Dаrlene Riffert appeals an order of the court of common pleаs, Lackawanna County, which denied her Motion to Dismiss the charges against her. She сlaims that a new trial would violate her right to be protected against double jeopardy guaranteed by the Fifth Amendment to the United States Constitution. 1 Riffert contends that the prosecution’s calling of a witness who, it was known, intended to invoke the Fifth Amendment guarantee against self-incrimination was prosecutorial misconduct sufficient to bar a retrial. For the reasons that follow, we affirm the order and remand for trial.
Riffert was charged with aggravated assault and recklessly endangering anothеr person, and was being tried before a jury. In the course of the trial, Kevin Donahue, who had been subpoenaed to testify on behalf of the Commonwealth, notifiеd the court and the prosecution that he intended to exercise his Fifth Amendment rights. An in сamera hearing was held and the hearing court ruled that Donahue could properly claim the privilege against self-incrimination for a certain restricted area of questioning:
The Court: The only thing that’s not fair game is that ■ area around the gun. N.T. at 45.
For all other areas, questioning of the witness was allowed.
When Donahue took the stand he proceeded to invoke the Fifth Amendment for questions outside the restricted area,
2
N.T. 127-129, and the court declared a mistrial. Riffert thereupon mоved to dismiss charges. She argues that
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calling Donahue as a witness constituted prоsecutorial misconduct designed to provoke a mistrial in order to secure a second, perhaps more favorable opportunity to convict her. She accuses the prosecution of bad faith and harassment and arguеs that the facts are controlled by
Commonwealth v. Virtu,
In Virtu, however, unlike the instant case, the prosecution deliberately sought no ruling on the witness’ privilege outside the hearing of the jury. Instead, the prosecution wаs guilty of deliberate misrepresentation of the facts surrounding the witness’ exercisе of the privilege during a side-bar conference. Here, in contrast, an in camera hearing was held and the court gave permission to the prosecutiоn to question the witness in all but a limited area. The record shows that the prosecution did not violate the terms set by the hearing court.
The lower court dismissed Riffert’s motiоn to dismiss under the standards of
Lee v. United States,
Riffert’s aborted trial began on January 10, 1983 and ended on January 11. In May 1982 the United Stаtes Supreme Court set new standards for double jeopardy in relation to a mistrial in
Oregon v. Kennedy,
In
Oregon v. Kennedy,
the Supreme Court acknowledged that the standard of
Dinitz
had generated confusion, and held that for the future, “the circumstances under which ... a defendant 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 mоtion for a mistrial was intended to provoke the defendant into moving for a mistrial” (at 679,
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Oregon v. Kennedy
has been prospectively adopted by Pennsylvania but never appliеd.
Com. v. Arelt,
The standard of Oregon v. Kennedy is now applied to the facts of Riffert’s mistrial. We hold that this standard is applicable whether a defendant invokes the protection of the United States or thе Pennsylvania constitution. Our review of the questions put to Donahue before the mistriаl was declared shows that there is no evidence of any intentional provоcation of a mistrial. The order of the trial court denying Riffert’s Motion to Dismiss is affirmed, аnd the case is remanded for trial. Jurisdiction is relinquished.
Notes
. The order of the lower court is appealable before the new trial is held.
Com. v. Bolden,
. The questions concerned (1) his whereabouts in June, 1982; (2) whether he ever registered at a hotel under the name of Terrence Conley; and (3) a conversation with a state trooper in June 1982.