Com. v. Bolden

Citation472 Pa. 602,373 A.2d 90
CourtUnited States State Supreme Court of Pennsylvania
Decision Date28 April 1977
Parties, 98 A.L.R.3d 958 COMMONWEALTH of Pennsylvania v. Richard BOLDEN, Appellant.

Thomas A. Livingston, John L. Doherty, James K. O'Malley, Pittsburgh, for appellant.

Jess D. Costa, Dist. Atty., Samuel L. Rodgers, First Asst. Dist. Atty., Washington, for appellee.



ROBERTS, Justice.

Appellant Richard Bolden was brought to trial on January 21, 1976 for the murder of Robert (Tim) Indyk. After the jury was sworn and empaneled, a mistrial was ordered on appellant's motion. Prior to commencement of a second trial, appellant moved to dismiss the indictment, claiming that a second prosecution would violate his constitutional right not to be placed twice in jeopardy. 1 This motion was denied and appellant seeks review in this Court.

We hold that the denial of a pre-trial application to dismiss an indictment on the ground that the scheduled trial will violate the defendant's right not to be placed twice in jeopardy may be appealed before the new trial takes place. Once a defendant is erroneously subjected to another prosecution, neither an acquittal nor appellate reversal of a conviction is sufficient to vindicate his constitutional right not to be placed twice in jeopardy. We conclude that the right to be free from multiple prosecution, embodied in the double jeopardy clause, can be adequately protected only by permitting an immediate appeal from a trial court's denial of relief. As Mr. Chief Justice Berger has observed, a criminal prosecution 'imposes heavy pressures and burdens . . . on a person charged. The purpose of the Double Jeopardy Clause is to require that he be subject to the experience only once 'for the same offense. " 2

On the merits, appellant asserts that his request for a mistrial during the first trial was necessitated by serious prosecutorial and judicial misconduct and that retrial would violate the double jeopardy clause. We find no prosecutorial or judicial overreaching in the first proceeding and conclude that the double jeopardy clause is no barrier to a new trial. Accordingly, we affirm the trial court's order denying appellant's motion to dismiss and remand for trial.


The threshold question in this appeal is whether this Court has jurisdiction to hear an appeal from a defendant's pre-trial motion to dismiss an indictment on double jeopardy grounds.

The Appellate Court Jurisdiction Act of 1970 provides this Court with exclusive jurisdiction of appeals from 'final orders of the courts of common pleas' in felonious homicide cases. 3 Generally, a criminal defendant may appeal only from a judgment of sentence. E.g., Commonwealth v. Sites, 430 Pa. 115, 242 A.2d 220 (1968). This rule prevents undue delay and avoids the disruption of criminal cases by piecemeal appellate review. See generally Cobbledick v. United States, 309 U.S. 323, 60 S.Ct. 540, 84 L.Ed. 783 (1940); In re Grand Jury Proceedings, 525 F.2d 151 (3d Cir. 1975). However, this Court has recognized that the final judgment rule is neither absolute nor inflexible. An appeal before judgment of sentence will be permitted when the need for immediate review outweighs the purposes of the fianl judgment rule. See ABA Project on Standards for Criminal Justice, Standards Relating to Criminal Appeals § 1.3(b), commentary (d) (Approved Draft, 1970).

In Commonwealth v. Washington, 428 Pa. 131, 136, 236 A.2d 772, 775 (1968), this Court stated:

'Onto the general rule that orders entered in a criminal case prior to final judgment are not appealable by the defendant this Court has engrafted an exception for cases presenting exceptional circumstances.'

Exceptional circumstances exist

'. . . (1) where an appeal is necessary to prevent a great injustice to the defendant, or (2) where an issue of basic human rights is involved, or (3) where an issue of great public importance is involved.'

Commonwealth v. Swanson, 424 Pa. 192, 194, 225 A.2d 231, 232 (1967) (per Bell, C.J., for a unanimous Court); accord, Commonwealth v. Bruno, 424 Pa. 96, 225 A.2d 241 (1967); Commonwealth v. Byrd, 421 Pa. 513, 219 A.2d 293 (1966).

Our case law permits appeals prior to judgment of sentence when an immediate appeal is necessary to vindicate the right asserted by the defendant. 4 Commonwealth v. Leaming, 442 Pa. 223, 275 A.2d 43 (1971) (nolle prosequi order appealable where defendant asserted violation of right to a speedy trial); accord, Commonwealth v. Reinhart, 466 Pa. 591, 353 A.2d 848 (1976); see Commonwealth v. Bunter, 445 Pa. 413, 282 A.2d 705 (1971) (plurality opinion) (motion to quash indictment due to asserted violation of right to a speedy trial appealable). Before an appeal is quashed as interlocutory, this Court must determine that the defendant's rights will not be forfeited by delaying appellate review. 5 Thus, under the final judgment rule and the Appellate Court Jurisdiction Act, '(t)he finality of an order is a judicial conclusion which can be reached only after an examination of its ramifications.' Bell v. Beneficial Consumer Discount Co., 465 Pa. 225, 228, 348 A.2d 734, 735 (1975). The exceptional circumstances doctrine follows the principle 'that a finding of finality must be the result of a practical rather than a technical construction.' 6 Id. The excpetional circumstances doctrine requires that an appeal be permitted when immediate resolution of the controversy is necessary to protect the defendant's rights.

In this respect, Pennsylvania practice is in accord with federal law. While the final judgment rule is the general rule in federal practice, various exceptions have been created. 9 J. Moore, Federal Practice 110.08(1), at 112 (2d ed. 1975).

One important exception was set out in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). The Supreme Court held that an order is appealable under 28 U.S.C.A. § 1291 (1966) 7 when the appellant's claim is

'separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.'

Id. at 546, 69 S.Ct. at 1225--26.

In DiBella v. United States, 369 U.S. 121, 126, 82 S.Ct. 654, 657, 7 L.Ed.2d 614 (1962), the Court reaffirmed the principle that immediate review is proper when 'the practical effect of the order will be irreparable by any subsequent appeal.' Accord, United States v. Ryan, 402 U.S. 530, 533, 91 S.Ct. 1580, 1582, 29 L.Ed.2d 85 (1971) (dictum); see Stack v. Boyle, 342 U.S. 1, 72 S.Ct. 1, 96 L.Ed. 3 (1951) (order denying motion to reduce bail is a final decision appealable under 28 U.S.C.A. § 1291 (1966)). See also 18 U.S.C.A. § 3147 (1969).

Applying this principle, the Second, Third, Fourth and Eighth Circuit Courts of Appeals have held that the denial of a defendant's double jeopardy claim is a 'final decision' within the meaning of 28 U.S.C.A. § 1291 (1966) and may be appealed prior to judgment of sentence. United States v. Alessi, 536 F.2d 978 (2d Cir. 1976); United States v. MacDonald, 531 F.2d 196 (4th Cir. 1976) (dictum), petition for cert. filed 45 U.S.L.W. 3005 (U.S., June 29, 1976) (No. 75--1892); United States v. Barket, 530 F.2d 181 (8th Cir. 1975), cert. denied, 429 U.S. 917, 97 S.Ct. 308, 50 L.Ed.2d 282 (1976); United States v. DiSilvio, 520 F.2d 247 (3d Cir.), cert. denied, 423 U.S. 1015, 96 S.Ct. 447, 46 L.Ed.2d 386 (1975); United States v. Lansdown, 460 F.2d 164 (4th Cir. 1972). Contra, United States v. Young, 544 F.2d 415 (9th Cir. 1976), cert. denied, 97 S.Ct. 643, 50 L.Ed.2d 626 (1976); United States v. Bailey, 512 F.2d 833 (5th Cir.), cert. dismissed, 423 U.S. 1039, 96 S.Ct. 578, 46 L.Ed.2d 415 (1975); Gilmore v. United States, 264 F.2d 44 (5th Cir.), cert. denied, 359 U.S. 994, 79 S.Ct. 1126, 3 L.Ed.2d 982 (1959). 8

Thus, the issue presented is whether a defendant's rights under the double jeopardy clause are adequately protected if he must first undergo another trial before receiving appellate review of his constititional claim. This in turn requires an examination of the purposes of and interests served by the double jeopardy clause. If the clause is designed to protect an individual from having to stand trial, not just to bar conviction, appellate review after judgment of sentence will not adequately protect appellant's rights. Under Pennsylvania law, 'exceptional circumstances' would then exist and a defendant should be permitted to appeal the denial of an application to dismiss before the new trial takes place. 9


The principle that no one shall be put twice in jeopardy for the same offense 'is one of the oldest ideas found in western civilization.' Bartkus v. Illinois, 359 U.S. 121, 151, 79 S.Ct. 676, 696, 3 L.Ed.2d 684 (1959) (Black, J., dissenting). Its roots can be traced to classical antiquity. 10 The origins of the protection against double jeopardy in American law are found in English common law. In England, the principle matured into the four common law pleas of autrefois acquit, autrefois convict, autrefois attaint and former pardon. See J. Sigler, Double Jeopardy 4--20 (1969) (hereinafter cited as Sigler). Blackstone wrote that the principle 'that no man is to be brought into jeopardy of his life, more than once, for the same offence' was a 'universal maxim of the common law of England.' 11

In the United States, the double jeopardy principle was elevated to constitutional status. 12 The first version of the double jeopardy clause introduced by James Madison in the House of Representatives read: 'No person shall be subject, except in cases of impeachment, to more than one punishment or one trial for the same offense.' 1 Annals of Cong. 434 (1879). The debate which followed evidenced concern that Madison's language might work a change in existing...

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