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filed: April 30, 1982.


No. 1284 October Term, 1979, Appeal from the Order of the Court of Common Pleas, Criminal Division, Philadelphia County, at No. 1365 August Term, 1978.


Elias B. Landau, Philadelphia, for appellant.

Gaele McLaughlin Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Cercone, President Judge, and Hester, and Wieand, JJ. Wieand, J., files a concurring opinion.

Author: Cercone

[ 299 Pa. Super. Page 3]

In this appeal, appellant, Nathan N. Owens, claims that a retrial would subject him to double jeopardy. He contends that a mistrial resulted due to overreaching on the part of the trial judge and alternatively, that there was no manifest necessity for the declaration of the mistrial. We find no merit to either of appellant's arguments and thus, affirm the order of the trial court denying appellant's pre-trial motion to dismiss.

Appellant was charged with simple and aggravated assault perpetrated upon a prison guard in an institution wherein appellant was an inmate. He was brought to trial before the Honorable Stanley L. Kubacki, J. and a jury. After both sides had rested, appellant announced in open court that he no longer required the services of his attorney. Following this announcement, the jury was removed from the court room, and the trial judge questioned appellant about his reasons for wanting the dismissal of counsel. Appellant stated that his counsel had declined to pose certain questions and call certain witnesses. Appellant requested that a new attorney be appointed to make the closing arguments. Upon denial of this request, appellant threatened that if he was not provided with new counsel, "I am going to disrupt the courtroom because I don't want him to defend me no more." Appellant carried through with his threat, was held in contempt of court, and given a sentence of six months imprisonment.

Eventually, the jury was returned to the courtroom for the completion of trial. Appellant, however, again disrupted the proceedings and dared the trial judge to hold him in contempt. Because appellant persisted in his uncontrolled

[ 299 Pa. Super. Page 4]

    behavior, Judge Kubacki found it necessary to hold appellant in contempt twice again. On each occasion when he did so, Judge Kubacki said, "I am sentencing you to an additional six months in jail for contempt to follow all sentences you are now serving." The second time appellant retorted: "You can give me a thousand years." At this point, defense counsel sought a mistrial, and the motion was granted by Judge Kubacki.

Appellant's first argument contends that his trial was aborted due to judicial overreaching, and thus, retrial is barred. Specifically, appellant faults the trial judge (1) for holding appellant in contempt and sentencing him on the contempt charges in the presence of the jury thereby revealing to the jury that appellant was already serving time in prison;*fn1 and (2) for failing to conduct a colloquy concerning appellant's desire to represent himself. Generally, the double jeopardy clause does not bar retrial of a defendant who obtains a new trial upon his request for a mistrial. United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976); Commonwealth v. Starks, 490 Pa. 336, 416 A.2d 498 (1980). However, reprosecution may be barred where the mistrial is attributable to governmental overreaching. United States v. Dinitz, supra; Commonwealth v. Starks, supra. The United States Supreme Court has articulated two types of overreaching: first, there is misconduct designed to provoke a mistrial in order to secure a second more favorable opportunity to convict defendant, and second, there is misconduct undertaken in bad faith which is designed to prejudice or harass the defendant. United States v. Dinitz, supra, 424 U.S. at 611, 96 S.Ct. at 1081; Commonwealth v. Starks, supra. The allegedly improper actions of the trial judge instantly did not constitute either type of overreaching. This is substantiated by the record.

[ 299 Pa. Super. Page 5]

Concerning appellant's claim that it was misconduct to hold appellant in contempt and sentence him on that charge in the presence of the jury, we must note that the better practice would have been to conduct such proceedings outside the presence of the jury. Nevertheless, these actions by the judge, when viewed in light of the surrounding circumstances, do not suggest a bad faith effort to prejudice or an intent to provoke mistrial.*fn2 As our earlier recitation of the events of the contempt procedure indicated, it was appellant's unbridled, disruptive behavior in the presence of the jury which prompted the court to hold appellant in contempt and sentence him thereon. Appellant went so far as to even dare the trial judge to hold him in contempt. Indeed, the action by the trial judge could hardly have prejudiced appellant more than he had prejudiced himself in the eyes of the jury by ...

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