Appeal from the Order entered January 18, 2012, Court of Common Pleas, Erie County, Criminal Division at No. CP-25-CR-0003286-2006
BEFORE: BENDER, P.J., FORD ELLIOTT, P.J.E., BOWES, GANTMAN, DONOHUE, ALLEN, LAZARUS, OTT and WECHT, JJ.
Appellant, James Phillip Minnis ("Minnis"), appeals from the January 18, 2012 order denying his motion to dismiss the charges against him on double jeopardy grounds. We reverse and remand, and in doing so, we overrule Commonwealth v. Constant, 925 A.2d 810 (Pa.Super. 2007), appeal denied, 594 Pa. 675, 932 A.2d 1285 (2007).
The trial court summarized the pertinent factual and procedural history:
A jury found the defendant guilty of sexually abusing his girlfriend's daughter, T.K., who was between the ages of eight to eleven years old during the time of the alleged assaults. The offenses allegedly occurred at her residence that [Minnis] shared with the alleged victim's mother and her siblings, as well as [Minnis'] two daughters. Among the witnesses who testified at trial were the alleged victim, Michelle Peterson of the Children's Advocacy Center, and Rhonda Henderson, R.N. [('Henderson')], a forensic nurse examiner. Henderson had examined T.K. and concluded to a reasonable degree of medical certainty that T.K. had suffered both vaginal and rectal injuries. On February 12, 2008, [Minnis] filed a post-sentence motion requesting a new trial and reconsideration of sentence. On February 4, 2008, [Minnis] was sentenced to an aggregate sentence of 192 to 304 months of incarceration for committing involuntary deviate sexual intercourse upon the minor, T.K. He was also found to be a sexually violent predator. On February 13, 2008, the post-sentence motion was denied.
[Minnis] took a timely appeal and the judgment of [sentence] was affirmed by the Honorable Superior Court on September 29, 2009. In 2010, the Erie County District Attorney had reason to believe that a number of Henderson's examinations and testimony were unreliable. It alerted the Court. After conducting an extensive investigation of Henderson's activities, the District Attorney sent notices to defendants (including [Minnis]) whose cases involved Henderson. As a result, a number of defendants were afforded new trials.
On September 10, 2010, [Minnis] filed a counseled petition for post-conviction relief seeking a dismissal of all the charges or in the alternative, a new trial. After review of the petition and the Commonwealth's response, on September 21, 2010, this Court granted PCRA relief in the nature of a new trial. Subsequently, [Minnis] engaged in protracted discovery in an attempt to buttress his claim of double jeopardy based upon prosecutorial misconduct. He asserts, inter alia, that the Commonwealth knew of Henderson's unreliability well in advance of [Minnis'] prosecution, yet presented her testimony at his trial. After discovery was completed, this Court scheduled an evidentiary hearing for December 14, 2011. However, on December 13, 2011, this Court received a letter from the prosecution asserting that [Minnis] waived his double jeopardy claim when he requested – and was granted – a new trial.
Trial Court Opinion, 1/18/12, at 1-3.
The trial court permitted Minnis to respond to the Commonwealth's letter. After review, the court concluded that the Commonwealth's legal argument was correct. That is, the trial court concluded that Minnis waived his constitutional double jeopardy claim because he requested and received a new trial. The trial court relied on Commonwealth v. Constant as binding authority for that proposition. In Constant, the defendant received a second trial because a member of the trial court's staff made improper comments to the jury. Constant, 925 A.2d at 814. The defendant argued that the double jeopardy clause barred retrial where the intentional and prejudicial misconduct of judicial personnel necessitated new trial. Id. At 815. This Court disagreed, holding that "[i]t is firmly established that a defendant who has been convicted and upon his own motion secures a new trial may not plead double jeopardy on his second trial." Id. (citing Commonwealth v. Thomas, 448 Pa. 42, 292 A.2d 353 (1972); Commonwealth v. Melton, 406 Pa. 343, 178 A.2d 728 (1962)). Concluding that Constant was binding authority, the trial court did not conduct a hearing into the nature and extent of the prosecution's alleged misconduct. The trial court simply denied Minnis' motion. In this appeal, Minnis asks this Court to overrule Constant as inconsistent with other binding precedent.
We begin with a brief historical overview of the federal and state double jeopardy clauses. As of the early 1960's, the Pennsylvania double jeopardy clause protected defendants from retrial in the event that they obtained "an acquittal or its equivalent." Melton, 406 Pa. at 347, 178 A.2d at 730. "Until a convicted prisoner receives a sentence which can withstand attack, it may be conceived that his original jeopardy continues without interruption, and that he is therefore not put in jeopardy a second time when he receives his first valid sentence." Id. at 347, 178 A.2d at 731 (quoting King v. United States, 98 F.2d 291, 298 (D.C. Cir. 1938)). The Melton Court simply relied on the general rule that a defendant who receives a new trial by his own request waives the protection of the double jeopardy clause. Id. at 346, 178 A.2d at 730; see also Commonwealth ex. rel. Patrick v. Banmiller, 398 Pa. 163, 164-65, 157 A.2d 214, 215 (1960) ("A defendant who has been convicted and who has secured a reversal of the judgment of conviction […] cannot secure his full release. The relator, by applying for the reversal, has waived his protection against being prosecuted again which the provision against double jeopardy […] affords him."). Furthermore, our state courts historically held that the double jeopardy clause of the state constitution applied only in capital cases. Commonwealth ex. rel. Montgomery v. Myers, 422 Pa. 180, 182 n.2, 220 A.2d 859, 861 n.2 (1966), cert. denied, 385 U.S. 963 (1966).
The general rule as described in Melton remains in effect and applies in many cases. Where a sentence is statutorily subject to appeal by the defendant or the Commonwealth, the defendant has no legitimate expectation of finality in his sentence and double jeopardy protection does not attach. Commonwealth v. Kunish, 529 Pa. 206, 212-13, 602 A.2d 849, 852 (1992); Commonwealth v. Postell, 693 A.2d 612, 614-15 (Pa.Super. 1997), appeal denied, 550 Pa. 718, 706 A.2d 1212 (1998). Thus, for example, a defendant who successfully seeks and obtains a new trial based on an erroneous evidentiary ruling cannot complain that double jeopardy bars the new trial.
This case involves an exception to the general rule, where the second trial results from misconduct on the part of the prosecution. In Myers, our Supreme Court observed that the Fifth Amendment double jeopardy clause, which did not apply to states at the time, precluded retrial where the prosecution engaged in "conduct calculated to abort the proceeding in order to avoid an unfavorable verdict." Myers, 422 Pa. at 187-88, 220 A.2d at 863-64. The Myers Court also expressed its disapproval of the notion that a defendant always waives double jeopardy protection by moving for mistrial. Id. at 189, 220 A.2d at 864. "To hold that an accused must barter away his constitutional protection against the oppression of multiple prosecution in order to avoid the hazards of continuing with a proceeding which by hypothesis has been tainted so as to prejudice his right to a fair trial would not be consistent with the administration of justice." Id. The Myers Court concluded, however, that the prosecutor did not calculate his prejudicial remarks to prompt the defendant's motion for mistrial. Id. at 190, 220 A.2d at 865. Thus, the Court held that the Fifth Amendment, even if it applied to the states, would not preclude the defendant's retrial. Id.
Subsequently, in Benton v. Maryland, 395 U.S. 784, 794 (1969), the United States Supreme Court held that the double jeopardy clause of the Fifth Amendment applied to the states through the due process clause of the Fourteenth Amendment. As described in Myers, the federal double jeopardy clause prohibits retrial where the prosecution attempts to provoke the defendant's motion for mistrial. Oregon v. Kennedy, 456 U.S. 667, 673 (1982). "[T]he defendant's right to complete his trial before the first jury would be a hollow shell if the inevitable motion for mistrial were held to prevent a later invocation of the bar of double jeopardy in all circumstances." Id. Thus, the prosecution cannot attempt to ...