Appeals from order of Superior Court, April T., 1971, Nos. 112 and 113, affirming judgment of sentence of Court of Common Pleas, Criminal Division, of Allegheny County, Dec. T., 1969, Nos. 630 and 631, in case of Commonwealth of Pennsylvania v. James Lauria and Albin Nicholas Shimkus.
Wendell G. Freeland, with him Lichtenstein & Bartiromo, for appellant.
Robert L. Campbell, Assistant District Attorney, with him Carol Mary Los, Assistant District Attorney, and Robert W. Duggan, District Attorney, for Commonwealth, appellee.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice O'Brien. Mr. Justice Eagen and Mr. Justice Manderino concur in the result. Concurring Opinion by Mr. Justice Roberts. Mr. Justice Nix joins in this concurring opinion. Dissenting Opinion by Mr. Chief Justice Jones. Mr. Justice Pomeroy joins in this dissenting opinion.
Appellant, together with a co-defendant, was charged with operating a lottery and conspiracy to do an unlawful act. Appellant and his alleged co-conspirator waived trial by jury and came to trial before a judge on February 17, 1970. At the conclusion of the Commonwealth's case in chief, counsel for the two Defendants demurred to the Commonwealth's evidence as it applied to appellant. At that point, a colloquy among the court, the assistant district attorney and defense counsel ensued as to what evidence in the Commonwealth's case in chief was admissible against appellant
and what was excludable as hearsay. The colloquy concluded with the trial court declaring a mistrial, sua sponte, on the basis that "the Court has certainly heard a great amount of evidence that would not be admissible, including the fact of a prior criminal record and additionally the Court finds there is a conflict of interest in the representation of both of the defendants by a single attorney." Thereafter, the case again came to trial, this time before another judge and a jury. Appellant was found guilty of both charges and was sentenced subsequent to dismissal of his post-trial motions. An appeal to the Superior Court resulted in affirmances of the judgments of sentence by an equally divided Superior Court, with one member of that Court filing a dissenting opinion. Commonwealth v. Lauria, 221 Pa. Superior Ct. 179, 289 A.2d 246 (1972). We granted allocatur and we reverse.
Appellant argues that the sua sponte declaration of a mistrial in the first trial constituted a violation of Pennsylvania Rule of Criminal Procedure 1118(b) and that, in any event, the second trial constituted double jeopardy, since there was no manifest necessity for the sua sponte declaration of a mistrial in the first trial. Appellant also raises questions concerning a conflict of interest on the part of trial defense counsel, the sufficiency of the evidence and whether the conspiracy charge should merge into the charge of operating a lottery. Since we conclude that the sua sponte declaration of a mistrial by the trial court was in violation of the Rules of Criminal Procedure and the second trial, therefore, constituted double jeopardy, we need not consider any of the other allegations of error.
Rule 1118(b) of the Pennsylvania Rules of Criminal Procedure states: "(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."
We are in agreement with the writer of the dissent in the Superior Court that the rule excludes "not only a motion by the Commonwealth but a grant of a mistrial by the court on its own motion."
In Commonwealth v. Ferguson, 446 Pa. 24, 285 A.2d 189 (1971), we discussed the standard of "manifest necessity" in the declaration of mistrials. We there quoted the language of the United States Supreme Court in United States v. Jorn, 400 U.S. 470 (1971), that: ". . . in the final analysis, the judge must always temper the decision whether or not to abort the trial by considering the importance to the defendant of being able, once and for all, to conclude his ...