Commonwealth v. Diehl

615 A.2d 690, 532 Pa. 214, 1992 Pa. LEXIS 438
CourtSupreme Court of Pennsylvania
DecidedSeptember 18, 1992
Docket23 W.D. Appeal Docket 1991
StatusPublished
Cited by43 cases

This text of 615 A.2d 690 (Commonwealth v. Diehl) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Diehl, 615 A.2d 690, 532 Pa. 214, 1992 Pa. LEXIS 438 (Pa. 1992).

Opinions

OPINION

ZAPPALA, Justice.

The basic question we are asked to decide is whether the Superior Court erred in affirming the trial court’s denial of Appellant’s Motion to Dismiss the charges of involuntary deviate sexual intercourse, statutory rape, incest and two counts of indecent assault on the basis of double jeopardy. Because a manifest necessity did exist for the sua sponte declaration of a mistrial and prosecutorial misconduct was absent, we now affirm.

[216]*216In January of 1989, Amy Diehl, Appellant’s sixteen-year-old daughter, filed a complaint against Appellant. It was alleged that during a visit with her father in October, 1985, Appellant forced Amy to engage in sexual relations with him. As a result of the complaint, the formal charges, cited above, were filed against Appellant.

On September 11,1989, a jury trial commenced in the Court of Common Pleas of Bedford County. The Commonwealth rested its case following testimony by its sole witness, Amy Diehl. The defense then opened with Appellant testifying on his own behalf. During cross-examination of Appellant, the trial court sua sponte declared a mistrial following Appellant’s response to a question posed by the district attorney.

The case was again placed on the trial calendar for October 23, 1989. In the interim, the district attorney sought and obtained through the Attorney General’s Office appointment of Darlee Sill, assistant district attorney of Blair County, to represent the Commonwealth for the new trial. On October 17, 1989, following a hearing on Appellant’s Motion to Dismiss on double jeopardy grounds, the trial court denied the motion. Appellant’s double jeopardy claim was based on both Article 1 Section 10 of the Pennsylvania Constitution and the Fifth Amendment of the United States Constitution. On appeal, the Superior Court affirmed the trial court’s order. 405 Pa.Super. 625, 581 A.2d 971. We then granted Appellant’s Petition for. Allowance of Appeal.

Appellant’s first contention is that a manifest necessity did not exist so as to justify the trial court’s sua sponte declaration of a mistrial when the basis for the declaration is a conflict of interest on the part of the prosecuting attorney.

Since Justice Story’s 1824 opinion in United States v. Perez, 22 U.S. (9 Wheat.) 579, 580, 6 L.Ed. 165, it has been well settled that the question whether under the Double Jeopardy Clause there can be a new trial after a mistrial has been declared without the defendant’s request or consent depends on where there is a manifest necessity for the mistrial, or the ends of public justice would otherwise be defeated. Commonwealth v. Bartolomucci, 468 Pa. 338, 362 A.2d 234 (1976), [217]*217citing United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976). It is important to note that in determining whether the circumstances surrounding the declaration of a mistrial constitute manifest necessity, we apply the standards established by both Pennsylvania and federal decisions. Commonwealth v. Mitchell, 488 Pa. 75, 410 A.2d 1232 (1980).

Pennsylvania Rule of Criminal Procedure 1118(b) provides that:

When an event prejudicial to the defendant occurs during trial only the defendant may move for a mistrial; the motion shall be made when the event is disclosed. Otherwise, the trial judge may declare a mistrial only for reasons of manifest necessity.

In accordance with the scope of our review, we must take into consideration all the circumstances when passing upon the propriety of a declaration of mistrial by the trial court. The determination by a trial court to declare a mistrial after jeopardy has attached is not one to be lightly undertaken, since the defendant has a substantial interest in having his fate determined by the jury first impaneled. Commonwealth v. Stewart, 456 Pa. 447, 452, 317 A.2d 616, 619 (1974), citing United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971). Additionally, failure to consider if there are less drastic alternatives to a mistrial creates doubt about the propriety of the exercise of the trial judge’s discretion and is grounds for barring retrial because it indicates that the court failed to properly consider the defendant’s significant interest in whether or not to take the case from the jury. Commonwealth, ex rel. Walton v. Aytch, 466 Pa. 172, 352 A.2d 4 (1976). Finally, it is well established that any doubt relative to the existence of manifest necessity should be resolved in favor of the defendant. Bartolomucci, 468 Pa. at 347, 362 A.2d 234.

In the case sub judice, Appellant had testified that visitation with his daughter ceased after the time of the alleged rape in October of 1985 because his job, as a garage mechanic, precluded him from giving forty-eight hour notice as required by the custody order. It was the Commonwealth’s position, however, that Appellant had discontinued [218]*218visitation because of the incident with his daughter. When the district attorney on cross-examination sought to impeach Appellant’s testimony by confronting him with the fact that he was aware of his job schedule dilemma at the time he signed the custody order, the following exchange occurred which became the focus of the grounds for mistrial:

Q. I mean, you agreed to this Court Order? Is that correct?
A. Yes. You was my attorney.
Q. I was?
A. That’s correct.
By the District Attorney: May I see that exhibit, please, Your Honor.
(The exhibit was handed to the District Attorney by the Court.)
By the District Attorney: Take a look at Commonwealth’s Exhibit No. 1, Mr. Diehl. Look at the second page down at the bottom. I want you to look where it says appearances, colon.
A. Yeah, that was—
Q. “For the PlaintiffTMother, Thomas S. Ling”.
A. I came in by myself.
Q. For—
A. I came in by myself. Because I came to your office and talked to you about this whole complete situation, and you told me, and you told my wife which was in your office at the time—
By the District Attorney: May we approach the Bench— may we approach the Bench, Your Honor?
By the Court: Mr. Diehl, just wait.
(Side-Bar Conference.)
By the District Attorney: I don’t recall any of this. It may create a problem. I will continue on with the Cross Examination, but it didn’t happen this way.

N.T. pp. 90-91.

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Bluebook (online)
615 A.2d 690, 532 Pa. 214, 1992 Pa. LEXIS 438, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-diehl-pa-1992.