Commonwealth v. Bartolomucci , 468 Pa. 338 ( 1976 )

OPINION OF THE COURT

EAGEN, Justice.

Frank Bartolomucci was brought to trial on November 15, 1973 for the unlawful delivery of methaqualone tablets in violation of the Controlled Substance, Drug, Devise and Cosmetic Act, Act of April 14, 1972, P.L. 233, No. 64, § 13(a) (30), 35 P.S. § 780-113(a) (30) (Supp. 1975-76), as amended, October 26, 1972, P.L. 1048, No. 263, § l.¹ The trial was completed about 11:30 a. m. on November 16 and jury deliberations began immediately. From 12:00 noon until 1:00 p. m., the jury recessed for lunch. At 1:00 p. m., deliberations resumed and continued until 5:15 p. m. when the jury recessed for dinner. Deliberations resumed at 6:45 p. m.

At 10:10 p. m., the trial judge, the district attorney, defense counsel and the tipstaff for the court attended a conference in chambers during which the following occurrences were noted of record: At 8:45 p. m., the foreman had informed the tipstaff that the jury was “bogged down” and was unable to reach a verdict. The tipstaff then told the foreman the trial judge had left instructions that the jury be kept in session until a verdict was reached and that, unless the jury insisted, the tipstaff would not call the trial judge. The jury did not specifically ask to see the trial judge. Moreover, during this conference defense counsel indicated he had no objection to the colloquy between the tipstaff and the jury foreman earlier in the evening.

During the same conference, the trial judge sought both the district attorney’s and defense counsel’s position with regard to discharging the jury. Defense counsel stated he and Bartolomucci had anticipated the question and would not agree to the discharge. The trial judge then offered to repeat his instructions to the jury but defense counsel indicated he was not yet concerned with doing so.

At 10:46 p. m., another conference was held in chambers during which the tipstaff informed the trial judge, the district attorney, and defense counsel that the foreman had informed him the jury was hopelessly deadlocked and asked the tipstaff to so inform the court. The trial judge again sought the district attorney's and defense counsel’s position with regard to discharging the jury. The district attorney indicated he thought discharge was appropriate. Defense counsel requested additional instructions, specifically, instructions relating to the responsibilities of jurors to each other and to themselves. The trial judge stated that such instructions had already been given in accordance with the American Bar Association’s recommended Standards Relating to Trial by Jury, § 5.4 and that he had a serious question as to the effect of merely repeating such instructions. The trial judge thereupon recalled the jury to the courtroom at 10:55 p. m. and, without any further questions or inquiry, declared a mistrial and discharged the jury.

When the Commonwealth sought to bring Bartolomucci to trial again defense counsel objected on the grounds of double jeopardy but this objection was overruled. Bartolomucci was thereafter tried and convicted. Post trial motions were denied and judgment of sentence was imposed. Bartolomucci appealed to the Superior Court. That court, in a five-two decision, reversed the judgment of sentence stating, inter alia, that Bartolomucci’s second trial violated his right against being put twice in jeopardy because the jury was improperly discharged in the first trial. The Commonwealth petitioned for allowance to appeal from the order of the Superior Court and we granted the petition.²

The Superior Court ruled the discharge of the jury at the first trial was improper because the trial judge failed to communicate directly with the jury before declaring the mistrial. The Commonwealth urges this was error because Bartolomucci did not advance this particular issue in the Superior Court and that court raised it sua sponte. We find this position to have no basis in fact since Bartolomucci’s brief in the Superior Court^{3 4}and his post-trial brief in the Court of Common Pleas * specifically argued that the failure of the trial judge to communicate directly with the jury rendered the jury’s discharge constitutionally impermissible and hence resulted in a bar to any subsequent prosecution.

The Commonwealth also claims Bartolomucci has waived any claim of double jeopardy because under Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974), defense counsel was required not only to object to the discharge of the jury in the first trial, which he did, but to state the specific grounds of objection. The Commonwealth further argues, since defense counsel’s objection, although specific, related to additional instructions and deliberation and not to a need for the trial judge to communicate directly with the jury with regard to the deadlock, Bartolomucci waived any right to now complain of the trial judge’s failure to communicate directly with the jury before declaring the mistrial.

Commonwealth v. Clair, supra, requires specific objection to rulings and conduct of the trial judge, Commonwealth v. Carr, 459 Pa. 262, 328 A.2d 512 (1974), as well as to conduct of the prosecuting attorney, Commonwealth v. Davenport, 462 Pa. 555, 342 A.2d 67 (1975), in order to permit a challenge thereto on appeal. Furthermore, we recognize that the ruling in Clair was designed, inter alia, to give the trial court an opportunity to correct errors before the trial concludes. Commonwealth v. Clair, supra, 458 Pa. at 422, 326 A.2d at 274. We also recognize that, if defense counsel here had alerted the trial judge to the fact he was objecting to the discharge of the jury without some direct inquiry by the court as to the failure of the jury to agree, the trial judge would then have had the opportunity to correct this omission. Nevertheless, we are unwilling to rule that, where, as here, the trial court sua sponte and over the objection of the defendant declares a mistrial, the defendant is precluded from challenging the propriety of the mistrial unless he specifies precisely and correctly the reason why the mistrial is not proper. To apply the rule of Clair to this situation is to invite a serious conflict with the substantive law of double jeopardy.

As stated by the Supreme Court of the United States in United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 1079, 47 L.Ed.2d 267 (1976):

“Since Justice Story’s 1824 opinion ... in United States v. Perez, 9 Wheat. 579, 580, 6 L.Ed. 165, this Court has held 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 whether ‘there is a manifest necessity for the [mistrial], or the ends of public justice would otherwise be defeated.’ ” [Emphasis added.]

Thus the substantive law of double jeopardy requires either a request or consent by a defendant to the mistrial in order to avoid the requirement that the mistrial be manifestly necessary. A mere failure to state the reason for an objection or to make a correct specific objection cannot be viewed as a request for or consent to the mistrial. Commonwealth v. Baker, 413 Pa. 105, 196 A.2d 382 (1964). And while we recognize that the Commonwealth does not argue this failure is a request for or consent to the mistrial, but rather argues it constitutes a waiver whereby the question of whether manifest necessity is or is not applicable is not reached, the effect of ruling the failure constitutes a waiver is the same as ruling it constitutes a request or consent. Thus, while conceptually no conflict between our Clair rule and the substantive law of double jeopardy would result from adopting the Commonwealth’s position, functionally, that is, in effect, the conflict would exist. Therefore, we reject the Commonwealth’s position and hold that absent a request for or consent by a defendant to a mistrial, the sua sponte declaration of a mistrial must be manifestly necessary regardless of Commonwealth v. Clair, supra. In accord, Commonwealth v. Fredericks, 235 Pa.Super. 78, 340 A.2d 498 (1975).

Our determination is supported by other considerations. “[T]he Perez doctrine of manifest necessity stands as a command to trial judges not to” declare a mistrial absent manifest necessity. United States v. Jorn, 400 U.S. 470, 485, 91 S.Ct. 547, 557, 27 L.Ed.2d 543 (1971) (plurality opinion but quoted with approval numerous times by a majority of the Supreme Court of the United States; e. g., United States v. Dinitz, supra, 424 U.S. at 607, 96 S.Ct. at 1080). [Emphasis added.] Thus, unlike the vast majority of situations wherein Clair’s requirements are strictly enforced, in the instant circumstance, the Constitution of the United States prohibits a sua sponte declaration of a mistrial absent manifest necessity. Further, the Supreme Court of the United States, albeit in a more limited context, has stated that waiver concepts have little relevance in the context of double jeopardy. United States v. Dinitz, supra, 424 U.S. at 608, 96 S.Ct. at 1081. Moreover, in Commonwealth v. Robson, 461 Pa. 615, 337 A.2d 573 (1975), cert. denied 423 U.S. 934, 96 S.Ct. 290, 46 L.Ed.2d 265, although not confronting the present Clair argument, this Court ruled that informing the trial court of opposition to a mistrial was sufficient to put the trial judge on notice that no request for or consent by the defendant or his counsel was present. Finally, in Commonwealth v. Baker, supra at 115, 196 A.2d at 387, albeit prior to Clair, this Court stated:

“ . . . mere silence by [a] defendant or his counsel to the proposed discharge of the jury by the trial Judge will not amount to a waiver of this very important constitutional right of every person . . .

A fortiori, the lack of a correct specific objection should not be viewed as consent or a request, nor should it be considered as the functional equivalent of these, that is, a waiver. Cf. United States v. Dinitz, supra; Commonwealth v. Wideman, 453 Pa. 119, 306 A.2d 894 (1973); People v. Johnson, 396 Mich. 424, 240 N.W.2d 729, 19 Cr.L. 2152, 2153 (1976); 63 A.L.R.2d 782, § 5 (indicating a majority of jurisdictions do not view silence as consent).

Since we have concluded the lack of objection, or the lack of a correct specific objection instantly, does not constitute a waiver of a claim that the mistrial was not manifestly necessary, it is necessary to consider whether the sua sponte declaration of a mistrial was manifestly necessary. United States v. Perez, supra; Commonwealth ex rel. Walton v. Aytch, 466 Pa. 172, 352 A.2d 4 (1976); Commonwealth v. Robson, supra; Commonwealth v. Shaffer, 447 Pa. 91, 288 A.2d 727 (1972); Commonwealth v. Ferguson, 446 Pa. 24, 285 A.2d 189 (1971). In making this inquiry “ ‘ . . . the pivotal question . . . [is] whether the trial court properly exercised its discretion in finding . . . manifest necessity.’ ” Commonwealth ex rel. Walton v. Aytch, supra at 180, 352 A.2d at 8, quoting from Commonwealth v. Stewart, supra at 451-52, 317 A.2d at 618. But any doubt regarding the propriety of the exercise of discretion and thus about the necessity for the mistrial must be resolved in favor of the accused. Commonwealth ex rel. Walton v. Aytch, supra; Commonwealth v. Shaffer, supra.

In examining the circumstances to determine if doubt exists, the courts have focused on certain significant factors. United States v. See, 505 F.2d 845, 851 (9th Cir. 1974), cert. denied 420 U.S. 992, 95 S.Ct. 1428, 43 L.Ed.2d 673. And see, e. g., Commonwealth ex rel. Walton v. Aytch, supra, which focused on the failure of the trial court to attempt to contact counsel. A significant factor instantly is the failure of the trial court to inquire directly of the jury about the “hopeless deadlock.” Moreover, we believe this failure made the necessity of the mistrial not manifest and thus open to doubt.

The doubt stems from the trial court’s failure to inquire directly of the jury, either individually or through the foreman, about the possibility of the deadlock being overcome by further deliberations. Such an inquiry would have served to remove any doubt, and thus, would have provided greater certainty as to the existence of a deadlock and the hopelessness of breaking it. If an individual inquiry were made, the trial court would have then had the opinion of each juror as to the existence and hopelessness of the deadlock. United States ex rel. Webb v. Court of Common Pleas, 516 F.2d 1034, 1043-44 (3d Cir. 1975); United States v. See, supra. If the inquiry were made of the foreman in the presence of the remainder of the jury, the trial court would have then had the benefit of the reactions and possible unsolicited remarks of the other jurors when the foreman informed the court of the deadlock and its hopelessness.⁵ United States ex rel. Webb v. Court of Common Pleas, supra; United States v. See, supra; United States v. Lansdown, 460 F.2d 164 (4th Cir. 1972); State v. Nelson, Iowa, 234 N.W.2d 368 (1975); Paulson v. Superior Court of El Dorado County, 58 Cal.2d 1, 22 Cal.Rptr. 649, 372 P.2d 641 (1962). Thus, since doubt exists and since all doubt must be resolved in favor of an accused, we rule the mistrial was not manifestly necessary and will therefore affirm the order of the Superior Court reversing the judgment of sentence.

It is so ordered.

MANDERINO, J., joined in this opinion and filed a concurring opinion. POMEROY, J., filed a dissenting opinion. NIX, J., filed a dissenting opinion.

1 . The charge resulted from a single sale of fifteen methaqualone pills for the sum of $15.00.

2 . Bartolomucci asserts that this Court is without jurisdiction because it entered an order denying the petition of the Commonwealth on June 19, 1975 and then, without the Commonwealth petitioning for a reconsideration of that denial order, entered an order on July 23, 1975 vacating the denial order of June 19, 1975 and granting the Commonwealth’s petition. The order of June 19, 1975 was mistakenly entered by this Court due to a breakdown in communications. Under such circumstances, Bartolomucci’s position is without merit. It is fundamental that a court has the inherent power to correct such mistakes. Commonwealth v. Cole, 437 Pa. 288, 263 A.2d 339 (1970); Commonwealth v. Rusic, 229 Pa. 587, 591, 79 A. 140 (1911). Moreover, this power includes the power to correct mistakes affecting jurisdiction where the mistake is a result of a breakdown in the court’s operations. Commonwealth v. Horner, 449 Pa. 322, 296 A.2d 760 (1972); Luckenbach v. Luckenbach, 443 Pa. 417, 281 A.2d 169 (1971); Commonwealth v. Bey, 437 Pa. 134, 262 A.2d 144 (1970). And see Purdy Estate, 447 Pa. 439, 291 A.2d 93 (1972); Smith v. Hood & Co., 25 Pa. 218 (1855).

3 . Bartolomucci’s brief in the Superior Court states:

“There was certainly no manifest necessity and the realistic justification can certainly not be found in a simple declaration of the Foreman to the tipstaff that they were ‘hopelessly deadlocked’ without the court making a determination of this statement.” [Emphasis added.]

4 . Bartolomucci’s brief in the Court of Common Pleas makes precisely the same statement quoted in n. 3, supra, and additionally it states:

“Here we think the court discharged the jury without making any inquiry concerning their position . . .” [Emphasis added.]

5 . We note that preferable practice demands that the trial court first caution the jury that only a yes or no response is desired and then ask each juror if he or she agrees that a hopeless deadlock which could not be resolved by further deliberations exists. In accord, State v. Nelson, supra; Paulson v. Superior Court of El Dorado County, supra. And see, United States ex rel. Webb v. Court of Common Pleas, supra; United States v. See, supra. But in doing so, we express no view on whether a direct inquiry solely of the foreman in the presence of the rest of the jurors would result in a bar to further prosecution. But see United States v. See, supra, and State v. Nelson, supra, suggesting such a situation would not result in a bar. And see, United States ex rel. Webb v. Court of Common Pleas, supra, at 1044, n. 56, where the Court of Appeals for the Third Circuit indicated that a poll of the jury is less necessary where the jury informs the court of the existence of a deadlock rather than where the court assumes one exists because of the length of time the jury has deliberated.