Com. v. Smith

• Decision Date: 20 September 1991
• Citation: 591 A.2d 730,404 Pa.Super. 553
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Jay C. SMITH, Appellant.
• Court: Pennsylvania Superior Court

Page 730

591 A.2d 730

404 Pa.Super. 553

COMMONWEALTH of Pennsylvania, Appellee, v. Jay C. SMITH, Appellant.

Superior Court of Pennsylvania.

Argued Feb. 28, 1991.

Filed May 22, 1991.

Petition for Allowance of Appeal

Denied Sept. 20, 1991.

William Costopoulos, Lemoyne, for appellant.

Robert A. Graci, Deputy Atty. Gen., Harrisburg, for Com., appellee.

Before CAVANAUGH, McEWEN and MONTGOMERY, JJ.

CAVANAUGH, Judge:

Should all charges against appellant Jay C. Smith be dismissed and a retrial barred because of an alleged pattern of prosecutorial misconduct during trial and on appeal?

The history of the case, relevant to our present inquiry, may begin with the conviction of Smith by a jury of murder in the first degree for the killing of Susan Reinert and her two children Karen and Michael. At the penalty stage of the proceedings, the jury found two aggravating factors as to each case and no mitigating factors with the result that a death sentence was imposed as to each victim. Post-trial motions were heard and denied. Just before sentencing, a motion for a new trial was filed based on after discovered evidence citing alleged prosecutorial misconduct in failing to disclose a "deal" with a Commonwealth witness, Raymond Martray, who had testified at trial as to incriminating statements made by Smith while Martray and Smith were incarcerated together. The trial court, after hearing evidence relative to this motion, concluded that there was no after discovered evidence warranting a new trial and rejected Smith's motion. Smith was sentenced in accordance with the jury verdicts and the court later denied post-sentence motions to modify sentence.

Argument on appellant's automatic appeal to the supreme court was heard in May of 1988. Among the claims of error asserted on appeal was the denial of the Martray motion. Following argument before the supreme court, the attorney for the Commonwealth advised Smith's counsel of the discovery of five evidence collection devices known as rubber lifters, two of which contained a particle of sand sized quartz. This disclosure inspired a motion on behalf of Smith in the supreme court wherein the case then resided. This motion sought vacation of the sentence and a bar to retrial on the basis of double jeopardy. The supreme court in response remanded for an evidentiary hearing on the issue. After hearing, the trial court denied Smith any relief and its findings and conclusions were forwarded to the supreme court, which on December 22, 1989 granted Smith a new trial on a basis other than the two motions discussed above (the "Martray motion" and the "lifters motion"). In view of the grant of a new trial, the court did not reach the Martray and lifters issues.

On remand, Smith filed a motion in the trial court re-asserting his claim for double jeopardy relief to bar a retrial on the grounds of prosecutorial misconduct. The matter was assigned to Senior Judge Robert L. Walker. Judge Walker concluded that there were no double jeopardy violations under controlling interpretations of that doctrine and that at least inferentially the supreme court had already denied relief on these grounds since it had ordered a new trial and, therefore, may be presumed to have rejected any arguments in favor of relief which would bar a retrial. Nevertheless, the court refused to make a finding of frivolousness as to Smith's contentions which would have precluded an appeal from its order. Commonwealth v. Brady, 510 Pa. 336, 508 A.2d 286 (1986); Commonwealth v. Gains, 383 Pa.Super. 208, 556 A.2d 870 (1989). The present appeal is from Judge Walker's order which denied Smith any relief.

Initially, the Commonwealth interposes the argument that the double jeopardy motion asserted here has already been presented to and rejected by the supreme court. Indeed, it is argued that Smith, in his Martray motion, sought only a new trial and that having been granted a new trial, albeit on another ground, appellant has already received all the relief which he sought. Similarly, the Commonwealth argues that the lifters motion was also presented to the supreme court and in that instance, in fact, double jeopardy relief was sought.

In both instances the Commonwealth relies upon the substantive integrity of the supreme court opinion to the effect that if there were an argument which would merit relief in the form of barring a retrial, it would have been considered before the court reached those issues meriting a lesser relief in the form of a new trial. The Commonwealth's argument is further buttressed by the fact that the supreme court specifically referred to the lifter evidence in its decision and stated:

In view of our disposition, we need not consider this issue in determining whether a new trial should be granted. This evidence will now be available at a subsequent trial, and the jury will be given the opportunity to assess its import within the totality of the evidence presented.

Commonwealth v. Smith, 523 Pa. 577, 596 n. 8, 568 A.2d 600, 610 n. 8 (1989).

Thus, the implication is that if the remedy was discharge, rather than a new trial, the court would have addressed the issue as it did the potentially dispositive issue of the sufficiency of the evidence. Nevertheless, while we agree that supreme court opinions must be accorded the highest degree of deductive integrity, we are reluctant to conclude by inference that the important issue of a violation of double jeopardy rights has been considered and rejected. Moreover, the language quoted above, together with the summary deferral of the seventeen other issues (including the Martray issue) not reached ¹, leads us to conclude that this case is similar to another case which is highly relevant to the issues at hand. In Commonwealth v. Simons, 514 Pa. 10, 522 A.2d 537 (1987), the issue of prosecutorial misconduct was argued on appeal in the context of seeking a new trial. After a remand and hearing on the issue, the trial court granted a new trial and then motions to dismiss on double jeopardy grounds were filed. Both this court and supreme court heard appeals from the denial of double jeopardy relief without finding waiver by reason of the previous adjudication.

Having decided that the double jeopardy contention has not been already decided by the supreme court, we proceed to consider the merits of the appeal from Judge Walker's order denying relief. In Commonwealth v. Simons, supra, the supreme court after noting the parallel reach of the double jeopardy issue under federal and Pennsylvania law and the federal supreme court ruling in Oregon v. Kennedy, 456...