Appeal from order of Superior Court, April T., 1968, No. 79, affirming judgment of sentence of Court of Common Pleas of McKean County, Feb. T., 1967, No. 72, in case of Commonwealth of Pennsylvania v. Edwin J. Wright.
George B. Angell, with him Angell & Angell, for appellant.
William F. Potter, District Attorney, for Commonwealth, appellee.
Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Cohen. Mr. Justice Roberts concurs in the result.
This is an appeal by Edwin Wright, appellant, from the decision of the Superior Court, 216 Pa. Superior Ct. 773, 260 A.2d 503 (1970), affirming per curiam the judgment of sentence of the Court of Quarter Sessions (now the Court of Common Pleas, Criminal Division) of McKean County. The only question before us is whether the double jeopardy clause in the Fifth Amendment to the United States Constitution, made applicable to the states by Benton v. Maryland, 395 U.S. 784 (1969), bars this prosecution.
On March 13, 1967 a jury was chosen, and appellant's first trial began. During that first day of trial appellant requested a ruling in advance of any offer by the Commonwealth as to the admissibility of his prior record in the event he elected to testify on his own behalf. The lower court ruled that the District Attorney could submit appellant's record in the form in which it was presented for consideration to the court. This ruling, however, was reversed at the start of the second day of trial. The record discloses the following statement by the court: "However, overnight in reviewing the law and studying the matter, the Court this morning felt that we were wrong in that position in the fact that the record was not certified or exemplified and that therefore in the form that the record was available to the Commonwealth we felt this morning and so informed counsel . . . that it would be subject to the objection made by counsel for the defendant . . . the Court indicated that . . . we would have to rule adversely to the Commonwealth if that record was offered."
After appellant had testified on direct examination and after cross-examination had proceeded for a short while, the District Attorney, completely out-of-context of his previous questions, stated, "Your Honor, I want to offer into evidence the record of this defendant consisting
of six burglaries". (Appellant was being tried on a charge of burglary). This led to extensive discussions at side bar during the course of which appellant moved for the withdrawal of a juror. The court granted the motion.
On June 15, 1967, the date appellant's second trial was to begin, appellant filed a motion for dismissal of the indictment and acquittal. This was denied, and appellant was found guilty by the jury. After denial of post-trial motions and affirmance of the judgment by the Superior Court, appellant filed an allocatur petition which we granted.
From our decisions in Commonwealth v. Metz, 425 Pa. 188, 228 A.2d 729 (1967), Commonwealth v. Warfield, 424 Pa. 555, 227 A.2d 177 (1967), and Commonwealth ex rel. Montgomery v. Myers, 422 Pa. 180, 220 A.2d 859 (1966) has developed the rule that a defendant who has moved for a mistrial in response to prosecutorial misconduct may be retried if the prosecution has not invited the mistrial in order to secure another, possibly more favorable opportunity to convict the accused.*fn1 This is because society's interest in preventing the guilty from going unpunished out-weighs the risk of harrassment and the burdens the defendant will incur in going through a second trial.
Before applying this rule to the facts before us, it is necessary to determine whether federal double jeopardy standards, which are now applicable as a result of Benton v. ...