Nos. 179 and 180 Special Transfer Docket, APPEAL FROM ORDER DENYING PETITION TO DISMISS ON GROUNDS OF DOUBLE JEOPARDY, ENTERED ON NOVEMBER 15, 1977, BY THE COURT OF COMMON PLEAS, PHILADELPHIA COUNTY, CRIMINAL DIVISION, AT NOS. 470 and 471 OF JANUARY TERM, 1977.
Jack M. Myers, Philadelphia, for appellant.
Neil Kitrosser, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Watkins, Manderino and Cirillo, JJ.*fn* Manderino, J., concurs in the result.
[ 270 Pa. Super. Page 377]
On November 29, 1976, appellant Gordon Thomas was arrested and charged with the murder of John McCullough and the possession of an instrument of crime. The case came to trial before the Honorable John A. Geisz and a jury on April 4, 1977, in the Court of Common Pleas in Philadelphia County. On April 20, 1977, a mistrial was declared due to prejudicial questions asked by the Assistant District Attorney, and the jury was dismissed. Prior to relisting the case for trial, appellant filed a petition to dismiss on grounds of double jeopardy. On October 21, 1977, a hearing on the motion was held before the Honorable Merna B. Marshall. Judge Marshall denied appellant's motion on November 15, 1977, and this appeal followed.
Appellant asserts that retrial is barred pursuant to the Double Jeopardy Clause because the intentional or grossly negligent conduct of the prosecutor forced him to move for a mistrial. We do not agree and affirm the lower court's order denying appellant's motion for discharge.
At trial, the Commonwealth presented evidence from several witnesses that appellant stabbed the victim in his throat, inside a bar. The last eyewitness called before the mistrial, Gerald Dowling, testified generally with the same certainty as the other witnesses. On cross-examination, however, peripheral differences were pointed out between his testimony at the preliminary hearing and his testimony at trial. Additionally, Mr. Dowling testified that on the night of the stabbing, the other witnesses, who at trial testified with certainty, had told him that they had developed "sudden amnesia" and had not seen or heard anything, apparently fearing reprisal if they got involved. On redirect examination, the prosecutor asked Mr. Dowling:
[ 270 Pa. Super. Page 378]
Question (By Assistant District Attorney): "What happened to your amnesia after you got shot at, after you testified at this preliminary hearing?"
The defense then moved for a mistrial. Following an evidentiary hearing where it was found that there was no evidence to connect this intimidation of Dowling with the appellant, the court ruled the question improper, but denied appellant's request for a mistrial. The jury was instructed to disregard the question.
Following the cautionary instruction, the redirect examination of Mr. Dowling was resumed, and the Assistant ...