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filed: May 10, 1985.




James J. Phelan, Jr., Narbeth, for appellant.

Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Spaeth, President Judge, and Wickersham, Brosky, Wieand, Cirillo, Del Sole, Montemuro, Johnson and Popovich, JJ. Brosky, J., joins, but also files a concurring opinion. Wieand, J., files a concurring opinion. Spaeth, President Judge, files a dissenting opinion. Del Sole, J., files a dissenting opinion, in which Popovich, J., joins.

Author: Cirillo

[ 342 Pa. Super. Page 285]

We here review a pretrial order denying appellant's motion to bar retrial on double jeopardy grounds. Such an order is immediately appealable. Commonwealth v. Haefner, 473 Pa. 154, 373 A.2d 1094 (1977); Commonwealth v. Hoburn, 335 Pa. Super. 536, 485 A.2d 24 (1984); Commonwealth v. Arelt, 308 Pa. Super. 236, 454 A.2d 108 (1982); Commonwealth v. Yost, 305 Pa. Super. 316, 451 A.2d 549 (1982).

This case began in July of 1975, when appellant Lawrence Demetrius Simons solicited Wayne Thorpe, Grant Ravenell, and Angelo Casselle to rob Zollie Perry. While appellant and Casselle waited in a car as lookouts, Thorpe and Ravenell, armed with pistols, approached Perry to rob him. Perry was also armed, and shot Ravenell. Thorpe then shot Perry. The four conspirators fled. Perry died from the shooting; Ravenell lived.

In separate jury trials in the Philadelphia Court of Common Pleas, first Simons, the mastermind, then Thorpe, the triggerman, were found guilty of second-degree murder and robbery. In both trials accomplices Ravenell and Casselle testified for the prosecution. After denying post-trial motions, the Honorable John A. Geisz sentenced both defendants to life imprisonment.

Simons and Thorpe appealed. Each argued on appeal that a new trial should be granted because the prosecutor had concealed from each jury the terms of a plea agreement between Ravenell and the Commonwealth. In Thorpe's case, the Pennsylvania Supreme Court remanded to the trial court for an evidentiary hearing on this issue. Our Court, which at the time had cognizance of the Simons appeal, followed suit and remanded for a joint hearing with the Thorpe case. Commonwealth v. Simons, 275 Pa. Super. 564, 419 A.2d 44 (1980). After hearing evidence on the

[ 342 Pa. Super. Page 286]

    issue, Judge Geisz granted new trials to Thorpe and Simons in an opinion and order dated December 3, 1980.

Thorpe and Simons then filed motions to dismiss the charges against them, asserting that retrials would violate their rights not to be placed twice in jeopardy. In an order dated May 14, 1981, the court denied the motions. Simons here appeals from that order.

Appellant asserts his rights under the United States and Pennsylvania constitutions not to be placed twice in jeopardy for the same offense. U.S. Const. amend. V; Pa. Const. art. 1, § 10. The double jeopardy protections afforded by the federal and state constitutions generally are said to be coextensive, Commonwealth v. Hude, 492 Pa. 600, 425 A.2d 313 (1980); Commonwealth v. Gravely, 486 Pa. 194, 404 A.2d 1296 (1979), and our state courts adopt the approach of the United States Supreme Court in double jeopardy cases, Commonwealth v. Beaver, 317 Pa. Super. 88, 463 A.2d 1097 (1983).

Generally it is not a violation of double jeopardy prohibitions to retry a defendant who obtains a new trial on his own motion, even where the motion is necessitated by prosecutorial or judicial error. United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976). However, where the prosecutor deliberately commits prejudicial error in order to force the defendant into a "Hobson's choice" between giving up his first jury and continuing a trial tainted by prejudice, double jeopardy considerations come into play.

The Double Jeopardy Clause does protect a defendant against governmental actions intended to provoke mistrial requests and thereby to subject defendants to the substantial burdens imposed by multiple prosecutions. It bars retrials where "bad-faith conduct by judge or prosecutor," United States v. Jorn, supra, [400 U.S.] at 485, 27 L.Ed.2d 543, 91 S.Ct. 547 [at 557] threatens the "[h]arassment of an accused by successive prosecutions or declaration of a mistrial so as to afford the prosecution a more favorable opportunity to convict" the defendant.

[ 342 Pa. Super. Page 287]

(plurality opinion). Consequently, as Mr. Justice Nix observed in his concurring opinion in Commonwealth v. Wallace, 500 Pa. 270, 455 A.2d 1187 (1983), there is no longer a Pennsylvania double jeopardy standard barring retrial in cases of prosecutorial misconduct unless the misconduct was intended to provoke the defendant to move for a mistrial. See also Commonwealth v. Rafalko, 335 Pa. Super. 122, 483 A.2d 986 (1984); Commonwealth v. Riffert, 322 Pa. Super. 230, 469 A.2d 267 (1983).

However, the Superior Court has said that the Kennedy rule applies only prospectively to appeals filed after May 24, 1982, the date of the Kennedy decision. Commonwealth v. Lark, 330 Pa. Super. 225, 479 A.2d 522 (1984); Commonwealth v. Freedman, 317 Pa. Super. 207, 463 A.2d 1158 (1983); Commonwealth v. Beaver, supra; see also Rafalko (Kennedy prospectively applied); Riffert (same); but see Commonwealth v. Arelt, supra (pre- Kennedy appeal; Court iterated Kennedy rule, but found no misconduct). We decline the Commonwealth's invitation to overrule our prior decisions in order to adopt the Kennedy rule retroactively. As was stated in the case upon which the Commonwealth primarily relies for its retroactivity argument: "Evenhanded decision making requires that similarly situated individuals on direct appeal be treated the same." Commonwealth v. Cabeza, 503 Pa. 228, 232, 469 A.2d 146, 148 (1983) (quoting Commonwealth v. Brown, 494 Pa. 380, 385, 431 A.2d 905, 908 (1981)). Simons, who filed his appeal in 1981, is situated similarly to those other individuals whose appeals arose in this State before Kennedy, and whose cases were judged by our appellate courts under the pre- Kennedy rule. In the interest of fairness and orderliness in our decision making, we will judge Simons's case also under the pre- Kennedy rule.

The misconduct claimed to raise a double jeopardy bar is that over the course of Simons's trial assistant district attorney David Berman concealed a deal between the Commonwealth and its witness, Grant Ravenell. Ravenell already had pled guilty to third-degree murder, robbery, and

[ 342 Pa. Super. Page 289]

    conspiracy, and was in jail awaiting sentencing. In his opening statement to the jury Berman admitted that the Commonwealth had had to make an agreement for Ravenell's testimony, but denied that there was a sentencing deal, and stated that sentencing was up to the court. Ravenell, on both direct and cross-examination, stated that there was no sentencing deal, that he had been told the maximum sentence he could receive was fifty-five years, and that he expected to go to jail.

In fact, as it later turned out, the Honorable Armand Della Porta sentenced Ravenell to eleven to twenty-three months in prison, county time, with ten years' psychiatric probation to follow, on the strength of a Commonwealth sentencing recommendation that Judge Della Porta apparently knew about at the time of Ravenell's guilty plea. Furthermore, after Ravenell concluded his testimony in the Thorpe trial and the defense attorneys had left the courtroom, Berman moved that Ravenell be released immediately on his own recognizance, and Judge Geisz granted the motion.

After reviewing this case pursuant to our remand order, Judge Geisz found that the available evidence indicated that the Commonwealth did have a sentencing agreement with Ravenell which it failed to disclose at the Simons trial. The judge therefore ordered the new trial which Simons now claims is barred.

It is immediately obvious that the first type of prosecutorial misconduct identified in Starks -- that designed to provoke the defendant to request a mistrial -- is completely absent from this case. The prosecutor's very act of concealment evidenced his intention not to provoke a mistrial request, and virtually guaranteed that none would be made.

Appellant maintains, however, that concealment of the deal constituted the second type of overreaching identified in Starks, "prosecutorial misconduct undertaken in bad faith to prejudice or harass the defendant." 490 Pa. at 341, 416 A.2d at 500. Appellant argues that Berman concealed the deal intentionally, in bad faith, and in order to prejudice

[ 342 Pa. Super. Page 290]

    the defendant, and that therefore reprosecution is barred. We cannot agree with appellant's simplistic interpretation of Starks.

Starks must be read in light of the guarantees embodied in the constitutional provision which it interprets. The Double Jeopardy Clause protects against oppressive governmental acts that threaten the individual's right to be tried only once for one offense; however, it clearly does not establish a general remedy for bad faith misconduct by prosecutors. The task is to determine when prosecutorial misconduct amounts to "overreaching" sufficient to bar retrial on double jeopardy grounds. Commentators on the pre- Kennedy line of cases offer the theory that the Double Jeopardy Clause bars retrial only in those instances where the defendant's interest in the finality of the proceeding against him is overcome by prosecutorial error that might be used to manipulate that interest. Westen & Drubel, Toward a General Theory of Double Jeopardy, 1978 Sup.Ct.Rev. 81, 92-97. Thus, prosecutorial misconduct runs afoul of the Double Jeopardy Clause only where it gives the prosecutor an opportunity to manipulate the defendant's right to have his guilt or innocence decided in one proceeding. The prosecutor can create such an opportunity for manipulation by intentionally erring to induce an abortion of a first trial that is not going favorably for the prosecution; or by introducing an error that will force the defendant to have his case decided by a prejudiced fact finder, if the defendant insists on going through with the first trial despite the error.

This theory of double jeopardy protections in the context of prosecutorial error illuminates the meaning of "overreaching" as the Supreme Court used that term in Starks. "Overreaching" is misconduct designed 1) to provoke a mistrial to obtain a more favorable opportunity to convict the defendant; or 2) to harass the defendant with a threat of multiple prosecutions or to prejudice his prospects for acquittal before the first tribunal convened to try him in a way that forces a "Hobson's choice" between seeking a

[ 342 Pa. Super. Page 291]

    new trial or proceeding to verdict before a prejudiced fact finder.

In Oregon v. Kennedy, the United States Supreme Court chose to limit the availability of relief under the Double Jeopardy Clause by declaring that only misconduct intended to provoke a mistrial would constitute a bar to reprosecution. Kennedy thus narrowed the scope of double jeopardy review to the first type of "overreaching" identified by the Starks Court. In this regard, the expansive reading of Kennedy advanced in the Dissenting Opinion of Del Sole, J. -- that it bars retrial in any case where there has been "intentional misconduct," At 303-306 is unsupportable. Kennedy quite explicitly decided that only misconduct undertaken with the specific intent to precipitate a mistrial will raise a double jeopardy bar. So much is clear from the plain language of Kennedy 's holding:

     we do hold that the circumstances under which . . . a defendant may invoke the bar of double jeopardy in a second effort to try him are limited to those cases in which the conduct giving rise to the successful motion for a ...

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