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filed: March 29, 1989.


Appeal from the Order of the Court of Common Pleas of Philadelphia County, Criminal at No. 85-12-3315-3323.


Peter Rosalsky, Assistant Public Defender, Philadelphia, for appellant.

Joann Verrier, Assistant District Attorney, Philadelphia, for Com., appellee.

Cirillo, President Judge, and Brosky, McEwen, Del Sole, Montemuro, Beck, Tamilia, Popovich and Johnson, JJ. Tamilia, J., files a dissenting opinion.

Author: Montemuro

[ 383 Pa. Super. Page 210]

This is an appeal from an order of the Court of Common Pleas of Philadelphia County, wherein the court determined that double jeopardy does not bar retrial of the appellant, James W. Gains. We affirm.

Appellant was charged with arson, aggravated assault and related offenses following an early morning fire which occurred in an apartment building located in the Abbottsford

[ 383 Pa. Super. Page 211]

    area of the City of Philadelphia.*fn1 Appellant's jury trial on these charges commenced on June 11, 1986. Testimony during the trial revealed that three of appellant's stepchildren, Anthony Harris, Michael Harris, and Brenda Chandler, resided together in an Abbottsford apartment at the time of the fire. Their mother, Hattie Gains, was married to appellant but had separated from him. She had apparently been living intermittently with her children at the Abbottsford address.*fn2 Michael Harris testified that during the week prior to December 16, 1985, his stepfather asked him to tell his mother to call the appellant. Thereafter, according to the testimony of Anthony and Michael Harris, appellant came to their apartment building and, upon learning that Hattie Gains did not wish to speak with him, appellant stated that "the consequences of what happened will be on her." (N.T., June 11, 1986 at 41.)

Anthony Harris was awakened on the morning of December 18, 1985, by what he described as a "crash." He then observed flames at a window on the second floor of the Abbottsford apartment: ". . . the curtains were starting to burn and the walls [were] starting to smoke and burn." (Id. at 44). Following the "crash" noise, Anthony Harris also recalled hearing a car "driving off" and the "neighbors hollering." (Id. at 55). Anthony and his brother Michael, with the help of a neighbor, were able to extinguish the fire. Hattie Gains, who was not staying at the Abbottsford apartment on the night of the fire, testified that when Michael Harris told her that the appellant had thrown a fire bomb into the apartment, she phoned the appellant and accused him of attempting to kill her children. According to Hattie Gains, appellant responded by stating: "This is war. I'm going to kill all [of] you . . . ." (Id. at 104). She testified that approximately fifteen minutes after the phone

[ 383 Pa. Super. Page 212]

    conversation, her husband was banging and kicking her door, telling her to come outside because he had something for her. (Id. at 105).

A police officer who arrived first at the scene of the fire advised Anthony Harris that he believed that the fire had been caused by electric candles in the window. This police officer did not testify at appellant's trial. Lt. Carr of the Philadelphia Fire Marshall's Office did testify. After arriving at the apartment shortly following the fire, Lt. Carr entered the living room and noted the odor of gasoline. In addition to determining that the origin of the fire was located under the windowsill, Lt. Carr discovered pieces of broken glass and a wick in that area of the room. Lt. Carr expressed his opinion as to the cause of the fire in the following words:

There was an incendiary device. It was thrown into the living room breaking the window. The bottle itself breaks a part (sic), the gasoline that was in the bottle and on the wick burned to extend the fire from the bottle to burn the wall and windowsill and the window.

(Id. at 133).

Later in the morning of December 18, 1985, appellant was stopped by Philadelphia police, while driving in a car apparently owned by a friend. Officer Leslie Edward Gunther testified that he detected a strong odor of gasoline in the car. The police later discovered a pile of clothing, wet with gasoline, and two pieces of copper tubing in the passenger compartment of the car.

Appellant's sister, with whom appellant resided, testified that appellant was asleep in her home during the time that the fire was allegedly set. Appellant took the witness stand and denied any involvement in the fire. He testified that he had told his stepson to ask his wife to contact him because he had some insurance money he wanted to share with her. (N.T., June 12, 1986 at 54). Appellant testified that he was driving to see his wife in the early morning hours of December 18, 1985, because, after receiving a phone call from his wife, he believed that she was in trouble

[ 383 Pa. Super. Page 213]

    and needed help. Appellant did not notice the smell of gasoline in the car which he was driving. (Id. at 61). Following closing arguments*fn3 and instructions from the court, the jury retired to deliberate.

The trial court later received the following note from the foreperson of the jury, wherein she communicated the following concerns regarding a fellow member of the jury, Mr. Turner:

Mr. Turner was manager of the Abbottsford Projects during the time Mr. and Mrs. Gains were tenants there and had dealings especially with Mrs. Gains and knew Mr. Gains. Although he stated initially that he could make an impartial judgment, we are unable to ascertain whether this judgment may be colored.

(Id. at 140-141). The trial court then summoned Mr. Turner for questioning. Mr. Turner admitted that he was familiar with the faces of Mr. Gains and Mrs. Gains, because he had seen them "in and about the [Abbottsford] projects" even though they were not "bonafide (sic) tenants."*fn4 (Id. at 140, 142). Mr. Turner, however, denied having direct dealings with the appellant or with his wife. Mr. Turner informed the court that what he had offered to the other jury members was his knowledge concerning the lifestyle of the people, in general, who resided at the Abbottsford apartments.

The court then questioned the jury foreperson who explained what had prompted her note to the court:

[ 383 Pa. Super. Page 214]

. . . We [the jury] were talking about Mrs. Gains being fearful, perhaps why she went to Baltimore or Maryland, wherever she went . . . and was there any instance of fear there. Then Mr. Turner said, "Fear? That woman don't have any fear, the many times she's stomped through my office. She doesn't have any fear." He made that statement. There was something else. I can't think what the other thing was. That was the main thing though, because I ask him, "Do you know her?" He said, "yeah, I know her." Oh! And then a couple of the other jurors said that they were on the elevator with Mr. Turner and that he saw someone and he said, "My buddy" -- now buddy, when the word buddy is used, it doesn't have to be used for anybody that you really know, sometimes you just be talking about somebody and say that buddy or whatever. But he said to someone, "A buddy of mine is here for arson."

(Id. at 148). When the trial judge informed the jury foreperson that Mr. Turner had explained his statements to the other members of the jury as mere descriptions of the general lifestyle of the persons living in the Abbottsford apartments, and that Mr. Turner had denied knowing Mr. and Mrs. Gains personally, the jury foreperson responded as follows:

This sounds a little conflicting now. It seems as though one impression was given in there and another thing or impression was said out here. It sounded in there -- and perhaps maybe you should call maybe another juror out to get their opinion also -- but it sounded to me in there that he had dealings with her in terms of management tenant.

(Id. at 149-150). Over the objection of defense counsel, who argued that neither Mr. Gains or Mrs. Gains had indicated that they knew Mr. Turner,*fn5 the trial court declared a mistrial on its own motion, "out of a sense of

[ 383 Pa. Super. Page 215]

    manifest necessity." (Id. at 156). The court stated that a fair trial was impossible because, inter alia, "Mr. Turner allegedly knew the Commonwealth's witness, Mrs. Gains, far more that he indicated here." (Id.) Following the mistrial, appellant filed a motion to be discharged, contending that retrial was barred by double jeopardy. Specifically, appellant argued that there had been no manifest necessity for the sua sponte declaration of a mistrial. The motion was argued before the Honorable James D. McCrudden on April 27, 1987.*fn6 The court denied appellant's motion and filed an Opinion in this matter on September 1, 1987. Appellant has filed this appeal in a timely manner.

Before we may address the merits of appellant's contention that double jeopardy bars his retrial, we must determine whether or not this appeal is properly before us. The Supreme Court of Pennsylvania has determined that an immediate appeal may be taken from an order denying a pretrial motion to dismiss on double jeopardy grounds. See Commonwealth v. Bolden, 472 Pa. 602, 373 A.2d 90 (1977) (plurality); Commonwealth v. Haefner, 473 Pa. 154, 373 A.2d 1094 (1977). The Bolden plurality opined:

The basic purpose of the double jeopardy clause mandates that a defendant who has a meritorious claim have an effective procedural means of vindicating his constitutional right to be spared an unnecessary trial. Acquittal upon retrial or belated appellate recognition of a defendant's claim by reversal of a conviction can never adequately protect the defendant's rights. The defendant is deprived of his constitutional right the moment jeopardy attaches a second time. His loss is irreparable; to subject an individual to the expense, trauma and rigors incident to a criminal prosecution a second time offends the double jeopardy clause. The clause establishes the "right to be free from a second prosecution, not merely a second punishment for the same offense." Fain v. Duff, 488 F.2d 218, 224 (5th Cir.1973).

[ 383 Pa. Super. Page 216]

    court, that appellant's double jeopardy claim is "frivolous." A frivolous claim is a claim clearly and palpably without merit; it is a claim which presents no debatable question. Such futile claims, presumably interposed for the mere purposes of delay or disruption, are to be expressly identified by the trial court through a written finding. The 3 defendant may then opt to request a stay from the Pennsylvania Supreme Court to preliminarily challenge the trial court's written finding of frivolousness and may secure appellate review of the double jeopardy claim on direct appeal following retrial. Id., 510 Pa. at 345, 508 A.2d 291. See also Commonwealth v. Learn, 356 Pa. Super. 382, 386, 514 A.2d 910, 911 (1986) (in a request for a stay in the context for which Brady provides, the Superior Court would lack jurisdiction to issue a writ of prohibition).

Thus, in view of the fact that we presently have no written finding by the trial court that appellant's double jeopardy claim is a frivolous one, we exercise jurisdiction over this appeal. The trial court certainly had the benefit of the Brady decision and could have made a finding of frivolous if it had deemed such a finding warranted. Commonwealth v. Keenan, 365 Pa. Super. 437, 440 n. 3, 530 A.2d 90, 91 n. 3 (1987). We now expressly overrule the decision of a panel of this Court in Commonwealth v. Learn, supra, to the extent that it holds that 4 where a trial court fails to make a written finding of frivolousness, a remand will be ordered to afford the trial court an opportunity to determine whether such a finding should be included in the record.

[ 383 Pa. Super. Page 218]

Finally, we note the importance of our exercise of jurisdiction in the case at bar. Where the trial court has rejected a criminal defendant's double jeopardy claim which is at the least "colorable" or "arguable", access to appellate review is imperative. Otherwise, the risk is simply too great that the criminal defendant will be deprived of his right to be free from an unnecessary retrial with its accompanying ". . . expense, trauma and rigors incident to a criminal prosecution for the second time . . . ." Commonwealth Page 218} v. Brady, supra 510 Pa. at 340, 508 A.2d at 288 (1986) (citation omitted). We must not lose sight of the balance which Brady was intended to establish.*fn7

We may now turn to the merits of appellant's double jeopardy claim. The decision to declare a mistrial rests

[ 383 Pa. Super. Page 219]

    within the sound discretion of the trial judge and we, as an appellate court, will not reverse absent a flagrant abuse of discretion. See Commonwealth v. Reardon, 374 Pa. Super. 212, 217, 542 A.2d 572, 574 (1988); Commonwealth v. Thomas, 346 Pa. Super. 11, 17, 498 A.2d 1345, 1348 (1985). However, where a mistrial is declared by the trial court on its own motion, the Double Jeopardy Clauses of the United States and Pennsylvania Constitutions bar retrial absent manifest necessity. Commonwealth v. Bolden, 472 Pa. 602, 373 A.2d 90 (1977); Pa.R.Crim.P. 1118(b). The finding of "manifest necessity" can only be made on a case-by-case basis. Commonwealth v. Stroup, 244 Pa. Super. 173, 180, 366 A.2d 1248, 1251 (1976). We are mindful that doubts concerning the necessity of a mistrial must be resolved in favor of the defendant. See Commonwealth v. Haefner, 264 Pa. Super. 144, 399 A.2d 707 (1979). "On appellate review 6 of the lower court's finding of manifest necessity, the circumstances of the trial must be examined to determine if any doubt exists regarding the propriety of the exercise of the discretion by the lower court." Commonwealth v. Smith, 324 Pa. Super. 156, 471 A.2d 510 (1984) (citations omitted).

We are convinced that the circumstances of this case presented the manifest necessity required for the sua sponte declaration of a mistrial. The trial court received a letter from the jury as a whole, signed by their elected foreperson, stating that the jury doubted the impartiality of one of its members, Mr. Turner. Upon a questioning of the foreperson as to the reason for the note, it was evident to the trial court that the jury had been exposed to specific and prejudicial information concerning the character and past conduct of Mrs. Gains, and perhaps of the appellant, which had not been a part of the evidence presented in the courtroom. Both of these individuals testified during the trial and, moreover, as is apparent from our summary of the evidence that was presented, Mrs. Gains was a significant part of the entire case. When the trial judge 7 advised the foreperson of how Mr. Turner had explained his statements

[ 383 Pa. Super. Page 220]

    to the trial judge, the foreperson advised the judge that quite a different impression had been communicated to the jury members by Mr. Turner concerning his knowledge of Mrs. Gains and Mr. Gains. Under these circumstances, the trial court could not ignore the information provided by the jury foreperson.

In Commonwealth v. Anderson, 294 Pa. Super. 1, 439 A.2d 720 (1981), this Court held that manifest necessity to declare a mistrial existed where the jury had been exposed to newspaper articles concerning trial witnesses during the course of the trial. We stated in Anderson that "[t]he jurors must base their decision solely upon the evidence and arguments that they hear in the courtroom, but a decision that was untainted by the newspaper articles could not be reached in the instant case." Id., 294 Pa. Superior Ct. at 6, 439 A.2d at 722 (footnote omitted). The same considerations apply to the case at bar. Obviously convinced that the jury had been exposed to outside influence, such that a verdict could not be rendered only upon the evidence 8 and argument as presented in open court, the trial court had no choice except to declare a mistrial. Further, it is the trial judge who is in the best situation to evaluate the necessity of a mistrial. Gori v. U.S., 367 U.S. 364, 81 S.Ct. 1523, 1524, 6 L.Ed.2d 901 (1961).

Finally, we note that, in declaring a mistrial, the trial court "was insuring that appellant would receive a trial by a fair and impartial jury which would return a verdict based solely on the evidence adduced at trial. This is an interest which is to be protected not only for defendants, but also for the public, which has a compelling interest in justice for all." Commonwealth v. Wilson, 257 Pa. Super. 329, 333, 390 A.2d 847, 849 (1978) (citation omitted). Without a fair tribunal, appellant could not receive a fair trial.*fn8

[ 383 Pa. Super. Page 221]

For all of the foregoing reasons, we affirm.

Order affirmed.

TAMILIA, Judge, dissenting:

I respectfully dissent as the trial judge was correct in declaring a mistrial, as evidenced by the strong factual situation expounded by the majority. Clearly, this case required the trial judge to call a mistrial, sua sponte, out of manifest necessity, as the motion judge unequivocally ruled. I am not certain that overruling Commonwealth v. Learn, 356 Pa. Super. 382, 514 A.2d 910 (1986), is the proper course as we now send a message that if trial judges do not pronounce the word "frivolous" in a written statement in a double jeopardy case, an appeal will lie. It is hornbook law that we look to the Order, decree, findings, Opinion or record as a whole to ascertain the intent of the trial judge. Recently, the Supreme Court in Commonwealth v. Devers, 519 Pa. 88, 546 A.2d 12 (1988), revisited a long line of Opinions by Superior Court which interpreted Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977), in sentencing procedures, holding that Superior Court carried language dictates to the point of absurdity in requiring trial judges to state on the record "the thought processes by which he arrives at a particular sentence" (Devers, supra 519 Pa. at 98, 546 A.2d at 16) and rejected Superior Court remand where "the trial court appears to have fulfilled the fact-finding responsibility but not the explanation responsibility." Id., 519 Pa. at 102, 546 A.2d at 18. In rejecting this constricted approach, the Supreme Court said: "We

[ 383 Pa. Super. Page 222]

    criticize them again, for we fail utterly to see how, based on the Superior Court's own statement of the case above, it is at all rational to believe that the sentencing judge could not have been so informed as to have arrived at a balanced judgment." Id., 519 Pa. at 102-103, 546 A.2d at 19. Just as we were criticized in Devers for circumscribing Riggins, I believe we are subject to the same criticism here for misconstruing Commonwealth v. Brady, 510 Pa. 336, 508 A.2d 286 (1986). Since I believe the case, as analyzed by the majority, clearly establishes a basis for asserting a finding 1 by the motion judge that the double jeopardy claim is frivolous as the rulings of the trial judge as to the manifest necessity for a new trial permitted no other result, I would remand with instructions to the trial court to make such a determination or to proceed as though such a determination had been made.

My reading of the majority Opinion is that it holds there is no frivolousness finding because the trial judge failed to file a written statement that it was frivolous (Majority Opinion, p. 217). This leads me to believe that if the trial judge had found the claim to be frivolous, in a written statement to that effect, the majority would have quashed the appeal as being interlocutory. I do not believe Brady, supra, intended our review of an appeal on double jeopardy issues, which serves to delay a retrial, turn on whether or not the trial judge failed to say in so many words that the claim was frivolous. If the record clearly shows the claim to be frivolous and the trial judge, as here, clearly found the claim to be without merit and allowing for no other conclusion, we should recognize it as such and not resolve the issue on the merits, since 2 to do so distorts the lesson of Brady. I acknowledge the majority has quoted language from Brady which would lead to the conclusion the trial court must state with specificity, in writing, that the appeal was frivolous in order to impose the Brady rule. However, this narrow interpretation, when viewed against the overall intent of Brady, almost effects a return to Commonwealth v. Bolden, 472 Pa. 602, 373 A.2d 90 (1977), which Brady sought to correct.

[ 383 Pa. Super. Page 223]

I agree with the Commonwealth that although this case came before the Court en banc because of an apparent conflict between Learn, supra, and Commonwealth v. Keenan, 365 Pa. Super. 437, 530 A.2d 90 (1987), there is in fact no conflict, as in Keenan, the trial court indicated the issue of double jeopardy had some merit and an appeal would be proper, whereas in Learn, the motions judge left no room to assume that an appeal would be anything but frivolous.

For the sake of judicial economy, I would find the trial court's determination was sufficient for this Court to conclude the appeal is frivolous and remand 3 for a new trial.

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