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decided: February 4, 1981.


No. 80-3-361, Appeal from the Order of the Court of Common Pleas of Philadelphia, Criminal Trial Division, at Nos. 2753, 2754 and 2755 November Term, 1975, dated December 17, 1979.


Joel Harvey Slomsky, Philadelphia, for appellant.

Robert B. Lawler, Chief, Appeals Div., Michelle Goldfarb, Asst. Dist. Attys., for appellee.

O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. Nix, J., files an Opinion in Support of Affirmance. Kauffman, J., files an Opinion in Support of Affirmance. Larsen, J., would affirm. Roberts, J., files an Opinion in Support of Reversal, in which O'Brien, C. J., and Flaherty, J., join.

Author: Per Curiam

[ 494 Pa. Page 601]


The Court being equally divided, the order of the Court of Common Pleas of Philadelphia is affirmed.


NIX, Justice.

On numerous occasions, I have expressed my disagreement with the Court's use of a double jeopardy analysis in cases such as the one before the bar of the Court. Commonwealth v. Starks, 490 Pa. 336, 344, 416 A.2d 498, 502 (1980) (Nix, J. dissenting opinion); Commonwealth v. Lee, 490 Pa. 346, 416 A.2d 503 (1980) (Nix, J. concurring opinion); Commonwealth v. Potter, 478 Pa. 251, 287, 386 A.2d 918, 936 (1978) (Nix, J., Opinion in Support of Reversal). In this case the jury reached a verdict. Because of the presently complained of conduct on the part of the prosecution, this Court on direct appeal granted appellant a new trial, Commonwealth v. William Hoskins, 485 Pa. 542, 403 A.2d 521 (1979). Now on an interlocutory appeal, see Commonwealth v. Bolden, 472 Pa. 602, 373 A.2d 90 (1977), prior to the commencement of the new trial that was awarded, this Court sees fit to find a double jeopardy violation and precludes further prosecution for this heinous murder. In my judgment, this result is legally untenable and permits a grave travesty upon justice. Prosecutorial misconduct may reach the point where due process would require the foreclosure of a subsequent trial for the same charges, however, such a point has not been reached in this case and the remedy of the award of the new

[ 494 Pa. Page 602]

    trial adequately protected appellant from the prosecutorial misconduct that has been cited.

The Court's error stems from its persistent refusal to recognize that prosecutorial misconduct is generally a due process concern and not a matter of double jeopardy. This confusion arises from the misreading of U.S. v. Dinitz, 424 U.S. 60, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976). See Commonwealth v. Potter, 478 Pa. 261, 386 A.2d 918 (1978) (Opinion in Support of Affirmance). In Dinitz prosecutorial misconduct became important in a double jeopardy context where that conduct prevented the tribunal from reaching a verdict. The finality of the adjudicative process is a double jeopardy concern. The fact of the prosecutorial misconduct was significant in Dinitz only because it occasioned the interruption of the trial. In contra-distinction, due process is concerned with the fairness of the proceedings and trial error such as prosecutorial misconduct strikes at the very heart of the fairness and impartiality of the proceeding.*fn1

[ 494 Pa. Page 603]

This distinction is much more than a quibble over the appropriate analysis to address a specific wrong. Because double jeopardy has at its heart the concept of finality, the remedy for a violation thereof precludes further prosecution. On the other hand, where the asserted error relates to the fairness of the initial proceeding, in most instances, adequate relief can be given by providing the opportunity for a second trial free of that error. Here we are concerned with trial error which affected the fairness of the trial. Appellant received the full remedy to which he was entitled when he was awarded a new trial. The Opinion in Support of Reversal's gratuitous grant of the greater remedy of discharge is not necessitated by the nature of the harm and abandons the societal interest in just determination in criminal matters.

Therefore, I would affirm the order of the lower court denying appellant's motion to dismiss.


KAUFFMAN, Justice.

The Opinion in Support of Reversal implies that the Commonwealth resorted to prejudicial and inflammatory

[ 494 Pa. Page 604]

    tactics in order to compensate for deficiencies in what was otherwise a vague, weak circumstantial case. Nothing could be further from the truth. On direct appeal of the original jury verdict, Commonwealth v. Hoskins, 485 Pa. 542, 403 A.2d 521 (1979), we carefully reviewed the prosecution's circumstantial evidence and unequivocally held it sufficient to sustain a conviction for murder of the first degree. The Opinion in Support of Reversal reveals but a fraction of that evidence.

That the prosecutor employed improper tactics is unquestionable; indeed, that was the very reason we held that a mistrial was appropriate. Although appellant certainly is entitled to a new trial, he is not entitled to a discharge unless the mistrial were deliberately provoked or the prosecutor acted in bad faith. Commonwealth v. Starks, 490 Pa. 336, 416 A.2d 498 (1980). There is no accusation here of deliberate provocation and under all the circumstances of this case, I do not believe that bad faith has been shown.

Accordingly, I would affirm the order below.


ROBERTS, Justice.

At appellant William Hoskins' jury trial, the prosecuting attorney over defense objection repeatedly questioned both appellant's alibi witness and appellant himself on wholly irrelevant, inflammatory matters, frequently in deliberate disregard of rulings of the trial court. An example of the objectionable misconduct is the following question, put to appellant: "And you know that Robert Blair [(common-law husband of appellant's alibi witness)] is in the drug business, don't you? Don't you?" This Court held that appellant's request for a mistrial immediately following this improper question should have been granted because of the prosecutor's misconduct. 485 Pa. 542, 403 A.2d 521 (1979). Speaking for the Court, Chief Justice Eagen concluded:

"The 'atmosphere of the trial' was such that the 'unavoidable effect' of the improper and inflammatory leading

[ 494 Pa. Page 605]

    question pertaining to Blair's drug activities was to form in the minds of the jury bias and hostility toward Hoskins and thus prevent an objective verdict."

485 Pa. at 556, 403 A.2d at 528, quoting Commonwealth v. Stoltzfus, 462 Pa. 43, 61, 337 A.2d 873, 882 (1975).

This is an appeal pursuant to Commonwealth v. Bolden, 472 Pa. 602, 373 A.2d 90 (1977), from an order of the Court of Common Pleas of Philadelphia denying appellant's pre-retrial motion to dismiss indictments on the ground of double jeopardy. At issue is whether the prosecutorial misconduct at appellant's jury trial constituted "overreaching" which bars appellant's retrial. The present record is clear that the prosecutor, who not only sought to inject irrelevant, inflammatory matters into the trial but also, on more than one occasion, deliberately ignored rulings of the trial court, engaged in overreaching. Hence the order must be reversed.


Appellant is charged with criminal homicide, conspiracy, and various firearms offenses. The alleged homicide occurred on November 5, 1975, at approximately 12:30 p. m., in the 8600 block of Bayard Street, Philadelphia. The victim, Herchell Williams, was shot several times and killed by two men shortly after leaving his home.

Police arrived at the scene shortly after the killing. Based on interviews with a neighbor of the victim and a friend of the neighbor, police issued a radio broadcast containing a description of a green Cadillac and "suspicious" persons seen in the neighborhood moments before the shooting. Appellant and two companions, Lonnie Dawson and Joseph Rhone, were stopped approximately one-half hour later, at about 1:15 p. m. while riding on the Schuylkill Expressway, in a green Cadillac belonging to appellant's employer, Calvin Tilghman.

Appellant and his companions were returned to the scene of the shooting. The record, however, contains no indication that persons in the neighborhood could identify either appellant

[ 494 Pa. Page 606]

    or the two other suspects. The Commonwealth nonetheless proceeded against appellant on the theory that appellant was one of the two men who had fired the fatal shots.

Although a Philadelphia police officer had obtained inculpatory statements from appellant, appellant successfully moved before trial to suppress the inculpatory statements on the ground that the police officer had beaten appellant at the time the statements were obtained. The Commonwealth did not challenge the suppression court's ruling. See Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304 (1963).

At trial, the Commonwealth's sole eyewitness did not implicate appellant. The eyewitness testified only that two men, coming from different directions on Bayard Street, approached the victim and "just started shooting on him." Thus the Commonwealth's case-in-chief was based solely upon circumstantial evidence.

Frederick Robb, resident of Bayard Street, and Daniel Parks, friend of Robb, testified for the Commonwealth that appellant was standing on or near Bayard Street within moments of the shooting. On cross-examination, however, this circumstantial evidence was substantially weakened. Most significantly, defense counsel established that, when police had returned to the scene on the afternoon of the shooting with appellant, neither Robb nor Parks had identified appellant as one of the "suspicious" men they had previously seen. Also identifying appellant at trial was Nazie Cook, a neighborhood resident, who testified that, about 12:15 p. m. of the day of the shooting, she encountered appellant driving a green Cadillac with two other occupants. However, while previous Commonwealth witnesses had consistently testified that appellant had been wearing an unusual hat, Cook on cross-examination had no such recollection.

After appellant had unsuccessfully demurred to the Commonwealth's circumstantial evidence, appellant proceeded to present the alibi that he was in a different part of the city at the time of the shooting. Testifying on appellant's behalf was Rene Williams, sister of the victim. Williams maintained

[ 494 Pa. Page 607]

    that she had seen appellant in front of the "Unusual Gift Store" at 41 S. 40th Street at "12:15, 12:20, 12:25 the latest." According to Williams, appellant assisted her in delivering a package of silver coins to the gift store. Williams added that she was "very close" to her brother.

The prosecutor's misconduct began on cross-examination of Williams. The prosecutor engaged in a wide-ranging inquiry prompting numerous defense objections, several of which were sustained by the trial court. Included among those inquiries to which the court sustained defense objections were questions relating to (1) the alleged refusal of the witness's mother to visit the district attorney's office, (2) the witness's membership in the "Nation of Islam," (3) the witness's alleged awareness that, prior to her brother's death, "the Muslins" were looking for her brother, and (4) the status of Lonnie Dawson, appellant's companion, as president of "Black Incorporated."

Additionally, the prosecutor unfairly criticized the witness's version of why she arrived at the Unusual Gift Store when she said she did. The prosecutor and Williams had engaged in the following exchange:

"Q. You could remember that this happened about 12:15 or thereabouts; is that right?

A. I told you I'd been there at 12:00 o'clock. I was running late. It was a bad time of the month. I wasn't feeling well. I was running late. I had to be back for my son by 1:00, and I was saying to my daughter, 'I'll be running late.' ...

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