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COMMONWEALTH PENNSYLVANIA v. HARRY M. GREEN (01/19/88)

filed: January 19, 1988.

COMMONWEALTH OF PENNSYLVANIA
v.
HARRY M. GREEN, SR., APPELLANT



Appeal from the Order of the Court of Common Pleas of Erie County, Criminal at No. 314 of 1982.

COUNSEL

Elliot J. Segel, Erie, for appellant.

Ernest J. DiSantis, Jr., Assistant District Attorney, Erie, for Com., appellee.

Wieand, Montemuro and Popovich, JJ.

Author: Montemuro

[ 370 Pa. Super. Page 344]

Appellant Harry M. Green, Sr., appeals from an Order denying his motion to dismiss on grounds of double jeopardy and/or various discovery violations. We affirm.

Appellant was convicted by jury of rape, statutory rape, corruption of minors, and indecent assault. On February 22, 1983, appellant was sentenced to consecutive terms of ten (10) to twenty (20) years on each of the rape charges. Appellant filed a timely appeal from the judgment of sentence, raising fourteen issues. A panel of this Court held that a prejudicial hearsay violation had been committed and remanded the case for a new trial. Commonwealth v. Green, (No. 00410 Pittsburgh, 1983, memorandum opinion, Filed May 10, 1985). We also commented that the Commonwealth violated the doctrine promulgated in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Pa.R.Crim.P. 305(B)(1) by failing to disclose exculpatory results of the physical examinations of the victims, which showed that there was no evidence of physical trauma. Green, supra. On remand appellant claimed that his retrial was barred by the Double Jeopardy Clause of the Fifth and Fourteenth Amendments. After conducting a hearing at which the examining physician testified, the trial court denied appellant's motion based on the fact that appellant could not prove intentional misconduct on the part of the Commonwealth. This timely appeal followed.

Appellant frames the following issue for our review: Whether Commonwealth's concealment of exculpatory and material evidence, to wit, exculpatory hospital/medical

[ 370 Pa. Super. Page 345]

    reports of alleged sex offense victims, and its misrepresentation to the physician who examined said alleged victims, that he need not appear as a witness because appellant had plead guilty, constitutes intentional and bad faith prosecutorial misconduct and overreaching, thus barring on double jeopardy grounds, any retrial of the appellant?

In 1982 the United States Supreme Court held in Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982), that the constitutional protection against double jeopardy will prohibit retrial of a defendant following a defense-requested mistrial only where the prosecutorial misconduct on which the defense motion was based was intended to provoke the defendant into moving for a mistrial. Id. at 679. Our supreme court adopted the Oregon v. Kennedy standard in Commonwealth v. Simmons, 514 Pa. 10, 15, 522 A.2d 537, 540 (1987). In Simmons, the defendant and his accomplice were convicted of second degree murder and robbery. Both appealed claiming that a new trial was warranted because the prosecutor had concealed from the jury the terms of a plea agreement between a witness and the Commonwealth. The cases were remanded for a joint hearing on the issue and the trial court determined that new trials were warranted. In affirming the denial of motion to dismiss on double jeopardy grounds, our supreme court announced:

In light of the altered basis of [ Commonwealth v. ] Starks [490 Pa. 336, 416 A.2d 498 (1980)], we now declare that henceforth double jeopardy will attach only to those mistrials which have been ...


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