No. 404 Philadelphia, 1981, APPEAL FROM THE ORDER OF JAN. 20, 1981 IN THE COURT OF COMMON PLEAS OF CHESTER COUNTY, CRIMINAL NO. 514-80
John R. Merrick, Public Defender, Dennis Daniel Brogan, Assistant Public Defender, West Chester, for appellant.
Joseph W. Carroll, III, Assistant District Attorney, West Chester, for Commonwealth, appellee.
Cavanaugh, Cirillo and Hoffman, JJ.
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This is an appeal from an Order of the Court of Common Pleas of Chester County, denying the appellant's Motion to Quash an Information based upon the claim that reprosecution was barred on the basis of double jeopardy.
On March 20, 1980 the appellant, David Yost, drove a car to the Frazer Bowling Lanes in East Whiteland Township, Chester County. The only passenger in the car, Marl Latsha, had arranged to meet a state trooper, working in an undercover capacity, at that location for the purpose of
[ 305 Pa. Super. Page 318]
selling methamphetamine, a controlled substance.*fn1 Police arrested Marl Latsha at the bowling lanes and seized a quantity of methamphetamine from his person. The appellant, who had remained inside of the car during this time, was also arrested. A sawed-off shotgun was found between the appellant's legs at the time of his arrest, and some shotgun shells and marijuana were also found in the car.
The appellant was charged with various offenses,*fn2 and subsequently filed a Motion to Suppress the shotgun and methamphetamine, which was denied. The Honorable Dominic T. Marrone thereafter met with counsel in chambers and specifically instructed the assistant district attorney not to let his witnesses mention the marijuana that was found in the car, while testifying in the presence of the jury. However, at trial, one of the Commonwealth's witnesses remarked that marijuana had been found in the car and a mistrial was granted at the appellant's request. A Motion to Dismiss the Information was thereafter filed, alleging that any retrial should be barred as violative of the appellant's constitutional right not to be placed twice in jeopardy. After a hearing, the Honorable Robert S. Gawthrop, III denied the motion by an Order dated January 20, 1981, and this appeal followed.*fn3
The constitutional guarantee 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 651 (1977). In general, when a
[ 305 Pa. Super. Page 319]
mistrial is granted on a defendant's motion, or with his consent, the principles of double jeopardy do not bar a subsequent reprosecution. United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976); United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971). The only exception to the rule permitting retrial is where the defendant's mistrial request is necessitated by prosecutorial error committed intentionally to force the accused to move for a mistrial, thereby affording the prosecution another, possibly more favorable opportunity to convict. When such governmental overreaching or bad ...