No. 1408 April Term, 1978, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, Cambria County, dated June 13, 1978 at No. C-671 (a), (b), (c), 1977.
James H. Stratton, Jr., Ebensburg, for appellant.
D. Gerard Long, District Attorney, Ebensburg, for Commonwealth, appellee.
Price, Hester and Montgomery, JJ.
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Appellant was convicted of burglary, theft, and receiving stolen property. On this appeal he alleges that he was denied a fair trial because his constitutional right of confrontation was violated.
Appellant's first trial on these charges ended on October 24, 1977, when a mistrial was declared upon motion of the defendants. The grounds for the mistrial were that, despite repeated warnings by the trial judge that his remarks were
[ 268 Pa. Super. Page 101]
improper, the Commonwealth's chief witness continued to make inflammatory and prejudicial statements. The case was then relisted for trial in December of 1977. On November 1, the motion by appellant's trial counsel to have the testimony of the mistrial transcribed was denied by the trial judge. Appellant asked in December for a continuance of the case until a transcript of the mistrial could be obtained and this request was also denied.
At appellant's second trial, the Commonwealth's chief witness testified in a manner inconsistent with his testimony in the previous trial. At the time, appellant's counsel was advised by the court that the witness could be impeached on the basis of prior inconsistent statements which counsel could remember or of which counsel had notes. Counsel proceeded with his examination of the witness by that method and succeeded in bringing to light three prior inconsistent statements which he remembered or had noted at the previous trial.
Appellant contends that the trial judge's failure to order a transcript of the mistrial and to make the transcript available to himself and the Commonwealth amounted to a violation of his 6th and 14th Amendment rights because his counsel was denied an opportunity to adequately cross-examine the Commonwealth's chief witness. U. S. ex rel. Ragazzini v. Brierley, 321 F.Supp. 440 (1970). Appellant would generally have the right to impeach a witness using the witness' previous sworn testimony. 1 Henry, Pennsylvania Evidence § 481 (1953). But, we cannot hold that a trial judge must always order a transcript of a mistrial and make the transcript available to the parties for introduction into evidence at the new trial. To so hold would frequently frustrate the purpose for which a mistrial is granted because testimony which necessitated the mistrial would be introduced again at the second trial. It is fair and logical to say that the ordering of a transcript of a previous mistrial is part of the trial court's broad discretion to order a new trial. Albert v. Alter, 252 Pa. Super. 203, 381 A.2d 459 (1977); Becker v. Butler County Memorial Hospital, 249 Pa. Super. 321,
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A.2d 316 (1977). We cannot say the appellant's 6th and 14th Amendment rights were violated by the trial court's failure to ...