No. 01025 PITTSBURGH, 1982, Appeal from the Judgment of Sentence in the Court of Common Pleas, Criminal Division, of Mercer County, No. 430 Criminal, 1980.
Robert J. Tesone, Hermitage, for appellant.
James P. Epstein, Assistant District Attorney, Mercer, for Commonwealth, appellee.
Brosky, Watkins and Hester, JJ.
[ 335 Pa. Super. Page 124]
Appellant appeals from a judgment of sentence imposed August 24, 1982, of not less than (10) nor more than twenty (20) years. Admitted into evidence at trial was appellant's incriminating statement wherein he admitted killing the victim first by striking her several times in the head with a tire iron and then running over her with his car. However, appellant professed self-defense. After appellant's demurrer to the Commonwealth's evidence was denied, the jury found appellant guilty of third degree murder on April 20, 1981.
Appellant raises several issues on appeal including bad faith prosecutorial overreaching. Appellant's defense counsel was suspected of intimidating key Commonwealth witnesses
[ 335 Pa. Super. Page 125]
to avoid subpoena. During appellant's trial the Commonwealth was unable to locate, after a diligent search, a previously cooperative witness. Prior to appellant's trial, the witness' sisters admitted that they had been indirectly advised by appellant's defense counsel to avoid subpoena.
In supplemental post-verdict motions filed approximately five months after appellant's conviction, appellant contends the post-trial execution of a non-specific search warrant on his attorney's office violated the attorney-client privilege. This search occurred while appellant's Motion for a New Trial was pending. Appellant asserts that had he been successful in his Motion for a New Trial, he would have been unduly prejudiced by the confidential information illegally obtained from his attorney's office and through his attorney's secretary.
Appellant submits the Commonwealth's investigation of defense counsel was prosecutorial overreaching designed to harass and prejudice him and therefore, the lower court improperly denied his supplemental Motion in Arrest of Judgment and Motion for a New Trial. Appellant maintains the Commonwealth is barred from retrying him due to the constitutional prohibition against double jeopardy.
As noted in the lower court opinion, there is a question whether the appellant has properly raised the contention of double jeopardy at this time for there has been no mistrial or a new trial declared. However, in view of the holding in Commonwealth v. Hallowell, 497 Pa. 203, 439 A.2d 1140 (1981), wherein two justices held that the defendant lost the opportunity to contend double jeopardy by not asserting it on an initial direct appeal, we will now address that issue.
Appellant does not allege intentional prosecutorial misconduct designed to provoke the defendant into moving for a mistrial. See Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982). In fact, in his brief, appellant specifically states prosecutorial ...