Commonwealth v. Potter

• Decision Date: 23 March 1978
• Citation: 386 A.2d 918,478 Pa. 251
• Parties: COMMONWEALTH of Pennsylvania v. Larry POTTER, Appellant.
• Court: Pennsylvania Supreme Court

386 A.2d 918

478 Pa. 251

COMMONWEALTH of Pennsylvania v. Larry POTTER, Appellant.

Supreme Court of Pennsylvania.

March 23, 1978

Argued Nov. 21, 1975.

Reargument Denied May 8, 1978.

Martin Heller, Philadelphia, for appellant.

F Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst Dist. Atty., Chief, Appeals Div., Abraham J. Gafni, Deputy Dist. Atty., Philadelphia, for appellee.

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

OPINION

PER CURIAM.

The judgment of sentence is affirmed by an equally divided Court.

POMEROY, J., files an opinion in support of affirmance, in which EAGEN, C. J., and O'BRIEN, J., join.

ROBERTS, NIX and MANDERINO, JJ., filed separate opinions in support of reversal.

JONES, former C. J., did not participate in the consideration or decision of this case.

POMEROY, Justice, in support of affirmance.

Appellant Larry Potter has been tried three times for the murder of one Isaac Sinnamon during a June, 1970 attempt to rob the victim's neighborhood grocery store. ^[1] Each trial has resulted in Potter's conviction of murder in the first degree, ^[2] for which he was sentenced to a term of life imprisonment.

The central issue presented by this appeal is whether Potter's third trial for this offense was barred by the Double Jeopardy Clause of the Constitution of the United States. ^[3] It is our view that it was not, and also that no reversible error occurred in the third trial. We would therefore affirm the judgment of sentence.

I.

We must first consider whether the Double Jeopardy Clause is implicated in the proceedings that have been had in this case. The answer to this depends largely on the interests at stake in double jeopardy questions as those interests have been developed and explained by the case law.

A double jeopardy claim is most commonly raised when a mistrial has been declared over the objection of the defendant. In such cases, the constitutional permissibility of a new trial depends on whether there was "manifest necessity" for the declaration. United States v. Perez, 22 U.S. (9 Wheat.) 579, 580, 6 L.Ed. 165, 166 (1824); see, e. g., Illinois v. Somerville, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973); Commonwealth v. Brown, 451 Pa. 395, 301 A.2d 876 (1973); Commonwealth v. Lauria, 450 Pa. 72, 297 A.2d 906 (1972). The "manifest necessity" standard exists because the defendant has a "valued right to have his trial completed by a particular tribunal." Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974, 978 (1949). As Mr. Justice Harlan explained: "If that right to go to a particular tribunal is valued, it is because . . . the defendant has a significant interest in the decision whether or not to take the case from the jury when circumstances occur which might be thought to warrant a declaration of mistrial." United States v. Jorn, 400 U.S. 470, 485, 91 S.Ct. 547, 557, 27 L.Ed.2d 543, 556 (1971) (plurality opinion).

This type of double jeopardy question, however, is not present in the case at bar. In appellant's second trial there was no declaration of a mistrial over appellant's objection; rather, appellant himself several times moved for a mistrial, and the motions were denied. It was later determined by the lower court en banc that a new trial was necessary because appellant's constitutional right to a fair trial, e. g., Commonwealth v. Thompson, 444 Pa. 312, 281 A.2d 856 (1971), had been transgressed. When a conviction is set aside because of trial error, as appellant's second conviction was, the usual rule, sometimes referred to as "the Ball principle," is that the Double Jeopardy Clause is not a bar to reprosecution. E. g., United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896); United States v. Tateo, 377 U.S. 463, 84 S.Ct. 1587, 12 L.Ed.2d 448 (1964); Forman v. United States, 361 U.S. 416, 80 S.Ct. 481, 4 L.Ed.2d 412 (1960). See also Commonwealth v. Melton, 406 Pa. 343, 178 A.2d 728 (1962); Commonwealth v. Scoleri, 415 Pa. 218, 344-46, 202 A.2d 521 (1964); Commonwealth ex rel. Patrick v. Banmiller, 398 Pa. 163, 164, 157 A.2d 214 (1960). Similarly, when a mistrial is granted at the defendant's request, there is usually no bar to reprosecution. See, e. g., Commonwealth v. Barille, 270 Pa. 388, 392-94, 113 A. 663 (1921).

To be sure, the Double Jeopardy Clause

"represents a constitutional policy of finality for the defendant's benefit in . . . criminal proceedings . . . (S)ociety's awareness of the heavy personal strain which a criminal trial represents for the individual defendant is manifested in the willingness to limit the Government to a single criminal proceeding to vindicate its very vital interest in the enforcement of criminal laws." United States v. Jorn, supra, 400 U.S. at 479, 91 S.Ct. at 554, 27 L.Ed.2d at 553.

But the Ball principle is nevertheless well established. Thus it is that the Double Jeopardy Clause does not require that only one trial of a defendant be allowed, and that if that one trial contains error, the defendant may not again be tried. Among the explanations that have been proffered for this rule are that the new trial is part of one continuous "single criminal proceeding," United States v. Jorn, supra, 400 U.S., at 479, 91 S.Ct. 547, and that the double jeopardy bar does not arise until there is a sentence that is no longer subject to attack. See Commonwealth v. Melton, supra, at 347, 178 A.2d 728. However that may be, societal interests militate against a literalistic reading of the Double Jeopardy Clause. As the Supreme Court of the United States has put it:

"While different theories have been advanced to support the permissibility of retrial, of greater importance than the conceptual abstractions employed to explain the Ball principle are the implications of that principle for the sound administration of justice. Corresponding to the right of the defendant to be given a fair trial is the societal interest in punishing one whose guilt is clear after he has obtained such a trial. It would be a high price indeed for society to pay were every accused granted immunity from punishment because of any defect sufficient to constitute reversible error in the proceedings leading to conviction." United States v. Tateo, 377 U.S. 463, 466, 84 S.Ct. 1587, 1589, 12 L.Ed.2d 448, 451 (1964).

Reprosecution is not, however, permitted as a matter of course in any case in which a mistrial is ordered or a new trial granted at the behest of the defendant. We have noted the interests implicated by the double jeopardy prohibition, viz., the defendant's right to an adjudication by a particular tribunal, his right not to be burdened with the anxiety and expense of repeated trials, his right to a fair trial, and society's interest in the punishment of those properly found guilty. A double jeopardy claim cannot be properly disposed of by analyzing any one of these factors to the exclusion of others; a balancing of the interests at stake is essential. See generally Schulhofer, Jeopardy and Mistrials, 125 U.Pa.L.Rev. 449 (1977). In some circumstances, a defendant's fair trial interests may have been so unjustifiably damaged at a trial that he should not be subjected to another trial even though it was at the defendant's own request that another trial was granted. Here the appellant contends that the conduct of the prosecution at his second trial presents such a case. But before discussing that contention, it is necessary to consider a subsidiary question posed by this case.

As we have noted, appellant's mistrial motions during the course of the second trial were denied, but were later deemed meritorious by the court en banc, with the result that a new trial was awarded. The question then arises whether the fact that a new trial was the result of a decision by a reviewing court rather than the declaration of a mistrial by the trial judge requires that the exceptions to the Ball principle cannot be considered. We think not; a distinction between granting a new trial at the urging of a defendant and ordering a mistrial at his request is without significance for double jeopardy purposes. Recent cases in the Supreme Court of the United States have emphasized that in the field of federal criminal practice the applicability of double jeopardy analysis is not dependent on nice procedural distinctions. Thus in Lee v. United States, 432 U.S 23, 97 S.Ct. 2141, 53 L.Ed.2d 80 (1977), wherein the district court had characterized its action as a "dismissal of the information," it was held that a claim of double jeopardy "does not turn on whether the District Court labels its action a 'dismissal' or a 'declaration of mistrial,' " and that "the order entered by the District Court was functionally indistinguishable from a declaration of mistrial." Id. at 30, 97 S.Ct. at 2146, 53 L.Ed.2d at 87. See also United States v. Martin Linen Supply Co., 430 U.S. 564, 97 S.Ct. 1349, 51 L.Ed.2d 642 (1977); United States v. Jenkins, 420 U.S. 358, 95 S.Ct. 1006, 43 L.Ed.2d 250 (1975). Although we are not here presented with the problems of characterization of trial rulings that existed in the cited cases, we think that a functional analysis of the type employed in those cases is equally appropriate to the case at bar. Were the permissibility of reprosecution to be governed by a more relaxed standard where a verdict is set aside post-trial than where a mistrial is granted on motion during trial, trial judges might be led "to reject the most meritorious mistrial motion . . . and to require, instead, that the trial proceed to its conclusion despite a legitimate claim of seriously prejudicial error." United States v. Dinitz, 424 U.S. 600, 610, 96 S.Ct. 1075, 1081, 47 L.Ed.2d 267, 275 (1976). Accordingly, we conclude both that we...