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decided: April 28, 1978.



G. Guy Smith, Media, for appellant.

D. Michael Emuryan, Assistant District Attorney, Media, for Commonwealth, appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Cercone, J., concurs in the result. Hoffman, J., files a dissenting opinion in which Spaeth, J., joins. Watkins, former President Judge, did not participate in the consideration or decision in this case.

Author: Price

[ 254 Pa. Super. Page 337]

Appellant Arthur Lee Bycer was indicted on two counts of involuntary manslaughter as the result of a motor vehicle accident in which two pedestrians were killed. The instant

[ 254 Pa. Super. Page 338]

    appeal is taken from an order of the lower court denying appellant's motion for discharge. We affirm the lower court's order.

Trial in the instant case commenced on January 26, 1976. During the Commonwealth's presentation of evidence, the assistant district attorney attempted to introduce a photograph of one of the deceased. He also informed the court that he intended to offer a similar photograph of the other victim. The lower court sustained appellant's objection to the introduction of the photographs on the ground that they were prejudicial.

After three witnesses had testified, the court declared a recess. During the recess several women, who were apparently relatives of the victims, were observed by the assistant district attorney and defense counsel holding the pictures in such a manner as to make them potentially visible to the members of the jury who were leaving the courtroom.

When court reconvened, appellant's counsel objected and requested a mistrial. The request was initially refused and the courtroom was cleared. The members of the jury were then questioned concerning their knowledge and observation of the incident. Two of the jurors indicated that as they were leaving the courtroom, they had seen several individuals holding pictures. None of the jurors, however, had observed the contents of the pictures.

At this point, the court recessed for lunch and conducted an in-chambers interview with appellant, appellant's attorney and the assistant district attorney. The trial judge explained that appellant's case may have been prejudiced because of the incident. Appellant was informed that he would be retried if the mistrial was granted. He was also told that he could withdraw his motion, request cautionary instructions and proceed to verdict with the first jury. After appellant conferred with his attorney, he asked the court to proceed with cautionary instructions. Appellant was advised that if he pursued this course he would waive any right to claim on appeal that his case was prejudiced as a result of the incident.

[ 254 Pa. Super. Page 339]

The assistant district attorney opposed the withdrawal of the motion for mistrial stating that:

"The Commonwealth feels now with the clearing of the courtroom, the polling of the Jury, the lengthy session in Chambers this afternoon, as well as anticipated cautionary instructions, it could very well prejudice the Commonwealth to have the Jury proceed with the evidence presented, and we also feel and would submit that although it appears on record that Mr. Bycer would knowingly and intelligently withdraw that Motion . . . that regarding the possibility of later developments it could prove to be an unwise decision on Mr. Bycer's part. . . ." (NT 24).*fn1

The trial court informed the assistant district attorney that "Rule 1118, Criminal Procedure, states that only the Defendant may move for a mistrial," (NT 24) and thus rejected the argument that a mistrial should be granted simply because the Commonwealth's case may have been prejudiced. (See also NT 26).

The judge then informed the parties that he intended to declare a mistrial sua sponte, stating that:

"As I indicated to you gentlemen, I think that the prejudice has permeated this entire Jury because of the necessity for questioning the entire Jury and the fact that two of them did see and hear something; and I foresee future problems if he is convicted, as his own lawyer has stated.

Therefore, under the circumstances, the Court feels and holds that there is a manifest necessity to declare a mistrial. The prejudice has permeated the entire Jury by now as we have indicated. Very well." (NT 25).

The lower court then ordered a mistrial and discharged the jury.

Appellant subsequently filed a petition for a writ of habeas corpus alleging that his ...

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