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decided: March 25, 1974.


Appeal from order of Court of Common Pleas of Dauphin County, Sept. T., 1960, No. 19, in case of Commonwealth of Pennsylvania v. Frederick Charles Stewart.


Norman M. Yoffee, for appellant.

Richard A. Lewis, Deputy District Attorney, with him Marion E. MacIntyre, Deputy District Attorney, and Leroy S. Zimmerman, District Attorney, for Commonwealth, appellee.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Chief Justice Jones. Mr. Justice Eagen and Mr. Justice Pomeroy join in this opinion. Concurring Opinion by Mr. Justice O'Brien. Concurring Opinion by Mr. Justice Nix. Mr. Justice Pomeroy joins in this concurring opinion. Dissenting Opinion by Mr. Justice Roberts. Mr. Justice Manderino joins in this dissenting opinion.

Author: Jones

[ 456 Pa. Page 448]

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

[ 456 Pa. Page 449]

    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 his 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.*fn1 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.*fn2

[ 456 Pa. Page 450]

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. . . ."*fn3 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

[ 456 Pa. Page 451]

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

[ 456 Pa. Page 452]

    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).*fn4 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

[ 456 Pa. Page 453]

    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 trial 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).*fn5

[ 456 Pa. Page 454]

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."*fn6 We find no abuse of discretion in the trial court's decision to abort the trial upon learning that the victim's father

[ 456 Pa. Page 455]

    was serving as tipstaff. Accordingly, reprosecution of appellant would not be inconsistent with the Fifth Amendment.


Order affirmed.

Concurring Opinion by Mr. Justice O'Brien:

While I agree with the majority that, under the facts of this case, the trial court was justified in declaring a mistrial sua sponte, on the grounds of "manifest necessity," I do not agree with the majority's analysis of Rule 1118 in connection with this case.

Rule 1118 does not apply to this case. Rule 1118 only applies to situations where an event prejudicial to the defendant occurs during the trial. Commonwealth v. Brown, 451 Pa. 395, 301 A.2d 876 (1973), Commonwealth v. Lauria, 450 Pa. 72, 297 A.2d 906 (1972).

When such an event occurs, the drafters of Rule 1118 apparently intended that the choice between sending the case to the jury, and thereby risking the possible effects of prejudice, or aborting the trial, and thereby causing the anxiety and inconvenience occasioned by a second trial, should be made by the defendant and his counsel alone. It was probably felt that the defendant and his counsel are best able to evaluate how well the trial has gone from a strategic standpoint and how serious will be the harm caused by the prejudicial event. Perhaps it was feared that if they, alone, are not given this power, there is a possibility that where the Commonwealth's case has not gone well, grounds for a mistrial could be created by the perpetration of some prejudicial event.

Faced with a situation to which Rule 1118 applies, a trial judge should not, on his own motion, grant a mistrial. Instead, the court should notify the defendant and his counsel of the prejudicial event, and, if the

[ 456 Pa. Page 456]

    defendant or his counsel does not wish to move for a mistrial, the court should conduct an on-the-record colloquy, in the absence of the jury, to establish that the defendant is aware of the prejudicial event, is aware of the risks if his case continues, and, nevertheless, knowingly and voluntarily chooses to proceed with the trial.

In the instant case, on the other hand, the reasoning behind Rule 1118 does not apply. First, the trial had not started. No strategic question was involved. Second, no prejudicial event had occurred. Instead, the trial court had been informed that a situation existed which might produce a prejudicial event if left unchanged. Considering that one trial had already been reversed because the victim's father was in a position to prejudice the jury's determination, Commonwealth v. Stewart, 449 Pa. 50, 295 A.2d 303 (1972), and considering that the court had the responsibility for insuring not only that the ends of justice were served, but that they appeared to be served -- which appearance would surely be threatened ...

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