Appeals from order of the Superior Court, Oct. T., 1970, Nos. 1311 to 1316, inclusive, affirming judgments of sentence of Court of Common Pleas of Delaware County, March T., 1969, Nos. 611, 612, 613, 615, 616 and 617, in cases of Commonwealth of Pennsylvania v. John A. Shaffer, Frank J. Crutchley, Joseph E. Shaffer and Michael P. Dougherty.
David E. Auerbach, Assistant Public Defender, for appellants.
Vram Nedurian, Jr., Assistant District Attorney, with him Ralph B. D'Iorio and J. Harold Hughes, Assistant District Attorneys, and Stephen J. McEwen, Jr., District Attorney, for Commonwealth, appellee.
Jones, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Eagen. Former Mr. Chief Justice Bell and former Mr. Justice Barbieri took no part in the consideration or decision of this case. Concurring and Dissenting Opinion by Mr. Justice Roberts. Concurring and Dissenting Opinion by Mr. Justice Pomeroy.
On October 23, 1968, the residences of Edith N. Caroll and Wilhelmina Madden in Delaware County were broken into and ransacked. In each instance various pieces of valuable jewelry were stolen. Subsequently, Frank J. Crutchley, Joseph E. Shaffer, Michael P. Dougherty and John A. Shaffer were arrested and charged with committing these burglaries. The four were later jointly indicted in bills charging burglary of the two residences, larceny and receiving stolen goods, conspiracy and possession of burglary tools.
On June 30, 1969, Crutchley, Dougherty and Joseph E. Shaffer were brought to trial on the indictments before a jury (John A. Shaffer was then unavailable) and during the trial, the court on its own motion, and over defendants' objection, declared a mistrial.*fn1
The defendants brought to trial initially were retried on the same indictments on October 6th, and in
this trial John A. Shaffer was joined as a defendant. The defendants were convicted by the jury of all charges except that of possession of burglary tools, to which the court sustained demurrers at the close of the Commonwealth's evidence. Following the denial of post trial motions, prison sentences were imposed. Crutchley and John A. Shaffer filed appeals in the Superior Court and the judgments were affirmed without opinion. We granted allocatur.
The only issue in connection with this appeal requiring discussion is whether or not Crutchley's rights under the Fifth Amendment Double Jeopardy Clause, as applied to the states by Benton v. Maryland, 395 U.S. 784, 89 S. Ct. 2056 (1969), were violated when he was forced to trial for the second time for the same offense. The question evolves to this: Under what circumstances is retrial precluded when the initial trial is aborted prior to verdict without the defendant's consent and over his objection?
In answering this question, we look for guidance to the line of cases which has developed in the United States Supreme Court. The benchmark decision in this area is United States v. Perez, 22 U.S. (9 Wheat.) 579 (1824), wherein the following language was employed: "We think, that in all cases of this nature the law has invested Courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances, which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution,
under urgent circumstances, and for very plain and obvious causes; and, in capital cases especially, Courts should be extremely careful how they interfere with any of the chances of life, in favor of the prisoner. But, after all, they have the right to order the discharge; and the security which the public have for the faithful, sound, and conscientious exercise of the discretion, rests, in this, as in other cases, upon the responsibility of the Judges, under their oaths of office." Id. at 580. Mr. Justice Story for the majority therein developed the manifest necessity doctrine which in certain cases allows the trial judge to declare a mistrial without jeopardy attaching. Since 1824, the Supreme Court has consistently expanded on this theme. The classic example of properly declaring a mistrial without jeopardy attaching is where the jury is unable to agree. United States v. Prez, supra; Keerl v. Montana, 213 U.S. 135, 29 S. Ct. 469 (1909); Dreyer v. Illinois, 187 U.S. 71, 23 S. Ct. 28 (1902); Logan v. United States, 144 U.S. 263, 12 S. Ct. 617 (1892). The Court has also held that tactical problems of an army in the field justified the withdrawal of a court martial proceeding and the commencement of another. Wade v. Hunter, 336 U.S. 684, 69 S. Ct. 834 (1949). It also ruled that discovery by the judge during a trial that a member of the jury was biased pro or con was sufficient to warrant the jury's discharge. Thompson v. United States, 155 U.S. 271, 15 S. Ct. 73 (1894); Simmons v. United States, 142 U.S. 148, 12 S. Ct. 171 (1891). See also, Commonwealth v. Ferguson, 446 Pa. 24, 285 A.2d 189 (1971); Commonwealth v. Richbourg, 442 Pa. 147, 275 A.2d 345 (1971).
Although the Court has expanded on the manifest necessity concept, it has refused to develop any categories or hard and fast rules, rather the Court has consistently evaluated the problems on a case by case basis.
But, the Court has been very strict in its application of the principle as can be seen from the following language: "The discretion to discharge the jury before it has reached a verdict is to be exercised 'only in very extraordinary and striking circumstances', to use the words of Mr. Justice Story in United Staes v. Coolidge, 25 Fed. Cas. 622, 623. For the prohibition of the Double Jeopardy Clause is 'not against being twice punished, but against being twice put in jeopardy'. United States v. Ball, 163 U.S. 622, 669, 16 S. Ct. 1192, 1194." Downum v. United States, 372 U.S. 734, 736, 83 S. Ct. 1033, 1034 (1963). Moreover, the Court went on to note: "We resolve any doubt 'in favor of the liberty of the citizen, rather than exercise what would be an unlimited, uncertain and arbitrary judicial discretion'." Id. at 738, 83 S. Ct. at 1035-36. Thus, over the years the extent of the Court's guidance has to be found from general statements of policy.
In 1961, the Court seemingly broke with past precedent and in a five to four decision started to develop a new theory upon which to examine abuse of discretion. In Gori v. United States, 367 U.S. 364, 81 S. Ct. 1523 (1961), the Court, although speaking in terms of manifest necessity, bottomed its decision on whether the trial judge was acting "in the sole interest of the defendant."
In Gori, the defendant was brought to trial, and early in the proceedings, the trial judge on his own motion declared a mistrial because he felt that questions by the district attorney might convey to the jury knowledge of other crimes on the part of the defendant. Mr. Justice Frankfurter, apparently recognizing that this came close to an "abuse of discretion", chose to base his decision on the fact that the judge's sole interest was to protect the defendant, thus it was not double jeopardy.
The majority's decision that this was not double jeopardy immediately came under attack from four members of the Court in a dissent. The dissent noted that this was the first time that the Court had held that there was no double jeopardy when the defendant did not request the mistrial or consent to it and said that where it is the prosecutor's fault for the mistrial, double jeopardy attaches.*fn2
The latest pronouncement of the Court on the subject is found in United States v. Jorn, 400 U.S. 470, 91 S. Ct. 547 (1971).
Jorn was a case wherein the United States Government charged the defendant with wilfully assisting in the preparation of fraudulent income tax returns. The jury was empanelled and the prosecutor called a taxpayer to the witness stand who the defendant had allegedly aided. The judge then warned the witness of his constitutional rights against self-incrimination and the witness expressed a willingness to testify; however, the judge refused to allow the witness to testify because he did not believe the witness was adequately warned of constitutional rights by the Internal Revenue Service before pretrial questioning, and on his own motion declared a mistrial. The United States Supreme Court ruled that retrial under these circumstances was constitutionally prohibited.
Mr. Justice Harlan, speaking for the plurality of the Court recognized the following mandate as the guiding principle when considering the possibility of a mistrial: "The Fifth Amendment's prohibition against placing a defendant 'twice in jeopardy' represents a constitutional policy of finality for the defendant's benefit in federal criminal proceedings. A power in government
to subject the individual to repeated prosecutions for the same offense would cut deeply into the framework of procedural protections which the Constitution establishes for the conduct of a criminal trial. And society's awareness of the heavy personal strain which a criminal trial represents for the individual defendant is manifested in the willingness to limit the Government to a single criminal proceeding to vindicate its very vital interest in enforcement of criminal laws." Id. at 479, 91 S. Ct. at 554. The Court, after setting the stage for the opinion with the above quote, went on to discuss the doctrine of "manifest necessity" as developed in United States v. Perez, supra. The relevant portion of the Jorn opinion for our purposes came in Mr. Justice Harlan's discussion of the balance between the "manifest necessity" standard and the defendant's right to finalize his case once the jury is empanelled. The Court stated:
"For the crucial difference between reprosecution after appeal by the defendant and reprosecution after a sua sponte judicial mistrial declaration is that in the first situation the defendant has not been deprived of his option to go to the first jury and, perhaps, end the dispute then and there with an acquittal. On the other hand, where the judge, acting without the defendant's consent, aborts the proceeding, the defendant has been deprived of his 'valued right to have his trial completed by a particular tribunal '. See Wade v. Hunter, 336 U.S. at 689, 69 S. Ct. at 837.
"If that right to go to a particular tribunal is valued, it is because, independent of the threat of badfaith conduct by judge or prosecutor, the defendant has a significant interest in the decision whether or not to take the case from the jury when circumstances occur which might be thought to warrant a declaration of mistrial. Thus, where circumstances develop not attributable
to prosecutorial or judicial overreaching, a motion by the defendant for mistrial is ordinarily assumed to remove any barrier to reprosecution, even if the defendant's motion is necessitated by prosecutorial or judicial error. In the absence of such a motion, the Perez doctrine of manifest necessity stands as a command to trial judges not to foreclose the defendant's option until a scrupulous exercise of judicial discretion leads to the conclusion that the ends of ...