No. 320 January Term, 1978, Appeal from the Order of the Superior Court, at No. 2314 October Term, 1976, affirming the Order of the Court of Common Pleas, Criminal, of Delaware County, at No. 6411, 6412 December, 1975. Appeal to the Supreme Court allowed July 25, 1978
Donald M. McCurdy, Media, for appellant.
D. Michael Emuryan, Asst. Dist. Atty., Delaware County, for appellee.
Eagen, C. J., and O'Brien, Roberts, Nix, Manderino and Larsen, JJ.
Appellant, Arthur Lee Bycer, was charged with two counts of involuntary manslaughter in the Court of Common Pleas of Delaware County. The charges arose out of an accident in Haverford Township, Delaware County, on August 1, 1975, when appellant, while operating his automobile, struck and killed two boys.
Trial began on January 26, 1976. During the Commonwealth's case, the prosecutor offered a photograph of one of the decedents as evidence and stated that he intended to offer a photograph of the other. Appellant objected to the admission of the photographs on the ground that they were prejudicial, and the objection was sustained. The court later declared a recess. Several women, who were related to the decedents, held up pictures of the decedents so as to make them potentially visible to jurors leaving the courtroom. Appellant moved for a mistrial. The judge questioned the jurors about the incidents and two jurors admitted seeing the women holding up the pictures, but stated they did not see the content of the pictures. No juror knew the identity of the women or the content of the pictures. Appellant then withdrew his motion for mistrial. The prosecutor objected to the withdrawal of the motion, saying that continuance of the trial would prejudice the Commonwealth. The judge said that the Commonwealth could not move for a mistrial. However, he declared a mistrial sua sponte.
A new trial was scheduled for March 26, 1976. Prior to that time, appellant filed a petition for discharge. The court denied the petition, certified that there was a controlling
question of law, and stayed the proceedings pending appeal. The Superior Court affirmed the denial of the petition for discharge, 385 A.2d 1367 (1978), and we granted appellant's petition for allowance of appeal.
Appellant contends that subjecting him to another trial would violate the prohibition of double jeopardy by the Fifth Amendment to the United States Constitution, which is applicable to the states. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969).
In United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971), the court discussed the applicability of the double jeopardy clause to retrial after the abortion of an earlier trial. It held that such retrial is improper unless the previous trial was aborted on a motion by the defendant or out of manifest necessity. Otherwise, it is improper to foreclose the defendant's ...