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decided: June 3, 1977.



Victor S. Jaczun, Perkasie, Denis W. Lanctot, Morrisville, for appellant.

Stephen B. Harris, First Asst. Dist. Atty., Doylestown, for appellee.

Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Jones, former Chief Justice did not participate in the consideration or decision of this case. Roberts, J., filed a concurring opinion. Pomeroy, J., filed a concurring opinion. Nix, J., filed a concurring opinion. Manderino, J., filed a dissenting opinion.

Author: Eagen

[ 473 Pa. Page 75]


Michael Peters was convicted by a jury of aggravated assault and battery, assault and battery, conspiracy to commit assault and battery, conspiracy to commit aggravated assault and battery, and voluntary manslaughter. Following the denial of post-verdict motions by the court en banc of the Court of Common Pleas of Bucks County, judgment of sentence of not less than two nor more than five years was imposed on the manslaughter conviction. Judgments of sentence on the other convictions were suspended. This appeal followed.*fn1

Peters complains: 1) that his right against being put twice in jeopardy was violated when he was retried and convicted following the sua sponte declaration of a mistrial; 2) that the trial court erred in refusing to suppress evidence of three statements given by Peters to prosecution officials and evidence of a "reenactment" of the killing provided by Peters; and, 3) that the trial court erred in giving what is commonly referred to as an "accomplice charge."

We need not reach the merits of Peters' first complaint because the issue is not properly preserved for review. Peters failed to plead double jeopardy prior to his second trial, and we now hold that such a failure constitutes a waiver of the issue under the circumstances presented.*fn2

[ 473 Pa. Page 76]

While we have held no objection is necessary to preserve such an issue where a trial court declares a mistrial sua sponte, Commonwealth v. Bartolomucci, supra; accord Commonwealth v. Fredericks, 235 Pa. Super. 78, 340 A.2d 498 (1975); Commonwealth v. Abruzzese, supra, we created this exception to the ruling in Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974) because "'the Perez [ United States v. Perez, 9 Wheat (22 U.S.) 579, 6 L.Ed. 165 (1824)] doctrine of manifest necessity stands as a command to trial judges not to' declare a mistrial absent manifest necessity." Commonwealth v. Bartolomucci, supra, 468 Pa. at 346, 362 A.2d at 238 quoting from United States v. Jorn, 400 U.S. 470, 485, 91 S.Ct. 547, 557, 27 L.Ed.2d 543 (1971). [Emphasis in original.] No similar consideration exists to excuse the failure to raise the issue prior to the commencement of the second trial. See, e. g., Commonwealth v. Agie, 449 Pa. 187, 296 A.2d 741 (1971); Commonwealth v. Newsome, 462 Pa. 106, 337 A.2d 904 (1975); Commonwealth v. Clair, supra. Furthermore, all of the considerations which justify a finding of waiver of other issues in a pretrial context are equally applicable to a double jeopardy claim. For example, by requiring the issue to be raised pretrial, trial courts will not have to waste time and energy conducting proceedings in which no conviction and judgment of sentence may be validly finalized.*fn3

Accordingly, the issue is waived.

Peters next complains the trial court erred in failing to grant his motion to suppress and the court en banc erred in sustaining that ruling. The evidence which the court refused to suppress included three statements given by Peters to prosecution authorities and testimony recounting a reenactment by Peters of the events which occurred at the time of the killings.

[ 473 Pa. Page 77]

In evaluating his complaint, we consider only the evidence presented by the Commonwealth and so much evidence for the defense, as fairly read in the context of the record as a whole, remains uncontradicted. Commonwealth v. Johnson, 467 Pa. 146, 354 A.2d 886 (1976). Only one witness testified at the suppression hearing, namely John Rice, a detective with the District Attorney's office in Bucks County. His testimony established the following:

The body of Vincent Motto was found late in the day on July 24, 1969 at or near the water's edge of the Delaware River at a remote and deserted spot known as the "Cove" in Tullytown, Bucks County. An investigation ensued and authorities learned that Peters and other persons, including Motto, had been at Peters' apartment on July 22 or 23, 1969. The police proceeded to interview these persons. Each was requested to come to the Bristol Township Police Station to be interviewed. Peters, pursuant to the request, appeared there voluntarily on July 30, 1969. The police did not at that time suspect Peters was involved in Motto's death and he was free to leave the police station at any time he desired. No warnings of constitutional rights were given. The interview was recorded on tape. It was subsequently transcribed and was read into evidence at trial. This statement [hereinafter referred to as C-1] recounted in substance the following:

Peters and other persons met Motto at a bar in Bristol Township late in the day on July 22, 1969. Peters and his group left and went to Peters' apartment. Motto accompanied by another person thereafter arrived at the apartment, but both left after a short time. Motto returned alone a short time later with a gun which he "flashed . . . around." William Simmons requested the gun and Motto gave it to him. Simmons unloaded the gun and returned it to Motto. Motto reloaded it and again "flashed [it] around." Simmons requested that

[ 473 Pa. Page 78]

Motto leave. Motto left escorted by Simmons, and Peters followed them to the doorway where he stood and watched Motto go to the parking lot area to a "broken down" car. Peters and Simmons then returned to the apartment. Later in the evening or in the early morning hours of July 23, 1969, Peters went to Motto's apartment and knocked on the door some five times in order to get beer, but Motto did not answer.

After this interview, Peters left the police station. The police investigation continued. Peters was interviewed by the police for the second time on March 8, 1971. This interview was prompted by information received by the police (on or about the same date) from one Frank Sullivan*fn4 that Peters had information concerning Motto's death.

The circumstances of this interview were as follows:

The police phoned Peters and requested him to come to the courthouse. When Peters arrived he spoke with a receptionist who called Rice. Rice spoke with Peters in the hallway and informed him that Sullivan was attempting to obtain his release from prison on reduced bail and to help accomplish this, he had informed Rice that Peters had information about Motto's death. Rice then told Peters that the information received from Sullivan was why he wished to speak with him. Rice also said to Peters that " The most that would happen to him would be that he would be picked up or held as a material witness on dollar bail."*fn5 [Emphasis added.] Rice could not recall

[ 473 Pa. Page 79]

    whether this remark was made prior to or subsequent to the interview of March 8, 1971, but since the Commonwealth has the burden of proof, we will assume the remark was made prior to the interview.

Peters and Rice went into an office where Ward Clark, the District Attorney, John McHugh, a court stenographer, and a state trooper were present. Clark conducted the interview which was transcribed. Peters was warned of his constitutional rights before the questioning began. Peters indicated he understood and was willing to answer questions. Immediately following the interview Peters was placed under arrest as a material witness and then released on nominal bail.*fn6

The interview began at 5:15 p. m. and from it a second statement [hereinafter: C-2], which was in the form of

[ 473 Pa. Page 80]

    a sworn deposition, was obtained from Peters and it recounted the following:

Peters met Motto for the first time at a bar about one week before his body was found. Peters again met Motto at the same bar at about 11:00 p. m. a couple of days prior to his body being discovered. Motto was accompanied by another person and Peters was with a group, including Simmons. Peters and Simmons left first and went to Peters' apartment, arriving at about midnight. At about 1:00 a. m., Motto, accompanied by his friend, arrived at Peters' apartment and was invited in to "drink some beer." Motto's friend was the first to depart and was followed by Motto at about 2:30 a. m. or 3:00 a. m. During the visit a few "small squabbles" occurred. Motto returned about fifteen or twenty minutes later and began to "flash around a gun and a knife." An argument resulted between Motto and Simmons. In Peters' opinion, he, Motto and Simmons were intoxicated but, despite having taken other drugs earlier in the day, they were not under the influence of drugs.

Thereafter, Peters, Simmons, and Motto went to the Cove in Simmons' car. Peters and Simmons told Motto there was a party taking place there. Upon arriving and finding no one else there, the three were "horsing around" until an argument began between Simmons and Motto. Motto then went for a swim. Peters thought Motto was about to drown so Peters swam out to him and pulled him back to the shore. Motto was lying half on the beach and half on the shore when he began referring to Peters and Simmons in vulgar terms. Simmons told Motto to "shut up," but Motto kept "mumbling and talking, and he started hollering." Simmons picked up a rock and hit Motto on the head with it rendering him unconscious. Peters and Simmons remained at the Cove for about a half-hour smoking a few cigarettes. Peters then walked over to look at Motto who was still unconscious

[ 473 Pa. Page 81]

    but was not bleeding. Peters and Simmons then left Motto and returned to the apartment where most of the other guests had "passed out."

Peters said the only one told of the incident was Sullivan and this occurred about a year prior to giving the C-2 statement. When asked why he was now willing to speak with authorities, Peters responded:

"A. . . . I am tired of hearing about it.

"Q. From whom, please?

"A. Well, just general people talking about it, and my mind didn't rest right, and I don't sleep, and I just figured it would be a good time to get it out."

Peters then stated he would testify against Simmons in court.

Based on this information Simmons was arrested on March 12, 1971 and he gave a statement to the police. After securing Simmons' statement, the police filed a criminal complaint against Peters charging him with Motto's murder; however, Peters was not made aware of the existence of this complaint until he was taken into custody on March 16th.

On March 16, 1971, Peters was requested by Rice to meet him at the State Police Barracks in Trevase and to go from there to the Cove to re-enact his version of the incident as given in the C-2 statement. Sullivan, who had been released on bail, accompanied Peters to the barracks on the 16th, although the authorities had not requested Sullivan to do so. Peters, Sullivan, Detective Spewak, and Rice then went by car to the Cove. Upon arriving there at about noon, Spewak advised Peters of his constitutional rights and Peters indicated he wished to waive them. Peters appeared in normal condition on the 16th with the exception of a limp. Rice also testified that he may have again mentioned to Peters, while at the Cove on March 16, 1971, that he was a

[ 473 Pa. Page 82]

    material witness and would be held as such without bail.*fn7 Peters then reenacted the events as described in the C-2 statement. [Hereinafter: Reenactment.]

Following the reenactment, Rice asked Peters if he was willing to take a polygraph examination and Peters indicated he was. The four returned to the courthouse for the purpose of administering the examination. Peters, Sullivan, and Spewak went to Rice's office, while Rice went to locate Mr. Hayman, a polygraph examiner. Spewak then came out into the hall and met Rice. Spewak told Rice that Peters had something to tell him. Rice went into the office at about 2:30 p. m. and Peters then stated he had "something he might as well tell now, [which] he had not told [the authorities] before." Rice asked what it was, and Peters said: "While he and Mr.

[ 473 Pa. Page 83]

Simmons and Mr. Motto were at the Cove back in July of 1969, he [Peters] also struck Mr. Motto about the head with his fist." Peters was not rewarned of his rights while at the courthouse. [Hereinafter: C-3.] This statement was not recorded.

Rice contacted Clark and Clark ordered Peters arrested. Peters was then arrested. Rice testified that Peters never became a suspect until March ...

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