No. 370 January Term, 1978, Appeal from the Order of the Court of Common Pleas of Philadelphia, Criminal Trial Division, November Term, 1973, Nos. 1407 and 1408, dated August 28, 1978, denying appellant's motion to dismiss on the grounds of double jeopardy.
Louis Lipschitz, Philadelphia, for appellant.
Robert B. Lawler, Chief, Appeals Division, Andrew B. Cohn, Philadelphia, for appellee.
Eagen, C. J., and O'Brien, Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. Larsen, J., concurs in the result. Nix, J., filed a dissenting opinion.
On October 8, 1974, appellant William Starks was convicted by a jury of murder of the first degree and unlawfully carrying a firearm. He was sentenced to concurrent prison
terms of life for the murder conviction and two and one-half to five years for the firearms conviction. On appeal, appellant claimed that his motion for mistrial on the ground of prosecutorial misconduct was improperly denied. This Court agreed with appellant and accordingly granted him a new trial. Commonwealth v. Starks, 479 Pa. 51, 387 A.2d 829 (1978).
Appellant now contends by pre-trial motion that retrial would impermissibly place him twice in jeopardy. Appellant correctly states that prosecutorial misconduct which rises to the level of "overreaching" will bar retrial. See Lee v. United States, 432 U.S. 23, 97 S.Ct. 2141, 52 L.Ed.2d 80 (1977). Appellant claims here that the prosecutorial misconduct at his first trial, which resulted in this Court vacating judgments of sentence, constitutes prosecutorial overreaching. The court of common pleas disagreed and denied appellant's motion. We affirm.*fn1
The United States Constitution, amendment V declares that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb . . . ." Pennsylvania likewise extends such protection to the accused. See Pa.Const., art. I, § 10; Commonwealth v. Campana, 455 Pa. 622, 314 A.2d 854 (1974). This proscription against double jeopardy means that no one should be harassed by successive prosecutions for a single wrongful act and that no one should be punished more than once for the same offense. See United States v. Wilson, 420 U.S. 332, 342-43, 95 S.Ct. 1013, 1021, 43 L.Ed.2d 232 (1975); Note, Statutory Implementation of Double Jeopardy Clauses: New Life for a Moribund Constitutional Guarantee, 65 Yale L.J. 339, 339-40 (1956). There can be no doubt that this constitutional protection is fundamental to our system of criminal justice, for, as the United States Supreme Court explained:
"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 ...