Appeals from order of Court of Common Pleas, Family Division, of Philadelphia, Oct. T., 1969, Nos. 4440 and 4441, in case of Commonwealth of Pennsylvania ex rel. Eileen Riddle v. Joseph Anderson.
Leonard Turner, for appellant.
Nicholas J. Lisi, and Solo, Bergman & Padova, for appellee.
Wright, P. J., Watkins, Jacobs, Hoffman, Cercone, and Spaeth, JJ. (Spaulding, J., absent.) Opinion by Jacobs, J. Dissenting Opinion by Hoffman, J.
[ 227 Pa. Super. Page 70]
This case presents the question whether the double jeopardy clause of both the United States and Pennsylvania Constitutions*fn1 bars the retrial of one accused of neglect to support a bastard and fornication and bastardy under § 732 and § 506, respectively, of The Penal Code, Act of June 24, 1939, P. L. 872,*fn2 when the initial trial was concluded by the court's sua sponte declaration of a mistrial. The lower court concluded that double jeopardy barred further proceedings against the defendant on these charges. Although we agree that one who is criminally accused cannot be twice put in jeopardy of suffering criminal punishment, we conclude that in this case appellee can be retried on the charge of bastardy, which carries no criminal penalty, in order to make a determination of the issue of paternity.
[ 227 Pa. Super. Page 71]
The defendant in this case, Joseph Anderson, was indicted under §§ 506 and 732, now repealed, and brought to trial before a jury on October 31, 1969. At the trial, counsel for the defense followed a continuous pattern of questioning witnesses in a manner designed to elicit comments and speculation on prosecutrix's chastity, appearance, and conduct at times unrelated to any material event. Numerous objections to this tactic were sustained throughout the trial. At last, when defense counsel was questioning his last witness, the trial judge interjected, "Don't ask what he said or I will hold you in contempt, if you continue with this type of examination. You know this is immaterial. It has no bearing on this case." At this point the court withdrew a juror and declared a mistrial on its own initiative, declaring, "This has been disgraceful." A date was set for a new trial to which the defendant entered a plea of double jeopardy. The plea was sustained by the lower court and an appeal was taken.
The double jeopardy clause acts to bar further prosecution of a defendant who has once been brought to trial on a charge carrying the possibility of criminal punishment. If trial of the defendant is begun on such a charge and the proceedings are aborted before conclusion by the unauthorized declaration of a mistrial, a second attempt to try the defendant on the same charge constitutes double jeopardy. Commonwealth v. Wideman, 453 Pa. 119, 306 A.2d 894 (1973). In Pennsylvania, motions for mistrial in prejudicial situations are governed by Pa. R. Crim. P. 1118(b) which states: "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." This rule has been narrowly interpreted to mean that in cases where there has been prejudice to the defendant the trial judge has no power
[ 227 Pa. Super. Page 72]
to declare a mistrial on his own motion. Commonwealth v. Lauria, 450 Pa. 72, 297 A.2d 906 (1972). In cases other than those covered by the rule the trial judge has always had the inherent power to declare a mistrial for reasons of "manifest necessity." Commonwealth v. Brown, 451 Pa. 395, 301 A.2d 876 (1973). We believe that retrial of the defendant on charges involving a criminal penalty is precluded by the principle of double jeopardy which generated Rule 1118(b) and the doctrine of manifest necessity.
The manifest necessity standard requires that the trial judge balance those circumstances which suggest a mistrial is warranted against the defendant's valued right to have his case finalized before a particular tribunal. Only when "a scrupulous exercise of judicial discretion leads to the conclusion that the ends of public justice would not be served by a continuation of the proceedings"*fn3 can a trial be aborted and the defendant's option to see the trial to completion be foreclosed. We believe that the circumstances of the present case were not of such an irremediable nature to warrant a declaration of mistrial under this test. The objectional behavior of counsel might have been cured by a means less drastic from the point of view of the defendant than a termination of the proceedings.
The question remains to what degree the offenses with which the defendant stands charged are criminal and subject to constitutional protection. Application of the double jeopardy clause is limited to actions authorizing a criminal punishment for vindication of public justice and is not extended to actions which are remedial in nature. The Supreme Court has reaffirmed the principle first stated in Helvering v. ...