No. 2325 October Term, 1979, Appeal from the Order of the Court of Common Pleas, Criminal Trial Division, of Philadelphia County at Nos. 493 and 494, March Term, 1978.
Nino V. Tinari, Philadelphia, for appellant.
Gaele McLaughlin Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Hester, Cirillo and Popovich, JJ.
[ 295 Pa. Super. Page 411]
This is an appeal from the Order of the Court of Common Pleas of Philadelphia County denying appellant's Motion to Dismiss the Bills of Information at Nos. 493 and 494 on double jeopardy grounds.*fn1 We affirm.
Appellant was tried before a judge for Criminal Conspiracy, Burglary, Theft by Unlawful Taking and Theft by Receiving Stolen Property. However, prior to the completion of the proceedings, a mistrial was granted on appellant's motion. The facts leading up to the mistrial are as follows:
On July 29, 1977, the owner of a Philadelphia bar found his premises burglarized and reported to the police that liquor, money and cigarettes were taken. At trial, Officer Martin Holmes testified that, at approximately 5:15 A.M. on the day in question, he observed a dark colored vehicle go through the traffic light at 7th and Oregon Avenue. Officer Holmes signaled the vehicle to stop and then observed a large quantity of cigarettes, alcohol and money in the back seat. He took the keys out of the ignition and went back to his cruiser. The driver jumped out of the vehicle and ran. Officer Holmes identified the driver as the appellant.
The defense presented alibi witnesses and raised the issue of misidentification by Officer Holmes, contending that because appellant's brother, Timothy Ross, exhibited similar physical characteristics it may have been he driving the vehicle instead of the accused. Additionally, appellant's father testified that he saw his son Timothy driving a 1964 or 1965 Chevy on July 28, 1977 at 8:30 P.M., which was the vehicle stopped by Officer Holmes.
The attorney for the Commonwealth secured Timothy Ross for trial and called him to the stand on rebuttal. Prior to Mr. Ross testifying, defense counsel moved for a mistrial based on his knowledge that the witness would invoke the Fifth Amendment. The motion was denied.
[ 295 Pa. Super. Page 412]
Mr. Ross, after being advised of his Fifth Amendment rights by the trial judge, answered a few of the Commonwealth's questions before refusing to respond to the query of "What kind of car" he was driving "about July 29th, 1977[.]" (N.T. 188) At this point, the Commonwealth's attorney stated to the trial judge that he had been authorized by the District Attorney to grant immunity to the witness as to "any and all prosecutions arising out of the case at bar, and all involvement he may have had in any way, shape or form arising out of an incident, which [was] a burglary, that occurred on or about July the 29th, 1977, at My Little Margie's Bar." Id. at 189. Though the trial judge issued an immunity decree from the bench, the witness, through his counsel, still refused to testify. Appellant's counsel again moved for a mistrial which was granted.
On appeal, appellant contends that the mistrial was caused by "intentional or grossly negligent misconduct on the part of the prosecutor," in that he (the prosecutor) knew that the witness would utilize the Fifth Amendment privilege, and, therefore, he tried to intimidate the witness by the offer of immunity. (Appellant's Brief at 7) The test to be applied in this instance is whether the Commonwealth engaged ...