Lead Opinion
OPINION BY
Appellant, the Commonwealth of Pennsylvania, appeals from the order entered in the Venango County Court of Common Pleas, which granted Appellee, David W. Anderson’s motion to dismiss on double jeopardy grounds, based on prosecutorial misconduct. The Commonwealth asks us to determine whether the trial court erred in dismissing the case pursuant to the double jeopardy clause of the Pennsylvania Constitution, where the prosecutorial misconduct occurred after remand for a new trial, but before the retrial. We hold pros-ecutorial misconduct occurring before a retrial can serve to bar the retrial, under the double jeopardy clause of the Pennsylvania Constitution. We further hold the trial court properly granted Appellee’s motion to dismiss, because the prosecutor intentionally committed the misconduct to prejudice Appellee to the point of denying him a fair trial. Accordingly, we affirm the order granting Appellee’s motion to dismiss.
This Court previously set forth the relevant facts of this appeal as follows:
[Appellee] was employed as a Rеsidential Service Aide (“RSA”), á caregiver, at the Polk Center State Hospital, a facility that houses mentally retarded patients. D.M., T.C., and J.L. were residents of the hospital and function at approximate mental age levels ranging from six to eight years old. [Appellee] cared for the three residents at various times throughout his employment at the hospital. The following sets out the claims of each resident.
1. The incidents are:
DM.
On or about March 1, 2000, Robert Lake, a coworker of [Appellee], observed [Appellee] with his pants down and buttocks exposed in the presence of D.M. in an abandoned cottage at the facility. Lake reported what he saw and the hospital began an internal investigation.
T.C.
During the investigation, another coworker of [Appellee], Kelly McCullon, reported an incident she saw in February 2000. McCullon observed [Appellee] in a restroom with resident T.C., with his shorts lowered and T.C.’s head positioned alongside [Appellee’s] legs.When [Appellee] realized McCullon had entered the restroom, he appeared startled and immediately raised his trousers. T.C. does not require assistance in the bathroom because he is totally independent. A few days after the incident, [Appellee] approached McCullon and stated he was worried about something somebody may have seen, adding that seeing something is one thing and proving it is another.
T.C. reported to RSA McCullon that [Appellee] performed unwanted sexual acts with him. T.C. stated that [Appel-lee] rubbed his penis in the bathroom and T.C. placed his mouth on [Appel-lee’s] penis at Polk Center. Afterwards, [Appellee] warned T.C. not to tell anyone what happened or he would get in trouble.
J.L.
The investigation continued and resident J.L. came forward to report misconduct by [Appellee]. J.L. reported that [Ap-pellee] performed oral sex upon him and masturbated him on several occasions at the facility’s swimming pool. In addition, J.L. revealed that while on a Special Olympics trip, [Appellee] performed oral sex on him in a Somerset County hotel. J.L. stated he did not reveal any of the incidents because [Appellee] threatened to beat him up if he did. The events at the hotel were corroborated by another Polk Center resident, Henry Garner, who was staying in the room with J.L. and [Appellee], Garner observed J.L. playing with [Appellee’s] penis and was reluctant to report the act because of threats made by [Appellee].
2. The Police Investigation and the Trial
In March 2000, following the internal investigation, Polk Center State Hospital referred the case to the police. Pennsylvania State Trooper Brian Mason was assigned as the investigating officer. Trooper Mason interviewed [Appellee] about the act that had been reported by [Appellee’s] coworker Robert Lake. [Appellee] allegedly admitted to the act of indecent assault on resident D.M. On April 28, 2000, after the police reviewed the internal investigation of the hospital and interviewed the alleged victims, the Venango County district attorney’s office filed criminal charges against [Appellee] for multiple counts of involuntary deviate sexual intercourse (“IDSI”) and indecent assault involving these three alleged victims.
On June 30, 2000, the Honorable District Justice Douglas Gerwick ruled that resident D.M. was incompetent to testify and dismissed the charges involving him. On October 20, 2000, a second preliminary hearing was held and District Justice Gerwick again held that D.M. was incompetent to testify. On January 25, 2001, the Commonwealth re-filed charges involving resident D.M. and a preliminary hearing was held on January 31, 2001. At the hearing, the district justice found D.M. to be competent to testify and the Commonwealth was allowed to proceed on charges involving D.M.
The procedure regarding residents J.L. and T.C. is as follows. On June 30, 2000, District Justice Gerwick allowed the charges involving these residents to go forward. On February 1, 2001, charges involving all the residents (D.M., T.C. and J.L.) were consolidated ... and trial was set for February 5, 2001.
On February 5, 2001, the day trial began, [Appellee’s] motion under Rule 315 for dismissal of charges involving D.M. was denied. On February 13, 2001, the jury found [Appellee] guilty of indecentassault but not of IDSI from the incident involving D.M. The jury was deadlocked as to the charges involving J.L. and T.C. On March 26, 2001, [Appellee] was sentenced to incarceration of three months to 24 months less one day in the Venango County Jail for the conviction of indecent assault on D.M.
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[Appellee] was retried on the charges involving residents J.L. and T.C. — the charges on which the jury had dеadlocked in the first trial. Following the second trial, on September 17, 2001, the jury found [Appellee] guilty of one count of indecent assault on T.C. On the charges involving J.L., the jury found [Appellee] guilty of IDSI for the incident in Somerset County, as well as finding [Appellee] guilty of indecent assault at both the hospital and in Somerset. On January 24, 2002, the court sentenced [Appellee] to five to 15 years’ imprisonment for the IDSI conviction and six years of probation for the three counts of indecent assault.
[Appellee] filed timely notices of appeal from both judgments of sentence.
Commonwealth v. Anderson, No. 746 WDA 2001, unpublished memorandum at 2-6,
On appeal, this Court reversed the conviction related to D.M., concluding Appel-lee had “suffered prejudice by the eleventh-hour amendment” of the charges. Id. at 10. Accordingly, this Court discharged Appellee with respect to D.M. This Court also reversed and remanded for a new trial on the charges related to T.C. and J.L. Specifically, this Court determined the prosecutor had engaged in misconduct during his closing argument, utilizing intemperate language and making a hand gesturе to simulate masturbation in the direction of Appellee and defense counsel. Nevertheless, this Court declined to discharge the matter on double jeopardy grounds:
Our review of the record reflects no justification for the behavior of the prosecutor during his closing argument. The only purpose of the conduct appears to be to prejudice the jury, forming in their minds a fixed bias and hostility toward [Appellee] so that the jury could not weigh the evidence objectively and render a true verdict. Such conduct, from the record, appears to have been undertaken intentionally to prejudice [Appellee] to the point of denying him a fair trial. If so, the double jeopardy clause of the Pennsylvania Constitution would bar retrial of any charges prosecuted at the second trial. [Commonwealth v. Smith,532 Pa. 177 ,615 A.2d 321 (1992) ]. On the other hand, we do not have before us the egregious circumstances of Smith.... While the prosecutor’s behavior in [Appellee’s] case was outrageous, it did not rise to the level of the intentional prejudice of the prosecutor in Smith. Thus, we reverse and remand for a new trial.
Id. at 14-15. The Commonwealth filed a petition for аllowance of appeal, which our Supreme Court denied on February 22, 2005. Commonwealth v. Anderson,
Upon remand, the court conducted jury selection on September 6, 2005. Immediately following jury selection, the court conducted a competency hearing to reevaluate T.C. and J.L. On September 8, 2005, the court found T.C. and J.L. were incompetent to testify, and it dismissed the jury. The Commonwealth timely filed a notice of appeal on October 6, 2005. On appeal, this Court determined the trial court had
On September 26, 2007, Appellee filed a motion for another competency hearing. In it, Appellee alleged “the Commonwealth, by way of its Assistant District Attorney, has had substantial meetings with [the] witnesses prior to each hearing in which the witnesses testified.” (Motion for Competency Hearing, filed 9/26/07, at 5). Appellee argued the prosecutor used these meetings to “coach” the witnesses. Moreover, at a 2005 competency hearing, the proseсutor stated, “I can get [T.C.] to say anything.” (Id at 6). Thus, Appellee requested a new competency hearing “to test or challenge each witness’ independent ability to recall the alleged events on his own....” (Id) (emphasis in original). Appellee further requested that the court prohibit the Commonwealth from interviewing the witnesses prior to the competency hearing, “to minimize the ever-present issue of taint” and “to make a valid determination of each witness’ independent ability to recall the alleged events.” (Id. at 7). The court granted Appellee’s motion and scheduled the competency hearing to occur at the pretrial conference.
On October 29, 2007, the court issued an additional order, placing the following restrictions on the prosecutor’s ability to interview the witnesses prior to the competency hearing:
In preparation for [the competency] hearing, the motion of the defense counsel for some form of protection concerning “taint” is granted. The court sees no impediment to the Commonwealth if we order and we do hereby order that the [prosecutor] when interviewing the four stated witnesses prior to the competency hearing, will have with him preferably [the psychologist from the Polk Center], who has been a counselor for these witnesses, but if not her some other responsible person at Polk Center, such as an RSA. Interviews will not be conducted unless such person is present. Counsel for the Commonwealth will keep a log showing when the interviews occurred and who was present. This is only up to the point of the competency hearing.
(Order, entered 10/29/07, at 2). The court also ordered the Commonwealth to deliver to defense counsel any assessments
On November 8, 2007, the court scheduled the competency hearing for February 1, 2008. On February 1, 2008, the court continued the matter, because an ice storm prevented T.C. and J.L. from attending the hearing. The court rescheduled the hearing for April 4, 2008. The court also noted that the October 29, 2007 order “shall remain in full force and effect until further Order of Court.” (Order, dated 2/1/08, at 2). Following an additional continuance, the court conducted the competency hearing on June 6, 2008.
At that hearing, it was discovered that [the prosecutor] not only did not comply with any of the above referenced requirements contained in [the court’s] October 29, 2007 Order, he also committedegregious prosecutorial misconduct which was designed to subvert the truth-seeking process and deny [Appellee] of his right to a fair trial. Most troubling, and indeed egregious, [the prosecutor] met with J.L. six days before the competency hearing for several hours; watched a Pittsburgh Penguins hockey game with J.L.; told J.L. what questions were going to be asked at the hearing, along with their answers; did ask those questions at the competency hearing; and was then repeatedly dishonest with [the court] in an attempt to conceal his misconduct and convict [Appellee] at any cost.
(Trial Court Opinion, entered February 6, 2009, at 12-13). In light of the prosecutor’s misconduct, the court rescheduled the competency hearing for July 31, 2008.
On July 16, 2008, Appellee filed sеveral motions to dismiss, including a motion to dismiss on double jeopardy grounds. In his motion, Appellee cited specific instances of prosecutorial misconduct, including the prosecutor’s meeting with J.L. to rehearse questions and answers for the competency hearing. Appellee also complained that the prosecutor failed to keep a log of his meeting with J.L., failed to provide mental capacity reports, failed to provide certain expert reports, and failed to provide a witness list. Appellee claimed the prosecutor’s behavior caused Appellee to suffer unfair prejudice, and the pattern of prosecutorial misconduct throughout the history of the proceedings warranted the dismissal of the charges on double jeopardy grounds.
On July 30 and 31, 2008, the court conducted hearings on Appellee’s various dismissal motions. Following the hearings, the court ordered the parties to submit briefs regarding the motion to dismiss on double jeopardy grounds. On September 4, 2008, the court continued the matter indefinitely, as it considered the parties’ briefs. By opiniоn and order entered February 6, 2009, the court granted Appellee’s motion to dismiss on double jeopardy grounds.
The Commonwealth timely filed its notice of appeal on March 3, 2009.
The Commonwealth raises the following issue for our review:
WHETHER THE TRIAL COURT COMMITTED AN ERROR OF LAW BY INVOKING THE DOUBLE JEOPARDY CLAUSE OF THE PENNSYLVANIA CONSTITUTION AS A BAR TO REPROSECUTION TO REMEDY PERCEIVED PROSECUTORIAL TRANSGRESSIONS OCCURRING AFTER THE CASE WAS REMANDED FOR A NEW TRIAL AND BEFORE RETRIAL, AND THAT DID NOT INVOLVE ANY PREJUDICE TO [APPELLEE’S] PRIOR TRIAL COURT PROCEEDINGS?
(Commonwealth’s Brief at 4).
Initially we observe:
“An appeal grounded in double jeopardy raises a question of constitutional law.” Commonwealth v. Wood,803 A.2d 217 , 220 (Pa.Super.2002) (quoting Commonwealth v. Mattis [454 Pa.Super. 605 ], 686A.2d 408, 410 (Pa.Super.l996)[, appeal denied, 547 Pa. 752 ,692 A.2d 564 (1997) ]). “This court’s scope of review in making a determination on a question of law is, as always, plenary.” Wood, supra at 220 (quoting Mattis, supra at 410). “As with all questions of law, the appellate standard of review is de novo.... ” Commonwealth v. Kositi,880 A.2d 648 , 652 (Pa.Super.2005) (quoting In re Wilson,879 A.2d 199 , 214 (Pa.Super.2005) (en banc)).
Commonwealth v. Vargas,
Where issues of credibility and weight of the evidence are concerned, it is not the function of the appellate court to substitute its judgment based on a cold record for that of the trial court. The weight to be accorded conflicting evidence is exclusively for the fact finder, whose findings will not be disturbed on appeal if they are supported by the record.
Wood, supra (internal citations omitted).
In certain circumstances, prosecutorial misconduct may rise to a level of overreaching and result in a mistrial, in which case double jeopardy will bar [retrial] of the defendant. The rationale that supports the proscription embodied in the double jeopardy clause is that
the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.
A criminal proceeding imposes heavy pressures and burdens psychological, physical, and financial on a person charged. The purpose of the Double Jeopardy Clause is to require that he be subject to the experience only once for the same [offense].
Whereas innocent prosecutorial error cannot always be avoided, overreaching is not an inevitable part of the trial process and cannot be condoned. It signals the breakdown of the integrity of the judicial proceeding, and represents the type of prosecutorial tactic which the double jeopardy clause was designed to protect against. Under Pennsylvania law, there are two types of prosecutorial misconduct that trigger double jeopardy. First, the double jeopardy clause of the Pennsylvania Constitution prohibits retrial of a defendant when the conduct of the prosecutor is intentionally undertaken to prejudice the defendant to the point of the denial of a fair trial. Second, retrial is also prohibited when the prosecutorial misconduct is intended to provoke the defendant into moving for a mistrial.
Id. at 220-21 (internal citations and quotation marks omitted).
On appeal, the Commonwealth asserts double jeopardy principles do not apply to prosecutorial misconduct occurring after remand for a new trial, but before the retrial actually occurs. Moreover, the Commonwealth contends the record does not support the trial court’s finding that the prosecutor acted intentionally to prejudice Appellee’s right to a fair trial. The Commоnwealth argues there is no competent evidence that the prosecutor had a “secret meeting” with J.L. prior to the competency hearing. The Commonwealth also emphasizes that this alleged act of misconduct has nothing to do with the actions of the prosecutor during trial, which is where the misconduct must occur for double jeopardy to bar a retrial. Re
Prior to Smith, supra, our Supreme Court held that double jeopardy will attach only to those mistrials intentionally caused by overt prosecutorial misconduct. See Commonwealth v. Simons,
We now hold that the double jeopardy clause of the Pennsylvania Constitution prohibits retrial of a defendant not only when prosecutorial misconduct is intended to provoke the defendant into moving for a mistrial, but also when the conduct of the prosecutor is intentionally undertaken to prejudice the defendant to the point of the denial of a fair trial. Because the prosecutor’s conduct in this case was intended to prejudice the defendant and thereby deny him a fair trial, [the defendant] must be discharged on the grounds that his double jeopardy rights, as guaranteed by the Pennsylvania Constitution, would be violated by conducting a second trial.
Smith, supra at 186,
The Supreme Court elaborated on this standard in Commonwealth v. Martorano,
Although it may have been the particular circumstances of the Smith case that prompted the Court to re-evaluate its decision in Simons, there is no doubt that the Court intended the Smith rule to be one of general application.
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Furthermore, we find no language in Smith to indicate that concealment of evidence is the only type of prosecutorial misconduct that may be intentionally undertaken to prejudice the defendant to the point of the denial of a fair trial. To the contrary, the holding of Smith appears to be deliberately nonspecific, allowing for any number of scenarios in which prosecutorial overreaching is designed to harass the defendant through successive prosecutions or otherwise deprive him of his constitutional rights.
Martorano, supra at 538,
While such misconduct does not involve concealment of evidence as in Smith, it nonetheless evinces the prosecutor’s intent to deprive [the defendants] of a fair trial; to ignore the bounds оf legitimate advocacy; in short, to win a conviction by any means necessary. This is precisely the kind of prosecutorial overreaching to which double jeopardy protection applies.
Id. at 539,
Instantly, the Commonwealth charged Appellee with multiple sex offenses perpetrated against three different victims. Following his first trial, the jury found Appellee guilty of indecent assault as to D.M., but the jury could not reach a verdict on the charges related to T.C. and J.L. Following a retrial, the jury found Appellee guilty of indecent assault as to T.C. and IDSI and indecent assault as to J.L. On appeal, this Court reversed the conviction and discharged Appellee as to the indecent assault of D.M. This Court also vacated and remanded for a new trial on the charges involving J.L. and T.C., concluding the prosecutor’s misconduct had unduly prejudiced the jury.
Upon remand, the court found T.C. and J.L. were incompetent to testify at the new trial. The Commonwealth timely filed a notice of appeal, and this Court reversed and remanded the case for trial. Upon remand, Appellee requested another competency hearing, accusing the prosecutor of “coaching” the witnesses during the pri- or proceedings. The trial court granted Appellee’s request, issuing its October 29, 2007 order to address concerns about the possibility of taint. Specifically, that order prohibited the prosecutor from meeting with the witnesses unless Polk Center personnel were present. The court also ordered the prosecutor to keep a log of his visits with the witnesses, to deliver certain mental capacity assessments, and to produce a witness list.
At the June 6, 2008 competency hearing, defense counsel immediately informed the court that the prosecutor had not provided a log of his meetings with J.L. The prosecutor responded that he had met with J.L. only once, and the meeting occurred earlier that afternoon: “Today, yeah, today’s the only time.” (See N.T. Competency Hearing, 6/6/08, at 5.) The prosecutor denied discussing any matters related to the hearing with J.L. and indicated that J.L.’s day program supervisor was prеsent at the meeting. When defense counsel pressed the prosecutor for additional details, the prosecutor admitted he had spoken with J.L. while delivering a subpoena during the prior week. The prosecutor, however, denied having any conversation with J.L. about the case: “Not about this case, just about — I handed him the subpoena, [J.L.]
At that point, the prosecutor began direct examination of J.L. The prosecutor asked several questions about professional sports teams to demonstrate the witness’ ability to perceive events accurately, communicate on the witness stand, and distinguish between truth and falsehood:
[PROSECUTOR]: Now, what’s your favorite sport?
[WITNESS]: Penguins.
[PROSECUTOR]: Okay, what sport do they play?
[WITNESS]: Hockey.
[PROSECUTOR]: Did you see the Penguins play?
[WITNESS]: I saw them play.
[PROSECUTOR]: Okay, when was that?
[WITNESS]: Wednesday night.
[PROSECUTOR]: Okay, and did they win or they lose?
[WITNESS]: They lost.
[PROSECUTOR]: Do you like football too?
[WITNESS]: I love football.
[PROSECUTOR]: What’s your favorite team?
[WITNESS]: Steelers.
[PROSECUTOR]: Favorite player?
[WITNESS]: Ben Roethlisberger.
[PROSECUTOR]: Who’s he?
[WITNESS]: The quarterback.
[PROSECUTOR]: He’s the quarterback?
[WITNESS]: (Nods head affirmatively.)
[PROSECUTOR]: Okay, do you know any other players on the Steelers?
[WITNESS]: Willie Parker.
[PROSECUTOR]: What position does he play?
[WITNESS]: Running back.
[PROSECUTOR]: Okay, anyone else?
[WITNESS]: Hines Ward, wide receiver.
[PROSECUTOR]: Okay, and what team do they play for?
[WITNESS]: Pittsburgh.
[PROSECUTOR]: Okay, and what’s the name of the Pittsburgh team?
[WITNESS]: Steelers.
[PROSECUTOR]: Now [J.L.], I need to ask you these questions. If someone were to say that Willie Parker plays for the New England Patriots, is that the truth or is that a lie?
[WITNESS]: That’s a lie.
[PROSECUTOR]: Okay. And if someone were to say that Hines Ward plays for the Seattle Seahawks, is that the truth or is that a lie?
[WITNESS]: That’s a lie.
(Id. at 11-12).
On cross-examination, J.L. confirmed he had met with the prosecutor earlier that afternoon. Defense counsel asked J.L. about this meeting:
[COUNSEL]: Did he tell you what the answer to the sports questions were?
[WITNESS]: Yes.
[COUNSEL]: Did he go over these specific questions he was going to ask you?
[WITNESS]: Yes.
[COUNSEL]: Did he tell you what the answers should be?
[WITNESS]: Yes.
(Id. at 18-19). Defense counsel also asked J.L. about the meeting the week before, when the prosecutor delivered the subpoena:
[COUNSEL]: [The prosecutor] just said he met with you in the last hour right?
[WITNESS]: Here.
[COUNSEL]: Yeah, right. [The prosecutor] also said he met with you last week, do you remember that?
[WITNESS]: Saturday.
[COUNSEL]: Okay, and what happened on Saturday?
[WITNESS]: We talked about sports.
[COUNSEL]: Did you talk about sports on Saturday?
[WITNESS]: M-hm, we was watching the Penguin game together.
[COUNSEL]: Okay, how long did you watch the Penguin game together?
[WITNESS]: Till it was over.
[COUNSEL]: How long was that, the whole game?
[WITNESS]: Yeah, the whole game.
[COUNSEL]: Did you talk about sports?
[WITNESS]: M-hm.
(Id. at 31).
Addressing the prosecutor, the court said:
[Y]ou served the subpoena yourself personally in this case and during that period of time it was testified then you were there and watched hockey with [J.L.] and you talked about sports and that was his testimony. Now, I’ll tell you why I was a little uncomfortable with that at that point in time. Even though you’ve asserted ... that you weren’t talking to him about competency. You had a conversation with him about sports and you were watching the hockey game when the majority of what the testimony was or the questions asked of that witness to establish competency today was sports and he indicated you watched the Penguins and questions were asked about the Penguins game ... and those recollections.
(Id. at 140-41). The court found that the prosecutor had met with J.L. the week before to rehearse the sports-related questions and answers for the competency hearing while watching the Pittsburgh Penguins hockey game. Without denying the proposed taint, the prosecutor responded, “We can bring him down and ask him different questions.” (Id. at 141).
At the conclusion of the hearing, defense counsel argued the prosecutor had failed to comply with the October 29, 2007 order. Defense counsel indicated the prosecutor did not provide mental capacity assessments or a witness list, and failed to maintain a log of his meetings with J.L. After a brief recess, the court acknowledged the prosecutor’s violations and expressed concern over the tainted testimony. The court continued the matter until July 31, 2008 “to guarantee that the competency hearing is conducted with no question of taint or question of the competency of the witnesses to testify at that time.... ” (Id. at 144).
Before the new competency hearing, Ap-pellee filed his motion to dismiss on double jeopardy grounds. At the July 31, 2008 hearing, the court heard argument on Ap-pellee’s motion to dismiss. The prosecutor continued to deny he had met with J.L. in violation of the October 29, 2007 order:
Your Honor again ... there was no contact and that’s where [defense counsel is] misleading the court again. The contact was that day [of the competency heaidng], Your Honor. I could not prepare a log when the first time I met with [J.L.] was that day. That’s where [defense counsel is] misleading the court.
(See N.T. Hearing, 7/31/08, at 85.) The prosecutor reiterated he had no other contact with J.L. concerning the competency hearing. (Id.) Essentially, the prosecutor asked the court to deem J.L. competent to testify at the retrial, but to disregard as incredible J.L.’s testimony about the other meeting with the prosecutor.
The [c]ourt finds that [the prosecutor] met with J.L. on Saturday, May 31, 2008, six days before the June 6, 2008 Competency Hearing without a third party present, in brazen violаtion of the [October 29, 2007] Order. The [c]ourt finds that during this improper meeting, which lasted for hours, [the prosecutor] told J.L. the questions he was going to be asked at the competency hearing, as well as the answers. The [e]ourt finds that at the June 6, 2008 Competency Hearing, [the prosecutor] did ask those same questions to J.L., eliciting the predetermined responses. The [c]ourt finds that [the prosecutor] lied ... about the existence of the meeting, as well as what happened at the meeting. The [c]ourt finds that [the prosecutor] intended that his taint of the witness J.L. would never be discovered. The [c]ourt finds [the prosecutor’s] dishonesty in this matter to be appalling. The [e]ourt finds that [the prosecutor] did not make any attempt to provide defense counsel with a list of witnesses as mandated in the October 29, 2007 Court Order. The [c]ourt finds that [the prosecutor] did not make any attempt to provide the defense with mental capacity assessments performed after January 2004 as mandated by the October 29, 2007 Court Order.
The [c]ourt finds that at the July 31, 2008 Motion to Dismiss Hearing, [the prosecutor] continued to perpetrate his fraud on [the сourt] and [Appellee].
(See Trial Court Opinion at 52-53.)
Additionally, the court considered the cumulative effect of all the prosecutorial misconduct that had plagued the case:
The [c]ourt recognizes that [the prosecutor] committed prosecutorial misconduct at the second trial against [Appellee], who was being prosecuted for alleged criminal acts perpetrated against J.L. and T.C. The [c]ourt recognizes that [Appellee] is currently being prosecuted for the same alleged criminal acts perpetrated against J.L. and T.C. The [c]ourt finds that [the prosecutor] has again committed prosecutorial misconduct. The [c]ourt finds that [the prosecutor’s] misconduct is especially egregious due to its cumulative effect. The [c]ourt finds that both the prior misconduct and the current misconduct are properly before this [c]ourt because [Appellee] has not waived his double jeopardy protection and is now being retried, after remand due to prosecutorial misconduct, for the same alleged criminal conduct.
The [c]ourt finds that [the prosecutor’s] оngoing and egregious misconduct offends the principles articulated by our Supreme Court in Smith and Martora-no. The [c]ourt finds that [the prosecutor’s] out-of-court subversive tactics are particularly heinous as they fall within the scenario described in [Commonwealth v. Rightley,421 Pa.Super. 270 ,617 A.2d 1289 , 1293 n. 3 (1992)], "... subversive tactics are oftentimes more heinous than conduct which occurs in defendant’s presence in the courtroom, simply because the injustice done to defendant may never surface.” We further find that in regard to the prosecution of [Appellee] for crimes allegedly committed against J.L. and T.C., (1) [the prosecutor] intended to subvert the truth-seeking process, (2) [the prosecutor] intended to forever conceal his misconduct in order to win a conviction at any cost, and (3) [the prosecutor’s] misconduct was intended to violate [Appel-lee’s] right to a fair trial.
Here, the prosecutor did more than demonstrate a flagrant disregard for a pretrial discovery order.
Based upon the foregoing, we hold pros-ecutorial misconduct occurring after remand for a new trial but before the retrial can serve to warrant dismissal of charges under the double jeopardy clause of the Pennsylvania Constitution. We further hold the trial court properly granted Ap-pellee’s motion to dismiss, becausе the prosecutor committed intentional misconduct to deny Appellee a fair retrial. Accordingly, we affirm the trial court’s order granting Appellee’s motion to dismiss.
Order affirmed.
*Judge OLSON files a dissenting opinion in which President Judge STEVENS, President Judge Emeritus FORD ELLIOTT and Judge DONOHUE join.
Notes
. Although the order referred to "competency” assessments, the trial court subsequently determined that the parties had contemplated the delivery of mental "capacity" assessments. (N.T. Competency Hearing, 6/6/08, at 119, 127, 137-38).
. Appellee filed a motion to quash on July 8, 2009, claiming the Commonwealth’s notice of appeal was untimely. Appellee renewed the matter in his brief on reargument. Nevertheless, the certified docket entries indicate the Commonwealth timely filed its notice of appeal on March 3, 2009. To the extent that motion is deemed open, we deny it and refuse to quash the appeal.
. The Commonwealth also insists the trial court reopened a double jeopardy claim that the courts had already resolved against Appel-lee. The Commonwealth cites this Court's decision in Anderson I for the proposition that its actions at the Sеptember 2001 trial did not rise to the level of misconduct that would bar Appellee's retrial on double jeopardy grounds. As Appellee has already litigated a double jeopardy issue, the Commonwealth asserts the law of the case doctrine precludes Appellee from relitigating the instant double jeopardy claim. We note, however, the law of the case doctrine "refers to a family of rules which embody the concept that a court involved in the later phases of a litigated matter should not reopen questions decided by another judge of that same court or by a higher court in the earlier phases of the matter.” Commonwealth v. Starr,
. In Anderson I, this Court previously put the same prosecutor on notice to temper his "zealous and spirited” advocacy, warning him that he had already crossed boundaries to create an unsavory aura about the trial, including lewd conduct in open court. The prosecutor's actions on remand were more clandestine but no less offensive, in light of this Court's prior admonition.
. Ordinarily, the dismissal of charges is "a penalty far too drastic” for a prosecutor's violation of discovery rules. Commonwealth v. Gordon,
Dissenting Opinion
DISSENTING OPINION BY
I respectfully dissent from the learned Majority’s holding that prosecutorial misconduct occurring after remand for a new trial but before the new trial can serve to bar the new trial under the double jeopardy clause of the Pennsylvania Constitution. See Majority at 840. I believe that in adopting this holding the Majority improperly broadens the scope of Pennsylvania’s double jeopardy clause beyond that which was intended by our Supreme Court in Commonwealth v. Smith,
Indeed, I agree with my colleagues that the prosecutor’s actions in this matter amounted to a flagrant disregard for the trial court’s October 29, 2007 pretrial order, resulting in inexcusable misconduct,
Specifically, Appellee bases his motion for dismissal of the prosecution upon Pennsylvania’s double jeopardy clause, Article 1, Section 10 of the Pennsylvania Constitution.
Prior to the United States Supreme Court’s decision in Oregon v. Kennedy,456 U.S. 667 ,102 S.Ct. 2083 ,72 L.Ed.2d 416 (1982), [the Supreme Court of Pennsylvania] followed federal law in recognizing two types of prosecutorial misconduct that would implicate double jeopardy principles:
First there is the prosecutorial misconduct which is designed to provoke a mistrial in order to secure a second, perhaps more favorable, opportunity to convict the defendant. [Citing United States v. Dinitz,424 U.S. 600 , 611,96 S.Ct. 1075 ,47 L.Ed.2d 267 (1976) ]. Second there is the prosecu-torial misconduct undertaken in bad faith to prejudice or harass the defendant. [Citing Lee v. United States,432 U.S. 23 , 32,97 S.Ct. 2141 ,53 L.Ed.2d 80 (1977); Dinitz,424 U.S. at 611 ,96 S.Ct. 1075 ]. In contrast to prosecutorial error, overreaching is not an inevitable part of the trial process and cannot be condoned. It signals the breakdown of the integrity of the judiсial proceeding, and represents the type of prosecutorial tactic which the double jeopardy clause was designed to protect against.
Commonwealth v. Starks,490 Pa. 336 ,416 A.2d 498 , 500 (1980). In Kennedy, though, the United States Supreme Court appeared to limit the scope of federal double jeopardy protection, holding that, “the circumstances under which ... a defendant [who has successfully moved for a mistrial] may invoke the bar of double jeopardy in a second effort to try him are limited to those cases in which the conduct giving rise to the successful motion for a mistrial was intended to provoke the defendant into moving for a mistrial.” Kennedy,456 U.S. at 679 ,102 S.Ct. 2083 .
[The Supreme Court of Pennsylvania] initially followed the new Kennedy standard, declaring in Commonwealth v. Simons,514 Pa. 10 ,522 A.2d 537 , 540 (1987), that, “henceforth double jeopardy will attach only to those mistrials which have been intentionally caused by prose-cutorial misconduct.” The [Pennsylvania Supreme] Court in Simons, however, expressly acknowledged [the Pennsylvania] Court’s ability to “establish greater protection for our state citizens than provided by the United States Supreme Court.” Id. Five years later in Smith, the [Pennsylvania Supreme] Court did just that.
Martorano,
In Smith, the defendant was convicted of first-degree murder and sentenced to death, but on direct appeal the Pennsylvania Supreme Court reversed and remanded for a new trial due to the erroneous admission of hearsay testimony. Smith,
The misconduct in Smith has been summarized as follows:
[In Smith, the] Commonwealth deliberately withheld ...: (1) the existence of an agreement with its chief witness pursuant to which he received lenient treatment at sentencing on unrelated charges in exchange for his testimony, and (2) material, exculpatory physical evidence that it had discovered mid-trial. The physical evidence consisted of grains of sand that were found between the toes of the murder victim at her autopsy. The sand was consistent with ... the defense that the crime had been committed in Cape May, New Jersey, by others, and not by [the defendant] in Pennsylvania, as the Commonwealth had alleged. At trial, when a Pennsylvania state trooper testified on cross-examination that granular particles which looked like sand had been removed from the victim’s body, the Commonwealth implied that he had fabricated his testimony and the trial prosecutor recommended to his superior that he investigate the feasibility of prosecuting the state trooper for perjury. While the trial was still in progress, the state police discovered the adhesive “lifters” that had been used to remove and retain the sand from the victim’s feet. The Commonwealth, however, failed to disclose this evidence and, indeed, continued to suppress the evidence for over two years while the case was on direct appeal to [the Supreme Court],
Commonwealth v. Burke,
In Smith, both the trial court and our Court held that intentional prosecutorial misconduct had been proven, but deferred the remedy, an issue of first impression, to the Supreme Court. Smith,
the double jeopardy clause of the Pennsylvania Constitution prohibits retrial of a defendant not only when prosecutorial misconduct is intended to provoke the defendant into moving for a mistrial, but also when the conduct of the prosecutor is intentionally undertaken to prejudice the defendant and thereby deny him a fair trial.
Id. at 325. The Supreme Court stated that, “[b]eeause the prosecutor’s conduct in this case was intended to prejudice the defense and thereby deny him a fair trial,
Seven years later, the Pennsylvania Supreme Court decided Martorano. In that case, the prosecutor committed misconduct during trial including, “blatantly disregarding the trial court’s evidentiary rulings, disparaging the integrity of the trial court in front of the jury, and repeatedly alluding to evidence that the prosecutor knew did not exist.” Martorano,
Significant in Smith was the fact that the prosecutors’ actions involved multiple acts of misconduct and deceit, all of which occurred during trial, but none of which was discovered until after trial. Moreover, in Martorano, the prosecutor’s misconduct occurred during trial. Consequently, the defendants in both of those cases were prejudiced “to the point of denial of a fair trial.” Smith,
Although the Majority stresses the cumulative effects of the multiple instances of prosecutorial misconduct throughout the protracted life of this case (see Majority at 22-23), the misconduct at issue in Appel-lee’s motion was necessarily limited to the prosecutor’s disregard for the trial court’s October 29, 2007 order. There is no question that there were earlier acts of misconduct, but those earlier acts were already addressed by our Court in Commonwealth v. Anderson,
It was upon preparing for the new trial that the instant occurrences of misconduct took place and were discovered. That the misconduct at issue here took place and was discovered pretrial is significant — Ap-pellee was not subjected to an unfair trial as his new trial had yet to occur. Therefore, the double jeopardy principles set forth in Smith and Martorano are inappli
Moreover, when this Court remands a criminal matter for a new trial, the defendant should be placed in the same shoes in which he stood prior to the original trial. In other words, the options, including appropriate sanctions, available to the trial court when pretrial prosecutorial misconduct occurs should be the same regardless of whether the misconduct occurs and is discovered before the original trial or a subsequent trial following remand. Fundamental principles of double jeopardy support this conclusion.
We have previously held that whether double jeopardy is being considered as a remedy for prosecutorial misconduct or other reasons, “when jeopardy attaches in a trial ‘serves as the lynchpin for all double jeopardy jurisprudence.’ ” Commonwealth v. Carson,
the conclusion that jeopardy has attached begins, rather than ends, the inquiry as to whether the Double Jeopardy Clause bars retrial.... Implicit in the latter policies is the premise that the constitutional policies underpinning the [double jeopardy] guarantee are not implicated before that point in the proceedings at which jeopardy attaches.... This by no means is a mere technicality, nor is it a rigid mechanical rule. It is, of course, like most legal rules, an attempt to impart content to an abstraction.
Serfass v. United States,
The rule that jeopardy does not attach until the commencement of trial was established because “at the heart of double jeopardy jurisprudence is the requirement that an individual demonstrate ... he ...
“[i]n Pennsylvania, jeopardy does not attach and the constitutional prohibition against double jeopardy has no application until a defendant stands before a tribunal where guilt or innocence will be determined.” Id. “In a criminal jury trial, jeopardy attaches when the jury is sworn. In a bench trial, however, jeopardy attaches when the trial court begins to hear the evidence.” Commonwealth v. Micklos,448 Pa.Super. 560 ,672 A.2d 796 , 799 (1996), appeal denied,546 Pa. 678 ,686 A.2d 1309 (1996) (internal citation omitted).
Commonwealth v. Vargas,
Consequently, multiple Pennsylvania decisions have determined that double jeopardy principles do not apply at the pretrial stage. For example, in Commonwealth v. Smith,
[a] preliminary hearing in our Commonwealth is not a trial and its purpose is not to decide guilt or innocence; but rather to determine whether a prima facie case has been made out which is legally sufficient to hold the accused for thе grand jury.... Moreover, it is axiomatic that in order to prevail on a plea of double jeopardy the defendant must establish that he has already been placed in jeopardy.
Id.; see also Commonwealth v. Ortega,
Here, it is clear that the misconduct at issue did not occur until the “pretrial” phase since the misconduct occurred after the remand for a new trial and before the jury for the new trial was impaneled. Once the matter was remanded for a new trial, it was as if the prior trials never occurred — the slate, in essence, was wiped clean. See, e.g., U.S. v. Tobin,
Consequently, I respectfully disagree with the Majority’s holding that “double jeopardy principles apply to prosecutorial misconduct that occurs after remand for a new trial but before retrial”. Majority at 840. Though the holdings in Smith and Martorano expanded double jeopardy
Moreover, although the prosecutor’s actions in this matter are nothing short of appalling, if Appellee can be given a fair trial I believe that the public is entitled to that trial. As our Supreme Court explained in Burke:
Because of the compelling societal interest in prosecuting criminal defendants to conclusion, this Court has recognized that dismissal of charges is an extreme sanction that should be imposed sparingly and, relevant to the question here, only in cases of blatant prosecutorial misconduct. As ... Justice Cappy, in his Opinion Announcing the Judgment of the Court in Commonwealth v. Shaffer,551 Pa. 622 ,712 A.2d 749 , 752 (1998), explained:
Dismissal of criminal charges punishes not only the prosecutor ... but also the public at large, since the public has a reasonable expectation that those who have been charged with crimes will be fairly prosecuted to the fullest extent of the law. Thus, the sanction of dismissal of criminal charges should be utilized only in the most blatant cases. Given the public policy goal of protecting the public from criminal conduct, a trial court should consider dismissal of charges where the actions of the Cоmmonwealth are egregious and where demonstrable prejudice will be suffered by the defendant if the charges are not dismissed.
Id. at 752, see also Commonwealth v. McElligott,495 Pa. 75 ,432 A.2d 587 , 589 (1981) (“The remedy of discharge without a fair and complete fact-finding procedure is extreme and will not be invoked absent deliberate bad faith prose-cutorial misconduct”); Commonwealth v. Smith,532 Pa. 177 ,615 A.2d 321 , 325 (1992) (dismissal of charges is appropriate only where “prosecutorial misconduct is intended to provoke the defendant into moving for a mistrial, [or where] the conduct of the prosecutor is intentionally undertaken to prejudice the defendant to the point of the denial of a fair trial”).
Burke,
As a result, I would reverse the trial court’s order granting Appellee’s motion to dismiss and would remand this matter to the trial court to consider an alternative means of sanction to address the misconduct in this case (such as an order barring J.L. from testifying), while balancing the public’s interest in punishing criminal offenders.
. Pursuant to Article 1, Section 10 of the Pennsylvania Constitution, "[n]o person shall, for the same offense, be twice put in jeopardy of life or limb.”
. The Fifth Amendment of the United States Constitution states: “[N]or shall any person bе subject for the same offense to be twice put in jeopardy of life or limb ...”
. Indeed, Smith does not "create a per se bar to retrial in all cases of intentional prosecuto-rial misconduct.” Commonwealth v. Rightley,
. It must be noted that, as a result of our remand order in Anderson I, Appellee faced a retrial even if the misconduct at issue had not occurred. Thus, the only potential prejudice that Appellee faced because of the prosecutor’s actions was that testimony might have been given by a tainted witness at the retrial. An order barring J.L. from testifying would ameliorate any such prejudice. I believe that this disposition complies with the precedent established by our Supreme Court, which has consistently described the dismissal of charges as an extreme remedy that should be imposed sparingly. See Commonwealth v. Burke,