No. 154 March, 1979 and No. 183 March 1979, Appeal from the Order denying Defendant's Motion to Dismiss Complaints in the Court of Common Pleas of Allegheny County Pennsylvania, Criminal Division entered on September 6, 1979 at CC7706800, CC7707024 and CC7708452
William F. Manifesto, Manifesto, Doherty, Love & Talarico, P.C., Pittsburgh, for appellant.
Robert E. Colville, Dist. Atty., Robert L. Eberhardt, Kemal A. Mericli, Deputy Dist. Attys., Pittsburgh, for appellee.
O'Brien, C.j., and Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. Larsen, J., filed a dissenting opinion.
This is an appeal from an interlocutory order of the Allegheny County Court of Common Pleas denying the pre-trial motion of appellant, Anthony Joseph Virtu, to dismiss a criminal complaint on double jeopardy grounds.*fn1 Because the record conclusively reveals that the initial trial was aborted as a direct result of deliberate prosecutorial misconduct, we conclude that appellant may not be retried, and, accordingly, reverse.*fn2
On the night of August 6, 1977, a fire was set in a Pittsburgh beauty salon located above a pizza shop owned by Michael Romeo ("Romeo"). A disagreement over access to a stairway leading to the salon had been an ongoing source of bad feeling between Romeo and the salon owner, and had culminated earlier on the day of the fire with the arrest of Romeo and one of his employees, Frank Spinelli ("Spinelli"), pursuant to the salon owner's private complaint, on charges of harassment and disorderly conduct. Shortly after the fire had been set, three badly burned men, including appellant, appeared at a Pittsburgh hospital. Of the three, only appellant survived.
Appellant was subsequently charged with arson, conspiracy to commit arson, and murder in connection with the beauty salon fire and the death of the other two burn victims. The decedents were Spinelli and Umberto Sandoval ("Sandoval"), who lived with Romeo at the time of the fire.
In May, 1978 a hearing was held in the Allegheny County Court of Common Pleas on a motion to suppress evidence seized in an automobile search and to suppress statements
made by appellant while in the hospital. During the hearing, the Commonwealth called Romeo as a witness, but he immediately invoked his Fifth Amendment privilege against self-incrimination and refused to testify. The suppression court ordered Romeo to answer questions seeking his name, his residence and prior residence, and whether he knew Spinelli, Sandoval and appellant. When asked whether he was the owner of the pizza shop, however, Romeo again invoked his Fifth Amendment privilege. After a side bar discussion, the assistant district attorney, Edward Fagan ("Fagan"), withdrew the question and asked Romeo if he had seen Spinelli, Sandoval, and appellant on the morning of August 7, 1977. Romeo replied in the affirmative, but when asked where he had seen them, he again invoked his privilege against self-incrimination and declined to answer. The suppression judge informed the district attorney that he would not order Romeo to testify further unless the Commonwealth agreed to grant him immunity. Court was adjourned until the following morning. At that time, the Commonwealth withdrew the witness.
Trial commenced in January, 1979 before the same judge who had presided at the suppression hearing. When it was brought to his attention that the prosecution expected to call Romeo, the trial judge inquired whether he was the same person who had refused to testify at the suppression hearing. In response, Fagan misrepresented the facts:
The Court: Let's go with this. Before you go, this Romeo, that one I think is the owner of the Pizza Shop, the one who took the Fifth Amendment --
Mr. Fagan: He didn't take the Fifth --
The Court: Didn't he at the Suppression Hearing?
Mr. Fagan: He testified --
The Court: If he's the one that brought him to the hospital?
Mr. Fagan: He testified, would you like to look at the record?
The Court: All I am -- I don't care to. All I am trying to avoid is if he is going to take the Fifth, I would ...