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decided: July 8, 1981.


No. 80-3-387, Appeal from Order and Decree dated January 16, 1980 of the Court of Common Pleas of Luzerne County, Criminal Action at No. 757 of 1979.


Joseph J. Gale, Joseph F. Iracki, Wilkes-Barre, for appellant.

Chester B. Muroski, Dist. Atty., J. P. Giovannini, Jr., Asst. Dist. Atty., for appellee.

O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. Nix and Larsen, JJ., concurred in the result.

Author: Kauffman

[ 495 Pa. Page 76]


Appellant, Dorine McElligott, was arrested on February 20, 1979, and charged with criminal homicide in the shooting death of Michele Yale. Her trial before a jury in the Court of Common Pleas of Luzerne County commenced on June 4, 1979, but was aborted by declaration of mistrial on June 11, 1979, and a new trial was set for September 10, 1979. On that date appellant entered a plea of guilty generally to criminal homicide.*fn1 The plea, however, was withdrawn with the approval of the court before sentencing, and appellant obtained new counsel. A pre-trial motion to quash the information on double jeopardy grounds was heard on January

[ 495 Pa. Page 7714]

, 1980 and denied on January 16, 1980. An immediate appeal was taken to this Court pursuant to our holding in Commonwealth v. Bolden, 472 Pa. 602, 373 A.2d 90 (1977).*fn2

Appellant argues that because of alleged prosecutorial overreaching during her first trial, retrial would unconstitutionally place her in jeopardy for a second time.*fn3 The mistrial which ended the original proceeding resulted from the Commonwealth's failure to provide appellant in a timely manner with the results of a neutron activation test.*fn4 Although the mistrial was declared solely because of appellant's objection to the Commonwealth's delay in producing the neutron activation test results, her present counsel has enlarged the original objection and supports his motion to quash the information by alleging that the prosecution's

[ 495 Pa. Page 78]

    failure to provide the defense with four investigative reports in a timely manner evidenced a pattern of intentional bad faith misconduct, or, in the alternative, that it evidenced gross negligence which, under double jeopardy principles, should be sufficient to bar retrial.*fn5

Despite the fact that she had made several definitively inculpatory statements to the police shortly after her arrest,*fn6 appellant's allegation of bad faith misconduct rests essentially upon the premise that the district attorney deliberately withheld the neutron activation and fingerprint test results in order to force her to admit the shooting and proceed on a theory of self-defense or accident. The Commonwealth contends, however, that the assistant district attorney responsible for the conduct of appellant's prosecution believed that the results of the neutron activation and fingerprint tests were not exculpatory, but rather were inconclusive and thus inconsequential to either the prosecution or the defense. At a hearing below on the motion to quash now before us, the

[ 495 Pa. Page 79]

    prosecutor testified that it was his understanding that the test results were of no value at all, and his failure to bring them to defense counsel's attention was totally inadvertent.*fn7

The record, in fact, does indicate that the tests were inconclusive. Although appellant's hands did not reveal gunpowder traces, neither did the hands of the state trooper who test-fired the weapon as part of the laboratory analysis. The absence of appellant's fingerprints on the gun is, under the facts here presented, similarly inconclusive rather than exculpatory. Since appellant had admitted the shooting to police shortly after her arrest, the prosecutor had no reason to attribute significance to the inconclusivity of the test results, for he, like defense counsel, accepted the veracity of appellant's admissions.

Nevertheless, at the hearing on appellant's motion for mistrial following the disclosure of the neutron activation test results, the trial judge accepted defense counsel's argument that the laboratory report might have been utilized to support a theory that appellant did not, in fact, do the shooting, or at the least would have made proof of that element more difficult if contested. The court thus concluded that under the holding of the United States Supreme Court in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and subsequent Supreme Court decisions, the prosecution was obligated promptly to provide the defense with the test results, and that its failure to do so required a declaration of mistrial.*fn8

[ 495 Pa. Page 80]

There is not a scintilla of evidence here, however, pointing to deliberate prosecutorial overreaching. Although a review of the record suggests that the prosecutor may have been deficient in judgment or knowledge of the law, we can hardly describe his behavior as intentional bad faith misconduct. The test results were not per se exculpatory, but only could have been used in connection with a theory that appellant did not fire the gun. Because that fact already had been admitted, it was by no means unreasonable for the prosecution to have concluded that the information would be of no use to the defense. The mistrial was granted simply because the possibility of an alternate strategy denying the shooting had been precluded by the failure to disclose the non-inculpatory test results.

Significantly, even after the test information was received by the defense and mistrial was declared, appellant rejected the alternate strategy and entered a plea of guilty. Although not dispositive, this conduct certainly lends support to the district attorney's assertion of a good faith belief that the information was worthless.*fn9

[ 495 Pa. Page 81]

Unless his actions could be shown to have been a deliberate attempt to provoke a mistrial or to have been undertaken in bad faith to prejudice or harass the appellant, the prosecutor's error in judgment or negligence will not preclude a retrial. The remedy of discharge without a fair and complete fact-finding procedure is extreme and will not be invoked absent deliberate bad faith prosecutorial misconduct. Cf. Commonwealth v. Virtu, 495 Pa. 59, 432 A.2d 198 (1981). While intentional prosecutorial misconduct constitutes a dangerous threat to the very integrity of our judicial system, the case before us at most presents no more than prosecutorial error of the sort which occurs from time to time as an inevitable part of the adjudicative process. In United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976), the seminal case in this area, the United States Supreme Court noted:

[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.

424 U.S. at 607, 96 S.Ct. at 1079, quoting United States v. Jorn, 400 U.S. 470, 485, 91 S.Ct. 547, 557, 27 L.Ed.2d 543 (1971). As we here find no evidence of deliberate prosecutorial bad faith, a new trial is not precluded by the principles of double jeopardy and will provide appellant with completely adequate relief.

Accordingly, the trial court's order denying appellant's motion to quash is affirmed.

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