No. 1052 Philadelphia, 1980 Appeal from Order of the Court of Common Pleas, Criminal Division, of Montgomery County at Nos. 4982, 4982.3, 1979.
A. Charles Peruto, Jr., Philadelphia, for appellants.
Joseph Hylan, Assistant District Attorney, for Norristown, for Commonwealth, appellee.
Cavanaugh, Johnson and Lipez, JJ. Johnson, J., files dissenting opinion.
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The issue raised in this appeal is whether the circumstances surrounding the trial judge's sua sponte declaration of a mistrial reached the level of manifest necessity. Appellants argue that manifest necessity was not shown and that retrial of the appellants is therefore barred by the doctrine of double jeopardy. We agree, and therefore order that the appellants be discharged.
The appellants, prison guards at the State Correctional Institution at Graterford, were charged with various offenses arising out of an incident during which an inmate was severely beaten. The case was called to trial before the Honorable Horace A. Davenport and a jury. The Commonwealth called Earl Worthy, an inmate at the prison, as a witness. A luncheon recess interrupted Mr. Worthy's direct testimony and Mr. Worthy was returned to the holding cell, or "bull pen", on the ground floor of the Montgomery County Courthouse. During the luncheon recess, defense counsel, Mr. Peruto, had Mr. Worthy, with whom he was previously acquainted, taken to a private room where the two spoke for a few minutes. Before Court resumed for the afternoon, Mr. Worthy advised the district attorney of
[ 311 Pa. Super. Page 333]
the interview and the district attorney in turn reported the private conversation to the Court. Judge Davenport conferred with counsel in chambers, at which time Mr. Peruto confirmed that he had spoken with Mr. Worthy. The Court then questioned Mr. Worthy about the conversation on the record, with the jury absent. The testimony, in relevant part, was as follows:
Q. Mr. Worthy, it has been reported to me by Mr. Schireson, the assistant district attorney, that during the lunch hour you were contacted in the bull pen by Mr. Peruto, that there was a conversation which took place down there. The essence of the conversation I will not go into as it was reported to me, but I want to ask you specifically for you to relate to the Court for the record exactly what took place.
A. Mr. Peruto requested to me, and I complied to his request. We had a previous acquaintance from a prior case, whereas he was indirectly involved as my attorney. What I mean by indirectly was he was attorney for someone, a co-defendant of mine. And we know each other from that acquaintance. And there was not anything discriminatory toward this case mentioned at that time.
Q. I want you to relate to me exactly what the conversation was which took place down in the bull pen.
Q. As close as you can recall.
A. Mr. Peruto asked did I intend to hurt him.
A. He asked me did I intend to hurt him on this trial here. And I told him I would do what was necessary. And I think he asked me why. And I said that it was a matter of principle, according to my code of ethics, that I partake of this trial truthfully, and that I would.
However, I expressed my regrets that he was attorney for the opposition in this case.
[ 311 Pa. Super. Page 334]
And we spoke somewhat about the other case, you know, in which we was victorious. And it became plain, neither one of us was going to give any information regarding this case at hand. And Mr. Peruto just told me it wasn't nothing personal.
Q. Mr. Peruto told you what?
A. There wasn't nothing personal, but he was going to tear me down on cross-examination. That's what he is supposed to do if he can. And that was the extent of the conversation.
Q. Was there any reference to any future activities on his part or on your part?
Q. Was there any threat to do something in the future, any promise to do something in the future? Was this conversation and discussion in a conversational ...