No. 195 March Term, 1979, Appeal from the Order of Court entered on October 15, 1979, in the Court of Common Pleas of Allegheny County, Pennsylvania, Criminal Division at No. CC7803342A and No. CC7803149A
John H. Corbett, Jr., David G. Metinko, Asst. Public Defenders, Pittsburgh, for appellant.
Robert E. Colville, Dist. Atty., Robert L. Eberhardt, Deputy Dist. Atty., Dara A. DeCourcy, Asst. Dist. Atty., Pittsburgh, for appellee.
O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. Nix, J., filed a concurring opinion in which Flaherty, J., joined. Roberts, J., filed a concurring and dissenting opinion.
On June 4, 1979, appellant Harold Fields was brought to trial before a jury on one count each of murder of the first degree, murder of the third degree, voluntary manslaughter, carrying a firearm without a license, and former convict owning a firearm. Three days into the trial, the court, upon motion by appellant, declared a mistrial. On September 11, 1979, appellant filed an Application to Dismiss Indictments on the grounds that a new trial would violate his right not to be twice placed in jeopardy. The trial court denied the application and this direct appeal followed.*fn1
Appellant's double jeopardy claim is based on the contention that appellant was forced to request a mistrial because of misconduct on the part of the prosecutor. We have reviewed the record and find this contention to be without merit.
Accordingly, the trial court's denial of appellant's Application to Dismiss Indictments is affirmed and the case is remanded for appropriate proceedings.
NIX, Justice, concurring.
I agree that the request by appellant for a finding that retrial, on these charges, should not be allowed and the discharge of appellant as to these offenses would be inappropriate. However, I do not accept the suggestion of the majority that the complaint is "without merit." The news article in question placed before the jury evidence of prior criminal activity attributed to appellant, which could not have been properly introduced at the trial of this case and should not have influenced the verdict to be reached in this case. Mr. Donaldson, a respected member of the media, testified under oath that he had spoken to the trial assistant who tried this case and that the trial assistant verified the facts set forth in the article. The trial assistant categorically denied this and offered the possibility that Mr. Donaldson may have overheard a conversation between himself (the trial assistant) and someone involved in the case.*fn1 If Mr. Donaldson's version of the events is correct, ...