Commonwealth v. Gravely

OPINION

EAGEN, Chief Justice.

Appellant, William Gravely, was convicted by a jury of murder of the second degree in connection with the death of Denise Bennett. Following a denial of post-verdict motions, judgment of sentence of life imprisonment was imposed. This direct appeal followed.

The Commonwealth argues the issues now advanced by Gravely are not properly preserved for appellate review since they were not included in written post-verdict motions. Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975). A brief raising the issues was presented to the post-verdict motion court, and the court considered the issues. Since a majority of this Court has heretofore considered such a brief, along with consideration of the issues raised therein by the trial court, sufficient to preserve issues for review under Commonwealth v. Blair, supra, on the basis of substantial compliance with Pa.R.Crim.P. 1123(a), we must reject the Commonwealth’s argument.¹ Commonwealth v. Slaughter, 482 Pa. 538, 394 A.2d 453 (1978); Commonwealth v. Hitson, 482 Pa. 404, 393 A.2d 1169 (1978); Commonwealth v. Jones, 478 Pa. 172, 386 A.2d 495 (1978); Commonwealth v. Pugh, 476 Pa. 445, 383 A.2d 183 (1978); Commonwealth v. Perillo, 474 Pa. 63, 376 A.2d 635 (1977); Commonwealth v. Grace, 473 Pa. 542, 375 A.2d 721 (1977).

But, this Court’s experience with Commonwealth v. Grace, supra, and its progeny has not been very satisfying. Counsel have more often than not failed to include the briefs in the record and, indeed, have often failed to even mention a brief was presented or filed in the trial court in the oral arguments and briefs before this Court. This unsatisfactory situation is perhaps best typified by Commonwealth v. Slaughter, supra, wherein we had to grant reargument because counsel had failed to adequately advise us of the existence of a brief. Accordingly, in order to conclude this unsatisfactory situation, we now rule that sixty days after the filing of this opinion, only those issues included in post-verdict motions will be considered preserved for appellate review. We caution that this ruling applies to every post-verdict motion which is filed sixty days hence and to any motion which is already filed, but which may still be supplemented after sixty days from this date. Our ruling is prospective only because of the possibility of reliance by counsel on prior decisions of this Court. Cf. Commonwealth v. Bailey, 463 Pa. 354, 344 A.2d 869 (1975).

With that unsatisfactory situation laid to rest, we shall now consider the merits of Gravely’s complaints.

Gravely first complains that his trial, which followed an earlier mistrial, caused him to be placed twice in jeopardy for the same offense in violation of the United States and Pennsylvania Constitutions.²

Gravely was originally brought to trial on January 26, 1976, on the murder indictment. During the course of that trial, the Commonwealth called as a witness a veteran police officer, Detective McMillan, to relate the circumstances under which Gravely had provided police with an incriminatory statement. During cross-examination, McMillan responded to a question put forth by defense counsel in an attempt to pinpoint the exact moment during Gravely’s police interview when he requested the assistance of counsel. His response indicated Gravely sought the assistance of counsel after “[h]e told me he killed Denise and . . . after I told him he had flunked the polygraph exam.” Defense counsel immediately moved for a mistrial, which, after an in-camera conference, was granted.

Although conceding the testimony which caused the mistrial was “not . . . caused by the [prosecutor],” Gravely argues that “the Commonwealth, through its witness, blatantly disregarded the Defendant’s rights.” Therefore, he continues, the “mistrial was attributable to the Commonwealth” and Gravely is entitled to be discharged.

“ ‘From our decisions in Commonwealth v. Metz, 425 Pa. 188, 228 A.2d 729 (1967); Commonwealth v. Warfield, 424 Pa. 555, 227 A.2d 177 (1967), and Commonwealth ex rel. Montgomery v. Myers, 422 Pa. 180, 220 A.2d 859 (1966) has developed the rule that a defendant who has moved for a mistrial in response to prosecutorial misconduct may be retried if the prosecution has not invited the mistrial in order to secure another, possibly more favorable opportunity to convict the accused. [Footnote omitted.] This is because society’s interest in preventing the guilty from going unpunished outweighs the risk of harassment and the burdens the defendant will incur in going through a second trial.’

Subsequent decisions in the United States Supreme Court, which are binding on the states, express a similar view:

‘The Double Jeopardy Clause does protect a defendant against governmental actions intended to provoke mistrial requests and thereby to subject defendants to the substantial burdens imposed by multiple prosecutions. It bars retrials where “bad-faith conduct by judge or prosecutor,” United States v. Jorn, 400 U.S. 470 at 485, 91 S.Ct. 547, 27 L.Ed.2d 543 [(1971) plurality opinion], threatens the “[h]arassment of an accused by successive prosecutions or declaration of a mistrial so as to afford the prosecution a more favorable opportunity to convict” the defendant. Downum v. United States, 372 U.S. 734, 736, [83 S.Ct. 1033] 10 L.Ed.2d 100, 102-03 (1963).’

United States v. Dinitz, . . . 424 U.S. 600 at 611, 96 S.Ct. 1075 at 1081, 47 L.Ed.2d 267 at 276 [(1976)] (additional citations omitted). Similarly, in Lee v. United States, 432 U.S. 23, 97 S.Ct. 2141, 53 L.Ed.2d 80 (1977), the Supreme Court stated:

‘It follows under Dinitz that there [is] no double jeopardy barrier to [an accused’s] retrial unless the judicial or prosecutorial error that prompted [a defendant’s mistrial] motions was “intended to provoke” the motions or was otherwise “motivated by bad faith or undertaken to harass or prejudice” . . .’Id. at 33, 97 S.Ct. at 2148, 53 L.Ed.2d at 89.”

Commonwealth v. Potter, 478 Pa. 251, 261-62, 386 A.2d 918, 922-23 (1978) (opinion in support of affirmance).

Our review of the record is convincing that this is not an instance where a subsequent trial is barred because of. double jeopardy protections.³

The events leading to the end of the first trial appear in the record as follows:

While Detective McMillan testified on direct examination concerning the circumstances surrounding Gravely’s statement, the following occurred:

“[Detective McMillan]: At that time, after having informed him of his rights and what I am going to question him about, he stated to me that he had no knowledge of it and he would be willing—

“[District Attorney]: Sir, I interrupted you there.

“[Defense Counsel]: I ask he be permitted to complete his answer.

“[District Attorney]: I have no objection to that, your Honor. I will withdraw it.

State what he said, sir.

“The Court: All right.

“[Detective McMillan]: He asked me if it would be all right if he could take a polygraph examination to show that he had nothing to do with this.

“[District Attorney]: Fine, Your Honor, I wasn’t seeking to hide anything. I didn’t know counsel wanted that to come in. I know what the state of the law is in that regard.

“[District Attorney]: All right. After he asked you if he could take a polygraph examination, what did you do?

“[Detective McMillan]: Well, we went to another room in the Police Administration Building.

“[District Attorney]: To the Polygraph Room?

“[Detective McMillan]: Yes, sir.

“[District Attorney]: And was the defendant given the polygraph test?

“[Detective McMillan]: Yes, sir.”

Thereafter, defense counsel objected to any further questioning concerning the polygraph examination and the court ruled:

“Well, to the extent that reference has been made to it, I see nothing objectionable up to this point; however, I rule and reference to it should be omitted, and I so rule. * * * * * *

“Excuse me a moment. I want to explain to the jury the results of a polygraph test are not permitted to be related to the jury. The reason being that the polygraph examination which is what is commonly known as the lie detector test has not achieved such recognition by the courts as to permit the results of the tests to be related to you.

“The record at present, therefore, is merely that a test was given, and I have ruled as you have heard that I don’t want any further reference to such a test.

“Now I tell you very bluntly that you are not to wonder or speculate on what happened during the test because that is not permitted and I ask that my instructions in this connection of which I have just given to you be implicitly obeyed.”

The Commonwealth carefully adhered to the court’s ruling, and no further mention of the polygraph examination or its result was made during direct examination which continued until court recessed for the day. The following morning, direct examination of Detective McMillan resumed and, again, no reference to the polygraph examination was made. It was not until later that day, in response to detailed cross-examination, that the prejudicial disclosure was made.

The record thus indicates that the prosecution initially prevented its witness from testifying concerning the polygraph examination; that testimony concerning the polygraph examination was presented only upon defense counsel’s request; that, once the court ruled further reference to the polygraph examination should be precluded, the prosecution at no point mentioned the polygraph again during its case-in-chief; and, that only during detailed cross-examination was the prejudicial disclosure made.

The conduct illustrated by these facts is not that of prosecutorial misconduct or “overreaching.” Rather, it appears the prosecution diligently avoided reference to the polygraph examination after having been so instructed by the court. The blurting out of the polygraph examination results by the Commonwealth witness during the intricate cross-examination certainly does not evidence “prosecutional misconduct designed to secure a more favorable opportunity to convict the accused.” Commonwealth v. Wiggins, 472 Pa. 95, 101, 371 A.2d 207, 210 (1977) (opinion in support of affirmance); see also Commonwealth v. Potter, supra. We, therefore, conclude, after a review of the record, that Gravely is not entitled to relief on this basis.⁴

Gravely next complains he “was deprived of his constitutional right to assistance of counsel of his choice.” The following facts are relevant:

On August 8, 1975, the court appointed counsel to represent Gravely. A hearing on a motion to suppress was scheduled for December 8, 1975. On that date counsel, retained by Gravely’s family, appeared and requested a continuance of the hearing saying he needed time to prepare.

After ascertaining that Gravely’s court-appointed counsel was prepared to proceed on the suppression motion, the court denied private counsel’s request for the continuance because “[i]t seems to us, with less than two months to go for the running of the Rule 1100 date and the continued representation of the defendant by [court-appointed counsel] and the fact that this case has been continued and listed today and must be heard, that the case should go on.” The court allowed Gravely’s private counsel to enter his appearance on Gravely’s behalf and to assist court-appointed counsel at the suppression hearing. As a result, Gravely was represented at the suppression hearing by both court-appointed counsel and private counsel.

Specifically, Gravely contends that the denial of the request for continuance acted to deprive him of his constitutional right to assistance of counsel of his choice.

However, even if we assume the denial of the requested continuance was error, Gravely is not entitled to relief. “Reversal and new trial is warranted only where the denial of the right to counsel of choice at a pretrial proceeding so prejudices the accused as to infect the subsequent trial with an absence of fundamental fairness.” Commonwealth v. Holzer, 480 Pa. 93, 389 A.2d 101 (1978); see also Crooker v. California, 357 U.S. 433, 78 S.Ct. 1287, 2 L.Ed.2d 1448 (1958).

Gravely makes no such assertion of prejudice⁵ and, therefore, is not entitled to relief.

Gravely next argues he is entitled to relief because the verdict of guilty of murder of the second degree coupled with the inability of the jury to reach a verdict as to the rape indictment⁶ renders the verdicts “so inconsistent that they cannot be amended by the court.”

In the past, however, we have stated:

“[Ejven if it were assumed that the two verdicts were logically inconsistent, such inconsistency alone could not be grounds for a new trial or for reversal. ‘It has long been the rule in Pennsylvania and in the federal courts that consistency in a verdict in a criminal case is not necessary.’ Commonwealth v. Parrotto, 189 Pa.Super. 415, 419, 150 A.2d 396 (1957).”

Commonwealth v. Tallon, 478 Pa. 468, 478, 387 A.2d 77, 83 (1978) (opinion in support of affirmance); see also Commonwealth v. Strand, 464 Pa. 544, 347 A.2d 675 (1975); Commonwealth v. Carter, 444 Pa. 405, 282 A.2d 375 (1971). Thus, Gravely is not entitled to relief because of possibly inconsistent verdicts.

Judgment affirmed.

NIX, J., filed a concurring opinion. ROBERTS, J., filed a concurring opinion in which LARSEN, J., joins. MANDERINO, J., filed a dissenting opinion.

1 . We have not considered oral presentation adequate to preserve the issues since Commonwealth v. Blair, supra. See, e. g., Commonwealth v. Hagans, 483 Pa. 415, 397 A.2d 412 (1979), and Commonwealth v. Waters, 477 Pa. 430, 384 A.2d 234 (1978). Also, we have refused to consider a brief adequate where the trial court refuses to consider the issues presented in that manner. See, e. g., Commonwealth v. Carrillo, 483 Pa. 215, 395 A.2d 570 (1978).

2 . In Commonwealth v. Bolden, 472 Pa. 602, 373 A.2d 90 (1977), a majority of this Court agreed that an order denying a pretrial motion to dismiss on double jeopardy grounds was immediately appealable. See also Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977); Commonwealth v. Haefner, 473 Pa. 154, 373 A.2d 1094 (1977).

Before commencement of his second trial, Gravely filed an “Application for Dismissal of the Prosecution” asserting he was entitled to be discharged on the double jeopardy grounds discussed textually. (See footnote 4, infra.) The application was denied, and no appeal was taken from the order of denial at that time. Following his conviction, Gravely raised double jeopardy grounds in his post-trial motions.

Because the instant appeal was taken in December of 1976, some four months prior to our decision in Bolden, supra, we cannot say that Gravely’s pretrial failure to appeal from the order denying his application was a waiver of his asserted double jeopardy claim. See Commonwealth v. Potter, 478 Pa. 251, 256 n. 3, 386 A.2d 918, 920 n. 3 (1978).

3 . Assuming Pa.Const. art. 1 § 10 would apply instantly, Commonwealth v. Sparrow, 471 Pa. 490, 370 A.2d 712 (1977); Commonweaalth v. Potter, supra, we believe the same standards should be applied under both federal and state provisions.

4 . Gravely, collateral to this argument, also contends, relying upon our holding in Commonwealth v. Campana, 452 Pa. 233, 304 A.2d 432 (1973), vacated 414 U.S. 808, 94 S.Ct. 73, 38 L.Ed.2d 44 (1973), on remand 455 Pa. 622, 314 A.2d 854 (1974), cert. denied 417 U.S. 969, 94 S.Ct. 3172, 41 L.Ed.2d 1139 (1974), that he was placed twice in jeopardy for the same offense when he was brought to trial on both the murder and rape indictments when his first trial involved only the murder indictment. The rape indictment was nolle pressed.

However, this theory of error, unlike the theory of error discussed in the text asserting imputed prosecutorial overreaching, was not included in Gravely’s pretrial “Application for Dismissal of the Prosecution” and thus is not properly preserved for appellate review. See Pa.R.Crim.P. 306(e); Commonwealth v. Peters, 473 Pa. 72, 373 A.2d 1055 (1977) (per Eagen, C. J., with one justice joining and three justices specially concurring); Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974).

5 . In fact, the only assertions made by Gravely evidencing prejudice are that private counsel was not adequately prepared; that, as a result, private counsel was unable “to exercise enlightened judgments as to the strategical maneuvers for court appointed counsel to take”; and, that, in at least three instances, there was confusion and uncertainty as to the examination of witnesses at the suppression hearing.

Gravely does not assert that the suppression court’s ruling on the motion to suppress was incorrect; that court-appointed counsel was not adequately prepared; that court-appointed counsel was ineffective; or, that any error was caused by private counsel’s lack of preparation.

6 . Gravely actually asserts “the jury acquitted the defendant of the rape charge.” However, this factual allegation is not supported by the record. Rather, the record reveals the jury was unable to reach a verdict on the rape indictment and, as a result, a mistrial was declared as to that indictment.