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COMMONWEALTH PENNSYLVANIA v. DAVID ANDERSON (12/18/81)

filed: December 18, 1981.

COMMONWEALTH OF PENNSYLVANIA,
v.
DAVID ANDERSON, APPELLANT. COMMONWEALTH OF PENNSYLVANIA, V. RICHARD ROSS, APPELLANT. COMMONWEALTH OF PENNSYLVANIA, V. MELVIN JOHNSTON, APPELLANT. COMMONWEALTH OF PENNSYLVANIA, V. TYRONE BRYANT, APPELLANT



No. 913 April, 1979, No. 914 April, 1979, No. 925 April, 1979, No. 926 April, 1979, Appeal from the Order dated October 12, 1979, Court of Common Pleas, Beaver County, Pennsylvania, Criminal, No. 255 of 1979, No. 256 of 1979, No. 257 of 1979, No. 260 of 1979.

COUNSEL

Wayne S. Lipecky, Steven Kocherzat, John P. Dohanich and Joseph M. Budicak, Assistant Public Defenders, Beaver, for appellants.

John L. Brown, Assistant District Attorney, Beaver, for Commonwealth, appellee.

Spaeth, Johnson and Popovich, JJ. Popovich, J., files a concurring opinion. Spaeth, J., concurs in the result.

Author: Johnson

[ 294 Pa. Super. Page 3]

This is an appeal from the order of October 12, 1979, which denied Appellants' motions to quash on grounds of double jeopardy.

On August 13, 1979, Appellants were tried jointly with Valentine and another inmate of the Beaver County Jail on charges of Involuntary Deviate Sexual Intercourse,*fn1 Indecent Assault,*fn2 and Assault by a Prisoner.*fn3 The charges against Valentine were nolle prossed, and the other defendants were granted a motion for a mistrial.

[ 294 Pa. Super. Page 4]

Appellants' retrial commenced on September 10, 1979, before a jury. At the conclusion of the first day of trial, the judge denied a request for instructions to caution the jury against reading or listening to news reports about the trial. Articles appeared in the Beaver County Times on September 10 and in the local edition of the Pittsburgh Post-Gazette the next morning.

These articles referred to the trial and to the motives of Valentine, who, in an in camera proceeding, from which the press had been specifically excluded, had refused to testify despite a grant of immunity. The Post-Gazette article contained the following information:

Joseph Stanichak, assistant district attorney, based his belief that Valentine would implicate the other inmates on a statement Valentine wrote while under oath.

Stanichak said during a recess that Valentine faces substantial jail time for other offenses with which he is charged, including participation in the June breakout. "He figures, 'Why not save my buddies because how much more time can I get?'" the prosecuting attorney said.

At the beginning of the second day of trial, defense counsel notified the court about the articles. When the jurors were polled concerning whether or not they had read the article in the Post-Gazette, all of the jurors responded affirmatively. Appellants Bryant and Ross were granted a motion for a mistrial. The judge then proceeded sua sponte to declare a mistrial for Anderson, Johnston, and the one additional defendant, despite the objections of their respective counsel.

Appellants presented motions to quash, contending that retrial would constitute double jeopardy. Appellants then filed this appeal from the denial of their motions. For the following reasons, we reverse.

The appeals of Bryant, Ross, Anderson, and Johnston have been consolidated in this appeal. In the case of Appellants

[ 294 Pa. Super. Page 5]

Anderson and Johnston, the issue is whether or not "manifest necessity" existed for the trial judge to declare a mistrial over the objections of the forenamed Appellants. The issue in the case of Appellants Bryant and Ross is whether or not the prosecutor's conduct constituted prosecutorial overreaching, so that a retrial would be barred under the Double Jeopardy Clause.

In deciding the first issue, we must determine whether or not the judge's sua sponte declaration of a mistrial was dictated by "manifest necessity." See Commonwealth v. Stewart, 456 Pa. 447, 451, 317 A.2d 616, 618 (1974). The Pennsylvania courts have not adopted a clear-cut definition of "manifest necessity"; instead, they have determined the existence or nonexistence of "manifest necessity" by reviewing the particular circumstances of each case. Commonwealth v. Bycer, 254 Pa. Super.Ct. 336, 340, 385 A.2d 1367, 1369 (1978). If the appellate court, after considering the factual details of the case, determines that the trial judge did not abuse his discretion in deciding that manifest necessity compelled the declaration of a mistrial, a retrial will not violate the Double Jeopardy Clause. Commonwealth v. Stewart, 456 Pa. at 451, 317 A.2d at 619.

In the instant case, the trial judge learned, in the morning of the second day of trial, of the circulation of the articles described above. When the judge polled the members of the jury, he discovered that every juror had read the article in the Post-Gazette.

The content of this article would prejudice the jurors' views so they would be unable to make a decision that would be based solely on the evidence presented in court. See Commonwealth v. Pierce, 451 Pa. 190, 194, 303 A.2d 209, 212 (1973). By reference to the statements of Joseph Stanichak, Assistant District Attorney, the articles created a substantial risk that the jurors would have great confidence in the content of the articles due to the position that such a person holds in the community. Id., 451 Pa. at 198, 303 A.2d at 214. Also, the reference to Valentine's written statement under oath creates an aura of validity about this statement since it

[ 294 Pa. Super. Page 6]

    is assumed that one is more likely to be truthful if he speaks under oath.

Also, the time of publication of the articles in the instant case is another factor that contributed to the manifest necessity of declaring a mistrial. Since the articles were published while the trial was in progress, there was no "cooling off period" to lessen the effect of the articles upon the jurors. See Commonwealth v. Cohen, 489 Pa. 167, 178, 413 A.2d 1066, 1076 (1980).

When the total effect of the foregoing circumstances is considered, it is clear that manifest necessity to declare a mistrial existed in the instant case. It would be nearly impossible for the jurors, all of whom had read one of the articles, to divorce what they had read from the evidence that was presented in the courtroom. The jurors must base their decision solely upon the evidence and arguments that they hear in the courtroom,*fn4 but a decision that was untainted by the newspaper articles could not be reached in the instant case. Thus manifest necessity to declare a mistrial existed.

A finding that manifest necessity existed as a basis for the trial court's sua sponte declaration of a mistrial generally does not bar a retrial under the Double Jeopardy Clause. Commonwealth v. Stewart, 456 Pa. at 451, 317 A.2d at 621; Commonwealth v. Bycer, 254 Pa. Super.Ct. at 341, 385 A.2d at 1368-1369. Previous cases, however, have not addressed the situation in which circumstances that created manifest necessity were caused by alleged prosecutorial misconduct.

In the instant case, Appellants Bryant and Ross contend that the prosecution's conduct bars their retrial on double jeopardy grounds. We proceed to determine whether or not

[ 294 Pa. Super. Page 7]

    a retrial for either Appellants Anderson and Johnston or Appellants Bryant and Ross is barred because of prosecutorial overreaching.

In Commonwealth v. Starks, 490 Pa. 336, 416 A.2d 498 (1980), the court defined two types of prosecutorial overreaching, both of which create exceptions to the general rule that the Double Jeopardy Clause does not bar retrial of a defendant whose motion for a mistrial has been granted. Lee v. United States, 432 U.S. 23, 30, 97 S.Ct. 2141, 2145, 53 L.Ed.2d 80 (1977); United States v. Dinitz, 424 U.S. 600, 607, 96 S.Ct. 1075, 1079, 47 L.Ed.2d 267 (1976). The first type of prosecutorial misconduct is designed to provoke a mistrial. United States v. Dinitz, 424 U.S. at 611, 96 S.Ct. at 1081. The second type is undertaken in bad faith to prejudice or harass the defendant. Lee v. United States, 432 U.S. at 33, 34, 97 S.Ct. at 2147, 2148; Commonwealth v. Starks, 490 Pa. at 341, 416 A.2d at 500. See also, Commonwealth v. Hoskins, 494 Pa. 600, 432 A.2d 149 (1981).

Although Appellants do not contend that the prosecutor's conduct was designed to provoke a mistrial, the prosecutor's misconduct must be examined to determine whether or not the prosecutor acted in bad faith to prejudice or harass Appellants.

In the foregoing discussion of the existence of manifest necessity to declare a mistrial, the existence of actual prejudice to Appellants was obvious. We must proceed to consider whether or not the prosecutor's conduct, which resulted in this prejudice, was "undertaken in bad faith to prejudice . . . the defendant(s)." Commonwealth v. Starks, 490 Pa. at 341, 416 A.2d at 500.

In Commonwealth v. Clark, 287 Pa. Super.Ct. 380, 430 A.2d 655 (1981), we held that the following guidelines are relevant to determine whether or not the prosecutor acted in bad faith:

(1) the absence of any actions undertaken by the prosecutor to preserve the trial and to enhance the defendant's prospects for a fair trial after the misconduct occurred, (2) the absence of either abundant or convincing evidence of

[ 294 Pa. Super. Page 8]

    the defendant's guilt, so that the prosecutor's misconduct might reasonably be perceived as an attempt to rescue an inadequate prosecution, (3) the absence of misconduct causing serious and incurable prejudice to the defendant, (4) the absence of any neutral explanations, including inexperience, trial strategy, or inadvertence on the part of the government, to show that it did not, in fact, act purposely, (5) observations of the trial judge concerning the prosecutor's motives, and (6) defiance by the prosecutor of any direct order or clear admonition by the trial court to refrain from specific conduct prejudicing the defendant's prospects for acquittal.

Id., 287 Pa. Super. at 392, 430 A.2d at 661.

In regard to the first guideline, the record in the instant case reveals an absence of any actions by the prosecution to preserve the trial and to enhance the defendants' prospects for a fair trial. Near the beginning of the discussions with the judge concerning the newspaper articles, the prosecutor argued that no prejudice had occurred because the content of the articles had been known by various people. Later, when the court agreed to poll the jury, the prosecutor moved for a mistrial on three grounds:

Number one, on the untimely application made to the Court regarding the testimony of one, Robin Kerr, [a defense witness]; improper application and statements made yesterday making reference to the fact that there was a trial last month and, three, in light of the fact that this could possibly prejudice the case against the Commonwealth, as that article appears in the paper, we move for a mistrial on behalf of the Commonwealth.

At no time did the prosecutor request the court to issue any curative instructions that might have "saved" the trial.

In applying the second guideline of Clark to the instant case, the prosecutor's divulgence of information to the press may be interpreted as "an attempt to rescue an inadequate prosecution." 287 Pa. Super.Ct. at 393, 430 A.2d at 661. The victim, who was the chief prosecution witness, could only identify two of the defendants. Valentine, a potential prosecution

[ 294 Pa. Super. Page 9]

    witness, had refused to testify. A physician's testimony, establishing that the victim's laceration could have been caused by the insertion of a blunt object into his anus, constituted the remainder of the prosecution's case. Obviously, the prosecution's case suffered from an "absence of either abundant or convincing evidence of the defendant[s'] guilt." Id., 287 Pa. Super. at 393-394, 430 A.2d at 661.

The third Clark guideline is whether or not the prosecutor engaged in misconduct that caused "serious and incurable prejudice to the defendant." In our foregoing discussion of manifest necessity, it was clearly established that the prosecutor's statements to the press resulted in "serious and incurable prejudice" to Appellants. In ...


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