entire exception jury because of its presented objection jeopardy 5. Duvall also an to retrial on double grounds. 1106(d), judge may 6. Under Pa.R.Crim.P. conduct the examination Here, prospective jurors. panel by the examination of the transcribed, judge we not was not so do know the extent of that any panel examination or whether members were excused for cause. assistance of counsel. The selection without responded adjusted that the court had its calen- judge trial Bertani’s schedule on occasions many dar to accommodate throughout proceedings against appel- the various criminal in regulating lant and that the court’s interest its calendar In outweighed problems. opinion counsel’s its availability motions, trial the lower court em- denying appellant’s post need to conduct its ployed balancing test with the court’s hand, a criminal defend- dispatch business with one process ant’s need to be afforded due on the other. The court then determined that since it was not notified of lower date, and since possible the conflict at the earliest counsel had been numerous continuances and already granted changes scheduling, against appel- the balance fell lant’s due concerns. process
The
to the
Sixth Amendment
United States Consti
“In
provides
prosecutions,
tution
all criminal
the ac
cused
enjoy
right
shall
...
to have the Assistance of
Counsel for his
right
applies
defence.” The
to counsel
the states
the due
process
via
clause of
Fourteenth
Amendment.
Wainwright,
Gideon v.
372 U.S.
83 S.Ct.
L.Ed.2d 530 specifically attaches at all “critical stages” accused, of the proceedings against United Wade, 218, 1926, States v. 388 U.S. 87 18 L.Ed.2d S.Ct. 1149 (1967). The Sixth right Amendment to counsel is a funda right mental and is essential to a fair trial. Gideon v. Wainwright, supra.
The issue presented process here is whether the of jury selection constitutes a stage” prosecution “critical during which appellant was entitled to the assistance of counsel. question While other states have this in answered affirmative, State, Tex.Cr.App., v. 563 Eason S.W.2d (1978); 224, Locklar, 945 84 People Cal.App.3d v. 148 (1978); Cal.Rptr. 322 there no in binding precedent is this Commonwealth to direct our resolution of this question.
104
A
of the
stage”
prosecution
“critical
has been defined as
prosecution,
informal,
of the
in
out
“any stage
formal or
or
court,
where counsel’s absence
from the
might derogate
Wade,
v.
to a fair
United States
right
accused’s
trial.”
226,
supra,
re
349 U.S.
must be shared by
respective
the trial court and
counsel.
Christian,
In
supra.
pursuit
Commonwealth v.
of this
goal, prospective jurors are
af
examined
counsel are
forded an opportunity to determine juror qualifications as
well as establish a basis for the
exercise of per
effective
emptory challenges.
A litigant
right
Id.
has the
to probe
into a prospective juror’s
any
subject
bias or
other
which
bears on the impartiality
prospective
of a
juror. Common
Futch,
examination,
wealth v.
supra. Upon such an
a
for
challenge
cause may
juror
be voiced and a
may be
rejected on a narrowly specified, provable,
legally cog
nizable basis of partiality.
Alabama,
Swain v.
380 U.S.
(1965).
S.Ct.
During
process
selection,
of jury
important
rights must be exercised or they are forever
An
waived.
objection to a juror
good
which constitutes
cause for chal
lenge is
if
waived
not made
juror
before the
is sworn.
(1966).
Commonwealth v.
420 Pa.
Aljoe,
106 prejudice inherent in the jury Thus, selection process.8 we hold that selection is a “critical stage” prosecu- of tion against an accused which calls for the assistance of counsel. The denial of appellant’s right constitutional counsel at this stage critical constitutes error.9 here,
Our inquiry
however,
does not end
as we must
now determine the appropriate remedy for this constitution
al error.
“Cases involving Sixth
deprivations
Amendment
are subject
to the general
rule that
remedies
should be
tailored to the
suffered
injury
from the constitutional violation.
Morrison,
United
States v.
. . .”
361, 364,
449 U.S.
101
(1981).
S.Ct.
Finally,
right
during
had
counsel
recognizing
appellant waived this Sixth Amend
jury
process,
selection
may
contention is absurd. An accused
right.
ment
This
counsel,
of
right
although
waive the
to assistance
courts
presumption against
reasonable
waiver
employ every
Zerbst, 304
rights.
fundamental constitutional
Johnson v.
58 S.Ct.
2. Selection of Six Prior Weeks to Trial Appellant’s second contention of error concerns a practice in Potter County selecting juries substantially case, trial. In advance of this took place selection September did while trial not commence until Octo trial, Immediately prior ber the jury was sworn. The trial judge then asked the jurors whether any juror had received information any regarding the case be tween time they were chosen and the present. N.T. of 22, 1980, at 15. The trial judge October asked for a show of in response hands to his question, and none the jurors raised his hand.
Appellant asserts that Potter County rural, since is a *20 sparsely populated there was county, opportu- considerable nity delay within six week for outside influence to have Thus, reached the selected he jurors. contends that he was deprived process right of his due to fair a trial an by impartial jury: theory of our is that system the conclusions to be
reached in a case
will be induced
evidence
only
court,
in
argument
open
influence,
and not by any outside
private
public
whether of
print.
talk or
v. State
General,
Patterson
Colorado ex rel. Attorney
of
454, 462,
556, 558,
205
(1907).
U.S.
27
51 L.Ed.
S.Ct.
879
Appellant
taint,
not point
any specific
does
to
but argues
Louisiana,
under Turner v.
State
379
U.S.
85 S.Ct.
of
Stewart,
v.
(1965);
Commonwealth
L.Ed.2d
(1972);
449 Pa.
In most tions, is showing a of to the accused prejudice identifiable Texas, Estes U.S. 85 S.Ct. required. v. State of Nevertheless, 14 L.Ed.2d there times are such a procedure employed by when “a the State involves it is inher- probability that will result that deemed prejudice 542-43, in lacking 85 S.Ct. at process.” due Id. ently Thus, Louisiana, supra, State Turner v. of presumed for the key was where two witnesses prejudice shep- were sheriffs doubled as prosecution deputy jury who Stewart, In during the trial. Commonwealth v. herds the father of a prejudice presumed was where supra, jurors had panel murder victim on the same as who was trial, selected for murder and the father had been been hearing room the case jurors in the same who were with as In neither v. long days. for as two and one-half Turner Stewart, nor was State Louisiana Commonwealth of spoken to; proof had how- any any juror there that been of ever, probability prejudice presumed prevent unfairness. six week of time lapse
We do not believe gives trial rise to a day and the of jury between selection requiring presumption preju probability unfairness this and held recently dice. This court has addressed issue must prejudice that actual be demonstrated: failure court assigns as error the Appellant next it It after was chosen. jury immediately to swear the impaneled on Au- members were appears jury 7, 1978, August not actually sworn until gust but were to no trial. directs us day Appellant none, requiring has disclosed authority, and our research is ‘In it chosen. immediately after be sworn statute, swearing jurors the time for the absence *21 and opportunity examined chief after have been they of the court.’ for is within the discretion given challenge § swearing on jury Before Juries 294b. 50 C.J.S. 110 18, had any the court whether become
August
inquired
engaged
of facts or
in
discussion which would
any
aware
sitting
impartially.
them from
None
fairly
disallow
attempt
‘made no
to
appellant’s
counsel
responded,
stemming from
inquire
any
possible prejudice
other
any
prejudice,
R.R. 24a In the absence of
actual
delay.
improper.
to
procedure
do not believe the
followed
be
we
Bruno,
352
v.
466 Pa.
Compare, Commonwealth
(1976);
Bobko, 453 Pa.
A.2d 40
Commonwealth
omitted).
(1973). (Footnote
Ill
conduct that
by improper
done to the defendant
has been
his
rights.”
interfered with
substantial
Commonwealth
666,
O’Brien,
382, 397, 124 A.2d
674
Pa.Super.
181
v.
dismissed,
(1956),
Laughlin,
v.
appeal
Commonwealth
109,
(1957),
Pa.
Commonwealth A.2d 1373 valid,
To an information must contain: be have alleged date when the offense is been [T]he known, of the precise day committed if the date is and charged, if of the offense it is an essential element week if if the date is not known or provided precise one, continuing allegation is a an it was offense any period committed on or about date within the fixed the statute of limitations shall be sufficient. 225(b)(3). Herein, provided
Pa.R.Crim.P. both informations June, 1979, offenses occurred alleged that the between December, 1979, span a of seven months. specificity maintains that the lack of
Appellant 225(b)(3), thereby informations violated Pa.R.Crim.P. defense, ability present particularly hindered his an Devlin, 460 Pa. Relying alibi. Commonwealth v. (1975)
This court has
of this identical issue
Com-
disposed
Niemetz,
was
supra,
monwealth v.
wherein
intercourse,
deviate sexual
rape, involuntary
convicted of
assault,
of a minor:
corruption
indecent
in the instant case averred the commis-
The information
(or about)
begin-
of offenses “on
divers
dates
sion
[sic]
This
continuing
August,
until
1977.”
ning in 1972 and
un-
the Commonwealth was
adopted
course was
because
able to “state the dates on which the offenses occurred
with
more
any
Since
specificity.”
time is not of the
essence in the crimes for which appellant
charged
convicted,
Yon,
see
Commonwealth v.
Pa.Super.
Rouse,
(1975);
341 A.2d
Commonwealth v.
Pa.Super.
(1966),
Id. 282 439-40, Pa.Super. at A.2d at 1373. The Niemetz court was of Devlin precedent confronted with the Levy and held that those cases distinguishable were in that offense, neither case a continuing involved and thus were more fixed susceptible being with certainty. reasonable reasoning Niemetz. Since the instant agree We with the continuing against victim, cases dealt with crimes each period time recited the informations was sufficient. Appellant also contends that the informations should have where he quashed charged corruption been with § of minors under 18 3125. That Pa.C.S.A. had section repealed been the time the offenses allegedly were committed,10 corruption and the offense of of minors had substantially been reenacted verbatim at 18 Pa.C.S. 104, 1, 1978, July Repealed days. P.L. No. effective in 60 § § trial, 6301.11 Immediately prior to the trial judge granted the Commonwealth’s motion to amend the information to reflect the proper statutory Appellant section. argues grant of this amendment prejudiced and inconvenienced defense, him in the preparation of his and so him denied due process. procedure
Our rules of criminal
provide for the
amendment of
form,
informations
“when there is a defect
description
provided
the offense ...
[or in]
information as amended does not charge an additional or
different offense.” Pa.R.Crim.P. 229. The purpose of this
rule is to insure that a defendant is fully apprised of the
him,
charges against
and to avoid prejudice by prohibiting
last
alleged
minute additions of
criminal acts of
which
defendant is uninformed.
Lawton,
Commonwealth
(1979);
Pa.Super.
A.2d 658
Commonwealth v. Stan
ley,
Pa.Super.
(1979),
We fail to see any prejudice at all to in the allowance of described, this amendment. The events elements, and the available defenses in were identical original and amended informations. That the informations section, 3125, repealed 11. The 18 Pa.C.S. forth § set the elements of the crime as follows: Whoever, being age years upwards, by any of the of 18 act corrupts corrupt any age or tends to the morals of child under the aids, abets, years, encourages of any or who entices or such child crime, any knowingly in the or commission who assists or encourages court, violating parole any such child in his or her or order of guilty degree. is of a misdemeanor of the first section, 6301, The current 18 Pa.C.S. § defines the offense as: Whoever, being age years upwards, by any of the of 18 act corrupts corrupt any or tends to the morals of minor less than 18 aids, abets, years age, encourages any or who entices or such crime, any knowingly minor in the commission of or who assists or encourages violating parole any such minor his or her order of court, guilty degree. is of a misdemeanor of the first is of the Crimes Code “to a section number specific referred and on charged The offense not fatal. unfortunate but from the determined is founded is to be what statute it Lohr, v. in the information.” Commonwealth allegations 136, 1375, (1983). Appellant’s 468 A.2d 503 Pa. unavailing. is argument its that the trial court abused appellant charges
Lastly, on the quash his motion to basis denying discretion in properly been were void for failure have the informations officially designated or his attorney the district signed by § 8931(i). 225(b), 42 The Pa.C.S. Pa.R.Crim.P. authority. district attor- signature of assistant informations bore Mackin, signed At the time Mackin P. Jr. ney Charles attorney district informations, authority his to act for the aby had not evidenced written informations been signing courts, in accordance filed with the clerk of designation § 8931(i). Thereafter, 28, 1980, the May on with Pa.C.S. designation That includ- designation was filed. appropriate of all ratification and confirmation attorney’s ed the district Mackin in his as an assist- capacity done previous^ acts subsequently, Retrial was held attorney. ant district 22 and October on a signature of an authorized requirement authenticity is to assure designed
criminal information
has
inquiry
that a full
guarantee
information and to
of the
case,
of the
the facts and circumstances
made into
been
made a reasoned evaluation
an authorized official has
initiating
proceedings.
criminal
Com
propriety
Emanuel,
Pa.
115
discharging
appellant
tions and
the
for a
of the
violation
imposed
technical rule
to
the
goal.
achieve
selfsame
event,
In
any
required designation
authority
of
filed
in
trial,
well
advance of commencement of
and under
Williams,
this court’s recent decision in Commonwealth v.
512,
(1984),
323 Pa.Super.
tardy filing
Williams court the requisite authority tion of had prior filing not been filed to the of the information, filing designation in authority of advance of of the commencement trial was In sufficient. Williams, keeping with the trial court did in deny- not err ing motion appellant’s quash had on basis that it been improperly signed.
4. Consolidation Appellant’s fourth assignment error concerns the consolidation cases Nos. 28 and 30. Common Upon the motion, wealth’s these were two cases consolidated for trial. Appellant opposed consolidation and here that argues prejudicial consolidation, because of the impact the lower court abused its discretion in granting the Commonwealth’s request.12
Where informations arise from
criminal
distinct
episodes
transactions,
consolidation is a matter within
the sound
judge,
discretion of the trial
whose decision will
12. In
consolidation,
response
to the Commonwealth’s motion for
28,
cases,
29, 30,
requested alternatively
four
Nos.
request emerges
be
combined
one trial. This alternative
as
issue,
jeopardy
only
appeal
a double
has
but
raised it
31, i.e.,
of Nos. 29 and
since the four cases should have been consoli-
dated,
16, 1980,
May
the mistrial of Nos. 28 and
on
30
barred the
subsequent
July
of Nos. 29 and
trial
10 and
1980. See
infra,
Appeal
Appellant
discussion
at II.
of Nos.
and 31.
has failed
i.e.,
preserve
jeopardy
appeal,
the obverse double
issue in this
May
subsequent
the trial of
Nos. 29
31 on
barred the
Thus,
retrial of
and 30 on
Nos. 28
October 22
this issue
Moreover, upon
is not before us.
remand for retrial of Nos. 28 and
30, appellant may
not then raise the issue that such retrial is barred
prior
Appellant’s voluntary
seeking
Nos.
trial of
29 and 31.
act
receiving
any
jeopardy
trial
a new
constitutes a waiver of
double
claim,
(1982);
Sanford,
Commonwealth v.
Pa.
116
or
abuse of discretion
only upon a manifest
be reversed
Morris, 493
v.
to the defendant. Commonwealth
prejudice
Moore, 463
v.
Commonwealth
164,
(1981);
Pa.
The lower court The lower discretionary. dation of the informations was informations in Nos. 28 and and court then examined the proper since the informa- concluded that consolidation i.e., identical; charged each information tions nearly were June, 1979, December, and that between language same (five assault or six committed indecent and times) legs between the victim’s placing penis his by breasts; exposure by indecent inten- the victim’s sucking genitals pur- his for the knowingly exposing tionally himself; and arousing corruption pose sexually literature, pictures, obscene by displaying morals of a minor A(l)(a), effec- codified in Pa.R.Crim.P. 1127 13. standard is now This July tive 1982. A(l)(b), in Pa.R.Crim.P. 1127 effec- 14. This standard is now codified July tive magazines men engaged women sexual inter- course and oral sex. The informations differed in that the corruption of minor charge No. 28 also that the alleged victim’s corrupted morals were tended corrupted to be appellant’s acts of having indecent contact child with a indecent exposure before said child.
Appellant contends superficial that this of “identity charges” failed analysis any to afford basis which would support agree. consolidation. We Discretionary consolida- tion requires a substantive examination of the of evidence the crimes to determine whether evidence is easily separable, and the whether evidence one offense would be a separate admissible at trial of the other. The control- concern, ling therefore, general is not the nature of the charges against defendant, but, a rather the evidence the crimes themselves.15
At this point, it must recognized be that the informations unique are comprised that each is charge of more than one “actual” crime. The up informations were not drawn distinguish among various counts of the each of three charges Instead, listed. charges composed the were broad language encompass which would specific several Thus, acts. for example, the informations each charged However, exposure indecent only once. the evidence indi- cates that appellant himself to exposed victims occasions, several each occasion itself an constituting “actu- al” crime. clear, therefore,
It is abundantly that we are not con- fronted with usual discretionary consolidation situation wherein single sought a criminal act is consolidated be with cases, another unitary criminal act. These usual such robberies, as two straightforward distinct are looks at —one compares the evidence of one and it robbery to the evidence then, of the robbery. other How are we to consoli- analyze may 15. While in some instances informations detail the evidence lengths discretionary of the crimes to such that a decision on consoli- informations, can be from the face of the is not the dation made case here. 30, informations in each of which dation Nos. charges relating jumble to a of “actual” contains three is governed by criminal Since consolidation events? crimes, survey of that evidence. evidence we start with Appellant operated owned the Circle Ranch which he “S” Mic- riding facility. Joy as a campground horseback 30, Paucke, her helle the victim in case No. lived with grandmother in a trailer close to the horse barn Marshall, cousin Joy’s “S” Ranch. Michelle Renee Circle from in case No. about one-half mile victim lived the Circle Ranch. “S” life, had all her
Joy testified that she known her babysat since the and his often for while wife 22 and grandmother her N.T. working. was October ranch Joy went to the Consequently, horses, visit, games with other play almost to ride daily treated girls. Shirey’s Id. at 55. She like the if it and roamed the house and ranch as were grandchild, *28 her home. at 55. Id. 1979, a that and
Joy testified between June December herself, involving appellant, series unusual events often took She testified that girls, place. and other up our and pants pull have “us” take down appellant would at Joy shirts he Id. stated our and would “do stuff.” resi- Shirey this in the room” of the happened “bunk occasions, and then “would appellant dence on three or four our and “suck legs” stick his between our breasts.” penis during three of at also testified that two or Id. 36-37. She mouth, incidents, her on appellant my had “stick these had appellant his at 38. recounted penis.” Joy Id. he vasectomy, explained his scar from a and shown them situa- get Joy next a you pregnant. couldn’t Id. described and her to bunk room appellant tion where the took was there. projector on movie which located turned ladder man below The film a woman on a with a portrayed Joy Id. “licking vagina.” her at 39-40. her the ladder once when she Michelle were also testified that them he appellant, truck with the showed appellant’s pickup a called Steps book “Six Sexes” which depicted a man “sticking penis his up vagina” and “a lady [a woman’s] sucking guy’s penis.” Id. at 41-43. Joy indicated that appellant provided her books about sex “lots of times.” at 43. Finally, Joy Id. stated that the had ex- appellant posed penis his to her on two occasions girl when another named Pam present. McMillan was at Id. 50-51.
Pam McMillan was called to corroborate this latter event by Joy. related Pam testified that she years was fourteen age, and she gone had frequently camping with her at the parents Circle “S” Ranch. Id. at 110. Pam testified that once the summer of she appellant saw the his unzip pants expose himself to her and at Joy. Id. 112-13.
Michelle did not share the same familiarity with the and the Shirey’s Circle “S” Ranch as Joy. did Michelle had the appellant known for about three years prior to the summer of and only up went to the ranch when she Joy. was with Id. at 107. Michelle Joy testified that always with her when the incidents with the 94, 100, 102, occurred. Id. at 107. Michelle stated that she Joy gone (an had appellant’s into bus old school bus equipped for camping) with on about five occa- occasions, sions. On each of these the appellant stuck his penis legs, them, between their tried feel and showed them dirty books. Id. 94-98. Michelle related another her, incident where appellant Julie, Joy, drove and Bobbi Jo to Perry’s Sport Shop, had felt them legs. between their Id. at 99-101. Michelle also remembered a time when she and Joy up were at the turkey feeder with appellant, and he had felt them their legs. between Id. at Lastly, 101-102. *29 Michelle testified that at appellant various times showed the girls books with pictures of naked men and women. At these various times Joy, she was with Joy with and Bobbi Jo, Jo, or with Joy, Bobbi and Julie. 102-103. Id. at
Having crimes, surveyed the evidence of the we are able to break that evidence groups down into three for the purposes of a consolidation in- analysis. group first shall call “simultaneous All of
eludes what we crimes.” and the episodes Joy, narrated Michelle also included simulta- girls offenses described occurred to both of the however, crimes in neously.16 testified additional Joy, Joy not testified Specifically, which Michelle was involved. film of a in showing to additional crimes involved room, exposure genitals and the of his appellant’s bunk in front of and Pam McMillan. the evidence her We treat dealing separate groups of these additional crimes as two Thus, analy- with the consolidation issue. our consolidation of No. 28 questions sis narrows down to of: consolidation 30, consoli- simultaneously occurring crimes of No. with the film incident No. dation No. with No. 28 and Pam Joy consolidation of with Paucke of No. 30. McMillan incident simultaneously
A. of No. 28 with the Consolidation occurring of No. crimes 30. engage
We need not
in a
consolidation
discretionary
with
to consolidation No. 28 with
analysis
respect
occurring
of No. 30. These simulta
simultaneously
crimes
was not
subject
neous crimes were
to consolidation which
consoli
merely discretionary,
compulsory. Compulsory
but
of all
offenses
from a
required
arising
dation is
known
Tarver, supra;
Commonwealth v.
single
episode.
criminal
A
Campana, supra.
criminal
Commonwealth
single
charges
logically
are
a number of
episode exists where
of law
and/or
related and share common issues
temporally
fact,
dupli
separate
trials would involve
substantial
resources. Common
judicial
of scarce
cation
waste
Hude,
wealth v.
Pa.
458 A.2d
the situa
difficulty
finding
We
no
here
have
single
and Joy
both Michelle
were
tions which concerned
an
Michelle testified that whenever
criminal episodes.17
that,
testimony
exception,
with
she was
Joy’s
confirmed
one
16. While
incidents,
during
she
the course
these
not alone with the
uniformly questioned
to who else
been involved.
not
as
had
object
joinder
to the
of crimes
We
did not
note that
within each information.
*30
happened,
offense
she
always
Joy,
was
with
both
they
the
suffered
same violations.
these
Joy described
incidents
as
being perpetrated
girl
appel-
“us.” Each
witnessed
lant’s conduct
during
towards the other
these incidents.
Clearly,
upon
the crimes
girl during
each
these incidents
in
place
took
a short
of
span
time. Crimes which are
closely related in
require
time
to
analysis
little
determine
single
episode
Furthermore,
that a
criminal
exists. Id.
the
crimes are
in
logically
legal
related
that the factual and
presented
issues
in
sepa-
were identical. Prosecution
two
rate trials would have been complete duplication.
Fi-
Id.
nally,
Green,
the case of
Pa.Super.
Commonwealth v.
(1975),
B. Consolidation of No. 28 with the film of
incident
No. 30.
Joy testified
that
the bunk room of the
resi-
Shirey
dence,
her
film
showed
a
which contained
sexual material. Her testimony, by
singular pro-
use of a
fray
18. This
court Green found that a
which involved the accused
others,
separate
charges,
and four
and resulted in
sets
three
of
qualified
single
aas
criminal incident:
argument
appellee
entangled
An
between the
and another man soon
appellee
physical struggle
two
his
male victims in a
which
attempted
seizing
female victim
to terminate
the knife-brand-
ishing appellee.
struggle
participants
fact
that
moved the
victims,
porch
driveway,
from the
to the
that there were
several
second,
already
that the first victim was
wounded when
then
third,
change
victims
does
became involved
not
the nature
segregated
single
to a
encounter
series
incidents.
It
a
remains
occurrence,
comprehensive
distinctive
a
series
as
of acts so
addition,
qualify
single
episode....
as a
criminal
In
the Model
Code,
based,
upon
Penal
which Section
of the Crimes Code is
commentary
dealing
compulsory
in its
indicates
sections
with
joinder
involving
charges
multiple
situations
victims were
being
contemplated
concept
single
as
included in the
criminal
drafted,
omitted).
episode
(footnotes
when the sections were
140-41,
Pa.Super.
Id. 232
at
A is more difficult criteria whether evidence in a trial of separate the film be admissible incident would courts offenses in Michelle was victim. Our which for test determination of two-step have often repeated admissibility: such prized principles most fundamental
“One
our
crime,
is that
of criminal law
a distinct
administration
circumstances, cannot be
special
certain
except under
being tried
against
a defendant who is
given
evidence
a person
This is
fact that
for another crime.
because
he has
proof
is not
has committed one offense
testi-
the effect of such
committed another
because
preju-
is nevertheless bound to create
upon a
mony
part
on their
against
reaction
dice
an emotional
Burdell,
v.
Pa.
380
defendant.” Commonwealth
v.
also Commonwealth
(1955).
110 A.2d
195
See
Peterson,
Common-
(1973);
A.2d 264
Pa.
307
453
867
Boulden,
116 A.2d
wealth v.
Pa.Super.
§
Evidence,
(1955); See, generally, McCormick
(2nd Ed.1972).
justifying
circumstances
447-454
Special
exceptions to the general rule exist when the evidence of
other
(1)
crimes “tends to prove
motive;
(2) intent;
(3)
absence of mistake
accident;
(4)
or
scheme,
a common
plan or design embracing commission of
or
two
more
crimes so related to each other that proof of one tends to
prove
others;
(5)
to establish the identity of the
person charged with the commission of the crime on
trial —in
words,
other
where there is such a logical con-
nection between the crimes
proof
of one will natural-
ly tend to show that
the accused is
person
who
committed the other.”
Peterson,
Commonwealth v.
su-
pra, 453
197-198,
Pa. at
Commonwealth v. Wright, 293, 298-99, 259 Pa.Super. 393 833, (1978). A.2d 835-36 outset, At the we observe that this list of five well-recog- 19
nized exceptions
is sometimes supplemented by what has
been termed the “res gestae” exception. Commonwealth
v.
Stufflet,
120,
276
Pa.Super.
(1980);
124 in the of No. play appeal into exception this comes Since as exception here well. treat it as a sixth we of “other admissibility for the exception The first to crimes” evidence is For “other crimes” evidence motive. sufficient motive, give must evidence be relevant being considered currently that the crime to believe ground set of prior caused any way by of or was grew out Roman, 465 v. and circumstances. Commonwealth facts Kasko, v. Commonwealth (1976); 351 A.2d Pa. indica (1983). Here find no A.2d 181 we Pa.Super. incident of the film that the occurrence suggestion tion or against crimes commit the a motive to provided appellant incident and crimes (or versa), or that the film vice Michelle circumstances by peculiar motivated Michelle were against common to both. prior allow evidence exceptions and third
The second intent, or to show relevant independently crimes which is however, Here, appel- of mistake or accident. absence either innocent his conduct was lant did not claim that Instead, alleged that the crimes were argued he accidental. of resentment. fabrications, because girls concocted at issue in the crimes state was not mental appellant’s Since Joy film incident with Michelle, evidence against mental state. his prove admissible not have been would Kasko, v. Commonwealth supra; Commonwealth A.2d 944 Bradley, Pa.Super. “other exception requires
The fourth scheme, plan, or a common demonstrate crimes” evidence *33 there must such exception be To fit within this design. that proof of the crimes in the details correlation high very makes it committed one the accused unlikely committed the other. Common the accused but anyone A.2d 1327 Bastone, Pa.Super. wealth v. distinctive stated, crimes must embrace both As otherwise “signa as to bear so identical nearly and be elements Com person. same of the the “handiwork” ture” or be Morris, supra. v. monwealth
The allegations film incident and display of “dirty” literature to Michelle have certain similarities. They both young girls involve age a similar group, each girl having acquaintance an with the appellant. cases, In both appel- lant was accused of roughly the same misconduct, type and the scene of the misconduct was the Shirey ranch. On hand, the other one crime involved the use of a movie projector and film while the other involved a book. One crime place took inside the Shirey residence and the other did not. One crime involved only girl one and the other involved more than one. Finally, the display of obscene is, materials to young children sadly, not so rare that such a display is itself an earmark scheme, of a common plan, or design. Commonwealth Shively, Pa. (1981);
A.2d 1257 Kasko, Commonwealth v. supra. From facts, these we do not find any high correlation of details which permit would evidence of the film incident to be admissible under the common exception. scheme
Under the fifth exception, evidence of “other crimes” is independently relevant and admissible if it tends estab- lish the identity of the perpetrator. Like the second and above, third exceptions the “identity” exception is inapplica- ble because identity was not at issue. Commonwealth v. Kasko, supra; Commonwealth v. Bradley, supra.
Finally, we come to the “res gestae” exception.20 This class includes “other crimes” which are an inseparable part § of the whole deed. WIGMORE, J. supra, 218. McCormick characterizes this exception as the “same trans action” exception, wherein evidence of “other crimes” is permissible “to complete the story the crime on trial by proving its immediate context of happenings near in time WIGMORE, Wigmore, supra, Professor J. suggests § that the gestae” term "res be abandoned: gestae” The term “res should be once and for all abandoned as confusing. useless and Let it be said that such acts are receivable as deed,” “necessary parts proof of an “inseparable entire or as deed,” act,” parts elements of the or as "concomitant of the criminal anything else reasoning that carries its own and definition with it; legal but let sedulously discussion avoid this much-abused and wholly unmanageable phrase. Latin
126 supra MCCORMICK, supreme at 448. Our place.” ges- transaction” or “res the “same spelled has out court that: exception, saying tae” conviction prior where “such is admissible evidence
[S]uch formed, chain, of a or was one part of a criminal act or of the acts, history of the part of or became sequence of development the natural trial, part of was event facts.” the Brown, 578, 591, A.2d 90 Pa. v.
Commonwealth Williams, 307 Pa. Commonwealth from (1975) (Quoting (1932)). A. part an of integral neither Joy The film incident with the crimes surrounding of events context the immediate such Michelle, any way other nor so intertwined against of the facts development the natural part that it was Thus, “same trans- Michelle. the against the crimes any of for affords no basis exception gestae” action” or “res incident. of the film admissibility to allow evidence independent no relevance being There against trial of the crimes separate film incident in a of the prong in the second Michelle, engage not we need It is of “other crimes” evidence. admissibility test is that “other crimes” evidence a determination only after relevant, undergo the court must independently is of that evidence probity whether step deciding next engenders. it outweighed by prejudice of the trial court’s consequence Accordingly, permit improper 28 and 30 was consolidation of Nos. consider jury’s incident to influence of the film evidence Thus, discretionary Michelle. against ation of the crimes erroneous to the extent 28 and 30 was consolidation of Nos. consolidated with No. No. 30 was this crime of additional crime must be retrial, of this the evidence Upon excluded, may try and the Commonwealth on this offense. separately Joy with
C. Consolidation of No. 28 Paucke and Pam McMillan incident of No. 30. trial, her, Joy
At testified to an incident involved which *35 McMillan, appellant. Appellant’s Pam and the counsel ob- to this and a conference in jected inquiry, sidebar was held which the assistant district related that attorney Joy would that testify she saw the and Pam McMillanhaving intercourse, sexual in Joy participated that this actively activity by fondling appellant’s penis upon request, his appellant’s penis that thereby exposed was to her. N.T. October at 43-45. This incident as it was, fact, relates to Pam McMillan for the basis statutory rape charge brought against appellant in case No. 44. The trial court testimony found that the as to actual sexual intercourse would prejudicial appellant, be too to the and so restricted all testimony regarding this incident to prevent any indication that sexual intercourse had occurred. limited, Joy’s subsequent therefore, testimony and she occasions, stated that on only two had exposed himself before her and Pam McMillan. Id. at 49-52. The jury could infer from this that testimony appellant had indecently exposed himself to Pam as Joy. well as
The Commonwealth called Pam McMillan to corroborate aspect this of Joy’s Likewise, testimony. testimony Pam’s was confined to her observation that on appel- one occasion lant had exposed Joy. himself to her and Id. 110-113. The Commonwealth also established that Pam was fourteen of years age trial, at the time of allowing the thereby jurors to surmise that the appellant had committed the crimes of corrupting the morals of a minor less eighteen years than of age, with regard to Pam.
The consolidation presented issue here is whether the additional crime of No. 30 that the appellant exposed him- self to Joy and Pam should have been consolidated with the against crimes Michelle No. 28. again
We have no with the initial difficulty question of easy separability. The of testimony Joy and Pam incident and the crimes against simple Michelle was and brief. one solely testify Pam was about the inci-
Since called dent, an means for the provided her obvious testimony against that incident distinguish between and the crimes Michelle. however, aground, segment run on the next
We discretionary analysis, consolidation evidence one in a trial crime would be admissible of the other.
Looking at the six it is four exceptions, apparent intent, mistake, motive, exceptions based on absence inapplicable. motive, are There is identity, no indication intent, there were absence of underlying no issues of mistake, identity in the crimes Michelle. The against or “same transaction” is also gestae” exception easily “res of because evidence of and Pam incident disposed Joy *36 natural of the necessary development was not to the facts against of of the crimes Michelle. any only exception The remaining is the common scheme exception. Again, parallels there are some the Joy between against Pam incident the crimes young and and Michelle— involved, girl were each had an girls acquaintance with ranch, the and appellant, generally Shirey scene was the the However, the appellant sexually tried to abuse these girls. not rise to of a broad similarities do the level modus required exception. the operandi under common scheme Furthermore, significant dissimilarity the here there exists of Joy that the and Pam incident involved the act sexual fondling and of while appellant’s penis, intercourse the to activity trying Michelle feel appellant’s towards involved placing penis legs.21 her and his between her We cannot Joy obviously that the Pam incident the say was so that it “handiwork” of the admissible in appellant would be trial for the against a crimes Michelle. Joy
21. The was never informed that the and Pam incident However, anything exposure. apply- involved than indecent more test, ing the common we are not circumscribed the limited scheme knowledge jury. imparted of to the We look at the actual amount commonality. crimes themselves their to determine Accordingly, consequence the court’s trial consolidation of Nos. 28 and 30 was to permit improper Joy evidence of the and Pam to the jury’s incident influence Thus, consideration of the crimes against Michelle. discre tionary consolidation Nos. 28 and 30 was erroneous the extent that and Pam Joy crime of No. 30 was retrial, consolidated No. Upon with 28. of this evidence excluded, additional crime must although be the Common wealth may attempt try appellant for separately this offense.22 “Obscenity” fifth
Appellant’s assignment of error with deals use of the term “obscenity.” corruption morals charges in both Nos. 28 were supported by allegation showed child “obscene” litera ture, pictures, trial, and movies. At both testified girls as to the content materials exhibited to them. Michelle remarked that showed them “dirty books” which contained pictures “naked women naked men.” N.T. October 22 103. Joy was more descrip tive, recounting appellant showed her filma about “sex” in which “there lady ladder, was a standing on and a on a ladder guy licking vagina.” her at 40. Id. Joy also testified that appellant showed them a book entitled Steps “Six of Sexes” which portrayed sticking a his “guy penis up vagina,” well as sucking as “a lady [a woman’s] *37 guy’s penis.” Id. at 41-42.
At the
chief,
close
Commonwealth’s case in
the
appellant demurred to the corruption
charges
of minors
that,
the basis
since the
charge
Commonwealth chose to
the
appellant
material,
display
they
with the
of “obscene”
must
prove that
the material
“obscene”
constitutionally
was
which
a
required
showing of
under
community standards
Joy
subject
22. Since
and Pam
the
incident was the
of
trial at No.
the
44, any
by
attempt
prosecute
the Commonwealth to
the
now
against Joy may
by
jeopardy
for this offense
be barred
double
consid-
erations.
130
364,
447 Pa.
LaLonde,
v.
Commonwealth (1972). whether, need by charging display
We
not decide
of
of corruption
“obscene” literature as the substance
of a
minor,
to
the Commonwealth
bound
prove
in
Ap-
materials were “obscene”
the constitutional sense.23
of
pellant’s
specific
motion was
LaLonde burden
—that
obscenity
had
met.
held
proof
not been
LaLonde
cases, the
had the
of establishing
Commonwealth
burden
challenged
pru-
as to the
material’s
community standards
redeeming
lack of
as well
appeal
rient
and utter
social value
LaLonde, however,
patent
as its
offensiveness.
was over-
Rodgers,
ruled in 1974
v.
459 Pa.
by Commonwealth
(1974);
23. We
that our crimes
minors,
display
materials
18 Pa.C.S.
offense
sexual
5903(c).
is violated
the dissemination of either
That section
§
minors,
“explicit
materials” to
each of
"obscene materials” or
sexual
fully
carefully
pari
Since
materia
which is
defined.
statutes
together,
statutory
special
§
should be
Pa.C.S.
construed
general statutory provisions,
provisions prevail
Commonwealth
over
Soltis,
(1983); 1
Pa.Super.
we
§
II. APPEAL FROM NOS. 29 and 31 Appellant raises five issues as well as several sub-issues in this appeal. general Those (1) issues concern: alleged defective nature of informations, (2) alleged double violation, (3) jeopardy evidence, (4) sufficiency trial court’s denial appellant’s mistrial, motion for a and (5) the trial court’s failure to give missing a charge. witness Because of our disposition issue, of the second we need only (1) address issues Alleged
1. Defective Informations Appellant’s first assertion of error is that the trial court in erred denying his motion quash the informations (a) because they were: overly vague unspecific as to the dates on alleged which the place, (b) offenses took incorrect in citing to a section of the crimes code which had repealed, (c) been improperly signed by an assistant district in attorney violation of 225(b). Pa.R.Crim.P.
We dealt with these identical issues in appellant’s appeal from Nos. 28 and and our determination in appeal is conclusive here.24 appeal In the appellant’s from Nos. we dismissed claim overly vague that the informations were on the basis that the offenses continuing Niemetz, were offenses. supra. Commonwealth v. Like- wise, the alleged continuing informations at Nos. 29 and 31 offenses against girl October, 1979, span each over the three-month from December, through 1979. From the evidence established at the trial 31, however, of Nos. 29 and fairly the offenses could not be character- "continuing” against ized as offenses each victim: the victim at No. 29 occurring testified to unusual events on two truck rides with October, day one and an incident the bus about one week thereafter; only the victim at No. 30 testified as to the same two truck day Appellant request rides with one in October. did not "continuing” generally alleged delineation of the offenses in the infor- mations, Particulars, merely via a quash Bill of but moved to for vagueness quash having as to date. The motion to been directed to informations, language continuing nature of the of- alleged fenses therein was sufficient to withstand the motion. *39 Alleged Jeopardy
2. Double Violation the Appellant’s assignment second error concerns issue 26, 1980, jeopardy. January of double On the was 28, 29, 30, under the four criminal at Nos. arrested actions 8, 1980, hearing 31. one February preliminary On was 28, 9, 1980, on Nos. and 31. a May held On held four suppression hearing regarding all cases. Thereafter, the consolidate for Commonwealth moved to 30, trial No. 28 with and No. No. 31. The No. 29 with consolidation, that all appellant objected to four arguing or, alternative, separately, cases should be tried in the all four cases should in one The consolida- be combined trial. tion motion was in the Common- granted conformity with Thus, request. trial was for Nos. 28 and wealth’s scheduled 15, 1980; July 10, on and for Nos. 31 on May 30 29 and at transpired The trial Nos. 28 and 30 as scheduled on 16, May 1980. The was sent out to deliberate judge and was unable reach a verdict. The trial declared 16, a mistrial on 1980. Retrial did not occur until May 22, 1980. October 10, Nos.
Immediately prior
July
to trial of
29 and 31 on
1980,
quash
moved to
the informations. He
Nos. 29
from
argued that
offenses at
and 31 arose
at
episodes
already
same criminal
as the offenses
tried Nos.
30,
against
proscription
28 and
under the constitutional
supra,
v.
fur-
jeopardy,
Campana,
double
Commonwealth
The
denied
prosecution
ther
was barred.
trial court
motion,
appellant’s
and the
ensued resulted in
trial which
minors in
corruption
conviction
each information.
The double
clause of the Fifth Amendment
jeopardy
against
a criminal
multiple punishments
defendant
protects
prosecutions
Abney
or successive
for
same offense.
States,
97 S.Ct.
L.Ed.2d 651
431 U.S.
United
Dinitz,
(1977);
96 S.Ct.
United States v.
U.S.
(1976).25 In implementing
indecent and corruption charges assault of a said pertaining to Bobbi Jo Marshall. The charges lodged against appellant at No. 31 and were indecent assault minor, corruption charges of a said pertaining to Julie Lynn trial, Marshall. Both girls testified at and their testimony that the unmistakably displayed charges at Nos. 29 and 31 episodes arose from the same criminal prosecuted at Nos. 28 and 30.
The Marshall moved into a family home close to the Circle October, “S” Ranch in 1979. Three of the Marshall girls, Michelle, Jo, Julie, Bobbi and frequently Joy associated with Paucke, who their was cousin and lived close by. Soon in, after the Marshall’s moved Joy girls asked the three to They come over to her house. did so and all four of the girls appellant’s went to the horse N.T. July barn. 10 and 11, 1980, 24-25, at There 58-59. Bobbi Jo and Julie met the time, appellant for the first and he offered to drive the four girls from the to his up girls agreed, barn house. The and all four of them into got appellant’s pickup sat Joy truck — up appellant, front with the and the other three sat 25, portion rear at pickup. Appellant Id. 59. drove a 25. The Fifth Amendment double jeopardy binding clause is on the through Maryland, states the Fourteenth Amendment. Benton v. 395 784, (1969); U.S. 89 S.Ct. L.Ed.2d Commonwealth v. Grazier, 481 Pa. A.2d distance, and Michelle with stopped, Joy.
short switched further, little and Bobbi stopped, drove a Jo Appellant 25-26, at with Michelle. Id. 59-60. Bobbi Jo switched up appellant, was front he testified that when she with and legs, her tried to unbutton her touched between 26, 33-34, 43-44. moving Id. at The truck was blouse. Appellant and she out of the slowly, jumped stopped cab. into pickup. climbed the back of the pickup Bobbi Jo front, The appellant get up Id. at 26. wanted Julie to but she refused. Id. at 59-60. drove the four to his appellant girls
The then house Patty two little named they played girls where with Afterwards, for about an hour. Id. at Crissy drove the four back to house. all appellant girls Joy’s They pickup in the front with appellant, sat seat of with Julie Joy’s appellant in the middle. at 61. The sitting lap Id. to reached his hand under Julie’s blouse and tried unhook told he did. stop, her bra. She Id. at 61, 68. girls Joy’s at house for two to three stayed four
hours, at evening, and ate dinner. Id. 61. Later that stopped Joy’s He told that he by. grandmother if way Perry’s Sport Shop, on his and asked she girls up if the to ride anything, needed wanted with girls go, 62. The decided to and all four of him. Id. *41 Enroute, in the the pickup appellant. them rode cab of with girls “dirty” show the books contain- appellant the tried to and men.” Id. ing pictures “naked women naked at Perry’s Sport Shop, spent and little They 62.26 reached then the girls time there. The offered to take to appellant Freeze, he to sit him. the Dandee but wanted Julie beside to Joy’s lap 63. Julie moved over sit on next to Id. at Joy’s Id. at 64. On the back to house appellant. way the Freeze, appellant tried to again from the Dandee show at 28. “dirty” appel- them books. Id. Julie testified actually got the out. Bobbi Jo could not It is not clear who books 26. remember, appellant Joy get and Julie stated that the told them behind the Id. at 62-63. from seat. “put my legs belong.” lant his hand between where it didn’t if appellant girls at 64. The then asked four any Id. him They them wanted to “rub them” “feel them.” at responded negatively. Appellant dropped Id. 64-65. off house. girls Joy’s Bobbi Jo recounted an additional incident which took She, Michelle, place one week later. were roughly Joy sitting edge appellant’s on the of the bed converted there, and he asked if appellant school bus. The them books, replied to look at “no.” they “dirty” they wanted appellant at 30-31. The told them that he had a scar Id. 31. tried to and could not have babies. Id. at legs, his hand Bobbi Jo’s and she told him to put between alone, girls at 32. The then left leave her which he did. Id. door of the bus. by jumping out back facts, episodes From these it is evident that the criminal involving epi- the same criminal Bobbi Jo Julie were trials, In Joy. sodes that involved Michelle and both each such, girl present, they testified that the others were and as were multiple ideally victims—a situation suited to the concept “single episode.” criminal Commonwealth v. Green, supra.
Furthermore, there can no that the be doubt Common- wealth was that the offenses against aware Bobbi Jo and Julie coincided the criminal incidents Mic- concerning with helle Joy. inception From the of the Commonwealth’s prosecution these four proceedings, of these cases were handled as one—the was arrested on all four on the same for the day, preliminary hearing four cases was held in proceeding, suppression hearing one and the pertained Cognizant four cases.27 of the factual all crimes, simultaneity of the the Commonwealth nevertheless determined that No. tried No. and No. 28 should be with 29 should in this be tried with No. 31. Trial manner early investigation If the Commonwealth’s of the four cases fell them, exhibiting overlap short of an between Commonwealth was surely apprised girls together during the four were certain of testimony preliminary hearing. these elicited at the incidents
136 not right a violation of constitutional appellant’s threatened a arising for conduct from placed to be twice jeopardy Campana, su- Commonwealth v. single episode. criminal pra. occurring simultaneously
While it is that the evident tried Nos. 30 31 should have been crimes of and together, posture appellant’s jeopardy objec- double Here, misplaced. argues tion have may been 1980, 11, 29 10 and was barred July trial of Nos. and 31 prior 28 and prior prosecution only Nos. 30. time, 30, at that prosecution of Nos. 28 which existed 16, May was the mistrial of
A
tried
foi the same
may
defendant
be
twice
if his first
jeopardy
offense without a violation of double
a
for
of “manifest
trial concluded
verdict
reasons
without
v.
497,
Washington,
Arizona
434
98 S.Ct.
necessity.”
U.S.
Perez,
v.
824,
United States
(1978);
717
9
54 L.Ed.2d
v. Murry,
579,
(1824);
Commonwealth
6
165
Wheat.
L.Ed.
White,
504,
Commonwealth v.
(1982);
498
137 following or consented to the declaration of mistrial quested verdict, any to reach a he waives claim jury’s inability necessary. the mistrial not Common- manifestly that was Bartolomucci, supra. v. wealth argument of appellant’s jeopardy
Our evaluation double therefore, requires, that we examine the trial court’s decla- ration of mistrial in Nos. 28 and 30. If the trial court’s if manifestly necessary, declaration mistrial was not neither nor consented to that decla- requested ration, his in subsequent trial Nos. 29 and 31 would be § 110(3). barred. See Pa.C.S. Johnson,
We are constrained to
in his
observe that
J.
concurring
dissenting opinion,
position
takes the
Supreme
the recent
Court case of
v.
Richardson
United
—
States,
—,
(1984),
U.S.
104 S.Ct.
Johnson, J. final interprets holding broadly this mean that the failure of the to reach a verdict is never an
event which terminates original jeopardy, and so double jeopardy is never concern upon retrial. This interpreta- tion overlooks the express Richardson court’s reliance upon Perez and Logan which in fact established the manifest necessity determination of whether jeopardy double had Thus, been violated. the manifest necessity analysis must be considered as implicit the final holding of Richard- son, which did not even discuss the issue of whether the declaration of mistrial had been manifestly necessary.
Furthermore, the Richardson court made the observation that:
Where,
here,
as
there has
only
been
a mistrial resulting
from a hung jury,
simply
Burks
does not require that an
appellate court rule on the sufficiency of the evidence
because retrial might be barred by the Double Jeopardy
Clause. See Justices
Boston Municipal Court v.
——,
Lydon, 466
1805,
U.S.
S.Ct.
— —, U.S. at 104 at S.Ct. 3085. This recognition that retrial might be barred by double jeopardy clause directly evolves from considerations of manifest necessity. Justices Boston cites to United Scott, States v. 437 U.S. 98 S.Ct. (1978) 57 L.Ed.2d for the streamlined proposition that the double jeopardy protects clause against retrial after a declaration of a mistrial in “certain circum- — Boston, stances”. Justices U.S. at n. 104 S.Ct. turn, 1813 n. In it is United States v. Scott which describes these “certain circumstances” relying on the manifest test necessity of Perez: “The fact that the trial judge contemplates that there will be a new trial [following a declaration of is not conclusive on the issue of mistrial] ____ double jeopardy the trial court’s discretion must be exercised with a careful regard for the interests first de- scribed United States v. Perez.” 92-93, 437 U.S. at S.Ct. at 2194. evident,
It is therefore, that Richardson does not over- rule the established necessity manifest upon examination a claim jeopardy following double a declaration of mistrial. proceed We must with such an examination.
Unfortunately, we cannot at this time conduct an exami- nation of the mistrial at Nos. 28 and 30. The transcript of this proceeding is not part of us, the record before appellant states that the trial court directed the court reporter not to transcribe notes of from testimony aborted trial of Nos. 28 and 30. Appellant’s brief in Nos. 29 at 3-4.
Accordingly, we must remand court, this case to the trial and direct that the notes of testimony May 15 and 1980, be transcribed. Jurisdiction of appeal in Nos. 29 (No. 80) and 31 PHL is retained.
III. APPEAL FROM NO. 44 Appellant raises six issues as well as several sub-issues in appeal. this general Those (1) issues concern: alleged defective nature of the information, (2) sufficiency evidence, (3)the trial court’s appellant’s denial of motion for mistrial, (4) testimony by a Commonwealth witness not *45 trial, listed prior (5) to cross-examination of appellant re- vealing matters, other criminal (6) the trial court’s refusal give to a missing witness charge. We address these issues in order. Alleged
1. Defective Information Appellant’s first assertion of error is that the trial court erred in his motion denying quash to the information (a) because it vague was: overly and unspecific as to the dates on which alleged (b) offenses took place, incorrect in citing to a section of the crimes code had which been repealed, (c) improperly signed an by assistant district attorney violation of 225(b). Pa.R.Crim.P. appeal in appellant’s these identical issues
We dealt with is 30, appeal in that and our determination from Nos. 28 conclusive here.28 Sufficiency
2. of the Evidence evaluating The test for claims on the suffi based ciency of the evidence is:
[W]hether, viewing evidence in the light favor- most Commonwealth, able to the and drawing all reasonable inferences Commonwealth, favorable to the there is suffi- cient evidence to every find element of the crime beyond doubt____ a reasonable The Commonwealth sustain may its proving burden of element every of the crime beyond reasonable doubt means of wholly circumstantial evi- dence____ Moreover, in test, applying the above entire trial record must be evaluated and all evidence considered____ actually received must be Finally, the fact, trier of while passing upon the credibility of witness- es and the to weight be afforded the produced, evidence is evidence, all, free to believe part (citations or none of the omitted) 572, 576-77, Pa. 403 A.2d Harper,
Commonwealth 536, 538-39 light, in this the record reveals the evidence
Viewing following: 44, McMillan,
Pamela the victim of the crimes No. Sue family when her acquainted appellant became with in the at the Circle “S” Ranch on weekends began camping 17, 24, In the July summer. N.T. 16 and 1980 at years Pam was thirteen old and had summer of for three Id. at 63-64. One appellant years. known the up Pam’s came family weekend in the summer Ranch, and at appellant’s sugges- at the “S” camp Circle in the tion, help while his wife was left Pam going Pam to assist with hospital.29 against alleged continuing offenses at No. 44 information 28. extending period of four to five for a July from victim weeks. *46 appellant on they Pam with the that left testified 29. Pam’s mother the that it was in July 27. Pam testified Sunday, Id. at 1979. August. Id. at 68. middle of chores, hear the appellant since would not household and during night, if the called the telephone ringing hospital (The sleep telephone. was to on the couch the Pam aid). hearing a hearing had difficulties wore appellant Sunday. left on parents Id. at 68. Pam’s and brothers friend, Paucke, grand- Pam’s asked her Sunday, Joy On at night. slept Joy’s if Pam could the Pam stay mother Pam and Sunday night. Monday, house on Id. at 70. On help hay. the to him cut Joy appellant went with tractor, took turns Joy drove the and Pam and appellant of the field driving pickup parts truck around pickup, The back of the appellant working. which was an cap, which was covered with a contained assortment 71-72, if questioned anything 79-80. When tools. Id. responded that at the Pam happened day hayfield, unusual in the Joy had “sexual intercourse” with appellant truck, her to watch out for pickup back of the and had told explain what she meant cars. Id. at 72. Pam was asked intercourse,” and after some hesitation by “sexual nervousness, top of a got able to that a man specify was Id. at put penis “privates.” his her sexual lady open she see into back 76-78. Pam stated that could had appellant truck. at 79. After pickup Id. and she he asked Pam Joy, intercourse” with “sexual appellant.30 to have “sexual intercourse” with agreed pickup with got at 81. Pam into the back Id. down, his put penis and then appellant, pulled pants he her appel- testified that legs. her Id. at 82-83. Pam between at 84. touching “private place.” her Id. penis lant’s minutes,” and then the just “couple This lasted episode they in the truck and drove to put the tools back the horse barn. Id. at 84-85. residence, and Shirey at the
Monday night, Joy stayed room slept in the bunk while Joy Pam and next Tues- day, at 85. The in his own bedroom. Id. slept Joy that if appellant had threatened her Pam testified that the him, would tell they with he their didn’t have sexual intercourse acting at 81-82. parents they like “lesbians.” Id. were *47 day, Pam and the Joy again helped appellant in the hayfield. Pam testified that boy there was a his riding motorcycle area, in around and nothing happened. unusual Id. at haying, 86-87. After the appellant dropped Joy off at her home, and he and Pam Shirey continued to the residence. Id. at 87. night
That in following supper, Pam was the bunk room appellant and the in if came and asked her she wanted to some appellant up watch movies. Id. at 88. The set and her projector depicted showed two films. The first film a naked and woman two naked men. One man “was on top woman], and the other one her sucking was [the breasts,” and then the positions. two men switched Id. at The film portrayed 88-90. second a naked man and a naked woman on ladder. The naked then into the couple went they bedroom and were at 90. Pam stated “screwing.” Id. that she hadn’t used in any other word court which meant the same as thing “screwing,” and she understood the term got top to mean that a man on of a his in lady put penis the lady’s “private spot,” “up and then the man went down and back and forth.” Id. at 90-91. When the movies ended, chest, the appellant tried to feel Pam’s and asked her if kept he could. Pam refusing, finally appellant quit asking, sleep and went to his own bedroom. Id. at 91-93. out of the Nothing ordinary happened Wednesday,' The had Thursday Friday. appellant’s wife returned Thursday. Saturday night, home on Id. at 95. On while appellant’s sleeping, appellant wife was showed Pam a thing vibrator. Pam described it as a “white that runs with batteries” and indicated that it was ten to inches twelve long. Id. at 98. The Commonwealth introduced as Exhibit # 1 a that the turned appellant white vibrator had over to police. appellant at 151. Pam recalled that the had Id. girls they got said it was “for to use when don’t their appellant put or husband.” Id. at 98. The then boyfriend it on her at 99. placed legs. batteries the vibrator and Id. Nothing Pam at 100. else occurred wearing jeans. Id. night. Tuesday. appellant events ensued until The No untoward hairdresser’s, and then along took his wife to the Pam went appellant in the appellant hayfield. with work down, him pull pants tried to Pam’s but she refused let at 100-101. do so. Id. Joy again accompanied appel- Pam and Thursday,
On there, hayfield. they lant to the While were Id. at 102. Pam Joy.” had “intercourse with [her] her, top was on he told related that while *48 Appellant’s penis his Pam’s Joy penis. to hold was between that it “inside of me” and that it legs and she testified was Pam told the off of appellant get hurt. Id. at 104-105. her, he Id. at 105. complied. parents
Pam’s returned to the Circle Ranch the next “S” following Sunday. and she home with them the day, went evidence, appellant the of this the found the On basis assault, indecent statutory rape, corruption guilty argues a minor. The that the evidence was insuf- appellant rape convictions for statutory ficient to sustain his of a minor. corruption statutory rape of the con sufficiency
As to the viction, that to the points to the rule constitute appellant slight. must rape, penetration, offense of there be however Bowes, 625, 74 Pa.Super. v. A.2d 795 Commonwealth (1950). us Pam’s re testimony then directs Appellant in the While Pam stated garding hayfield. the first incident her, she had “sexual intercourse” with appellant placement penis as the of his activity only described his N.T. “touching” “private place.” July her her legs between 17, 1980, agree that this 16 and 84. While we penetration, appellant over testimony did not substantiate inci testimony regarding the last subsequent looks Pam’s he penis had fondle his while was appellant Joy dent when top Pam: Pam? [appellant’s] penis exactly, his Q. Where was A. Inside of me.
Q. you? Inside of
A. Yes.
Q. Did it hurt you?
A. Yes.
it is a
penetration,
This is
direct evidence of
clearly
regard
pene-
rule that
to the element
longstanding
with
tration,
injured person—
of one witness—the
testimony
rape.
can
sufficient to sustain a conviction of
Johnson
be
(1971);
445 Pa.
Joy as follows: Pam’s direct examination field, did Now, hay any- out Q. you when were Monday. on day that thing happen you unusual A. Yes.
Q. What was that? Joy He had sexual intercourse with appellant] A. [the he told me to watch out for cars. N.T. 16 and at 72. July Pam, time
Q. during you staying that were with testified, times has Shirey’s, you other than the have Mr. happened you that between anything there been yet? haven’t told us Shirey you about Yes. A. tell me and where it
Q. you happened, Would what happened? inter- hay having
A. he was down field Thursday me Joy. course with me, Pam,
Q. tell on that —at you happened Will what time? A. He told to hold his Joy penis.
Q. penis? He told to hold his Joy A. Yes.
Q. And you doing? what were top
A. He was on of me while he told her.
Id. at 102-104. Now, him
Q. Okay. you appellant] did talk to [the charges]? other occasion these any [about A. Yes.
Q. And how did that come about? A. He called down at our house—he called down at our *50 knew, police house before the and he— I hear what Q. Stop just you a second because couldn’t He at house? your said. called down Yeah, me, and one time
A. he called down asked for was Joy pressing charges— he told us about at 109. Id. court motions for a mistrial repeated
The trial denied so against Joy on the basis that the offenses were inextrica- Pam, together against the offenses that bly woven with eliciting testimo- testimony concerning Joy necessary appellant’s of conduct towards Pam. Id. 110-111. ny to the that were to be concerned clarify jury they only To McMillan, the four trial charges pertaining with the Pam gave following court instruction: Jury, may THE Members of the there have COURT. charge charges reference this a or been witness to we not here concerned and should not with which are be them, you any concerned with nor should make inference specif- or You are four way one another. concerned with guess charges. any testimony any ic reference or or Any make anything completely as to else is irrele- you vant, you disregard anything are instructed else. Now, counsel, continue. you will Id. at mistrial, refusing
In a motion for it granting to determine is within the trial court’s discretion primarily occurred, and that will not prejudice whether determination flagrant reversed absent a abuse of discretion. Com be Gardner, (1980); 490 Pa. 416 A.2d monwealth Fields, A.2d Pa.Super. Commonwealth v. (1983). management find error in the trial court’s We no of appellant’s “other evidence and the denial crimes” motions for mistrial. general rule that “other crimes”
Appellant resorts to
the commission
is
inadmissible because
usually
evidence
another,
and the
proof
one crime is not
commission
upon
of such
is nevertheless bound
testimony
effect
a defendant.
prejudice against
to create
Commonwealth v.
Burdell,
Noting
380 Pa.
Strict to the customary recitation of the rule might lead to this shortsighted obvious, result. It is how- ever, that the infrequently encountered “res gestae” or “same transaction” exception is suited to this ideally situa- tion.31 The trial court recognized the thrust of the “res gestae” exception by observing that the facts were inex- tricably together, woven and commenting that the appellant merely was fortunate that he was not charged with the against offense N.T. Joy. July 16 and at 74. The “other crimes” evidence proper under the “res gestae” exception. step second of the test for the admissibility
“other crimes” evidence involves the balancing probi ty of that against evidence its prejudicial impact. Com monwealth v. King, supra. The trial court must weigh: side, on the
... one the actual for need the other-crimes evidence in light of the issues and the other evidence available to prosecution, convincingness evidence that other crimes were committed and that the actor, accused was the and the strength or weakness of the other-crimes issue, evidence supporting the and on other, degree to which the will be probably roused by the evidence overmastering to hostility. MCCORMICK, 453; supra, at see also Commonwealth v. King, supra; Commonwealth v. Bradley, supra. nature, By very exception rarely its this surfaces. This is so because, transaction, part if two crimes were of the same compulsory applicable consolidation would be and the two crimes would be tried together thereby obviating any objection improperly that one crime — However, influenced the other. there are instances where two crimes arising from the same transaction are not consolidated —sometimes (as inescapable severance is either desired where a defendant crimes), pleads guilty to one of the sometimes the Commonwealth crimes, prosecute only chooses to one and sometimes consoli- merely Only dation is overlooked. in these uncommon situations does the part circumstance that the crimes are of the same transaction present evidentiary exception permit itself as an evidence of one crime to be at a admitted trial of the other. test, it is balancing this apply
In attempting situation was not contem gestae” the “res apparent second of admissibili prong formulation of this plated exclude, conveniently it to isolate possible While is ty. from of a distinct type “other crimes” evidence necessary, if crimes” do so with “other charged; we cannot the crime By on trial. of the criminal event part evidence which is evidence definition, or “same transaction” gestae” “res *52 deed. of the whole inseparable part crimes” is an “other balancing prejudice Thus, endeavor it is nonsensical to a crimes” against the rule “other exception to where the excep “same transaction” gestae” the “res or evidence is tion. discretion in court did not abuse its the trial
Accordingly, Indeed, complained the to a mistrial. refusing grant admissible, the trial court took and properly evidence that the instructing only precaution further Pam for their consideration. charges involving were by Surprise Testimony 4. Witness trial, requested that appellant to Immediately prior At that sequestered. be witnesses the Commonwealth’s they planned revealed juncture, the Commonwealth mother, object- The appellant McMullan.32 call Pam’s Carol a had not listed as McMullan been ed on the basis Carol An- in information or the Commonwealth’s in the witness The for a Bill of Particulars. Request to Defendant’s swer identification of all witnesses requested had Particulars, responded by Bill and the Commonwealth a indicating “Commonwealth witnesses listing certain July witnesses.” N.T. not call additional may may or 17, 1980, at 5-7. Her testify. McMullan to allowed Carol The trial court the dates on which Pam was covered testimony primarily appellant, “S” Ranch with left at the Circle Carol McMullan appellant. with the familiarity family’s marriage, during her first was McMillan last name 32. Pam’s mother’s marriage. July following N.T. her second and McMullan also related that she place discovered what had taken officer, an through investigating and then Pam had confess- ed “it” to her. Id. at 32. if
Even
is
witness
called whose name is not
or
complaint
particulars,
bill of
sufficient
must
prejudice
be
found to entitle a defendant to reversal. Commonwealth v.
Layman,
Pa.Super.
Thus, the essence of surprise Carol McMullan’s tes *53 timony was not sufficiently prejudicial require to reversal of his conviction. Appellant
5. of Cross-Examination examination, On direct appellant testified that he and 13, 1980, his police wife went to the barracks on February and there he signed a consent to search because “There is of, in I I nothing my house am either ashamed or that am 17, 1980, not let willing you July to see.” N.T. 16 and at police 195. The had asked the if he a appellant owned vibrator, appellant’s They and the wife said she did. went residence, to the Shirey appellant’s back wife re- police. trieved the vibrator and turned it over to the Id. at 193-94, 197. cross-examination, prosecutor question
On tried to appellant by stating about what he meant that he had had, hearsay objection If she would have been valid. to hide in his at 206. The
nothing prosecutor house. Id. in confusing questioning; upon his but close examina- tion, it is that the to original point trying evident he was that, make was at the at police time the told the house, that he in he nothing barracks had to hide his that the knew vibrator was there. Id. at 207. in difficulty comprehending prose- had questions, pages testimony
cutor’s and after four on this 206-10, subject, appellant’s interjected. Id. counsel Appellant’s questions counsel stated that the prosecutor’s answered, had been and that he was afraid that continued on this questioning subject would indicate to possibly there was other material in the house at an earlier time. Id. at 210-11. The trial court ruled that the prosecu- right questioning, tor had a to continue this line of but him wary framing questions cautioned to be his to suggest facts at 212-14. beyond charges. this set Id.
Cross-examination continued in this for three more vein pages following exchange and then the took testimony, place:
Q. you you your Can tell me whether meant answer to the to having nothing your relative house be ashamed of to 1980? apply only February A. What was the date now?
Q. the date that came to February they your house to ask for the vibrator? paper,
A. If that’s the date that’s on the that’s the date. I don’t recall.
Q. your apply only Did mean statement to that you date?
A. I getting you. am not I house to
Q. you nothing my When said have be *54 of, I go crap, ashamed that there is no need to to all this said, nothing did mean that had you you you think is what 13, of, in on 1980 to ashamed your February house be house to ashamed anything your never had be you of?
151 honor, MR. BERTANI: Your again, according to my prior objection, we make a Motion for a Mistrial. well, THE Very COURT: motion denied. You may answer the question. you Did understand the ques- tion?
A. We are of speaking the very day about the vibrator thing?
Q. Right. That’s the day about, I am talking and I am asking you—
A. At that day, there was nothing my house which I had to hide.
Q. well. Very
MR. May BERTANI: we approach Bench, your Honor.
Id. at 217-18. Appellant again moved for a mistrial on the that, basis in eliciting testimony the effect that on that particular day there was nothing to be ashamed inof house, the could infer that on some other there day, might have been something to be of in ashamed the house. Thus, asserts this questioning improperly referred to other criminal matters.
Cross-examination is a vital and fundamental
part
trial,
of a fair
right
denial of the
of full cross-ex
amination of a witness on the substance of his direct
is
testimony
error of a constitutional dimension. Common
Lopinson,
284,
wealth v.
427
(1967),
Pa.
152 on direct to appellant’s testimony
The examination he in his house ashamed nothing the effect that had to be of, on this opened queries the door to Commonwealth’s find no abuse of discretion. subject. We Missing Charge
6. Witness Commonwealth, in answer to the re- appellant’s its Particulars, Joy for Bill of listed eyewitnesses, a two quest Joy nor Michelle Paucke and Michelle Marshall. Neither Commonwealth,34 requested testified for the missing given. July a N.T. 16 and charge witness be 1980, 17, at 261-269. Jones, 488,
In
v.
455 Pa.
“[Wjhen potential
only
witness
available
trial,
special
it
has
appears
to a
this witness
parties
issue,
this person’s
material to the
testi
information
cumulative,
party
not
then if such
mony
merely
would
be
witness, the
testimony
of this
produce
does not
an inference it would have been unfavorable.
may draw
McCormick,
Evidence,
(1954).
Also
534
See
Law
See
(1972),
Ralston,
447 Pa.
Id. 455 Pa. at special outlined the additionally court The Jones previously had listed the Commonwealth situation where for the witnesses trial: to call witnesses
“There
no
Commonwealth
duty
is
even eye
on a bill
indictment or
appear
names
whose
investigation
witnesses,
it
after examination or
if believes
belief,
unreliable, or
unworthy
is
testimony
that their
a case
The law
such
or irrelevant.
surplusage
Paucke,
Joy
but immediate-
called the name
The Commonwealth
testimony could not be
her
her
ly
“withdrew”
because
thereafter
Joy
never took
stand.
the dates on
information.
confined to
merely requires a District
Attorney
notify
Court
he
and defense counsel that
does not
to call
intend
certain
appear
whose names
on the
of indictment as
persons
bill
Palermo,
witnesses.
v.
Commonwealth
Commonwealth
540;
Pa.
Deitrick,
81 A.2d
v.
Commonwealth
7, 14, 15,
Pa.
In 401 Commonwealth v. 485 Pa. A.2d 335 (1979),our supreme court further law pertaining refined the to to notice a defendant that listed witnesses would not be Gilman, called. In the listed unable to testify witness was through no Commonwealth, fault of the the and defendant given was not sufficient notice to call him. Since the in defendant neither Gilman asked to call the witness at time, nor any contended he would called him if have he available, were the court found no in the trial error court’s to by refusal allow comment attorney defendant’s that an inference adverse should be attached to the Common- wealth’s failure to call the listed witness. Here,
We find Gilman the controlling. expressed never to call desire either Michelle Joy upon that they Joy notice would not be testifying. certainly to him subpoenaed available she had because been the present Commonwealth and was for N.T. the trial. 16 July 166, 265; and supra. at see footnote No mention was made in the record as to Michelle’s availability; however, not he appellant did indicate that would have her if assuming called she had been available. Even Michelle was to the it did not appellant, appear unavailable that she had to any special information material the case— trial, from the at Michelle was never involved testimonv Thus, Pam. concerning of incidents there was no any give refusal to the proffered error in the trial court’s charge. missing witness reversal, no
Appellant having ground Judg- for raised (No. PHL80) is at affirmed. ment of Sentence No. JOHNSON, J., concurring dissenting opinion. files a JOHNSON, Judge, concurring dissenting: appeals judgments I from join disposition and 44 of I also in the join of sentence at Nos. infor- appellant’s claim of defective majority’s disposition of Nos. 29 and 31. appeal mations in the analysis I from respectfully majority’s must dissent at Nos. 29 and 31 of 1980 jeopardy double claim that case for transcription its determination remand view, 1980. In testimony May my the notes of an examination of trial court’s declaration mistrial *57 neces- manifestly that declaration was determine whether the as I understand it. sary inappropriate is law May a trial 28 and 30 on 15 and Following at Nos. reach and the trial was to a verdict unable 22 and declared a mistrial. On October judge charges. retrial held on these same term, last Supreme In the States Court’s United — Court, —, U.S., v. U.S. deciding Richardson (1984), principle L.Ed.2d 242 reaffirmed the S.Ct. agree on a verdict was an “that a of the jury failure ”. necessity’ Id. at S.Ct. 3085. instance of ‘manifest hung jury that “a is not an holds Because Richardson at 104 original jeopardy,” Id. event which terminates no to review the tran- 3086, there would be reason S.Ct. trial. script first appellant’s remand of majority’s must dissent from the
I therefore purpose 31 of for the Nos. 29 and Í980 appeal at 28 and first trial of Nos. proceedings reviewing 30. I
Since find merit in the double argument, no I jeopardy dispose would of the other raised issues on this by appellant separate appeal. Finding arguments concerning motion, denial of a mistrial the failure give missing charge, the sufficiency witness of the evidence to be merit, I judgment without would affirm the of sentence at Nos. 29 and 31.
Submitted March 1984. Sept.
Filed