Opinion
No. 1249 WDA 2006.
Filed: September 25, 2007.
Appeal from the Order June 27, 2006, In the Court of Common Pleas of Westmoreland County, Criminal Division at No. 3750 C 04.
BEFORE: McCAFFERY, DANIELS and POPOVICH, JJ.
¶ 1 Appellant Robert Walker appeals 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. Upon review, we reverse.
At the outset, we observe that the denial of a pre-trial motion seeking discharge on double jeopardy grounds is "final" and may be appealed immediately. See Commonwealth v. Butler, 552 A.2d 702, 703 n. 2 (Pa.Super. 1988) (citation omitted); see also Commonwealth v. Bolden, 472 Pa. 602, 633, 373 A.2d 90, 105 (1977), (Pursuant to the "exceptional circumstances" exception to the final judgment rule, ". . .denial of a pre-trial application to dismiss an indictment on the ground[s] that the scheduled trial will violate the defendant's right not to be placed twice in jeopardy may be appealed before the new trial is held.").
¶ 2 The relevant facts and procedural background of this case are as follows: Appellant was arrested and charged with aggravated indecent assault, indecent assault, and corruption of minors as the result of an incident which was alleged to have occurred in his swimming pool involving a minor female, aged 10 at the time of the incident. When questioned by treating medical personnel after the incident, the victim 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 the victim to touch his penis while the two were in Appellant's swimming pool. The victim also alleged that Appellant attempted to kiss her on the mouth after they exited the swimming pool and that he touched her breasts. However, at trial, the victim testified that Appellant touched her vagina and anus but that he did so over her bathing suit. Upon the conclusion of the victim's direct testimony, the trial judge called both counsel to sidebar and stated that the victim did not testify that penetration occurred during the incident. After cross-examination, the trial judge stated his concern that the Commonwealth would attempt to prove its case through the use of hearsay evidence.
To prove the crime of aggravated indecent assault occurred, the Commonwealth must first prove that the defendant penetrated, however slightly, the genitals or anus of the victim with a part of the defendant's body for any purpose other than good faith medical, hygienic, or law enforcement procedures. See 18 Pa.C.S.A. § 3125(a).
¶ 3 Following his statement of concern, the trial judge conducted a discussion with counsel regarding the introduction of the victim's statements to treating medical personnel regarding penetration through their testimony.
The trial judge ordered the parties to research the issue and called a lunch recess for the jury. Prior to the jury's return, the trial judge conducted argument in camera regarding the issue of the admissibility of the victim's statements regarding penetration to treating medical personnel. Appellant asserted that the statements were inadmissible hearsay evidence because, in his view, the majority of the statements that the victim 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). At the conclusion of argument, the trial judge permitted the Commonwealth to question the treating medical personnel about the victim's statements regarding penetration.
¶ 4 After the jury returned to the courtroom, the Commonwealth conducted its examination of the victim's mother, who testified that the victim told her that Appellant ". . . touched her in her vagina and tried to kiss [the victim], and that's when I dialed 911." Thereafter, the Commonwealth conducted its examination of several treating medical personnel, who testified that the victim told them that Appellant did, in fact, penetrate her vagina and anus.
¶ 5 The trial continued to the next day, whereupon Appellant objected to the testimony of the responding ambulance personnel (who were to be called that day on direct examination), 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 the victim by the extrinsic evidence of her prior inconsistent statements regarding penetration. Consequently, Appellant contended that the Commonwealth was obligated to follow the procedure set forth in Pa.R.E. 613(b) (regarding impeachment of a witness through extrinsic evidence of an inconsistent statement) to introduce the medical personnel's testimony with respect to the victim's statements regarding penetration. After lengthy argument, the trial judge agreed with Appellant's assertion, and he concluded that the foundational requirements of Pa.R.E. 613(b) had to be satisfied for the victim's statements to medical personnel to be treated as substantive evidence. Likewise, the trial judge also found that, despite the victim'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). Thereafter, the Commonwealth requested that the trial judge permit the Commonwealth to recall the victim to lay the foundation required for admission of the statements in conformity with the trial judge's ruling. Fearing a mistrial, Appellant suggested that, although the Commonwealth had not yet rested, the trial judge should quash or sever the aggravated indecent assault charges. 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 trial judge], imposed by the [trial judge] out of a need to simply separate this case from this jury because of the utter impossibility of [the trial judge] 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 trial 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 [the aggravated indecent assault] 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['ve] got 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, 2/8/2006, at 285-288.
¶ 6 After the declaration of mistrial, the trial court ordered the court administrator to place the case on the docket for a new trial. Appellant, in turn, filed an omnibus pre-trial motion containing both a motion to dismiss pursuant to his federal and state constitutional rights against double jeopardy and a petition for a writ of habeas corpus asserting that the Commonwealth failed to present a prima facie case at the preliminary hearing. The trial court denied Appellant's motion to dismiss on double jeopardy grounds, but it did not address his petition for a writ of habeas corpus.
¶ 7 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 within 14 days of the date of its order, and he complied. Thereafter, the trial court authored an opinion that addressed the issue presented in Appellant's concise statement.
¶ 8 Appellant presents the following issue for our review:
Whether the trial [judge'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.
¶ 9 We summarized our standard of review regarding appeals from the denial of a motion to dismiss on double jeopardy grounds following declaration of a mistrial sua sponte in Commonwealth v. Kelly, 797 A.2d 925 (Pa.Super. 2002), as follows:
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, 721 A.2d 332, 334 (Pa.Super. 1998) ( citing Commonwealth v. Gains, [ 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 Pennsylvania Constitution will bar retrial. Leister, 712 A.2d at 335 ( citing Commonwealth ex rel. Walton v. Aytch, 466 Pa. 172, 352 A.2d 4 [(1976)].
In Commonwealth v. Diehl, 532 Pa. 214 [216-17], 615 A.2d 690 [, 691 (1992)], our Supreme Court, when considering whether manifest necessity for the trial court's sua sponte declaration of a mistrial existed, stated:
Since Justice Story's 1824 opinion in United States v. Perez, 22 U.S. (9 Wheat.) 579, 580, 6 L. Ed. 165, it has been well settled 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 where there is a manifest necessity for the mistrial, or the ends of public justice would otherwise be defeated. Commonwealth v. Bartolomucci, 468 Pa. 338, 362 A.2d 234 (1976) [( citing United States v. Dinitz, 424 U.S. 600, 96 S. Ct. 1075, 47 L. Ed. 2d 267 (1976)]. It is important to note that in determining whether the circumstances surrounding the declaration of a mistrial constitute manifest necessity, we apply the standards established by both Pennsylvania and federal decisions. Commonwealth v. Mitchell, 488 Pa. 75, 410 A.2d 1232 (1980).
Pennsylvania Rule of Criminal Procedure 1118(b) provides that:
When an event prejudicial to the defendant occurs during trial only the defendant may move for a mistrial; the motion shall be made when the event is disclosed. Otherwise, the trial judge may declare a mistrial only for reasons of manifest necessity.
In accordance with the scope of our review, we must take into consideration all the circumstances when passing upon the propriety of a declaration of mistrial by the trial court. The determination by a trial court to declare a mistrial after jeopardy has attached is not one to be lightly undertaken, since the defendant has a substantial interest in having his fate determined by the jury first impaneled. Commonwealth v. Stewart, 456 Pa. 447, 317 A.2d 616, 619 (1974) [( citing United States v. Jorn, 400 U.S. 470, 91 S. Ct. 547, 27 L. Ed. 2d 543 (1971)]. Additionally, failure to consider if there are less drastic alternatives to a mistrial creates doubt about the propriety of the exercise of the trial judge's discretion and is grounds for barring retrial because it indicates that the court failed to properly consider the defendant's significant interest in whether or not to take the case from the jury. Commonwealth ex rel. Walton v. Aytch, 466 Pa. 172, 352 A.2d 4 (1976). Finally, it is well established that any doubt relative to the existence of manifest necessity should be resolved in favor of the defendant. Bartolomucci, 468 Pa. at 347, 362 A.2d 234.
We do not apply a mechanical formula in determining whether a trial court had a manifest need to declare a mistrial. "Rather, `varying and often unique situations arise during the course of a criminal trial. . . [and] the broad discretion reserved to the trial judge in such circumstances has been consistently reiterated. . . .'" Leister, 721 A.2d at 335 [( quoting Illinois v. Somerville, 410 U.S. 458, 462, 93 S. Ct. 1066, 1069, 35 L. Ed. 2d 425 (1973))]; Commonwealth v. Morris, 773 A.2d 192 (Pa.Super. 2001).
Kelly, 797 A.2d at 936-37.
Parenthetically, we note that, as the jury had been empanelled and sworn, jeopardy attached in this case. See Commonwealth v. Sullens, 533 Pa. 99, 104, 619 A.2d 1349, 1352 (1992).
¶ 10 We begin with the observation that we will not review the soundness of the trial court's evidentiary rulings because they are not truly at issue in this case. This Court is an error-correcting court; it is not an error-finding court. See Commonwealth v. Wood, 883 A.2d 740, 748 (Pa.Super. 2003) (citation omitted). Accordingly, we will follow the logic of the trial court's evidentiary rulings in our determination of whether a manifest necessity existed for the trial court to declare a mistrial sua sponte.
¶ 11 As indicated above, the trial court reversed its previous ruling regarding the testimony of the treating medical personnel regarding the victim's statements to them about penetration, and it concluded that the Commonwealth should have followed the procedures set forth at Pa.R.E. 613(b) to impeach the victim's testimony.
¶ 12 Pennsylvania Rule of Evidence 613(b) states, in pertinent part, the following:
Extrinsic evidence of prior inconsistent statements. Unless the interests of justice otherwise require, extrinsic evidence of a prior inconsistent statement by a witness is admissible only if, during the examination of the witness,
(1) the statement, if written, is shown to, or if not written, its contents are disclosed to, the witness;
(2) the witness is given an opportunity to explain or deny the making of the statement; and
(3) the opposing party is given an opportunity to question the witness.
(emphasis added).
¶ 13 The record reveals that both the Commonwealth and Appellant questioned the victim as to whether she remembered what she said to treating medical personnel, and she stated that she did not remember what she said to the treating medical personnel. Thereafter, as indicated above, the trial court permitted several treating medical personnel to testify about the statements the victim made to them regarding penetration, prior to reversing its decision regarding the admissibility of the statements.
¶ 14 While we make no decision regarding the correctness of the trial judge's decision to apply Pa.R.E. 613(b), we note that the Commonwealth asserted to the trial court that the fact of the victim's age and the fact that she testified on both direct examination and cross examination that she could not recall her statements each weighed in favor of a relaxation of the rule to further the interests of justice. See N.T. trial, 2/8/2006, at 257. Given that both the Commonwealth and Appellant had the opportunity to examine the victim regarding her conversations with the treating medical personnel, and, given that several treating medical personnel had already testified on this subject, we conclude that the interests of justice weighed in favor of the trial judge relaxing the Commonwealth's strict compliance with the Rule's requirements, as opposed to the far more drastic option of declaring a mistrial sua sponte. This is especially true, since neither Appellant nor the Commonwealth sought a mistrial at that stage of the proceedings. As such, we are constrained to conclude that a manifest necessity did not exist such that the trial judge was justified in declaring a mistrial sua sponte. See, e.g., Kelly, 797 A.2d 936-37 (trial judge may declare mistrial sua sponte only on the basis of manifest necessity).
¶ 15 Because we conclude that the trial judge lacked a manifest necessity to declare a mistrial, we are constrained to conclude that it abused its discretion when it denied Appellant's motion to dismiss on double jeopardy grounds. See Kelly, 797 A.2d at 942. Consequently, we must reverse the trial court's order and remand the case with the instruction that it discharge Appellant. Id., 797 A.2d at 942. We recognize that our ruling today removes the possibility that serious charges of a sexual nature will ever be resolved in a court of law. Likewise, we are well aware of the complexity of the issues presented in this case, and the learned trial judge's attempts to resolve these issues properly and impartially. However, we do not believe that Appellant's valued constitutional right to have his trial completed before the first jury empanelled should have been subordinated to rigid adherence to a Rule of Evidence, especially where the Rule itself permits relaxation of its application in the interests of justice. See Pa.R.E. 613(b). For that reason, we reiterate that there was simply no manifest necessity for the trial judge to declare a mistrial sua sponte. See Pa.R.E. 613(b). As we recognized in Kelly, "It is absolutely crucial to remember that when reviewing the grant of a mistrial sua sponte, `we resolve any doubt' in favor of the liberty of the citizen, rather than exercise [of] what could be an unlimited, uncertain, and arbitrary judicial discretion." Kelly, 797 A.2d at 942 (citation omitted).
¶ 16 Order reversed. Case remanded with instructions. Jurisdiction relinquished.