Commonwealth v. Rivera

715 A.2d 1136, 1998 Pa. Super. LEXIS 861
CourtSuperior Court of Pennsylvania
DecidedJune 9, 1998
Docket732 Harrisburg 1997
StatusPublished
Cited by15 cases

This text of 715 A.2d 1136 (Commonwealth v. Rivera) 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. Rivera, 715 A.2d 1136, 1998 Pa. Super. LEXIS 861 (Pa. Ct. App. 1998).

Opinions

JOHNSON, Judge:

We are asked to decide whether defense counsel’s mere asking of a question to a Commonwealth witness at trial, without more, would support the trial court’s finding of “manifest necessity” to declare a mistrial, where the issue is witness credibility and the witness has not responded to the question. We hold that manifest necessity did not exist to justify the trial court’s declaration of a mistrial. Therefore, we reverse the trial court’s denial of John Rivera’s motion to dismiss the criminal information against him following the trial court’s grant of a mistrial upon the Commonwealth’s motion, and order that Rivera be discharged on the basis that Rivera’s re-prosecution would violate the principles of double jeopardy.

Rivera was charged with terroristic threats, simple assault, recklessly endangering another person, disorderly conduct and a summary charge of careless driving. The charges arose from an incident that occurred on March 20, 1996, at approximately 7:30 a.m. on Interstate 81 in Lebanon County. At trial, Vance Keith Via, the Commonwealth’s only witness, testified that Rivera’s vehicle approached Via’s vehicle from behind in the passing lane and flicked its high beams on and off. N.T., February 4,1997, at 12. This caused Via to move his vehicle into the right lane in order to permit Rivera to pass him in the left lane. Id. When Rivera pulled his vehicle along the side of Via’s vehicle, he aimed a handgun at Via, and mouthed the words, “Bang, you are dead.” Id. at 12-13. Via further stated that Rivera jerked his hand as if he were going to fire the weapon and then drove away at a high rate of speed. Id. at 13.

During cross-examination of Via regarding this incident, defense counsel asked Via: “[D]o you hang out in the bar called The Village?” Id. at 41. The Commonwealth immediately objected and, during a sidebar discussion, expressed its concern regarding the prejudicial effect this question might have on the Commonwealth’s case. Id. at 42. In response, defense counsel stated:

I will make an offer. I will make it easy. I am going to put a witness on the stand who has had two conversations with Mr. Via about this incident. And during— both of these conversations — both of these conversations took place in a bar called The Village in Grantville, giving him a chance to refute the statements before I bring in my witness.
And I am going to ask him about conversations he had with this witness regarding this incident.

Id. Following this offer, the court stated that defense counsel should have phrased the question more appropriately and the Com[1138]*1138monwealth then moved for a mistrial. Id. at 42-43. The Commonwealth contended that the question was inflammatory and that “when you hear that question you think of a million other things, none of which has to do with what happened on Route 81 on March 20th, 1996.” Id. at 43. The trial court granted the mistrial and dismissed the jury, despite defense counsel’s obvious disagreement with such a result. Id. at 43-46. In doing so, the court stated that: “the only inference this Court can draw is that he is a drunkard, and that is not proper. It is too prejudicial for me to permit it to go on.” Id. at 45.

Thereafter, Rivera filed a motion to dismiss the information arguing that principles of double jeopardy barred a subsequent prosecution because “manifest necessity” did not exist to justify the trial court’s declaration of a mistrial. The court denied Rivera’s motion stating that the “question was prejudicial, out of context and so inflammatory at the time as to necessitate the Court declaring a mistrial.” Trial Court Opinion, Kline, J., July 7,1997, at 2. This appeal followed.

Rivera argues that the trial court erred in failing to grant his motion to dismiss the criminal information. We are constrained to agree. Pursuant to principles of double jeopardy, whether the Commonwealth can pursue a new trial against a defendant after a mistrial has been declared without the defendant’s request or consent depends upon the existence of a manifest necessity for a mistrial. Pa.R.Crim.P. 1118(b); Commonwealth v. Diehl, 532 Pa. 214, 615 A.2d 690, 691 (1992). Where the defendant does not consent to the mistrial, trial courts should be especially reluctant to declare a mistrial. Commonwealth v. Bradley, 311 Pa.Super. 330, 457 A.2d 911, 914 (1983), aff'd, 504 Pa. 175, 470 A.2d 524 (1984). Rather, “[t]he determination of whether to declare a mistri al after jeopardy has attached is one of utmost importance since the defendant has a substantial interest in having his fate determined by the jury first impaneled.” Commonwealth v. McCord, 700 A.2d 938, 943 (Pa.Super.1997). There is no rigid rule for determining whether manifest necessity for a mistrial existed; rather, each case must “ ‘turn on the particular facts.’ ” Commonwealth v. Balog, 395 Pa.Super. 158, 576 A.2d 1092, 1095 (1990), quoting Commonwealth v. Bolden, 472 Pa. 602, 638, 373 A.2d 90, 107 (1977). However, the failure to consider 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.” Diehl, swpra, at 217, 615 A.2d at 691. “[A]ny doubt relative to the existence of manifest necessity should be resolved in favor of the defendant.” Id.

Initially, we address the Commonwealth’s contention that Rivera has waived this issue by failing to expressly object at trial to the court’s declaration of a mistrial. We do so despite the fact that the Commonwealth first raised the issue of waiver at oral argument and makes no mention of it in its Brief to this Court. In doing so, we do not find that Rivera has waived his double jeopardy claim as Rivera’s mere acquiescence to the court’s declaration of a mistrial “is not sufficient to waive his double jeopardy claims.” McCord, supra, at 942. The record reflects that Rivera never consented to the mistrial; rather, it is apparent that Rivera, through his counsel, repeatedly attempted to make an offer to the court to explain his reasons for asking the question in order to prevent the court from declaring a mistrial. N.T., supra, at 42-45. Compare McCord, supra (noting that while defendant did not object to a mistrial, he did not waive his double jeopardy claim by his mere acquiescence to the trial judge’s sua sponte declaration of a mistrial) with Commonwealth v. Phillippi, 442 Pa.Super. 198, 658 A.2d 1368, 1370 (1995) (holding that defendant waived his double jeopardy claim where he failed to object to,the declaration of a mistrial and consented to it after alternatives were raised, discussed, and rejected).

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Commonwealth v. Rivera
715 A.2d 1136 (Superior Court of Pennsylvania, 1998)

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Bluebook (online)
715 A.2d 1136, 1998 Pa. Super. LEXIS 861, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-rivera-pasuperct-1998.