Commonwealth v. Stewart

con- The matter is remanded for further proceedings sistent with this opinion. Pomeroy Nix concur in

Mr. and Mr. Justice Justice result. dissents. Mr. Chief Justice Jones Appellant. Stewart, 1973. Before C. Jones, Argued September 28, J., Nix and Mander- Eagen, O’Brien, Roberts, Pomeroy, JJ. INO, M.

Norman for Yoffee, appellant. Richard A. District Lewis, Deputy Attorney, him Marion E. District MacIntyre, Deputy Attorney, S. District for Leroy Zimmerman, Com- Attorney, monwealth, appellee.

Opinion Mr. Chief Justice March Jones, 1974:

On March Frederick Charles 18, 1961, appellant, was found Stewart, guilty of murder in the jury first No degree. post-trial motions made and were appellant was sentenced to imprisonment life after the had jury become deadlocked on the question imposi- tion of under penalty Split Verdict Act. Follow- two ing appeals to this Court concerning appellant’s constitutional see right Commonwealth v. appeal, 430 Pa. A.2d 764 Stewart, (1968) and Common- wealth v. Stewart, 449, 257 A.2d 251 (1969), trial motion new was filed and argued before the Dauphin Court of Common County en Pleas banc. On March that court denied 10, 1971, the motion for new and a third appeal trial to this Court was taken. We and ordered a new trial on reversed the grounds that it trial error for the was not to have granted motion for withdrawal of defendant’s a juror when the court became the father of the victim aware killing panel jurors of the on the from was which had selected. been A.2d Stewart, April appellant’s On case called for was jurors trial for a time. second Twelve selected, were impaneled. Subsequent impaneling sworn and to the jury, was informed that the vic- employed tipstaff during tim’s father then as a attending jurors. session of criminal court and was judge immediately appellant The trial summoned informing position Ms after counsel them of the and, which the victim’s father he asked defense counsel held, appellant if he or wished make a motion. Counsel, appellant, after consultation with advised the court they Thereupon, would make motion. no sponte. Appellant court declared a mistrial sua filed petition corpus alleging a for a writ of habeas that a jeopardy. petition retrial would constitute double That appeal was denied and from denial followed. Initially, must we address the issue of whether 1118(b) Pennsylvania Rule of the Rules of Criminal precludes sponte Procedure a sua declaration of mis- by judge. question the trial This was touched upon in Commonwealth v. 450 Pa. Lauria, 297 A.2d 72, (1972), 906 no but conclusive resolution was achieved.1 In Commonwealth v. Pa. Brown, 395, A.2d 876 1118(b) again Rule was also adverted but to, only by plurality a of the Court.2 1 In Lauria members of three this Court —Mr. Justice O’Brien opinion the Court and Mr. Justice Koberts in a con opinion curring joined Mr. in which Nix Justice of the view —were 1118(b) precluded sponte a sua that Rule declaration of mistrial by judge. the trial plurality of the In Brown a Court reasoned 1118(b) that Rule apply mistrial, only to all motions for did not but those where an prejudicial during defendant event occurred the trial.

Rule Motions to withdraw provides: “(a) abolished, a mistrial are A motion to declare juror (b) shall be made when the event is disclosed. prejudicial for the all cases the defendant or the attorney mistrial, The ruling defendant move for a may (c) record, shall be made a part be dis When a mistrial is shall (d) declared, jury August 1968, This rule became effective charged.” Comment the rule indicates the rule for the with replace practice moving was to all motions juror. applies drawal of a Rule But Commonwealth v. Brown, for mistrial. see Pa. 301 A.2d 876 (1973) (plurality opinion). for the past regard moving withdrawal practice of a been delineated and clarified under Rule juror has declaration of The sua mistrial sponte 1118. not been changed. has The trial court, however, still the inherent under power appropriate has and in the of justice circumstances interests to declare being this matter mistrial, governed, before, clause of the Fifth jeopardy the double Amendment Constitution. of the United States Common See, e.g., 453 Pa. 306 A.2d Wideman, wealth 894 (1973); Shaffer, 288 A.2d (1972); cert. U.S. 867 Commonwealth v. denied, A.2d 189 Ferguson, clause jeopardy provides: The double “nor shall for the same subject be offense any person to be twice life or limb... .”3 jeopardy Jeopardy attaches put The double impaneled. jeopardy when clause, mean that time every does not a defendant however, trial a tribunal competent before he is is put entitled trial fails to end in a free if the final to go judgment. 336 U. S. 684 (1949). Wade v. Hunter, Supreme appUcable This V. clause was held amend. S. Const. U. the Maryland, U. S. v. Benton states addressed has frequently the United States Court of clause, and the double jeopardy the of mistrials problem S. 458 410 U. Illinois recently Somerville, most or mechanical abjured consistently and has first rely upon approach the per rules, preferring se (9 U. S. in United States Perez, announced 579 (1824). Wheat.) has the Perez court analysis the

Under the jeopardy and double to abort a authority trial, trial court the takes prevent retrial, not clause will if consideration” its into “all the circumstances that “there is a manifest neces- finds “sound discretion” or ends of would be public justice for the the sity act, at 580. See (9 defeated.” U. S. Wheat.) otherwise 410 U. at United 462; also Illinois v. S. Somerville, 480-81 Gori v. (1971); 400 U. S. Jorn, States v. 367-69 Wade v. (1961); 367 U. S. States, In Gori v. United U. S. at 691. States, Hunter, the breadth of a Supreme emphasized Court supra, declare a discretion to mistrial: trial court’s deemed compelling by reasons “Where, make is best situated such intelligently who judge, the ends of substantial cannot be justice decision, discontinuing without mistrial attained declared without defendant’s consent may be and he even over his be retried con- objection, may the Fifth Amendment.” 367 U. S. with at sistently This has added). (emphasis previously forth set guidelines Supreme above followed E.g., Wideman, Court. pivotal (1973). Hence, question

306 A.2d 894 pre- case whether sented properly discretion in finding that either its exercised manifest of public justice or ends required necessity a mistrial. declaration scope our

In accordance we must review, all consideration circumstances into when take 452

passing upon of a propriety declaration of mistrial by the trial court. The determination a trial court to declare a mistrial after jeopardy has attached is not one to be since the lightly defendant has undertaken, in a substantial interest his fate having determined by first jury impaneled. States v. 400 Jorn, U. S. in 470 “did (1971). Jorn, however, hold right not never be forced may to yield, in to The in fair public’s this interest trials case, ” in to end Illinois v. designed just judgments.’ Somer- at 410 U. S. 470. ville, these the trial weighing judge ap- at interests, second had the counsel of

pellant’s this Court’s appellant’s previous conviction be- opinion reversing there had refused grant ap- cause motion for withdrawal of under a juror pellant’s fact See identical situation. virtually A.2d 303 295 One 50, (1972).4 v. Stewart, distinction between first appellant’s factual crucial the first appellant trials was moved and second in the second the trial whereas for a mistrial, 4 possibility held that this Court even of In that case possibility reversal, prejudice required in because of an right process fringement to due the accused’s law. stated: on We doing presuming we are effect realize that what “We fairness; however, prejudice of insured this for the sake is exact Supreme ly Court did in Turner [v. States Louisi the United what employed (1965)]. Moreover, ana, the Court U. S. 546 379 Sheppard presumption Sam case in the where there awas same pretrial prejudice question result of as a stories the news Sheppard Maxwell, 333, (1966). U. S. S. 384 86 Ct. 1507 media. McCann, ex rel. United States 317 U. S. Adams v. also See Texas, ; (1942) U. S. Estes v. 381 S. Ct. Ct. 63 S. Louisiana, S. (1965) ; 373 U. 83 S. Ct. Rideau aptly Murchison, Mr. Justice In re stated Black As was system ‘our S. Ct. S. law U. prevent probability always even the of unfair endeavored has ” 56-57, A.2d at 306. ness.’ objection sponte sua declared a mistrial over appellant. important appellant’s An ramification of counseled not to for a mistrial was that decision move appellant had the trial court not declared mistrial, successfully later this failure could not have raised Agie, as error. v. See Commonwealth refraining in A.2d 741 the fact that However, declaring from a mistrial trial court have the would give necessarily committed error does rise to no not proposition taking the converse that affirmative action the tidal court erred. uncontrovertedly

A defendant and are his counsel strategy pur The masters of trial for the defense. poseful interpose timely refusal to motion when possible suggested by in defect was the trial court appellate Although from sulates that defect review. definitely acts of a defendant and his counsel most influence determination er this Court’s of reviewable question justice of whether the ends of are ror, solely served is a determination for the which Court, necessarily by determination is not affected the inter position by attorney. of motions the defendant or his insuring appellant The court was that re would by impartial jury ceive a trial a fair and which would solely return a based verdict on evidence adduced at protected trial. is an This interest which is to be not public, for but also for the defendants, which has compelling justice interest for all. See Gori (1961); Thompson United 367 U. S. 364 States, (1894); United 155 U. S. 271 States, Simmons v. United (1891).5 S. 148 U. States, Supreme recognized In Simmons the Court the United States things necessity no “There can be conditions of that: which the power manifest, prevent of this more for the exercise in order to public justice, defeat of the ends than when it is made to by appear that, existing either to the court reason of facts when sworn, jurors but not then disclosed or were known to the set forth review appellate the standard Given and the circum- Court Supreme States the United by say Court cannot of this this case, stances “manifest by not required of a mistrial was declaration We find justice.”6 of public and the “ends necessity” decision to in the trial court’s no abuse of discretion father the victim’s upon learning abort brought court, to bear on influences or reason of outside subject any jury pending jurors to such or of them are government impartial prejudice between bias or to stand not Jorn, States and the accused.” 142 U. S. at 154. pre- recognized Simmons did not U. S. the Court prejudice there definite. Court sent a situation where stated: applied as a “The Perez has since been case judge’s appellate testing exercise standard of review declaring con- the defendant’s of his a mistrial without discretion (re- (1891) E.g., States, U. S. sent. Simmons v. United pub- prosecution letter not barred where mistrial declared because newspaper impartiality doubtful) juror’s . . . .” lished rendered added). (emphasis Id. at 481 6 prohibiting previous do not decisions of this Court retrial support In v. result this ease. Commonwealth Wide similar by (1973), man, 119, Pa. A.2d a mistrial was declared 453 306 894 the for his own convenience. This Court sustained the holding jeopardy, judge’s claim of double that “a trial convenience necessity’ ‘manifest in the constitutional does not constitute sense.” Shaffer, A.2d In Pa. at at 895-96. Commonwealth 306 denied, (1972), A.2d cert. U. S. 447 Pa. objection, mistrial been declared over had defendant’s after completed by sides, in chief introduction of evidence had been both Improper basis of an comment of the on the assistant district attorney. clearly potential there much was less Shaffer present prejudice case, importantly, than in the but more the de right by not fendant’s interests consisted tried be right having particular jury, also the substantial that but case again go jury. This Court sustained the that claim of double Ferguson, jeopardy. Commonwealth v. 285 A.2d 189 distinguishable readily present (1971), from since there case granted the Commonwealth’s motion for mistrial on necessary prosecution that a the basis witness was unavailable. reprosecution Accordingly, as tipstaff. serving was Fifth inconsistent with be would not of appellant Amendment. Pomeroy join Justice Eagen and Mr.

Mr. Justitce in this opinion. by Opinion

Concurring Justice O’Brien: Mr. under that, the majority I with agree While in de- was justified the trial court facts this case, of “mani- the grounds on sponte, sua a mistrial claring analy- majority’s I not with agree fest do necessity,” this case. 1118 in of Buie connection sis Buie this case. not apply Buie 1118 does prejudicial an event to situations where only applies trial. Common- during occurs to the defendant A.2d 876 Pa. Brown, wealth A.2d 906 Lauria, of Rule the drafters an occurs, When such event send- that the choice between intended 1118 apparently risking possible thereby the jury, the case to ing and thereby the trial, or aborting effects of prejudice, by occasioned and inconvenience anxiety causing defendant and made should be a second felt the de- It probably alone. his counsel how are best able evaluate fendant and his counsel standpoint from a strategic the trial has gone well harm prejudicial caused serious will be how if are alone, feared Perhaps they, it was event. there is a where possibility this power, not given case has gone well, grounds not the Commonwealth’s created perpetration could be a mistrial for event. prejudicial some situation to which Rule 1118 applies, with a

Faced grant on his own a not, motion, should a trial mistrial, court should notify the defendant instead, if prejudicial event, and, his counsel and wish, or Ms counsel does not for defendant move a the court should conduct an on-the-record mistrial, colloquy, jury, in the absence establish that prejudicial the defendant is aware aware event, of the risks if his case continues, and, nevertheless, knowingly voluntarily proceed chooses to with the trial. reasoning

In the instant on the case, other hand, apply. behind Rule 1118 does not trial had First, strategic question not started. No was involved. prejudicial no Second, had In- event occurred. been stead, court had informed that situa- might produce prejudicial tion existed which event unchanged. Considering if left that one trial had already been reversed because the victim’s father was position prejudice jury’s in a Com- determination, monwealth v. Stewart, 295 A.2d 303 considering responsibility that the had insuring only justice for not the ends of were they appeared but served, appearance to be served—which surely would be threatened if a court were allow father of a homicide victim to serve court officer in the trial of that homicide—the declara- certainly justified tion a of mistrial was in this case. Concurring Opinion by Mr. Justice Nix: agree I 1118(b) Pa. R. Crim. P. re- does not judge’s right move the trial to declare a mistrial sua sponte. compelled I my feel, however, to set forth rea- arriving for sons at that conclusion. 1118(b) provides, pertinent

Rule part, “. . . In all attorney cases the defendant or the for the defend- may apparent ant move for a mistrial.” It is that the power Rule is directed to the litigating attorneys power to move not mistrial, to the of the trial ob- sponte. to declare a mistrial The rule’s judge sua attorney that the is to assure defense purpose vious make not should be able to such prosecutor but the reason it any motion. There is no to believe the of powers to affect the inherent way attempted power.1 if in the court such inherent fact had court, In my traditionally pos criminal courts have view, The ultimate of any sessed such power. purpose primary is to ascertain truth. One of the judge’s the the guardian integrity as ultimate of obligations re the be adjudication of the trial is to assure that extraneous considerations. solved without influence Im States, Simmons v. U.S. an of obligation grant the creation of is plicit necessary accomplish those powers obligation. sua grant a mistrial essential power sponte one of the of the insuring integrity charged circumstances arise where it may Fortuitous process. for the trial uninter- proceed becomes impossible of and irrele- highly prejudicial Introduction rupted. involving security problems material, vant death, or in the serious illness a my- participants may disrupt circumstances combine to other riad of from it its basic func- prevent serving proceeding of truth. Where pro- ascertainment i.e.,—the tion — should not be aborted required been has cess an impotent incapable eunuch bring- to stand on his own. an debacle Such inter- an end to ing Rule would afford the 1118(b) defense pretation exposing before the jury extraneous and opportunity matters and deny any affective prejudicial gesting error WMle otherwise, my former I joined further Lauria, position. concurring consideration 72, 75, opinion has 297 A.2d 906 of Mr. convinced me of the Justice Roberts sug eradicating improper means of the effect of this influ- upon ence the verdict.2 running

Of order to avoid afoul of the course, prohibition against jeopardy, reason double his for act- ing upon finding necessity be must based of manifest public justice or ends of would otherwise be defeated. Gori United 367 U.S. 367-9 States, my exposure jury view the of the to pregnant possibility deceased’s father was so with the improper judge properly of that the trial influence, necessary declared a mistrial. It is not to find actually any father communicated with the in illegal way justify very a such result. The nature of position by the crime and the involved held the de- impropriety great ceased’s father created an air of so as to demand a mistrial. can “There be no condition things necessity of in which for the exercise of this power prevent is more in order to manifest, the defeat public justice, of the ends of than when it is made to appear by to the court either that, reason of facts exist- ing jurors when the were but not then sworn, disclosed or known to the or court, reason of outside influ- brought jury pending ences to bear on the jurors any subject or them preju- are to such bias or impartial government dice as not to stand between the and the accused. As was well said Mr. Justice very a case like that now before ‘It us, is an Curtis discretionary entire mistake to authority confound this protect part of the one court, of the tribunal from corruption prejudice, right or challenge party. a equally allowed to And it at is, least, a mistake suppose justice, in a court of party that, either can contempt may punishing be a attorney While means of an it way improperly in no remedies a verdict that was reached. Where highly inflammatory the material is of a nature a corrective in gesture. be a futile would struction juror, corrupt prejudiced or right have a a vested United case.’ of the judgment fit to sit is not who Simmons 1 Curtis C.C. 37.” Morris, States 154 (1891). 142 U.S. States, attorney and his fact the defendant While the be evidence may for a mistrial to move declined change necessarily it does not of prejudice degree incompetent been may counsel have Defense outcome. another unrelated set been aware of he have may or the defense he was so favorable to circumstances To the face prejudice. of this to continue willing from to abort the trial, judge acting the trial prohibit proceeding would make the in such a circumstance, prejudices rather than countervailing contest between based on relevant evidence. resolution of truth I feel that interests reasons, For all of these to declare mistrial. required justice Pomeroy joins this concurring opin- Justice Mr. ion. by Opinion

Dissenting Roberts: Mr. Justice a for the creates new role plurality strange Today criminal in a case—that of judge supercounsel the The decision plurality’s empowers the defense. an impose upon sua over judge sponte accused, tidal an counseled unwarranted mistrial. objection, explicit defense of the function in usurpation Such judicial the essence double jeopardy guar- destroys case from the refusal to plurality’s I recognize dissent antee. guarantee. that denial of at its announced arrives result aby The plurality of error, departure from speculation, gallimaufry legal principles. an- controlling concluding that not unconstitutionally place would the ac- other for the same jeopardy offense, twice plu- cused Rule Pennsylvania Criminal nullifies Proce- rality specifies only which 1118(b), defense may dure repudiates plurality move for mistrial. The also Com (1972), monwealth v. 450 Pa. Lauria, A.2d 906 expressly 1118(b) which announced that rule “excludes by grant ‘not a motion the Commonwealth but ” by of a mistrial the court on motion.’ Id. at its own 75, 297 A.2d at 907. plurality insignificant dismisses

Moreover, possible appellant any the critical fact that waived rejects prejudice. plurality too So Shaffer, 288 A.2d cert. denied, U.S. 93 S. Ct. 164 There this Court held speculative impressions possible prejudice are constitutionally insufficient to sustain a conclusion necessity. Ignored plurality’s also re manifest requirements sult are the inexorable of the Fifth Amendment of the Constitution of the United States. declaring previously While Court has “[t]his guidelines followed the set forth [United ... Supreme plurality States] now Court,” chooses to legal principles abandon the announced that Court, other federal our Court. courts, jurisprudential plu unsoundness inherent in the rality’s determination is revealed the realities of exposition the trial record. “[a] Because full factual necessary understanding appellant’s an double jeopardy United States ex rel. contention,” Russo Superior (3d Cir.), Court, 483 F.2d cert. denied, 94 S. Ct. 447 U.S. critical facts fully. must be stated year ago, appellant’s

About a this Court reversed degree of murder conviction first and awarded erroneously new trial because denied appellant’s timely motion for a mistrial. Common- Stewart, wealth 50, 295 A.2d 303 began Appellant’s April trial new on 9, 1973. jurors and two alternates Twelve were im- selected, paneled p.m. It and sworn. was then 3:13 and a recess trial to the bench ordered. The returned was p.m. jury, summoned at 3:47 the absence of the he prosecutor, appellant, and and defense counsel, the presence [De Mr. Yoffe their stated: “The Court: make an fense the Court has announcement Counsel], you, Fletcher trial] sir . . . Mr. Stewart’s first [At Dorothy killing, father the of the victim of Smith, jurors panel on the of from which Stewart, had been and had been the same selected, jurors hearing the case for as room with the who were long days. and a half That essence was the as two factual reason led the decision and reversal which Pennsylvania [by] Supreme [in Court Common (1972)1]. wealth 295 A.2d Stewart, Mr. Mr. Stewart, Yoffe, I, “Now, just Attorney Judge, have the District been advised Attorney to the District unbeknown same person, the father of Fletcher of victim Smith, Dorothy killing, was sworn on the first Stewart, day tipstaff Criminal Session as a this Court with upon duty attending jurors sworn who were impanelled up consequence, Term. for this As a ato throughout ago, Fletcher all few minutes Smith of last today, exercising, say, week and has been his sworn duty attending to the needs and care and so forth of panel jurors. any contact Fletcher Smith had

“What has jury, only speculate. member I individual could might any jurors What Fletcher Smith have said to speculate. coming up, 1 can this trial about you I “That the situation. Mr. do ask, Yoffee, any have motion to maket I May

“Mr. Yoffe: have minute to consult with Mr. Stewart? accurately, grant it was tlie court’s More refusal timely upon motion for a mistrial

defendant’s disclosure which grant to reverse conviction required a new trial.

“The Court : sir. Yes,

“Me. Yoffe: Your I have discussed the Honor, apparently matter to Mr. Stewart and he understands options his and what can be done I and what can do attorney presenting as his a motion to the Court pertaining matter to this and what his alternatives are presented. explaining things, if no motion is After those apparently Mr. Stewart and he has indi- understands, cated his desire to me that we make no motions at this response you just time in to the information that have given right, to us. Is that Mr. Stewart?

“Me. Stewaet: sir. Yes, “Me. Yoffe: Did understand you what I said? Yes, “Me. I Stewaet: did. you

“Me. Yoffe: And proceed? wish to “Me. Stewaet: Yes.”2 colloquy appellant specifi-

This discloses that was cally informed the court of the relevant circum- willingness and stances of its to entertain a motion for appellant After mistrial. consultation with counsel, fully options. was aware of his His counseled decision, clearly judge, communicated to the was not to move for specifically requested a mistrial. He trial con- Despite appellant’s voluntary knowing tinue. and re- “any motion” fusal to make and his articulated choice proceed immediately judge with the sworn, sponte a mistrial appellant declared sua ordered Appellant’s be recommitted to incarceration.” “to trial p.m., barely at 3:56 aborted nine minutes after the judge’s disclosure that Fletcher Smith “was sworn day the first of this Criminal on Court Session as a doing tipstaff.” purely so, acted on only speculate” conjecture; “I he said could whether any jurors father had contact with victim’s only speculate” anything, if might “I can what, 2 Emphasis added. coming this trial juror

have been “to about any said up.” a writ

Appellant subsequently petitioned that, light habeas corpus. petition alleged retrial would unconstitution- circumstances, described also It was jeopardy. twice ally place appellant Rule of Criminal Procedure Pennsylvania asserted in this Court Common- construed recently 1118(b), pro- Pa. 297 A.2d (1972), wealth Lauria, aof sua declaration sponte judge’s hibited and or- petition denied the mistrial. The trial remain bail incarcerated without dered appellant retrial.3 pending

I. 1118(b) Rule of Criminal Procedure Pennsylvania “A to declare a mistrial shall be motion provides: In all is made the event disclosed. prejudicial when attorney or the for the de- the defendant cases (Emphasis added.) for a mistrial.” may fendant move 450 Pa. 297 A.2d 906 In Commonwealth Lauria, in 1118(b), accordance with rule Court, this of an whose as accused discharge trial, ordered aborted a trial sua judge’s sponte had been here, mistrial. Justice there of a Mr. declaration O’Brien “The rule is language clear, stated: specifically intendment inter to remove its obvious is, alia, and to declare sua mistrials power from trial judges A.2d at 907. Id. at Today, explicit sponte.” and its of rule “obvious intendment” 1118(b) language absolutely. rejected are soundness of rule and this pragmatic 1118(b) Lauria is If readily apparent. decision

Court’s and his for a motion is mistrial, grant- moves defendant See Commonwealth v. Wide- is permissible. retrial ed, Dauphin County Stewart, Rptr. (Pa. 1973). C.P. 306 A.2d

man, If the motion for a mistrial is improperly denied, only conse- of the trial quence court’s error is a as new case it result this when was before us. very last See Commonwealth v. 295 A.2d Stewart, if a (1972). And, plurality correctly notes, fails move for a he defendant then is fore- mistrial, closed from issue on raising appeal.

Only the court acts on its motion when own mistrial manifest declares a without re- is necessity, prosecution barred. To avoid unnecessary our risk, rule denied trial 1118(b) judges right If the sponte. declare mistrials sua express language and “obvious intendment” of rule are 1118(b) followed, double jeopardy obviated. The problem plu taking view rality, however, by dissenters recreated the hazard of very double Lauria,4 jeopardy violations adherence to rule 1118(b) Lauria avoids.

II. is refusal only It plurality’s recognize rule command of which a explicit creates here 1118(b) case of We constitutional dimensions. therefore must consider fifth amendment appellant’s claim. Specifi- must be it determined whether the constitutional cally, against double proscription jeopardy will be violated circumstances of if, particular case, appel- trial. again lant stand Here, must judge, or appellant’s request the. absence consent and solely 4 declares, plurality “The trial court still has the inherent power appropriate and in circumstances under interests of justice precisely . . .” a mistrial . This to declare formulation is Lauria, they the dissenters in stated, the one advanced where [1118(b)] deprive does not and should not “[T]his rule a power appropriate under his inherent circumstances and in the justice a to declare mistrial.” Lauria, interest of Commonwealth v. 906, 77, (1972) (dissenting 72, opinion). A.2d 908 297 Pa. 450

465 on basis Ms stated sua de- speculation, sponte clared mistrial. is “if

Reprosecution impermissible a mistrial is de clared ‘manifest or the de necessity’ without without fendant’s or consent . . . .” Commonwealth v. request 453 Pa. 306 895 Wideman, 119, (1973). 122, A.2d 894, v. United States 400 U.S. 91 S. Ct. See, e.g., Jorn, 470, v. 22 (1971) ; (9 States U.S. Perez, Wheat.) Commonwealth v. 451 Pa. (1824); 395, Brown, A.2d 876 Commonwealth 450 Pa. (1973); 72, Lauria, 297 A.2d Commonwealth (1972); Shaffer, 288 A.2d cert. 409 U.S. 93 S. denied, Ct. 164 Commonwealth v. 446 Pa. (1972); Ferguson, 285 A.2d 189 (1971). jeopardy Once jury sworn, attaches.5 Once jeopardy has Constitu attached, tion an guarantees right accused the “valued to have his trial tribunal . . . .” completed by particular [that] Wade v. 69 S. Ct. Hunter, U.S. 684, 689,

Appellant did not neither did request mistrial; he consent to it. To the he specifically contrary, reject- ed invitation for a court’s to move mistrial and instead decided with the sworn. The proceed Commonwealth and the argues, evi- however, plurality that the sua declara- dently agrees, judge’s sponte tion of the mistrial was because of proper manifest necessity.

Although Supreme United States Court has not announced inflexible rules what defining circumstances constitute manifest that Court “has necessity, always judge’s may declare mistrial recognized reprosecution without barring extraordinary Almeida, A.2d (1950) ; denied, 924, U.S. cert. 339 70 S. Ct. 614 Curry, (1926) Fitzpatrick, ; Commonwealth v. A. Pa. 135 316 287 (1888) ; Commonwealth, Alexander v. A. 121 Pa. Commonwealth, (1884) ; (1853). McFadden 23 Pa. 12 Supe United States ex rel. Russo v. circumstances.” rior at 13 supra (emphasis added). Moreover, Court, these Court has held Supreme consistently demon circumstances must be extraordinary factually there and strated. other must be words, necessity, must be manifest. The record necessity present fails to establish or otherwise. necessity —manifest for the basis deci-

Conjecture speculation —the are con- both the trial and the sions by plurality, a conclusion of stitutionally incapable supporting ac- manifest its necessity. plurality speculation cepts, judge’s assump- without factual basis, tion that Fletcher sworn court violat- Smith, officer, ed his oath by illegally seeking, court setting, case. Faced jurors try influence called to this with into the unknown plurality steps record, might have infected guesses tipstaff’s presence prejudice against appellant. It Frederick Stewart who had the to be right protected prejudice. from Yet Frederick fully Stewart, informed the court and advised by his lawyer, declined the court’s for knowingly invitation to move a mistrial. decided to Instead, appellant continue with jurors sworn to his case. this counseled try By rejected any notion of decision, appellant prejudice. there any the trial? Where, then, ground aborting previously rejected This notion that mani necessity upon fest be based a trial may judge’s specu lative impression possible prejudice. Commonwealth 288 A.2d cert. Shaffer, denied, Ct. 164 All other U.S. 93 S. courts which on similarly have ruled this issue have concluded that imagined possible prejudice is constitutionally insuffi a conclusion of cient to sustain manifest necessity. See, States v. Walden, F.2d 925 (4th Cir. e.g., on other grounds, modified F.2d 1015 1971), (4th 409 U.S. Ct. denied, cert. S. Cir.), (1972);

467 (E.D. Supp. 284 F. States Burdick, Compton, People 1968) 3d. 490 P.2d 537, 6 Cal. ; Judges Rptr. (1971); Ferlito v. Cal. 340 N.Y. County N.E.2d 31 N.Y.2d 416, Court, App. (1972); Ga. Brindle v. cf. State, S.2d 187 S.E.2d Appeals held:

Beeently, York Court the New possi- subjective appraisal Judge’s remote of some “The completely bility the ambit of bias was without necessity’ must be that ‘manifest well-established rule justification Ferlito . .” . . of a mistrial shown supra Judges County N.E.2d at Court, at 637. at N.Y.S.2d judge acknowledged he twice

Here, possible prejudice. only speculate” Un- “could as to plu- precedents, responsive to these well-considered venturing judge, rality into as did the errs, conjecture prejudice none was where realm of to seek shown. supra, the trial

In v. Shaffer, upon speculation jury had that the a mistrial declared possibly prejudicial remark. As coun- here, overheard any opposed mistrial and waived the declaration of sel objection, Despite possible prejudice. counsel’s mo- mistrial on its own declared a court nevertheless reprosecution unanimously held that Court tion. This jeopardy the fifth clause of the double was barred my controls this case. view, amendment. Shaffer precedential Only force can its if is overruled Shaffer compelling here be denied. reversal distinguish attempts plurality on to

The Shaff&r shaky ground near that there mistrial occurred here the mistrial declared end of while beginning. neither The Constitution makes nor near the plurality’s theory ap- The permits a distinction. such attempt by any or pears first to be the only jeopardy apply clause half the double last of a trial. Once a defendant inis jeopardy appel- —and lant here was —it definitely is irrelevant at what stage of the trial thereafter a mistrial de- erroneously clared. Limiting double jeopardy guarantee only the last half of the trial inis effect to afford the ac- cused half of his constitutional guarantee. plurality’s attempt distinguish renders Shaffer “in jeopardy” guarantee meaningless at most only —or half meaningful.

The to plurality, endeavors con- however, its justify clusion on the theory that the trial court is vested with extraordinarily broad discretion to determine manifest and that this Court’s necessity, scope of of that review determination ais limited I one. cannot agree. First, manifest “is a necessity mixed question of fact and law which [appellate can freely review.” United courts] States ex rel. Russo v. Superior Court, supra at 15. Second, with a plurality, presented record barren of a of showing judicial discretion, con- mistakenly cludes that the trial did judge not abuse his discretion. there Where is no exercise judicial of discretion, how a conclusion warranted there was no abuse of “discretion?”

Unfortunately, plurality fails to recognize that of “doctrine manifest necessity stands as a com- mand trial judges not to foreclose the defendant’s option proceed until a scrupulous exer- [to verdict] cise of judicial discretion leads to the conclusion that the ends public justice would not be served aby continuation of the proceedings.” United States v. 400 U.S. S. Jorn, 470, 91 Ct. 557 This (1971). record does not reveal such a scrupulous exercise. In- the critical nine minutes deed, disclose no exercise of discretion. judicial “a

The plurality equates scrupulous exercise of judi- cial a discretion” with ruling prompted by pure specu- lation. This equation does not balance, and I cannot erroneous accept plurality’s constitutional calculus.

469 Appeals Only recently, the United States Court “scrupu phrase explaining Third Circuit, for the judicial un declared with discretion,” exercise lous duty judge clarity “a questioned trial has that the possibilities [short reasonable exhaust all other deciding defendant[’s] [a] to foreclose before abortion] scrupulous proceed of that option The exercise .... and consider he seek out must means discretion United trial abortion.” to avoid of cure all avenues (3d Cir.), Tinney, cert. 473 F.2d 1085, States (1973) (quoting 93 S. Ct. 412 U.S. 928, denied, (4th Cir. 448 F.2d v. Walden, States (4th grounds, 464 F.2d 1971), other on modified (1972)). S. Ct. Cir.), U.S. denied, cert. judge similarly held that a trial Fifth Circuit has painstaking examination of all the facts “make must Only in after such a .... careful and circumstances judge properly vestigation dis can exercise his ____” v. Hollo F.2d 1152- well, McNeal cretion (5th 1973), 415 U.S. 94 S. Ct. cert. denied, Cir. necessity manifest doctrine “[t]he Indeed, thorough inquisition . . . demands painstaking consideration all and of all the facts into possible trial abortion.” United short of States cures requires supra at 930. The Constitution at v. Walden, judge very the trial that “consider alterna least the declaring Cheung, a mistrial.” States v. tives 1973). (5th Cir. F.2d particular does this be asked, it must record Where, possibilities?” “all other reasonable exhaustion show “seek out and consider all trial the avenues Did necessary “painstaking the was exam- Where oí cure?” investigation?” surely The “careful record ination” constitutionally-required inquiry the not disclose does alternatives.6 or consideration proper opportunity for a Clearly, exercise of discretion judge tipstaff entertained doubts whether If the had existed. The record reveals that the trial only judge, <Torn, “acted so abruptly discharging jury that, had the been prosecutor suggest disposed alter- [an or the defendant native], object to the discharge there would have been jury, no opportunity to do so. When one examines the circumstances surrounding of this it discharge seems jury, abundantly appar- ent the trial that made no effort judge to exercise a sound discretion to assure that . .. there was a mani- sua, fest for the necessity sponte declaration of this mistrial.” United States at supra Jorn, 91 S. Ct. at 558.

III. is Appellant entitled to relief on at least two violation of grounds procedural rule 1118(b) — trial abuse of discretion in judge’s manifest imagining necessity. this case could be of on However, disposed another tangentially basis discussed plu- dismisses as rality. plurality insignificant facts critically important refused to appellant for a mistrial and move affirmatively requested continue. At trial juncture, judge from the trial. precluded aborting and his appellant At counsel de- deliberately for a mistrial. clined to move Instead, appellant cre- record ated his satisfaction positive establishing selected. He never even suggested the exist- Appellant’s ence of a event. prejudicial decision even at mistrial, not court’s request invita- an admission of unequivocal the nonexistence tion, as in People Here, Cal. prejudice. Boyd, App. judge oath, could, example, questioned violated bis tile have oath. If the still under harbored Fletcher Smith doubts about questioned taint, possible jury jurors he could have the oath, under tipstaff improperly the had whether and determined communicated them. de- Rptr. 553, (1972), 3d Cal. 714, 719, “[t]lie to trial before an unpreju- . . entitled a fendant was . it. trial and refused was offered new He jury. diced [a] a as tantamount to . . be viewed This refusal . could counsel that defendant and Ms concession by Goodman See also were not prejudicial.” . . . actions Cir. (8th 273 F.2d 1960). v. United States, that this correctly recognizes pur- The plurality motion timely to a when interpose refusal poseful in- suggested by defect was possible from review. While appellate “defect” sulates that con- nevertheless plurality reciting principle, not course action “does appellant’s cludes that . . . that proposition rise necessarily give erred.” The affirmative action the trial court taldng possible that after waived this simple appellant is reply much less a manifest “necessity,” defect his no existed. necessity, reliance on Illinois

For the plurality’s this reason, Ct. 410 U.S. 93 S. Somerville, excises the plurality words entirely misplaced. from justice” opinion “ends believes public of these words can magically the incantation heal inflicted upon appellant. wound Con constitutional relied on an the Somerville “ends cededly, but not in the sense that justice” notion, public must be mindful of the phrase. uses We plurality “divorcing in Somerville from language caveat case serves its distort holdings.” facts of [a] at 1073. Unfortunately 93 S. Ct. at plu Id. “ends from public justice” the facts severs rality of Somerville. involved formal specifically defect

Somerville “could which not be waived de- an indictment and could object, be failure asserted on fendant’s post-conviction proceeding overturn or appeal Id. at of conviction.” S. Ct. judgment final at 472

1068. Given these facts, Supreme explained limited circumstances mistrial could be when in “If an justice.” declared the “ends error public would reversal on it appeal make would certainty, not ‘the public justice’ serve ends of that require if with its it proceed proof Government suc- when, it would ceeded before the be jury, automatically an by of that success court.” Id. at stripped appellate 93 S. Ct. at 1070. 464, are dealing

We here with a non-Somerville defect speculative one —a if proceedings defect, any, —a that at not could be waived but as which, correctly actually was waived plurality states, in- Since an accused can appellant.7 knowingly waive constitutional there no telligently any is right,8 7 certainty” requirement The Somerville reversal be “a recently overemphasized. cannot It be has been observed that “a apprehension sufficiently reasonable that a trial is flawed to result necessity’ not and retrial is sufficient reversal ‘manifest justify Walden, 925, v. trial abortion.” States 448 F.2d (4th 1971), grounds, (4th on other 930 Cir. modified 464 F.2d 1015 867, Cir.), denied, S. cert. 409 U.S. 93 Ct. 165 If a reason apprehension insufficient, hardly concluded, able is then it can be plurality evidently does, any pos the total absence sibility necessity. for reversal constitutes manifest 8 Phillips, e.g., See, Superior v. 121, Commonwealth Pa. 208 Ct. (1966), aff’d, 641, 863, 424 denied, A.2d Pa. A.2d 220 345 226 cert. 946, (grand (1967) jury indictment) ; S. Ct. 387 U.S. 87 2084 Pa. (same) ; 215(a) Banks, R. P. United States v. Crim. 370 F.2d 141 (4th denied, 1966), 997, cert. U.S. (1967) Cir. 386 S. 87 Ct. 1317 trial) Aeby (speedy ; States, (5th v. United 1958) F.2d Cir. ; (jury trial) Garrett, Commonwealth v. Pa. 266 A.2d 82 ; (same) (1970) (same) ; P. Pa. E. Crim. Pa. E. Crim. P. 1103 jurors) ; (trial Zerbst, than 12 Johnson v. less 304 U.S. (1938) (counsel) ; Ritchey, Commonwealth 58 S. Ct. 1019 (1968) (same) ; A.2d 446 Arizona, Miranda v. (1966) (counsel during S. Ct. 1602 interrogation) U.S. ; (8th King, Burgess 1942) (confrontation 130 F.2d 761 Cir. witnesses) Potrillo, ; 340 Pa. 16 A.2d 50 reason why appellant could not waive the oppor- to move for a mistrial tunity judge offering.

It is unquestioned that this Commonwealth stra- tegic tactical decisions are for counsel. during Commonwealth v. 297 A.2d McGrogan, (1972).9 This Court said another con- recently litigant “the text, master of his complete own cause of action in matters of he substance; may press it to the end very regardless of the facts and ar- law rayed him.” v. against Archbishop 450 Pa. Karlah, 535, 299 A.2d 539, 296 294, (1973).

The controlling fact here is that acting appellant, upon advice of the same attorney who at his 1961 trial properly requested a mistrial when he believed that appellant’s did this trial prejudiced, make a voluntary and decision to knowing refuse move for mistrial. At appellant’s earlier decision to move for a mistrial was entirely sound. On trial appeal, that decision was vindicated by this Court. Commonwealth v. 449 Pa. Stewart, 295 A.2d 50, 303 (1972). There is nothing suggest that ad- counsel’s vice to refuse to move for mistrial reflected anything but trial advocacy highest quality. Here appel- (same). (1940) McGrogan, Cf. Commonwealth v. 449 Pa. 8-12, generally (1972). nn. Sandalow, A.2d nn. 8-12 See Henry Mississippi Adequate Proposals v. and the State Ground: Sup. Doctrine, 187; Comment, a Revised Rev. Ct. Oriminal Requirements Competence Waiver: Participation, Personal Legitimate Interest, (1966). and State 54 Calif. L. Rev. 1262 primary duty Indeed, it pursue of defense counsel zealously his client’s best interests. This is fundamental to our system adversary justice. of criminal California, See Anders v. (1967) ; S. Alabama, U.S. Ct. 1396 Powell v. 287 U.S. (1932) Suggs ; States, S. Ct. 55 (D.C. 391 F.2d 971 1968) ; Jones, (1973) Cir. ; 301 A.2d 811 Responsibility, ABA of Professional Code Canon 7 to continue with choice Ms counseled lant evidenced for mistrial. to move refusing trial by definitely to pre- was sufficient waiver Appellant’s positive sua sponte from Ms imposing clude the trial judge appel- established conclusively mistrial. This waiver the trial. lant’s with right proceed waiver, plu- specific To appellant’s overcome for the use and unprecedented a new creates rality announced is The rule now justice.” “ends of public the defense’s disagrees a trial judge whenever the “ends allow justice” strategy, public studied his a mistrial and substitute thereby to declare judge for that of the strategy own of sound conception is as- judge counsel. Thus the defendant his for the de- supercounsel a novel that of signed role, fense. circum-

To a trial these permit particular than from stances to do more invite a motion counsel judicial is to sanction unwarranted intrusion into right and into the attorney-client relationship defense to decide trial to conduct its case. strategy Brooks 406 U.S. Ct. 1891 Tennessee, See S. counseled choice was to (1972).10 Appellant’s continue quiring Supreme Brooks v. an accused Tennessee, held “ ‘desiring unconstitutional U.S. 605, testify a Tennessee statute re shaU do so before S. Ct. 1891 any testimony trying for the other defense is heard the court ” (quoting Id. at 92 S. Ct. at 1892 Tenn. case.’ Code Ann. (1955)). statute, This “restrict[ed] which § 40-2403 defense— planning particularly case,” “thereby of its counsel —in and ” ‘guiding deprived counsel,’ [the accused] hand of was held process. 612-13, Id. Here, of due S. Ct. violative at at 1895. offending jeopardy guarantee, the double in addition sponte mistrial, judge’s of a sua declaration like the statute in infringement appellant’s Broohs, right as an be viewed on must disregard process the court’s because of trial due counsel's con appel not to move for a mistrial decision interfered sidered with guarantee of effective constitutional assistance lant’s of counsel. trial. with His “desire to have the proceed question or innocence resolved then guilt finally .” must be . . . Commonwealth v. impanelled respected at 288 A.2d at 733. Shaffer, supra

IV. The makes cannot be refuted. What this record clear erroneously record substantiates defense counseled upon intruded conduct of a failed “the to the defendant importance to consider confronta- and for to conclude his being once able, all, he tion tribunal society through verdict fate.” be to his disposed believe to might favorably 558. United at 91 S. Ct. at States Jorn, supra way case no circumstances of this particular third permit prosecution to a subjecting appellant the same offense violation of the double jeopardy record to take guarantee. nothing appel- shows “[T]his mold being claims outside classic twice lant's] for the same offense.” United States placed jeopardy at 91 S. Ct. at 558 C. Jorn, supra (Burger, J., concurring). entitled relief

Appellant guaranteed by to the clause of the fifth jeopardy double amendment. Manderino joins Mr. Justice this dissenting opin- ion. Carey Rundle, ex rel. States (3d

See F.2d 1969), denied, U.S. cert. 90 S. Ct. Cir. Appellant. v. Demmitt,

Case Details

Case Name: Commonwealth v. Stewart

Court Name: Supreme Court of Pennsylvania

Date Published: Mar 25, 1974

Citation: 317 A.2d 616

Docket Number: Appeal, 15

Court Abbreviation: Pa.