# Commonwealth v. Stewart

> Supreme Court of Pennsylvania · March 25, 1974 · 456 Pa. 447

URL: https://www.frixlaw.com/law-library/cases/9641641

## Case

- **Full name:** Commonwealth v. Stewart, Appellant
- **Court:** Supreme Court of Pennsylvania
- **Decided:** March 25, 1974
- **Citations:** 456 Pa. 447; 317 A.2d 616; 1974 Pa. LEXIS 552
- **Precedential status:** Published
- **Opinion:** Concurrence by Brien
- **Judges:** Jones, Eagen, O'Brien, Roberts, Pomeroy, Nix, Mander-Ino, Manderino
- **Cited by:** 47 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9641641

## Opinion text

Concurring Opinion by
Mr. Justice O’Brien:
While I agree with the majority that, under the facts of this case, the trial court was justified in declaring a mistrial sua sponte, on the grounds of “manifest necessity,” I do not agree with the majority’s analysis of Buie 1118 in connection with this case.
Buie 1118 does not apply to this case. Buie 1118 only applies to situations where an event prejudicial to the defendant occurs during the trial. Commonwealth v. Brown, 451 Pa. 395 , 301 A.2d 876 (1973), Commonwealth v. Lauria, 450 Pa. 72 , 297 A.2d 906 (1972).
When such an event occurs, the drafters of Rule 1118 apparently intended that the choice between sending the case to the jury, and thereby risking the possible effects of prejudice, or aborting the trial, and thereby causing the anxiety and inconvenience occasioned by a second trial, should be made by the defendant and his counsel alone. It was probably felt that the defendant and his counsel are best able to evaluate how well the trial has gone from a strategic standpoint and how serious will be the harm caused by the prejudicial event. Perhaps it was feared that if they, alone, are not given this power, there is a possibility that where the Commonwealth’s case has not gone well, grounds for a mistrial could be created by the perpetration of some prejudicial event.
Faced with a situation to which Rule 1118 applies, a trial judge should not, on his own motion, grant a mistrial, instead, the court should notify the defendant and his counsel of the prejudicial event, and, if the *456 defendant or Ms counsel does not wish, to move for a mistrial, the court should conduct an on-the-record colloquy, in the absence of the jury, to establish that the defendant is aware of the prejudicial event, is aware of the risks if his case continues, and, nevertheless, knowingly and voluntarily chooses to proceed with the trial.
In the instant case, on the other hand, the reasoning behind Rule 1118 does not apply. First, the trial had not started. No strategic question was involved. Second, no prejudicial event had occurred. Instead, the trial court had been informed that a situation existed which might produce a prejudicial event if left unchanged. Considering that one trial had already been reversed because the victim’s father was in a position to prejudice the jury’s determination, Commonwealth v. Stewart, 449 Pa. 50 , 295 A.2d 303 (1972), and considering that the court had the responsibility for insuring not only that the ends of justice were served, but that they appeared to be served — which appearance would surely be threatened if a court were to allow the father of a homicide victim to serve as court officer in the trial of that homicide — the declaration of a mistrial was certainly justified in this case.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9641641. Public record. Not legal advice.