Com. v. Kelly

• Decision Date: 13 March 2002
• Citation: 797 A.2d 925
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. John KELLY, Appellant. Commonwealth of Pennsylvania, Appellee v. Chris Ernest, Appellant. Commonwealth of Pennsylvania, Appellee v. Tammy Hile, Appellant.
• Court: Pennsylvania Superior Court

797 A.2d 925

COMMONWEALTH of Pennsylvania, Appellee v. John KELLY, Appellant.

Commonwealth of Pennsylvania, Appellee v. Chris Ernest, Appellant.

Commonwealth of Pennsylvania, Appellee v. Tammy Hile, Appellant.

Superior Court of Pennsylvania.

Submitted September 24, 2001.

Filed March 13, 2002.

Ann C. Shapiro, Lewisburg, for Kelly, appellant at 142.

Hugh A. Benson, Selinsgrove, for Ernest, appellant at 143.

David D. Noon, Sunbury, for Hile, appellant at 144.

Robert Campolongo, Office of Atty. Gen., Harrisburg, for the Com., appellee.

Before: DEL SOLE, P.J., JOHNSON, J. and CERCONE, P.J.E.

DEL SOLE, P.J.

¶ 1 Before us today is a consolidated appeal from the order issued by the Court of Common Pleas of Snyder County, which denied Appellants' motions to bar retrial on the grounds that a new trial would violate the double jeopardy prohibitions of the United States and Pennsylvania Constitutions. This appeal stems from a most unusual, if not unique, factual and procedural history during which the trial judge, concerned that he could not preside fairly over the jury trial because of his frustration with the prosecutor's "bombastic" conduct and that his frustration would, in turn, bias the jury, declared a mistrial sua sponte. Upon review, we are convinced that the grant of the mistrial was an abuse of discretion by the trial judge and double jeopardy principles bar retrial of Appellants. Accordingly, we reverse the decision of the trial court and discharge Appellants.

¶ 2 The case sub judice requires this Court to determine whether the trial court's decision to declare a mistrial was mandated by "manifest necessity." In so doing, we revisit an issue first reviewed by the Supreme Court of the United States of America in 1824, when Justice Story, in the seminal case of United States v. Perez, 22 U.S. (9 Wheat.) 579, 580, 6 L.Ed. 165 (1824), stated:

We think, that in all cases of this nature, the law has invested Courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances, which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes; and, in capital cases especially, Courts should be extremely careful how they interfere with any of the chances of life, in favor of the prisoner. But, after all, they have the right to order the discharge; and the security which the public have for the faithful, sound, and conscientious exercise of this discretion, rests, in this, as in other cases, upon the responsibility of the Judges, under their oaths of office.

¶ 3 Before we proceed to the analysis of this case, we will recount, in toto, the interaction between counsel and the trial judge regarding the events that led up to the court's declaration of a mistrial without the consent of Appellants. Clearly, a full understanding of the events of the trial and the reasoning of the trial court is crucial to our resolution of this case.

¶ 4 The criminal charges in this case arose from the alleged assault of two women by Appellants at Kelly's Towne Tavern in Selinsgrove, Pennsylvania, on January 14, 1999. Appellant John Kelly was the tavern owner, Appellant Tammy Hile was Mr. Kelly's girlfriend and Appellant Chris Ernest was a tavern patron at the time of the alleged assault.

¶ 5 Trial commenced on October 30, 2000. After opening statements, the Commonwealth¹ began its case-in-chief by calling Rebekah Keister, one of the victims, to testify. Direct and cross-examination of Ms. Keister continued the next day. During recross-examination of the victim, the Commonwealth objected, and the trial court ordered counsel into chambers for an on-the-record conference. During that in-chambers discussion, the following occurred:

THE COURT: You get yourself under control. You are an embarrassment to the profession. This is not play acting out here. This is a trial of—where we're supposed to be finding the truth. You are doing things repeatedly that you know you are not permitted to do. You are making objections that you have—I have repeatedly ruled on.

Don't get up here and start being a bombastic character in front of the jury. Don't do it.

MR. CAMPOLONGO [for the Commonwealth]: Judge —

THE COURT: I don't know—I don't know how I can control you. I really don't. You are shooting yourself in the foot with the jury.

MR. CAMPOLONGO: Judge —

THE COURT: Do not do that in my courtroom. Calmly, peacefully, professionally.

MR. CAMPOLONGO: Judge, I'm sorry if I offended the Court, and I'm certainly sorry if I shot myself in the foot. And if I did, it would be something that's an offense to justice. And if I cause anything unjust to happen here due to my incompetency, I can only ask that God forgives me for it. But I was objecting right now, Your Honor, because of a statement that was made by Counsel to the witness. I don't believe that Counsel should be testifying and making statements to the witness. He should be asking questions. He said to her you said something different before. And I objected to that. I believe I have a right to object to Counsel making statements, particularly statements that are not true.

THE COURT: With all due respect, Mr. Campolongo, the phrase the pot calling the kettle black calls to mind. I recognize that I may be saying things that may—I just think this—this all needs to be on the record. I really do. That is—that is exactly the kind of thing that you repeatedly did, that Counsel gave you a great deal of latitude and finally did object, and which you took some umbrage at. There is absolutely no difference between what Mr. Noon did and what you have been doing repeatedly.

MR. CAMPOLONGO: I didn't state to the witness that anything was so, or I asked her if certain things were so.

THE COURT: Would you—no. With all due respect, Mr. Campolongo, your recollection is incorrect.

MR. CAMPOLONGO: Well, then I'm corrected. Then Counsel should have objected and Your Honor should have —

THE COURT: Well, they did, Mr. Campolongo, and they gave you quite a bit of latitude. Quite a bit of latitude.

MR. CAMPOLONGO: Well, I can only apologize to the Court. If I'm bombastic, I'm sorry. I suppose it's my nature. But I—I can only say that I'm trying to do my best to conduct myself in the proper fashion. And if I offended the Court, I'm sorry. I believe that my last objection was proper. Whether or not Counsel could have made objections that were also proper during my examination, I don't know if they thought that— if they thought so, they should have made those objections. And I'm sure Your Honor would have ruled.

But I don't believe that—that my last objection was improper because I think there was a declaration by Counsel, not a question, but a declaration of something. Statements which was not true, but also he shouldn't be making statements. It's almost like calling a witness a liar.

MR. NOON: I think that's what I have the right to be doing.

MS. SHAPIRO: It was not my—I said it was not my question, but from where I was sitting, it sounded like Mr. Noon was simply responding to the objection which is appropriate.

THE COURT: Agreed.

MR. CAMPOLONGO: I always—

THE COURT: Folks—your objection is overruled for the record, Mr. Campolongo. Folks,—never mind. Let's just go back out.

N.T., 10/31/00, at 100-103.

¶ 6 Upon the return to court, recross examination of Ms. Keister resumed and continued only for a few questions before it was completed. After the uneventful ending to the testimony of Ms. Keister, the court recessed for the day's lunch break. Upon return from lunch, the attorneys were called into chambers by the trial judge, where the following on-the-record discussion occurred:

THE COURT: I spent the lunch hour considering whether I should declare a mistrial sua sponte, and if I were to do so, it would be based upon my concern about my ability to preside fairly and impartially or, at the very least, my concern about how my presiding over this matter would be perceived particularly by the jury. I'm—as I sit here, I am uncertain as to what I am going to do.

MR. CAMPOLONGO: Can we go off the record for a moment?

THE COURT: No. This is going to be on the record. There is an obvious issue that needs to be addressed if I were to do that in terms of double jeopardy. The way—based upon what I've read, the way I understand it, is that if I were to declare a mistrial for the reason that I've stated, that the retrial of the Defendants would not be barred by double jeopardy. And there is Pennsylvania Supreme and Superior Court authority to that effect. My concern is that my frustration is palpable to the jury and what impact that may have on their deliberations.

I acknowledge that typically this comes up in the context of the desire to assure a fair trial for the Defendants. Very—very honestly, while I have a concern about that, I also have a concern for a fair trial for the Commonwealth, a fair trial for all parties. There is precedent for this. In fact, the most recent case that I was able to find was a 1998 Superior Court case. I guess, Ms. Shapiro, I'd like to hear from you first, if you have any thoughts on this.

MS. SHAPIRO: I'm taken completely by surprise, Judge. I have no thoughts.

THE COURT: Okay. Mr. Noon? Mr. Benson, anything?

MR. NOON: The only thing that would concern me is the last exchange was bare bone which the records won't reflect. It was pretty animated and pretty dynamic.

THE COURT: Oh, there's no question about it. No question about it. And, in fact, I had the Court Reporter pull a draft of it, and it looks pretty cool and antiseptic, but it certainly was not.

Mr. Campolongo, do you have any thoughts?

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