Commonwealth v. Simons

Pennsylvania COMMONWEALTH SIMONS, Appellant. Lawrence Demetrius Superior Court Pennsylvania.

Argued July 23, 1984. May

Filed 1985. - Phelan, Jr., Narbeth, appellant. for J. James Philadelphia, Henson, Attorney, District Assistant Eric B. Commonwealth, appellee. SPAETH, Judge, WICKERSHAM, Before President and BROSKY, WIEAND, CIRILLO, DEL SOLE, MONTEMU- RO, POPOVICH, and JOHNSON JJ.

CIRILLO, Judge: here review a order pretrial

We denying appellant’s motion to bar retrial on jeopardy grounds. Such an order is immediately appealable. Commonwealth v. Haef ner, (1977); 373 A.2d 1094 Commonwealth v. Hoburn, Pa.Super. (1984); 485 A.2d 24 Common Arelt, wealth v. 308 Pa.Super. (1982); 454 A.2d 108 Yost, Commonwealth v. 305 Pa.Super. 451 A.2d 549 (1982). began

This case July appellant when Lawrence Demetrius Simons solicited Wayne Thorpe, Ravenell, Grant and Angelo Casselle to rob Zollie Perry. appellant While lookouts, and Casselle waited a car as Thorpe and Rave- nell, armed pistols, approached Perry rob him. armed, Perry was also and shot Thorpe Ravenell. then si ot The four Perry. conspirators fled. died from Perry shooting; Ravenell lived.

In separate trials in the jury Philadelphia Court of Com- Pleas, Simons, mon mastermind, first then Thorpe, the triggerman, found guilty second-degree were murder and In robbery. accomplices both trials Ravenell Casselle prosecution. testified for the After denying post-trial mo- tions, the A. Honorable John Geisz sentenced both defend- ants to life imprisonment. Thorpe appealed.

Simons and Each argued appeal on that a new trial should granted be because the had concealed from each the terms of a jury plea agreement between Ravenell and the In Thorpe’s Commonwealth. case, the Pennsylvania Supreme Court remanded to the trial Court, court for an evidentiary hearing on this issue. Our cognizance which at the time had appeal, the Simons suit joint hearing followed and remanded for a with the Simons, Commonwealth v. Thorpe case. Pa.Super. hearing After evidence on the 286

issue, to Judge Thorpe new trials and Simons granted Geisz 3, opinion in an and order dated December 1980. then filed motions dismiss the Thorpe and Simons them, asserting that retrials would violate charges against In an order rights placed not to twice jeopardy. their be 14, 1981, the court denied the motions. Simons May dated order. appeals here from that rights his under the United and Appellant asserts States placed not to be Pennsylvania jeopar- constitutions twice Const, Const, V; Pa. for the same offense. U.S. amend. dy 1, by afforded jeopardy protections art. 10. The double § generally the federal and state constitutions are said be Hude, v. coextensive, 600, 492 Commonwealth Pa. 194, 404 v. Gravely, Commonwealth (1980); 313 (1979), our courts adopt approach A.2d 1296 and state cases, in double jeopardy the United States Beaver, 88, A.2d 1097 Pa.Super. (1983). it is not a violation double

Generally trial on a defendant who obtains a new prohibitions retry motion, by motion is his own even where the necessitated Dinitz, United States error. judicial or However, 47 L.Ed.2d 267 U.S. S.Ct. error commits prosecutor deliberately prejudicial where the choice” in order to the defendant into “Hobson’s force a trial continuing his first giving up jury between come by tainted considerations prejudice, play. into defendant protect Clause does Jeopardy Double mistrial governmental provoke actions intended

against to the sub- thereby subject defendants requests and It multiple prosecutions. imposed by stantial burdens or prose- “bad-faith conduct judge bars retrials where Jorn, supra, cutor,” at United States [400 U.S.] threatens 27 L.Ed.2d 91 S.Ct. “[h]ar- [at 557] prosecutions assment an accused successive prosecution a mistrial so as to afford the declaration of to convict” the defendant. opportunity more favorable Downum v. United States, U.S. ^[734] L.Ed.2d 83 S.Ct. 1033 [at 1034]. 611, 1081,

Id. at 96 S.Ct. at 47 L.Ed.2d at 276. Lee v. States, 23, United 432 2141, U.S. 97 S.Ct. 53 L.Ed.2d 80 (1977). cases,

Based on these our own Supreme Court has deline- ated two types prosecutorial of “overreaching” that will bar retrial of a defendant: misconduct designed and intended provoke a mistrial request, and miscon- duct undertaken in bad faith to prejudice harass the defendant. Starks, Commonwealth v. 336, 490 Pa. 416 (1980). A.2d 498

This amplified Court on the Starks test in Common- Clark, wealth v. Pa.Super. 380, 287 (1981). 430 A.2d 655 There we identified the two types of overreaching that would invoke the 1) double jeopardy prosecutorial bar as: misconduct intentionally trigger calculated to the declara- tion of a mistrial in order to secure more favorable opportunity accused; convict an 2) prosecutorial misconduct undertaken in bad faith to harass an accused prosecutions successive or prejudice his prospects acquittal. This formulation of the test hews more closely the language of Lee, Dinitz and and to their rationale of preventing prosecutor from intentionally forcing a mis- trial or putting the defendant to that “Hobson’s choice” whether to give up his right to one have tribunal decide his case or go whether to to verdict awith prejudiced jury.

Recently United States Supreme Court held that prosecutorial only misconduct intended to provoke a mistrial would bar retrial under federal double principles. v. Oregon 667, 456 Kennedy, 2083, U.S. 102 S.Ct. 72 (1982). L.Ed.2d 416 The Court thus repudiated the notion that there are separate two types prosecutorial miscon duct that reprosecution, bar and reintroduced interpreta an tion of double jeopardy principles espoused aby plurality the Pennsylvania Supreme Court in Commonwealth v. Pot ter, 251, 478 Pa. (1978) (Nix, J., concurred specially). See also Commonwealth v. Gravely, supra

288 Mr. Nix opinion). as Justice ob- (plurality Consequently, v. Commonwealth Wal- concurring opinion in his served lace, 270, (1983), 455 1187 there is no longer A.2d barring standard retrial Pennsylvania unless the misconduct cases the defendant to move for a provoke was intended to v. Rafalko, Commonwealth See also mistrial. Pa.Su- Riffert, Commonwealth (1984); per. 483 A.2d Pa.Super. A.2d Ken However, has said that the Superior filed after nedy only prospectively appeals rule applies Common decision. the date of May Lark, (1984); A.2d 522 wealth Pa.Super. Freedman, Pa.Super. Beaver, see supra; also (1983); Commonwealth (same); applied); {Kennedy prospectively Riffert Rafalko Arelt, supra (pre-Kennedy but see Commonwealth ap rule, Kennedy found no miscon peal; Court iterated but duct). invitation to over We decline Commonwealth’s rule prior adopt our decisions in order to rule in the case which the retroactively. upon As was stated retroactivity argu relies for its primarily Commonwealth requires similarly decision that making ment: “Evenhanded appeal on direct be treated same.” situated individuals Cabeza, 503 Pa. 232, 469 Commonwealth v. A.2d Brown, (quoting (1983) Simons, (1981)). who filed his appeal to those other individuals similarly situated Kennedy, and arose in this State before appeals whose our courts under the judged by appellate whose cases were In and pre-Kennedy rule. the interest of fairness orderli we Simons’s case making, judge ness our decision will pre-Kennedy also under the rule. claimed to raise a double bar trial assistant district

that over the course of Simons’s a deal between Com- Berman concealed attorney David al- witness, Ravenell. Ravenell its Grant monwealth and murder, robbery, and pled guilty third-degree had to ready and conspiracy, jail awaiting sentencing. was In his to opening statement the jury Berman admitted that the had Commonwealth had to make an agreement Rave- nell’s denied that testimony, sentencing but there was a deal, stated sentencing up and that was to the court. Ravenell, cross-examination, on both direct and stated that sentencing deal, there no that was he had been told he maximum sentence could receive fifty-five was years, expected go and that he jail. fact, out,

In as it later turned the Honorable Armand Della Porta sentenced Ravenell eleven twenty-three in prison, county time, months with ten years’ psychiatric probation follow, on strength of a Commonwealth sentencing recommendation Judge that Della Porta appar- knew at the ently plea. about time Ravenell’s guilty Furthermore, after Ravenell concluded his in the testimony trial Thorpe and the defense attorneys had left the court- room, Berman that moved Ravenell be immediately released on his own recognizance, Judge granted Geisz motion.

After reviewing pursuant order, this case to our remand Judge Geisz found that the available evidence indicated the Commonwealth did agreement have a sentencing which Ravenell it failed to disclose trial. The Simons judge therefore ordered the trial new which Simons now claims is barred.

It is immediately obvious the of prosecuto- that first type rial misconduct identified in Starks —that designed pro- to voke the to request defendant a completely mistrial —is from absent this case. The prosecutor’s very act of con- his cealment evidenced intention not provoke to a mistrial request, guaranteed and virtually that none would made. be maintains, however,

Appellant that concealment of the deal constituted overreaching the second of type identified Starks, in “prosecutorial misconduct undertaken in bad faith to or prejudice harass the defendant.” 490 Pa. at A.2d 500. Appellant argues that Berman concealed faith, the deal in bad and in to intentionally, prejudice order is defendant, reprosecution and that therefore barred. the simplistic appellant’s interpretation cannot agree We of Starks. in of light guarantees must be read the

Starks it interprets. constitutional which provision embodied the against oppressive Clause Jeopardy protects The Double the to right acts that threaten individual’s be governmental offense; however, clearly one it does not only tried once for for faith remedy by a bad misconduct general establish determine when prosecutorial The task to prosecutors. “overreaching” to sufficient to bar misconduct amounts on grounds. on Commentators the retrial theory line of cases offer the that Double pre-Kennedy in those only Clause retrial instances where Jeopardy bars finality proceeding interest the defendant’s might him error that prosecutorial is overcome against Drubel, to that interest. Westen & manipulate used be a Double Theory Jeopardy, Sup. Toward General Thus, 81, 92-97. misconduct runs prosecutorial Ct.Rev. gives it only afoul of the Clause where Jeopardy Double manipulate the defendant’s opportunity an to prosecutor proceed to or decided in one right guilt have his innocence an for opportunity can create such ing. an abortion manipulation erring induce by intentionally favorably prosecu first is not for the going of a trial that tion; by introducing or an error that will force defend finder, fact if prejudiced ant to have case decided a his through on with the first trial going the defendant insists despite error. protections

This of double theory meaning of error illuminates the context term in as the Court used “overreaching” 1) pro “Overreaching” designed Starks. opportunity a more favorable voke a mistrial to obtain 2) with a defendant; or defendant convict harass prospects his prosecutions prejudice multiple threat him in try the first convened to acquittal tribunal before seeking choice” that forces “Hobson’s between way new trial or to verdict proceeding prejudiced before fact finder. Supreme

In the States Oregon Kennedy, United Court to of chose limit the relief under the availability Jeopardy by declaring Double Clause that only misconduct provoke a mistrial would intended constitute a bar to reprosecution. thus the scope narrowed of double Kennedy type review to the first of identi “overreaching” In regard, fied the Starks Court. this the expansive of reading Dissenting advanced the of Kennedy Opinion Sole, retrial in Del it case any J.—that bars where there has misconduct,” “intentional unsupport At been 303-306 is able. Kennedy quite explicitly decided that miscon only duct undertaken the intent to specific precipitate a mistrial will raise a double So much is clear jeopardy bar. from of plain language holding: ’s Kennedy

we do hold that under circumstances which ... a may defendant invoke the bar of double second effort him try are limited those cases in which giving the conduct rise to the successful motion a mistrial was to provoke intended the defendant into for a moving mistrial. U.S. at S.Ct. 72 L.Ed.2d at 427. The

conclusion that does not mandate double jeopardy relief in every of instance intentional also inherent Court’s Supreme more rejection general faith” prong “bad the pr jeop- e-Kennedy double ardy standard. (5th See Black’s Law ed. Dictionary 1979) (“Bad faith”). After bad faith Kennedy, prosecutor in prejudicial committing error relevant only to establish whether intended he abort trial. however,

Even before Kennedy, the. Court nev- er construed Double as a Jeopardy general Clause safeguard against prosecutorial misconduct; intentional rather, the focus pr decisions that e-Kennedy was on type of misconduct undertaken with the bad faith intent to right frustrate the only defendant’s be tried once. The specifi- if the recognized even did not 292 trial, the he acts abort intend for his deliberate

cally secured the Double rights by compromise could still error into the intentionally injecting Jeopardy Clause a opting for to choose between force the defendant case to jury, thereby from a tainted obtaining or verdict mistrial multiple pros- threat of with the the defendant “harassing” Lee, see also v. supra; Oregon Dinitz and ecutions. See 2096, at 689, 102 at 72 L.Ed.2d S.Ct. Kennedy, 456 U.S. Brennan, Marshall, Blaek- J., (Stevens, joined by 433 result) (“a prosecutor may be JJ., in the mun, concurring through embarrass- the defendant putting interested if he even proceedings of criminal ment, and ordeal expense, conviction____ purpose of har- cannot obtain [WJith repeated commit prosecutor may the defendant assing a mistrial or indifferent between errors and be prejudicial convictions.”). or and an unsustainable conviction mistrials prove to discern or course, always easy is not it Of in mind. purpose erred such a prosecutor used to subvert the that can be However, the kind of error create a typically will rights defendant’s double in the the defendant against inference prejudicial positive under circumstances finder, and will occur of the fact eyes finder will be on the fact impact prejudicial its where may thus Only the defense. apparent ask choice between into an untenable the defendant force his guilt to have mistrial, forfeiting right his thus ing for accepting or proceeding, decided one or innocence error, guilt his allowing thus effect of the prejudicial by preju finder tainted decided a fact innocence to be consist choice” are of such a “Hobson’s The elements dice. into inquiring decisions in the Pennsylvania ently present or judicial of prosecutorial implications Virtu, 495 59, Pa. 432 v. See, Commonwealth e.g., error. Lee, 346, 416 v. Commonwealth (1981); A.2d 198 Starks, supra; Com v. Commonwealth (1980); A.2d 503 Potter, v. Commonwealth Gravely, supra; v. monwealth Lark, Commonwealth supra; v. supra; Commonwealth Freedman, supra; v. Commonwealth supra; Riffert, v.

293 Beaver, supra; Commonwealth Commonwealth v. Laf- Pa.Super. 241, 246, 315 ferty, (1983); 461 A.2d 1263 McClain, Commonwealth Pa.Super. 309 Yost, (1983); Commonwealth v. 1134 supra; Common- Miele, wealth v. Pa.Super. (1982); 446 A.2d 298 Owens, Pa.Super. Custor, Commonwealth v. (1982); 296 Pa.Super. 235, 442 Anderson, (1982); Commonwealth v. A.2d Pa.Su- A.2d Clark, per. (1981); Commonwealth v. See also supra. Commonwealth v. Beasley, Pa. (1984) A.2d 460 (condemning “prosecutor’s blatant and inexcusable inattention” in allowing box labeled “Police shooting, homicide of police to brought officer” be into Virtu, courtroom). We note that in supra, one of two in cases which the Pennsylvania Supreme Court found egregious enough to retrial bar on double jeop- grounds, the ardy prosecutor had “prejudice[d] accused in presence of the jury” by calling a witness to the stand whom he knew would invoke his fifth amendment privilege not to testify. 495 Pa. A.2d at 203-04. See also Warfield, Pa. 227 A.2d (1967)(prosecutor caused mistrial to deliberately appeal of to question Court). law Supreme

We hold that error to amounts so “overreaching” as bar on retrial double jeopardy grounds only designed where it is to force the defendant into choice between verdict proceeding to before a tainted finder, giving fact and his be up right only tried once. It is the prosecutor’s evident that a sentencing concealment of deal with Simons’s codefendant did not force Simons into an such untenable of choice. act concealment did not prejudice Simons of eyes jury, designed but was to direct from only animosity away their co-defendant Rave Furthermore, nell. remained defense oblivious to its grounds long for a new until after jury trial had performed its function. Clearly the did not act with the bad faith intent harass Simons with the threat or his for ac- prospects multiple prosecutions prejudice first in order to a “Hobson’s jury before the force

quittal seeking to verdict proceeding choice” between mistrial Instead, the prejudiced prosecutor obviously jury. before remain intended that the defendant should unaware trial, trial and that the defendant’s first grounds a new his last. would be is suggest no concealed misconduct

byWe means preferable prosecu- to blatant misconduct. The somehow such deplorable certainly tor’s act of concealment was in a officer discouraged quasi-judicial misconduct must be rather than narrow- duty justice sworn seek whose relief, pursue Appellant convictions. entitled mindedly However, in in the form of a new trial. he received which must that further and dis- deciding go step we whether must grounds, we charge appellant on the admonition Court United remember 361, 366, Morrison, 449 U.S. S.Ct. States (1981): pro- remedy “The the criminal L.Ed.2d the fruits ceeding denying prosecution is limited to Torrez, 335 transgression.” its See also Commonwealth v. (1984) (discharge inappropriate Pa.Super. conduct prosecutorial of officers to remedy failure the The denied lineup). court-ordered Commonwealth was guilty of transgression fruits of its when the tainted verdict grant question the a new trial. The by was struck down of it wrong; act us is was prosecutor’s before not whether is question it was. The already has decided that been which type act was prosecutor’s whether hold this we prevent; was meant to Jeopardy Double Clause not. it was deliberately did overreach

The not nor multiple prosecutions, threat defendant with the of only right tried intentionally defendant’s be subvert discharge Accordingly, extraordinary remedy once. hold case, appellant’s in this and we that is not warranted rights would not violated jeopardy double be retrial. The of a new trial court’s award trial remedies adequately prosecutor’s wrongful concealment the deal with Hallowell, Ravenell. See Commonwealth v. Pa. we are Finally, constrained to correct a misimpression the Dissenting Opinion Sole, J., created in Del that our holding has somehow restricted double relief to cases where mistrial on prosecutorial based misconduct Judge has been the trial. granted during Del Sole states that “if the Majority’s adopted, view trial court when mistrial, faced a motion for might grant be reluctant to same since it would rise give to a double claim while a conviction trial not.” —. and new would At This reflects misreading opinion. statement of our neither We nor expressly distinguish prosecutorial impliedly misconduct met with the immediate declaration of a from mistrial appeal remedied on from a convic- analysis tion. Our on solely focuses whether misconduct by the prosecutor was con- designed vitiate defendant’s protection stitutional fear against jeopardy. Any double grant trial will be loath to meritorious mistrial judges requests holding completely because our is therefore Potter, (same unfounded. See Commonwealth supra applies jeopardy standard whether not mistrial granted). pretrial order the motion to denying reprosecu- bar

tion is affirmed.

BROSKY, J., joins, concurring but also files a opinion. WIEAND, J., concurring files a opinion.

SPAETH, Judge, dissenting President files a opinion. SOLE, J., DEL dissenting files in opinion, a which POPO- VICH, J., joins.

296

BROSKY, Judge, concurring: I in the well-reasoned treatment join majority’s in case. I to also concur the simply merits of this write did the holding that not waive implied appellant majority’s in raising for the time a by issue herein it first treated filed his conjunction motion to dismiss in with pre-trial second trial. that has

Appellee, appellant the Commonwealth contends failing claim to it jeopardy by prior his double raise waived his a new trial. It is clear from the facts being granted raised appellant recited the that his double majority for first time in motion after pre-trial claim a had him Although a new trial. granted the court below not address the Commonwealth’s expressly does majority of claim. argument, appellant’s it does consider merits is that Therefore, inescapable majority the conclusion not procedure appellant does is that followed holding I of claim. agree result a double waiver on the of the rationale of Justice Roberts holding this basis Hallowell, Commonwealth Pa. A.2d 1140 (1981) Reversal). Support (Opinion has com- practice, appellant fully

Our with which present retrial a claim plied, defendant raise before requires appeal from an overreaching, pre-retrial and permits Haefner, Commonwealth v. See adverse determination. (1977); Pa. Bolden, A.2d This practice effective, fair and reasonable provides an vehicle of claims of over- prompt adjudication nec- assuring record reaching, proper development e.g., claim. See Common- such essary adjudicate Mitchell, (1980) wealth A.2d Pa. hearing pursuant present held (pre-retrial evidentiary claim). overreaching facilitated resolution of procedure of over- Moreover, practice this assures that issue retry seeking the Commonwealth is reaching ripe: defendant, claiming retrial the defendant jeopardy. will him twice in place Id., 214, 497 Pa. at 439 A.2d at 1145.1 basis,

On this I agree would with the majority’s implicit case; holding in this namely procedure followed by appellant does not in result waiver of a double jeopardy claim.

WIEAND, Judge, concurring:

I in holding concur of the majority that retrial is not by principles barred of double I jeopardy. write separately because of my disagreement with in language the majority opinion to the effect that the decision of the United States Supreme in Court Oregon v. Kennedy1 must be given prospective application only.

The in Supreme Court Kennedy, although acknowledging the existence of confusion because of in language prior decisions, determined to clarify the “confusion” by stating “ the law to be that ‘reprosecution of a defendant who has successfully moved for a barred, mistrial is not so long as the Government did not deliberately seek to provoke the ” request.’ 8, mistrial Id. at 678 n. 102 S.Ct. at 2090-2091 n. 8, 8, 72 L.Ed.2d at 426 n. quoting United States v. DiFran- cesco, 117, 130, 426, 449 U.S. 434, 328, S.Ct. 66 L.Ed.2d (1980). This decision did represent not a clear break precedent. The Court did no more than clarify prior decisional language while settled applying precedents to the facts of the case then before it. Because the in decision did in not fact existing precedent, alter it bemay applied retrospectively to all cases pending on direct appeal. United Johnson, 537, States v. 548-549, 457 U.S. 102 S.Ct. 2579, 2587, 73 202, (1982). L.Ed.2d V.G.E., See: In re 452 A.2d (D.C.1982). See also: Commonwealth v. Price, Pa.Super. 240, (1983) (Illinois opinion joined by 1. Justice Roberts’ was two of the five other mem- Nix, bers Opinion Support of the Court. Justice in his of Affirm- ance, issue, upon did not comment the waiver but did reach the Kauffman, merits of Opinion the case. Justices Larsen and in their Support appellant’s of Affirmance jeop- would have found the double ardy claim to have been waived. 1. 456 U.S. 102 S.Ct. 72 L.Ed.2d 416 Gates, 2317, 76 to be 103 S.Ct. L.Ed.2d 527 462 U.S. direct at time appeal all cases on applied retrospectively rendered). decision afforded protections federal are coextensive.

state constitutions Hude, (1980). The have decisions of generally courts of followed Pennsylvania States interpreting United constitution. Common- of the state clause jeopardy double 1097, Beaver, 317 88, 100, v. A.2d wealth Pa.Super. 463 decided, (1983). subject has to final review 1103 This Court Court, that apply it will double Oregon Kennedy, v. cases supra, to parameters defined Commonwealth the state constitution. arising under Beaver, 101, 1104, Pa.Superior Ct. at A.2d at supra, 317 463 Wallace, 270, 500 Pa. 455 A.2d citing (1983) (Nix, J., agree I should do concurring). that we any I unable discern reason for this. Because am valid application parameters, of those how- denying retrospective v. Kennedy, supra, ever, I hold that Oregon would cases, or arising to all whether before applicable equally uniformity thereof. We would thus achieve after date in danger defendant of discernible placing any without injustice hardship.2 or

SPAETH, Judge, dissenting: President by Oregon y. Kennedy, If this controlled case were 667, 2083, (1982), 72 L.Ed.2d 416 retrial would U.S. 102 S.Ct. barred, did not prosecution not be for the “intend[] To the moving into for mistrial.” provoke [appellant] intended, his miscon- contrary, by concealing the prosecutor mistrial. preclude appellant duct, moving from for a control, however, does for it is not to be Kennedy, not any My case in second trial 2. failed to disclose which a research has resulting by prosecutorial in a held misconduct was to be barred such was not mistrial or award of a new trial where misconduct enhancing purpose prompted by to abort the trial for an intent jury. obtaining In before different the chances for conviction adequate general, been held an award of a new trial has to be response prosecutorial misconduct. applied retroactively. Beaver, Commonwealth v. 88, 102, Super. The case that Dinitz, does control is United States v. U.S. (1976), S.Ct. 47 L.Ed.2d 267 which overruled. Dinitz, Under retrial is by “prosecutorial barred undertaken in bad faith to prejudice harass” the defend- ant. Since that is the sort of precisely prosecutorial miscon- here, duct that occurred we should hold that retrial barred reverse the order of the trial court permitting retrial.

In Oregon 456 U.S. Kennedy, S.Ct. (1982), L.Ed.2d 416 the Court held ... that the circumstances under which such a defendant may invoke the bar of a second effort him are try limited to those cases which the conduct giving rise to the successful motion for a mistrial was intended to provoke the defendant into moving for a mistrial.

Id. 102 S.Ct. at 2091. I believe that Kennedy means what it says, and for that reason I cannot join SOLE, DEL Judge I although agree Here, with much of he what says.1 prosecutor did not provoke to [appellant] into moving for a mistrial.” “intend[ ] His intention just was to the contrary. course, of Usually, intention must be inferred from conduct. The only infer- ence to be drawn from prosecutor’s conduct here is that he did not want appellant to know about the sentencing agreement with words, Ravenell. In other hoped he trial proceed would smoothly interruption without to a guilty intended, verdict: he by concealing misconduct, his to preclude appellant from moving for a According- mistrial. if ly, case, Kennedy controls this retrial is not barred. note, however, 1. I support Judge reading that there is DEL SOLE’s Kennedy concurring opinion, in Justice POWELL’s which charac- holding majority terizes the as follows: "... the intention of a conduct, determines whether his viewed the defendant mistrial, justifying and the court as bars a retrial of the defendant 679, Jeopardy under the Double Clause.” 456 U.S. at 102 S.Ct. at 2091. 300

However, explain does not control this case. To United States conclusion, to consider necessary this it is Dinitz, 600, 1075, 47 L.Ed.2d 267 96 S.Ct. U.S.

Dinitz held: does a defendant protect Clause Jeopardy Double provoke actions intended to mistrial

against governmental thereby subject defendants to sub- requests multiple prosecutions. It imposed by stantial burdens by judge prose- conduct or bars retrials where “bad-faith cutor,” “[hjarassment of an accused by threatens or declaration of a mistrial so as successive prosecutions opportunity a more favorable prosecution to afford convict” the defendant 611, (citations omitted). 96 S.Ct. at 1079 U.S. States, 23, Lee v. United 33,

See also U.S. S.Ct. 2147, (1977) if the (“Only underlying 53 L.Ed.2d 80 bad faith or undertaken to harass error was ‘motivated retrial.”) {citing any would there be barrier prejudice’ Jorn, United States 400 U.S. S.Ct. (1971)). adopted L.Ed.2d 543 Our Court this Supreme Starks, Pa. analysis (1980): not retrial clause does bar Generally double upon request a new trial his of a defendant who obtains mistrial____ for a clause, however, is

This on the double jeopardy restriction Supreme limitations. The Court has not without its own retrial if the defendant held that will bar miscon- prosecutorial as a result sought mistrial overreaching____ amounting duct enunciated princi- has The United States First overreaching. prosecutorial two pally types designed misconduct which is there is the second, perhaps a a mistrial in order secure provoke favorable, the defendant. opportunity more convict undertaken misconduct prosecutorial there is the Second In the defendant. or harass prejudice faith to bad error, overreaching is not an prosecutorial contrast part process inevitable trial and cannot be con- doned. It signals the breakdown of the integrity judicial proceeding, represents type prosecuto- rial tactic which the double jeopardy clause was designed protect against. Id., 340-41, (citations 490 Pa. at 416 A.2d at 500 omitted). Virtu, 59, And see Commonwealth v. 65 n. (In (1981) Starks, A.2d 201 n. 7 Supreme Court “set forth prosecutorial circumstances under which would be the basis for a claim of former jeopardy____”); Clark, Pa.Super. 380, Commonwealth v. 390 n. (1981) (Starks A.2d 660 n. represents the Common- wealth’s “authoritative standard overreaching cases____”)

When Kennedy’s holding compared Dinitz’s, it is apparent that Kennedy Dinitz, overruled for Kennedy defendant, reduced the a upon bases which after moving for mistrial, could plead double from the provid- two ed by to only Dinitz one. As Justice explained: STEVENS

Today the Court once again recognizes that the exception properly encompasses the situation in prosecu- which the tor commits prejudicial error with the intent provoke mistrial. But the Court reaches out to limit exception situation, to that one rejecting previous recognition that overreaching or harassment is also within the exception.

Oregon Kennedy, supra, 456 U.S. at 102 S.Ct. at (footnotes omitted). said, The majority, Justice had STEVENS “gratuitously off lop[ped] portion of the previously recognized excep- tion.” Id. at 102 S.Ct. at 2092.2 recognizes When one Dinitz, overruled Kennedy conclusion that does not control this case Kennedy becomes Judge Kennedy represent WIEAND’sstatement that "did not 2. a clear precedent” only prior language,” break with but decisional "clarified] WIEAND, J., concurring only contrary to Justice 297. is not Kennedy STEVENS’sview of but to this court’s view. See discussion infra, citing applied our decisions that is not to be retroac- tively.

302 Kennedy tried before was decided. Appellant

clear. was rule a new constitutional apply The decision whether v. discretion, August judicial is a matter retroactively Stasak, 550, (1981), and Pa. we have reasons) Kennedy other (among decided that because standard prior a rule that “narrowed adopted [Dinitz ] mistrials, i.e., overruled cases hold- of review applicable hardship” or contrary,” “injustice to the and because ing avoided, should not applied be thereby would be Beaver, v. 88, Commonwealth Pa.Super. retroactively. See also Commonwealth 1097, A.2d Lark, 330 Pa.Super. 230-231 n. apply Oregon decided to (1984) (“Our court has n. (citations omitted).” Kennedy, supra, prospectively) decide, therefore, is whether under we must question it, Dinitz adopting and the decisions our by misconduct at prosecutorial retrial is barred because faith to harass an here “undertaken bad issue was pros- his prosecutions prejudice accused successive by Clark, supra, acquittal.” for an pects Common- (citing at 430 A.2d at 659 Pa.Super. was; Starks, I no that it supra). wealth v. have doubt indeed, a closer fit with the imagine it difficult to would be “misconduct”; he Dinitz test.3 engaged The faith”; purpose “prejudice “in and his was did so bad acquittal” specifically, by for an [appellant’s] prospects — Ravenell, pre- sentencing agreement with concealing credibility damaging the defense from vent witness. key Commonwealth’s of the trial court should be reversed. The order majority agree that there is a functional difference 3. I cannot with the misconduct, overt between concealed Judge agree DEL SOLE. I also believe that and in this I incongruous majority’s result of reliance on this distinction has the misconduct, they are suc- encouraging prosecutors to conceal for if cessful, analysis, jeopardy upon majority's will not bar a Thus, "[they] by although majority says means no retrial. preferable suggest to blatant that concealed misconduct somehow misconduct," they they preferable, do not hold that it is apply concealed misconduct and would a double bar apply it to blatant misconduct. SOLE, dissenting: DEL Judge, Appellant’s determines that an dou- Today, Majority retrial, not be violated rights ble would conviction, where that retrial was occasioned following a of the District I must Attorney. the intentional misconduct dissent. respectfully actively the District Attorney’s

In the instant case Office Appellant sentencing from and the trial court a concealed and its arrangement made between Commonwealth The record establishes that this conduct was witness. this Although conduct was not intended clearly intentional. in order to an it acquittal a mistrial avoid provoke of a fair trial in order to deprived Appellant nevertheless I find no functional difference between secure a conviction. misconduct, in in engaged prosecution by intentional a mistrial and inten- acquittal by causing order to avoid an misconduct, in in engaged by prosecution tional conceal- evidence, In which results a verdict. either ing guilty case, established, prosecution places the conduct of the once for the same crime. the defendant twice first concludes that the case of Majority Oregon The 669, 102 72 L.Ed.2d 416 456 U.S. S.Ct. Kennedy, (1982) instant fact situation and apply does not to the in part law proceeds Pennsylvania relying to a discussion of Wallace, 500 Pa. on (1983) or not is discussing Kennedy, . Without whether I reliance on Majority’s believe that the Wallace applicable, position in fact supports and that misplaced Wallace Appellant herein. the defendant a In Court awarded Supreme Wallace failure to correct certain prosecutor’s new trial based on the chief witness. false made the Commonwealth’s testimony by defense counsel with provide The also failed to and record. background the witness’s criminal complete motions, conviction, filed two one the defendant Following discharge on requesting trial and one requesting new claiming prosecutor’s actions grounds double Court, Opin- in Majority Supreme were intentional. The Larsen, by granted ion written Justice the defendant’s motion for a new trial and further determined that it was request at this to consider defendant’s premature point discharge grounds on the That jeopardy. that the trial made no on judge findings Court noted wheth- Attorney’s performed mistakenly er the District Office done intentionally that the acts were bad faith. If mistaken, simply any the conduct was the Court held that the error harm caused would be cured a second trial. on to if say Court went the actions were intentionally, subsequent prosecution undertaken would the taint of the District conduct. The Attorney’s not cure held: specifically our of a trial “Accordingly, grant new without Appellant’s the lower prejudice right petition (this on double discharge jeopardy grounds court for preserved throughout issue has these proceedings) been if reprosecution, any, which time the issue prior considered in of all the evidence adduced light would be hearing.” (Emphasis the after-discovered evidence added) Wallace, v. 500 Pa. at supra, the to remand to the

at 1187. What court did was Wallace court, trial, trial after a new with instructions that granting the of the trial court made a determination whether actions intentional and then Attorney’s the District Office were consider the defendant’s motion to on dou- prosecution bar In the instant case the determination jeopardy grounds. ble of intentional the District in con- by Attorney’s cealing evidence has been established. in

The decision Pennsylvania Supreme Court’s Common- Wallace, nine months after the United wealth v. rendered its decision in Supreme Oregon States Court announced in the criteria on wheth- Kennedy, my judgment establishes prohibition er or not will attach. The jeopardy misconduct, keeping criteria intentional which is in of the my reading where United States Oregon Court, Supreme jeopardy when faced with a double claim the declaration of a mistrial held that: following under which such “But do hold that circumstances we in a of double may defendant invoke the bar to those try him are limited cases second effort rise to the successful motion giving the conduct which into provoke the defendant a mistrial was intended moving (Emphasis supplied) for a mistrial.” standard, by prosecutor, action estab- This intentional of the Supreme prose- lished Court United States replaces cases the doctrine of “over- cutorial misconduct In trial court defend- reaching”. Kennedy, granted a prosecutor for a mistrial after the asked ant’s motion Oregon The of objectionable question. an Court witness that the finding prosecu- the trial court’s Appeals accepted Nevertheless, a mistrial. tor did not intend cause held the mistrial was barred because the Appeals Court “overreaching”. The Unit- conduct constituted prosecutor’s “overreaching” this stan- rejected ed States on part prosecu- and instead found “intent” dard factor. to be the determinative tor contrast, that examines the “By a standard intent certainly entirely not free from prosecutor, though difficulties, manageable apply. standard to practical finding of fact. calls for the court make merely It of intent from the existence or nonexistence Inferring process and circumstances is a familiar objective facts our criminal justice system.” 102 S.Ct. at 2089. Oregon Kennedy, supra, it is for mistrial to Majority necessary believes that conduct rise a double gives declared before intentional be Here, I disagree. had the concealment claim. trial, a during been discovered evidence However, the prosecu- mistrial would have been declared. Appellant making from prevented tor’s concealment made, it If the were mistrial motion necessary motion. have double would granted jeopardy have and would been situations, two I find the distinction between applied. have occurred here that which would presented and as deprive not so granted, significant had a mistrial been Appellant of his jeopardy double claim. The test is inten- tional misconduct. Intentional misconduct which is con- cealed is no than surely better intentional misconduct which becomes evident trial. A during party’s rights should not be affected because a was enough clever to hide his misconduct during course of the trial.

Also, if the Majority’s is adopted, view a trial court when mistrial, faced with a motion for might be grant reluctant to same since it would rise give to a double claim while a conviction and new trial would not. This eventuali- ty also one that was addressed in Kennedy, supra, the United States sought to avoid such actions by establishing an intentional standard opposed as to “overreaching”.

It may argued be that the misconduct here can correct- be retrial, ed aby however, that would also be the case had a mistrial been declared and a retrial ensues. Since latter situation double would prevent retrial, I believe that it prevent should also init the instant case.

It is view that my intentional misconduct aby prosecutor which either results in a mistrial or in a conviction and subsequent new trial are not functionally different and jeopardy protection should apply.

POPOVICH, J., joins. Pennsylvania, Appellant,

COMMONWEALTH of Richard WOJTCZAK.

Superior Pennsylvania. Court of

Submitted Nov. 1984. May

Filed 1985.

Case Details

Case Name: Commonwealth v. Simons

Court Name: Supreme Court of Pennsylvania

Date Published: May 10, 1985

Citation: 492 A.2d 1119

Docket Number: 3084

Court Abbreviation: Pa.