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submitted: August 14, 1989.


Appeal from the Order entered, Docketed August 17, 1988 in the Court of Common Pleas of Philadelphia County, Criminal Division, at No. 87-917502 M.C. 8702-2135.


John W. Packel, Asst. Public Defender, Philadelphia, for appellant.

Donna G. Zucker, Asst. Dist. Atty., Philadelphia, for Com., appellee.

Olszewski, Montemuro and Hoffman, JJ.

Author: Hoffman

[ 389 Pa. Super. Page 382]

This is an appeal from the order of the Common Pleas Court that overturned a Municipal Court ruling that appellant's retrial was barred by principles of double jeopardy. Appellant contends that retrial would violate his right against double jeopardy because, at his first trial, the municipal court sua sponte declared a mistrial in the absence of manifest necessity. For the reasons that follow, we agree and, accordingly, we reverse the order below and order appellant discharged.

[ 389 Pa. Super. Page 383]

Appellant was charged with driving under the influence, in violation of 75 Pa.C.S.A. ยง 3731. On June 19, 1987, appellant appeared before Philadelphia Municipal Court Judge William Brady, and pled not guilty. Appellant then proceeded to a bench trial, where at the close of evidence, Judge Brady announced a verdict of guilty. Defense counsel informed the judge that he had not had an opportunity to argue. During counsel's summation, a dispute arose concerning the legal effect of a breathalyzer reading over 0.10. Judge Brady believed he had misunderstood the appropriate standard of law and then declared a mistrial sua sponte. The Commonwealth objected to the declaring of the mistrial but the court overruled the objection and proceeded to set a date for a new trial. Prior to the second municipal court trial, appellant's counsel filed a motion asking that the second trial be barred on double jeopardy grounds. On June 30, 1987, Philadelphia Municipal Court Judge Barbara Gilbert granted appellant's motion. The Commonwealth appealed to the Common Pleas Court which reversed, and ordered the case be sent for trial. This appeal followed.

Appellant contends that he cannot be tried again consistent with the federal and state constitutional guarantees against double jeopardy.*fn1 We agree.

The Fifth Amendment's prohibition against placing a defendant 'twice in jeopardy' represents a constitutional policy of finality for the defendant's benefit in . . . criminal proceedings. A power in government to subject the individual to repeated prosecutions for the same offense would cut deeply into the framework of procedural protection which the Constitution establishes for the conduct of a criminal trial.

United States v. Jorn, 400 U.S. 470, 479, 91 S.Ct. 547, 554, 27 L.Ed.2d 543 (1971) (plurality opinion); Commonwealth v. Shaffer, 447 Pa. 91, 288 A.2d 727, cert. denied Shaffer v. Pennsylvania, 409 U.S. 867, 93 S.Ct. 164, 34 L.Ed.2d 116 (1972). In United States v. Perez, 9 Wheat. 579, 6 L.Ed.

[ 389 Pa. Super. Page 384165]

(1824), JUSTICE STORY first articulated the standard for determining whether a retrial, following a declaration of a mistrial, without the defendant's request or consent, constitutes double jeopardy:

We think, that in all cases of this nature, the law has invested Courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances, which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes; and in capital cases especially, Courts should be extremely careful how they interfere with any of the chances of life, in favour of the prisoner. But, after all, they have the right to order the discharge; and the security which the public have for the faithful, sound and conscientious exercise of this discretion, rests, in this, as in other cases, upon the responsibility of the Judges under their oaths of office.

Id. at 580, 6 L.Ed. at 165. The United States and Pennsylvania Supreme Courts consistently have adhered to this formulation and have refused to apply a mechanical formula in determining whether a retrial would violate the Double Jeopardy Clause. See United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976); Illinois v. Somerville, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973); Commonwealth v. Bartolomucci, 468 Pa. 338, 362 A.2d 234 (1976); Commonwealth ex rel. Walton v. Aytch, 466 Pa. 172, 352 A.2d 4 (1976). As our Supreme Court has noted, "[n]o rigid rule for determining what constitutes 'manifest necessity' for a mistrial has been established." Commonwealth v. Robson, 461 Pa. 615, 622, 337 A.2d 573, 576 (1975). Rather, "[e]ach case must turn on its facts." Downum v. United States, 372 U.S. 734, 737, 83 S.Ct. 1033, 1035, 10 L.Ed.2d 100 (1963). Nonetheless, courts have

[ 389 Pa. Super. Page 385]

    stressed the critical nature of the trial court's decision whether or not to declare a mistrial sua sponte, and have insisted that the decision not be made lightly. Thus, in United States v. Jorn, supra, JUSTICE HARLAN wrote that:

[T]he Perez doctrine of manifest necessity stands as a command to trial judges not to foreclose the defendant's option [to have his trial completed by a particular tribunal] until a scrupulous exercise of judicial discretion leads to the conclusion that the ends of ...

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