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filed: April 23, 1982.


No. 101 Harrisburg, 1980, Appeal from Order of the Court of Common Pleas, Criminal Division, of Adams County, 1980, No. CC-161-79.


Robert E. Campbell, Gettysburg, for appellant.

Robert G. Teeter, Assistant District Attorney, Gettysburg, submitted a brief on behalf of Commonwealth, appellee.

Price, Wieand and Lipez, JJ. Wieand and Lipez, JJ., concur in the result.

Author: Price

[ 298 Pa. Super. Page 321]

This appeal arises out of an automobile accident which occurred on May 16, 1979, in the village of Brushtown, Adams County. Mae R. Lloyd was operating her automobile in a westerly direction on Route 116. The weather was clear and dry. Appellant's pickup truck crossed the center line of the highway from the oncoming lane of traffic and crashed head-on with her car. The impact of this violent collision jerked Mrs. Lloyd's car over the berm of the road onto the front porch of an adjacent home. Appellant's truck careened onto its right side facing west in the eastbound lane. As a result of the collision, Mrs. Lloyd was killed.

On November 30, 1979, appellant was tried before a jury in the Court of Common Pleas of Adams County on a charge of homicide by vehicle.*fn1 A mistrial was declared, however, when a police officer stated on direct examination that he had detected a trace of alcohol on appellant's breath immediately after the crash. Thereafter, appellant filed a motion to dismiss the charge on double jeopardy grounds because of prosecutorial misconduct. This motion was denied and an immediate appeal was taken to this court.*fn2 For the reasons stated herein, we affirm the trial court's order denying appellant's motion for discharge.

At trial, the Commonwealth called as its expert witness Dennis J. Hagerman, the investigating officer present at the accident scene. During the course of Hagerman's direct examination, defense counsel repeatedly objected that no

[ 298 Pa. Super. Page 322]

    foundation had been laid for the officer's proffered testimony concerning the point of impact. These objections were sustained until the trial court finally granted a recess in order for the prosecution to organize its case-in-chief.*fn3 When the trial had resumed and the proper foundational questions had been asked, the trial court ruled, at defense counsel's behest, that the investigating officer could not render an expert opinion as to the cause of the collision. Immediately after this ruling, however, testimony regarding the point of impact was admitted. The prosecutor then asked Officer Hagerman about his observations of appellant following the crash:

Q. [ASSISTANT DISTRICT ATTORNEY] Did you observe Mr. Buffington on the scene?

A. [OFFICER HAGERMAN] Yes, sir, I did.

Q. Did you notice anything about his demeanor at that time?

A. When I talked to the man when I first observed him he was at the scene of the accident in the middle of the roadway. He was bleeding from the scalp area. He appeared confused, injured. There was an odor of alcoholic beverages about his person.

(N.T. 48-49). The defense then moved for a mistrial on the ground that the officer's reference to an odor of alcohol without other proof of intoxication gave rise to an impermissible inference that appellant was under the influence and unfit to drive at the time of the accident. Following a side

[ 298 Pa. Super. Page 323]

    bar conference, the trial judge admitted that, although intoxication is a proper circumstance from which recklessness or carelessness of a driver may be inferred,*fn4 the mere fact that appellant's breath smelled of alcohol did not prove intoxication, and, therefore, such evidence, standing alone, was inadmissible because highly prejudicial. See, e.g., Fisher v. Dye, 386 Pa. 141, 125 A.2d 472 (1956); Cusatis v. Reichert, 267 Pa. Superior Ct. 247, 406 A.2d 787 (1979); Schwarzbach v. Dunn, 252 Pa. Superior Ct. 454, 381 A.2d 1295 (1977); Selby v. Brown, 250 Pa. Superior Ct. 134, 378 A.2d 862 (1977). Accordingly, the trial judge granted appellant's motion for a mistrial. Later, after the jury had been dismissed, Officer Hagerman stated in an unrecorded discussion with defense counsel that he had been specifically instructed by the prosecution to mention the odor of intoxicating liquor on appellant's breath.*fn5

[ 298 Pa. Super. Page 324]

In challenging the propriety of the trial court's order dismissing his pretrial motion to dismiss, appellant argues that the prosecutor's conduct amounted to overreaching forbidden by the double jeopardy clause and, therefore, that his reprosecution must be barred. Appellant specifically contends that the events described above prove that, by deliberately infecting the proceedings, the prosecutor sought to trigger the declaration of a mistrial in order to secure a more favorable opportunity to convict or to prejudice appellant's prospects for an acquittal.*fn6 See Commonwealth v. Sample, 493 Pa. 347, 426 A.2d 582 (1981); Commonwealth v. Page 324} Starks, 490 Pa. 336, 416 A.2d 498 (1980). Appellant buttresses his argument by citing the fact that, before Officer Hagerman committed the offending reference, the Commonwealth's case was not progressing favorably: the trial judge had continuously sustained defense counsel's objections to the prosecutor's attempts to elicit opinion evidence regarding the place of impact and even felt constrained to recess the proceedings to enable the prosecutor to reorganize his direct examination.

In Commonwealth v. Clark, 287 Pa. Superior Ct. 380, 430 A.2d 655 (1981), we sought to dispel the uncertainty surrounding the standard to be applied in cases involving prosecutorial misconduct. That case set forth several factors to be used in determining the existence of bad faith.*fn7 Mindful of those factors, we direct our attention to the instant record. See Commonwealth v. Potter, 478 Pa. 251, 268, 386 A.2d 918, 926 (1978) (Pomeroy, J., Opinion in Support of Affirmance).

After the officer's reference to the smell of alcohol on appellant's breath, the following discussion occurred out of the jury's presence:

[ 298 Pa. Super. Page 325]

[THE COURT]: Is there any evidence that the Defendant was under the influence of alcoholic beverages?

[THE ASSISTANT DISTRICT ATTORNEY]: A blood test was refused in the hospital. The important aspect of this is that there is no explanation for this accident. I think it is within the province of the jury to hear this evidence and to determine -- well, perhaps he fell asleep. Obviously the jury will make some determination in its mind as to how the accident occurred. That's the Commonwealth's position. This is something the jury should know. It's a fact of the case.

[THE COURT]: When are you planning on trying this case again. Mr. Teeter, one of the elements that is involved in a homicide by vehicle is the element of criminal negligence. In civil cases involving the question of negligence it has been ruled that the mention of alcoholic beverages is inflammatory requiring a new trial or a mistrial in the absence of testimony that would indicate that the person was under the influence. If that is true in a civil case -- I haven't seen anything in a criminal case -- but since the issue is the same that is negligence. I'm afraid [ sic ] your witness has committed an error which I just can't overlook.

[THE ASSISTANT DISTRICT ATTORNEY]: I just feel that it's something that the jury has a right to know because it is a fact of the case.

[THE COURT]: Do you have any authority that the civil rule does not also apply to a criminal action such as this?


[THE COURT]: I'll give you five minutes to come up with authority.

(N.T. 49-50) (emphasis added). When the trial resumed, the assistant district attorney was unable to produce the requested research. The trial judge, therefore, granted the defense motion for a mistrial.

At first blush, it is true that the objective circumstances of the court proceeding indicate that the prosecutor's case

[ 298 Pa. Super. Page 326]

    was going badly. To be sure, appellant did succeed in excluding the investigating officer's expert testimony concerning the point of impact. As we have already noted, however, this critical evidence, showing that appellant's vehicle crossed the center line and was in the opposite lane of travel when the crash occurred, was ruled admissible just prior to the officer's reference to the odor of alcohol. Given this state of the record, we disagree with appellant's contention that the prosecutor's conduct should be perceived as an attempt to rescue an inadequate prosecution.

It is also fair to say in assessing appellant's charge of prosecutorial overreaching that the evidence in this case, considered in its totality, may reveal more than the "hint of intoxication" condemned as prejudicial in Fisher v. Dye, supra, and its progeny.*fn8 Our purpose in stating such is not to show that the trial court abused its discretionary power to declare a mistrial since that issue is not before us. Rather, we mean only to reiterate our finding in Clark, supra, that

[ 298 Pa. Super. Page 327]

    the absence of prejudice to a defendant at least substantially certain to result in a mistrial negates any inference of bad faith on the part of the prosecutor. Commonwealth v. Clark, 287 Pa. Superior Ct. at 397, 430 A.2d at 664.

Indeed, after reviewing the transcript of the proceedings, we find that any impropriety that occurred was attributable to the prosecutor's belief that the odor of alcohol, when joined with other facts of evidence in the case, was relevant in determining whether appellant's drinking contributed to the fatal accident. See note 8 supra. The prosecutor argued that, even if appellant was not intoxicated, the jury could reasonably infer that he was deprived of that degree of control and clarity of intellect which he would ordinarily possess. In light of this circumstance, it must be concluded that the prosecutor's attempt to elicit testimony concerning the odor of alcohol on appellant's breath had a basis in trial strategy and was not calculated to create an impression of unfitness to drive through innuendo. See generally Commonwealth v. Clark, supra.

Finally, it is important to note that the trial court itself was satisfied that the events which led to the mistrial failed to disclose any deliberate prosecutorial misconduct.*fn9 See Commonwealth v. Clark, supra. Determining the motives of the prosecutor is analogous to assessing the credibility of the witnesses in a non-jury trial. Commonwealth v. Wright, 439 Pa. 198, 266 A.2d 651 (1970). "The trial judge who is on the scene and who has observed the individuals and the events is in a better position to decide this question than are we who only have a dry record from which to work." Id., 439 Pa. at 204, 266 A.2d at 654-55 (citation omitted). Therefore, unless the record supports a finding of overreaching, we give great weight to a trial judge's decision to permit a defendant's reprosecution. See Commonwealth v. Clark, supra. As already indicated, we find that the instant record fully supports the conclusion of the trial court.

[ 298 Pa. Super. Page 328]

Admittedly, the portion of Officer Hagerman's testimony that caused the declaration of a mistrial was given pursuant to the instructions of the prosecutor. This is not a case, however, where the prosecutor's conduct was so abhorent as to constitute overreaching as proscribed by the double jeopardy clause. Criminal adjudication necessarily demands that the prosecutor assume an aggressive stance, and it is only when he has engaged in intentional misconduct designed to prejudice the jury or force the defense to move for a mistrial that society's interest in punishing criminals must give way to a discharge of the accused.

The trial court's order denying appellant's motion for discharge is affirmed.

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