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decided: May 13, 1975.



James S. Kilpatrick, Jr., Ardmore, for appellant.

Milton O. Moss, Dist. Atty., William T. Nicholas, First Asst. Dist. Atty., Stewart J. Greenleaf, Asst. Dist. Atty., Chief, Appellate Div., Norristown, for appellee.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Nix, J., filed a concurring opinion.

Author: Roberts

[ 461 Pa. Page 618]


Appellant was convicted in a jury trial of voluntary manslaughter and sentenced to pay the costs of prosecution and to serve a term of five to ten years imprisonment. In this direct appeal,*fn1 he contends that (1) he

[ 461 Pa. Page 619]

    was placed twice in jeopardy by being retried after the declaration of a mistrial, (2) the evidence was insufficient to sustain a conviction of voluntary manslaughter, and (3) he was prejudiced by various trial errors. We affirm.


The facts on which appellant's double jeopardy claim is based are these. On May 16, 1973, appellant's first trial on the charge of which he was convicted began. On May 23, before the completion of the Commonwealth's case and during a recess, the trial judge became ill and the trial was continued by the president judge until May 29 in order to ascertain whether the original judge would be able to promptly resume the trial. When informed of the need for this delay, appellant's counsel orally moved for a mistrial to avoid the danger of prejudicing the jury. Action on this motion was deferred until May 29.

At the hearing on May 29, appellant's counsel sought to withdraw the oral motion for a mistrial. The president judge, however, stated that he had granted the motion for a mistrial before reading the motion to withdraw it. He also observed that it would be several weeks before the original judge could resume his duties*fn2 and concluded that it would be unfair to both parties and to the jury to continue the proceedings any further. The motion to withdraw the motion for a mistrial was formally denied and a mistrial declared. Subsequently appellant was retried and convicted of voluntary manslaughter. The claim that the second trial subjected appellant to double jeopardy has been asserted at all appropriate stages of the proceedings.

[ 461 Pa. Page 620]

The Commonwealth asserts that any double jeopardy problem is obviated by the fact that the mistrial was granted in response to a motion by appellant. See Commonwealth v. Schaffer, 447 Pa. 91, 101, 288 A.2d 727, 733 (1972); Commonwealth v. Wright, 439 Pa. 198, 201, 266 A.2d 651, 653 (1970). In the circumstances of this case, however, we do not believe that it can realistically be said that the mistrial was granted at the request of appellant. The one sentence motion to withdraw the request for a mistrial was before the court when the May 29 hearing commenced. No reason was advanced for denying that motion and we attach no significance to the fact that the court acted without reading the motion first.

Our conclusion on this point is bolstered by United States ex rel. Russo v. Superior Court, 483 F.2d 7 (3rd Cir.), cert. denied, 414 U.S. 1023, 94 S.Ct. 447, 38 L.Ed.2d 315 (1973). In that case, the defendant moved for a mistrial at the end of the first day of jury deliberations on the ground that the jury was deadlocked. This motion was denied, but a mistrial was declared after the jury had deliberated for several hours the next day, the trial court expressing the view that the jury was exhausted and that forcing it to continue deliberations risked an unjust verdict. No new motion for a mistrial was before the court, but it asserted that it was "in effect" agreeing to the motion made the previous day. The Third Circuit held that a second trial would violate the double jeopardy clause. In disposing of the contention that retrial was proper because defendant had moved for a mistrial, that court wrote:

"Appellant's assessment of his chances with the jury could easily have changed after his request for a mistrial. We see no reason to lock him into a motion once it is made."

Id. at 17.

[ 461 Pa. Page 621]

While the instant case differs from Russo in that the motion there had been denied, we think that appellant adequately informed the court of his change of position. Consequently, we conclude that the mistrial was not declared at the request of appellant.

Appellant then argues that it was improper for the court to declare a mistrial sua sponte, relying on Commonwealth v. Lauria, 450 Pa. 72, 297 A.2d 906 (1972). However, in Lauria, no opinion commanded a majority of the Court. Moreover, it has been superseded by Commonwealth v. Stewart, 456 Pa. 457, 317 A.2d 616 (1974). While there was some disagreement in Stewart regarding the effect of Pa.R.Crim.P. 1118(b), 19 P.S. Appendix*fn3 upon the power of a trial court to declare a mistrial because of events prejudicial to the defendant, the result in this case is the same under any of the views expressed in Stewart. The mistrial here resulted, not from an event prejudicial to the defendant, but from the practical inability of the original tribunal to complete the trial. A rule requiring a motion by the defendant for declaration of a mistrial in this type of case would entail total abandonment of the prosecution rather than merely its completion before an arguably imperfect tribunal. As the trial court in this case observed, "If a judge dies, and if the defendant has to be the one to make the motion for a mistrial, he would never come to trial."

It is well settled that a defendant may be retried after an earlier proceeding has terminated in a mistrial if there was "manifest necessity" for the mistrial. Illinois v. Somerville, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973); Gori v. United States, 367 U.S. 364, 81

[ 461 Pa. Page 622]

S.Ct. 1523, 6 L.Ed.2d 901 (1961); United States v. Perez, 22 U.S. (9 Wheat.) 579, 6 L.Ed. 165 (1824). No rigid rule for determining what constitutes "manifest necessity" for a mistrial has been established. Rather the Supreme Court has adhered to the principle expressed by Justice Story, writing for the Court in Perez, supra, at 580, 6 L.Ed. 165:

"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 favour of the prisoner. But, after all, they have the right to order the discharge; and ...

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