No. 211 January Term 1977, Appeal from the Judgment of Sentence of the Court of Common Pleas, Trial Division, Criminal Section, Philadelphia at No. 1288 August Term 1975.
Joshua M. Briskin, Philadelphia, for appellant.
Robert B. Lawler, Chief, Appeals Div., Asst. Dist. Atty., William C. Turnoff, Asst. Dist. Atty., Philadelphia, for appellee.
Eagen, C. J., and O'Brien, Roberts, Nix, Manderino, Larsen and Flaherty, JJ. Nix, J., filed a concurring opinion. Roberts, J., filed a concurring opinion in which Larsen, J., joins. Manderino, J., filed a dissenting opinion.
Appellant, William Gravely, was convicted by a jury of murder of the second degree in connection with the death of Denise Bennett. Following a denial of post-verdict motions,
judgment of sentence of life imprisonment was imposed. This direct appeal followed.
The Commonwealth argues the issues now advanced by Gravely are not properly preserved for appellate review since they were not included in written post-verdict motions. Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975). A brief raising the issues was presented to the post-verdict motion court, and the court considered the issues. Since a majority of this Court has heretofore considered such a brief, along with consideration of the issues raised therein by the trial court, sufficient to preserve issues for review under Commonwealth v. Blair, supra, on the basis of substantial compliance with Pa.R.Crim.P. 1123(a), we must reject the Commonwealth's argument.*fn1 Commonwealth v. Slaughter, 482 Pa. 538, 394 A.2d 453 (1978); Commonwealth v. Hitson, 482 Pa. 404, 393 A.2d 1169 (1978); Commonwealth v. Jones, 478 Pa. 172, 386 A.2d 495 (1978); Commonwealth v. Pugh, 476 Pa. 445, 383 A.2d 183 (1978); Commonwealth v. Perillo, 474 Pa. 63, 376 A.2d 635 (1977); Commonwealth v. Grace, 473 Pa. 542, 375 A.2d 721 (1977).
But, this Court's experience with Commonwealth v. Grace, supra, and its progeny has not been very satisfying. Counsel have more often than not failed to include the briefs in the record and, indeed, have often failed to even mention a brief was presented or filed in the trial court in the oral arguments and briefs before this Court. This unsatisfactory situation is perhaps best typified by Commonwealth v. Slaughter, supra, wherein we had to grant reargument because counsel had failed to adequately advise us of the existence of a brief. Accordingly, in order to conclude this unsatisfactory situation, we now rule that sixty days after the filing of this opinion, only those issues included in
post-verdict motions will be considered preserved for appellate review. We caution that this ruling applies to every post-verdict motion which is filed sixty days hence and to any motion which is already filed, but which may still be supplemented after sixty days from this date. Our ruling is prospective only because of the possibility of reliance by counsel on prior decisions of this Court. Cf. Commonwealth v. Bailey, 463 Pa. 354, 344 A.2d 869 (1975).
With that unsatisfactory situation laid to rest, we shall now consider the merits of Gravely's complaints.
Gravely first complains that his trial, which followed an earlier mistrial, caused him to be placed twice in jeopardy for the same offense in violation of the United States and Pennsylvania Constitutions.*fn2
Gravely was originally brought to trial on January 26, 1976, on the murder indictment. During the course of that trial, the Commonwealth called as a witness a veteran police officer, Detective McMillan, to relate the circumstances under which Gravely had provided police with an incriminatory statement. During cross-examination, McMillan responded to a question put forth by defense counsel in an attempt to pinpoint the exact moment during Gravely's police interview when he requested the assistance of counsel. His response
indicated Gravely sought the assistance of counsel after "[h]e told me he killed Denise and . . . after I told him he had flunked the polygraph exam." Defense counsel immediately moved for a mistrial, which, after an in-camera conference, was granted.
Although conceding the testimony which caused the mistrial was "not . . . caused by the [prosecutor]," Gravely argues that "the Commonwealth, through its witness, blatantly disregarded the Defendant's rights." Therefore, he continues, the "mistrial was attributable to the Commonwealth" and Gravely is entitled to be discharged.
"'From our decisions in Commonwealth v. Metz, 425 Pa. 188, 228 A.2d 729 (1967); Commonwealth v. Warfield, 424 Pa. 555, 227 A.2d 177 (1967), and Commonwealth ex rel. Montgomery v. Myers, 422 Pa. 180, 220 A.2d 859 (1966) has developed the rule that a defendant who has moved for a mistrial in response to prosecutorial misconduct may be retried if the prosecution has not invited the mistrial in order to secure another, possibly more favorable opportunity to convict the accused. [Footnote omitted.] This is because society's interest in preventing the guilty from going unpunished outweighs the risk of harassment and the burdens the defendant will incur in going through a second trial.'
Subsequent decisions in the United States Supreme Court, which are binding on the states, express a similar view:
'The Double Jeopardy Clause does protect a defendant against governmental actions intended to provoke mistrial requests and thereby to subject defendants to the substantial burdens imposed by multiple prosecutions. It bars retrials where "bad-faith conduct by judge or prosecutor," United States v. Jorn, 400 U.S. 470 at 485, 91 S.Ct. 547, 27 L.Ed.2d 543 [(1971) plurality opinion], threatens the "[h]arassment of an accused by successive prosecutions or declaration of a mistrial so as to afford the prosecution a more favorable opportunity to convict" the defendant. Downum v. United States, 372 U.S. 734, 736, [83 S.Ct. 1033] 10 L.Ed.2d 100, 102-03 (1963).'
"[Detective McMillan]: He asked me if it would be all right if he could take a polygraph examination to show that ...