Com. v. Wymard, D.
1297 WDA 2015
| Pa. Super. Ct. | Nov 7, 2016Background
- In 2010 Wymard was charged with drug and firearms offenses after police searched his home and found drugs, paraphernalia, ammunition, and a firearm.
- At preliminary and pretrial hearings Corporal Konek testified that Wymard said, “last time I got busted I didn’t fess up,” a statement the parties agreed would be prejudicial at trial.
- At trial, on direct examination about the search, Corporal Konek again volunteered that statement, prompting Wymard to move for a mistrial; the court granted the mistrial.
- Wymard moved to dismiss the charges on double jeopardy grounds, alleging the prosecutor intentionally provoked the mistrial or acted in bad faith to secure a retrial.
- The trial court denied the motion but failed at the hearing to make the contemporaneous on-the-record findings required by Pa.R.Crim.P. 587(B) regarding frivolousness and appellate rights; it later issued a written order labeling the motion frivolous.
- The Superior Court accepted review (finding a breakdown in procedure) and considered whether prosecutorial misconduct barred retrial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether prosecutorial misconduct intentionally provoked a mistrial or was undertaken in bad faith so as to bar retrial under double jeopardy | Commonwealth argues the prosecutor did not intentionally provoke a mistrial; the question was open-ended and the witness volunteered the statement | Wymard contends the Commonwealth deliberately elicited/failed to prevent the prejudicial statement to provoke a mistrial or deny a fair trial | Held: No prosecutorial misconduct; statement was volunteered in response to an open question, not intentional provocation or bad-faith subversion of the trial process; retrial not barred |
Key Cases Cited
- Commonwealth v. Orie, 22 A.3d 1021 (Pa. 2011) (pretrial orders denying double jeopardy claims are appealable; frivolousness affects review route)
- Commonwealth v. Graham, 109 A.3d 733 (Pa. Super. 2015) (distinguishes inadvertent prosecutorial error from intentional misconduct that bars retrial)
- Commonwealth v. Greer, 866 A.2d 433 (Pa. Super. 2005) (appellate courts may not consider matters outside the certified record)
- Miranda v. Arizona, 384 U.S. 436 (U.S. 1966) (Miranda warnings and waiver relevant to witness testimony about custodial statements)