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decided: October 5, 1978.


No. 336 January Term, 1977, Appeal from the Order of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, Denying Motion to Dismiss Indictment No. 206, September Term, 1971.


Michael M. Baylson, Samuel Kagle, Philadelphia, for appellant.

F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Deputy Dist. Atty. for Law, Michael R. Stiles, Asst. Dist. Atty., Chief, Appeals Div., Marrianne E. Cox, Asst. Dist. Atty., Philadelphia, for appellee.

Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Packel, J., did not participate in the consideration or decision of this case. Roberts, J., filed a concurring opinion in which O'Brien and Pomeroy, JJ., join. Eagen, C. J., and O'Brien and Manderino, JJ., concurred in the result.

Author: Nix

[ 482 Pa. Page 334]


The pivotal question presented in this appeal is whether the Double Jeopardy Clauses of the United States and Pennsylvania Constitutions would be violated by a retrial of appellant under an indictment where two previously completed

[ 482 Pa. Page 335]

    trials had resulted in the award of new trials at appellant's request.

Appellant, Anthony Hogan, was arrested for the slaying of a police officer on November 20, 1971. Appellant was thereafter convicted of first degree murder in two jury trials and on each occasion was awarded a new trial by the court en banc. Prior to the commencement of the third trial a motion to dismiss the indictment for an alleged double jeopardy violation was filed on appellant's behalf. After hearing testimony and argument on the motion, the court entered an order denying the motion to dismiss. It is from this order that the instant appeal arises. For the reasons that follow, we now affirm.

At the outset we must address the question of the appealability of the denial of this motion at this time. While the general rule in criminal law is that a defendant may appeal only from a judgment of sentence, Commonwealth v. Myers, 457 Pa. 317, 322 A.2d 131 (1974); Commonwealth v. Sites, 430 Pa. 115, 242 A.2d 220 (1968); Commonwealth v. Wright, 383 Pa. 532, 119 A.2d 492 (1956), a majority of this Court has held that we do have jurisdiction to hear an appeal from the denial of a defendant's pre-trial motion to dismiss an indictment on double jeopardy grounds, Commonwealth v. Bolden, 472 Pa. 602, 373 A.2d 90 (1977).*fn1 See also Commonwealth v. Haefner, 473 Pa. 154, 373 A.2d 1094 (1977).

[ 482 Pa. Page 336]

Having concluded that the matter is ripe for decision, we now turn to the merits of appellant's contention. It is argued that the awards of new trials following the first two trials were occasioned by prosecutorial misconduct,*fn2 and therefore the allowance of a third trial would constitute an infringement upon the protection against double jeopardy.

The fifth amendment's guarantee against double jeopardy consists "of three separate constitutional protections. It 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." North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969). See also United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896) (prosecution following acquittal); In re Nielsen, 131 U.S. 176, 9 S.Ct. 672, 33 L.Ed. 118 (1889) (prosecution following conviction); United States v. Benz, 282 U.S. 304, 51 S.Ct. 113, 75 L.Ed. 354 (1931) (multiple punishments).

The United States Supreme Court has ofttimes stated the concept underlying the double jeopardy clause:

"Underlying this constitutional safeguard is the belief 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 continuous state of anxiety and insecurity, as well

[ 482 Pa. Page 337]

    as enhancing the possibility that even though innocent he may be found guilty.' Green v. United States, 355 U.S. 184, 187-188, 78 S.Ct. 221, 223, 2 L.Ed.2d 199, 204".

Quoted in United States v. Scott, 437 U.S. 82, 86-87, 98 S.Ct. 2187, 2191-2192, 57 L.Ed.2d 65, 71-72 (1978); United States v. Dinitz, 424 U.S. 600, 606, 96 S.Ct. 1075, 1079, 47 L.Ed.2d 267 (1976). The successive prosecution of the double jeopardy protection arises in two distinct settings. The first setting involves the termination of a criminal proceeding at a stage short of judgment, so that no final determination of guilt or innocence has been made. This form of termination is most frequently encountered where the proceeding has ended in a mistrial.

In such circumstances, the key double jeopardy consideration is whether "the defendant has been deprived of his 'valued right to have his trial completed by a particular tribunal.'" See United States v. Jorn, 400 U.S. 470, 484, 91 S.Ct. 547, 557, 27 L.Ed.2d 543 (1971) (plurality opinion by Harlan, J.), quoting Wade v. Hunter, 336 U.S. 648, 689, 69 S.Ct. 834, 93 L.Ed. 974 (1949). This right is firmly within the protection of the double jeopardy prohibition. Crist v. Bretz, 437 U.S. 28, 38, 98 S.Ct. 2156, 2162, 57 L.Ed.2d 24, 33 (1978). The evil that the double jeopardy protection focuses upon in this context is that the government should be prevented from deliberately causing the abortion of the proceeding to secure more favorable opportunity to convict. Downum v. United States, 372 U.S. 734, 736, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963). Thus, overreaching or bad faith conduct by the prosecutor or trial judge are relevant in determining the scope of the double jeopardy protection when mistrials have been declared. United States v. Scott, 437 U.S. 82, 93, 98 S.Ct. 2187, 2195, 57 L.Ed.2d 65, 76 (1978); United States v. Dinitz, 424 U.S. 600, 611, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976); United States v. Jorn, supra, 400 U.S. at 484, 485, 91 S.Ct. 547.

The second setting which requires a consideration of the double jeopardy protection, as it applies to successive prosecutions is where the defendant has gone to verdict with the

[ 482 Pa. Page 338]

    tribunal of his choice and, following his conviction by that tribunal, he has successfully appealed and won a new trial. Prosecutorial ...

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