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decided: April 28, 1977.



Thomas A. Livingston, John L. Doherty, James K. O'Malley, Pittsburgh, for appellant.

Jess D. Costa, Dist. Atty., Samuel L. Rodgers, First Asst. Dist. Atty., Washington, for appellee.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Jones, former C. J., did not participate in the decision of this case. Eagen, C. J., concurs in the result. Pomeroy, J., filed a concurring opinion. Nix, J., filed a dissenting opinion in which O'Brien, J., joins.

Author: Roberts

[ 472 Pa. Page 609]


Appellant Richard Bolden was brought to trial on January 21, 1976 for the murder of Robert (Tim) Indyk. After the jury was sworn and empaneled, a mistrial was ordered on appellant's motion. Prior to commencement of a second trial, appellant moved to dismiss the indictment, claiming that a second prosecution would violate his constitutional right not to be placed twice in jeopardy.*fn1 This motion was denied and appellant seeks review in this Court.

We hold that the denial of a pre-trial application to dismiss an indictment on the ground that the scheduled trial will violate the defendant's right not to be placed twice in jeopardy may be appealed before the new trial takes place. Once a defendant is erroneously subjected to another prosecution, neither an acquittal nor appellate reversal of a conviction is sufficient to vindicate his constitutional right not to be placed twice in jeopardy. We conclude that the right to be free from multiple prosecution, embodied in the double jeopardy clause, can be adequately protected only by permitting an immediate appeal from a trial court's denial of relief. As Mr. Chief Justice Burger has observed, a criminal prosecution "imposes heavy pressures and burdens . . . 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.'"*fn2

On the merits, appellant asserts that his request for a mistrial during the first trial was necessitated by serious prosecutorial and judicial misconduct and that retrial would violate the double jeopardy clause. We find no

[ 472 Pa. Page 610]

    prosecutorial or judicial overreaching in the first proceeding and conclude that the double jeopardy clause is no barrier to a new trial. Accordingly, we affirm the trial court's order denying appellant's motion to dismiss and remand for trial.


The threshold question in this appeal is whether this Court has jurisdiction to hear an appeal from a defendant's pre-trial motion to dismiss an indictment on double jeopardy grounds.

The Appellate Court Jurisdiction Act of 1970 provides this Court with exclusive jurisdiction of appeals from "final orders of the courts of common pleas" in felonious homicide cases.*fn3 Generally, a criminal defendant may appeal only from a judgment of sentence. E. g., Commonwealth v. Sites, 430 Pa. 115, 242 A.2d 220 (1968). This rule prevents undue delay and avoids the disruption of criminal cases by piecemeal appellate review. See generally Cobbledick v. United States, 309 U.S. 323, 60 S.Ct. 540, 84 L.Ed. 783 (1940); In re Grand Jury Proceedings, 525 F.2d 151 (3d Cir. 1975). However, this Court has recognized that the final judgment rule is neither absolute nor inflexible. An appeal before judgment of sentence will be permitted when the need for immediate review outweighs the purposes of the final judgment rule. See ABA Project on Standards for Criminal Justice, Standards Relating to Criminal Appeals § 1.3(b), commentary (d) (Approved Draft, 1970).

In Commonwealth v. Washington, 428 Pa. 131, 136, 236 A.2d 772, 775 (1968), this Court stated:

"Onto the general rule that orders entered in a criminal case prior to final judgment are not appealable by the defendant this Court has engrafted an exception for cases presenting exceptional circumstances."

[ 472 Pa. Page 611]

Exceptional circumstances exist

". . . (1) where an appeal is necessary to prevent a great injustice to the defendant, or (2) where an issue of basic human rights is involved, or (3) where an issue of great public importance is involved."

Commonwealth v. Swanson, 424 Pa. 192, 194, 225 A.2d 231, 232 (1967) (per Bell, C. J., for a unanimous Court); accord, Commonwealth v. Bruno, 424 Pa. 96, 225 A.2d 241 (1967); Commonwealth v. Byrd, 421 Pa. 513, 219 A.2d 293 (1966).

Our case law permits appeals prior to judgment of sentence when an immediate appeal is necessary to vindicate the right asserted by the defendant.*fn4 Commonwealth v. Leaming, 442 Pa. 223, 275 A.2d 43 (1971) (nolle prosequi order appealable where defendant asserted violation of right to a speedy trial); accord, Commonwealth v. Reinhart, 466 Pa. 591, 353 A.2d 848 (1976); see Commonwealth v. Bunter, 445 Pa. 413, 282 A.2d 705 (1971) (plurality opinion) (motion to quash indictment due to asserted violation of right to a speedy trial appealable). Before an appeal is quashed as interlocutory, this Court must determine that the defendant's rights will not be forfeited by delaying appellate review.*fn5 Thus, under

[ 472 Pa. Page 612]

    the final judgment rule and the Appellate Court Jurisdiction Act, "[t]he finality of an order is a judicial conclusion which can be reached only after an examination of its ramifications." Bell v. Beneficial Consumer Discount Co., 465 Pa. 225, 228, 348 A.2d 734, 735 (1975). The exceptional circumstances doctrine follows the principle "that a finding of finality must be the result of a practical rather than a technical construction."*fn6 Id. The exceptional circumstances doctrine requires that an appeal be permitted when immediate resolution of the controversy is necessary to protect the defendant's rights.

In this respect, Pennsylvania practice is in accord with federal law. While the final judgment rule is the general rule in federal practice, various exceptions have been created. 9 J. Moore, Federal Practice para. 110.08[1], at 112 (2d ed. 1975).

One important exception was set out in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). The Supreme Court held that an order is appealable under 28 U.S.C.A. § 1291 (1966)*fn7 when the appellant's claim is

"separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated."

Id. at 546, 69 S.Ct. at 1225-26.

In DiBella v. United States, 369 U.S. 121, 126, 82 S.Ct. 654, 657, 7 L.Ed.2d 614 (1962), the Court reaffirmed the

[ 472 Pa. Page 613]

    principle that immediate review is proper when "the practical effect of the order will be irreparable by any subsequent appeal." Accord, United States v. Ryan, 402 U.S. 530, 533, 91 S.Ct. 1580, 1582, 29 L.Ed.2d 85 (1971) (dictum); see Stack v. Boyle, 342 U.S. 1, 72 S.Ct. 1, 96 L.Ed. 3 (1951) (order denying motion to reduce bail is a final decision appealable under 28 U.S.C.A. § 1291 (1966)). See also 18 U.S.C.A. § 3147 (1969).

Applying this principle, the Second, Third, Fourth and Eighth Circuit Courts of Appeals have held that the denial of a defendant's double jeopardy claim is a "final decision" within the meaning of 28 U.S.C.A. § 1291 (1966) and may be appealed prior to judgment of sentence. United States v. Alessi, 536 F.2d 978 (2d Cir. 1976); United States v. MacDonald, 531 F.2d 196 (4th Cir. 1976) (dictum), petition for cert. filed 45 U.S.L.W. 3005 (U.S., June 29, 1976) (No. 75-1892); United States v. Barket, 530 F.2d 181 (8th Cir. 1975), cert. denied, 429 U.S. 917, 97 S.Ct. 308, 50 L.Ed.2d 282 (1976); United States v. DiSilvio, 520 F.2d 247 (3d Cir.), cert. denied, 423 U.S. 1015, 96 S.Ct. 447, 46 L.Ed.2d 386 (1975); United States v. Lansdown, 460 F.2d 164 (4th Cir. 1972). Contra, United States v. Young, 544 F.2d 415 (9th Cir. 1976), cert. denied, 97 S.Ct. 643, 50 L.Ed.2d 626 (1976); United States v. Bailey, 512 F.2d 833 (5th Cir.), cert. dismissed, 423 U.S. 1039, 96 S.Ct. 578, 46 L.Ed.2d 415 (1975); Gilmore v. United States, 264 F.2d 44 (5th Cir.), cert. denied, 359 U.S. 994, 79 S.Ct. 1126, 3 L.Ed.2d 982 (1959).*fn8

Thus, the issue presented is whether a defendant's rights under the double jeopardy clause are adequately

[ 472 Pa. Page 614]

    protected if he must first undergo another trial before receiving appellate review of his constitutional claim. This in turn requires an examination of the purposes of and interests served by the double jeopardy clause. If the clause is designed to protect an individual from having to stand trial, not just to bar conviction, appellate review after judgment of sentence will not adequately protect appellant's rights. Under Pennsylvania law, "exceptional circumstances" would then exist and a defendant should be permitted to appeal the denial of an application to dismiss before the new trial takes place.*fn9



The principle that no one shall be put twice in jeopardy for the same offense "is one of the oldest ideas found in western civilization." Bartkus v. Illinois, 359 U.S. 121, 151, 79 S.Ct. 676, 696, 3 L.Ed.2d 684 (1959) (Black, J., dissenting). Its roots can be traced to classical

[ 472 Pa. Page 615]

    antiquity.*fn10 The origins of the protection against double jeopardy in American law are found in English common law. In England, the principle matured into the four common law pleas of autrefois acquit, autrefois convict, autrefois attaint and former pardon. See J. Sigler, Double Jeopardy 4-20 (1969) [hereinafter cited as Sigler]. Blackstone wrote that the principle "that no man is to be brought into jeopardy of his life, more than once, for the same offence" was a "universal maxim of the common law of England."*fn11

In the United States, the double jeopardy principle was elevated to constitutional status.*fn12 The first version

[ 472 Pa. Page 616]

    of the double jeopardy clause introduced by James Madison in the House of Representatives read: "No person shall be subject, except in cases of impeachment, to more than one punishment or one trial for the same offence." 1 Annals of Cong. 434 (1789). The debate which followed evidenced concern that Madison's language might work a change in existing law.*fn13 In the end, Congress adopted the reputable, if less clear, common law phraseology. Judge Friendly has suggested that "the draftsmen of the Bill of Rights intended to import into the Constitution the common law protections much as they were described by Blackstone." United States v. Jenkins, 490 F.2d 868, 873 (2d Cir. 1973), aff'd, 420 U.S. 358, 95 S.Ct. 1006, 43 L.Ed.2d 250 (1975). However, American law has not, in fact, limited the scope of the protection afforded by the double jeopardy clause to that espoused by Blackstone.*fn14 Moreover, one scholar notes that:

"[t]he state of English law at the time when the American Constitution was written [in order] to preserve the rights which Englishmen had traditionally enjoyed, does not permit the evaluation of double jeopardy

[ 472 Pa. Page 617]

    as a clearly established fundamental restriction upon the organized power of the executive. Even in the writings of Coke the immutability of the doctrine was not fixed. It had not attained the significance of certain other rights."

Sigler, supra at 21.

At the time the fifth amendment was adopted, the double jeopardy principle found expression in the maxim nemo debat bis vexari pro una et eadem causa ("It is a rule of law that a man shall not be twice vexed for one and the same cause.").*fn15 As such, the double jeopardy clause embodied a moral sentiment whose meaning would be revealed only through the application of its underlying policies to specific contexts. These policies have been concisely summarized as follows:

"First, guilt should be established by proving the elements of a crime to the satisfaction of a single jury, not by capitalizing on the increased probability of conviction resulting from repeated prosecutions before many juries. Thus reprosecution for the same offense is prohibited. Second, the prosecution should not be able to search for an agreeable sentence by bringing successive prosecutions for the same offense before different judges. Thus reprosecution after a conviction is prohibited. Third, criminal trials should not become an instrument for unnecessarily badgering individuals. Thus the Constitution forbids a second trial -- a second jeopardy -- and not merely a conviction at the second trial. Finally, judges should not impose multiple punishment for a single legislatively defined offense. Thus multiple punishment for the same offense at a single trial is prohibited."

Note, Twice in Jeopardy, 75 Yale L.J. 262, 266-67 (1965) (footnotes omitted) [hereinafter cited as Twice in Jeopardy]; see Commonwealth v. Mills, 447 Pa. 163,

[ 472 Pa. Page 618286]

A.2d 638 (1971). In United States v. Wilson, 420 U.S. 332, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975), the Court stated that the double jeopardy clause

"'protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.'"

Id. at 342-43, 95 S.Ct. at 1021, quoting North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969). See generally 18 Pa.C.S.A. §§ 109-10 (1973).

Double jeopardy also shares the purposes of the civil law rules of finality: (1) protecting parties and the courts from the expense of unnecessary litigation due to retrial of previously adjudicated issues; (2) protecting parties from the harassment of repeated litigation, permitting them to consider the matter closed and plan their lives without the threat of subsequent litigation arising out of the same transaction. See Note, Statutory Implementation of Double Jeopardy Clauses: New Life for a Moribund Constitutional Guarantee, 65 Yale L.J. 339, 340-41 (1956).

[ 472 Pa. Page 619]

In short, the constitutional prohibition against double jeopardy represents two fundamental and distinct protections: that no person should be harassed by successive prosecutions for a single wrongful act and that no person should be punished more than once for the same offense.*fn16 Id. at 339-40; see Commonwealth v. Page 619} Campana, 452 Pa. 233, 241-42 n. 5, 304 A.2d 432, 435 n. 5 (plurality opinion), vacated, 414 U.S. 808, 94 S.Ct. 73, 38 L.Ed.2d 44 (1973), reinstated on remand, 455 Pa. 622, 314 A.2d 854, cert. denied, 417 U.S. 969, 94 S.Ct. 3172, 41 L.Ed.2d 1139 (1974); Sigler, supra at 222; Twice in Jeopardy, supra at 267 and authorities cited at n. 19.


Application of the constitutional command to specific cases is often a difficult task. The leading cases construing the double jeopardy clause have emphasized that its purpose is to prevent the retrial itself, not merely conviction and punishment. As Justice Black wrote for the majority in Green v. United States, 355 U.S. 184, 187, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957):

"The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, 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."

Courts have continually turned to this influential passage for guidance in construing the double jeopardy clause. E. g., United States v. Dinitz, 424 U.S. 600, 605, 96 S.Ct. 1075, 1079, 47 L.Ed.2d 267 (1976); Serfass v. United States, 420 U.S. 377, 387-88, 95 S.Ct. 1055, 1062, 43 L.Ed.2d 265 (1975); United States v. Jenkins, 420 U.S. 358, 370, 95 S.Ct. 1006, 1013, 43 L.Ed.2d 250 (1975); United States v. Wilson, 420 U.S. 332, 343, 95 S.Ct. 1013, 1022, 43 L.Ed.2d 232 (1975); United States v. Jorn, 400 U.S. 470, 479, 91 S.Ct. 547, 555, 27 L.Ed.2d 543 (1971) (plurality opinion of Harlan, J.); Benton v. Maryland, 395 U.S. 784, 795-96, 89 S.Ct. 2056, 2063, 23 L.Ed.2d 707

[ 472 Pa. Page 620]

(1969); Abbate v. United States, 359 U.S. 187, 199, 79 S.Ct. 666, 673, 3 L.Ed.2d 729 (1959) (opinion of Brennan, J.); United States v. Kessler, 530 F.2d 1246, 1253-54 (5th Cir. 1976); United States ex rel. Webb v. Court of Common Pleas, 516 F.2d 1034, 1040 (3d Cir. 1975); United States ex rel. Russo v. Superior Court, 483 F.2d 7, 12 (3d Cir.), cert. denied, 414 U.S. 1023, 94 S.Ct. 447, 38 L.Ed.2d 315 (1973); United States v. Lansdown, supra, 460 F.2d at 171.

Situations which implicate the policy against multiple prosecution include:

(1) reprosecution after final judgment is reached in previous trial;*fn17

(2) reprosecution after the first trial ends without judgment;

(3) successive prosecutions by different jurisdictions; and

(4) governmental appeal from a trial court's decision in defendant's favor.

In each of these situations, the double jeopardy implications stem from the burdens on the defendant from having to stand trial a second time, not simply from the possibility of conviction or multiple punishment.

1. Prosecution for same offense after prior final judgment.

The most straightforward application of the double jeopardy clause arises when a second prosecution is instituted against an individual who has been acquitted or convicted of the same offense in a prior trial. In the

[ 472 Pa. Page 621]

    seminal case, Ball v. United States, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896), the Supreme Court held that a verdict of acquittal is a bar to a subsequent prosecution for the same offense. The Court stated that the constitutional prohibition "is not against being twice punished, but against being twice put in jeopardy". 163 U.S. at 669, 16 S.Ct. at 1194. Cf. United States v. Sisson, 399 U.S. 267, 90 S.Ct. 2117, 26 L.Ed.2d 608 (1970); Fong Foo v. United States, 369 U.S. 141, 82 S.Ct. 671, 7 L.Ed.2d 629 (1962). See also Note, Government Appeals of "Dismissals" in Criminal Cases, 87 Harv.L.Rev. 1822 (1974).*fn18

The problem arose in a different context in Price v. Georgia, 398 U.S. 323, 90 S.Ct. 1757, 26 L.Ed.2d 300 (1970), where the state attempted to retry an accused for murder after an earlier guilty verdict on the lesser included offense of voluntary manslaughter ...

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