Appeal, allowed by grant of this court's extraordinary jurisdiction entered on July 31, 1997, and transferred sua sponte by order of the Superior Court at Nos. 1060 and 1170 PGH 1997 on August 8, 1997, from the order of the Court of Common Pleas of Allegheny County, Criminal Division, entered on April 22, 1997, at No. CC-9600418. JUDGE(S) BELOW: CCP - Honorable David R. Cashman.
Composition OF The Court: Mr. Chief Justice John P. Flaherty, Zappala, Cappy, Castille, Nigro, Newman, JJ. Mr. Justice Castille files a Concurring and Dissenting opinion.
The opinion of the court was delivered by: Flaherty
MR. CHIEF JUSTICE FLAHERTY
DECIDED: OCTOBER 10, 1997
We allowed this appeal under our extraordinary jurisdiction within our king's bench powers following a mistrial in a criminal case. The issues are whether the defendants may be prosecuted again, and, if reprosecution is allowed, whether venue or venire may be changed and whether the trial court erred in removing the local district attorney in favor of prosecution by the state attorney general.
The following background underlies the issues raised in the appeal. Shortly after midnight, in the early hours of October 12, 1995, Jon E. Gammage was driving his cousin's Jaguar northbound on Route 51 in the South Hills section of Allegheny County. Lieutenant Milton Mulholland, a twenty-four year veteran of the Brentwood Police Department, was on patrol when, as he states, erratic driving drew his attention to the Gammage vehicle. He radioed first that he was following the car, then that he was stopping the car to check the condition of the driver and requesting backup. After the stop, four more officers arrived in response to the radio calls: first, Sergeant Keith Henderson of the Whitehall Police, then John Vojtas, another Brentwood policeman, Michael Albert, of Baldwin Township, and Shawn Patterson, another Whitehall officer.
From the record it appears that before Albert and Patterson arrived, Mulholland was checking Gammage's license and registration, and, when he learned that the car was registered to someone else and the registration was expired, *fn1 Vojtas, positioned at the driver's door, ordered Gammage out of the car. Gammage exited the car with a cellular phone. Vojtas, who later explained that he thought the phone was a weapon, knocked it out of Gammage's hand with a flashlight. Gammage lunged at Vojtas, who was assisted by Mulholland and Henderson, whereupon the four struggling men slid down the driver's side of Gammage's vehicle to the ground. During the initial scuffle, Henderson retrieved Vojtas's flashlight and struck Gammage in the legs. While they were all struggling on the ground, Vojtas attempted to handcuff Gammage. Gammage bit down on Vojtas's thumb, and Vojtas punched Gammage in the face several times in an effort to free his thumb. Vojtas then left the fray to await the paramedics who were summoned to treat him.
The struggle continued as Mulholland and Henderson attempted to handcuff Gammage. Albert, then Patterson, arrived. Albert used a collapsible baton on Gammage's chest in an effort to lift him in order to enable the officers to cuff Gammage's hands behind his back. Finally, the officers decided to cuff Gammage's hands in front, but Gammage continued to struggle to such an extent that the officers requested the paramedics to restrain his legs with stretcher restraints. Suddenly, Mulholland noticed that Gammage was no longer breathing and notified a paramedic; the restraints were removed and the paramedics initiated CPR. CPR was performed continuously for forty-eight minutes until Gammage was pronounced dead at a hospital emergency room.
A pathologist in the coroner's office of Allegheny County performed an autopsy. He concluded that Gammage's death was caused by compression asphyxia and was a homicide. The internal examination revealed evidence of trauma about the upper chest, upper back, and neck, as well as petechial hemorrhaging of the eyes. These pinpoint hemorrhages of the eyes indicated an obstruction of Gammage's blood and oxygen supplies. All of these findings supported the Conclusion that the cause of death was compression asphyxia. The district attorney's office filed no criminal charges based on the autopsy.
An open inquest was held and a coroner's jury was empaneled to hear testimony into Gammage's death. Christopher Conrad, Esq., head of the homicide division of the Allegheny County district attorney's office, conducted the inquest. Following three days of testimony, the jury recommended that all five police officers involved in Gammage's death be charged with criminal homicide. That recommendation was advisory in nature. Robert E. Colville, Esq., the District Attorney of Allegheny County, together with a team of assistant district attorneys, decided to charge Mulholland and Vojtas with third degree murder and official oppression, and to charge Albert with involuntary manslaughter. No charges were filed against Henderson, Patterson, or any of the paramedics on the scene when Gammage died.
At the officers' preliminary hearing, the court dismissed the charges of official oppression and third degree murder against Mulholland and Vojtas, but held all three officers on the charge of involuntary manslaughter. Pretrial motions were filed and argued, resulting in a "gag order" prohibiting the parties, their witnesses, and their counsel from making extrajudicial statements about the cases; severance of Vojtas's trial from that of Mulholland and Albert due to antagonistic defenses; and an order granting a change of venire due to an overwhelming amount of inflammatory pretrial publicity. Pursuant to 42 Pa.C.S. § 8702 and Pa.R.Crim.P. 312(b), this court designated Chester County for summoning, selecting, and impanelling a jury to try Mulholland and Albert.
A jury was selected in Chester County and transported to Allegheny County, where trial began promptly in October 1996. Officer Henderson and all the paramedics at the scene of death were called as Commonwealth witnesses. In addition, the Commonwealth called a tow truck driver who came forward after the inquest and made a series of inconsistent statements to the Commonwealth, one of which was not disclosed to the defense prior to trial. The Commonwealth also called Cyril H. Wecht, M.D., J.D. Prior to being designated as a Commonwealth witness, Dr. Wecht had been retained privately by the Gammage family as an expert witness in a civil lawsuit seeking damages for Gammage's untimely death. Dr. Wecht had formerly been county coroner for more than a decade and was coroner at the time of trial though he had not been coroner at the time Gammage died. Dr. Wecht conducted a second autopsy on Gammage's body on behalf of Gammage's survivors. In addition, Dr. Wecht is also a lawyer and maintains a private law practice.
During the trial, Dr. Wecht testified that he agreed with the coroner's opinion that Gammage died of compression asphyxia, and stated that death resulted from the combined force exerted by all five of the officers during the struggle with Gammage. On recross-examination, defense counsel asked: "You tell me what my client did. Tell me what my client did from A to Z." Wecht answered, "No. It's not for me to tell you what your client did. It's for the client to tell me, the ladies and gentlemen of the jury, what he did, what he was doing there and why he was participating in this. It's not for me to cleave out." This response, which was construed as a comment on Mulholland's fifth amendment privilege, resulted in declaration of a mistrial.
In contemplation of the retrial of Mulholland and Albert, pretrial motions were filed on their behalf and heard by the trial court. The trial Judge's order disposing of these post-mistrial, pretrial motions is the subject matter of this appeal. The court ordered, inter alia, that alleged prosecutorial misconduct was not so egregious as to prohibit retrial on grounds of double jeopardy, but the prosecutor engaged in selective prosecution which had the effect of barring reprosecution of Mulholland and Albert; if the officers were retried, however, the Supreme Court's designation of Chester County as the county of venire was still in effect and could not be relitigated, and the District Attorney of Allegheny County was removed from the prosecution and the Attorney General of Pennsylvania was substituted as the prosecutor.
The Commonwealth appealed this order to the Superior Court of Pennsylvania; it also petitioned this court to exercise plenary jurisdiction over the cases under our extraordinary jurisdiction within the king's bench powers of this court. We granted the petition to review the common pleas order in our extraordinary jurisdiction, and the appeals pending in the Superior Court, involving identical issues, were transferred to this court.
Of the four issues, only the first has been raised by Mulholland and Albert, who seek reversal of the determination that double jeopardy does not prohibit their retrial. The trial court granted a mistrial due to the statement of a Commonwealth witness, Dr. Wecht, that Mulholland had an obligation to explain his actions to the jury, which was a clear violation of Mulholland's fifth amendment rights. Griffin v. California, 380 U.S. 609, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965). The argument of Mulholland and Albert that prosecutorial misconduct bars retrial, however, is not based on that episode alone. They argue that a pattern of misconduct pervaded the trial, and that numerous examples of misconduct imply intentional behavior by the prosecutor which warrants the sanction of a double jeopardy bar to reprosecution. They allege that misrepresentations were made to a potential expert witness for the Commonwealth, Kevin Dworek; that the Commonwealth violated the "gag order" prohibiting extrajudicial statements about the trial; that the prosecution violated Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), by withholding exculpatory evidence from the defense; that their due process rights were violated when a private attorney, who was conducting related civil litigation on behalf of Gammage's survivors, was permitted to control or strongly influence the course of the criminal prosecution, which amounted to an abdication of the prosecutorial function of the assistant district attorney; and that their due process rights were violated when Mr. Conrad, a deputy district attorney, misled them into waiving their fifth amendment right not to testify at the coroner's inquest by virtually assuring them that no criminal proceedings would be brought against them. They argue that this misconduct constitutes a pattern so pervasive and improper that it demonstrates a Commonwealth intent to prejudice them to the point of denying them a fair trial. If that is so, the prosecutorial misconduct violates Commonwealth v. Smith, 532 Pa. 177, 615 A.2d 321 (Pa. 1992), and Mulholland and Albert cannot be retried on grounds of double jeopardy. Smith held that retrial is barred by double jeopardy "not only when prosecutorial misconduct is intended to provoke the defendant into moving for a mistrial, but also when the conduct of the prosecutor is intentionally undertaken to prejudice the defendant to the point of the denial of a fair trial." 615 A.2d at 325.
The first specification of misconduct is the claim that the Commonwealth, believing it could not prove the elements of malice against the officers, deliberately misled Dworek as to the facts it would be required to prove, thereby allowing him to answer a hypothetical question based upon assumed but erroneous facts. The record does not support this contention. Dworek attended the preliminary hearing, and when he heard the testimony of other witnesses, concluded that he had not been given all the facts. He then testified for the defense rather than for the Commonwealth and was instrumental in having the charges of third degree murder dismissed. His subsequent pretrial testimony on the claim of prosecutorial misconduct was ambiguous: he was unclear whether facts were withheld or what prosecutorial statements were misleading. This claim, then, does not warrant relief.
Next, Mulholland and Albert give specific examples of statements to the media which they say violated the court's prohibition against such communications. These included statements by David B. White, Esq., counsel for the Gammage family, regarding the composition of the jury, and statements by Dr. Wecht, the medical expert hired by the Gammage family, that the absence of black jurors "was not right." These statements occurred during jury selection, prior to the beginning of the trial. Both Dr. Wecht and Attorney White made additional statements, along similar lines, to the media during the trial. Two other witnesses, listed by both the Commonwealth and the police officers as witnesses, also appeared on television and made public statements about the trial. At the time of the television appearances, they had already appeared as Commonwealth witnesses and been released by the Commonwealth, yet they remained as defense witnesses. Neither the defense nor the prosecution informed them of the "gag order." The statements of Mr. White, Dr. Wecht, and the other two witnesses Mulholland and Albert ascribe to the prosecutor, as he had never informed them of the "gag order."
This argument fails for two reasons. First, in order for the extrajudicial statements to constitute prosecutorial misconduct, the prosecutor must be clearly responsible for the misconduct. *fn2 Here, the objectionable statements were not made by the prosecutor's office, but by others. The statements of White, a private attorney, are attributed to the prosecutor because he allegedly "coordinated" Commonwealth witnesses. The other three witnesses who made extrajudicial statements were listed as witnesses by both the prosecution and the defense, and, accordingly, any error must be shared by both sides. Second, if such misconduct occurred, a mistrial was not required; the court could impose contempt sanctions or bar the testimony of any witness who violated the "gag order."
The alleged Brady violation was the prosecutor's failure to disclose information with respect to Commonwealth witness Frank Belajac, a tow truck driver who witnessed part of Gammage's struggle with the police officers. Belajac had not come forward immediately as an eyewitness and had not testified at the preliminary hearing. He testified before the grand jury, but changed his testimony at trial, implicating the police officers more seriously than he had done in his grand jury testimony. The officers allege that the Commonwealth not only withheld knowledge of the changed testimony, but withheld a report generated prior to trial which was a document critical to the defense for impeachment purposes. This omission allegedly violated Giglio v. United States, 405 U.S. 150, 154, 92 S. Ct. 763, 766, 31 L. Ed. 2d 104, 108 (1972), where the Court extended its Brady holding, stating: "When the 'reliability of a given witness may well be determinative of ...