Commonwealth v. Walker

DISSENTING OPINION BY

KLEIN, J:

¶ 1 In this case, the trial judge granted a mistrial over the objection of defense coun *1257 sel, and declared a “manifest necessity” despite the desire of defense counsel to continue to verdict with the jury selected. Unfortunately, I do not believe the record demonstrates there was “manifest necessity” despite the trial judge’s belief that there was. There were a number of options short of a mistrial that would have allowed the defendant to continue the trial to verdict without prejudice. Therefore, since I believe the trial judge erred and abused his discretion when he concluded that manifest necessity required a new trial, I am compelled to find that double jeopardy requires dismissal of the action, and accordingly dissent.

¶ 2 Particularly noteworthy is the fact that the major charges — which required a finding of penetration — would likely have been dismissed in any event once the judge found that there was no exception to the hearsay rule and the statements to the medical personnel could not come in as substantive evidence. Once those charges were no longer under consideration, there would be no prejudice for the jury to analyze the rest of the testimony in the case.

¶ 8 Manifest necessity is a nebulous concept and there is no hard and fast method of determining when manifest necessity arises. Nonetheless, it is a high standard when we take into account the “substantial interest” a defendant has “in having his fate determined by the first jury impaneled.” See Commonwealth v. Stewart, 456 Pa. 447 , 317 A.2d 616, 619 (1974), quoting United States v. Jorn, 400 U.S. 470 , 91 S.Ct. 547 , 27 L.Ed.2d 548 (1971). I further note that partner to manifest necessity in granting a mistrial is where “the ends of public justice would otherwise be defeated.” Commonwealth v. Diehl, 532 Pa. 214 , 615 A.2d 690, 691 (1992). Diehl also informs us that “any doubt about the manifest necessity of declaring a mistrial must be resolved in the defendant’s favor.” Id. Finally, while manifest necessity does not automatically require the trial court consider a mistrial as a last resort, it does require the trial court “consider less drastic options before declaring a mistrial.” Commonwealth v. Leister, 712 A.2d 332, 336 (Pa.Super.1998), quoting Arizona v. Washington, 434 U.S. 497, 511 , 98 S.Ct. 824 , 54 L.Ed.2d 717 (1978).

¶ 4 Particularly in this case, where the prejudice by allowing the hearsay testimony of penetration would be irrelevant because there was not enough evidence for those charges to survive a motion for compulsory non-suit, a cautionary instruction would have been sufficient.

¶ 5 There are numerous occasions where errors far more significant than this one have not required the drastic remedy of a mistrial.

¶ 6 In Commonwealth v. Nahavandian, 849 A.2d 1221 (Pa.Super.2004), the notes of testimony from the preliminary hearing, which had never been introduced into evidence, were sent to the jury room during deliberations. The jurors admittedly read those notes of testimony. A cautionary instruction was sufficient to correct any prejudice. In Commonwealth v. Guilford, 861 A.2d 365 (Pa.Super.2004), a police officer testified the defendant was a suspect in prior robberies. A cautionary instruction was deemed sufficient to correct the error. In Commonwealth v. Hoffman, 301 Pa.Super. 312 , 447 A.2d 983 (1982), on cross-examination, the defendant, a former police officer, was asked about his dismissal from the police force. A cautionary instruction was given. In addition to that question, the Commonwealth also repeatedly asked the defendant about intentionally inspiring fear in local teens as well as commenting, “You’ve told us that you had ... physical contact with your students. Is there a cemetery somewhere full of your karate students?” Id. at 985. *1258 In each of these instances a mistrial was denied and no cautionary instruction given. In Commonwealth v. Canady, 500 Pa. 624 , 459 A.2d 715 (1982), reference was made about the defendant having been confined to a mental institution for being a sexual offender. The case makes no reference to any cautionary instruction and a mistrial was denied. In Commonwealth v. Pursell, 508 Pa. 212 , 495 A.2d 183 (1985), a first degree murder, death penalty case, the Commonwealth made improper reference to the defendant’s prior incarceration and alleged that the defendant homosexually raped the victim, a , 13 year old boy, even though Pursell had not been charged with that crime. A cautionary instruction was given. Finally, I note that there are innumerable cases where the Commonwealth has improperly, and in violation of the Constitution, referred to the defendant’s right to remain silent, yet no mistrial was declared and the constitutional error was deemed correctable through instruction. 8

¶ 7 If the Commonwealth can survive a mistrial with cautionary instructions in cases like this, that means that there are remedies far short of a mistrial that could operate in this case. There should not be a different standard depending on whether it is the defendant who claims that a mistrial is not necessary than it is when the Commonwealth claims that a mistrial is not necessary.

¶ 8 I recognize that the rule that prevents retrial when a judge errs in sua sponte declaring manifest necessity to grant a mistrial punishes the Commonwealth. That is particularly upsetting because in this case, the Commonwealth strongly opposed a mistrial. Aso, it is the public as well that is deprived of having a determination of guilt or innocence made in a case where there are serious charges.

¶ 9 As the Pennsylvania Supreme Court said in Commonwealth v. Burke, 566 Pa. 402 , 781 A.2d 1136, 1144 (2001), quoting from Commonwealth v. Shaffer, 551 Pa. 622 , 712 A.2d 749, 752 (1998):

Dismissal of criminal charges punishes not only the prosecutor ... but also the public at large, since the public has' a reasonable expectation that those who have been charged with crimes will be fairly prosecuted to the full extent of the law. Thus, the sanction of dismissal of criminal charges should be utilized only in the most blatant cases. Given the public policy goal of protecting the public from criminal conduct, a trial court should consider dismissal of charges where the actions of the Commonwealth are egregious and where demonstrable prejudice will be suffered by the defendant if the charges are not dismissed.

¶ 10 However, it is our obligation to interpret existing law, like it or not, not to make the law. I believe that we are bound by precedent and have no choice but to rule that there was no manifest necessity to grant a mistrial and therefore a retrial is prohibited. Accordingly, I must dissent.

¶ 11 BOWES, J., joins this Dissenting Opinion and also joins the Dissenting Opinion filed by BENDER, J. BENDER, J., Concurs in the Result of this Dissenting Opinion and files a separate Dissenting Opinion.

. Two such cases are: Commonwealth v. Boone, 862 A.2d 639 (Pa.Super.2004); Commonwealth v. Bracey, 831 A.2d 678 (Pa.Super.2003).