Commonwealth v. Diehl , 532 Pa. 214 ( 1992 )

OPINION

ZAPPALA, Justice.

The basic question we are asked to decide is whether the Superior Court erred in affirming the trial court’s denial of Appellant’s Motion to Dismiss the charges of involuntary deviate sexual intercourse, statutory rape, incest and two counts of indecent assault on the basis of double jeopardy. Because a manifest necessity did exist for the sua sponte declaration of a mistrial and prosecutorial misconduct was absent, we now affirm.

In January of 1989, Amy Diehl, Appellant’s sixteen-year-old daughter, filed a complaint against Appellant. It was alleged that during a visit with her father in October, 1985, Appellant forced Amy to engage in sexual relations with him. As a result of the complaint, the formal charges, cited above, were filed against Appellant.

On September 11,1989, a jury trial commenced in the Court of Common Pleas of Bedford County. The Commonwealth rested its case following testimony by its sole witness, Amy Diehl. The defense then opened with Appellant testifying on his own behalf. During cross-examination of Appellant, the trial court sua sponte declared a mistrial following Appellant’s response to a question posed by the district attorney.

The case was again placed on the trial calendar for October 23, 1989. In the interim, the district attorney sought and obtained through the Attorney General’s Office appointment of Darlee Sill, assistant district attorney of Blair County, to represent the Commonwealth for the new trial. On October 17, 1989, following a hearing on Appellant’s Motion to Dismiss on double jeopardy grounds, the trial court denied the motion. Appellant’s double jeopardy claim was based on both Article 1 Section 10 of the Pennsylvania Constitution and the Fifth Amendment of the United States Constitution. On appeal, the Superior Court affirmed the trial court’s order. 405 Pa.Super. 625, 581 A.2d 971. We then granted Appellant’s Petition for. Allowance of Appeal.

Appellant’s first contention is that a manifest necessity did not exist so as to justify the trial court’s sua sponte declaration of a mistrial when the basis for the declaration is a conflict of interest on the part of the prosecuting attorney.

Since Justice Story’s 1824 opinion in United States v. Perez, 22 U.S. (9 Wheat.) 579, 580, 6 L.Ed. 165, it has been well settled that the question whether under the Double Jeopardy Clause there can be a new trial after a mistrial has been declared without the defendant’s request or consent depends on where there is a manifest necessity for the mistrial, or the ends of public justice would otherwise be defeated. Commonwealth v. Bartolomucci, 468 Pa. 338, 362 A.2d 234 (1976), citing United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976). It is important to note that in determining whether the circumstances surrounding the declaration of a mistrial constitute manifest necessity, we apply the standards established by both Pennsylvania and federal decisions. Commonwealth v. Mitchell, 488 Pa. 75, 410 A.2d 1232 (1980).

Pennsylvania Rule of Criminal Procedure 1118(b) provides that:

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.

In accordance with the scope of our review, we must take into consideration all the circumstances when passing upon the propriety of a declaration of mistrial by the trial court. The determination by a trial court to declare a mistrial after jeopardy has attached is not one to be lightly undertaken, since the defendant has a substantial interest in having his fate determined by the jury first impaneled. Commonwealth v. Stewart, 456 Pa. 447, 452, 317 A.2d 616, 619 (1974), citing United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971). Additionally, failure to consider if there are less drastic alternatives to a mistrial creates doubt about the propriety of the exercise of the trial judge’s discretion and is grounds for barring retrial because it indicates that the court failed to properly consider the defendant’s significant interest in whether or not to take the case from the jury. Commonwealth, ex rel. Walton v. Aytch, 466 Pa. 172, 352 A.2d 4 (1976). Finally, it is well established that any doubt relative to the existence of manifest necessity should be resolved in favor of the defendant. Bartolomucci, 468 Pa. at 347, 362 A.2d 234.

In the case sub judice, Appellant had testified that visitation with his daughter ceased after the time of the alleged rape in October of 1985 because his job, as a garage mechanic, precluded him from giving forty-eight hour notice as required by the custody order. It was the Commonwealth’s position, however, that Appellant had discontinued visitation because of the incident with his daughter. When the district attorney on cross-examination sought to impeach Appellant’s testimony by confronting him with the fact that he was aware of his job schedule dilemma at the time he signed the custody order, the following exchange occurred which became the focus of the grounds for mistrial:

Q. I mean, you agreed to this Court Order? Is that correct?

A. Yes. You was my attorney.

Q. I was?

A. That’s correct.

By the District Attorney: May I see that exhibit, please, Your Honor.

(The exhibit was handed to the District Attorney by the Court.)

By the District Attorney: Take a look at Commonwealth’s Exhibit No. 1, Mr. Diehl. Look at the second page down at the bottom. I want you to look where it says appearances, colon.

A. Yeah, that was—

Q. “For the PlaintiffTMother, Thomas S. Ling”.

A. I came in by myself.

Q. For—

A. I came in by myself. Because I came to your office and talked to you about this whole complete situation, and you told me, and you told my wife which was in your office at the time—

By the District Attorney: May we approach the Bench— may we approach the Bench, Your Honor?

By the Court: Mr. Diehl, just wait.

(Side-Bar Conference.)

By the District Attorney: I don’t recall any of this. It may create a problem. I will continue on with the Cross Examination, but it didn’t happen this way.

N.T. pp. 90-91.

At this juncture, the trial court recessed the proceedings and reconvened in chambers for approximately two hours to discuss the situation. The discussion focused on the district attorney’s prior representation of Appellant and consideration of less drastic alternatives to declaration of a mistrial. When the trial was reconvened, the parties’ positions were placed on the record, out of the presence of the jury. The trial court then sua sponte declared a mistrial.

The central issue for the jury to determine was the credibility of the Appellant’s testimony versus that of his daughter’s testimony. As a result of the exchange set forth above, the jury learned that the person who was seeking Appellant’s conviction was the same person who, at least according to Appellant, had advised him with regard to the visitation order in question. This information prejudiced Appellant by implying to the jury that he was guilty of the crimes for why else would the person who had previously represented Appellant now be willing to prosecute him. The record clearly indicates the presence of manifest necessity so as to necessitate the declaration of a mistrial.

Furthermore, the ends of public justice would have otherwise been defeated without the trial court’s sua sponte declaration of 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 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. Stewart, 456 Pa. at 453, 317 A.2d at 619.

The trial court properly exercised its discretion in sua sponte declaring a mistrial because less drastic alternatives were considered during the two-hour recess. Specifically, the trial court considered and rejected as unsatisfactory the options of continuing the case with the district attorney as prosecutor; continuing the case with the assistant district attorney as prosecutor; and continuing the case and obtaining an outside prosecutor. The first alternative was unsatisfactory for the reasons cited above. The last two alternatives were rejected because the assistant district attorney was in private practice with the district attorney and the scheduled two-day trial was substantially completed. It is also important to note that Appellant argued not to have another attorney appointed to prosecute him.

Appellant’s final contention is that even if manifest necessity provided a basis for the declaration of mistrial, double jeopardy precludes retrial due to intentional misconduct by the district attorney. Appellant claims the intentional act the prosecuting attorney committed was the continued representation of the Commonwealth when an apparent conflict of interest existed.

At the hearing on Appellant’s Motion to Dismiss, the district attorney testified that Appellant indicated at the preliminary hearing that he had been represented by the district attorney at the time of the August 15, 1985 custody order. Following the preliminary hearing, the district attorney examined the docket at the Prothonotary’s Office, obtained a copy of the order, which listed Appellant as appearing pro se, and checked his files. The district attorney did not find any indication in his files that he had represented Appellant in the custody proceedings. Although he stated that he could have discussed this matter with Appellant, the district attorney testified that he did not have any recollection of meeting with Appellant at his office. Furthermore, Appellant did not file a Motion to disqualify the district attorney prior to trial and in fact Appellant argued against recusal when this matter arose again at trial.

In this Commonwealth, double jeopardy, as it relates to prosecutorial misconduct, will attach where the prosecutorial misconduct is calculated to trigger a mistrial. Commonwealth v. Bryant, 524 Pa. 564, 574 A.2d 590 (1990) citing Commonwealth v. Simons, 514 Pa. 10, 522 A.2d 537 (1987).

This evidence clearly indicates that the mistrial was not intentionally induced by prosecutorial misconduct. Because the district attorney did not intentionally induce the remark concerning his prior representation of Appellant or otherwise overreach, the motion to dismiss on double jeopardy grounds was properly denied.

Accordingly, we affirm the order of the Superior Court which in turn affirmed the order of the Court of Common Pleas of Bedford County that denied Appellant’s Motion to Dismiss on double jeopardy grounds.

McDERMOTT, j., did not participate in the decision of this case. CAPPY, J., joins in this opinion and files a concurring opinion in which NIX, C.J., joins. LARSEN, J., files a dissenting opinion.