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COMMONWEALTH PENNSYLVANIA v. DORINE MCELLIGOTT (07/08/81)

decided: July 8, 1981.

COMMONWEALTH OF PENNSYLVANIA
v.
DORINE MCELLIGOTT, APPELLANT



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.

COUNSEL

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]

OPINION

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 On that date appellant entered a plea of guilty generally to criminal homicide.*fn1 The plea, however, was withdrawn with the approval of the court before sentencing, and appellant obtained new counsel.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 ...


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