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decided: July 3, 1980.


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.

Author: Roberts

[ 490 Pa. Page 338]


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

[ 490 Pa. Page 339]

    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:

[ 490 Pa. Page 340]

"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."

Green v. United States, 355 U.S. 184, 187, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957); see Benton v. Maryland, 395 U.S. 784, 795-96, 89 S.Ct. 2056, 2063, 23 L.Ed.2d 707 (1969) (constitutional guarantee against double jeopardy applies to states because of its "fundamental nature"); Commonwealth v. Mills, 447 Pa. 163, 286 A.2d 638 (1971). As Mr. Chief Justice Burger wrote, a criminal proceeding "imposes heavy pressures and burdens -- psychological, physical, and financial -- 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 offence.'" Breed v. Jones, 421 U.S. 519, 530, 95 S.Ct. 1779, 1786, 44 L.Ed.2d 346 (1975).

Generally the double jeopardy clause does not bar retrial of a defendant who obtains a new trial upon his request for a mistrial. See Lee v. United States, supra at 32, 97 S.Ct. at 2147. As the Supreme Court explained in United States v. Jorn, 400 U.S. 470, 485, 91 S.Ct. 547, 557, 27 L.Ed.2d 543 (1971) (plurality opinion) (Harlan, J.):

"[W]here circumstances develop not attributable to prosecutorial or judicial overreaching, a motion by the defendant for mistrial is ordinarily assumed to remove any barrier to reprosecution, even if the defendant's motion is necessitated by prosecutorial or judicial error."

This restriction on the double jeopardy clause, however, is not without its own limitations. The Supreme Court has held that double jeopardy will bar retrial if the defendant sought the mistrial as a result of prosecutorial misconduct amounting to overreaching. See Lee v. United States, supra at 32, 97 S.Ct. at 2147; United States v. Dinitz, 424 U.S. 600, 611,

[ 490 Pa. Page 34196]

S.Ct. 1075, 1081, 47 L.Ed.2d 267 (1976). So too, where, on prosecutorial misconduct grounds, a defendant unsuccessfully moves for a mistrial but then obtains appellate relief, the double jeopardy clause will not bar retrial unless the misconduct amounts to overreaching. Our inquiry here, therefore, is, as the Commonwealth agrees, whether the prosecutorial misconduct at appellant's first trial, which we held to be reversible error, see Commonwealth v. Starks, supra, constitutes prosecutorial overreaching.

The United States Supreme Court has enunciated principally two types of prosecutorial overreaching. First there is the prosecutorial misconduct which is designed to provoke a mistrial in order to secure a second, perhaps more favorable, opportunity to convict the defendant. See United States v. Dinitz, supra at 611, 96 S.Ct. at 1081. Second there is the prosecutorial misconduct undertaken in bad faith to prejudice or harass the defendant. See Lee v. United States, supra at 32, 97 S.Ct. at 2147; United States v. Dinitz, supra at 611, 96 S.Ct. at 1081-82. In contrast to prosecutorial error, overreaching is not an inevitable part of the trial process and cannot be condoned. It signals the breakdown of the integrity of the judicial proceeding, and represents the type of prosecutorial tactic which the double jeopardy clause was designed to protect against.

This Court has expressly announced that in "advocating the cause for this Commonwealth, prosecutors are to seek justice, not only convictions." Commonwealth v. Cherry, 474 Pa. 295, 301, 378 A.2d 800, 803 (1977) (citations omitted). Indeed, a prosecutor

"is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a particular and very definite sense the servant of the law . . . ."

[ 490 Pa. Page 342]

Although these instances of misconduct cannot be and were not condoned, and clearly required reversal of appellant's convictions, they do not constitute overreaching. The prosecutor's emphasis of drug involvement was in part a response to the intemperate closing argument of defense counsel, see ABA Standards Relating to The Prosecution Function and The Defense Function § 7.8 (Approved Draft, 1971) (Defense Argument to Jury), and in part an attempt to explain appellant's choice of vocabulary in his confession. Moreover, appellant's confession suggested that a drug transaction supplied the motive for the murder, and to this extent the issue of drug use was properly before the jury. In light of these circumstances, it must be concluded that the prosecutor's emphasis on drug use had some basis in trial strategy, and cannot be considered to be an attempt to provoke a mistrial or a bad faith attempt to prejudice appellant.

So too, the prosecutor's expressions of personal belief as to the voluntariness of appellant's confession, while error and impermissible, do not constitute overreaching. The voluntariness issue was properly before the jury, and the prosecutor's statements themselves simply do not suggest a bad faith effort to prejudice or an intent to provoke mistrial. Accordingly, we agree with the court of common pleas that the prosecutorial misconduct in this case, though impermissible, does not amount to prosecutorial overreaching and that the Commonwealth is therefore not precluded from retrying appellant. Accord Commonwealth v. Lee, 490 Pa. 346, 416 A.2d 503 (1980).

Order affirmed and case remanded for appropriate proceedings.

[ 490 Pa. Page 344]

NIX, Justice, dissenting.

Without evaluating the jurisdictional predicate for this appeal, the majority opinion concerns itself with determining whether the prosecutorial misconduct constituted "prosecutorial overreaching." Since I believe that this Court is without jurisdiction to entertain the merits of this appeal, I must dissent.

In Commonwealth v. Bolden, 472 Pa. 602, 373 A.2d 90 (1977), we held that after a mistrial had been declared, and prior to the commencement of a second trial, the defendant has the right to an interlocutory appeal from the denial of his pretrial motion to dismiss on the grounds that the new trial will violate his double jeopardy rights.*fn1 See also, Commonwealth v. Haefner, 473 Pa. 154, 373 A.2d 1094 (1977); Commonwealth v. Potter, 478 Pa. 251, 386 A.2d 918 (1978). In Commonwealth v. Hogan, 482 Pa. 333, 393 A.2d 1133, we distinguished the right to interlocutory appeals from orders denying motions to dismiss in cases where the trial judge declared a mistrial (Bolden), from cases where a reviewing court granted a new trial. We recognized that:

[ 490 Pa. Page 345]

    upon a finding of trial error. The very core of the protection offered by the double jeopardy clause is the assurance of an adjudication by a tribunal having jurisdiction to hear and determine the cause and the finality of that judgment. United States v. Oppenheimer, 242 U.S. 85, 37 S.Ct. 68, 61 L.Ed. 161 (1916). Thus, mistrials touch upon the very heart of the double jeopardy protection since, in those cases, the original tribunal is prevented from passing judgment. Id., 482 Pa. at 341, 393 A.2d at 1137.

We also explained that when a reviewing court finds reversible prosecutorial misconduct upon the complaint of the defendant, whether the government must cease its attempts to try the accused is not a double jeopardy bar, but a due process issue. We reasoned that:

In such an instance, the flexible and evolving concept of due process -- rather than the historically rigid rule of double jeopardy -- would be the standard against which would be measured the propriety of allowing the government yet another chance to try the accused. Id., 482 Pa. at 343-44, 393 A.2d at 1138.

See also, Gore v. United States, 357 U.S. 386, 392, 78 S.Ct. 1280, 2 L.Ed.2d 1045 (1957). Thus, in Hogan we affirmed the order denying the motion to dismiss since the thrust of the appeal did not involve an interlocutory appealable double jeopardy issue.

The majority opinion ignores our holding in Hogan and assumes jurisdiction over an appeal which involves due process, not double jeopardy considerations. Here, the appellant had the right to a judgment passed on by the empanelled tribunal. The appellant sought to appeal his conviction on the ground of prosecutorial misconduct and this Court ordered a new trial. Under these circumstances, double jeopardy poses no bar to prosecution.

I would dismiss the instant appeal since the appellant raises a non-appealable interlocutory due process issue. Commonwealth v. Klobuchir, 486 Pa. 241, n. 5, 405 A.2d 881, n. 5 (1979).

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