Commonwealth v. Stewart

317 A.2d 616, 456 Pa. 447, 1974 Pa. LEXIS 552

• Court: Supreme Court of Pennsylvania
• Decided: March 25, 1974
• Docket: Appeal, 15
• Status: Published

Opinions

Opinion by

Mr. Chief Justice Jones,

On March 18, 1961, appellant, Frederick Charles Stewart, was found guilty by a jury of murder in the first degree. No post-trial motions were made and appellant was sentenced to life imprisonment after the jury had become deadlocked on the question of imposition of penalty under the Split Verdict Act. Following two appeals to this Court concerning appellant’s constitutional right of appeal, see Commonwealth v. Stewart, 430 Pa. 7, 241 A.2d 764 (1968) and Commonwealth v. Stewart, 435 Pa. 449, 257 A.2d 251 (1969), a motion for new trial was filed and argued before the Dauphin County Court of Common Pleas en banc. On March 10, 1971, that court denied the motion for new trial and a third appeal to this Court was taken. We reversed and ordered a new trial on the grounds that it was error for the trial court in 1961 not to have granted defendant’s motion for withdrawal of a juror when the court became aware that the father of the victim of the killing was on the panel of jurors from which the trial jury had been selected. Commonwealth v. Stewart, 449 Pa. 50, 295 A.2d 303 (1972).

On April 9, 1973, appellant’s case was called for trial for a second time. Twelve jurors were selected, sworn and impaneled. Subsequent to the impaneling of the jury, the trial judge was informed that the victim’s father was then employed as a tipstaff during that session of criminal court and was attending the jurors. The trial judge immediately summoned appellant and Ms counsel and, after informing them of the position which the victim’s father held, he asked defense counsel if he or appellant wished to make a motion. Counsel, after consultation with appellant, advised the court that they would make no motion. Thereupon, the trial court declared a mistrial sua sponte. Appellant filed a petition for a writ of habeas corpus alleging that a retrial would constitute double jeopardy. That petition was denied and from that denial this appeal followed.

Initially, we must address the issue of whether Rule 1118(b) of the Pennsylvania Rules of Criminal Procedure precludes a sua sponte declaration of mistrial by the trial judge. This question was touched upon in Commonwealth v. Lauria, 450 Pa. 72, 297 A.2d 906 (1972), but no conclusive resolution was achieved.¹ In Commonwealth v. Brown, 451 Pa. 395, 301 A.2d 876 (1973), Rule 1118(b) was also adverted to, but again by only a plurality of the Court.²

Rule 1118 provides: “(a) Motions to withdraw a juror are abolished, (b) A motion to declare a mistrial shall be made when the prejudicial event is disclosed. In all cases only the defendant or the attorney for the defendant may move for a mistrial, (c) The ruling of the trial judge shall be made a part of the record, (d) When a mistrial is declared, the jury shall be discharged.” This rule became effective August 1, 1968, and the Comment to the rule indicates that the rule was to replace the practice of moving for the withdrawal of a juror. Rule 1118 applies to all motions for mistrial. But see Commonwealth v. Brown, 451 Pa. 395, 301 A.2d 876 (1973) (plurality opinion). The past practice with regard to moving for the withdrawal of a juror has been delineated and clarified under Rule 1118. The sua sponte declaration of mistrial by the trial court, however, has not been changed. The trial court still has the inherent power under appropriate circumstances and in the interests of justice to declare a mistrial, this matter being governed, as before, by the double jeopardy clause of the Fifth Amendment of the United States Constitution. See, e.g., Commonwealth v. Wideman, 453 Pa. 119, 306 A.2d 894 (1973); Commonwealth v. Shaffer, 447 Pa. 91, 288 A. 2d 727, cert. denied, 409 U.S. 867 (1972); Commonwealth v. Ferguson, 446 Pa. 24, 285 A.2d 189 (1971).

The double jeopardy clause provides: “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb... .”³ Jeopardy attaches when a jury is impaneled. The double jeopardy clause, however, does not mean that every time a defendant is put to trial before a competent tribunal he is entitled to go free if the trial fails to end in a final judgment. Wade v. Hunter, 336 U. S. 684 (1949). The Supreme Court of the United States has frequently addressed the problem of mistrials and the double jeopardy clause, most recently in Illinois v. Somerville, 410 U. S. 458 (1973), and has consistently abjured mechanical or per se rules, preferring to rely upon the approach first announced in United States v. Perez, 22 U. S. (9 Wheat.) 579 (1824).

Under the Perez analysis a trial court has the authority to abort a trial, and the double jeopardy clause will not prevent retrial, if the trial court takes “all the circumstances into consideration” and in its “sound discretion” finds that “there is a manifest necessity for the act, or the ends of public justice would be otherwise defeated.” 22 U. S. (9 Wheat.) at 580. See also Illinois v. Somerville, 410 U. S. at 462; United States v. Jorn, 400 U. S. 470, 480-81 (1971); Gori v. United States, 367 U. S. 364, 367-69 (1961); Wade v. Hunter, 336 U. S. at 691. In Gori v. United States, supra, the Supreme Court emphasized the breadth of a trial court’s discretion to declare a mistrial:

“Where, for reasons deemed compelling by the trial judge, who is best situated intelligently to make such a decision, the ends of substantial justice cannot be attained without discontinuing the trial, a mistrial may be declared without the defendant’s consent and even over his objection, and he may be retried consistently with the Fifth Amendment.” 367 U. S. at 368 (emphasis added). This Court has previously followed the guidelines set forth above by the Supreme Court. E.g., Commonwealth v. Wideman, 453 Pa. 119, 306 A.2d 894 (1973). Hence, the pivotal question presented in this case is whether the trial court properly exercised its discretion in finding that either manifest necessity or the ends of public justice required the declaration of a mistrial.

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. United States v. Jorn, 400 U. S. 470 (1971). The Court in Jorn, however, “did not hold that that right may never be forced to yield, as in this case, to The public’s interest in fair trials designed to end in just judgments.’ ” Illinois v. Somerville, 410 U. S. at 470.

In weighing these interests, the trial judge at appellant’s second trial had the counsel of this Court’s opinion reversing appellant’s previous conviction because the trial judge there had refused to grant appellant’s motion for withdrawal of a juror under a virtually identical fact situation. See Commonwealth v. Stewart, 449 Pa. 50, 295 A.2d 303 (1972).⁴ One crucial factual distinction between appellant’s first and second trials was that in the first appellant moved for a mistrial, whereas in the second the trial court declared a mistrial sua sponte over the objection of appellant. An important ramification of appellant’s counseled decision not to move for a mistrial was that had the trial court not declared a mistrial, appellant could not have later successfully raised this failure as error. See Commonwealth v. Agie, 449 Pa. 187, 296 A.2d 741 (1972). However, the fact that in refraining from declaring a mistrial the trial court would have committed no error does not necessarily give rise to the converse proposition that in taking affirmative action the tidal court erred.

A defendant and his counsel are uncontrovertedly masters of the trial strategy for the defense. The purposeful refusal to interpose a timely motion when the possible defect was suggested by the trial court insulates that defect from appellate review. Although acts of a defendant and his counsel most definitely influence this Court’s determination of reviewable error, the question of whether the ends of justice are served is a determination solely for the Court, which determination is not necessarily affected by the interposition of motions by the defendant or his attorney. The trial court was insuring that appellant would receive a trial by a fair and impartial jury which would return a verdict based solely on evidence adduced at trial. This is an interest which is to be protected not only for defendants, but also for the public, which has a compelling interest in justice for all. See Gori v. United States, 367 U. S. 364 (1961); Thompson v. United States, 155 U. S. 271 (1894); Simmons v. United States, 142 U. S. 148 (1891).⁵

Given the standard of appellate review set forth by the United States Supreme Court and the circumstances of this case, this Court cannot say that the declaration of a mistrial was not required by “manifest necessity” and the “ends of public justice.”⁶ We find no abuse of discretion in the trial court’s decision to abort the trial upon learning that the victim’s father was serving as tipstaff. Accordingly, reprosecution of appellant would not be inconsistent with the Fifth Amendment.

Mr. Justitce Eagen and Mr. Justice Pomeroy join in this opinion.

1 In Lauria three members of this Court — Mr. Justice O’Brien in the opinion for the Court and Mr. Justice Koberts in a concurring opinion in which Mr. Justice Nix joined — were of the view that Rule 1118(b) precluded a sua sponte declaration of mistrial by the trial judge.

2 In Brown a plurality of the Court reasoned that Rule 1118(b) did not apply to all motions for mistrial, but only those where an event prejudicial to the defendant occurred during the trial.

3 U. S. Const. amend. V. This clause was held appUcable to the states in Benton v. Maryland, 395 U. S. 784 (1969).

4 In that case this Court held that even the possibility of jury prejudice required reversal, because of the possibility of an infringement on the accused’s right to due process of law. We stated:

“We realize that what we are in effect doing is presuming prejudice for the sake of insured fairness; however, this is exactly what the United States Supreme Court did in Turner [v. Louisiana, 379 U. S. 546 (1965)]. Moreover, the Court employed this same presumption in the Sam Sheppard case where there was a question of prejudice as a result of pretrial stories in the news media. Sheppard v. Maxwell, 384 U. S. 333, 86 S. Ct. 1507 (1966). See also Adams v. United States ex rel. McCann, 317 U. S. 269, 63 S. Ct. 236 (1942) ; Estes v. Texas, 381 U. S. 532, 85 S. Ct. 1628 (1965) ; Rideau v. Louisiana, 373 U. S. 723, 83 S. Ct. 1417 (1963). As was aptly stated by Mr. Justice Black in In re Murchison, 349 U. S. 133, 136, 75 S. Ct. 623, 625 (1955), ‘our system of law has always endeavored to prevent even the probability of unfairness.’ ” 449 Pa. 56-57, 295 A.2d at 306.

5 In Simmons the Supreme Court of the United States recognized that: “There can be no conditions of things in which the necessity for the exercise of this power is more manifest, in order to prevent the defeat of the ends of public justice, than when it is made to appear to the court that, either by reason of facts existing when the jurors were sworn, but not then disclosed or known to the court, or by reason of outside influences brought to bear on the jury pending the trial, the jurors or any of them are subject to such bias or prejudice as not to stand impartial between the government and the accused.” 142 U. S. at 154. In United States v. Jorn, 400 U. S. 470 (1971), the Court recognized that Simmons did not present a situation where jury prejudice was definite. The Court there stated:

“The Perez case has since been applied by this Court as a standard of appellate review for testing the trial judge’s exercise of his discretion in declaring a mistrial without the defendant’s consent. E.g., Simmons v. United States, 142 U. S. 148 (1891) (re-prosecution not barred where mistrial declared because letter published in newspaper rendered juror’s impartiality doubtful) . . . .” Id. at 481 (emphasis added).

6 The previous decisions of this Court prohibiting retrial do not support a similar result in this ease. In Commonwealth v. Wideman, 453 Pa. 119, 306 A.2d 894 (1973), a mistrial was declared by the trial judge for his own convenience. This Court sustained the claim of double jeopardy, holding that “a trial judge’s convenience does not constitute ‘manifest necessity’ in the constitutional sense.” 453 Pa. at 122, 306 A.2d at 895-96. In Commonwealth v. Shaffer, 447 Pa. 91, 288 A.2d 727, cert. denied, 409 U. S. 867 (1972), a mistrial had been declared over defendant’s objection, after the introduction of evidence in chief had been completed by both sides, on the basis of an Improper comment of the assistant district attorney. In Shaffer there was clearly much less potential for prejudice than in the present case, but more importantly, the defendant’s interests consisted not only of the right to be tried by that jury, but also the substantial right of having a particular case go to that jury. This Court again sustained the claim of double jeopardy. Commonwealth v. Ferguson, 446 Pa. 24, 285 A.2d 189 (1971), is readily distinguishable from the present case since there the trial court granted the Commonwealth’s motion for mistrial on the basis that a necessary prosecution witness was unavailable.