J-S56013-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JAMES LINCOLN STRONG

                            Appellant                No. 2118 MDA 2013


             Appeal from the Judgment of Sentence June 29, 2011
               In the Court of Common Pleas of Luzerne County
              Criminal Division at No(s): CP-40-CR-0000490-1984


BEFORE: PANELLA, J., WECHT, J. and PLATT, J.

MEMORANDUM BY PANELLA, J.                       FILED NOVEMBER 10, 2014

        Appellant, James Lincoln Strong, appeals from the judgment of

sentence entered on June 29, 2011, in the Court of Common Pleas of

Luzerne County. We affirm.

        For a detailed recitation of the facts and procedural history, we refer

the reader to the trial court’s opinion filed on December 17, 2013. On May

25, 2011, following a remand for a new trial by our Supreme Court,1 Strong

____________________________________________



    Retired Senior Judge Assigned to the Superior Court.
1
  On November 29, 2000, our Supreme Court determined that Strong had
established a due process violation as the Commonwealth failed to disclose
exculpatory information concerning the credibility of its key witness thereby
warranting the grant of a new trial. The Court noted that “the
Commonwealth’s failure to comply with Brady is a violation of the
Fourteenth Amendment of the United States Constitution.” Commonwealth
v. Strong, 761 A.2d 1167, 1175 (Pa. 2000). “That violation undermined the
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was convicted of first-degree murder, kidnapping and robbery, related to the

slaying of James Henry Strock on August 18, 1983, in Luzerne County.

Strong was sentenced on June 29, 2011 to life imprisonment without parole

on the first-degree murder conviction, followed by a consecutive period of 90

months’ to 20 years’ imprisonment on the kidnapping conviction and a

consecutive period of 102 months’ to 20 years’ imprisonment on the robbery

conviction. Strong filed a post-sentence motion, which was later denied by

the trial court. This timely appeal followed.

       On appeal, Strong raises the following issue for our review:

      A. Is the Defendant entitled to a dismissal of all charges and
         discharge when the Commonwealth has engaged in individual
         instances and cumulative and continuous course of conduct
         going back to his first trial which was intended to provoke the
         Defendant to move for a mistrial and also intentionally
         undertaken to deprive the Defendant of a fair trial and
         designed to secure a conviction in violation of the Double
         Jeopardy Clause of the Federal Constitution, Fifth Amendment
         and the Pennsylvania Constitution, Article I, Section 10?

Appellant’s Brief, at 4.

      “An appeal grounded in double jeopardy raises a question of

constitutional law.” Commonwealth v. Vargas, 947 A.2d 777, 780 (Pa.

Super. 2008) (citations omitted). Our standard of review “as to whether the

                       _______________________
(Footnote Continued)

truth-determining process so that no reliable adjudication of [Strong’s] guilt
or innocence could have taken place.” Id. (internal citations omitted)
(brackets added).




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Double Jeopardy Clause has been violated is one of pure law and, as such,

our standard of review is de novo and our scope of review is plenary.”

Commonwealth v. Drain, 921 A.2d 16, 18 (Pa. Super. 2007) (citation

omitted).

      “The Double Jeopardy Clause of the Fifth Amendment to the United

States Constitution protects an individual against successive punishments

and    successive    prosecutions    for    the   same   criminal   offense.”

Commonwealth v. Szebin, 785 A.2d 103, 104 (Pa. Super. 2001) (citation

omitted). “In Pennsylvania, jeopardy does not attach and the constitutional

prohibition against double jeopardy has no application until a defendant

stands before a tribunal where guilt or innocence will be determined. In a

criminal jury trial, jeopardy attaches when the jury is sworn.” Vargas, 947

A.2d at 780 (internal citations omitted).

      However, “there is very extensive and long-standing appellate court

authority in this Commonwealth which clearly recognizes that an appellant

who has secured a new trial on his own motion, whether on direct appeal or

on collateral review, may generally not be heard to assert that the new trial

so secured is barred by constitutional protections against double jeopardy.”

Commonwealth v. Barber, 940 A.2d 369, 374 (Pa. Super. 2007).

      The constitutional guarantee against double jeopardy protects a
      defendant in a criminal proceeding against multiple punishments
      or successive prosecutions for the same offense. In general,
      when a mistrial is granted on a defendant’s motion, or with his
      consent, the principles of double jeopardy do not bar a
      subsequence reprosecution. The only exception to the rule
      permitting retrial is where the defendant’s mistrial request is

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      necessitated by prosecutorial error committed intentionally to
      force the accused to move for a mistrial, thereby affording the
      prosecution another, possibly more favorable opportunity to
      convict. When such governmental overreaching or bad faith is
      found to exist, the double jeopardy clause will bar a retrial.

Commonwealth v. Yost, 451 A.2d 549, 550-551 (Pa. Super. 1982)

(citations omitted).

      Subsequent to Yost, the Pennsylvania Supreme Court clarified this

standard by stating “that the double jeopardy clause of the Pennsylvania

Constitution prohibits retrial of a defendant not only when prosecutorial

misconduct is intended to provoke the defendant into moving for a mistrial,

but also when the conduct of the prosecutor is intentionally undertaken to

prejudice the defendant to the point of the denial of a fair trial.”

Commonwealth           v.   Smith,   615   A.2d   321   (Pa.   1992).   See   also

Commonwealth v. Strong, 825 A.2d 658 (Pa. Super. 2003).

      Here, Strong argues that the Commonwealth committed “so many

egregious instances of misconduct,” which resulted in an “intentional

undertaking to prejudice” Strong to the point of denial of a fair trial.

Appellant’s Brief at 23. Strong believes retrial should be barred. We

disagree.

      After a thorough review of the voluminous certified record, as well as

the briefs of the parties, we are confident that the trial court ably and

methodically reviewed the validity of Strong’s double jeopardy challenge. In

his comprehensive opinion, President Judge Thomas F. Burke, examined

each of Strong’s claims of prosecutorial misconduct and properly reasoned


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that retrial is not barred by the Double Jeopardy Clause. We can find no

error in the trial court’s reasoning and, as such, we affirm on the basis of

Judge Burke’s well-written memorandum opinion filed pursuant to Pa.R.A.P.

1925(a). See Trial Court Opinion, 12/17/13.

     Judgment of sentence affirmed. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/10/2014




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