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filed: March 5, 1982.


No. 1720 Philadelphia, 1980, Appeal from the Order of the Court of Common Pleas, Criminal Division, Bucks County, at No. 1225 of 1976.


Michael J. Weintraub, Trenton, New Jersey, for appellant.

Michael Kane, District Attorney, Doylestown, for Commonwealth, appellee.

Cercone, President Judge, and Wickersham and Brosky, JJ.

Author: Cercone

[ 296 Pa. Super. Page 237]

The sole question presented in this appeal is whether the prosecutorial misconduct which caused a mistrial in the court below amounted to "overreaching" and consequently precludes appellant's retrial on grounds of double jeopardy. We conclude that it does not, and, therefore, affirm the order of the court below.

On April 24, 1976, Dennis Carson was operating his automobile in a southerly direction on Route 1, Bucks County, Pennsylvania. He was accompanied by a passenger, Albert Falls. As Carson was proceeding in the passing lane, he noticed a motorcycle in the passing lane on the northbound side of the road. As the vehicles approached each other, the motorcycle swung out onto the southbound side of the road in order to pass another vehicle in the northbound passing lane. Since the motorcycle was now in the path of Carson's vehicle, Carson was forced to swerve to the right in order to avoid a collision. The appellant, however, testified that it was Carson who swerved into his path requiring him to take evasive action. In any event, the collision was avoided and Carson proceeded to a traffic light at which he came to a stop because the light had turned red in his direction. While he was stopped, the motorcycle he had previously observed going northbound now approached southbound from his rear. The motorcycle passed Carson and stopped two or three feet directly in front of Carson's automobile. Appellant was the operator of the motorcycle with a young lady passenger on the rear seat. After he stopped the motorcycle, appellant dismounted, ran toward Carson's automobile, and pulled a large hunting knife from a sheath under his jacket. As he approached the driver's door, appellant reached into the car with the hunting knife and stabbed Carson in the lower part of the throat. Carson held appellant's arm in order to fend off further blows which appellant was attempting to inflict. When he felt himself getting

[ 296 Pa. Super. Page 238]

    weaker, Carson exited the automobile from the passenger side door and ran to a diner located on the opposite side of the road. He collapsed in the doorway.

In the meantime, Carson's passenger had also exited the automobile and was pursued by appellant still brandishing the knife. The passenger ran toward a fast food store near the intersection and, when he turned to defend himself, he found that appellant had discontinued the pursuit. Appellant returned to his motorcycle, but could not get the motor to start. At that point, a police officer arrived and ultimately arrested appellant after discovering what had transpired.

There were four independent eyewitnesses to the foregoing incident. At trial, appellant did not deny his involvement, but rather testified that he could recall nothing from the time he stepped off his motorcycle to the time the police had arrived. The appellant's defense was, therefore, geared to establish his intoxication at the time of the incident, his loss of memory, and his history of alcoholism. This was all offered to buttress his defense of temporary insanity.*fn1 The jury, nevertheless, found appellant guilty of criminal attempt to commit murder,*fn2 simple assault,*fn3 aggravated assault,*fn4 recklessly endangering another person,*fn5 and prohibited offensive weapons.*fn6

Upon the filing of post-verdict motions, however, the lower court granted appellant a new trial due to the prosecuting attorney's relentless inquiries and statements with respect to appellant's membership in the infamous Breed

[ 296 Pa. Super. Page 239]

Motorcycle Club -- a group of dubious reputation. Appellant now claims that double jeopardy bars his retrial because the misconduct in question allegedly amounts to "prosecutorial overreaching."*fn7

It is our opinion that the lower court's award of a new trial adequately protects appellant from the prejudice he encountered due to the prosecutor's overzealous and misguided conduct. Although a prosecuting attorney has a duty, as representative of this Commonwealth, to seek justice, not convictions, we are unfortunately faced at various times with situations in which the frailties of human nature overcome the judicious sensibilities of the Commonwealth's attorney. In such cases, the prosecutor's myopic view of justice has disturbed the requisite impartiality of a judicial proceeding to the prejudice of the defendant. Our usual practice under these circumstances, and the one followed by the lower court in the instant case, is to grant the defendant a new day in court in order to protect his right to a fair and impartial trial. Normally, by voluntarily requesting a mistrial or a new trial, the defendant is deemed to have waived his constitutional right against twice being placed in jeopardy of life or limb for the same alleged offense. Comment, The Double Jeopardy Clause and Mistrials Granted on Defendant's Motion: What Kind of Prosecutorial Misconduct Precludes Reprosecution?, 18 Duq.L.Rev. 103, 104-105 (1979). Nevertheless, reprosecution may be barred where the conduct involved amounts to governmental overreaching. Id. In Commonwealth v. Bolden, 472 Pa. 602, 373 A.2d 90 (1977), Justice Roberts in a plurality opinion defined overreaching as either intentional or grossly negligent conduct on the part of the prosecution. This articulation of the standard for determining when retrial is barred, however, was short-lived. One year after the Bolden decision, an equally divided membership of the Supreme Court of Pennsylvania decided Commonwealth v. Potter, 478 Pa. 251, 386 A.2d 918 (1978). In Potter, the Court, per Justice Pomeroy, noted

[ 296 Pa. Super. Page 240]

    that the Bolden standard only reflected the view espoused by Justices Roberts*fn8 and Manderino, and, moreover, that the language contained in Bolden was technically dictum as being merely gratuitous in terms of the holding of that case. Justice Pomeroy interpreted the case of United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976) not as advocating a grossly negligent test as Justice Roberts opined, but rather as requiring intentional conduct on the part of the prosecution which is either undertaken to provoke a mistrial so as to afford the Commonwealth another perhaps more favorable opportunity to prosecute the defendant or that which is undertaken in bad faith in order to harass or prejudice the defendant. 478 Pa. at 263-65, 386 A.2d at 923-25. Although neither of these cases are dispositive of the question due to their lack of a clear majority, the latter view taken by Justice Pomeroy has been borne out by the recent cases of Commonwealth v. Starks, 490 Pa. 336, 416 A.2d 498 (1980) and Commonwealth v. Lee, 490 Pa. 346, 416 A.2d 503 (1980). See also Commonwealth v. Smith, 284 Pa. Superior Ct. 60, 425 A.2d 393 (1981); Commonwealth v. Thomas, 270 Pa. Superior Ct. 375, 411 A.2d 767 (1979).*fn9 In

[ 296 Pa. Super. Page 241]

    from the Court, informed the Court that the witness in question had taken a polygraph examination. The trial court recognized this misconduct as error and granted appellant a mistrial. In our view, however, this type of prosecutorial misconduct, although erroneous, does not require the extreme sanction of barring retrial of appellant. Appellant's argument is thus without merit.

490 Pa. at 350, 316 A.2d at 505.

Thus, it appears that Justice Pomeroy's view, as expressed in Potter, prevails.

Finally, the Supreme Court's most recent pronouncements on the subject illustrate the application of their newly clarified standard. See Commonwealth v. Virtu, 495 Pa. 59, 432 A.2d 198 (1981); Commonwealth v. Hoskins, 494 Pa. 600, 432 A.2d 149 (1981). In Hoskins, the Court was evenly divided on the issue of whether there was sufficient evidence of intentional prosecutorial misconduct to bar retrial. The prosecutor therein engaged in a persistent course of misconduct in questioning witnesses concerning improper, irrelevant and prejudicial matters even after the trial judge had sustained defense objections to those exact or similar inquiries. In his opinion in support of affirmance, former Justice Kauffman stated:

That the prosecutor employed improper tactics is unquestionable; indeed, that was the very reason we held that a mistrial was appropriate. Although appellant certainly is entitled to a new trial, he is not entitled to a discharge unless the mistrial were deliberately provoked or the prosecutor acted in bad faith. Commonwealth v. Starks, 490 Pa. 336, 416 A.2d 498 (1980). There is no accusation here of deliberate provocation and under all the circumstances of this case, I do not believe that bad faith has been shown.

494 Pa. at 604, 432 A.2d at 152.

On the other hand, Justice Roberts, in his opinion in support of reversal, was of the opinion the Commonwealth had a fragile case which prompted the prosecutor's undertaking to

[ 296 Pa. Super. Page 243]

    engage in repeated acts of misconduct. He, therefore, concluded:

With unmistakable clarity, the prosecutorial misconduct here signals, in the words of Starks, "the breakdown of the integrity of the judicial proceeding, and represents the type of prosecutorial tactic which the double jeopardy clause was designed to protect against." On the record the defense request for a mistrial falls outside the general rule that retrial is not barred where a defendant obtains a new trial by way of a mistrial request. See United States v. DiFrancesco, supra [449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328] and United States v. Dinitz, supra. The sole remedy for the intolerable level of misconduct demonstrated on this record is to direct dismissal of the indictments.

Id., 494 Pa. at 615, 432 A.2d at 157.

The Hoskins decision, therefore, does not represent a dispute with respect to the standard to be applied in a double jeopardy situation,*fn10 but rather represents a difference of opinion as to the application of the intentional misconduct standard to a given set of facts.

Likewise, in Virtu, the application of the standard was at issue. Apparently, it is the first case in Pennsylvania history to bar retrial due to prosecutorial overreaching. Writing for the majority therein, former Justice Kauffman held that the bad faith part of the Starks standard had been met:

Rather than evidencing innocent error or good faith, however, the prosecutor's actions in the proceedings below appear to have been directed precisely to avoid resolution of the Fifth Amendment questions outside of the presence of the jury. The only plausible explanation for his behavior, is that the difficulty of eliciting crucial testimony, in

[ 296 Pa. Super. Page 244]

    consequence of the witness' anticipated assertion of his privilege against self-incrimination, led [the prosecution] to attempt a maneuver designed to prejudice appellant by forcing the witness to assert the privilege in the presence of the jury.

The record here conclusively displays an extraordinary course of prosecutorial overreaching, including direct misrepresentation to the court, taken in deliberate bad faith. This kind of intentional prosecutorial misconduct is a threat to the very integrity of our judicial process, and must not be condoned. Commonwealth v. Starks, supra, n. 7.

We are reluctant to mandate dismissal of charges against this or any other defendant in the absence of a completed fact finding procedure. But extraordinary prosecutorial misconduct necessitates commensurately strong sanction. If protection against double jeopardy is to have any meaning at all, it must be invoked when an initial trial has been aborted as a result of a bad faith strategy pursued by the prosecution in a deliberate effort to prejudice the accused in the presence of the jury. Thus, the Commonwealth is now precluded by constitutional restraints against double jeopardy from seeking a second opportunity to obtain a conviction of this defendant.

495 Pa. at 69, 432 A.2d at 203-204.

Indicating his disagreement, Justice Larsen penned a dissenting opinion in which he took the position that a deliberate bad faith attempt to prejudice or harass the defendant had not been shown:

To rule that a single instance of prosecutorial misconduct, as we have here, rises to the level of bad faith/harassment type overreaching, especially in the absence of a finding of bad faith by the lower court, in effect elevates all non-inadvertent prosecutorial misconduct to Dinitz overreaching status, since virtually all prosecutorial trial tactics are designed to prejudice the accused's

[ 296 Pa. Super. Page 245]

    prospects for acquittal. Every deliberate act which was later determined to be prosecutorial misconduct would thus entitle the defendant to discharge.

Id., 495 Pa. at 72, 432 A.2d at 205 (Larsen, J., dissenting).

Thus, in Virtu, a majority of our Supreme Court has indicated that the double jeopardy standard for prosecutorial overreaching is something more than mere hollow pretense.

In a broader view, these two cases illustrate the problems associated with the application of any standard which delves into the mental state of the prosecutor. See Comment, The Double Jeopardy Clause and Mistrials Granted on Defendant's Motion: What Kind of Prosecutorial Misconduct Precludes Reprosecution?, 18 Duq.L.Rev. 103, 110 (1978) ("establishing the requisite mental state of the prosecutor is an awesome burden, if not an insuperable one, in the absence of an express declaration by the prosecutor that he is engaging in the activity for the explicit purpose of provoking a mistrial request"*fn11). This is not to say that such a standard is, therefore, unworkable for the Virtu decision is an indication to the contrary. See also note 11, supra. Rather, it is a situation where the courts must exercise sound discretion in determining when a finding of intentional misconduct is appropriate. As always, such discretion is best exercised by the trial judge who can observe the pertinent conduct and demeanor of the prosecutor to determine his motivations, or lack thereof, better than we can on a cold record. See Commonwealth v. Wright, 439 Pa. 198, 266 A.2d 651 (1970).

The record in the instant case evidences improper conduct by the prosecutor in continually attempting to elicit testimony regarding appellant's membership in the notorious Breed Motorcycle Club. Initially, the prosecutor's questions went to appellant's general attire at the time of the incident. From this rather innocuous line of questioning, the prosecutor went into more and more detail about the colors and

[ 296 Pa. Super. Page 246]

    emblems exhibited upon appellant's motorcycle jacket which identified him as a member of the Breed Motorcycle Club. At first, defense counsel did not object and, when he eventually did, the objection was summarily overruled. The issue was, nevertheless, put in question at a later time with the following exchange:

Q. Members of the Breed motor cycle gang -- motor cycle club -- whatever, do they frequent Phil's Bar?

[DEFENSE ATTORNEY]: Objection, Your Honor.

THE COURT: Sustained

[PROSECUTOR]: Are you friends with members of the Breed motor cycle --


THE COURT: Sustained. I will see counsel at sidebar.

(Whereupon a sidebar conference was conducted out of the hearing of the jury as follows:)

[DEFENSE ATTORNEY]: Your Honor, I would like to move for a mistrial.

THE COURT: I beg your pardon?

[PROSECUTOR]: If I may lay a foundation, Your Honor, the defense in this case is insanity, that he committed these acts due to an insane state. It is the Commonwealth theory of this case that Mr. Custor was wearing his Breed colors that day. Wearing Breed's colors is something particular. It is in the nature of perhaps members of the armed forces wearing their uniform and that branch being challenged. On that occasion he was wearing Breed's colors and there was an altercation on the highway and it is my intention to build up a case in order to show the Commonwealth's theory that motive in this case was Mr. Custor was, in a way, standing up for his colors. He was acting out as he felt necessary as a member of the Breeds and that is the theory.

With this witness, the reason I am bringing this out, I think to go into anything as far as the witness on why he might be biased or why he might be coming into court with tainted testimony. The fact that Mr. Custor is a

[ 296 Pa. Super. Page 247]

    member of the Breeds, the fact that Breed's members associate the bar, frequently associate the bar, could go to either friendship on the part of this witness or Mr. Custor or fear on the part of this ...

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