Commonwealth v. Africa

HOFFMAN, Judge,

concurring and dissenting:

I agree with the majority that the principles of double jeopardy do not bar the reprosecution of appellant Janet Holloway Africa because the prosecutorial error which prompted her to request a mistrial was not “motivated by bad faith or undertaken to harass or prejudice.” United States v. Dinitz, 424 U.S. 600, 611, 96 S.Ct. 1075, 1081, 47 L.Ed.2d 267 (1976). See also Lee v. United States, 432 U.S. 23, 33, 97 S.Ct. 2141, 2147, 52 L.Ed.2d 80 (1977). I agree also that the declaration of a mistrial as to appellants Phil Smith Africa and Gail Sims Africa must be reviewed in light of the “manifest necessity” standard set forth in United States v. Perez, 22 U.S. (9 Wheat.) 579, 6 L.Ed. 165 (1824).' I believe, however, that there was no manifest necessity for the declaration of a mistrial as to these latter two appellants. Accordingly, I would affirm as to appellant Janet Holloway Africa, but reverse as to appellants Phil Smith Africa and Gail Sims Africa and dismiss the charges against them.

“No rigid rule for determining what constitutes ‘manifest necessity’ for a mistrial has been established.” Commonwealth v. Robson, 461 Pa. 615, 622, 337 A.2d 573, 576 (1975). Rather, “[e]ach case must turn on its facts.” Downum v. United States, 372 U.S. 734, 737, 83 S.Ct. 1033, 1035, 10 L.Ed.2d 100 (1963). Nonetheless, courts have stressed the critical nature of the trial court’s decision whether or not to declare a mistrial sua sponte. In United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971) (plurality opinion), Justice HARLAN wrote that “the Perez doctrine of manifest necessity stands as a command to trial judges not to foreclose the defendant’s option [to have his trial completed by a particular tribunal] until a scrupulous exercise of judicial discretion leads to the conclusion that the ends of public justice would not be served by a continuation of the proceedings.” Id. at 485, 91 S.Ct. at 557. See also Commonwealth ex rel. Walton v. Aytch, 466 Pa. 172, 352 A.2d 4 (1976); Commonwealth v. Stewart, 456 Pa. 447, 317 A.2d 616 (1974). Moreover, in Downum v. United States, supra, the Court stated that in determining whether a mistrial was properly declared “[w]e resolve any doubt ‘in favor of the liberty of the citizen, rather than exercise what would be an unlimited, uncertain, and arbitrary judicial discretion.’ ” 372 U.S. at 738, 83 S.Ct. at 1035 (quoting United States v. Watson, 28 Fed.Cas.No. 16,651 pp. 499, 501 (S.D.N.Y.1868)). See also Commonwealth v. Shaffer, 447 Pa. 91, 288 A.2d 727 (1972). Speaking generally, the Supreme Court stated in Illinois v. Somerville, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973), that “[a] trial judge properly exercises his discretion to declare a mistrial if an impartial verdict cannot be reached, or if a verdict of conviction could be reached but would have to be reversed on appeal due to an obvious procedural error in the trial. Id. at 464, 93 S.Ct. at 1070 (emphasis added).

In the present case the majority states that certain “statements by the judge raised a question whether appellants could receive an impartial trial.” Majority opinion at 544. I disagree. Any “question” about whether the trial judge could render an impartial verdict was answered by the judge himself when he “stated that he could decide the case without consideration of the identification testimony.” Id. at 541. The statements to which the majority refers in no way contradict the judge’s ultimate conclusion that he could render an impartial verdict. The majority’s narrow focus on the judge’s initial expressions of reservation ignore the judge’s final resolution of a question which he was best qualified to answer. In my view, the record belies the majority’s conclusion that “there was a strong possibility that an impartial verdict could not be reached.” Id. at 545. Moreover, there can be no doubt that the trial judge’s stated reason for declaring a mistrial-his desire to avoid the appearance of impropriety-does not amount to manifest necessity to abort a trial in which the judge himself sat as the trier of fact. Accordingly, I dissent from that portion of the majority’s opinion which holds that the double jeopardy clause does not bar reprosecution of appellants Phil Smith Africa and Gail Sims Africa.