Joseph V. Furlong, Philadelphia, for appellant.
Robert B. Lawler, Chief, Appeals Div., Victor Fortuno, Philadelphia, for appellee.
Eagen, C. J., and O'Brien, Roberts, Nix, Larsen and Flaherty, JJ. Roberts, J., filed a concurring opinion. Nix and Larsen, JJ., concur in the result.
Appellant, Widmark Mitchell, was brought to trial in the Court of Common Pleas of Philadelphia on June 6, 1977, for the murder of James Fulton. After the jury was empaneled and sworn, a mistrial was ordered on Mitchell's motion. Thereafter, he moved to dismiss the indictment, claiming that a second prosecution would violate his constitutional right not to be placed twice in jeopardy. The motion was denied, and Mitchell appealed to this Court.*fn1
Appellant contends his request for a mistrial was necessitated by conduct of the prosecutor specifically intended to cause a mistrial. If this claim were meritorious, retrial on the same charges would violate the double jeopardy clause. However, our review of the record has disclosed no prosecutorial misconduct in the first proceeding. Thus, we conclude
that the double jeopardy clause is no barrier to a new trial of the accused. Accordingly, we affirm the trial court's order denying Mitchell's motion to dismiss and remand for trial.
In deciding whether the circumstances surrounding a mistrial will bar reprosecution on the same charges, we apply the standards established by both Pennsylvania and federal decisions.*fn2 Ordinarily, the double jeopardy clause does not bar retrial of an accused where an earlier proceeding is terminated prior to judgment. Retrial is permitted where the trial court, because of manifest necessity, declares a mistrial over the defendant's objection, see Illinois v. Somerville, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973); Commonwealth v. Robson, 461 Pa. 615, 337 A.2d 573 (1975); Commonwealth v. Brown, 451 Pa. 395, 301 A.2d 876 (1973); Commonwealth v. Lauria, 450 Pa. 72, 297 A.2d 906 (1972), as well as where a mistrial is granted at defendant's request on the basis of prosecutorial or judicial error. See United States v. Dinitz, 424 U.S. 600, 611, 96 S.Ct. 1075, 1081, 47 L.Ed.2d 267 (1976); United States v. Jorn, 400 U.S. 470, 484, 91 S.Ct. 547, 557, 27 L.Ed.2d 543 (1971) (plurality opinion); Commonwealth v. Metz, 425 Pa. 188, 228 A.2d 729 (1967); Commonwealth v. Warfield, 424 Pa. 555, 227 A.2d 177 (1967); Commonwealth ex rel. Montgomery v. Myers, 422 Pa. 180, 220 A.2d 859 (1966). The only exception to the rule permitting retrial is where a defendant's mistrial request is necessitated by prosecutorial error committed intentionally to force the accused to move for mistrial, thereby affording the prosecution another, possibly more favorable, opportunity to convict. United States v. Dinitz, supra; United States v. Jorn, supra; Downum v. United States, 372 U.S. 734, 736, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963); Commonwealth v. Gravely, 486 Pa. 194, 198-200, 404 A.2d 1296, 1298 (1979); Commonwealth v. Hogan, 482 Pa. 333, 393 A.2d 1133
(1978) (opinion announcing the decision of the Court); Commonwealth v. Potter, 478 Pa. 251, 261, 386 A.2d 918, 922 (1978) (opinion in support of affirmance). When such governmental overreaching or bad faith is found to exist, the double jeopardy clause will bar retrial.
In the instant case, counsel filed a pretrial application to exclude the defendant's prior conviction for murder pursuant to Commonwealth v. Bighum.*fn3 On May 24, 1977, the court entered an order prohibiting the Commonwealth from presenting evidence of the defendant's prior conviction. On June 6, 1977, the case proceeded to trial, and the Commonwealth called as its second witness, Mrs. Shirley McClennan, an ...