No. 2237 Philadelphia, 1980, Appeal from the Order dated September 29, 1980, Court of Common Pleas, Criminal Division, of Lycoming County, Pennsylvania, at No. 10,183 of 1980.
Anthony D. Miele, Williamsport, for appellant.
Kenneth D. Brown, District Attorney, Williamsport, for Commonwealth, appellee.
McEwen, Montemuro and Shertz, JJ. Shertz, J., did not participate in the consideration or decision of this case.
[ 300 Pa. Super. Page 198]
We here consider an appeal from a pre-trial Order which denied a motion by appellant to quash the information lodged against him. The appellant claims that a retrial would subject him to double jeopardy since the trial court had declared a mistrial during an earlier trial arising out of the same charges. We disagree and affirm the order of the eminent Lycoming County Common Pleas Court President Judge Charles F. Greevy.
[ 300 Pa. Super. Page 199]
The appellant was charged with driving under the influence, resisting arrest and disorderly conduct. After a jury had been sworn to try the appellant on those charges and the testimony of the two arresting police officers had been completed, a third police officer, who assisted at the scene of the arrest, offered a prejudicial remark during the course of his direct examination by the Commonwealth. The defendant moved for and the trial judge declared a mistrial. Appellant subsequently filed a motion to quash the information in which he claimed, inter alia, that the prejudicial remark was induced intentionally by the Commonwealth to force the defendant to request a mistrial; it is upon that basis that appellant contends a retrial would result in a violation of the double jeopardy clause. The Common Pleas Court, after a hearing, denied the motion of appellant to quash the information. This appeal followed.
Appellant here urges us to expand the definition of prosecutorial misconduct to include the misconduct of prosecution witnesses whose prejudicial remarks are contrived to cause a mistrial. While we would decline to make such an unwarranted extension of the law, we need not decide that issue for the reason that the record makes clear that the prejudicial remark in this case was not contrived.
The remark under scrutiny is set forth in the following excerpt of the testimony of the police officer during his direct examination by the Commonwealth:
Q. Did you form an opinion that evening as to the defendant's condition?
A. It was my opinion he had too much to drink. ...