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decided: February 1, 1980.



Joseph V. Furlong, Philadelphia, for appellant.

Robert B. Lawler, Chief, Appeals Div., Victor Fortuno, Philadelphia, for appellee.

Eagen, C. J., and O'Brien, Roberts, Nix, Larsen and Flaherty, JJ. Roberts, J., filed a concurring opinion. Nix and Larsen, JJ., concur in the result.

Author: Eagen

[ 488 Pa. Page 77]


Appellant, Widmark Mitchell, was brought to trial in the Court of Common Pleas of Philadelphia on June 6, 1977, for the murder of James Fulton. After the jury was empaneled and sworn, a mistrial was ordered on Mitchell's motion. Thereafter, he moved to dismiss the indictment, claiming that a second prosecution would violate his constitutional right not to be placed twice in jeopardy. The motion was denied, and Mitchell appealed to this Court.*fn1

Appellant contends his request for a mistrial was necessitated by conduct of the prosecutor specifically intended to cause a mistrial. If this claim were meritorious, retrial on the same charges would violate the double jeopardy clause. However, our review of the record has disclosed no prosecutorial misconduct in the first proceeding. Thus, we conclude

[ 488 Pa. Page 78]

    that the double jeopardy clause is no barrier to a new trial of the accused. Accordingly, we affirm the trial court's order denying Mitchell's motion to dismiss and remand for trial.

In deciding whether the circumstances surrounding a mistrial will bar reprosecution on the same charges, we apply the standards established by both Pennsylvania and federal decisions.*fn2 Ordinarily, the double jeopardy clause does not bar retrial of an accused where an earlier proceeding is terminated prior to judgment. Retrial is permitted where the trial court, because of manifest necessity, declares a mistrial over the defendant's objection, see Illinois v. Somerville, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973); Commonwealth v. Robson, 461 Pa. 615, 337 A.2d 573 (1975); Commonwealth v. Brown, 451 Pa. 395, 301 A.2d 876 (1973); Commonwealth v. Lauria, 450 Pa. 72, 297 A.2d 906 (1972), as well as where a mistrial is granted at defendant's request on the basis of prosecutorial or judicial error. See United States v. Dinitz, 424 U.S. 600, 611, 96 S.Ct. 1075, 1081, 47 L.Ed.2d 267 (1976); United States v. Jorn, 400 U.S. 470, 484, 91 S.Ct. 547, 557, 27 L.Ed.2d 543 (1971) (plurality opinion); Commonwealth v. Metz, 425 Pa. 188, 228 A.2d 729 (1967); Commonwealth v. Warfield, 424 Pa. 555, 227 A.2d 177 (1967); Commonwealth ex rel. Montgomery v. Myers, 422 Pa. 180, 220 A.2d 859 (1966). The only exception to the rule permitting retrial is where a defendant's mistrial request is necessitated by prosecutorial error committed intentionally to force the accused to move for mistrial, thereby affording the prosecution another, possibly more favorable, opportunity to convict. United States v. Dinitz, supra; United States v. Jorn, supra; Downum v. United States, 372 U.S. 734, 736, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963); Commonwealth v. Gravely, 486 Pa. 194, 198-200, 404 A.2d 1296, 1298 (1979); Commonwealth v. Hogan, 482 Pa. 333, 393 A.2d 1133

[ 488 Pa. Page 79]

(1978) (opinion announcing the decision of the Court); Commonwealth v. Potter, 478 Pa. 251, 261, 386 A.2d 918, 922 (1978) (opinion in support of affirmance). When such governmental overreaching or bad faith is found to exist, the double jeopardy clause will bar retrial.

In the instant case, counsel filed a pretrial application to exclude the defendant's prior conviction for murder pursuant to Commonwealth v. Bighum.*fn3 On May 24, 1977, the court entered an order prohibiting the Commonwealth from presenting evidence of the defendant's prior conviction. On June 6, 1977, the case proceeded to trial, and the Commonwealth called as its second witness, Mrs. Shirley McClennan, an eyewitness to the crime. On direct examination, Mrs. McClennan referred to defendant's prior criminal record.*fn4

[ 488 Pa. Page 80]

Outside the presence of the jury, defense counsel moved for a mistrial on the basis of the witness's prejudicial answer. Following argument on the motion in which defense counsel charged that the Commonwealth had an affirmative burden to prevent its witnesses from testifying to the conviction which the court had excluded from evidence and the assistant district attorney responded that he had instructed the witness to avoid mentioning defendant's prior conviction, the court declared a mistrial due to the prejudicial testimony which, it concluded, could not be cured by a jury instruction.

Immediately thereafter, the court held an evidentiary hearing outside the presence of the jury on the question of whether the assistant district attorney had, in fact, instructed the witness on this matter prior to her testimony. At that time, Mrs. McClennan was recalled to the witness stand.

[ 488 Pa. Page 81]

In response to questions by defense counsel, she testified that she knew of defendant's prior murder conviction before her brother, the victim in this case, was killed. She also stated that she had discussed her testimony with the assistant district attorney in his office on one occasion a week before trial, but that she was never instructed by anyone acting for the prosecution to say or not to say anything about the defendant's prior conviction.*fn5

Upon further questioning, the witness stated that she had no particular reason for telling the jury about the prior murder conviction, but she felt it was important that the

[ 488 Pa. Page 82]

    jury know of it. However, she maintained she did not make the statement because she thought it would help to convict the defendant. When questioned by the assistant district attorney, Mrs. McClennan modified her previous statement and said she did remember his mentioning the term "mug shots" and the word "prejudice" when he reviewed her statement containing the information that the defendant had been arrested for killing another man.

Police Officer Edward Little was also called as a witness at the evidentiary hearing after the court declared a mistrial. He testified to a meeting he attended with several witnesses in the case about a week prior to trial. He stated that, at that time, the assistant district attorney advised the witness, Shirley McClennan, not to mention the defendant's prior conviction.*fn6

[ 488 Pa. Page 83]

At the conclusion of the evidentiary hearing, the trial judge decided there had been no affirmative misconduct by the assistant district attorney to induce the witness to present prejudicial testimony. The court stated as follows:

"THE COURT: It is unfortunate and I will also state for the record that I have, from the inquiries, every reason to believe that the District Attorney was just as surprised as all of us were when the witness made the gratuitous remark which I found not only inadmissible but highly inflammatory and it was for that reason that I granted the mistrial.

I see -- from as much as I know now, I do not see any reason for any reflection on Mr. Berman or anybody in the District Attorney's office, from what I know of the case, which is a very fresh recollection."

Two days after the mistrial declaration, counsel for the defendant moved to dismiss the information on the ground that retrial would violate the defendant's constitutional right against double jeopardy. Testimony from the evidentiary hearing held at the time of mistrial and the testimony of Mrs. McClennan given at the suppression hearing, before the same judge who later presided at trial, was incorporated into the record.*fn7 After a full hearing on the question of double jeopardy, the defendant's motion to dismiss was denied and this appeal followed.

Appellant maintains that the prosecutor's failure to warn the witness not to mention the prior conviction in the jury's

[ 488 Pa. Page 84]

    presence amounted to gross negligence which, by itself, is not sufficient to bar retrial. But see Commonwealth v. Potter, supra (opinion in support of reversal); Commonwealth v. Bolden, supra (plurality opinion). However, he also asserts the assistant district attorney attempted to "cover up" this "commission of an improper act" -- viz., failure to warn the witness -- by asking the witness to "give us some background on how long you know him and how many times you have seen him." Appellant contends this question was "pointed" and "loaded" and was intended to provoke a mistrial. Under the standard announced in Commonwealth v. Potter, supra (opinion in support of affirmance), where the prosecutor is deemed to have been "substantially certain that a mistrial would be declared as a result of his questions to witnesses," retrial of the accused should be barred.

We know of no authority to support appellant's view that the Commonwealth had an affirmative duty to caution any witness who knew of defendant's prior criminal record against referring to it in the jury's presence. We agree with the trial court which noted that "for either counsel to be under an affirmative duty to caution the witness . . . seems to be a remote and not compelling duty at best." Thus, we cannot say the failure to warn in this case amounted to prosecutorial bad faith or overreaching justifying discharge. More importantly, the trial court specifically found the prosecution did give the witness a "firm and adequate warning" and there is support in the record for its determination.

Further, contrary to appellant's assertion, the question which resulted in the objectionable remark clearly was not intended to elicit the reply the witness gave. Rather, it was intended to elicit information to support the reliability of the witness's identification of the defendant. There is no support in the record for appellant's claim that the prosecutor's question was a ploy to elicit prejudicial information about the defendant's criminal record.

[ 488 Pa. Page 85]

In Commonwealth v. Potter, supra, four members of this Court decided that the guarantee against double jeopardy did not bar retrial of the defendant where the prosecutor, in an earlier trial, improperly questioned two witnesses after he had been instructed by the court not to pursue a certain line of questioning. Id., 478 Pa. at 267-273, 386 A.2d at 926-928. Further, in Commonwealth v. Gravely, supra (opinion announcing the decision of the Court), we held retrial was not barred where a mistrial was granted after a prosecution witness impermissibly blurted out the results of defendant's polygraph examination. In that case, we refused to attribute the mistrial to the Commonwealth.

Likewise, in the instant case, appellant's claim which concerns a prejudicial reference to a prior criminal record by a civilian witness should not be imputed to the Commonwealth, especially in view of the trial court's finding that there was no affirmative misconduct to induce the witness to present inflammatory testimony. See Commonwealth v. Wright, 439 Pa. 198, 266 A.2d 651 (1970). We, therefore, affirm the trial court's denial of appellant's motion to dismiss.

ROBERTS, Justice, concurring.

I agree with the plurality that the order of the trial court denying appellant's motion to dismiss should be affirmed. I write separately only to make clear what issues truly are in this case. After a full evidentiary hearing, the trial court determined that the Commonwealth cautioned its civilian witness not to refer to appellant's previous conviction, and that the witness nonetheless did so spontaneously. The record clearly supports these determinations. Accordingly, there is no reason here for the plurality to decide that the Commonwealth does not owe "an affirmative duty to caution any witness who knew of defendant's prior criminal record against referring to it in the jury's presence." Plurality opinion at p. /--.

[ 488 Pa. Page 861237]

. Nor is there any reason on this record to decide the standard under which appellant's claim of prosecutorial misconduct warranting discharge should be tested. Compare, e. g., Commonwealth v. Potter, 478 Pa. 251, 260-67, 386 A.2d 918, 922-26 (1978) (Opinion of Pomeroy, J., in Support of Affirmance) (urging intentional standard) with id., 478 Pa. at 282-84, 386 A.2d at 933-34 (Opinion of Roberts, J., in Support of Reversal) (urging gross negligence standard). The record is clear that, under a gross negligence standard, appellant is not entitled to the relief he seeks.

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