Com. v. Hogan

Decision Date05 October 1978
Citation482 Pa. 333,393 A.2d 1133
PartiesCOMMONWEALTH of Pennsylvania v. Anthony HOGAN, Appellant.
CourtPennsylvania Supreme Court

Michael M. Baylson, Samuel Kagle, Philadelphia, for appellant.

F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Deputy Dist. Atty. for Law, Michael R. Stiles, Asst. Dist. Atty., Chief, Appeals Div., Marrianne E. Cox, Asst. Dist. Atty., Philadelphia, for appellee.



NIX, Justice.

The pivotal question presented in this appeal is whether the Double Jeopardy Clauses of the United States and Pennsylvania Constitutions would be violated by a retrial of appellant under an indictment where two previously completed trials had resulted in the award of new trials at appellant's request.

Appellant, Anthony Hogan, was arrested for the slaying of a police officer on November 20, 1971. Appellant was thereafter convicted of first degree murder in two jury trials and on each occasion was awarded a new trial by the court en banc. Prior to the commencement of the third trial a motion to dismiss the indictment for an alleged double jeopardy violation was filed on appellant's behalf. After hearing testimony and argument on the motion, the court entered an order denying the motion to dismiss. It is from this order that the instant appeal arises. For the reasons that follow, we now affirm.

At the outset we must address the question of the appealability of the denial of this motion at this time. While the general rule in criminal law is that a defendant may appeal only from a judgment of sentence, Commonwealth v. Myers, 457 Pa. 317, 322 A.2d 131 (1974); Commonwealth v. Sites, 430 Pa. 115, 242 A.2d 220 (1968); Commonwealth v. Wright, 383 Pa. 532, 119 A.2d 492 (1956), a majority of this Court has held that we do have jurisdiction to hear an appeal from the denial of a defendant's pre-trial motion to dismiss an indictment on double jeopardy grounds, Commonwealth v. Bolden, 472 Pa. 602, 373 A.2d 90 (1977). 1 See also Commonwealth v. Haefner, 473 Pa. 154, 373 A.2d 1094 (1977).

Having concluded that the matter is ripe for decision, we now turn to the merits of appellant's contention. It is argued that the awards of new trials following the first two trials were occasioned by prosecutorial misconduct, 2 and therefore the allowance of a third trial would constitute an infringement upon the protection against double jeopardy.

The fifth amendment's guarantee against double jeopardy consists "of three separate constitutional protections. It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense." North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969). See also United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896) (prosecution following acquittal); In re Nielsen, 131 U.S. 176, 9 S.Ct. 672, 33 L.Ed. 118 (1889) (prosecution following conviction); United States v. Benz, 282 U.S. 304, 51 S.Ct. 113, 75 L.Ed. 354 (1931) (multiple punishments).

The United States Supreme Court has ofttimes stated the concept underlying the double jeopardy clause:

"Underlying this constitutional safeguard is the belief that 'the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuous state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.' Green v. United States, 355 U.S. 184, 187-188, 78 S.Ct. 221, 223, 2 L.Ed.2d 199, 204"

Quoted in United States v. Scott, 437 U.S. 82, 86 - 87, 98 S.Ct. 2187, 2191-2192, 57 L.Ed.2d 65, 71-72 (1978); United States v. Dinitz, 424 U.S. 600, 606, 96 S.Ct. 1075, 1079, 47 L.Ed.2d 267 (1976). The successive prosecution of the double jeopardy protection arises in two distinct settings. The first setting involves the termination of a criminal proceeding at a stage short of judgment, so that no final determination of guilt or innocence has been made. This form of termination is most frequently encountered where the proceeding has ended in a mistrial.

In such circumstances, the key double jeopardy consideration is whether "the defendant has been deprived of his 'valued right to have his trial completed by a particular tribunal.' " See United States v. Jorn, 400 U.S. 470, 484, 91 S.Ct. 547, 557, 27 L.Ed.2d 543 (1971) (plurality opinion by Harlan, J.), quoting Wade v. Hunter, 336 U.S. 648, 689, 69 S.Ct. 834, 93 L.Ed. 974 (1949). This right is firmly within the protection of the double jeopardy prohibition. Crist v. Bretz, 437 U.S. 28, 38, 98 S.Ct. 2156, 2162, 57 L.Ed.2d 24, 33 (1978). The evil that the double jeopardy protection focuses upon in this context is that the government should be prevented from deliberately causing the abortion of the proceeding to secure more favorable opportunity to convict. Downum v. United States, 372 U.S. 734, 736, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963). Thus, overreaching or bad faith conduct by the prosecutor or trial judge are relevant in determining the scope of the double jeopardy protection when mistrials have been declared. United States v. Scott, 437 U.S. 82, 93, 98 S.Ct. 2187, 2195, 57 L.Ed.2d 65, 76 (1978); United States v. Dinitz, 424 U.S. 600, 611, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976); United States v. Jorn, supra, 400 U.S. at 484, 485, 91 S.Ct. 547.

The second setting which requires a consideration of the double jeopardy protection, as it applies to successive prosecutions is where the defendant has gone to verdict with the tribunal of his choice and, following his conviction by that tribunal, he has successfully appealed and won a new trial. Prosecutorial misconduct is not relevant here because:

". . . the crucial difference between reprosecution after appeal by the defendant and reprosecution after a . . . mistrial declaration is that in the first situation the defendant has not been deprived of his option to go to the first jury and, perhaps, end the dispute then and there with an acquittal."

United States v. Jorn, supra, at 484, 91 S.Ct. at 557.

The United States Supreme Court has remained steadfast in its strict adherence to the principle announced in United States v. Ball, 163 U.S. 662, 671-72, 16 S.Ct. 1192, 41 L.Ed. 300 (1896), that the double jeopardy clause does not bar retrial following a successful appeal. As that Court recently stated in Burks v. United States, 437 U.S. 1, 14, 98 S.Ct. 2141, 2149, 57 L.Ed.2d 1, 11 (1978):

"We have no doubt that Ball was correct in allowing a new trial to rectify Trial error :

'The principle that (the Double Jeopardy Clause) does not preclude the Government's retrying a defendant whose conviction is set aside because of an Error in the proceedings leading to conviction is a well-established part of our constitutional jurisprudence.' United States v. Tateo, 377 U.S. 463, 465, 84 S.Ct. 1587, 1589, 12 L.Ed.2d 448 . . . (1965). " (Emphasis supplied by the Court)

Thus, that Court has made clear that "(t)he successful appeal of a judgment of conviction, on any ground other than the insufficiency of the evidence to support the verdict, . . . poses no bar to further prosecution on the same charge." United States v. Scott, supra, 437 U.S. at 90, 98 S.Ct. at 2193, 57 L.Ed.2d at 74, citing Burks v. United States, supra.

Although waiver of jeopardy, continuing jeopardy, and other explanations have been proffered in support of the Ball rule allowing retrial to correct trial error, the United States Supreme Court decided in Burks v. United States, supra, that the most reasonable rationale was that advanced in United States v. Tateo, supra, 377 U.S. at 466, 84 S.Ct. 1587. There the Court stated that "(i)t would be a high price indeed for society to pay were every accused granted immunity from punishment because of any defect sufficient to constitute reversible error in the proceedings leading to conviction." Burks v. United States, supra, 437 U.S. at 15, 98 S.Ct. at 2149, 57 L.Ed.2d at 12.

Appellant would have us engraft an exception onto the Ball principle so as to prohibit retrial where the trial error creating the need for the reversal of the conviction was the result of prosecutorial misconduct. First, we note that we have failed to find any United States Supreme Court decision that suggests such a result. Presently prosecutorial bad faith is relevant Only when the double jeopardy clause is implicated in a mistrial, see discussion at pages 1135 - 1136, Supra, and not even in Dicta has that Court hinted that extending prosecutorial misconduct considerations to retrials following successful appeals would be proper or appropriate.

Second, at the end of its last Term, the United States Supreme Court undertook a major reappraisal of its double jeopardy decisions. In United States v. Scott, supra, the Court based its reappraisal upon "our vastly increased exposure to the various facets of the Double Jeopardy Clause," and overruled a case decided "only three Terms ago" United States v. Jenkins, 420 U.S. 358, 95 S.Ct. 1006, 43 L.Ed.2d 250 (1975); United States v. Scott, supra, 437 U.S. at 86, 98 S.Ct. at 2191, 57 L.Ed.2d at 71. On the same day, in Burks v. United States, supra, the Supreme Court unanimously overruled three other double jeopardy decisions: Forman v. United States, 361 U.S. 416, 80 S.Ct. 481, 4 L.Ed.2d 412 (1960); Yates v. United States, 354 U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356 (1957); and Bryan v. United States, 338 U.S. 552, 70 S.Ct. 317, 94 L.Ed. 335 (1950). 3 In light of the Court's retrenchment from the nadir of its expansive reading of the double jeopardy clause in United States v. Jenkins, supra, 4 it would be...

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