No. 3083 October Term 1978 Appeal from the Order of the Court of Common Pleas, Criminal Division, Delaware County at No. 3542 of 1978.
Guy Messick, Assistant District Attorney, Media, for Commonwealth, appellant.
Francis R. Lord, Media, for appellee.
Spaeth, Stranahan and Sugerman, JJ.*fn*
[ 275 Pa. Super. Page 137]
This is an appeal by the Commonwealth from an order dismissing the prosecution as barred by the double jeopardy clause.*fn1
Appellee was charged with obstructing the administration of law, tampering with witnesses, and hindering prosecution. He was first tried on these charges before a jury on February 8, 1978, but a mistrial was declared because of the jury's inability to reach a unanimous verdict. A second jury trial began on June 1, 1978, but on the second day of this trial, the trial judge granted appellee's motion for a mistrial. On June 28, 1978, appellee filed a motion to dismiss the prosecution. The motion alleged that "[t]he prosecution [had] . . . intentionally invited or encouraged" the June mistrial, and that a retrial would therefore violate appellee's right against double jeopardy. The lower court agreed, and granted appellee's motion to dismiss the prosecution.
The charges against appellee arose from the arrest of Herman Fontain by Chester Township police officers on July 24, 1976. Mr. Fontain, a political figure in the city of Chester, became abusive with two police officers who had stopped him for a traffic violation. He was placed under arrest, transported to the police station, and charged with disorderly conduct and assaulting a police officer. Mr. Fontain made a telephone call from the station, and a short time later appellee appeared at the station. Appellee was a Chester Township Commissioner. He talked to Mr. Fontain at the station, handed the complaint to one of the officers, and told the officer to hold the papers until he heard from him. He then walked out of the station with Mr. Fontain. No charges were brought against Mr. Fontain.
The incident that led the lower court to grant appellee's motion for a mistrial occurred during the Commonwealth's
[ 275 Pa. Super. Page 138]
cross-examination of a defense witness, Ms. Rebecca Gray. Ms. Gray, who lived across the street from the police station, described what she saw on the night in question and stated that it was she who called appellee and asked him to come to the station and investigate the incident. The objectionable cross-examination was as follows:
Q. Now, you recall talking to a representative of the District Attorney's Office, a Mr. Dennis O'Leary?
A. Correct. I beg your pardon?
Q. And he asked you whether or not you could help him out with information concerning this July 24th incident, didn't he?
Q. You deny that? Well, what was it that he asked you?
A. Which time are you talking about when Mr. O'Leary talked to me?
Q. He talked to you twice?
Q. Let me refer you to the summer of '77 when the investigation of Mr. Palazzo was ongoing. Do ...