No. 80-3-693, Appeal from an Order entered July 23, 1980, Court of Common Pleas of Philadelphia, Trial Division - Criminal Section, Paul Ribner, Judge, November Term, 1976, No. 1111-1112
Walter M. Phillips, Jr., Philadelphia, for appellant.
Robert B. Lawler, Chief, Appeals Div., Asst. Dist. Atty., Victor Fortuno, Philadelphia, for appellee.
O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. Roberts, J., filed a concurring opinion.
In March of 1977, appellant Delmar Washington was tried for homicide; the charges stemming from a murder committed in Philadelphia during the previous year. Appellant was found guilty of murder of the first degree, and the jury found the presence of aggravating circumstances, but not mitigating circumstances, thereby mandating imposition of the death penalty. Act of March 26, 1974, P.L. 213, No. 46, § 3.*fn1 Following the denial of post-verdict motions, appellant
took a direct appeal to this Court. This Court reversed the judgment of sentence and ordered a new trial on the grounds that the jury could have inferred from the testimony of a Commonwealth witness that appellant had been engaged in unrelated prior criminal activity. See, Commonwealth v. Washington, 488 Pa. 133, 411 A.2d 490 (1979).
Appellant was tried again in May of 1980, and the same witnesses that testified for the Commonwealth at appellant's first trial were called by the Commonwealth at this second trial. On cross-examination, appellant's counsel sought to impeach the credibility of two eyewitnesses to the murder with inconsistencies between their present testimony, and the testimony they gave at the first trial and appellant's preliminary hearing. In response, the prosecutor read two pages of the witnesses' testimony from the prior proceedings to the jury during his summation. Appellant's counsel moved for a mistrial on the grounds that much of what had been read by the prosecutor had not been adopted by the witnesses or otherwise incorporated into the record of the second trial. The trial judge noted that the prosecutor had in fact neglected to introduce that testimony into evidence and, after deliberating for a day, granted the motion for a mistrial. Appellant then moved to have the charges against him dismissed, asserting that retrial was barred by the constitutional prohibitions against double jeopardy embodied in the Fifth Amendment to the United States Constitution and Article I, § 10, of the Pennsylvania Constitution. The motion was denied, and an appeal was taken directly to this Court.*fn2
Double jeopardy protects a defendant from governmental actions intended to provoke requests for a mistrial. United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976). "It bars retrials where 'bad-faith conduct by judge or prosecutor,' (citation omitted) threatens the '[h]arassment of an accused by successive prosecutions or declaration of a mistrial so as to afford the prosecution a more favorable opportunity to convict' the defendant. (citations
omitted)." Id. at 611, 96 S.Ct. at 1081, 47 L.Ed.2d at 276. In the instant case, the record is barren of anything which would indicate the presence of either element of this standard -- bad-faith conduct, or the intent to cause yet another trial which ...