Appeals from the Order of March 16, 1976 of the Court of Common Pleas of Allegheny County, Pa., Criminal Div. at No. CC7507474A (No. 634) and Nos. CC7507475A and CC7507476A (No. 635).
William G. Boyle, Pittsburgh, for appellants.
Charles W. Johns, Assistant District Attorney, Pittsburgh, with him Robert E. Colville, District Attorney, Pittsburgh, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Price and Van der Voort, JJ., dissent. Watkins, former President Judge, did not participate in the consideration or decision of this case.
[ 257 Pa. Super. Page 193]
This appeal is from the denial of a petition for writ of habeas corpus.
On November 24, 1975, a jury was empaneled and sworn to try appellants, Lonnie L. Dull and Bernard Yagle. Dull was charged with one count of simple assault and Yagle with two counts, each of aggravated assault and of simple
[ 257 Pa. Super. Page 194]
assault. On November 25 and 26, Andrew Hovanec testified for the Commonwealth.*fn1 On December 1, following a recess for the Thanksgiving holiday, trial resumed. The district attorney informed the trial judge that during the recess Hovanec had suffered a heart attack and was hospitalized. In an in camera discussion the judge informed appellants' counsel of this development and of the district attorney's request that Mrs. Hovanec and her children, who were present in the courtroom, be excused from testifying because they were distraught over Mr. Hovanec's condition. The judge indicated his intention to declare a mistrial because "the ends of justice . . . [might] be defeated by unnecessarily prolonging the trial by excusing witnesses from appearing in their normal turn . . ." N.T. 12/1/75, 3. Defense counsel objected, arguing inter alia that
the prosecuting witness here, Mr. Hovanec, has testified at length already in the case, as well as protracted cross examination having occurred. There has been no indication thus far that his testimony or any additional testimony would be needed further in the case. Secondly, Mrs. Hovanec and her two children are, according to the District Attorney, only witnesses in the case of the Commonwealth v. Dull, and all three of them are in the courtroom at the present time . . .
Despite this objection the judge sua sponte declared a mistrial.*fn2
After an application to quash the indictments was denied, appellants' counsel on February 17, 1976, filed a petition for writ of habeas corpus, contending that appellants' retrial would constitute a violation of the double jeopardy clause ...