Commonwealth v. Walker

re- proved to pleaded and holding gence that must ignore Price’s that we should (death injury) loss damages for a plain legal cover is on the same a veterinarian treatment. by a veterinarian’s and war occasioned other medical professions and words, a breach of allegations of extending professional negligence rants other Price, cause medicine. at are to state concepts veterinary bailment insufficient 222, an who has against 680 A.2d at 1152. As intermediate a veterinarian action court, luxury injury appellate we do not have an animal which suffers treated Price, overturn, ignore, exceptions or create not survive the treatment. or does Supreme 219, a decision of at The denial 1150. brought Court, have which limitations been argument sounds Appellant’s bailment appellate claim, attention our to this Court’s trespass to chattel knell to his death See, e.g., occasions. brethren numerous fact that fatal flaw lies whose Castillo, 395, Pa. v. alleged under professional negligence (2005) voiced (Supreme A.2d 775 Court this claim either. of this disapproval its decisions any no merit in Accordingly, finding appellate court to the extent intermediate claims, judg- we affirm the Appellant’s exceptions that created to Common ment appealed. Lord, v. A.2d 306 wealth Judgment affirmed. (1998), and addressed issues that should waived); have been deemed Common ¶ KLEIN, J., in the concurs result. Jones, 520 Pa. wealth (1989) (“we 51-52 take this colleagues our that Superior

remind Superior authority Court does not have the [Penn to determine that decisions longer are sylvania Supreme] Court ‘no [...].’”); controlling Dietrich v. J.I. Case Co., 1272, 1279 Pa.Super.

(1990) (Pa.R.C.P. constitutional, Pennsylvania, held COMMONWEALTH of any and further in this re determination Appellee could emanate from the Su spect Court; mention the re preme “We also WALKER, Appellant. Robert Supreme pointed minders in the Court’s Court, ex [Superior] to this statements Pennsylvania. Superior Court Court, that Opinions by that we pressed Argued March (or rules) its decisions ignore [...].”)(cid:127) Aug. Filed read Price to still Consequently, to the precept and hold fast be viable negli- professional of action

a cause cleaner,” opens the door for "dry which Appellant is fact that review article negligence con- professional practice veterinary conclusion equated medi- Price veterinary medicine. legal cepts extend to provided by also cine with services Price, Appellant A.2d at 1152. professions each in- because other education, persua- knowledge, provided has this Court specialized volved distinguish Price from argument distinguishes sive the veterinarian This skills. at bar. “mechanic” or case the above-referenced David A. Regoli, Kensington, New for appellant. Petrush,

Judith P. Assistant District At- torney, Commonwealth, Greensburg, appellee. ELLIOTT, P.J.,

BEFORE: FORD STEVENS, MELVIN, ORIE LALLY- GREEN, KLEIN, BENDER, BOWES, GANTMAN, SHOGAN, JJ.

SHOGAN, OPINION BY J.: Walker, 1 Appellant, Robert ap

peals the order entered June 2006, in the Common Pleas of County Westmoreland that denied his om pre-trial nibus motion to dismiss on the grounds jeopardy.1 Upon of double re view, we affirm. outset, jeopardy grounds At the appeal- observe that the denial of a is final and pre-trial seeking discharge motion immediately. on double ed See Commonwealth But- and stated on both counsel sidebar the criminal information filed oc- 4, 2004, testify penetration did not Appellant, who was twen- I.B.

October time, years charged the incident.4 After cross- ty-eight old curred examination, where his con- aggravated indecent assault stated age of years the victim is than thirteen at- less the Commonwealth would cern that (18 3125(a)(7)), § through hearsay. indecent as- Pa.C.S.A. to its case tempt prove 2/7/06-2/8/06, less than thirteen Trial, sault where the victim is at 81. N.T. (18 3126(a)(7)), §

years age of Pa.C.S.A. ¶ concern, Following his statement of (18 corruption of minors Pa.C.S.A. with a discussion judge the conducted 6301(a)(1)).2 charges § resulted These of I.B.’s regarding the introduction counsel to alleged from incident that have was treating personnel to medical statements pool on Appellant’s swimming occurred in testimony. their penetration through about 29, 2004, I.B., ten-year- involving June a judge the at 81-84. The ordered Id. female.3 old research the issue and called parties to ¶ questioned by treating medical When jury. for the Id. at 85-90. lunch recess incident, stated, personnel after the I.B. return, judge to the trial jury’s Prior the verbiage, Appellant albeit in a child’s that concerning the argument in camera heard digitally penetrated vagina, her that he state- admissibility of LB.’s issue her anus penetrated penis, with his treating medi- penetration ments about that penis he forced I.B. touch his while argued personnel. Appellant’s cal counsel swimming in Appellant’s two were inadmissible that the statements were alleged I.B. that at- pool. Appellant also because, view, hearsay majority in his tempted to kiss her on the mouth after to medi- the statements that I.B. made of swimming pool exited the and that he personnel purposes were not made for cal touched her chest. diagnosis and treatment. of medical that However, I.B. that the Commonwealth asserted response, testified purpose her Appellant vagina touched and anus but these statements were for touching that the her treatment and should be admitted done over bath- medical Upon the See Pa.R.E. ing suit. conclusion of LB.’s as substantive evidence. 803(4).5 of argument, At the testimony, judge direct the trial called conclusion I.B., initials, ter, purposes of our Pa.Super. her for 552 A.2d 703 n. (1988) (citation omitted); Bryson, see also Common See Commonwealth v. discussion. 602, 633, Bolden, wealth (Pa.Super.2004) 1103 n. (1977) (Pursuant "exceptional pro- (changing to initials in child’s full name exception judg to the final circumstances” ceeding involving juvenile). rule, pretrial applica ment "... denial of a ground tion to dismiss an indictment on the prove aggravated indecent 4. To the crime will the defen that the scheduled trial violate occurred, must assault the Commonwealth right placed not to be twice in dant’s prove penetrated, that the defendant first appealed be before new trial genitals slightly, the or anus of the however held.”). body part for victim with defendant's medical, good any purpose than faith other infor- 2. The record reflects that criminal procedures. hygienic, or law enforcement matter was amended on Janu- mation 3125(a). § 18 Pa.C.S.A. charge aggravated See ary add (18 child Pa.C.S.A. indecent assault 3125(b)), felony degree. § first 803(4) provides follows: 5. Pa.R.E. diagno- purposes of medical Statements alleged appears name 3. The victim’s full record; however, made for sis or treatment. statement we will refer certified judge permitted the trial lengthy argument, the Common- 8 After the trial judge wealth to question agreed Appellant’s medical assertion personnel and concluded that regard- about LB.’s foundational re- statements 613(b) Trial, 2/7/06-2/8/06, quirements Pa.R.E. had to ing penetration. N.T. satisfied before of LB.’s statements at 127-183. medical personnel could be treated as sub- After returned to court- Likewise, stantive evidence. room, the Commonwealth conducted its ex- that, despite also found LB.’s testi- mother, amination of I.B.’s who testified mony that did speaking she not remember Appellant I.B. told her .. there anwas inade- vagina touched her in her tried kiss quate foundation for admission those her, and that’s when I dialed 91Í.” Id. at 613(b).- pursuant statements to Pa.R.E. Thereafter, the con- ¶ Thereafter, the Commonwealth re- ducted its examination of several quested that the judge permit trial the medical who testified that I.B. Commonwealth to lay recall I.B. to the did, Appellant fact, told them that pene- required foundation for admission of the her vagina trate and anus. in conformity statements the with judge’s ruling. Trial, 2/7/06-2/8/06, N.T. 7 The trial the day, continued next objected at 261. Appellant I.B. whereupon being to Appellant objected to testi- the that, recalled suggested although and mony of the personnel the medical asserting rested, yet Commonwealth had not that, the regardless 803(4), of Pa.R.E. the ef- judge quash should or ag- sever the fect of the personnel’s testimony, medical gravated indecent assault Id. charges. at including testimony the previ- offered the 284-285. The trial both day, denied the ous was I.B. impeach through to the Appellant’s requests and Commonwealth’s extrinsic evidence of her prior inconsistent and declared a sua sponte, stating mistrial vaginal pen- statements about and anal following: the etration. Consequently, Appellant con- tended that the Commonwealth obli- going There is to granted be mistrial gated Court, the procedure follow set imposed by forth the the out 613(b) (concerning Pa.R.E. impeachment of a to simply separate need this case through of a witness extrinsic evidence of from this because of utter im- statement) an inconsistent to introduce the possibility this Court explaining personnel’s testimony respect medical with things instructing and this ade- to I.B.’s regarding pen- quately statements can fairly so deliberate etration.6 way to a verdict in the case. There’s too treatment, purposes justice of medical require, or medical otherwise extrinsic evi- treatment, diagnosis contemplation prior dence of a inconsistent statement describing history, and past or or if, witness is admissible sensations, present symptoms, pain, or or witness, examination inception general or character (1) statement, written, to, if is shown or thereof, cause or external source insofar as written, if not its contents are disclosed treatment, reasonably pertinent diag- or to, witness; contemplation nosis in of treatment. (2) given the witness is an 613(b) explain deny making provides, part, Pa.R.E. state- in relevant as ment; follows: (3) (b) given opposing party opportu- is Extrinsic evidence inconsistent question nity statement of witness. Unless interests the witness. much that has been testified that —that I ignore can’t instruct them to this be—I’m going I’m to direct that case So, in time.

point that’s where we are. declaring [Pa. a mistrial under I’m mis- going grant grant the 605(B), declaring I’m R.Crim.P.] —not nobody’s really making because under the that there’s motion I’m going for the mistrial. law for me to declare a case mistrial, say okay, case so that this is 605(B) of the 806—of the Rules of under circumstance. the onus is on me in that Criminal Procedure. Commonwealth], think, I stated it [The know, any way you cannot in simply —

correctly to a The bottom line point. trying through think back I’m this that I’m the person supposed who’s just go unring all here. can’t back and law, argued know you whether all of rung that have at this bells been not, you finally what was available or point jury, point this time morning argued came in this some- time, instructions, just as it’s far thing that convinced had [me] impossible. yesterday, made ruling an erroneous but Trial, 2/8/06, N.T. at 285-288. time, by way that heard we’d too much. mistrial, After declaration of a my responsibility point It’s at this the trial court the court adminis- ordered up time to either able clear that to trator for a place the case on docket jury,

with the to instruct the ade- subsequently new filed an Appellant trial. quately disregard as to how can all pre-trial pursu- to dismiss omnibus motion that, simply or to admit failure ant to his federal and state constitutional inability be able to rights The trial against jeopardy. double mistrial, do that and declare the court motion to Appellant’s denied dismiss. do, going that’s what I’m I’m declar- ing a mistrial. filed notice of Appellant timely to this court’s appeal Court from trial [The Commonwealth] hasn’t rested her denial of his motion to dismiss on double point case I make which jeopardy grounds. The trial court ordered determination, I ruling. so can’t make a Appellant to file a concise statement of procedural by There’s means which complained appeal pursuant matters a ruling charges, can make about those Pa.R.A.P.1925(b) days within they-they so go drawing back to order, complied. and Appellant date of its board[;] you drawing back to the go Thereafter, trial court authored an if board. It’s what meant to avoid we presented opinion that addressed the issue today could for both the Common- in Appellant’s concise statement. defendant, your wealth’s victim and but you guys get if seem to can’t following Appellant presents the is- you point, get point. then can’t to that sue for our review: THE TRIAL COURT’S

WHETHER OF A SUA SPONTE DECLARATION MISTRIAL, A MANIFEST You have to deal with the realities of the CITING but, no, situation, just AS THE REASON WAS we can’t continue NECESSITY OF process. [APPELLANT’S] VIOLATION [have] attenuate there, DOUBLE JEOP- go. I’ve them It’s CONSTITUTIONAL got let A RE- ARDY RIGHTS AND SHOULD simple[.] TRIAL BY THE COMMONWEALTH defeated. Commonwealth v. Bartolo BE mucci, BARRED? 338, 362 A.2d 234 Dinitz, citing United States v. Appellant’s Brief at vi. 424 U.S. 96 S.Ct. ¶ 13 Our review regarding appeals from (1976). L.Ed.2d 267 It important the denial of a motion to dismiss on double note that in determining whether the jeopardy grounds following declaration of surrounding circumstances the decla a mistrial sua sponte was summarized ration of a mistrial constitute manifest panel of this Court in Commonwealth v. necessity, apply the standards es Kelly, 797 A.2d 925 (Pa.Super.2002): tablished both It is within a trial judge’s discretion to federal decisions. Commonwealth v. declare a mistrial sponte upon Mitchell, 488 Pa. 410 A.2d 1232 showing of necessity, and ab discretion, sent an abuse of that we will Pennsylvania Rule of Criminal Proce- not disturb his or her decision. Com [605(B)]provides dure that: Leister, monwealth v. (Pa.Super.1998) (citing Commonwealth When an event prejudicial to the de- Gains, Pa.Super. [383 fendant occurs only the (Pa.Super.1989)); mistrial; 870] defendant Pa.R.Crim.P. move for a 1118(b) (amended and renumbered the motion shall be made when the 2001). Rule April Otherwise, effective event is disclosed. Where there judge may exists manifest declare a mistrial for a trial judge to declare a mistrial sua for reasons of manifest necessi- sponte, neither ty- the Fifth Amendment to Constitution, the United States nor Arti In scope accordance with the of our I, § cle 10 of the Constitu review, we must take into consider Leister, tion will bar retrial. 712 A.2d at ation all the pass circumstances when 335 (citing Commonwealth ex rel. Wal ing upon the propriety of a declara Aytch, 172, ton v. 466 Pa. 352 A.2d by tion of mistrial the trial court. 4[1976))]. The by determination a trial court to Diehl, 214, v. Commonwealth 532 Pa. declare a mistrial after has [216-17], 690[, (1992)], 615 A.2d our attached is not one to be un lightly Court, Supreme when considering dertaken, since the defendant has a whether necessity manifest for the trial substantial interest in having his fate court’s sponte declaration aof mis- impan determined first existed, trial stated: Stewart, eled. Commonwealth v. Story’s 447, Since Justice opinion 616, Pa. 317 A.2d cit (9 Perez, United States v. ing Jorn, U.S. United States v. 400 U.S. Wheat.) 579, 580, 6 L.Ed. it has 91 S.Ct. 27 L.Ed.2d 543 (1971). been well settled that question Additionally, failure to consid whether under Jeopardy the Double er if there are less drastic alternatives Clause there can a be new trial after a to a mistrial creates doubt about the mistrial has been declared without propriety of the exercise of the trial request defendant’s or consent de- judge’s grounds discretion and is pends on barring there is manifest [whether] retrial because it indicates necessity mistrial, for the or the ends that the court failed properly to con public justice would otherwise be sider the significant defendant’s inter- have fol- should to the case in whether not take est set forth at Pa.R.E. procedures rel. jury. from the Commonwealth ex lowed the 613(b) testimony. Aytch, impeach 466 Pa. I.B.’s Walton Finally, it is well es- reversing its to the trial court Prior doubt relative tablished ruling, both the Commonwealth earlier the existence to whether I.B. as Appellant questioned in favor of the should be resolved treating med- she recalled what she said Bartolomucci, at 468 Pa. defendant. stated that she did ical and she 347, 362 A.2d 234. There- remember what she had said. not not formula in apply We do mechanical after, above, court indicated determining whether a trial could had a permitted person- several a mistrial. manifest need declare testify about the statements I.B. nel “Rather, Varying unique and often situ- regarding penetration, made them a crimi- ations arise the course of the ad- reversing regarding its decision nal ... trial the broad discretion [and] It of the statements. missibility to the in such cir- reserved jury repeatedly heard the wit- after the consistently has been reiter- cumstances recounting of testify nesses as to LB.’s ated_Leister, at penetration that the trial vaginal anal Somerville, (quoting Illinois v. 410 U.S. that a was nec- court determined 1066, 1069, 93 S.Ct. 35 L.Ed.2d essary. Moms, (1973)); Commonwealth v. (Pa.Su- Super 2001 PA 773 A.2d 192 noted, As the determination per.2001). by a court a mistrial after to declare Kelly, 936-937.7 jeopardy has attached is one ¶ 14 begin We our discussion undertaken, since the defendant has lightly the observation that we will not review the having his or her a substantial interest evidentiary soundness the trial court’s impan first fate determined rulings truly because are issue (citing 797 A.2d at 925 Com Kelly, eled. case. This an error-cor Stewart, 447, 452, monwealth court; recting error-finding it is not an (1974)). 616, Additionally, A.2d 619 317 Wood, court. See Commonwealth v. 833 if are drastic failure to consider there less (citation 740, (Pa.Super.2003) A.2d to mistrial creates doubt alternatives omitted), 561, affirmed, Pa. of the propriety the of the exercise about (2004). we the Accordingly, will follow grounds discretion and is for judge’s trial logic evidentiary rulings of the trial court’s it barring because indicates that the retrial in our determination of whether manifest the defen properly failed to consider court trial court to de existed the in interest whether or significant dant’s sponte. clare a mistrial sua jury. the Id. the case from take rel. v. above, (quoting Commonwealth ex Walton As indicated the trial court (1976)). Pa. 352 A.2d 4 Aytch, 466 previous ruling regarding its reversed However, rigid rule for there can testimony person- of the finding necessity since each case to them regarding nel I.B.’s statements Rivera, Commonwealth v. The court concluded is individual. penetration. about Sullens, that, A.2d Parenthetically, we 7. note as the sworn, empanelled (1992). had been case. See Commonwealth attached this declared, (Pa.Super.1998). jeop- trial be and that double Moreover, rule, general trial prohibit court ardy do not attach to principles position potential is in the to gauge best a new trial. bias and due deference is court 9/6/06, Opinion, Trial Court at 3-4. We grounds when the for the mistrial relate to agree with the trial court’s conclusion. jury prejudice. Washington, Arizona are cognizant 19 While we that doubts 497, 513-514, 434 U.S. 98 S.Ct. relative the existence manifest neces- L.Ed.2d 717 From his or her van sity should be resolved favor of the tage point, judge the trial is the best arbi defendant, we that the reiterate decision to of prejudice, ter because he or she has had sponte declare mistrial sua is left to the jurors, to observe the court, sound discretion and that witnesses, attorneys and the and evaluate appeal decision will not be disturbed on scope prejudice. Id. Kelly, absent that discretion. abuse ¶ Here, duly the trial court consid- Utilizing this standard of unique procedural ered the facts and pos- upon review and consideration of the case, ture determined that there procedural pos- aforementioned facts and no way “unring the bells” with case, we ture of conclude there was no heard, respect to what the had stated abuse discretion court’s deci- impossible that curative instructions were sion. Because conclude that the trial testimony due to the amount already due declared mistrial to manifest admitted, and found there was no necessity, we further conclude that cor- alternative but declare a mistrial. N.T. rectly denied Appellant’s motion to dismiss Trial, 2/8/06, Moreover, 285-288. on double See jeopardy grounds. id. opinion, explained:

trial court the court (when the trial court declares mistrial case, In this engaged this Court in a necessity, sponte due manifest nei- lengthy discussion with both counsel for ther the Fifth Amendment to the United prosecutor defense with re- Constitution, §I, States nor Article 10 of spect the erroneous allowance of testi- Constitution will bar re- mony, and the failure to follow Penn- trial). Consequently, we affirm the order sylvania Rules of Evidence entered June crucial examination the victim-wit-

ness. This Court made a determination ¶ 20 Order affirmed. it could not remove the evidence jurors the consideration of the sim- ¶ KLEIN, J., Dissenting files a ply by instructing them after the fact. BOWES, J., joins Opinion which recognized This Court that understand- BENDER, J., Concurs in the Result and ing applicable had law been difficult separate Opinion. files a Dissenting Court, for both counsel and the and that ¶ BENDER, J., Dissenting 22 a files jurors expect any to find it less BOWES, J., Opinion joins which difficult to understand would be ludi- KLEIN, J., in the Result Concurs and files Accordingly, crous. this Court decided separate Dissenting a only way Opinion. that the be fair [Appel- lant], and assure that the dictates of the KLEIN, BY DISSENTING OPINION followed, Rules of Evidence were would J: a again. declare mistrial and start ¶ circumstances, case, judge 1 In this a granted Under these we find that necessity required objection a of coun- manifest that mis- mistrial over the defense

1257 necessity does not necessity” Finally, while sel, and declared a “manifest court con- require the trial automatically counsel despite the desire of defense resort, last does a as a sider jury verdict with the selected. continue to less dras- court “consider require the trial the record Unfortunately, do not believe mistrial.” declaring a options before tic was “manifest necessi- demonstrates there Leister, A.2d v. Commonwealth judge’s belief that despite the trial ty” v. Arizona quoting (Pa.Super.1998), op- a There were number there was. 497, 511, 98 S.Ct. Washington, 434 U.S. have a that would tions short of mistrial (1978). 54 L.Ed.2d to continue the trial the defendant allowed Therefore, prejudice. to verdict without ¶ case, Particularly in this where erred and judge since believe hearsay testimo- by allowing prejudice discretion when he concluded his abused be irrelevant be- penetration would ny of necessity a new required that manifest enough evidence there was not cause compelled that double am find a for com- to survive motion charges those action, jeopardy requires dismissal non-suit, instruction cautionary a pulsory accordingly dissent. sufficient. have been would ¶ Particularly is the fact noteworthy where are numerous occasions 5 There required a the major charges than this one significant far more errors —which likely have a finding penetration remedy the drastic required have not —would any dismissed in event once the been mistrial. exception to that there was no found Nahavandian, v. In6 rule to the hearsay statements the notes (Pa.Super.2004), A.2d 1221 could not come in personnel hearing, testimony preliminary from the charges evidence. those substantive Once into evi- never been introduced which had consideration, longer under there were dence, room sent to the were ana- prejudice be no for the would admittedly read jurors The deliberations. case. lyze testimony the rest of the cautionary testimony. A those notes correct was sufficient to necessity is nebulous con instruction 8 Manifest Guilford, v. In Commonwealth

cept prejudice. and there is no hard and fast method police offi- (Pa.Super.2004), A.2d 365 determining when manifest suspect in Nonetheless, the defendant was high it is cer testified standard arises. cautionary instruction A “substantial robberies. into account the when take to correct error. sufficient having has “in his was deemed a defendant interest” Hoffman, 301 Pa.Su- v. jury impan In Commonwealth determined the first fate (1982), on cross- Stewart, A.2d 983 per. eled.” See Commonwealth examination, defendant, po- a former quoting officer, about his dismissal Jorn, was asked 91 lice U.S. States United in- cautionary police force. I fur 27 L.Ed.2d S.Ct. to that given. addition partner to manifest necessi struction ther note that re- also the Commonwealth question, “the ends ty granting mistrial where about inten- the defendant asked peatedly otherwise be defeat public justice would in teens as well Diehl, tionally fear local inspiring 532 Pa. Commonwealth ed.” you told us that commenting, “You’ve in 691 Diehl also A.2d 615 your stu- with ... contact physical the mani had us about “any doubt forms cemetery somewhere there a must dents. Is necessity declaring a mistrial fest Id. at 985. your students?” karate favor.” Id. full in the defendant’s resolved be ¶ In each of these a Pennsylvania Supreme instances mistrial was 9 As the given. denied and cautionary instruction Burke, said Commonwealth v. 566 Pa. Canady, Commonwealth v. Pa. (2001), quoting A.2d (1982), 459 A.2d 715 reference was made Shaffer, Commonwealth v. having about the defendant been confined 622, (1998): to a mental being institution for a sexual charges Dismissal of punishes criminal offender. case The makes no reference to not only prosecutor ... but also the any cautionary instruction and a mistrial public large, public since has' a Pursell, was denied. In Commonwealth v. expectation that reasonable those who 508 Pa. 495 A.2d 183 a first charged have been will with crimes be murder, case, degree penalty death fairly prosecuted to the full extent improper made reference Thus, law. the sanction of dismissal of to the defendant’s incarceration and charges criminal should be utilized only alleged that homosexually the defendant in the blatant most cases. Given the victim, , raped the a year boy, old even public policy goal protecting pub- though Pursell had not charged been conduct, lic from criminal a trial court that crime. cautionary instruction was should charges consider dismissal of given. Finally, note that there are innu- where the actions of the Commonwealth merable cases where the Commonwealth are egregious and where demonstrable has improperly, and in violation of the prejudice bewill suffered the defen- Constitution, referred defendant’s dant if charges are not dismissed. right silent, yet remain no mistrial was However, it our obligation is declared and the constitutional error was law, interpret existing not, like it or not to through deemed correctable instruction.8 make the law. that we believe are bound ¶ 7 If the Commonwealth can a survive by precedent and have no choice but to cautionary mistrial with instructions rule that necessity there was no manifest this, cases like that means that there are grant a and therefore a retrial remedies far short of a mistrial that could prohibited. is Accordingly, must dissent. operate this case. should There different depending standard whether ¶ BOWES, J., joins Dissenting this is the who claims that a mistrial defendant joins Opinion and also Dissenting necessary is not than it is when the Com- BENDER, BENDER, Opinion filed J. monwealth claims that a mistrial is J., Dissenting Concurs in Result of this necessary. Opinion separate Dissenting and files a I recognize pre- that the rule that Opinion. vents retrial when errs in sua sponte declaring BY DISSENTING OPINION grant punishes a mistrial the Common- BENDER, J.: particularly wealth. That upsetting be- ¶ 11 respectfully dissent. case, cause the Commonwealth strongly Aso, opposed absolutely “It is mistrial. it is the crucial to remember public having as well that is that when deprived reviewing grant of mistrial guilt sponte, determination of or innocence made “weresolve doubt’ in favor citizen, a case charges. where there are serious liberty rather than (Pa.Su- Bracey, 8. Two such cases are: Commonwealth v. monwealth Boone, (Pa.Super.2004); per.2003). 862 A.2d 639 Com- 936-37 unlimited, A.2d at Kelly, 797 based. See what could be an [of] exercise uncertain, judicial arbitrary judge may discre- declare (reaffirming and Kelly, tion.” Commonwealth v. on the basis of sponte only mistrial sua omitted). (citation (Pa.Super.2002) necessity). judgment in this By affirming the ¶ Moreover, previous the record the case, Majority the vitiates the defendant’s im- safeguards that the trial demonstrates and against double protection if observed even by Rule 613 were posed gives prosecution the another chance the Rule was not compliance with technical testimony the victim’s convict where own and prosecution Both the the achieved. undermines the Commonwealth’s claims. the victim as to wheth- questioned defense is, best, gesture empty a an Such course what she said treat- er she remembered justification by a sufficient for unsupported Pa.R.E. see ing medical decision, sponte, the trial court’s victim, turn, 613(b)(1), (2), the in stat- and point in a first trial mistrial. of end the that she did not remember what she ed fact, lay the prosecution’s the failure to Thereafter, the trial court ruled that said. testimony appropriate foundation for seek- prior victim’s inconsistent statements the ing to the recollection impeach victim’s statements, prior several permitted inconsistent could were admissible by testify have been excused the trial court in the about personnel justice” pursuant “interests to Pa.R.E. to them the statements the victim made 613(b)9. Although recognize the trial Presumably, they regarding penetration. good striving court’s faith to achieve a precisely would at new testified Rule, evidentiary by benchmark set of the without the benefit albeit the discretion the Rule itself affords the 613(b), later invocation of Rule court’s court applica- eliminates need strict ill- a but which set motion well-intended just tion whenever the resolution of the impetus toward mistrial. advised case renders untenable adherence to the re- Significantly, points by fine of procedure counseled sub- the trial court that the fact of sponded to (1), sections Because fact that she age the victim’s apply court failed to that more measured both examination and testified on direct mistrial, as an remedy alternative a not could recall cross-examination she convincing find no demonstration weighed her statements each necessity” which a trial “manifest favor of rule further the inter- court’s exercise of discretion must be relaxation prior by statement pro- Rule Evidence 613 dence of inconsistent vides, if, during pertinent part, as follows: witness is admissible witness, examination of the Rule Prior statements of witnesses statement, written, to, (1) if is shown or (a) Examining concerning prior witness in- to, written, are disclosed if not its contents consistent statement. witness be witness; prior concerning a examined inconsistent (2) given an the witness is witness, made whether statement making explain deny the state- not, written or and the statement need ment; and be shown or its contents disclosed to (3) opportu- opposing party given time, request at that but on witness nity question the witness. shall shown or statement or contents apply to admissions This section does opposing disclosed to counsel. 803(25) (b) party-opponent as Rule defined inconsistent Extrinsic evidence party-oppo- (relating to admissions statement of witness. Unless the interests nent). require, justice extrinsic evi- otherwise Trial, 613(b). justice. 2/8/2006, ests of realities, See N.T. I at Pa.R.E. Given these 257. I in that concur assessment.- Given ground can find little common with the that prosecution both the and the defense fact, Majority; point disposition its had the to examine the victim serves create a risk of—or poten- regarding her conversations with the conviction, which, tial even if the for— and, given that product perfect of a will stand several treating medical personnel had al- plain and, jeopardy violation of double ready subject, on this the “inter- testified coincidentally, justice.” the “interests of justice” weighed ests of in favor of the trial See id. judge relaxing the Commonwealth’s strict my view, 7 In court’s order compliance requirements. with the Rule’s should be reversed and the defendant dis- true, This is especially neither Appel- since charged. Majority As the declines this lant sought nor the Commonwealth a mis- course, respectfully I must dissent. stage trial at that proceedings. view, my these circumstances eliminate ¶ BOWES, J., joins Dissenting any possibility that Opinion joins also Dissenting and might have existed to sustain court’s KLEIN, J., Opinion KLEIN, J. filed grant of a mistrial. Concurs in Result of this Dissenting (cid:127) ¶ 6 Because conclude Opinion files a separate Dissenting and court’s declaration of a sup- Opinion. ported by necessity,” “manifest I would also conclude court abused its subsequently

discretion when denied the motion defendant’s to dismiss the current prosecution on double jeopardy grounds. Kelly, See 797 A.2d at 942. recognize that such ruling would eliminate the possibility that the charges most serious will information ever' be resolved PEARSON, Andre’ S. Petitioner Likewise, court. I am aware of well complexity presented issues in this

case, judge’s and learned UNEMPLOYMENT COMPENSATION at- tempts REVIEW, to resolve those OF properly issues BOARD Nevertheless, impartially. Respondent. cannot Majority’s compromise countenance the Pennsylvania. Commonwealth Court of rights, defendant’s constitutional first to have trial completed expeditiously, his 2,May Submitted on Briefs being put second to avoid “twice 11, 2008. Decided June life or limb.” U.S. Const. Aug. Publication Ordered Const, V; I, § amend. art. 10. See 109(1). § rights also 18 Pa.C.S. These are

paramount and never be subordinated rigid Evidence, adherence to a Rule especially where record reveals that requirement Rule’s was satisfied in substance, permits Rule itself its justice, relaxation in the interests of see

Case Details

Case Name: Commonwealth v. Walker

Court Name: Superior Court of Pennsylvania

Date Published: Aug 7, 2008

Citation: 954 A.2d 1249

Docket Number: 1249 WDA 2006

Court Abbreviation: Pa. Super. Ct.