Com. v. Bartolomucci

• Decision Date: 06 July 1976
• Citation: 362 A.2d 234,468 Pa. 338
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. Frank BARTOLOMUCCI, Appellee.
• Court: Pennsylvania Supreme Court

Page 234

362 A.2d 234

468 Pa. 338

COMMONWEALTH of Pennsylvania, Appellant, v. Frank BARTOLOMUCCI, Appellee.

Supreme Court of Pennsylvania.

Argued March 12, 1976.

Decided July 6, 1976.

Robert F. Banks, Asst. Dist. Atty., Charles S. Hersh, Mercer, for appellant.

Herman M. Rodgers, Rodgers, Marks and Perfilio, Sharon, for appellee.

Before JONES, C.J., and EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.

OPINION OF THE COURT

EAGEN, Justice.

Frank Bartolomucci was brought to trial on November 15, 1973 for the unlawful delivery of methaqualone tablets in violation of the Controlled Substance, Drug, Devise and Cosmetic Act, Act of April 14, 1972, P.L. 233, No. 64, § 13(a) (30), 35 P.S. § 780--113(a)(30) (Supp. 1975--76), As amended, October 26, 1972, P.L. 1048, No. 263, § 1. ¹ The trial was completed about 11:30 a.m. on November 16 and jury deliberations began immediately. From 12:00 noon until 1:00 p.m., the jury recessed for lunch. At 1:00 p.m., deliberations resumed and continued until 5:15 p.m. when the jury recessed for dinner. Deliberations resumed at 6:45 p.m.

At 10:10 p.m., the trial judge, the district attorney, defense counsel and the tipstaff for the court attended a conference in chambers during which the following occurrences were noted of record: At 8:45 p.m., the foreman had informed the tipstaff that the jury was 'bogged down' and was unable to reach a verdict. The tipstaff then told the foreman the trial judge had left instructions that the jury be kept in session until a verdict was reached and that, unless the jury insisted, the tipstaff would not call the trial judge. The jury did not specifically ask to see the trial judge. Moreover, during this conference defense counsel indicated he had no objection to the colloquy between the tipstaff and the jury foreman earlier in the evening.

During the same conference, the trial judge sought both the district attorney's and defense counsel's position with regard to discharging the jury. Defense counsel stated he and Bartolomucci had anticipated the question and would not agree to the discharge. The trial judge then offered to repeat his instructions to the jury but defense counsel indicated he was not yet concerned with doing so.

At 10:46 p.m., another conference was held in chambers during which the tipstaff informed the trial judge, the district attorney, and defense counsel that the foreman had informed him the jury was hopelessly deadlocked and asked the tipstaff to so inform the court. The trial judge again sought the district attorney's and defense counsel's position with regard to discharging the jury. The district attorney indicated he thought discharge was appropriate. Defense counsel requested additional instructions, specifically, instructions relating to the responsibilities of jurors to each other and to themselves. The trial judge stated that such instructions had already been given in accordance with the American Bar Association's recommended Standards Relating to Trial by Jury, § 5.4 and that he had a serious question as to the effect of merely repeating such instructions. The trial judge thereupon recalled the jury to the courtroom at 10:55 p.m. and, without any further questions or inquiry, declared a mistrial and discharged the jury.

When the Commonwealth sought to bring Bartolomucci to trial again defense counsel bojected on the grounds of double jeopardy but this objection was overruled. Bartolomucci was thereafter tried and convicted. Post trial motions were denied and judgment of sentence was imposed. Bartolomucci appealed to the Superior Court. That court, in a five-two decision, reversed the judgment of sentence stating, inter alia, that Bartolomucci's second trial violated his right against being put twice in jeopardy because the jury was improperly discharged in the first trial. The Commonwealth petitioned for allowance to appeal from the order of the Superior Court and we granted the petition. ²

The Superior Court ruled the discharge of the jury at the first trial was improper because the trial judge failed to communicate directly with the jury before declaring the mistrial. The Commonwealth urges this was error because Bartolomucci did not advance this particular issue in the Superior Court and that court raised it Sua sponte. We find this position to have no basis in fact since Bartolomucci's brief in the Superior Court ³ and his post-trial brief in the Court of Common Pleas ⁴ specifically argued that the failure of the trial judge to communicate directly with the jury rendered the jury's discharge constitutionally impermissible and hence resulted in a bar to any subsequent prosecution.

The Commonwealth also claims Bartolomucci has waived any claim of double jeopardy because under Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974), defense counsel was required not only to object to the discharge of the jury in the first trial, which he did, but to state the specific grounds of objection. The Commonwealth further argues, since defense counsel's objection, although specific, related to additional instructions and deliberation and not to a need for the trial judge to communicate directly with the jury with regard to the deadlock, Bartolomucci waived any right to now complain of the trial judge's failure to communicate directly with the jury before declaring the mistrial.

Commonwealth v. Clair, supra, requires specific objection to rulings and conduct of the trial judge, Commonwealth v. Carr, 259 Pa. 262, 328 A.2d 512 (1974), as well as to conduct of the prosecuting attorney, Commonwealth v. Davenport, 462 Pa. 555, 342 A.2d 67 (1975), in order to permit a challenge thereto on appeal. Furthermore we recognize that the ruling in Clair was designed, inter alia, to give the trial court an opportunity to correct errors before the trial concludes. Commonwealth v. Clair, supra, 458 Pa. at 422, 326 A.2d at 274. We also recognize that, if defense counsel here had alerted the trial judge to the fact he was objecting to the discharge of the jury without some direct inquiry by the court as to the failure of the jury to agree, the trial judge would then have had the opportunity to correct this omission. Nevertheless, we are unwilling to rule that, where, as here, the trial court Sua sponte and over the objection of the defendant declares a mistrial, the defendant is precluded from challenging the propriety of the mistrial unless he specifies precisely and correctly the reason why the mistrial is not proper. To apply the rule of Clair to this situation is to invite a serious conflict with the substantive law of double jeopardy.

As stated by the Supreme Court of the United States in United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 1079, 47 L.Ed.2d 267 (1976):

'Since Justice Story's 1824 opinion . . . in United States v. Perez, 9 Wheat. 579, 580, 6 L.Ed. 165, this Court has held that the question whether under the Double Jeopardy Clause there can be a new trial after a mistrial has been declared Without the defendant's request or consent depends on whether 'there is a manifest necessity for the (mistrial), or the ends of public justice would otherwise be defeated.' (Emphasis added.)

Thus the substantive law of double jeopardy requires either a request or consent by a defendant to the mistrial in order to avoid the requirement that the mistrial be manifestly necessary. A mere failure to state the reason for an objection or to make a correct specific objection cannot be viewed as a request for or consent to the mistrial. Commonwealth v. Baker, 413 Pa. 105, 196 A.2d 382 (1964). And while we recognize that the Commonwealth does not argue this failure is a request for or consent to the mistrial, but rather argues it constitutes a waiver whereby the question of whether manifest necessity is or is not applicable is not reached, the effect of ruling the failure constitutes a waiver is the same as ruling it constitutes a request or consent. Thus, while conceptually no conflict between our Clair rule and the substantive law of double jeopardy would result from adopting the Commonwealth's position, functionally, that is, in effect, the conflict would exist. Therefore, we reject the Commonwealth's position and hold that absent a request for or consent by a defendant to a mistrial, the Sua sponte declaration of a mistrial must be manifestly necessary regardless of Commonwealth v. Clair, supra. In accord, Commonwealth v. Fredericks, 235 Pa.Super. 78, 340 A.2d 498 (1975).

Our determination is supported by other considerations. '(T)he Perez doctrine of manifest necessity stands as a Command to trial judges not to' declare a mistrial absent manifest necessity. United States v. Jorn, 400 U.S. 470, 485, 91 S.Ct. 547, 557, 27 L.Ed.2d 543 (1971) (plurality opinion but quoted with approval numerous times by a majority of the Supreme Court of the United States; e.g., United States v. Dinitz, supra, 424 U.S. at 607, 96 S.Ct. at 1080). (Emphasis added.) Thus, unlike the vast majority of situations wherein Clair's requirements are strictly enforced, in the instant circumstance, the Constitution of the United States prohibits a Sua sponte declaration of a mistrial absent manifest necessity. Further, the Supreme Court of the United States, albeit in a more limited context, has stated that waiver concepts have little relevance in the context of double jeopardy. United States v. Dinitz, supra, 424 U.S. at 608, 96 S.Ct. at 1081. Moreover, in Commonwealth v. Robson, 461 Pa. 615, 337 A.2d 573 (1975), cert. denied 423 U.S. 934, 96 S.Ct. 290, 46 L.Ed.2d 265, although not confronting the present Clair argument, this Court ruled that informing the trial court of opposition to a mistrial was sufficient to put the trial judge on notice that no request for or consent by the defendant or his counsel was present. Finally, in Commonwealth v. Baker, supra at 115, 196 A.2d at 387, albeit prior to Clair, this Court stated:

'. . . mere silence...