                           [J-65-2019] [MO: Saylor, C.J.]
                   IN THE SUPREME COURT OF PENNSYLVANIA
                                EASTERN DISTRICT


 COMMONWEALTH OF PENNSYLVANIA,                  :   No. 40 EAP 2018
                                                :
                     Appellee                   :   Appeal from the Order of Superior
                                                :   Court entered on 06/27/2018 at No.
                                                :   927 EDA 2016 affirming the Order
              v.                                :   entered on 03/03/2016 in the Court
                                                :   of Common Pleas, Philadelphia
                                                :   County, Criminal Division, at No.
 KAREEM JOHNSON,                                :   CP-51-CR-1300424-2006.
                                                :
                     Appellant                  :   ARGUED: September 10, 2019


                                 CONCURRING OPINION


JUSTICE DOUGHERTY                                             DECIDED: May 19, 2020
      I fully join the majority opinion and write separately only to express my view that,

although our decision broadens the jeopardy relief standard requiring intentional

prosecutorial misconduct to include reckless (conscious) prosecutorial disregard of a

substantial risk the defendant will be denied a fair trial, the standard continues to be a

stringent one that will be satisfied only in egregious cases. This Court has previously

authorized dismissal of charges as a sanction for blatant intentional prosecutorial

overreaching designed either to provoke a defendant into a mistrial or deprive a defendant

of a fair trial. Commonwealth v. Smith, 615 A.2d 321 (Pa. 1992); Commonwealth v.

Martarano, 741 A.2d 1221 (Pa. 1999). Nevertheless, this Court has also consistently

cautioned that dismissal of charges is an extreme remedy that should be imposed

sparingly. Commonwealth v. Burke, 781 A.2d 1136, 1144 (Pa. 2001). Our decision today

reinforces our jurisprudence holding dismissal of charges is an appropriate remedy when
there is deliberate and egregious overreaching by the prosecution. However, I do not

read our decision as suggesting dismissal of charges is warranted in every case of

prosecutorial misconduct. In the face of a double jeopardy challenge, unless there is

evidence to support a finding of deliberate and reckless prosecutorial disregard of a

substantial risk the defendant will be denied a fair trial, the remedy should be less severe

than dismissal. Where such evidentiary support is lacking, the appropriate remedy will

normally include the award of a new trial.




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