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filed: May 22, 1981.


Appeal from the denial of a Motion to Dismiss Information Nos. 7710-1554/1560, in the Court of Common Pleas, Criminal Trial Division of Philadelphia County, October Session, 1977. Appeal from the denial of a Motion to Dismiss Information Nos. 1547-1553, in the Court of Common Pleas, Criminal Trial Division of Philadelphia County, October Session 1977.


C. Van Youngman, Philadelphia, for appellant in case no. 83.

John W. Packel, Chief, Appeals, Assistant Public Defender, Philadelphia, for appellant in case no. 265.

Steven Cooperstein, Assistant District Attorney, Philadelphia, for Commonwealth, appellee in case no. 83.

Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee in case no. 265.

Price, Watkins and Hoffman, JJ. Hoffman, J., files a concurring opinion.

Author: Price

[ 287 Pa. Super. Page 385]

On October 11, 1977, appellants, Nathan Owens and Leroy Clark, were arrested and charged with robbery, aggravated assault, criminal conspiracy and the possession of an instrument of crime. A joint jury trial was commenced before the Honorable Berel Caesar on April 10, 1978. On April 11, 1978, a mistrial was granted at the urging of both appellants due to a prejudicial question asked by the assistant district attorney, and the jury was dismissed. Thereafter,

[ 287 Pa. Super. Page 386]

    both appellants filed a motion to dismiss the informations on double jeopardy grounds.*fn1 On January 5, 1979, a hearing was held before the Honorable William M. Marutani and the motions to dismiss were denied. This appeal followed.*fn2

Both Owens and Clark assert that their retrial is barred by the double jeopardy clause because the improper conduct of the prosecutor forced them to move for a mistrial.*fn3 We disagree and, therefore, affirm the trial court's order denying appellants' motions for discharge.

At trial, the Commonwealth called as its first witness, Deana Rivers, an eyewitness to the robbery of Belinda's Lounge, a bar located at 6301 Wister Street in Philadelphia. On direct examination, she testified with certainty as to the details of the robbery and identified appellants as the perpetrators. Miss Rivers was then vigorously cross-examined for nearly one and one-half days in a studied effort by both defense counsel to point out differences between her testimony at the preliminary and suppression hearings and her testimony at trial. Throughout the entire period of cross examination, defense counsel referred to the suppression hearing by date only.*fn4 On redirect examination, however, the prosecutor was not as circumspect:

[ 287 Pa. Super. Page 387]

Q. [Assistant District Attorney] Ma'am, did you identify the two men who robbed you at the preliminary hearing?

A. [Miss Rivers] Yes.

Q. Did you identify them during the suppression hearing?

A. Yes.

Q. Did that hearing take three days?

A. Yes.

Q. And are those the same men that you have identified here today in this courtroom?

A. Yes.

(N.T. 342). Appellants' counsel then moved for a mistrial on the ground that any reference to "suppression hearing" could convey to the jury by reasonable implication the existence of additional inculpatory evidence. Following a side bar conference, the court agreed that the single reference to appellants' suppression hearing involved a substantial risk of reversible error. Although the court offered to instruct the jury to disregard the question, defense counsel opposed any curative instruction. Judge Caesar thereupon resumed the trial, holding the mistrial motions under advisement. After extended argument during a court recess, Judge Caesar finally granted the mistrial.*fn5

The double jeopardy clause of the fifth Amendment to the United States Constitution provides that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb." U.S. Const. Amend. V.*fn6 This constitutional guaranty against double jeopardy protects a defendant in a criminal proceeding against multiple punishments or successive prosecutions for the same offense. Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d

[ 287 Pa. Super. Page 388651]

(1977). The Supreme Court has explained that this policy of finality in criminal proceedings is underlaid by the idea 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).

The double jeopardy proscription does not mean, however, that the government is barred from retrying an accused every time an earlier proceeding is terminated prior to judgment. See Illinois v. Sommerville, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973). As Justice Pomeroy wrote, "societal interests militate against a literalistic reading of the Double Jeopardy Clause." Commonwealth v. Potter, 478 Pa. 251, 258, 386 A.2d 918, 921 (1978) (Pomeroy, J., Opinion in Support of Affirmance). To be sure, a balancing of the interests at stake is essential for determining whether retrial, following the declaration of a mistrial, constitutes double jeopardy. Retrial is permitted, for example, where a mistrial is declared by the trial court sua sponte over a defendant's objection because of manifest necessity, or the ends of public justice would otherwise be defeated.*fn7 See United States v. Wilson, 420 U.S. 332, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975); Commonwealth v. Mitchell, 488 Pa. 75, 410 A.2d 1232 (1980) (Per Eagen, C.J.); Commonwealth v. Robson, 461 Pa. 615, 337 A.2d 573 (1975). In fashioning this rule, the Supreme Court determined that the public's interest in prosecuting those guilty of crimes would be frustrated

[ 287 Pa. Super. Page 389]

    if a defendant's double jeopardy interests were allowed to outweigh the powers of a court to retry him when unforeseeable circumstances have arisen during trial that makes its completion impossible. Wade v. Hunter, 336 U.S. 684, 688, 69 S.Ct. 834, 836, 93 L.Ed. 974 (1949).

This type of double jeopardy question, however, is not present in the case sub judice. As we have noted, the mistrial had been granted at appellants' request. Quite different considerations obtain when a mistrial is ordered on defendant's motion because of prosecutorial or judicial impropriety. See Illinois v. Sommerville, 410 U.S. at 464, 93 S.Ct. at 1070; Commonwealth v. Meekins, 266 Pa. Super. 157, 162, 403 A.2d 591, 594 (1979). Nevertheless, as with sua sponte declarations of mistrial, this type of double jeopardy claim can only be properly disposed of by analyzing a defendant's valued right to have his trial completed by the jury first impaneled and the public's countervailing interest in prosecuting those guilty of crime. In applying this analysis the Supreme Court has held that, when a mistrial is granted at the defendant's request, the double jeopardy bar does not arise until misconduct on the part of the judge or prosecutor amounts to overreaching. See Lee v. United States, 432 U.S. 23, 97 S.Ct. 2141, 53 L.Ed.2d 80 (1977); United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976). Thus, it is when the integrity of the judicial proceeding breaks down that the burdens incident to reprosecution are deemed to outweigh the public's interest in prosecuting those plainly subject to prosecution. As the Supreme Court has stated: "[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." United States v. Dinitz, 424 U.S. at 607, 96 S.Ct. at 1079.

The Supreme Court has delineated on several occasions two principal types of prosecutorial overreaching: (1) prosecutorial misconduct intentionally calculated to trigger

[ 287 Pa. Super. Page 390]

    the declaration of a mistrial in order to secure a more favorable opportunity to convict an accused; and (2) prosecutorial misconduct undertaken in bad faith to harass an accused by successive prosecutions or prejudice his prospects for an acquittal. See Divans v. California, 434 U.S. 1303, 98 S.Ct. 1, 54 L.Ed.2d 14 (1977) (Rehnquist, J.); Lee v. United States, supra; United States v. Dinitz, supra. Pennsylvania decisions have determined that those forms of overreaching forbidden by the double jeopardy clause of the federal constitution as interpreted by the United States Supreme Court will likewise bar a defendant's reprosecution under state law when he has successfully moved for a mistrial on prosecutorial misconduct grounds.*fn8 See Commonwealth v. Starks, 490 Pa. 336, 416 A.2d 498 (1980); Commonwealth v. Lee, 490 Pa. 346, 416 A.2d 503 (1980). In Commonwealth v. Starks, supra, our supreme court held that prosecutorial misconduct rising to the level of overreaching will bar retrial only if the specified misconduct is attributable to a bad faith effort to prejudice the defendant or an intent to provoke a mistrial. 490 Pa. at 343, 416 A.2d at 501.*fn9

[ 287 Pa. Super. Page 391]

The Commonwealth is thus barred from retrying a defendant after a mistrial has been granted at his request if the defendant can successfully prove the requisite intentional or bad faith misconduct. See Commonwealth v. Thomas, 270 Pa. Super. 375, 378, 411 A.2d 767, 769 (1979). Accord, Commonwealth v. Palazzo, 275 Pa. Super. 135, 418 A.2d 649 (1980); Commonwealth v. Nelson, 268 Pa. Super. 411, 408 A.2d 854 (1979). On review of a pretrial motion to dismiss on double jeopardy grounds, this court will affirm the order entered below unless the record supports a finding of prosecutorial overreaching. Commonwealth v. Perry, 270 Pa. Super. 412, 416, 411 A.2d 786, 788 (1979). In assessing the degree of any asserted impropriety, we direct our attention "to the sequence of events and the exact language used by the parties and the trial court." Commonwealth v. Potter, 478 Pa. at 268, 386 A.2d at 926 (Pomeroy, J., Opinion in Support of Affirmance).

Before turning to the facts of this case, however, we note that intentional or bad faith overreaching is not only difficult to prove, but also capable of arising in an endless variety of circumstances.*fn10 Accordingly, we are convinced

[ 287 Pa. Super. Page 392]

    that it is appropriate to fashion guidelines that will maintain tolerable consistency in protecting defendants from deliberate prosecutorial misconduct. Thus, we hold the following circumstances to be relevant in determining the existence of bad faith intent on the part of the prosecution: (1) the absence of any actions undertaken by the prosecutor to preserve the trial and to enhance the defendant's prospects for a fair trial after the misconduct occurred, (2) the absence of either abundant or convincing evidence of the defendant's guilt, so that the prosecutor's misconduct might reasonably be perceived as an attempt to rescue an inadequate prosecution, (3) the absence of misconduct causing serious and incurable prejudice to the defendant, (4) the absence of any neutral explanations, including inexperience, trial strategy, or inadvertence on the part of the government, to show that it did not, in fact, act purposely, (5) observations of the trial judge concerning the prosecutor's motives, and (6) defiance by the prosecutor of any direct order or clear admonition by the trial court to refrain from specific conduct prejudicing the defendant's prospects for acquittal.

In challenging the propriety of the trial court's order dismissing their pretrial motion to dismiss on double jeopardy grounds, appellants argue that the prosecutor engaged in intentional misconduct to provoke a mistrial by referring to their suppression hearing. As evidence of such intent, appellants stress the following facts. Immediately after the jury had been impaneled and just prior to the trial's onset, the prosecutor asked that bench warrants be issued for two Commonwealth witnesses who had failed to appear. The trial judge denied the request because the witnesses had not

[ 287 Pa. Super. Page 393]

    been properly subpoenaed. The prosecutor thereupon requested a twenty-four hour continuance which was likewise denied. However, a delay in the start of the trial caused by ancillary matters*fn11 provided the prosecutor with sufficient time to locate the complainant, Deana Rivers. Before proceeding with its case-in-chief, the Commonwealth requested additional time for Miss Rivers to be prepared. The trial judge allowed the prosecutor only ten minutes to caution the witness against referring to any evidence that had been ruled inadmissible.

The trial finally began and on direct examination, Miss Rivers testified concerning the robbery's commission and appellant's participation therein. During the course of extensive cross-examination, however, Miss Rivers' direct testimony was impugned and, at a side bar conference following this examination, appellant Owens' counsel advised the court that she would be moving for the admission of prior inconsistent statements. The prosecutor severely objected to the introduction of any of the witness' preliminary or suppression hearing testimony. Nevertheless, the trial court ruled that those portions of Miss Rivers' prior testimony which were inconsistent with her testimony at trial could be read to the jury. In response to this adverse ruling, the prosecutor asserted:

What the Court is doing is permitting defense counsel to take the inconsistencies, whether minor or major, and put all of them together and reiterate them again to the jury strictly from the defense side, thereby prejudicing and presenting unbalanced, biased testimony to the jury.

It's never been done that way. I have had this in hundreds of jury trials and it's never been done. There is no judge in City Hall who would permit that.

[ 287 Pa. Super. Page 394]

(N.T. 304-05). Following brief additional cross-examination of Miss Rivers by appellant Clark's counsel, the prosecutor re-directed. Almost immediately, the prosecutor committed the offending reference to "suppression hearing". (N.T. 342). See text accompanying note 4 supra.

It is appellants' contention that this sequence of events inferentially proves that, by infecting the proceedings, the prosecutor deliberately sought to goad the defense into requesting a mistrial. Specifically, they argue that, since the Commonwealth's case was not progressing favorably, the prosecutor precipitated the mistrial in order to gain a second, perhaps more favorable, opportunity to convict. We disagree. Although a defendant is not required to present direct proof of intentional or bad faith overreaching, these events standing alone simply do not suggest an intent to provoke a mistrial.

Mindful of those circumstances which previously have been identified as relevant for gauging prosecutorial misconduct,*fn12 we proceed to an examination of the record. After the reference to "suppression hearing", there ensued extensive discussion out of the jury's presence during which the prosecutor vigorously opposed appellants' application for a mistrial.*fn13 He argued that although a passing reference to "suppression hearing" could constitute error, an inflexible rule requiring mistrial need not apply since a cautionary instruction warning the jury to disregard such a statement would cure any taint that occurred. It is equally important to note that before exercising his discretion to grant the mistrial motions, the trial judge observed that, in mentioning the suppression hearing, the prosecutor "did not raise his

[ 287 Pa. Super. Page 395]

    voice . . . [or] show any unusual emotionality."*fn14 (N.T. 352). This characterization is also supported by the prosecutor's statement almost immediately following the disputed reference, that "even now I do not recall saying the words 'suppression hearing.'" (N.T. 353). In light of these circumstances, the record is convincing that any impropriety which occurred was attributable to sheer inadvertence and not overreaching caused by the prosecutor's fear that the jury was likely to acquit.*fn15

In our view, any remaining doubt whether the prosecutor's misconduct was designed to cause a mistrial is dispelled by two additional considerations. First, we disagree with appellants' assertion that the prosecutor's case had been proceeding badly prior to the mistrial's declaration. Concededly,

[ 287 Pa. Super. Page 396]

    the objective circumstances of the court proceeding indicate that the prosecutor's will had been frustrated at almost every turn. However, it does not follow that the prosecutor intentionally sought to abort the trial in fear that an acquittal might result. The evidence presented by Deana Rivers concerning appellants' participation in the robbery was clear and convincing. Only peripheral differences were pointed out on cross-examination between her testimony at the preliminary and suppression hearings and her testimony at trial.*fn16 Moreover, Miss Rivers was only the first of several eyewitnesses the Commonwealth intended to have testify. The record simply does not support the view that the prosecutor's specific reference to "suppression hearing" was an attempt to gain the tactical advantage of a second trial by prematurely terminating the first.

Second, not every reference to a defendant's suppression hearing is so inherently prejudicial as to per se require the grant of a mistrial. Our purpose in stating such is not to show that the trial court abused its discretionary power to declare a mistrial.*fn17 Rather, we mean to conclude

[ 287 Pa. Super. Page 397]

    that when there is no prosecutorial error sufficient even to have caused a mistrial, a fortiori, there can be nothing remotely approaching the prosecutorial overreaching forbidden by the double jeopardy clause. The absence of serious prejudice to a defendant, or at least prejudice substantially certain to result in a mistrial, negates any inference of intent to terminate the proceedings. Our review of the record reveals that this is not an instance where the solitary reference to "suppression hearing" resulted in the kind of prejudice that a cautionary instruction could not have cured.

[ 287 Pa. Super. Page 398]

Accordingly, we reiterate our earlier finding that the prosecutor did not engage in purposeful misconduct designed to trigger a mistrial.

This is not to say that we condone the prosecutor's conduct. If common sense did not alert him to the danger of explicitly referring to appellants' suppression hearing, certainly defense counsel's sustained effort to mention it by date only should have put him on notice. Nonetheless, the prosecutorial misconduct in this case does not require the extreme sanction of complete discharge. Even if the prosecutor's inadvertence could be attributed to an excess of zeal, this would not constitute overreaching as proscribed by the double jeopardy clause. Only when the Commonwealth has engaged in either intentional or bad faith misconduct must society's interest in punishing criminals give way to a discharge of the accused.*fn18

For the foregoing reasons, we affirm the order dismissing appellants' claim of double jeopardy on the informations filed against them.

HOFFMAN, Judge, concurring:

I agree with all but two aspects of Judge PRICE's excellent and well-reasoned opinion. First, I do not consider "the

[ 287 Pa. Super. Page 399]

    absence of any action undertaken by the prosecutor to preserve the trial and to enhance the defendant's prospects for a fair trial after the misconduct occurred" to be a relevant factor in determining the existence of bad faith intent on the part of the prosecutor. Majority op. at 661. I believe that a prosecutor's urging that a mistrial not be granted after he has engaged in misconduct is totally irrelevant in determining whether he intended to provoke a mistrial or engaged in a bad faith effort to prejudice the defendant. Moreover, reliance on such a factor may encourage prosecutors whose deliberate misconduct provokes a motion for a mistrial to attempt to prevent a successful double jeopardy claim by vigorously arguing that a mistrial should not be granted.

My other disagreement with the majority concerns the necessity of deciding whether a prosecutor's mere reference to a suppression hearing is a proper basis for granting a mistrial. As the majority notes, the question of whether the trial court abused its discretion in granting a mistrial is not before us; the issue is whether the double jeopardy clause forbids retrial. Although I have no objection to the propriety of considering whether the prosecutor's misconduct seriously prejudiced appellants, I would not decide whether a mistrial should have been granted in this case. See id., majority op. at 663 n.17. Because that issue is not before us, I believe that this is an inappropriate case to decide whether the dictum in Commonwealth v. Rogers, 463 Pa. 399, 344 A.2d 892 (1975), which was quoted with approval in Commonwealth v. Willie, 246 Pa. Super. 400, 371 A.2d 899 (1977), should be followed. With the above-stated qualifications, I join in the majority opinion.

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