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filed: April 20, 1981.


No. 1359 October Term, 1979, Appeal from the Order of the Court of Common Pleas of Philadelphia County, Criminal Division, at Nos. Misc. 79-00-5613 and MC 78-08-2291.


Stephen Gross, Assistant Public Defender, Philadelphia, for appellant.

Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Spaeth, Brosky and Van der Voort, JJ. Spaeth, J., files dissenting opinion.

Author: Brosky

[ 284 Pa. Super. Page 61]

Smith was charged with simple assault, terroristic threats and possessing an instrument of crime. At trial, the prosecutor asked appellant if he had been convicted of larceny in 1970. Counsel moved for and received a mistrial.*fn1 A retrial was set for March 26, 1979; and before that trial began, appellant moved for a dismissal on the grounds of double jeopardy. The motion was denied. A writ of certiorari was filed and denied and this interlocutory appeal followed. We affirm the order of the trial court.

[ 284 Pa. Super. Page 62]

Appellant claims his retrial will result in his being held in jeopardy twice. However, a retrial on double jeopardy grounds is only prohibited where "there is found to have been prosecutorial misconduct intended to provoke mistrial requests[,]" United States v. Dinitz, 424 U.S. 600, 611, 96 S.Ct. 1075, 1081, 47 L.Ed.2d 267, 276 (1976); Commonwealth v. Gravely, 486 Pa. 194, 404 A.2d 1296 (1979), or where the prosecution takes an action which prejudices or harasses the defendant. Commonwealth v. Starks, 490 Pa. 336, 416 A.2d 498 (1980).

In the instant case, the appellant testified he had thrown a beer can against the wall of the grocery store and that he possessed a knife. Pettaway testified he ordered Smith out of the store because appellant entered it carrying a beer can. An argument ensued, after which Pettaway and another security guard escorted appellant from the store. Smith reentered, whereupon more arguing occurred, during which appellant threatened to "cut" Pettaway. Smith was taken out of the store again and as the security guards turned their backs to him and walked to re-enter the store, appellant hurled and struck Pettaway with a beer can. Pettaway, then turned toward Smith who approached him. The other security guard rushed appellant back away from Pettaway. Then Smith approached Pettaway again. This time, Pettaway saw the butt of a knife in the appellant's pocket while Smith was walking toward Pettaway with his hands in his pockets. Pettaway testified he struck appellant to save himself from attack.

The appellant admitted on the stand that he was carrying a knife. He also stated that he threw a beer can. However, he did not testify that he intended to strike Pettaway. After Smith made these statements, the Commonwealth began to cross-examine him during which time the prosecution asked appellant if he had been convicted of larceny in 1970. Appellant's trial counsel moved for and received a mistrial. Before a second trial was held, Smith appealed claiming a second trial would hold him in double jeopardy.

[ 284 Pa. Super. Page 63]

The protections accorded an individual by the double jeopardy clause attach before a final judgment is reached:

Because jeopardy attaches before the judgment becomes final, the constitutional protection also embraces the defendant's "valued right to have his trial completed by a particular tribunal." The reasons why this "valued right" merits constitutional protection are worthy of repetition. Even if the first trial is not completed, a second prosecution may be grossly unfair. It increases the financial and emotional burden on the accused, prolongs the period in which he is stigmatized by an unresolved accusation of wrongdoing, and may even enhance the risk that an innocent defendant may be convicted. The danger of such unfairness to the defendant exists whenever a trial is aborted before it is completed. Consequently, as a general rule, the prosecutor is entitled to one, and only one, opportunity to require an accused to stand trial.

Unlike the situation in which the trial has ended in an acquittal or conviction, retrial is not automatically barred when a criminal proceeding is terminated without finally resolving the merits of the charges against the accused. Because of the variety of circumstances that may make it necessary to discharge a jury before a trial is concluded, and because those circumstances do not invariably create unfairness to the accused, his valued right to have the trial concluded by a particular tribunal is sometimes subordinate to the public interest in affording the prosecutor one full and fair opportunity to present his evidence to an impartial jury. Yet in view of the importance of the right, and the fact that it is frustrated by any mistrial, the prosecutor must shoulder the burden of justifying the mistrial if he is to avoid the double jeopardy bar. His burden is a heavy one. The prosecutor must demonstrate "manifest necessity" for any mistrial declared over the objection of the defendant.

The words "manifest necessity" appropriately characterize the magnitude of the prosecutor's burden. For that

[ 284 Pa. Super. Page 64]

    reason Mr. Justice Story's classic formulation of the test has been quoted over and over again to provide guidance in the decision of a wide variety of cases. Nevertheless, those words do not describe a standard that can be applied mechanically or without attention to the particular problem confronting the trial judge. Indeed, it is manifest that the key word "necessity" cannot be interpreted literally; instead, contrary to the teaching of Webster, we assume that there are degrees of necessity and we require a "high degree" before concluding that a mistrial is appropriate.

The question whether that "high degree" has been reached is answered more easily in some kinds of cases than in others. At one extreme are cases in which a prosecutor requests a mistrial in order to buttress weaknesses in his evidence. Although there was a time when English judges served the Stuart monarchs by exercising a power to discharge a jury whenever it appeared that the Crown's evidence would be insufficient to convict, the prohibition against double jeopardy as it evolved in this country was plainly intended to condemn this "abhorrent" practice. As this Court noted in United States v. Dinitz, 424 U.S. 600, 611, 96 S.Ct. 1075, 1081, 47 L.Ed.2d 267:

"The Double Jeopardy Clause does protect a defendant against governmental actions intended to provoke mistrial requests and thereby to subject defendants to the substantial burdens imposed by multiple prosecutions. It bars retrials where 'bad-faith conduct by judge or prosecutor' . . . threatens the '[h]arassment of an accused by successive prosecutions or declaration of a mistrial so as to afford the prosecution a more favorable opportunity to convict' the defendant."

Arizona v. Washington, 434 U.S. 497, 503-509, 98 S.Ct. 824, 829-832, 54 L.Ed.2d 717, 726-30, (1978) (emphasis added).*fn2

Clearly, we must reach a determination as to whether the prosecution intentionally sought to bring about a mistrial

[ 284 Pa. Super. Page 65]

    request. Commonwealth v. Gravely, supra. Our Supreme Court has not specifically presented us with a test by which we are to determine if the prosecution's actions were intentional. However, we are able to discern from its opinion in Commonwealth v. Gravely, supra, that our decision must be based upon a review of the entire record viewed within the totality of the circumstances.

The dispute arises out of the Commonwealth's cross-examination of the appellant:


Q. You never threatened Mr. Pettaway at all?

A. No.

Q. So after you left the store, you heard footsteps behind you?

A. Right.

Q. How far were they behind you?

A. When I turned around, they were like maybe eight feet and coming.

Q. Coming at you?

A. That's right.

Q. Did he have anything in his hand?

A. His partner had his stick.

Q. He had it out?

A. Yes.

Q. Were they running toward you?

A. No, they were just walking about maybe the same pace I was walking. I couldn't judge, you know, exactly.

Q. And you stopped and turned around?

A. I stopped.

Q. Did his partner hit you at all?

A. On the arm with the stick when I put ...

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