408 A.2d 1141 | Pa. Super. Ct. | 1979
Appellant appeals from the denial of his motion in arrest of judgment, following a second trial, which sought dismissal of all the charges against him on the ground of double jeopardy. The single question
Appellant’s first trial resulted in a mistrial as the result of the Commonwealth’s failure to disclose to the defense a statement allegedly made by appellant. Appellant was granted a new trial by the trial court after his second trial because of improper remarks made by the prosecutor during his closing argument.
Appellant relies on the opinion in support of affirmance authored by former Justice Pomeroy in Commonwealth v. Potter, 478 Pa. 251, 386 A.2d 918 (1978) to provide the theory for invoking the double jeopardy clause. In Potter, it was held that a retrial would be barred “when the prosecuting lawyer, judged by an objective standard, must be deemed to have been substantially certain that a mistrial would be declared as a result of his questions to witnesses or other conduct at trial.” Id., 478 Pa. at 267, 386 A.2d 926. Application of the Potter “substantial certainty” requires close attention to the sequence of events and the exact language used by the parties and the trial court. Id., 478 Pa. at 268, 386 A.2d at 926. In Potter, it was determined that a review
Assuming arguendo that Potter correctly announced a theory of recovery under the double jeopardy clause, even though the earlier trial proceeded to a final determination before the jury then impanelled,
The remedy of discharge sought by appellant far exceeds the remedy necessary to protect a criminal defendant from the kind of misconduct by the prosecutor as happened in this case. Appellant was properly awarded a new trial, which is all the relief to which he was entitled. See Commonwealth v. Gilman, 470 Pa. 179, 368 A.2d 253 (1977).
. Appellant also attempts to argue that the trial court erred in denying his pre-trial motion to suppress; however, in light of the trial court’s grant of a new trial, its determination relating to the pre-trial motion need not be considered at this time. Any ruling on the admissibility of this evidence by this Court, at this time, would be premature since this evidence may or may not be introduced at the time of re-trial. If the complained of evidence is in fact used in the re-trial, the objection can be preserved and considered during post-verdict motions after that trial. See Commonwealth v. Oakes, 481 Pa. 343, 392 A.2d 1324 (1978); Commonwealth v. Cole, 437 Pa. 288, 263 A.2d 339 (1970); Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304 (1963); Commonwealth v. Laudenslager, 260 Pa.Super. 395, 394 A.2d 985 (1978).
. But see Commonwealth v. Hogan, 482 Pa. 333, 393 A.2d 1133 (1978).