Appeal from the Order of March 31, 1981 in the Court of Common Pleas of Philadelphia County, Criminal Division, at No. M.C. 80-05-1311, MIS 80-920951.
Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.
Jane C. Greenspan, Assistant District Attorney, for Commonwealth, appellee.
Cavanaugh, Olszewski and Hoffman, JJ.
[ 344 Pa. Super. Page 364]
The sole issue on appeal is whether double jeopardy bars appellant's retrial on charges of simple assault and defiant trespass after a mistrial was declared sua sponte at her first trial. We find that retrial is barred and, therefore, reverse the order below and discharge appellant.
On August 5, 1980, a non-jury trial of appellant and her co-defendant, Stan Fields, began in the Municipal Court of Philadelphia. During cross-examination of the complaining witness, the assistant district attorney requested that the witness's address not be disclosed. (N.T. August 5, 1980 at 14-15). Despite this request, appellant's counsel questioned the witness about his address. The assistant district attorney objected, and the court called a sidebar conference which was not recorded. (Id. at 29-30). Following that conference, the co-defendant's counsel requested a mistrial because the assistant district attorney had informed the judge during the conference that the co-defendant had threatened the complaining witness. (Id. at 30). Appellant's counsel stated that he did not join the motion for a mistrial and that he wished the trial to proceed. (Id.) The assistant district attorney noted appellant's position and informed the court that she wanted to sever the two cases and proceed with appellant's trial. (Id. at 31). Instead, the court granted co-defendant's motion for a mistrial and, sua sponte, declared a mistrial as to appellant, "so that both cases can run together;" appellant objected. (Id. at 32-33).
On September 5, 1980, appellant filed a motion in Municipal Court to dismiss the charges as barred by double jeopardy. That motion was denied on December 20, 1980. On appeal to the Court of Common Pleas of Philadelphia
[ 344 Pa. Super. Page 365]
County, the Municipal Court's decision was upheld on March 31, 1981. This appeal followed.
Pennsylvania Rule of Criminal Procedure 1118(b) provides as follows:
When an event prejudicial to the defendant occurs during trial only the defendant may move for a mistrial; the motion shall be made when the event is disclosed. Otherwise, the trial judge may declare a mistrial only for reasons of manifest necessity.
(Emphasis added). Where a mistrial is declared sua sponte, the Double Jeopardy Clauses of the United States and Pennsylvania Constitutions bar retrial unless manifest necessity is shown. Commonwealth v. Bolden, 472 Pa. 602, 373 A.2d 90 (1977). The principles underlying the manifest necessity standard were first set forth by ...