Com. v. Walker, No. 1249 WDA 2006.

• Decision Date: 07 August 2008
• Docket Number: No. 1249 WDA 2006.
• Citation: 2008 PA Super 182,954 A.2d 1249
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Robert WALKER, Appellant.
• Court: Pennsylvania Superior Court

954 A.2d 1249

2008 PA Super 182

COMMONWEALTH of Pennsylvania, Appellee v. Robert WALKER, Appellant.

No. 1249 WDA 2006.

Superior Court of Pennsylvania.

Argued March 12, 2008.

Filed August 7, 2008.

David A. Regoli, New Kensington, for appellant.

Judith P. Petrush, Assistant District Attorney, Greensburg, for Commonwealth, appellee.

BEFORE: FORD ELLIOTT, P.J., STEVENS, ORIE MELVIN, LALLY-GREEN, KLEIN, BENDER, BOWES, GANTMAN, and SHOGAN, JJ.

OPINION BY SHOGAN, J.:

¶ 1 Appellant, Robert Walker, appeals from the order entered on June 27, 2006, in the Court of Common Pleas of Westmoreland County that denied his omnibus pre-trial motion to dismiss on the grounds of double jeopardy.¹ Upon review, we affirm.

¶ 2 In the criminal information filed on October 4, 2004, Appellant, who was twenty-eight years old at the time, was charged with aggravated indecent assault where the victim is less than thirteen years of age (18 Pa.C.S.A. § 3125(a)(7)), indecent assault where the victim is less than thirteen years of age (18 Pa.C.S.A. § 3126(a)(7)), and corruption of minors (18 Pa.C.S.A. § 6301(a)(1)).² These charges resulted from an incident that was alleged to have occurred in Appellant's swimming pool on June 29, 2004, involving I.B., a ten-year-old female.³

¶ 3 When questioned by treating medical personnel after the incident, I.B. stated, albeit in a child's verbiage, that Appellant digitally penetrated her vagina, that he penetrated her anus with his penis, and that he forced I.B. to touch his penis while the two were in Appellant's swimming pool. I.B. also alleged that Appellant attempted to kiss her on the mouth after they exited the swimming pool and that he touched her chest.

¶ 4 However, at trial, I.B. testified that Appellant touched her vagina and anus but that the touching was done over her bathing suit. Upon the conclusion of I.B.'s direct testimony, the trial judge called both counsel to sidebar and stated that I.B. did not testify that penetration occurred during the incident.⁴ After cross-examination, the trial judge stated his concern that the Commonwealth would attempt to prove its case through hearsay. N.T. Trial, 2/7/06-2/8/06, at 81.

¶ 5 Following his statement of concern, the trial judge conducted a discussion with counsel regarding the introduction of I.B.'s statements to treating medical personnel about penetration through their testimony. Id. at 81-84. The trial judge ordered the parties to research the issue and called a lunch recess for the jury. Id. at 85-90. Prior to the jury's return, the trial judge heard argument in camera concerning the issue of the admissibility of I.B.'s statements about penetration to treating medical personnel. Appellant's counsel argued that the statements were inadmissible hearsay because, in his view, the majority of the statements that I.B. made to medical personnel were not made for purposes of medical diagnosis and treatment. In response, the Commonwealth asserted that these statements were for the purpose of medical treatment and should be admitted as substantive evidence. See Pa.R.E. 803(4).⁵ At the conclusion of argument the trial judge permitted the Commonwealth to question the treating medical personnel about I.B.'s statements regarding penetration. N.T. Trial, 2/7/06-2/8/06, at 127-183.

¶ 6 After the jury returned to the courtroom, the Commonwealth conducted its examination of I.B.'s mother, who testified that I.B. told her that Appellant "... touched her in her vagina and tried to kiss her, and that's when I dialed 911." Id. at 143. Thereafter, the Commonwealth conducted its examination of several treating medical personnel, who testified that I.B. told them that Appellant did, in fact, penetrate her vargina and anus.

¶ 7 The trial continued the next day, whereupon Appellant objected to the testimony of the medical personnel asserting that, regardless of Pa.R.E. 803(4), the effect of the medical personnel's testimony, including the testimony offered the previous day, was to impeach I.B. through the extrinsic evidence of her prior inconsistent statements about vaginal and anal penetration. Consequently, Appellant contended that the Commonwealth was obligated to follow the procedure set forth in Pa.R.E. 613(b) (concerning impeachment of a witness through extrinsic evidence of an inconsistent statement) to introduce the medical personnel's testimony with respect to I.B.'s statements regarding penetration.⁶

¶ 8 After lengthy argument, the trial judge agreed with Appellant's assertion and concluded that the foundational requirements of Pa.R.E. 613(b) had to be satisfied before any of I.B.'s statements to medical personnel could be treated as substantive evidence. Likewise, the trial judge also found that, despite I.B.'s testimony that she did not remember speaking to medical personnel, there was an inadequate foundation for admission of those statements pursuant to Pa.R.E. 613(b).

¶ 9 Thereafter, the Commonwealth requested that the trial judge permit the Commonwealth to recall I.B. to lay the foundation required for admission of the statements in conformity with the trial judge's ruling. N.T. Trial, 2/7/06-2/8/06, at 261. Appellant objected to I.B. being recalled and suggested that, although the Commonwealth had not yet rested, the trial judge should quash or sever the aggravated indecent assault charges. Id. at 284-285. The trial judge denied both the Commonwealth's and Appellant's requests and declared a mistrial sua sponte, stating the following:

There is going to be a mistrial granted by the Court, imposed by the Court out of a need to simply separate this case from this jury because of the utter impossibility of this Court explaining things and instructing this jury adequately so that they can fairly deliberate to a verdict in the case. There's way too much that has been testified that—that I can't instruct them to ignore at this point in time. So, that's where we are.

I'm going to grant—not grant the mistrial, because nobody's really making the motion for the mistrial. I'm going to say this case is a mistrial, okay, so that the onus is on me in that circumstance.

[The Commonwealth], I think, stated it correctly to a point. The bottom line is that I'm the person who's supposed to know the law, whether you argued all of what was available or not, you finally came in this morning and argued something that convinced [me] that I had made an erroneous ruling yesterday, but by that time, we'd heard way too much. It's my responsibility at this point in time to either be able to clear that up with the jury, to instruct the jury adequately as to how they can disregard all of that, or to simply admit the failure of or the inability of the Court to be able to do that and declare the mistrial, and that's what I'm going to do, I'm declaring a mistrial.

[The Commonwealth] hasn't rested her case at the point in which I make this determination, so I can't make a ruling. There's no procedural means by which I can make a ruling about those charges, so they-they go back to the drawing board[;] you go back to the drawing board. It's what I meant to avoid if we could today for both the Commonwealth's victim and your defendant, but if you guys can't seem to get to that point, then you can't get to that point.

* * *

You have to deal with the realities of the situation, but, no, we can't just continue to attenuate the process. I [have] a jury in there, I've got to let them go. It's that simple[.]

* * *

I'm going to direct that the case be—I'm declaring a mistrial under [Pa. R.Crim.P.] 605(B), and I'm declaring that there's manifest necessity under the case law for me to declare a mistrial under the 806—of 605(B) of the Rules of Criminal Procedure.

I simply cannot in any way—you know, I'm trying to think this through back here. I just can't go back and unring all the bells that have been rung at this point in time with this jury, at this point in time, as far as instructions, it's just impossible.

N.T. Trial, 2/8/06, at 285-288.

¶ 10 After the declaration of a mistrial, the trial court ordered the court administrator to place the case on the docket for a new trial. Appellant subsequently filed an omnibus pre-trial motion to dismiss pursuant to his federal and state constitutional rights against double jeopardy. The trial court denied Appellant's motion to dismiss.

¶ 11 Appellant filed a timely notice of appeal to this Court from the trial court's denial of his motion to dismiss on double jeopardy grounds. The trial court ordered Appellant to file a concise statement of matters complained of on appeal pursuant to Pa.R.A.P.1925(b) within 14 days of the date of its order, and Appellant complied. Thereafter, the trial court authored an opinion that addressed the issue presented in Appellant's concise statement.

¶ 12 Appellant presents the following issue for our review:

WHETHER THE TRIAL COURT'S SUA SPONTE DECLARATION OF A MISTRIAL, CITING A MANIFEST NECESSITY AS THE REASON WAS A VIOLATION OF [APPELLANT'S] CONSTITUTIONAL DOUBLE JEOPARDY RIGHTS AND SHOULD A RETRIAL

BY THE COMMONWEALTH BE BARRED?

Appellant's Brief at vi.

¶ 13 Our review regarding appeals from the denial of a motion to dismiss on double jeopardy grounds following declaration of a mistrial sua sponte was summarized by a panel of this Court in Commonwealth v. Kelly, 797 A.2d 925 (Pa.Super.2002):

It is within a trial judge's discretion to declare a mistrial sua sponte upon the showing of manifest necessity, and absent an abuse of that discretion, we will not disturb his or her decision. Commonwealth v. Leister, 712 A.2d 332, 334 (Pa.Super.1998) (citing Commonwealth v. Gains, [383 Pa.Super. 208, 556 A.2d 870] (Pa.Super.1989)); Pa.R.Crim.P. 1118(b) (amended and renumbered as Rule 605, effective April 1, 2001). Where there exists manifest necessity for a trial judge to declare a mistrial sua sponte, neither the Fifth Amendment to the United States Constitution, nor Article I, § 10 of the...