Commonwealth v. Murphy

422 A.2d 1113, 282 Pa. Super. 274, 1980 Pa. Super. LEXIS 3388
CourtSuperior Court of Pennsylvania
DecidedNovember 14, 1980
DocketNo. 404
StatusPublished
Cited by1 cases

This text of 422 A.2d 1113 (Commonwealth v. Murphy) is published on Counsel Stack Legal Research, covering Superior 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. Murphy, 422 A.2d 1113, 282 Pa. Super. 274, 1980 Pa. Super. LEXIS 3388 (Pa. Ct. App. 1980).

Opinion

HESTER, Judge:

Appellant Robert P. Murphy brings this appeal from an order of the court below refusing his motion to dismiss the prosecution on the grounds of double jeopardy. For the reasons which follow, we affirm the order and remand for trial.

On September 14, 1977, appellant, a police officer for the City of Philadelphia, was charged in three Informations with simple assault, aggravated assault, official oppression, and obstructing administration of the law.1 Trial commenced before a jury on October 16, 1978 and proceeded through October 27, whereupon appellant’s request for a mistrial was granted. Facts adduced at trial revealed that in August of 1976, appellant was the next door neighbor of the Trost family in Northeast Philadelphia. There had been some history of enmity between the two families as appellant and his wife had repeatedly complained about the loud and boisterous behavior of the Trosts, including unseemly lewd and noisy parties at all hours of the night. In the early morning hours of August 28, 1976, appellant and several fellow officers arrested the Trost boys and complainant Charles Murray in the Trost home for disorderly conduct. At the Seventh District station, as appellant attempted to interview Murray in connection with the arrest, an altercation erupted between the two. Murray testified that appellant suddenly became infuriated and struck him with a blackjack, while appellant insisted that he only struck Murray after Murray hit him in the face.

The events which precipitated the mistrial were as follows. To buttress the defense position that Murray was the aggressor on the night in question, appellant called Officer Fred Velez who was present in the room wherein the affray occurred. Officer Velez testified on direct examination:

As I was turning around, I observed the other male strike Detective Murphy in the chest, the detective going [277]*277backwards and instinctively coming right back towards the other male. I seen the other male bounce off or sort of bounce off the wall, his head hitting the wall, and come back at Detective Murphy again. R.R. 1275a.2

In order to impeach Officer Velez, the Commonwealth sought to call Officer Leon Hill to whom Velez had allegedly made a prior inconsistent statement. Responding to a defense request for an offer of proof as to what Hill would say, the assistant district attorney told the court:

[Assistant District Attorney] Hill would say that he went to the 7th District in November sometime and talked to Fred Velez, who showed them the room in which the incident between Murphy and Murray took place. At that time Velez, in describing what occurred, said he heard an altercation, turned around and saw Murphy going back as if he had been pushed or punched in the chest, but he did not see any contact between-he did not see Charles Murray strike Murphy. It’s to contradict that.
R.R. 1667-8a.

When Hill was called to the stand, he testified that in November of 1976, he accompanied Assistant District Attorneys Sylvester and Brown to the Seventh District Station to interview Velez in connection with the 8/28/76 incident. Hill related to the jury the substance of Officer Velez’s statement at that interview:

Officer Velez stated that on the night of the occurrence that he was inside the J.A.D. room, completing some paperwork on an arrest that he had made, when Detective Murray—Murphy brought Mr. Murray in. They were seated to the rear of him, and there was a discussion. The discussion got heated.
Just as he turned—he heard a little noise, he turned and he observed Detective Murphy up against the wall with his arm up as though he had been shoved or struck.
[278]*278Q. [By Assistant D.A.] Did Officer Velez say whether or not he saw the shove or the punch?
A. He said he did not see the actual contact. R.R. 1847-8a.

After Hill completed his testimony, appellant requested a mistrial. Following two days of arguments and additional testimony bearing on the prosecutor’s motives in presenting allegedly prejudicial evidence, the trial court (Guarino, J.) granted a mistrial, finding 1) that Hill’s testimony did not contradict Velez; 2) that the prosecutor’s offer of proof as to Hill was misleading because the testimony did not conform to the offer; and 3) the only effect of Hill’s testimony was to inject into the trial inflammatory and prejudicial evidence. When the Commonwealth sought to commence a second trial, appellant filed his motion to dismiss, which motion was denied by the court below (Marutani, J.).

The Supreme Court has recently restated the proper scope of review in a case such as we have instantly.

Ordinarily, the double jeopardy clause does not bar retrial of an accused where an earlier proceeding is terminated prior to judgment. Retrial is permitted where the trial court, because of manifest necessity, declares a mistrial over the defendant’s objection, see Illinois v. Somerville, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973); Commonwealth v. Robson, 461 Pa. 615, 337 A.2d 573 (1975); Commonwealth v. Brown, 451 Pa. 395, 301 A.2d 876 (1973); Commonwealth v. Lauria, 450 Pa. 72, 297 A.2d 906 (1972), as well as where a mistrial is granted at defendant’s request on the basis of prosecutorial or judicial error. See United States v. Dinitz, 424 U.S. 600, 611, 96 S.Ct. 1075, 1081, 47 L.Ed.2d 267 (1976); United States v. Jorn, 400 U.S. 470, 484, 91 S.Ct. 547, 557, 27 L.Ed.2d 543 (1971) (plurality opinion); Commonwealth v. Metz, 425 Pa. 188, 228 A.2d 729 (1967); Commonwealth v. Warfield, 424 Pa. 555, 227 A.2d 177 (1967); Commonwealth ex rel. Montgomery v. Myers, 422 Pa. 180, 220 A.2d 859 (1966). The only exception to the rule permitting retrial is where a defendant’s mistrial request is necessitated by prosecu[279]*279tonal error committed intentionally to force the accused to move for mistrial, thereby affording the prosecution another, possibly more favorable, opportunity to convict. United States v. Dinitz, supra; United States v. Jorn, supra; Downum v. United States, 372 U.S. 734, 736, 83 S.Ct. 1033, 1034, 10 L.Ed.2d 100 (1963); Commonwealth v. Gravely, 486 Pa. 194, 198, 404 A.2d 1296, 1298 (1979); Commonwealth v. Hogan, 482 Pa. 333, 393 A.2d 1133 (1978) (opinion announcing the decision of the Court); Commonwealth v. Potter, 478 Pa. 251, 261, 386 A.2d 918

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Bluebook (online)
422 A.2d 1113, 282 Pa. Super. 274, 1980 Pa. Super. LEXIS 3388, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-murphy-pasuperct-1980.