Petition — Whitt v. Pennsylvania

Office- Supreme Court. U.S.

8 ; * F ae Rs

-2123 If

23 } JUN 15 1981

No. 14 :

ALBXAND «ix „EVS,

IN THE

— *

Supreme Court of the United States

October Term, 1980

—

JOHN LEE WHIT T,

Petitioner,

vs.

COMMONWEALTH OF PENNSYLVANIA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF PENNSYLVANIA

ROBERT N. CLARKE

Attorney for Petitioner

231 North Main Street

Washington, Pennsylvania 15301

(412) 228-5000

Of Counsel:

M. Scot CuRRAN

231 North Main Street

Washington, Pennsylvania 15301

(412) 228-5000

Batavia Times Publishing Co. 1

Pittsburgh, Pa. (412) 881-7463

Questions Presented for Review

Petitioner’s jury trial on charges of murder, et al. com-

menced April 10, 1980 and continued on April 11, 1980.

On the evening of April 11, the trial judge became ill

with the “flu’’ and was unable to preside at trial the

following week. On April 17, 1980, a hearing was held

before the Honorable Thomas J. Terputac, wherein the

Court determined the trial judge’s illness would continue

through the next day (Friday) and perhaps through

Monday (J. T.). Based upon this finding and over Peti-

tioner’s objection, the Court ruled that manifest

necessity” required the declaration of a mistrial. On May

1, 1980, the Petitioner filed a Motion to Quash the

Indictment on the basis that the Petitioner’s retrial

would violate the Fifth and Fourteenth Amendments of

the United States Constitution. The Motion was denied

by the Court of Common Pleas of Washington County,

Pennsylvania, on May 12, 1980. The Supreme Court of

Pennsylvania affirmed the determination of the Court of

Common Pleas on April 15, 1981.

The questions presented for review are:

(1) Whether the Supreme Court of Pennsylvania erred

in intentionally, willfully, recklessly or negligently dis-

regarding the decision of the Supreme Court of the

United States in Arizona v. Washington, 434 U.S. 497,

98 S. Ct. 824, 54 L. Ed. 2d 717 (1978)?

(2) Whether the trial judge abused his discretion in

finding that manifest necessity required the declara-

tion of a mistrial so as not to bar Petitioner’s subsequent

prosecution?

II.

TABLE OF CONTENTS.

ria. Bune 3

Questions Presented for Revieee x.. i

Cases and Statutes Cite ꝗq iii

n ei ²—0 bene eee 1

ee lee 2

Constitutional Provisions Involved ............... 2

DAE —B—W bbb dl 2

Reasons for Granting Writ of Certior arri. 4

A ee „„ 4

Point I. The Supreme Court of Pennsylvania err-

ed in intentionally, willfully, recklessly or

negligently disregarding the decision of the

Supreme Court of the United States in Arizona

v. Washington, 434 U.S. 497, 98 S.Ct. 824, 54

Ecce WEAR Ü— 9 W“ h—;ſwſͥ·a oor 4

Point II. The trial Judge abused his discretion in

finding that manifest necessity required the

declaration of a mistrial so as not to bar the

petitioner’s subsequent prosecution........... 5

„%% ͤ P 0 10

Appendix A- Opinion of Court of Common Pleas on

Motion to Quash Indictment (June 11, 1980) la

Appendix B—Memorandum--Order of Supreme

Court of Pennsylvania Affirming Denial of Motion

to Quash Indictment (April 15, 1981)........... lla

Appendix C—Constitutional Provisions Involved. 12a

III.

Page

CASES CITED.

Arizona v. Washington, 434 U.S. 497, 98 S. Ct. 824,

O46 Ly BG. BE ULE CAGIS) Sicicvcccdccsvvtone 4,5,6,7,8,9

Benton v. Maryland, 395 U.S. 784, 89 S. Ct. 2056,

e 5

Carsey v. United States, 129 U.S. App. D. C. 205,

eee 7

Commonwealth v. Ferguson, 446 Pa. 24, 285 A. 2d

, / ·•‚ havens 9

Commonwealth v. Robson, 461 Pa. 615, 337 A. 2d

/ ̃ TA ̃⁵˙iUñLͤͤ ˙AÄW EC Lp ees 6

Downum v. United States, 372 U.S. 734, 83 S. Ct.

rr pic ced eis iccssicondas ee 8

Green v. United States, 355 U.S. 184, 78 S. Ct. 221,

e 7

Illinois v. Sommerville, 410 U.S. 458, 93 S. Ct.

1066, 35 L. Ed. 2d 425 (1973ꝶꝗ .. 7

Roberts v. Louisiana, 431 U.S. 633, 97 S. Ct. 1993,

nenen. ccasew sore visi 5

Simmons v. United States, 142 U.S. 148, 12 S. Ct.

% ⁰·)/“hô'õm 8. 8

State v. Linscott, Me. , 416 A. 2d 255

R » . ²ůã⁴in e 4

Thompson v. United States, 155 U.S. 271, 15 S. Ct.

re 8

United States v. Dimitz, 424 U.S. 600, 96 S. Ct.

r !, //... e 8

United States v. Jorn, 400 U.S. 470, 91 S. Ct. 547,

en 5.6.7.8

Wade v. Hunter, 336 U.S. 684, 69 S. Ct. 834, 93 L.

/ mA ͤ d;. dax... 7

STATUTES CITED.

Pennsylvania Crimes Code:

Title 18, Sections 2501 and 2502 ............... 2

IN THE

Supreme Court of the United States

October Term, 1980

No.

JOHN LEE WHITT,

Petitioner,

vs.

COMMONWEALTH OF PENNSYLVANIA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF PENNSYLVANIA

John Lee Whitt prays that a Writ of Certiorari issue to

review a judgment of the Supreme Court of Pennsyl-

vania, entered on April 15, 1981, which affirmed an

Order denying a Motion to Quash the Indictment which

was previously entered against Petitioner in the Court of

Common Pleas of Washington County, Pennsylvania, on

May 12, 1980.

Opinions Below

Following the entry of the Order in the Court of Com-

mon Pleas, the Petitioner appealed to the Pennsylvania

Supreme Court. The per curiam affirmance of the Penn-

2

sylvania Supreme Court and the Opinion of the Court are

set forth in Appendices A and B (la- IIa).

Jurisdiction

The jurisdiction of this Court is invoked under 28

U.S.C. §1257(3).

Constitutional Provisions Involved

This case involves Article 3, Section 1 (regarding the

power of courts); Article 3, Section 2 (Appellate jurisdic-

tion); The Fifth Amendment (due process of law and

right not to be put in jeopardy of life or limb more than

once); and Fourteenth Amendment (due process of law as

applied to the States).

These Constitutional provisions are reproduced in Ap-

pendix C hereto.

Statement of Facts

On September 24, 1979, the defendant was charged

with the crimes of Criminal Homicide and Murder, §2501

and 52502 of the Pennsylvania Crimes Code. On Tues-

day, April 8, 1980, jury selection commenced before the

Honorable John F. Bell. Jury selection continued

through Wednesday, April 9, 1980.

The following abbreviations are used in the petition:

nis a reference to the Petitioner s Appendix which appears

following the conclusion of the petition: The Ay pendix contains

the opinion of the Court of Common Pleas of Washington Coun-

ty (Appendix A); the decision of the Supreme Court of Pennsyl-

vania (Appendix B), and the applicable Constitutional Provi-

sions involved.

“J” is a reference to the Record submitted to the Supreme

Court of Pennsylvania which contains all the relevant matters

of record.

3

On Thursday, April 10, 1980, and for one-half a day on

Friday, April 11, 1980, the Commonwealth presented

substantially all of its case before the judge and jury.

The only remaining prosecution witnesses left to call

were several State Police Troopers.

On Monday, April 14, 1980, the defendant and his

counsel were advised that Judge Bell was ill and would

not be able to perform his duties on that day. The

Honorable Thomas J. Terputac ordered a continuance of

the trial on a day to day basis, pending Judge Bell's

return. On Thursday, April 17, 1980, after stating that

he talked to Judge Bell and over the objection of the

defendant's attorney, Judge Terputac, stating that he

believed Judge Bell's illness would continue for at least

one more day and possibly through the weekend,

declared a mistrial and discharged the jury.

On May 1, 1980, the defendant presented a Motion to

Quash the Indictment in this matter for the reason that

a retrial of the defendant would be violative of the Fifth

Amendment to the Constitution of the United States by

subjecting him to double jeopardy.

On May 5. 1980, c tule issued upon the District At-

torney to show cause why the Motion should not be

granted and the charges dismissed. By Order dated May

12, 1980, the defendant's Motion to Quash the informa-

tion and the Motion to Dismiss were denied by Order of

the Honorable Thomas J. Terputac.

On May 12, 1980, the defendant appealed to the

Supreme Court of Pennsylvania which, by Order dated

April 15, 1981, affirmed the decision of the Court of

Common Pleas of Washington County, Pennsylvania, in

a per curiam decision.

4

Reasons fer Granting Writ of Certiorari

This petition raises substantial and important ques-

tions involving a State Court’s failure to act in accor-

dance with the decision of the Supreme Court of the

United States in Arizona v. Washington, 434 U.S. 497,

98 S. Ct. 824, 54 L. Ed. 2d 717 (1978). The Writ, therefore,

should be issued to protect the integrity of the Court’s

decision. Assuming the decision of the Supreme Court of

Pennsylvania is not squarely controlled by the said case,

the decision was made in a way probably not in accord

with the applicable decisions of this Court and conflicts,

or probably conflicts with the decisions of another State

Court of last resort. See State v. Linscott, Me.

116 A. 2d 255 (1980).

ARGUMENT

POINT I

The Supreme Court of Pennsylvania erred in inten-

tionally, willfully, recklessly or negligently disregarding

the decision of the Supreme Court of the United States

in Arizona v. Washington, 434 U.S. 497, 98 S. Ct. 824, 54

L. Ed. 2d 717 (1978).

As will be demonstrated, infra, the very essence of the

decision in Arizona v. Washington, 434 U.S. 497, 98 S.

Ct. 824, 54 L. Ed. 2d 717 (1978) is that a declaration of a

mistrial for reasons of manifest necessity” can only be

properly made after the integrity of the fact finding pro-

cess has been impugned. If the defendant objects to the

declaration of a mistrial, the prosecution has the burden

of proving that a danger to the integrity of the fact find-

ing process exists.

In the present case, no such showing is possible. After

trial had been delayed for only three days and, faced

5

with a delay of only one and (perhaps) two more business

days, the Judge temporarily assigned to the case

declared a mistrial. No jurors were questioned as to

whether their ability to render a decision had been im-

paired. No other alternatives, such as _ substituting

another Judge, were considered.

In this light, it is respectfully submitted that the deci-

sion of the Supreme Court of Pennsylvania squarely con-

flicts with the decision of this Court in Arizona v.

Washington, supra, and requires reversal. Roberts v.

Louisiana, 431 U.S. 633, 97 S. Ct. 1993, 52 L. Ed. 2d 637

(1977).

POINT II

The trial Judge abused his discretion in finding that

„manifest necessity” required the declaration of a mistrial

so as not to bar the petitioner’s subsequent prosecution.

The question requires the application of law to fact.

The law is clear that retrial of a defendant on criminal

charges is improper unless the previous trial was aborted

on motion of the defendant or manifest necessity’’ man-

dates the declaration of a mistrial. United States v. Jorn,

400 U.S. 470, 91 S. Ct. 547, 27 L. Ed. 2d 543 (1971). This

Fifth Amendment standard is applicable to State prosecu-

tions. Benton v. Maryland, 395 U.S. 784, 89 S. Ct. 2056,

23 L. Ed. 2d 707 (1969).

In determining whether manifest necessity” requires

a declaration of a mistrial, the trial Judge must exercise

his discretion, taking into account all the circumstances

of the case. An abuse of that discretion will bar a retrial

of the defendant. Any doubt should be resolved in favor

of the liberty of the citizens; any other rule would result

in an unlimited, uncertain and arbitrary judicial discre-

tion. United States v. Jorn, supra; Arizona v.

Washington, supra.

Although no hard and fast rules for determining when

“manifest necessity” to declare a mistrial exist, certain

guidelines must be followed by the trial Judge. The

power to declare a mistrial should be used with the

greatest caution, under urgent circumstances, and should

be limited to very plain and obvious cases. In capital

cases particularly, the trial Judge should be hesitant in

interfering with any chance of liberty in favor of the

defendant. United States v. Jorn, supra; Commonwealth

v. Robson, 461 Pa. 615, 337 A.2d 573 (1975). It is the

burden of the prosecution to establish manifest necessi-

ty” for justifying a declaration of a mistrial to avoid the

double jeopardy bar. United States v. Jorn, supra;

Arizona v. Washington, supra.

The defendant respectfully submits that the case of

Arizona v. Washington, supra, is controlling and man-

dates the dismissal of the charges presently pending

against the defendant. In that case, this Court outlined

the factors to be considered in determining the scope of

the double. jeopardy clause’s protection by establishing a

balancing test. This balancing test consists of weighing

the public interest in having a just judgment reached by

an impartial tribunal against the defendant’s right not to

suffer a subsequent prosecution. Arizona v. Washington,

supra. This Court explicating the reasons for the bar

upon subsequent prosecutions, has stated:

Because jeo attaches before the judgment

becomes final, the Constitutional protection also em-

braces the rr sg “valued right to have his

trial completed by a particular tribunal. The

reasons why this “valued right merits Con-

stitutional protection are worthy of repetition. Even

if the first trial is not completed, a second prosecu-

tion may be grossly unfair. It increases the financial

and emotional burden on the accused, prolongs the

period in which he is stigmatized by an unresolved

7

accusation of wrongdoing and may even enhance the

risk that an innocent defendant may be convicted.

The danger of such unfairness to the defendant ex-

ists whenever trial is aborted before it is completed.

Consequently, as a general rule, the prosecution is

entitled to one, and only one, opportunity to require

an accused to stand trial. Arizona v. Washington,

supra, at U.S. 503 504, 8. Ct.

at 829 - 830 (footnotes omitted citing United States

v. Jorn, supra; Illinois v. Sommerville, 410 U.S. 458,

93 S. Ct. 1066, 35 L. Ed. 2d 425; Wade v. Hunter,

336 U.S. 684, 69 S. Ct. 834, 93 L. Ed. 974; Green v.

United States, 355 U.S. 184, 78 S. Ct. 221, 2 L. Ed.

2d 799; Carsey v. United States, 129 U.S. App. D.

C. 205, 392 F.2d 810 (1967)).

Using this approach, the essence of this Court’s deci-

sion in Arizona v. Washington, supra, immediately ap-

pears. Only when the integrity of the fact finding process

has been somehow impugned or threatened may a mis-

trial be declared. This conclusion is inevitable if a close

analysis of the Court’s opinion is made.

First, it must be noted that the Court’s basic premise

in deciding the case was that the defense counsel’s open-

ing remark to the jury was improper and may have af-

fected the jury’s impartiality. “We therefore start from

the premise that defense counsel’s comment was im-

proper and may have affected the impartiality of the

jury.” Arizona v. Washington, supra, at US. 511,

1 CE. 838,

Second, the Court’s opinion makes plain that the

primary purpose of the decision is to maintain the in-

tegrity of the fact finding process. Thus, in discussing

the “hung jury” situation which would justify the

declaration of a mistrial for reasons of ‘‘manifest necessi-

ty,” the Court notes:

8

.. there exists a significant risk that a verdict may

result from pressures inherent in the situation rather

than the considered judgment of all the jurors. If re-

trial of the defendant were barred whenever an Ap-

pellate Court views the “necessity” for mistrial dif-

ferently from the trial Judge, there would be a

danger that the latter, cognizant of the serious

societal consequences of an erroneous ruling, would

employ coercive means to break the apparent dead-

lock. Arizona v. Washington, supra, U. S. at

509-510, S. Ct. at 832.

The other examples used by this Court, by way of il-

lustration, reinforce this view. In discussing Thompson

v. United States, 155 U.S. 271, 15 S. Ct. 73, 39 L. Ed.

146, this Court noted “the possibility of bias justified

the mistrial.” Arizona v. Washington, supra, at

U.S. 512, S. Ct. 834. In discussing United States

v. Dimitz, 424 U.S. 600, 96 S. Ct. 1075, 47 L. Ed. 2d 267:

(the double jeopardy clause) bars retrial where bad

faith conduct by Judge or prosecutor ... threatens

the harassment of an accused by successive prosecu-

tions or declaration of a mistrial so as to afford the

prosecution a more favorable opportunity to convict

the defendant. Thus, the strictest scrutiny is ap-

propriate when the basis for this mistrial is the

unavailability of prosecution evidence or where there

is reason to believe that the prosecutor is using the

superior resources of the State to harass or achieve

a tactical advantage over the accused (footnotes

omitted, citing Downum v. United States, 372 U.S.

734, 83 S. Ct. 1033, 10 L. Ed. 2d 100; United States

v. Jorn, supra).

In discussing Simmons v. United States, 142 U. S. 148,

12 S. Ct. 171, 35 L. Ed. 968, this Court noted a mistrial

was justified because “it (was) impossible for the jury

to act with the independence and freedom on the part of

each juror requisite to a fair trial of the issue between

the parties.” Arizona v. Washington, supra. U.S.

at 512, 8. Ct. at 833-834.

9

Finally, after this Court’s discussion of the cases noted

above, the decision reinforced the analysis used herein by

stating: ‘Neither party has the right to have his case

decided by a jury which may be tainted by bias; in these

circumstances ‘the public’s interest in fair trial designed

to end injust judgments’ must prevail over the defen-

dant’s ‘valued right’ to have his trial concluded before

the first jury impaneled.” Arizona v. Washington, supra,

at US. 516, S. Ct. 835-836.

In the present case, it is respectfully submitted that no

threat to the integrity of fact finding process has been

demonstrated. Having continued the case for only three

days (the equivalent of a holiday weekend) and faced

with the absence of the trial Judge for only two more ac-

tual business days (at most) before the trial could be

reconvened, the Order granting a mistrial for reasons of

“manifest necessity’ plainly constituted an abuse of

discretion and effectively stripped the defendant of his

right to have his case heard by his chosen tribunal. As

has been stated by the Supreme Court of Pennsylvania:

“Consequently, if the Commonwealth wished to over-

come these de Its and to persuade the trial Court to

engage in such an extraordinary exercise of the discre-

tion, it should have offered more substantial evidence of

the “manifest necessity” required for such exercise.”

Commonwealth v. Ferguson, 446 Pa. 24, 285 A.2d 189

(1971).

No evidence indicating a threat to the integrity of the

fact finding process having been introduced by the State

or appearing on the record, the defendant respectfully re-

quests this Honorable Court to grant the Petition for the

Writ of Certiorari and to reverse and remand this matter

to the Supreme Court of Pennsylvania for a decision con-

sistent with this Honorable Court’s decision in Arizona

v. Washington, supra.

10

Conclusion

For these and all the aforementioned reasons, the

defendant respectfully requests this Honorable Court to

enter an Order granting the petitioner’s request for Writ

of Certiorari and to reverse the decision of the Supreme

Court of Pennsylvania.

Respectfully submitted,

ROBERT N. CLARKE

Attorney for Petitioner,

John Lee Whitt

231 North Main Street

Washington, Pennsylvania 15301

(412) 228-5000

APPENDIX A

Opinion of Court of Common Pleas on

Motion to Quash Indictment (June 11, 1980).

IN THE COURT OF COMMON PLEAS

of Washington County, Pennsylvania

CRIMINAL DIVISION

COMMONWEALTH OF PENNSYLVANIA,

Plaintiff,

vs.

JOHN LEE WHITT,

Defendant.

No. 602 (a,b,c,d,e) of 1979

No. 1104 of 1979

APPEARANCES:

Herman J. Bigi, Esq., District Attorney, and James N.

Brady, Esq., Assistant District Attorney, representing

the Commonwealth.

John C. Pettit, Esq. and John T. Olshock, Esq., of the

firm of Patrono, Ceisler, Edwards and Pettit, rep-

resenting the Defendant. ~

2a

Appendix A—Opinion of Court of

Common Pleas.

OPINION

Terputac, J.

June 11, 1980.

On April 17, 1980, this court entered an order declar-

ing a mistrial in the case of Commonwealth v. John Lee

Whitt and directing that the case be retried in the May

Term of Criminal Court. The defendant led a Motion to

Quash Indictment (sic) on May 1, 1980, on double jeopar-

dy grounds to which the Commonwealth filed its

Answer. After argument thereon, the court denied the

motions to quash and to dismiss from which the defen-

dant took an appeal to the Supreme Court of Pennsyl-

vania. This opinion is written in support of our denial of

such motions.

On September 24, 1979, the defendant, John Lee

Whitt, was charged with the crimes of criminal homicide

and murder. 18 Pa.C.S. 2501 and 2502 respectively, and

counts of recklessly endangering (2507), aggravated

assault (2702), and terroristic threats (2706). Jury selec-

tion began on Tuesday, April 8, 1980, before the

Honorable John F. Bell, and continued through Wednes-

day, April 9th. The trial itself began with the taking of

testimony on April 10th and a half day on Friday, April

11th.

On Friday evening, April 11th, Judge Bell became ill.

Except for two out-patient visits to the hospital, he was

confined to his home until Saturday, April 19th. Having

been in contact with Judge Bell by telephone, Judge

Thomas J. Terputac on Monday, April 14th, informed

the jury and counsel that Judge Bell was ill and would

not be available to try the case that day and that the

jurors would be notified by phone when Judge Bell was

3a

Appendix A—Opinion of Court of

Common Pleas.

able to proceed.' At that time Judge Terputac was of the

opinion that Judge Bell might be able to resume trying

the case in a day or two. Day to day continuances were

directed.

At the hearing on Thursday, April 17th, Judge Ter-

putac determined that Judge Bell was too ill to resume

trying the case and made a finding of manifest necessity,

thereby declaring a mistrial and rescheduling the trial for

the May Term of Criminal Court, the first day of which

would have been Monday, May 12th. Counsel for the

defendant objected to the retrial, stating that a retrial

would be costly to his client and that the Commonwealth

would have the advantage and “opportunity to present

its case again, and hopefully, to correct any errors or

weak spots that may have been the result of the trial up

to this point. N. T. April 17, 1980, hearing, p. 4. Claim-

ing double jeopardy through the Fifth and Fourteenth

Amendments, counsel asked that the charges be dis-

missed and the defendant discharged.

The double jeopardy clause of the Fifth Amendment of

the Constitution of the United States is applicable to the

states through the Fourteenth Amendment. Benton u.

Maryland, 395 U.S. 784, 23 L.Ed.2d 707, 89 S.Ct. 2056

(1969). It is clear that a constitutionally protected in-

terest is inevitably affected by any mistrial decision.

Arizona v. Washington, 434 U.S. 497, 54 L.Ed.2d 717, 98

The April Term for court trials began on Monday, April 7, 1980, and

would terminate on Friday, April 18th. President Judge Sweet handl-

ed civil cases, and Judges Gladden, Bell and Rodgers were assigned

to criminal cases. Judge Terputac for the year was assigned Orphans’

Court and Juvenile matters.

Although the illness of Judge Bell was originally thought to be in-

fluenza, the ultimate diagnosis of Crobn's disease, a gastro-intestinal

disorder, was not medically determined until April 23, 1980.

4a

Appendix A—Opinion of Court of

Common Pleas.

S.Ct. 824 (1978). The right of the accused to have his

trial completed by a particular tribunal is based on im-

portant considerations such as the financial and emo-

tional burden on the accused, the period of uncertainty

which is prolonged by the prospect of retrial, and the

possible enhancement of the risk that an innocent person

may be convicted in such event. Illinois v. Somerville,

410 U.S. 458, 35 L.Ed.2d 425, 93 S.Ct. 1066 (1973);

Green v. United States, 355 U.S. 184, 2 L.Ed.2d 199, 78

S.Ct. 221 (1957). See 61 A.L.R.2d 1119. In assessing the

scope of the double jeopardy problem, the United States

Supreme Court has evolved the concept that the pro-

secutor must demonstrate manifest necessity for any

mistrial over the objection of the defendant. United

States v. Perez, 9 Wheat. 579, 6 L.Ed. 165 (1824).

Although at times the words manifest necessity”, evi-

dent necessity”, or “imperious necessity” have been

employed, the meaning appears to be the same. See

Downum v. United States, 372 U.S. 734, 10 L.Ed.2d 100,

83 S.Ct. 1033 (1963). Although no mechanical formula

has been espoused, Illinois v. Somerville, supra, a literal

interpretation of the word “necessity” is not required;

rather there are degrees of necessity by which the court

is admonished to ascertain that a high degree of such

necessity is reached before a mistrial is appropriate.

Arizona v. Washington, supra. However, it is not the

declaration of a mistria) which offends the rights of the

defendant, it is the subsequent prosecution for the same

offense which runs afoul of the Fifth and Fourteenth

Amendments. Commonwealth v. Carson, 259 Pa.

Superior Ct. 183, 393 A.2d 778 (1978).

5a

Appendix A—Opinion of Court of

Common Pleas.

The concept of manifest necessity has been incor-

porated into Pennsylvania law through the rules of

criminal procedure. Pa. R. Crim. P. 1118(b) provides:

When an event prejudicial to the defendant oc-

curs during trial only the defendant may move for a

mistrial; the motion shall be made when the event is

disclosed. Otherwise, the trial judge may declare a

mistrial only for reasons of manifest necessity.”

Fundamentally the issue before the court is whether or

not there was a manifest necessity for the declaration of

the mistrial. Where the court has conducted an inquiry

into the matter prior to the declaration of mistrial and

has considered the circumstances, no abuse of discretion

has occurred and reprosecution is permissible. Com-

monwealth v. Bycer, 254 Pa. Superior Ct. 336, 385 A.2d

1367 (1978). The defendant has relied principally upon

Commonwealth v. Ferguson, 446 Pa. 24, 285 A.2d 189

(1971). In that case during the trial on one of the robbery

charges, one of the victims became ill and was not

available to testify. The District Attorney advised the

trial court that Goldberg was a necessary witness on

identification on all three indictments. Having contacted

the attending physician for Goldberg, the District At-

torney informed the court that the doctor could not say

what Goldberg’s condition was and he did not give a

diagnosis. That same day the court granted the

Commonwealth’s motion to withdraw a juror—the

equivalent of a mistrial under modern practice—and the

case was later retried. Speaking for the Court, Mr.

Justice O’Brien held that the facts in the case did not

justify the granting of the mistrial.

6a

Appendix A—Opinion of Court of

Common Pleas.

We believe that the instant case differs materially from

Ferguson. In Ferguson, the jury could have been sent

home early for that day until more information could be

elicited concerning Goldberg’s health. The decision to

declare the mistrial involved the health of a person

unknown to the court and apparently to the District At-

torney. In the instant matter the court held a short hear-

ing on the Monday morning after the Friday evening

when Judge Bell first became ill. After the court inform-

ed the attorneys that Judge Bell was ill and would not

be available for that day, counsel for the defendant

responded: “Your Honor, on behalf of the Defendant, we

do not in any way question the illness of Judge Bell and

we will enter into any stipulation Your Honor might

recommend as to his illness.” N.T. April 14, 1980, Tran-

script, p. 2. On April 16th, in chambers Judge Terputac

held a meeting which was placed on the record. Having

notified the parties about Judge Bell’s continued illness,

the court inquired whether counsel had any comments.

Defense counsel stated he had no comment. Moreover, on

that occasion the court advised counsel that the possibili-

ty of a mistrial was under consideration. On the next

day, April 17th, the court declared a mistrial despite the

objections of the defendant.

At no point in the proceedings did counsel for the

defendant suggest or demand that the court secure a

medical opinion of any sort. In fact, he admitted to the

illness. For the first time, in the motion to dismiss,

counsel argued that there was no “medical testimony as

to the seriousness of the illness of Judge Bell” and that

it cannot be determined from the record whether Judge

Terputac consulted with Judge Bell’s attending physi-

7a

Appendix A- Opinion of Court of

Common Pleas.

cian. Paragraphs 12 and 13 of the Motion to Quash In-

dictment (sic).

Not only does the requirement of manifest necessity

apply to the prosecutor but also it applies to the court.

The court should not act hastily and should accord both

to the prosecutor and to defense counsel full opportuni-

ty to explain their positions on the propriety of the

mistrial. Arizona u. Washington, supra, 54 L.Ed.2d at

734. We believe that abundant precautions were taken in

the instant matter. The court monitored Judge Bell’s

condition each day. We warned both counsel that a

mistrial was a likelihood if the illness persisted. In fact,

on the day prior to the actual declaration of mistrial, we

cautioned both sides that a mistrial was more than like-

ly. At the time of the hearing on April 17th, the court

permitted both counsel to advance reasons and factors

which the court should take into consideration respecting

the granting of a mistrial. Although the medical

diagnosis was made much later, the court had before it

such information of a substantial nature which permitted

us to conclude that the illness would continue and that

Judge Bell was unable to try the case. Unlike Com-

monwealth v. Dull, 257 Pa. Superior Ct. 192, 390 A.2d

777 (1978), the court did not act precipitously and

declare the mistrial the same day upon which the illness

became apparent.

In objecting to the proposed mistrial during the hear-

ing of April 17th, defense counsel posited his reasons

therefor on two bases: (1) that a retrial would be finan-

cially detrimental to his client, and (2) that the Com-

monwealth might be in a more advantageous position in

being permitted to resubmit its case to the jury. Rather

8a

Appendix A—Opinion of Court of

Common Pleas.

than declaring a mistrial on Monday, April 14th, the

court waited several days until Thursday, April 17th, at

which time it was evident that Judge Bell would be

unable to proceed with the trial in the foreseeable future.

At no time did defense counsel ask or demand medical

proof either by way of testimony or a medical report.’ As

a matter of fact, Judge Bell’s condition deteriorated and

he was compelled to undergo hospitalization in

Washington Hospital from Saturday, April 19th, through

April 27th. He returned to his judicial duties on April 28,

29 and 30th. He became ill again on April 30th and was

hospitalized from May Ist to May 8th. By April 17th, it

was physically impossible for Judge Bell to try the case

and both counsel and this court knew it. In view of this

state of affairs, defense counsel chose to focus his

reasons for objecting to the declaration of mistrial on the

two reasons explicitly stated on the record at the hearing

of April 17th, N.T. 3, 4, and did not point to any reason

based on lack of medical information respecting the

precise medical condition of Judge Bell.

One of the two claims by defense counsel advanced at

the hearing on the mistrial was that the Commonwealth

may be able to prepare its case for retrial with greater ef-

ficacy. We find that this argument has no support in the

record. The prosecutor has done nothing to delay the

case or to prevent it from going to the jury. Nothing in

the trial testimony would lead to any conclusion that the

Commonwealth was attempting by some devious means

* At the hearing on April 17th, N. T. p. 4, defense counsel said: I do

not question whether Judge Bell is sick or not. On behalf of the

Defendant, we are willing to accept the statement of Your Honor that

Judge Bell is sick. To what degree of seriousness or the length or

duration of his illness, we know nothing other than what this Court

has stated.

9a

Appendix A—Opinion of Court of

Common Pleas.

to retry the case. We conclude that this claim on behalf

of the accused is nothing but pure speculation lacking

any merit in the resolution of the issues. The second

argument advanced at the mistrial hearing concerns the

issue of the burden of additional expense. Such a situa-

tion is always prevalent where private counsel has been

retained. In this case, defendant Whitt has been free on

bond and has been working at his regular employment.

For three of the four days during which the case was

continued due to the illness of the trial judge, defendant

was at work and was not required to appear in court. To

this extent the financial burden has been mitigated.

Nevertheless, we must view all the circumstances of the

occasion for retrial, weighing the public interest against

the rights of the accused. Unlike the situation in which

the trial has ended in an acquittal or conviction, retrial is

not automatically barred when a criminal proceeding is

terminated without finally resolving the merits of the

charges against the accused. Because of the variety of

circumstances that may make it necessary to discharge a

jury before a trial is concluded, and because those cir-

cumstances do not invariably create unfairness to the ac-

cused, his valued right to have the trial concluded by a

particular tribunal is sometimes subordinate to the

public interest in affording the prosecutor one full and

fair opportunity to present his evidence to an impartial

jury.“ Arizona u. Washington, 53 L.Ed.2d at 728.

There is sufficient authority to indicate that the illness

of the trial judge justifies the discharge of the jury and

such event does not bar a further prosecution of the

defendant. 21 Am.Jur.2d, Criminal Law Sec. 197. Mis-

trials triggered by illness of the defendant, defense

counsel, or the trial judge have been upheld even without

10a

Appendix A—Opinion of Court of

Common Pleas.

the defendant’s consent. These mistrials were accepted

uncritically as ‘necessary’ even though possibilities for a

continuance, replacement of trial counsel, or replacement

of the judge had not been explored at the trial.” 125

University of Pennsylvania Law Review, Jeopardy and

Mistrials, pp. 477, 478 (1977). In Commonwealth v. Rob-

son, 461 Pa. 615, 337 A.2d 573 (1975), cert. denied, 423

U. S. 934, 46 L.Ed.2d 265, 96 S. Ct. 290, the Supreme

Court held that the illness of the trial judge constituted

manifest necessity for the declaration of a mistrial.‘

For the reasons herein stated, and having considered

all the circumstances attending the illness of Judge Bell,

we believe that the finding of manifest necessity for the

declaration of the mistrial was proper.

THOMAS J. TERPUTAC

Judge

lla

‘ APPENDIX B

Memorandum—Order of Supreme Court of

Pennsylvania Affirming Denial of Motion

to Quash Indictment (April 15, 1981)

SUPREME COURT OF PENNSYLVANIA

Western District

COMMONWEALTH OF PENNSYLVANIA,

v.

JOHN LEE WHIT T.

Appellant.

No. 80-1-104

ARGUED: March 2, 1981

Appeal from the Order of the Court of Common Pleas

of Washington County, Criminal, at

Nos. 602 and 1104 of 1979.

JUDGMENT

ON CONSIDERATION WHEREOF, it is now here

ordered and adjudged by this Court that the judgment of

the Court of COMMON PLEAS OF WASHINGTON

COUNTY, be, and the same is hereby affirmed.

BY THE COURT:

CARL RICE, Esquire

Prothonotary

Dated: April 15, 1981

12a

APPENDIX C

Constitutional Provisions Involved

United States Constitution

Article III, Section 1

The judicial Power of the United States, shall be vest-

ed in one Supreme Court, and in such inferior Courts as

the Congress may from time to time ordain and

establish. The Judges, both of the supreme and inferior

Courts, shall hold their Offices during good Behavious,

and shall, at stated times, receive for their Service, a

Compensation, which shall not be diminished during

their Continuance in Office.

Article IIT, Section 2

The judicial Power shall extend to all Cases, in Law

and Equity, arising under this Constitution, the Laws of

the United States, and Treaties made, or which shall be

made, under their Authority;—to all Cases affecting Am-

bassadors, other public Ministers and Consuls;—to all

Cases of admiralty and maritime Jurisdiction;—to Con-

troversies to which the United States shall be a

Party;—to Controversies between two or more

States;—between a State and Citizens of another

State;—between Citizens of different States;—between

Citizens of the same State claiming Lands under Grants

of different States, and between a State, or the Citizens

thereof, and foreign States, Citizens or Subjects.

AMENDMENT V

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or in-

dictment of a Grand Jury, except in cases arising in the

land or navel forces, or in the Militia, when in actual ser-

13a

Appendix C—Constitutional Provisions Involved.

vice in time of War or public danger; nor shall any per-

son be subject for the same offence to be twice put in

jeopardy of life or limb; nor shall be compelled in any

criminal case to be a witness against himself, nor be

deprived of life, liberty, or property, without due process

of law; nor shall private property be taken for public use,

without just compensation.

AMENDMENT XIV

Section 1. All persons born or naturalized in the

United States, and subject to the jurisdiction thereof, are

citizens of the United States and of the State wherein

they reside. No State shall make or enforce any law

which shall abridge the privileges or immunities of

citizens of the United States; nor shall any State deprive

any person of life, liberty, or property, without due pro-

cess of law; nor deny to any person within its jurisdic-

tion the equal protection of the laws.