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decided: March 11, 1987.


Appeal from the Order of Superior Court Entered May 10, 1985, at No. 3084 Philadelphia, 1981, Reversing the Judgment of Sentence Imposed by the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, at Information No. CP 988-990, February Term, 1976, Entered on December 30, 1982. 342 Pa. Superior Ct. 281, 492 A.2d 1119 (1985).


James J. Phelan, Jr., for appellant.

Gaele Mclaughlin Barthold, Deputy Dist. Atty., Ronald Eisenberg, Chief, Appeals Div., for appellee.

Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Flaherty, J., files a concurring opinion joined by Zappala, J. Nix, C.j., concurs in the result.

Author: Papadakos

[ 514 Pa. Page 12]


In this appeal, we are called upon to determine whether the type of prosecutorial misconduct present in this case prohibits re-trial on double jeopardy grounds. We answer in the negative and affirm the decision of Superior Court, 342 Pa. Superior Ct. 281, 492 A.2d 1119, which remanded the case to the Court of Common Pleas of Philadelphia County for a new trial.

In July, 1975, 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 handguns, approached Perry to rob him. Perry was also armed, and he shot Ravenell. Thorpe then shot Perry. The four conspirators fled. Perry died from the shooting, but Ravenell lived. In separate jury trials, first Simons, the mastermind, then Thorpe, the triggerman, were found guilty of second degree murder and robbery. In both trials, Ravenell and Casselle testified for the prosecution. 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, we remanded to the trial court for an evidentiary hearing on this issue. Superior Court, which at the time had cognizance of the Simons appeal, also remanded for a joint hearing with the Thorpe case. After hearing evidence on the issue, Judge John A. Geisz granted new

[ 514 Pa. Page 13]

    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 re-trials would violate their right not to be placed twice in jeopardy. The trial court denied the motion, and, subsequently, Superior Court affirmed.

Our analysis of double jeopardy must begin with a reaffirmation of the distinction between mere prosecutorial error and overreaching which " signals 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." Commonwealth v. Starks, 490 Pa. 336, 341, 416 A.2d 498, 500 (1980); also see, Commonwealth v. Hallowell, 497 Pa. 203, 439 A.2d 1140 (1981). Because prosecutors are the representatives of an impartial sovereignty, we demand that they "are to seek justice, not only convictions." Commonwealth v. Cherry, 474 Pa. 295, 301, 378 A.2d 800, 803 (1977). It is the solemn responsibility of the prosecutor as the spokesman of the government, therefore, to conduct his affairs in court in a manner that will avoid designed grievous injury to the court's proceedings. Administrative error by a prosecutor is one thing; prosecutorial overreaching which triggers double jeopardy is another.

Classification of overreaching by this Court in recent years has been subjected to different standards of review. Under Commonwealth v. Bolden, 472 Pa. 602, 373 A.2d 90 (1977), a defendant would be protected against reprosecution following a mistrial if the conduct of the judge or prosecutor was grossly negligent. This expansive interpretation of the standard of review in double jeopardy cases was repudiated in Commonwealth v. Klobuchir, 486 Pa. 241, 405 A.2d 881 (1979), cert. denied, 445 U.S. 952, 100 S.Ct. 1602, 63 L.Ed.2d 787, reh. denied, 446 U.S. 947, 100 S.Ct. 2178, 64 L.Ed.2d 804 (1980).

The next step in our analysis of prosecutorial overreaching occurred in 1980 in Commonwealth v. Starks, supra:

[ 514 Pa. Page 14]

The United States Supreme Court has enunciated principally two types of prosecutorial overreaching. First there is the prosecutorial misconduct which is designed to provoke a mistrial in order to secure a second, perhaps more favorable, opportunity to convict the defendant. See United States v. Dinitz, [424 U.S. 600, 611, 96 S.Ct. 1075, 1081, 47 L.Ed.2d 267 (1976)]. Second there is the prosecutorial misconduct undertaken in bad faith to prejudice or harass the defendant. See Lee v. United States, [432 U.S. 23, 32, 97 S.Ct. 2141, 2147, 52 L.Ed.2d 80 (1977)]; United States v. Dinitz, supra, at 611, 96 S.Ct. at 1081-82. In contrast to prosecutorial error, overreaching is not an inevitable part of the trial process and cannot be condoned.

Under Starks, a re-trial was barred only if there was a bad faith effort by the prosecutor to prejudice the defendant or an intent to provoke a mistrial.

Starks, of course, rested squarely on federal law and reflected the fact that we consistently had interpreted Pennsylvania's Double Jeopardy Clause (Art. 1, ยง 10) to be co-extensive with the Fifth Amendment because of identical textual and policy considerations. Commonwealth v. Hogan, 482 Pa. 333, 393 A.2d 1133 (1978); Commonwealth v. Sparrow, 471 Pa. 490, 370 A.2d 712 (1977), (Mr. Justice Nix, now Chief Justice Nix, dissenting). Thus, our decisions had not created greater or lesser protection than the federal standard. See, e.g., Klobuchir, supra, (Nix, J., now Chief Justice Nix, Opinion in Support of Affirmance, joined by O'Brien and Larsen, JJ.).

Under a Starks analysis, therefore, we established two types of overzealous prosecutions which were to be utilized in determining whether a mistrial precluded reprosecution: 1) prosecutorial acts intentionally designed to provoke a mistrial; or 2) misconduct which was undertaken in bad faith to harass the defendant deliberately. Commonwealth v. Virtu, 495 Pa. 59, 432 A.2d 198 (1981). As it related to mistrials, moreover, Pennsylvania's Double Jeopardy Clause

[ 514 Pa. Page 15]

    complied in all respects with the federal standard. Commonwealth v. Sample, 493 Pa. 347, 426 A.2d 582 (1981).

This dual mistrial step shifted perceptibly in the United States Supreme Court decision in Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982) (majority opinion by now Chief Justice Rehnquist, joined by Burger, then C.J., White and O'Connor, JJ., concurrence by Powell, J.). Oregon stated:

Because of the confusion which these varying statements of the standard in question have occasioned in other courts, we deem it best to acknowledge the confusion and its justifiability in the light of these statements from previous decisions. We do not by this opinion lay down a flat rule that where a defendant in a criminal trial successfully moves for a mistrial, he may not thereafter 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 mistrial was intended to provoke the defendant into moving for a mistrial.

Justice Rehnquist's opinion recognized the fact that earlier opinions had broadened double jeopardy analysis from a more limited intent to provoke a mistrial to a more generalized standard of conduct deriving from bad faith efforts to harass the accused. Clearly, then, Oregon intends to prevent a new trial only where planned misconduct is calculated to force a mistrial. In thereby narrowing the standard of review, Justice Rehnquist understood as well that although the analysis raised some practical difficulties, it was still a "manageable standard which calls for the court simply to make a finding of fact by inferring the existence or non-existence of intent from objective facts and circumstances." Id., at 102 S.Ct. 2089.

Oregon alerts us to the need to reconsider the continuing validity of Starks. In Commonwealth v. Wallace, 500 Pa. 270, 455 A.2d 1187 (1983), Oregon was accepted as authority by Mr. Justice Nix, now Chief Justice, in his concurring opinion. Superior Court, in addition, already has

[ 514 Pa. Page 16]

    accepted the new standard.*fn1 In light of the altered basis of Starks, we now declare that henceforth double jeopardy will attach only to those mistrials which have been intentionally caused by prosecutorial misconduct. We do so with the full knowledge that we can establish greater protection for our state citizens than provided by the United States Supreme Court. Commonwealth v. Henderson, 496 Pa. 349, 437 A.2d 387 (1981); Commonwealth v. Hogan, 482 Pa. 333, 393 A.2d 1133 (1978). As in the rationale behind Starks, however, we again find a similarity of text and policy between our law and the federal decision in Oregon. Up to this point, of course, the Starks decision has been the law in this jurisdiction.

Because this case presently is on appeal, Oregon's standard of review applies immediately. The Appellant's right not to be held in double jeopardy, in any event, is not being damaged by this decision because we are describing anew only the present applicable standard of review and the circumstances which will cause double jeopardy to attach but not changing the right itself. The Appellant is getting the benefit of what our law mandates as it is being determined at the time of the appeal. Double jeopardy, nevertheless, continues to mean what it has always meant; no new rights were created by Starks nor are they being subtracted by virtue of this analysis. We find a recent analogy for this analysis in Commonwealth v. Gray, 509 Pa. 476, 503 A.2d 921 (1985), where we likewise altered the standard of review in cases involving probable cause for search warrants by adopting the "totality of circumstances" test of Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). We concluded in Gray ...

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