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COMMONWEALTH PENNSYLVANIA v. LEROY CLARK (05/22/81)

filed: May 22, 1981.

COMMONWEALTH OF PENNSYLVANIA
v.
LEROY CLARK, APPELLANT. COMMONWEALTH OF PENNSYLVANIA V. NATHAN OWENS, APPELLANT



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.

COUNSEL

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 ...


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