Com. v. Fredericks

• Decision Date: 24 June 1975
• Citation: 235 Pa.Super. 78,340 A.2d 498
• Parties: COMMONWEALTH of Pennsylvania v. Stewart FREDERICKS, Appellant.
• Court: Pennsylvania Superior Court

Page 498

340 A.2d 498

235 Pa.Super. 78

COMMONWEALTH of Pennsylvania v. Stewart FREDERICKS, Appellant.

Superior Court of Pennsylvania.

June 24, 1975.

[235 Pa.Super. 80] Margaret H. Poswistilo, Asst. Public Defender, Easton, for appellant.

Charles H. Spaziani, Dist. Atty., Alan B. McFall, Asst. Dist. Atty., Easton, for appellee.

Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ.

CERCONE, Judge:

The instant appeal arises from appellant's conviction after his second jury trial of burglary and larceny, his first trial having resulted in a mistrial for failure of the jurors to agree. Appellant raises numerous allegations of error which we shall treat seriatim after setting forth the facts.

In the wee hours of March 26, 1972, Assistant Chief Krome was on patrol in Forks Township when he approached the Manufacturer's Discount House on Route 115 and observed a vehicle parked in the parking lot. The officer passed the store, but proceeded only a few hundred feet before deciding to investigate. As he again approached the parking lot, the car's headlights went on as it proceeded out of the lot and passed him going in the opposite direction. Officer Krome turned around, took the license plate number, model and color of the vehicle and noted approximately three persons in the car.

Two and one-half hours later, Officer Krome returned to the store and checked the front door. He then noticed a rock and broken glass lying on the floor inside the building. He walked to the rear of the premises where he saw a broken window and clothing strewn on the ground. There was broken glass both inside and outside the building, including pieces from which fingerprints were taken. The owners of the store confirmed that various items of clothing were missing.

Subsequent investigation revealed that the car which Officer Krome had observed belonged to appellant who, in connection with another arrest, had been fingerprinted by the Easton police. Officer Krome requested appellant's fingerprint card from the Easton police and forwarded it to the State Police for comparison with fingerprints lifted from the broken glass found at the scene. The prints matched.

In August Officer Krome interviewed appellant concerning his whereabouts when the burglary occurred. Appellant stated that he had loaned his car to two friends of his and was staying at another friend's house when the two returned with his car early in the morning. They told him that they had burglarized a store in Forks Township and that his car was loaded with clothing. According to appellant, he told them to remove the clothing, which they did, and then he drove his car home. Nevertheless, appellant was arrested on charges of burglary and larceny.

On April 10--11 of 1973 appellant was tried before a jury. At noon on April 11, the jury retired to deliberate. At 2:40 P.M. and 3:45 P.M. the jury returned to the courtroom for special instructions. At 4:25 the jury returned and informed the court that it was unable to reach a verdict. The instant discussion ensued:

'THE COURT: All right, I will have the foreman stand on behalf of the jury and report to the Court what your decision is with respect to being able to arrive at a unanimous verdict. Not any numbers or anything, but just whether you are able to arrive at a unanimous verdict.

THE FOREMAN: We have not arrived at a unanimous verdict.

THE COURT: Do you feel that there would be anything to be gained by sending you back for further deliberations or are you deadlocked to the point where you feel no progress could be made?

THE FOREMAN: I feel that no progress could be made by anymore deliberations.

THE COURT: All right, I will accept your statement, and on the basis of it I hereby declare that a mistrial has occurred in this proceeding by reason of the inability of the jury to arrive at a unanimous verdict.

By making that declaration that I have from the bench, that ends this particular trial. You will have absolutely no further responsibility in this case, and you will be returning to jury service tomorrow morning to the panel as a whole and then it remains whether you will be called for other cases. You are excused.'

Appellant recorded no objection to the court's Sua sponte declaration of a mistrial.

New counsel was appointed for appellant and, on February 27, 1974, a second trial was held on the same charges, wherein the jury returned verdicts of guilty. At no time prior to or during that trial did appellant protest that the proceeding constituted a violation of the Fifth Amendment's proscription that one may not twice be placed in jeopardy for the same offense. ¹

DOUBLE JEOPARDY

Appellant's first contention, that the court's declaration of a mistrial at his first trial constituted a bar to his being tried again for those same offenses, requires an affirmative answer to each of the following questions before appellant may succeed on this appeal: (1) May appellant raise the bar of double jeopardy at his second trial when he did not object to the court's Sua sponte declaration of a mistrial at his first trial, (2) May appellant raise the question of double jeopardy, directly or indirectly, on appeal when that question was not timely raised at the second trial in the court below; and (3) Did the trial court abuse its discretion in finding that manifest necessity required the declaration of a mistrial at appellant's first trial.

A. The necessity of a prompt objection at the first trial

That this first question is one not readily answered becomes apparent at the initial stages of inquiry--there is a clearly discernible split in authority, even among the federal circuit courts, ² on whether a defendant must object to the declaration of a mistrial in order to preserve a claim of double jeopardy in case of his subsequent prosecution for the same offense. ³

Authoritative case law in Pennsylvania is scant and, at least superficially, contradictory. The Supreme Court of this Commonwealth confronted this question under the double jeopardy clause of the state constitution in Commonwealth v. Baker, 413 Pa. 105, 196 A.2d 382 (1964). ⁴ Article I, § 10 of the Constitution, P.S., of this Commonwealth provides: 'No person shall, for the same offense, be twice put in jeopardy of life or limb . . ..' That clause, for reasons more of historical than practical significance, had consistently been applied to bar a second prosecution only for offenses for which the defendant could potentially receive corporal or capital punishment; i.e., offenses which literally put defendants in jeopardy of life or limb. ⁵ Thus, in holding that the defendant's silence upon the trial court's Sua sponte declaration of a mistrial did not waive his right to raise the double jeopardy bar at the subsequent trial for first degree murder, the Court placed considerable emphasis upon the fact that the Commonwealth could subsequently retry the defendant for second degree murder (a non-capital offense), and the fact that a human life should not be so readily forfeit as by silence under the taut circumstances of a capital case. In balancing those considerations, the Court felt that its decision comported more with sound public policy and necessity, and constituted a 'reasonable interpretation of the criminal law.' Id. at 111, 196 A.2d at 385. See also Commonwealth v. Simpson, 310 Pa. at 388, 165 A. 498. The Court concluded:

'For these reasons we hold that the maxim that silence gives consent should not be applied to a situation as grave and a constitutional right as important as this. In other words, mere silence by defendant or his counsel to the proposed discharge of the jury by the trial Judge will not amount to a waiver of this very important constitutional right of every person accused of a capital offense.' 413 Pa. at 114, 196 A.2d at 387.

On the other hand United States v. Phillips, supra note 2, was a Third Circuit decision wherein silence at the declaration of a mistrial was held to preclude the defendant's raising the double jeopardy clause at his subsequent trial. In strong terms that court rejected the defendant-appellant's contention, stating:

'The purpose of an objection in this case would have been to challenge the judgment of the trial court that irreconcilable disagreement was present. Without an objection, we have before us only the actions of an experienced trial judge who heard all the evidence, knew the complexity or simplicity of the case, and decided further deliberation would be vain. To raise the issue now rather than at the trial is to leave the record so deficient as to make it impossible for us to say that the trial judge was incorrect.' 431 F.2d at 950.

While we agree that a discussion on the record concerning the reasons which impel the trial court to declare a mistrial would be instructive to any subsequent trial or appellate court concerned with a double jeopardy question, we do not readily perceive why it is the defendant's burden to establish such a record. We so conclude for the following reasons:

First, it is not the declaration of a mistrial which offends appellant's rights, it is his subsequent prosecution for the same offense which runs afoul of the Fifth and Fourteenth Amendments. No defendant has a constitutional right to be acquitted by a jury, and no defendant can demand that his trial proceed to verdict if the Commonwealth wishes to discontinue the cause. It is inconsistent to require a defendant to object to the declaration of a mistrial when he has no right to demand that the charges proceed to verdict. Furthermore, it is well known that the Commonwealth, having once been stymied at a jury trial, frequently will not reprosecute when a relatively minor felony is involved. If the Commonwealth may wish to make a second effort at a conviction, it is the Commonwealth which should insure that the court does not declare a mistrial unless manifest necessity requires it. For,...