Judges： Stevens, Popovich, Montemuro
Filed Date： 5/21/1998
Status： Precedential
Modified Date： 10/26/2024
dissenting:
Upon review, I must respectfully dissent from the opinion of the majority. I cannot agree with my learned eoHeagues’ conclusion that the lower court exercised “sound discretion” in recusing himself and granting a mistrial. After reviewing the trial transcript, I am convinced that the proceedings were far from “tumultuous,” and that defense counsel did not inflict “abuse” upon the trial judge. Further, while I am as concerned as any jurist about the particular sensitivity with which oral examination of a six-year-old victim must be conducted, I am not convinced that defense counsel speeifieaEy undertook to intimidate the child witness, reduce her to tears or render her unable to testify. Rather, counsel’s actions were simply designed to protect the constitutional rights of the defendant.
The trial transcript in this case is by no means lengthy, consisting of twenty-nine pages, with one three-and-one-half-inch column of double-spaced type per page. N.T., 7/9/96, pp. 4-33. The trial began with a request from the Commonwealth to clear the courtroom, which was granted. N.T., 7/9/96, pp. 4-5. A discussion between counsel and the court then ensued concerning the court’s decision to permit the representative from the Women’s Crisis Center to remain in the
Next, the Commonwealth examined of the six-year-old victim for the purpose of determining her competency to testify. N.T., 7/9/96, pp. 8-15. Defense counsel did not intellect during the Commonwealth’s voir dire. Defense counsel then examined the child as to competency and, upon completion, objected to the child being permitted to testify. N.T., 7/9/96, pp. 15-21. The court found the child competent to testify.
Following a brief reopening of the competency determination, the Commonwealth began its examination of the child. The entire remainder of the trial follows:
MS. CARPINO: Thank you.
Heather, I want you to turn around and take a look at that guy right there in the green shirt.
Defense counsel—
Let the record reflect that I pointed to the defendant.
Do you know who he is, Heather?
THE WITNESS: Yes.
MS. CARPINO: What is his name?
THE WITNESS: Harry.
MS. CARPINO: Harry. How do you know Hzrry [sic] ?
Is Harry your mom’s friend?
MR. SCOTT-SEDLEY: Judge, if she is competent, she doesn’t need to be led.
THE COURT: No, I don’t see that as— that doesn’t logically follow, and I will permit some leading.
MS. CARPINO: Thank you.
THE COURT: Like I said, the main thing is, I want to hear from Heather.
MS. CARPINO: Very well.
THE COURT: If you have like the mother here—
MS. CARPINO: The mom is here. She’s going to testify.
Heather, do you remember your birth-date this year?
THE WITNESS: Yes.
MS. CARPINO: What was the date of your birthday again?
THE WITNESS: February 19.
MS. CARPINO: February 19 or 16?
THE WITNESS: 16.
MR. SCOTT-SEDLEY: Objection.
THE COURT: Objection sustained.
THE WITNESS: February 16.
MS. CARPINO: Are you sure about that? THE WITNESS: February 16.
MS. CARPINO: How old did you turn this February?
THE WITNESS: Six.
MS. CARPINO: Do you remember anything that happened at your house at night after your birthday, after February 16, with Harry?
THE WITNESS: I don’t want to talk about it.
MS. CARPINO: You don’t want to talk about it.
THE WITNESS: I don’t want to talk about it.
MS. CARPINO: You have to talk about it.
Okay, the judge is a very nice man. You need to tell him.
THE WITNESS: I don’t want to.
MS. CARPINO: Heather, did Harry do something to you?
THE WITNESS: Yes.
MS. CARPINO: Tell the judge what Harry did to you.
THE WITNESS: I don’t want to.
MS. CARPINO: You have to. You have to.
Tell him. He is a good man. You have to tell him.
MR. SCOTT-SEDLEY: I’m going to object at this point. It could be because she is being admonished to tell the truth.
MS. CARPINO: It could very well be because she is intimidated. She is a six-year-old child.
MR. SCOTT-SEDLEY: Let the record reflect that I’m standing right in front of*338 my client. My client couldn’t very well be intimidating her, could he?
Let the record reflect that I am right in the line of vision of my client.
THE COURT: See, you just lost your situation. I have got a little girl crying, and you are bickering about your client. No good.
The child is now crying and upset. I call a recess in this case.
Heather, let’s take a break, okay?
Take Heather with you, and counsel remain in place.
(The child is excused)
MR. SCOTT-SEDLEY: May I ask that the sequestration order remain?
THE COURT: You know what that is. You can’t talk about the case. You cannot discuss and you cannot discuss the child’s testimony.
Now, the child may leave.
Now, Mr. Sedley, you were about a foot away from the child, you tower over her, and Ms. Carpino, the same thing. You are arguing back and forth, and now the child is really upset, and starts crying. You can’t argue that way with a child witness in the room, because what happens is, it breaks her down.
Now, we will come back , to it, okay, and you may put on the record anything you want.
MR. SCOTT-SEDLEY: Judge, I was a good three feet away from the child.
THE COURT: I’ll give you that one. I’ll give you three feet away.
MR. SCOTT-SEDLEY: I was leaning against here deliberately, deliberately, Judge, so as not to intimidate her. I did it deliberately to allow her the freedom in quotes, to testify freely to this Court.
THE COURT: And what I could do is to show you how much you know about the freedom thing. I’ll have you sit at the table. You have no right to be standing there. And you have no right to have this other lawyer here. You are asking for everything to be on your side, and it is ridiculous.
MR. SCOTT-SEDLEY: Well, then, Judge, let me ask that—-
THE COURT: No. I’ll tell you what I’m going to do. I will' give you a— put this in B Court. Put this in B Court. We are not getting anywhere, and I don’t like the things that you are doing here.
I’ll recuse myself. Put it in B Court.
When you do something like that, I don’t like it here. I’m not going to put up with it. I am recusing myself, and put it in B Court.
MR. SCOTT-SEDLEY: Just for my edification, my colleague being in the room, I don’t know what bearing that has on it.
THE COURT: I do, and I don’t owe you an explanation, and you are not getting one.
You abused the Court today. Your client will reap those consequences. You’ll go to B Court with this. This is a big mistake.
MS. CARPINO: I will file an oral 6013 and ask for the earliest possible date.
THE CRIER: How much time do you expect this ease is going to take, because they are going to ask that question?
MS. CARPINO: We have two other witnesses, but not real long. About an hour.
(Hearing concluded)
N.T., 7/9/96, pp. 25-33.
I certainly agree with the majority that a trial judge has the discretion to grant a mistrial sua sponte when such is manifestly necessary or the ends of public justice would otherwise be defeated, and we will not disturb that decision absent an abuse of that discretion. United States v. Perez, 9 Wheat. 579, 580, 6 L.Ed. 165 (1824); Commonwealth v. Bartolomucci, 468 Pa. 338, 362 A.2d 234 (1976); Commonwealth v. Gains, 383 Pa.Super. 208, 556 A.2d 870 (1989); Commonwealth v. Balog, 395 Pa.Super. 158, 576 A.2d 1092 (1990). Further, I agree that a judge must recuse himself when he believes that he cannot fairly and impartially hear a matter. Commonwealth v. Boyle, 498 Pa. 486, 447 A.2d 250 (1982). Also, I agree that when a judge is unable to proceed impartially, a mistrial is manifestly necessary to insure jus
However, we must be ever mindful that a judge’s decision to recuse himself and grant a mistrial are only made after a “scrupulous exercise of judicial discretion.” United States v. Jorn, 400 U.S. 470, 485, 91 S.Ct. 547, 557, 27 L.Ed.2d 543, 556-57 (1971). Any doubt in the propriety of a mistrial must be resolved in favor of the accused. Bartolo-mucci, supra. While the court’s decision is entitled to great deference, the Supreme Court has recognized that the failure to consider less drastic alternatives constitutes an abuse of discretion. Arizona v. Washington, 434 U.S. 497, 511, 98 S.Ct. 824, 833, 54 L.Ed.2d 717 (1978); Commonwealth v. Diehl, 532 Pa. 214, 216-18, 615 A.2d 690, 691 (1992).
After reviewing the record, I am convinced that the municipal court judge’s decision to recuse himself was not based upon a “scrupulous exercise of judicial discretion.” Further, the court’s decision violated appellant’s right to control the course to be followed in the event of error and to have his case determined in one trial. United States v. Dinitz, 424 U.S. 600, 609, 96 S.Ct. 1075, 1080, 47 L.Ed.2d 267, 275 (1976); Commonwealth v. Ferguson, 446 Pa. 24, 29, 285 A.2d 189, 191 (1971). Therefore, I am convinced that the prohibition against double jeopardy bars retrial of appellant. See, Diehl, supra (retrial barred by double jeopardy if court abused its discretion in granting a mistrial without considering less drastic alternatives).
In rendering my decision, I considered the following: First, I do not believe that the lower court was “abused” by defense counsel in any manner. While both the prosecution and defense counsel may have acted firmly towards the child-witness, the record does not reveal that their actions substantially deviated from their duties to the court and their clients. Moreover, in my estimation, defense counsel’s examination of the child was neither overly confrontational nor hostile. Adso, it is important to note that the lower court expressly recognized that the prosecutor was just as responsible for the victim’s loss of composure as defense counsel. N.T., 7/9/96, p. 30.
Second, I can certainly sympathize with the court’s particularly protective concern for the emotional well-being of six-year-old victim, but I fail to see any action which warranted a mistrial. Certainly, crying by a child victim of sexual assault is not unusual during oral examination by counsel, given the sensitive subject matter of the inquiry. However, the judge’s frustration and anger with both attorneys, especially defense counsel, are not grounds for a mistrial, absent such emotions rendering the court unable to proceed impartially. Nowhere in the record does the lower court state that it could not execute its adjudicatory function impartially and without bias. Rather, the court’s abrupt declaration of a mistrial sua sponte appears to be a punishment for what the court perceived, without adequate reflection, to be “abuse.” N.T., 7/9/96, p. 32.
Third, I do not believe that the lower court adequately considered alternatives to mistrial. The court declared a recess and excused the witness after she began to cry. Immediately thereafter, the court unleashed his ire upon both counsel, with special disdain for defense counsel and, only a few minutes later, declared the mistrial sua sponte. Not once before the recess did the trial court chastise defense counsel for his trial tactics, except to indicate his general displeasure after the witness began to cry. N.T., 7/9/96, p. 29. And when defense counsel was apparently going to ask the court how it would like the remainder to the trial to be conducted, the court interrupted and abruptly informed counsel that he was going to transfer the case to another judge in another courtroom. N.T., 7/9/96, p. 31. Based on such actions, I do not believe that the court even considered other less drastic measures, much less “scrupulously exercise his discretion” to declare a mistrial.
In sum, I am convinced that the lower court’s action was intemperate and without the reflection and due consideration warranted when granting a mistrial sua sponte.
. In fact, the child began to cry during the Commonwealth’s direct examination, when the victim refused to answer the prosecution’s questions.