                                   [J-65-2019]
                     IN THE SUPREME COURT OF PENNSYLVANIA
                                EASTERN DISTRICT

   SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

COMMONWEALTH OF PENNSYLVANIA,                :   No. 40 EAP 2018
                                             :
                     Appellee                :   Appeal from the Superior Court entered
                                             :   on 6/27/18 at No. 927 EDA 2016
                                             :   affirming the order entered on 3/3/16 in
                v.                           :   the Court of Common Pleas,
                                             :   Philadelphia County, Criminal Division,
                                             :   at No. CP-51-CR-1300424-2006
KAREEM JOHNSON,                              :
                                             :
                     Appellant               :   ARGUED: September 10, 2019



                                       OPINION


CHIEF JUSTICE SAYLOR                                          DECIDED: May 19, 2020

      The question presented pertains to the scope of protection offered by the

Pennsylvania Constitution’s Double Jeopardy Clause.          We consider whether that

provision bars retrial where the Commonwealth obtains a conviction based on false

evidence and its misconduct, while not undertaken with the intent to deny the defendant

a fair trial, nevertheless stems from prosecutorial errors that rise substantially above

ordinary negligence.


                                    I. Background


                     A. Underlying events, trial, and direct appeal

      In 2002, the victim in the present case, Walter Smith, told police that Clinton

Robinson had killed Margaret Thomas. Later that year, Smith himself was killed when

he was shot twelve times outside a Philadelphia bar. Based on ballistics evidence, the
police concluded that multiple individuals had acted in concert to kill Smith. Police also

recovered a red baseball cap, which was located in the middle of the street

approximately nine feet from Smith’s body. Photos of the scene only showed this one

cap. The cap was assigned property receipt number 9001079.1

       Shortly after the incident, Debbie Williams, a friend of Smith’s who was with him

on the night in question, went to the police station and was questioned by the assigned

detective, James Burns. She provided a statement indicating the following.

       Smith and Ms. Williams made a brief stop at a bar in Philadelphia during the

early morning hours of December 15, 2002. When they left, there were seven to ten

persons on the sidewalk or street outside the bar. As she and Smith went to get into

Smith’s van, she walked to the passenger door while Smith walked around to the

driver’s side. Just then, a young black male wearing a red article of clothing and a

baseball cap ran past her in front of the van toward Smith. Shots rang out, whereupon

Ms. Williams ducked down and did not see the actual shooting. When the shots began,

the individuals outside the bar ran away toward Somerset Street. After the gunshots

ceased, Ms. Williams saw the same person who had run past her flee the scene, also in

the direction of Somerset Street.2 Ms. Williams went to where Smith’s body was lying in

the street and picked up Smith’s black baseball cap, which had a bullet hole in it. The

police arrived shortly thereafter and transported her to the police station.


1 An officer explained at trial that a property receipt is a typed report concerning an item
of evidence, with a unique number on it. The number then functions as a computer
database key for the police to view information about the item, such as where it came
from, which officer obtained it, where it is currently stored, and any data developed
through forensic analysis. See N.T., June 20, 2007, at 130.

2 Somerset Street is near the intersection where the bar was located. At trial Ms.
Williams added that the red baseball cap’s location after the shooting was also in the
direction of Somerset Street from Smith’s body. See N.T., June 20, 2007, at 168.


                                      [J-65-2019] - 2
      At the station, Ms. Williams gave the black cap to Detective Burns and explained

that Smith had been wearing it when he was shot. This cap was assigned property

receipt number 2425291, and was submitted to the crime lab for testing. The testing

revealed the presence of Smith’s blood under the brim.

      The case remained unsolved until 2005, when Bryant Younger, a jailhouse

informant who was under indictment on a federal narcotics offense, told police he had

overheard Appellant make statements implicating himself in Smith’s murder. Younger

admittedly supplied this information solely in hopes of obtaining leniency when he was

sentenced in federal court. See N.T., June 20, 2007, at 85-86 (reflecting the

Commonwealth’s acknowledgement in this regard); see also id. at 96-97, 100, 104, 110-

112 (recording Younger’s testimony that this was his sole motive). Regardless, in light

of the information, the police obtained a sample of Appellant’s DNA and submitted it

together with the red cap for testing.     The testing revealed that Appellant was a

contributor to the DNA in the sweatband of the red cap.

      Thereafter, the Commonwealth proceeded on the understanding that there was

only one baseball cap involved – the red one – and that it contained both Smith’s blood

and Appellant’s DNA. In fact, as explained, the red cap had Appellant’s DNA, whereas

the black cap contained Smith’s blood; neither cap had DNA from both individuals.

Appellant was ultimately arrested and charged with first-degree murder, conspiracy, and

possessing an instrument of crime.

      The matter went to trial in June 2007 as a capital case. The Commonwealth’s

theory as to motive was that Appellant had participated in killing Smith to prevent him

from testifying against Clinton Robinson in the Margaret Thomas homicide case. The

evidence tended to show that Appellant was a friend, or at least an acquaintance, of

Robinson’s.   Moreover, one of the statements Younger claimed to have overheard


                                     [J-65-2019] - 3
included a suggestion by Appellant that if it were not for his (Appellant’s) actions,

Robinson would not be getting out of jail.

       At trial, the Commonwealth’s crucial piece of physical evidence was the red

baseball cap. Unaware of its mistake regarding its possession of two caps from the

crime scene rather than one – and unaware that there was no evidence suggesting

Smith’s blood was on the red cap – the prosecuting attorney repeatedly indicated in his

opening statement that Appellant “got in real close” to shoot Smith essentially at point

blank range, N.T., June 20, 2007, at 78, 79, 87, thus accounting for Smith’s blood

supposedly being on the underside of the red cap’s brim. The prosecutor continued:

       So now with, I would submit, as certain evidence as can you [sic] find we
       know that that hat that was left at that scene in the middle of the street has
       Kareem Johnson’s sweat on it and has Walter Smith’s blood on it. Based
       on that evidence, we come to trial.
Id. at 88 (emphasis added).

       In support of the Commonwealth’s position at trial that Appellant was one of the

shooters and he shot Smith at close range, the lead crime-scene investigator, Officer

William Trenwith, testified that when he recovered the red cap from the scene he saw

drops of fresh blood underneath the cap’s brim. See id. at 116. The officer also noted

that he had never seen a case in which blood had spattered the distance from Smith’s

body to where the red cap was found at the scene – suggesting that the person who

wore the cap had fired his weapon significantly closer to Smith than where the cap was

located.   The Commonwealth also presented the testimony of Lori Wisniewski, the

forensic scientist who performed the DNA testing. She stated that Walter Smith’s blood

and Appellant’s DNA were both found on “the hat.” N.T., June 21, 2007, at 160-164.3

3 Although the Commonwealth was in possession of some forensic evidence, it did not,
prior to trial, request a criminalistics report, which would have reflected a list of the items
tested and the results of those tests. See infra note 5 and associated text.


                                       [J-65-2019] - 4
As well, the Commonwealth elicited testimony from Bryant Younger, who recounted

Appellant’s jailhouse statements.

       Appellant never challenged the underlying premise that there was only one hat,

and both parties construed the evidence as relating solely to the red cap. Accord Brief

for Commonwealth at 5.4 Thus, in his summation Appellant was relegated to arguing

that, despite the presence of both men’s DNA on the same hat, no eyewitness saw

Appellant wear the hat at or near the time of the killing or otherwise connected him with

the crime scene, see N.T., June 22, 2007, at 23-24, 42-45; there were other contributors

to the DNA in the hat’s sweatband, see id. at 55-56; and, in any event, the DNA match

between the cap’s sweatband and the sample provided by Appellant was equivocal.

See id. at 38, 40.

       In his closing argument, the prosecutor took issue with the concept that the DNA

match was equivocal, noting that, per Ms. Wisniewski’s explanation, the odds of the

DNA coming from someone other than Appellant were too small to be realistic. See id.

at 60. Responding to Appellant’s observation that no eyewitness identified Appellant as

the shooter or even stated that the killer wore the red cap, he continued:

       Do you know who says the killer wore the hat? Walter Smith says the
       killer wore the hat. He says it with his blood. There is no other way
       Walter Smith’s blood could have gotten on the underside of this hat . . .
       unless the person who killed Walter Smith was standing close to him while
       he shot and killed him . . .. So once you know that, we know this: The
       killer wore that hat. . . .




4 As noted, in Ms. Williams’ statement, which the Commonwealth caused to be read for
the jury, she explained that she picked Smith’s hat up from the street after the shooting.
See N.T., June 20, 2007, at 178, 226. For reasons that remain unclear, however, this
too apparently did not give rise to a suspicion by anyone at trial that there might be two
hats involved.


                                     [J-65-2019] - 5
       This is the killer’s hat. This is the killer’s hat. The crime scene tells you
       that. The physical evidence tells you that. . . . Physical evidence has no
       bias. Physical evidence cannot lie. . . . It is just out there. It is there and
       it says what it says. . . . This overwhelming physical evidence says that
       killer’s hat was left out on the scene. . . .

       DNA evidence . . . says, hey, this is Kareem Johnson’s sweat on the
       sweatband, he is the major contributor, the very hat that has Walter
       Smith’s blood on the brim.
Id. at 66-68, 89 (emphasis added).

       The jury convicted Appellant on all counts and set the penalty at death. This

Court affirmed the judgment of sentence on direct appeal.          See Commonwealth v.

Johnson, 604 Pa. 176, 197, 985 A.2d 915, 928 (2009).


             B. Post-conviction relief and subsequent pre-trial motions

       Appellant filed a counseled, amended petition under the Post Conviction Relief

Act. See 42 Pa.C.S. §§9541-9546 (“PCRA”). Responding to a defense open-records

request, Gamal Emira of the criminalistics lab generated a forensics report in 2011,

reflecting that two hats, a red one and a black one – each with a distinct property receipt

number – had been analyzed in connection with the Commonwealth’s case, and that

Smith’s blood was only found on the black hat.5 The Commonwealth thereafter agreed

that Appellant was entitled to a new trial, and the court entered an order to that effect in

April 2015. The Commonwealth later withdrew its notice of intent to seek the death

penalty, making this a non-capital case going forward.




5 The criminalistics lab is a police laboratory that analyzes items of physical evidence
through DNA testing and other scientific processes. It communicates test results and
generates reports as requested by the Commonwealth or by a defense attorney. See
N.T., June 20, 2007, at 87; N.T., June 21, 2007, at 144; N.T., Oct. 12, 2012, at 4-5; see
also N.T., Jan. 27, 2016, at 134-35 (discussing defense-initiated requests).


                                      [J-65-2019] - 6
         Meanwhile, Appellant filed a supplemental discovery motion, to which he

attached the 2011 criminalistics report by Gamal Emira. The court held a hearing on

the motion that spanned several days in late 2015 and early 2016. During the hearing,

the court allowed Appellant to develop evidence to support a potential motion to bar

retrial based on double-jeopardy principles as reflected in, inter alia, the state Charter.

See PA. CONST. art. 1, §10 (“[N]o person shall, for the same offense, be twice put in

jeopardy of life or limb[.]”). Thus, Appellant called as witnesses several individuals who

were involved with the Commonwealth’s presentation of the case at the 2007 trial or

who had represented the Commonwealth in post-conviction proceedings.                These

included: Officer Trenwith; Detective Burns; Lori Wisniewski (whose name had by then

been changed to Lori Citino); Gamal Emira; Attorney Michael Barry, who represented

the Commonwealth at trial; and Attorney Tracey Kavanagh, who represented the

Commonwealth during post-conviction proceedings.

         In questioning these witnesses, Appellant was able to uncover in some detail the

extent of the Commonwealth’s mishandling of the physical and DNA evidence during his

trial.   Of particular note, the Commonwealth misunderstood its own evidence and

conflated the findings relating to the red and black caps. Although separate property

receipt numbers had been assigned to the two hats, this did not prompt the

Commonwealth to investigate whether its trial witnesses were discussing two distinct

caps – or, alternatively, why a single red cap was associated with multiple property

receipts. Even the Commonwealth’s forensic scientists who authored, or supervised

generation of, the scientific reports did not realize at trial that there were two caps

involved.

         Further, Officer Trenwith, who processed the crime scene and who testified as a

fact witness at trial – indicating that he personally saw fresh drops of blood on the red


                                      [J-65-2019] - 7
cap – noted during the hearing on the supplemental discovery motion that his trial

testimony concerning the red cap was based on an assumption:

       Q. Did it occur to you that you were testifying about something that you
       had not documented in any of your reports?

       A. When – when I testified, I was going on the assumption, which I
       shouldn’t have done, that there was, in fact, blood on it, that’s why I said it.
       But as far as my report is concerned, it does not state that there was
       actual drops of blood.
N.T., Jan. 26, 2016, at 37 (emphasis added). The officer’s assumption in this regard

appears to have stemmed from his having heard from a DNA scientist at the time of the

preliminary hearing that blood stains were found on a hat (in reality, the black hat). See,

e.g., id. at 14-16, 22. Still, this did not account for the officer’s description at trial that

the blood drops were located underneath the brim of the hat, that the hat was the red

one, that he personally saw the blood drops, and that they appeared to be fresh when

he arrived at the crime scene. See N.T., June 20, 2007, at 116. Moreover, none of the

photos taken by the officer or his crime-scene partner showed the underside of the red

hat’s brim. See N.T., Jan. 27, 2016, at 115.

       In light of all of the evidence adduced at the hearing, Appellant moved to bar

retrial. The court heard oral argument on the motion in March 2016. During Appellant’s

portion of the argument – which took the form of a back-and-forth conversation with the

court – Appellant highlighted the harm caused by the factually inaccurate trial testimony

concerning fresh drops of blood under the brim of the red hat. See N.T., Mar. 3, 2016,

at 10. The court responded by expressing that it was

       unfathomable to me to believe that what Officer Trenwith saw on the hat
       were, quote, fresh drops of blood. It’s unfathomable not only because it’s
       not referred to on the receipt that he made out, it’s unfathomable because
       here is an experienced crime scene investigator who’s taking pictures,
       which include pictures of the hat – at every point where there’s a picture of

                                       [J-65-2019] - 8
       the hat taken, the hat is in the position it was on the street, brim down. If
       you’re a first-year investigator and you have seen fresh drops of blood on
       the hat, you’re going to at least in one picture flip the hat over and make
       sure there’s a picture of that.
Id. at 10-11.

       Appellant also summarized the mistakes made by Detective Burns, Attorney

Barry, and others associated with the prosecution. He observed that they all made

essentially the same error in conflating the two hats, notwithstanding that the property

receipt numbers were different on the papers showing the lab results for the two hats,

and that the Commonwealth possessed all of the physical evidence and the results of

the forensic testing supplied by the criminalistics lab.

       Appellant argued that, whether those errors reflected an intentional subversion of

the truth-determining process, or mere recklessness, they led to Appellant being

confined on death row for nine years based on a trial that the Commonwealth later

conceded was constitutionally inadequate.         He urged that double jeopardy norms

should be construed to preclude retrial in such circumstances, particularly as the

Commonwealth had seen fit to try a capital case based on DNA evidence without

ordering a criminalistics report – which would have alerted the prosecution to the fact

that two hats were involved. See id. at 15-19.

       For its part, the Commonwealth admitted that it had made substantial errors

during the trial. It argued, however, that retrial should not be barred because it did not

act in bad faith and any subversion of the truth-determining process was unintentional.

In this regard, it observed that at trial the discrepancies it overlooked were in plain view

of the defense as well, and defense counsel did not notice the error concerning the

existence of two caps. Thus, the Commonwealth stressed, the mistakes it made did not

reflect an affirmative intent on its part, or a conspiracy by government actors, to conceal

material information from the defense. See id. at 22-28.


                                       [J-65-2019] - 9
       In ruling from the bench, the common pleas court expressed that it was “more

than negligence” that the Commonwealth took a capital case to trial “without even

awaiting a full criminalistics DNA analysis.” The court characterized the prosecution’s

handling of the evidence as “extremely negligent, perhaps even reckless.” It added that

the Commonwealth’s subsequent “exaggeration” of that evidence at trial was

“intolerable.” Id. at 38-40. Addressing Officer Trenwith, who was present in court for

the ruling, see id. at 11, the court continued:

       I am 100 percent certain, sir, that you did not see, when you first looked at
       that cap, what you really or reasonably thought were, quote, fresh drops of
       blood, unquote, because I know your work. And I know that there would
       have been a lot more evidence with regard to that cap and a lot more
       detail in the property receipt if you actually thought at the time that that’s
       what you had seen.

       But I absolutely do believe that at the time of the preliminary hearing, it’s
       extremely possible that no one, not Officer Trenwith, certainly not
       Assistant District Attorney Barry, understood that there were two separate
       hats.
Id. at 38-39.

       In the end, while describing the trial as a “farce,” the court nonetheless credited

Mr. Barry’s testimony to the effect that the Commonwealth’s myriad errors did not reflect

bad faith or intentional misconduct. The court concluded that

       to turn this gross series of almost unimaginable mistakes by experienced
       police officers and an experienced prosecutor into the kind of bad faith
       intentional misconduct that would permit a judge to bar further prosecution
       I would have to disbelieve completely all of Mr. Barry’s testimony about
       what he did, what he didn’t do, why he did what he did, why he didn’t do
       what he didn’t do.

       On the contrary, I find his testimony to have been completely credible. I
       find that an experienced . . . prosecutor made an almost unimaginable
       mistake, that it was a mistake which dovetailed with other mistakes that



                                      [J-65-2019] - 10
       had been made by the officers and the detective in the case, and it
       produced a trial that was a farce.

       The remedy in Pennsylvania for a trial that was a farce, generally, is a new
       trial. Prosecution . . . is barred under Pennsylvania law only if there are
       additional elements of intentional misconduct and bad faith on the part of
       the prosecution, which I do not find to have existed here.
Id. at 40-41.

       Accordingly, the court denied the motion to bar retrial, although it also stated on

the record that the double-jeopardy issue was non-frivolous. See id. at 41, 44, 46.


                C. Interlocutory appeal from denial of motion to bar retrial

       On interlocutory appeal, the Superior Court affirmed in a non-precedential

decision. The court relied on its prior decision in Commonwealth v. Adams, 177 A.3d

359 (Pa. Super. 2017), for the position that double-jeopardy principles only bar retrial

where there is proof that the prosecutorial misconduct in question was committed with

an intent to either provoke a mistrial or deny the defendant a fair trial.                See

Commonwealth v. Johnson, No. 927 EDA 2016, 2018 WL 3133226, at *5 (Pa. Super.

June 27, 2018) (citing Adams, 177 A.3d at 371).            Characterizing the prosecution’s

actions as “egregious” and “intolerable,” and crediting Appellant’s description that the

Commonwealth had acted with “deliberate indifference” to the nature of the evidence

during trial, the intermediate court nonetheless concluded that such conduct “did not

rise to the level of intentionality required to bar further prosecution.” Id. at *5-*6.


                          D. Discretionary review by this Court

       One aspect of the present dispute, as reflected in the parties’ briefs, relates to

the nature of the issue or issues as to which we granted review. In particular, the

parties disagree as to whether this Court has accepted any issue pertaining to the

standard of review that should be applied to the common pleas court’s factual finding


                                       [J-65-2019] - 11
that the Commonwealth’s misconduct was not specifically intended to deprive him of a

fair trial. To resolve that question, it is helpful at this juncture to set forth the questions

in terms of Appellant’s original phrasing and this Court rephrasing.

       Appellant presented two issues for our consideration in his petition for allowance

of appeal:

       1) Did the record support the finding of the lower court that “an almost
       unimaginable mistake that . . . produced a trial that was a farce,” given
       that the experienced prosecutor and the experienced assigned detective
       both made the same mistake, and the experienced crime scene officer
       testified to the exact same mistake, which proved completely false.

       2) The Superior Court labeled the Commonwealth’s behavior intolerable
       and egregious, and described its handling of the prosecution as
       “deliberate indifference.”       Was the Commonwealth’s deliberate
       indifference to the preparation and presentation of the instant capital case,
       which resulted in egregious mistakes and “misrepresentation of the
       physical evidence,” designed to deprive Kareem Johnson of a fair trial?
Commonwealth v. Johnson, No. 339 EAL 2018, Petition for Allowance of Appeal, at 3-4

(ellipsis in original, footnote omitted), reprinted in Reply Brief for Appellant at 4 n.2. This

Court issued an order which stated that the petition “is GRANTED,” and continued:

       The issue, rephrased for clarity, is:

       Should the Commonwealth’s misrepresentation of physical evidence in
       Petitioner’s first trial bar retrial on double jeopardy grounds,
       notwithstanding the trial court’s finding that the Commonwealth’s
       misconduct was unintentional?
Commonwealth v. Johnson, ___ Pa. ___, 199 A.3d 346 (2018) (per curiam).

       Although the Commonwealth disputes that the first question posed in the petition

for allowance of appeal is subsumed within this Court’s rephrasing, see Brief for

Commonwealth at 15 n.4, the order reflects an unqualified grant as it contains no

limiting language.    Where this Court intends to deny review as to a subset of the


                                      [J-65-2019] - 12
questions raised in the petition for allowance of appeal, it qualifies its action by stating

that the petition is granted, “limited to” certain issue(s), and that “allocatur is denied” as

to the remaining issues. See, e.g., Estate of Benyo v. Breidenbach, ___ Pa. ___, 220

A.3d 1062 (2019) (per curiam); Commonwealth v. Peck, ___ Pa. ___, 218 A.3d 374

(2019) (per curiam).    No such limiting language appears in the grant order quoted

above, and the “notwithstanding” clause of the rephrased question can fairly be read to

subsume the record-support issue. That clause is, notably, framed with reference to the

common pleas court’s finding that the misconduct was unintentional, and not in terms of

the fact that it was unintentional. Thus, we will address both issues.


                                    II. Record support

       Appellant opens his advocacy by suggesting that this Court disapprove the

common pleas court’s factual finding that the prosecution’s mistakes were not made

with the intent of depriving him of a fair trial, but with some lesser scienter such as gross

negligence or possibly recklessness. Appellant’s argument is essentially that the types

and combination of errors ultimately uncovered in this matter were so numerous and

severe that they had to have been committed intentionally, and thus, we should reject

the common pleas court’s contrary finding as clearly erroneous. See Brief for Appellant

at 16-30.

       The Commonwealth’s failure to grasp, during the trial or the proceedings leading

up to it, that there were two hats involved in this matter does appear to have been the

result of an accumulation of a series of mistakes. Still, there is little in the record to

suggest the prosecution was aware of these mistakes at the time they were made. Nor

is there anything tending to reflect a conspiracy on the part of the various witnesses at

the hearing in late 2015 and early 2016 to conceal any such awareness from the

common pleas court. To the contrary, the mistakes, which even defense counsel did

                                      [J-65-2019] - 13
not notice notwithstanding the discrepancy in property receipt numbers, had their

genesis in what appears to have been a highly unusual circumstance: a bystander –

Debbie Williams – removed one of the hats from the crime scene after the shooting but

before the police arrived, and then gave it to the assigned detective at the police station

later that night.6

       In ruling on Appellant’s motion to bar retrial, moreover, the common pleas court

expressly considered the testimony of all the witnesses who were involved in some way

with the original prosecution. This included, most notably, the testimony of the lead

prosecuting attorney, Mr. Barry, in which he admitted that he had made several

significant errors. See, e.g., N.T., Jan. 27, 2016, at 55 (“I should have noticed that the

property receipts were different. That’s absolutely, 100 percent, my fault, and I should

have caught that.”). The court credited the prosecutor’s description, including the clear

implication that his errors were unintentional. See N.T., Mar. 3, 2016, at 37 (“I find [Mr.

Barry’s] testimony to have been completely credible.”).

       A fact-finder who hears witness testimony first-hand is able to take into account

not only the words that are spoken and transcribed, but the witnesses’ demeanor, tone

of voice, mannerisms, and the like. See generally Daniels v. WCAB (Tristate Transp.),

574 Pa. 61, 76-77, 828 A.2d 1043, 1052 (2003) (listing other non-verbal cues that may


6 We are troubled that the lead crime scene investigator testified that he saw fresh
drops of blood on the red cap when no blood was found on that hat. However, he did
see a hat at the scene, he was informed prior to testifying by a forensic scientist that
blood was found on “the hat,” and there is no suggestion he was aware that a hat with
blood had been removed from the scene before he arrived. Thus, it is not entirely clear
that the investigator’s testimony amounted to a conscious lie.

As well, there is no indication that the Commonwealth’s attorney was aware that the
testimony concerning the supposed fresh drops of blood on the red hat was false. Still,
the investigator’s testimony is of some present significance, as explained below.


                                     [J-65-2019] - 14
be available to the first-hand observer (quoting Commonwealth v. Story, 476 Pa. 391,

416, 383 A.2d 155, 168 (1978))). Accordingly, appellate courts, which must “rely[] upon

a cold record,” Armbruster v. Horowitz, 572 Pa. 1, 10, 813 A.2d 698, 703 (2002)

(internal quotation marks and citation omitted), review deferentially the findings of fact

reached by such individuals. See Commonwealth v. Banks, 612 Pa. 56, 81, 29 A.3d

1129, 1144 (2011) (observing that a fact-finder’s credibility determinations are to be

upheld where there is adequate record support for them); see also Commonwealth v.

Sanchez, 614 Pa. 1, 27, 36 A.3d 24, 39 (2011).7

          We do not mean to suggest that such review is blindly deferential, and hence, not

all prosecutorial claims of inadvertence must be believed by appellate courts. Thus, in

Commonwealth v. Virtu, 495 Pa. 59, 432 A.2d 198 (1981), a defense motion for a

mistrial was granted after the Commonwealth called a defense-associated witness who

invoked his Fifth Amendment privilege against self-incrimination in the presence of the

jury.     In a subsequent hearing on the defendant’s motion to bar retrial on double-

jeopardy grounds, the prosecutor asserted that he did not realize the witness would do

so, whereupon the common pleas court credited the prosecutor’s claim and denied the

relief.    On appeal, this Court found it clear from the record that the prosecutor’s

assertion was untruthful and that he had acted in bad faith. See id. at 65 n.8, 432 A.2d

at 201 n.8. For example, it was a matter of record that the Commonwealth’s attorney

had previously lied to the trial judge at side-bar about whether the witness was the


7 In PennDOT v. O’Connell, 521 Pa. 242, 555 A.2d 873 (1989), the Court went so far as
to suggest that, where the testimony of two witnesses is in conflict, a trial court’s
credibility determinations made to resolve the conflict is entirely insulated from review.
See id. at 248, 555 A.2d at 875 (expressing that issues of credibility and the resolution
of conflicting evidence are left to the trial court and “not our appellate courts”). Even
that precept has its limits, however, such as where the credited testimony is undeniably
irrational or provably false.


                                       [J-65-2019] - 15
same person who had invoked his Fifth Amendment rights at a pre-trial suppression

hearing. As well, the witness’s attorney had informed the prosecutor during trial that the

witness would do so again if he was called to testify. Based on such factors, this Court

ultimately reversed the trial court’s order denying the defense motion to bar retrial, and

discharged the defendant due to the objective record evidence of prosecutorial bad

faith. See id. at 70, 432 A.2d at 204.

       In the present matter, by contrast, the common pleas judge who ultimately

denied the motion to bar retrial personally heard extensive testimony from numerous

witnesses involved in the prosecution. Additionally, he actively questioned many of the

witnesses himself. After that lengthy process was complete, and in consideration of all

of the evidence, he credited the prosecutor’s testimony and found that the

Commonwealth had not acted with the intent to deprive Appellant of a fair trial. Unlike

in Virtu, there is no basis in the record to overturn the judge’s credibility determination or

his ultimate factual finding concerning the Commonwealth’s motives. That being the

case, the record support for the common pleas court’s credibility determination is the

extensive testimony itself.


                       III. Scope of double jeopardy protections

       We now turn to whether the court properly denied Appellant’s motion to preclude

retrial on jeopardy grounds. The federal Double Jeopardy Clause, see U.S. CONST.

amend. V (stating no person shall “be subject for the same offence to be twice put in

jeopardy of life or limb”), applies to the States through the Fourteenth Amendment. See

Benton v. Maryland, 395 U.S. 784, 794, 89 S. Ct. 2056, 2062 (1969). It thus represents

the constitutional “floor,” Commonwealth v. Edmunds, 526 Pa. 374, 388, 586 A.2d 887,

894 (1991), for purposes of Pennsylvania’s counterpart provision. Before September

1992, Pennsylvania’s double jeopardy protections had been viewed as coextensive with

                                      [J-65-2019] - 16
those of the Fifth Amendment in light of “identical textual and policy considerations.”

Commonwealth v. Simons, 514 Pa. 10, 14, 522 A.2d 537, 540 (1987) (citation omitted);

see Commonwealth v. Sojourner, 513 Pa. 36, 45 n.6, 518 A.2d 1145, 1149 n.6 (1986);

Commonwealth v. Lively, 530 Pa. 464, 467, 610 A.2d 7, 8 (1992) (citing, inter alia,

Commonwealth v. Kunish, 529 Pa. 206, 207, 602 A.2d 849, 849 (1992)).

       The Double Jeopardy Clause “protects a defendant in a criminal proceeding

against multiple punishments or repeated prosecutions for the same offense.” United

States v. Dinitz, 424 U.S. 600, 609, 96 S. Ct. 1075, 1080 (1976); see also United States

v. DiFrancesco, 449 U.S. 117, 129, 101 S. Ct. 426, 433 (1980) (explaining that the

Double Jeopardy Clause protects against a second prosecution after acquittal, a second

prosecution after conviction, and multiple punishments for the same offense (quoting

North Carolina v. Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072, 2076 (1969))). Among its

purposes are to preserve the finality and integrity of judgments and to deny to the

prosecution “another opportunity to supply evidence which it failed to muster in the first

proceeding.” DiFrancesco, 449 U.S. at 128, 101 S. Ct. at 432-33 (internal quotation

marks and citations omitted).

       Insofar as individual rights are concerned, the Clause protects a defendant’s

interest in having his fate decided by his first jury. See Dinitz, 424 U.S. at 609, 96 S. Ct.

at 1080.    It is grounded on the concept that no person “should be harassed by

successive prosecutions for a single wrongful act and that no one should be punished

more than once for the same offense.” Commonwealth v. Starks, 490 Pa. 336, 339,

416 A.2d 498, 499 (1980) (citing United States v. Wilson, 420 U.S. 332, 342-43, 95 S.

Ct. 1013, 1021 (1975)).

       Still, federal jurisprudence has clarified that the Double Jeopardy Clause does

not require the government to vindicate its interest in law enforcement through a single


                                      [J-65-2019] - 17
proceeding for each offense. See, e.g., Wade v. Hunter, 336 U.S. 684, 688-89, 69 S.

Ct. 834, 837 (1949). Thus, retrial is generally allowed where the first proceeding ends

in a mistrial or the initial conviction is set aside on appeal, see United States v. Jorn,

400 U.S. 470, 483-84, 91 S. Ct. 547, 556 (1971) (plurality); United States v. Tateo, 377

U.S. 463, 465, 84 S. Ct. 1587, 1589 (1964) (citing, inter alia, United States v. Ball, 163

U.S. 662, 671-72, 16 S. Ct. 1129, 1195 (1896)), unless the conviction is overturned due

to evidentiary insufficiency. See Burks v. United States, 437 U.S. 1, 18, 98 S. Ct. 2141,

2150-51 (1978); Commonwealth v. Gibbons, 567 Pa. 24, 28-29, 784 A.2d 776, 778

(2001); see also 18 Pa.C.S. §109 (providing a statutory bar to retrial in some situations).

       Prior to the Supreme Court’s decision in Oregon v. Kennedy, 456 U.S. 667, 102

S. Ct. 2083 (1982), the limiting principle was expressed in terms of prosecutorial

overreaching – that is, misconduct intended to provoke a defense motion for a mistrial

or actions otherwise taken in bad faith to harass or unfairly prejudice the defendant.

See Lee v. United States, 432 U.S. 23, 34, 97 S. Ct. 2141, 2147 (1977). The concept

was applied as a double-jeopardy litmus by federal courts as well as this Court where

the first proceeding ended before a verdict was reached, see, e.g., Jorn, 400 U.S. at

484, 91 S. Ct. at 556-57; Mitchell v. Smith, 633 F.2d 1009, 1011-12 (2d Cir. 1980), or

where it resulted in an unsustainable conviction. See, e.g., United States v. Phillips,

600 F.2d 186, 187 (9th Cir. 1979) (per curiam); Starks, 490 Pa. at 341, 416 A.2d at 500;

cf. Hawk v. Berkemer, 610 F.2d 445, 448 n.4 (6th Cir. 1979) (in dicta, stating that, after

the reversal of a conviction based on an invalid guilty plea, double jeopardy bars further

prosecution where the initial plea was illegal and arose from prosecutorial coercion

involving bad faith or overreaching).

       In Kennedy the Supreme Court disapproved further use of the “overreaching”

test, expressing that it was unworkable due to the lack of adequate standards. See


                                        [J-65-2019] - 18
Kennedy, 456 U.S. at 675, 102 S. Ct. at 2089.          Instead, the Court held, the Fifth

Amendment immunizes the defendant from retrial only where the government’s actions

were “intended to ‘goad’ the defendant into moving for a mistrial.” Id. at 676, 102 S. Ct.

at 2089.

      This Court adopted the Kennedy rule in Commonwealth v. Simons, 514 Pa. 10,

522 A.2d 537 (1987), again referencing that Pennsylvania’s protections were

coterminous with those of the Fifth Amendment. See id. at 14, 522 A.2d at 540 (citing,

inter alia, Commonwealth v. Hogan, 482 Pa. 333, 393 A.2d 1133 (1978)). Accordingly,

Simons stated that, “henceforth double jeopardy will attach only to those mistrials which

have been intentionally caused by prosecutorial misconduct.” Simons, 514 Pa. at 16,

522 A.2d at 540.

      In Simons, this Court noted that it had previously granted a new trial due to

misconduct involving prosecutorial concealment of information that could have helped

the defendant at trial. See id. at 12-13, 522 A.2d at 539. The Court found, however,

that the Commonwealth had not acted in an attempt to provoke a mistrial, and hence,

that the jeopardy bar was not implicated. See id. at 20, 522 A.2d at 542.

      Concurring in the result, Justice Flaherty, later Chief Justice, laid the groundwork

for this Court’s subsequent extension of the Kennedy rule which, under the “goading”

rubric, is necessarily limited to misconduct known to the defendant at trial. Justice

Flaherty suggested that there was no reason why clandestine misconduct, including

attempts to hide information favorable to the defendant, should be any less capable of

raising the double jeopardy bar, so long as the misconduct involved the type of

“overreaching” identified in the pre-Kennedy timeframe. See id. at 21-23, 522 A.2d at

543-44 (Flaherty, J., concurring). See generally Commonwealth v. Martorano, 559 Pa.




                                    [J-65-2019] - 19
533, 542, 741 A.2d 1221, 1225 (1999) (Saylor, J., dissenting) (discussing Justice

Flaherty’s concurrence).8

      Subsequently, in Commonwealth v. Smith, 532 Pa. 177, 615 A.2d 321 (1992),

this Court construed Pennsylvania’s double-jeopardy provision as supplying broader

protections than its federal counterpart as construed in Kennedy.            In Smith, the

defendant was convicted of first-degree murder, but this Court awarded a new trial on

the grounds that impermissible hearsay evidence had been admitted at trial. Based on


8 Some federal appellate courts have embraced similar reasoning, finding that double-
jeopardy precepts are applicable where the prosecutor conceals crucial information with
the goal of preventing an anticipated acquittal:

      The prosecutor who acts with the intention of goading the defendant into
      making a mistrial motion presumably does so because he believes that
      completion of the trial will likely result in an acquittal. That aspect of the
      Kennedy rationale suggests precluding retrial where a prosecutor
      apprehends an acquittal and, instead of provoking a mistrial, avoids the
      acquittal by an act of deliberate misconduct. Indeed, if Kennedy is not
      extended to this limited degree, a prosecutor apprehending an acquittal
      encounters the jeopardy bar to retrial when he engages in misconduct of
      sufficient visibility to precipitate a mistrial motion, but not when he fends
      off the anticipated acquittal by misconduct of which the defendant is
      unaware until after the verdict. There is no justification for that distinction.

United States v. Wallach, 979 F.2d 912, 916 (2d Cir. 1992); see also United States v.
Gary, 74 F.3d 304, 315 (1st Cir. 1996); State v. Colton, 663 A.2d 339, 346 (Conn.
1995); State v. Marti, 784 A.2d 1193, 1197 (N.H. 2001) (expressing that the Wallach
extension is consistent with Kennedy’s underlying purpose to bar retrial when the
prosecutor acts “with the intent ‘to subvert the protections afforded by the Double
Jeopardy Clause’” (quoting Kennedy, 456 U.S. at 676, 102 S. Ct. at 2089)); State v.
Lettice, 585 N.W.2d 171, 180 (Wis. Ct. App. 1998); see also People v. Batts, 68 P.3d
357, 380 (Cal. 2003) (discussing the Wallach extension with approval). See generally
James F. Ponsoldt, When Guilt Should be Irrelevant: Government Overreaching as a
Bar to Reprosecution Under the Double Jeopardy Clause after Oregon v. Kennedy, 69
CORNELL L. REV. 76, 92 n.92 (1983) (suggesting that the defendant should not lack a
remedy at the appellate level solely because the government was initially successful in
concealing its misconduct).


                                     [J-65-2019] - 20
after-discovered evidence indicating that the Commonwealth had committed intentional

misconduct at trial by withholding exculpatory proofs and falsely denying the existence

of an agreement with one of its main witnesses, Smith asserted that retrying him would

violate his double jeopardy rights. This Court agreed.

      Justice Flaherty, this time writing for the full Court, expressed that the

Commonwealth’s actions “violate[d] all principles of justice and fairness embodied in the

Pennsylvania Constitution’s double jeopardy clause.” Smith, 532 Pa. at 183, 615 A.2d

at 324. Echoing the point he made from a concurring posture in Simons, he then

observed that the misconduct could not logically satisfy Kennedy’s “goading” standard

as its intent was that “the defendant should never know how his wrongful conviction

came about.” Id. at 180-81, 615 A.2d at 322 (quoting Simons, 514 Pa. at 23, 522 A.2d

at 544 (Flaherty, J., concurring)). Then, returning to the “overreaching” litmus that the

United States Supreme Court had used prior to Kennedy, see id. at 184, 615 A.2d at

324 (quoting Starks, 490 Pa. at 341, 416 A.2d at 500), Justice Flaherty granted relief,

summarizing the state-constitutional standard as follows:

      We now hold 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.
Id. at 186, 615 A.2d at 325; accord Commonwealth v. Hawkins, 549 Pa. 352, 371, 701

A.2d 492, 501 (1997) (“In order to raise double jeopardy implications, the prosecutor’s

misconduct must have been deliberate, undertaken in bad faith and with a specific

intent to deny the defendant of a fair trial.” (citing Commonwealth v. Chambers, 546 Pa.

370, 379-81, 685 A.2d 96, 101 (1996))).

      Although the holding in Smith was articulated in a case involving the

government’s intentional suppression of material information, it was later interpreted

                                    [J-65-2019] - 21
broadly in Martorano to encompass all serious prosecutorial misconduct undertaken

with the purpose of denying the defendant his constitutional right to a fair trial. See

Martorano, 559 Pa. at 538-39, 741 A.2d at 1223.9

       In spite of the broader protections reflected in Smith and Martorano, later case

law clarified that not all intentional misconduct is sufficiently egregious to be classified

as overreaching and, as such, to invoke the jeopardy bar.             See Commonwealth v.

Burke, 566 Pa. 402, 417, 781 A.2d 1136, 1145 (2001) (recognizing that a finding of

willful prosecutorial misconduct will not always warrant dismissal of the charges).

Rather, the misconduct must be so egregious to constitute overreaching. This limitation

on relief arises due to the strong societal interest in bringing the guilty to justice:

       Dismissal of criminal charges punishes not only the prosecutor . . . but
       also the public at large, since the public has a reasonable expectation that
       those who have been charged with crimes will be fairly prosecuted to the
       full extent of the law. Thus, the sanction of dismissal of criminal charges
       should be utilized only in the most blatant cases. Given the public policy
       goal of protecting the public from criminal conduct, a trial court should
       consider dismissal of charges where the actions of the Commonwealth are
       egregious and where demonstrable prejudice will be suffered by the
       defendant if the charges are not dismissed.
Id. at 416, 781 A.2d at 1144 (quoting Commonwealth v. Shaffer, 551 Pa. 622, 627, 712

A.2d 749, 752 (1998)); see also Commonwealth v. Lee, 490 Pa. 346, 350, 416 A.2d

503, 505 (1980) (referring to dismissal as an “extreme sanction”); Commonwealth v.

Potter, 478 Pa. 251, 266-67, 386 A.2d 918, 925 (1978) (observing that, absent extreme



9 In Martorano, this Court precluded retrial on jeopardy grounds where, at the first trial,
the prosecutor had “acted in bad faith throughout the trial, consistently making reference
to evidence that the trial court had ruled inadmissible, continually defying the trial court’s
rulings on objections, and, . . . repeatedly insisting that there was fingerprint evidence
linking Appellees to the crime when the prosecutor knew for a fact that no such
evidence existed.” Id. at 538, 741 A.2d at 1223.


                                       [J-65-2019] - 22
circumstances, the remedy of a new trial adequately vindicates both the defendant’s

interest in a fair trial and society’s interest in bringing criminals to justice).

       Against this backdrop, Appellant presently portrays the Commonwealth’s

misconduct as tantamount to bad faith in that the entire prosecution team was extremely

careless in its handling of a capital case, with the result that Appellant was confined to

death row, with its attendant risk of execution, for nine years before the mistakes were

discovered. He emphasizes that the Superior Court characterized such conduct as

involving “deliberate indifference” to an unjustifiable risk of harm (i.e., a false conviction

and potential execution), Brief for Appellant at 30 (quoting Johnson, No. 927 EDA 2016,

2018 WL 3133226, at *6), which he likens to malice as that concept is used in the third-

degree murder context. As such, Appellant argues that, as in Martorano, “bad faith . . .

is at the heart of” the present double jeopardy analysis. Id. at 32.

       Beyond this, and with reference to the American Bar Association’s standards

relating to the prosecutorial function, which indicates that such function includes the

duty to seek justice and not merely to convict, Appellant characterizes the reasoning of

cases such as Smith and Martorano as standing for the broad position that prosecutors

should “be held to a minimum standard of accountability and decency.” Id. at 34. He

argues the Commonwealth’s behavior in this case fell below that benchmark.

       Finally, Appellant notes that some other jurisdictions have formulated double-

jeopardy tests which take into account whether the prosecutorial misconduct entailed

intentionality or indifference to the possibility of a mistrial or reversal on appeal, see id.

at 37-38 (citing cases), and he urges this Court to apply these same principles in

present case. Such application, Appellant maintains, would result in his immunity from

retrial. See id. at 38-39.




                                        [J-65-2019] - 23
       The Commonwealth argues that the Smith-Martorano test, being based on

whether the prosecution intended to provoke a mistrial motion or deny the defendant a

fair trial, is workable, and that it strikes a “reasoned balance” between a defendant’s

interest in being free from successive prosecutions and society’s interest in determining

guilt or innocence. Brief for Commonwealth at 20. The government urges that criminal

trials are often complex undertakings where many things can “go wrong” and justify

either a mistrial or a new trial on appeal. Id. at 21. It suggests that moving to a non-

intent-based standard – including one predicated on moral or ethical considerations, or

on rules of professional responsibility – will have unintended consequences, such as

engendering confusion every time a new trial is granted based on a Brady violation.10

       In contrast to Smith-Martorano, the Commonwealth contends, Appellant’s

proposed standard is impractical for courts to apply due to the many instances in which

some sort of unintentional failing by the prosecutor can be identified. More broadly, the

Commonwealth maintains that a “deliberate indifference” test is ill-advised, referencing

judicial expressions indicating that the term resists clear delineation, and that such a

construct would transform double-jeopardy relief into a common remedy, when it has

always been viewed as an “extreme sanction” that should be imposed sparingly. Id. at

22 (quoting Burke, 566 Pa. at 416, 781 A.2d at 1144). In any event, the Commonwealth

points out that the common pleas court never used the term “deliberate indifference” in

its fact-finding.   It notes that this phrase represents the Superior Court’s post-hoc

characterization and, as such, this Court need not defer to it.           See Brief for

Commonwealth at 23 & n.9.



10See Brady v. Maryland, 373 U.S. 83, 87-88, 83 S. Ct. 1194, 1196-97 (1963) (holding
that a prosecution’s failure to disclose exculpatory evidence to the defense violates due
process); see also Pa.R.Crim.P. 573 (relating to disclosure requirements).


                                     [J-65-2019] - 24
      The Commonwealth additionally undertakes its own analysis of the reported

decisions in which other states have considered whether to expand upon the goading-

into-a-mistrial test announced in Kennedy. The Commonwealth generally portrays that

those standards are substantially narrower than the one for which Appellant presently

advocates. See id. at 25-29 (discussing cases).

      The Pennsylvania District Attorneys Association has submitted an amicus brief

favoring affirmance.   The Association argues that making jeopardy relief available

absent intentional misconduct will unduly frustrate the law’s purpose of protecting

society from criminals. See Brief for Amicus at 7 (indirectly quoting Shaffer, 551 Pa. at

628, 712 A.2d at 752). Amicus urges this Court not to lose sight of the distinction

between prosecutorial error and prosecutorial overreaching. See id. at 8.

      This latter point is well taken because, as explained, Smith’s departure from

Kennedy was only to the extent of the federal Double Jeopardy Clause’s scope pre-

Kennedy.    See Martorano, 559 Pa. at 537, 741 A.2d at 1223 (noting that Smith

“abandoned the Simons standard and returned to the pre-Kennedy rule”).            Before

Kennedy, this Court had held, based on the text and history of Pennsylvania’s Double

Jeopardy Clause, that the state provision offered no greater protection than the Fifth

Amendment. See Hogan, 482 Pa. at 342-43, 393 A.2d at 1137-38.

      The concept embodied in Smith, therefore, is that the meaning of a specific

provision of the Pennsylvania Constitution, once it has been deemed coterminous with

its federal counterpart, should not then be made to shift and change indefinitely based

on “ever-shifting High Court majorities[.]” Commonwealth v. Gibson, 597 Pa. 402, 476

n.9, 951 A.2d 1110, 1154 n.9 (2008) (Castille, J., concurring); accord Pap’s A.M. v. City

of Erie, 571 Pa. 375, 408-09, 812 A.2d 591, 611 (2002) (making this same point in the

context of state and federal provisions shielding freedom of expression).


                                    [J-65-2019] - 25
      Moreover, Smith itself was grounded on the distinction between mere error and

overreaching, see Smith, 532 Pa. at 184, 615 A.2d at 324, as set forth in the pre-

Kennedy case of Starks. Starks conveyed that, whereas prosecutorial errors are an

“inevitable part of the trial process,” prosecutorial overreaching is not. Starks, 490 Pa.

at 341, 416 A.2d at 500.     Just as important, overreaching signals that the judicial

process has fundamentally broken down because it reflects that the prosecutor, as

representative of an impartial sovereign, is seeking conviction at the expense of justice.

See Simons, 514 Pa. at 13, 522 A.2d at 539 (quoting Commonwealth v. Cherry, 474 Pa.

295, 301, 378 A.2d 800, 803 (1977)). As such, according to Starks, it is the very type of

“tactic which the double jeopardy clause was designed to protect against.” Starks, 490

Pa. at 341, 416 A.2d at 500.11

      In sum, then, although this Court departed from the Fifth Amendment in the wake

of the Supreme Court’s Kennedy decision, it has never disavowed the “overreaching”

prerequisite, which is firmly entrenched in this Court’s case precedent from both the pre-

and post-Kennedy timeframes.

      The question thus becomes whether the type of misconduct which qualifies as

overreaching is broad enough, under our state constitution, to encompass governmental

errors that occur absent a specific intent by the prosecutor to deny the defendant his

constitutional rights. To answer that question, it is helpful to consult the reasoning

contained in reported decisions from other jurisdictions. Many have departed from strict

adherence to the Kennedy rule and adopted a construct focusing on whether the

prosecutor commits prejudicial misconduct with either knowledge of or indifference to a


11 This distinction was, as well, the basis for Martorano’s clarification that Smith’s
holding was not limited to its facts, but encompassed any bad-faith misconduct intended
to deprive the defendant of a fair trial. See Martorano, 559 Pa. at 538-39, 741 A.2d at
1223.


                                    [J-65-2019] - 26
significant risk of mistrial or reversal on appeal.12 These types of departures have been

articulated using various descriptions, with some courts inquiring whether the

prosecutor acted with a “willful disregard” of the resulting mistrial or appellate reversal,

Breit, 930 P.2d at 803, and others asking whether the government official who

committed the misconduct either intended, or was “indifferent to,” such a result.

Kennedy, 666 P.2d at 1326.13


12 See Pool v. Superior Court, 677 P.2d 261, 271-72 (Ariz. 1984); People v. Dawson,
397 N.W.2d 277, 284 (Mich. Ct. App. 1986) (adopting the Pool standard under the
Michigan Constitution), aff’d on other grounds, 427 N.W.2d 886 (Mich. 1988); Thomas
v. Eighth Judicial District Court, 402 P.3d 619, 626-27 (Nev. 2017) (same under the
Nevada Constitution); State v. Breit, 930 P.2d 792, 803 (N.M. 1996); State v. Kennedy,
666 P.2d 1316, 1326 (Or. 1983); Bauder v. State, 921 S.W.2d 696, 699 (Tex. Ct. Crim.
App. 1996), overruled by Ex Parte Lewis, 219 S.W.3d 335, 337 (Tex. Ct. Crim. App.
2007). But see State v. White, 369 S.E.2d 813, 815 (N.C. 1988) (adhering to the
Kennedy Court’s specific-intent litmus).

Perhaps the broadest standard was adopted in State v. Rogan, 984 P.2d 1231 (Haw.
1999), in which the court construed the state constitution’s double-jeopardy provision as
indicating that “egregious prosecutorial misconduct,” regardless of mens rea, bars retrial
unless it is proved beyond a reasonable doubt that the defendant received a fair trial in
spite of such misconduct. Id. at 1249.

13 It may also be noted that, before the “overreaching” rubric was discarded in Kennedy,
some federal appellate courts construed the term to encompass a relatively broad
scope of misconduct. In United States v. Martin, 561 F.2d 135 (8th Cir. 1977), for
example, the Eighth Circuit equated prosecutorial overreaching with either intentional
misconduct or gross negligence. Recounting the offending aspect of trial, the court
concluded that it embodied, “at a minimum . . . gross negligence” by the prosecutor, and
possibly intentional misconduct. Id. at 140. In the court’s view, this was sufficient to
conclude that prosecutorial overreaching had occurred, thereby barring retrial on
jeopardy grounds. And in United States v. Kessler, 530 F.2d 1246 (5th Cir. 1976), the
Fifth Circuit granted double-jeopardy relief on the basis of intentional misconduct while
stating in dicta that prosecutorial overreaching could be found based on governmental
“gross negligence or intentional misconduct” causing “aggravated circumstances to
develop” injurious to a defendant’s constitutional right to a fair trial. Id. at 1256 (internal
quotation marks and citations omitted).


                                      [J-65-2019] - 27
       Regardless of the particular wording employed, these state courts have

essentially reasoned that such conduct contravenes one of the main objectives

underlying the jeopardy bar, namely, that a defendant should not have to choose

between (a) having his fate decided by his first jury notwithstanding that the

proceedings are infected by serious errors, or (b) enduring a new proceeding from the

beginning with the expense, anxiety, and disruption it entails, and with the government

in a better position to marshal evidence and anticipate the defense strategy. These

factors, in turn, stem from double jeopardy’s fundamental policy objective that

defendants not be put to multiple trials for the same offense – particularly in view of the

government’s power and resources which would otherwise enable it to subject

defendants to serial proceedings. See Pool, 677 P.2d at 271-72; id. at 271 (quoting

Green v. United States, 355 U.S. 184, 187-88, 78 S. Ct. 221, 223 (1957)); Kennedy,

666 P.2d at 1326; accord Dinitz, 424 U.S. at 609, 96 S. Ct. at 1080 (explaining that an

important double-jeopardy concern is that the accused not be put to a “‘Hobson’s

choice’ between giving up his first jury and continuing a trial tainted by prejudicial

judicial or prosecutorial error”).

       We agree with the observations of our sister States. It is established that the

jeopardy prohibition is not primarily intended to penalize prosecutorial error, but to

protect citizens from the “embarrassment, expense and ordeal” of a second trial for the

same offense and from “compelling [them] to live in a continuing state of anxiety and

insecurity, as well as enhancing the possibility that even though innocent [they] may be

found guilty.” Commonwealth v. Ball, 637 Pa. 100, 114, 146 A.3d 755, 763 (2016)

(quoting Green, 355 U.S. at 187-88, 78 S. Ct. at 223); accord State v. Moore, 390 P.3d

1010, 1014 (Or. 2017); State v. McClaugherty, 188 P.3d 1234, 1242 (N.M. 2008)

(observing that the test under the state constitution “focuses on the effect of the


                                     [J-65-2019] - 28
prosecutorial misconduct on the defendant, regardless of the prosecutor’s intent”

(emphasis in original)). When the government engages in improper actions sufficiently

damaging to undercut the fairness of a trial, it matters little to the accused whether such

course of conduct was undertaken with an express purpose to have that effect or with a

less culpable mental state. Either way, the conduct imposes upon the defendant the

very “Hobson’s choice” which double jeopardy seeks to prevent.            See Bauder, 921

S.W.2d at 699 (“In our view, putting a defendant to this choice, even recklessly, is

constitutionally indistinguishable from deliberately forcing him to choose a mistrial.”); cf.

Strickler v. Greene, 527 U.S. 263, 288, 119 S. Ct. 1936, 1952 (1999) (recognizing that if

the prosecutor’s suppression of Brady material “results in constitutional error, it is

because of the character of the evidence, not the character of the prosecutor” (internal

quotation marks and citation omitted)).

       Therefore, we ultimately conclude as follows. Under Article I, Section 10 of the

Pennsylvania Constitution, prosecutorial overreaching sufficient to invoke double

jeopardy protections includes misconduct which not only deprives the defendant of his

right to a fair trial, but is undertaken recklessly, that is, with a conscious disregard for a

substantial risk that such will be the result. This, of course, is in addition to the behavior

described in Smith, relating to tactics specifically designed to provoke a mistrial or deny

the defendant a fair trial. In reaching our present holding, we do not suggest that all

situations involving serious prosecutorial error implicate double jeopardy under the state

Charter.   To the contrary, we bear in mind the countervailing societal interests

mentioned above regarding the need for effective law enforcement, see generally State

v. Michael J., 875 A.2d 510, 534 (Conn. 2005) (referring to the need for an “optimal

balance between the defendant’s double jeopardy rights and society’s interest in

enforcing its criminal laws”), and highlight again that, in accordance with long-


                                      [J-65-2019] - 29
established double-jeopardy precepts, retrial is only precluded where there is

prosecutorial overreaching – which, in turn, implies some sort of conscious act or

omission. Notably, however, this Court has explained, albeit in a different context, that

reckless conduct subsumes conscious behavior. See Tayar v. Camelback Ski Corp.,

Inc., 616 Pa. 385, 402, 47 A.3d 1190, 1200 (2012) (indicating that recklessness, as

distinguished from negligence, “requires conscious action or inaction which creates a

substantial risk of harm to others”).

       Applying our holding to the facts of this case, the common pleas court saliently

found that the experienced prosecuting attorney made “almost unimaginable” mistakes,

which “dovetailed” with other serious errors by law-enforcement officers and other police

personnel such as the DNA lab technician. In terms of the errors made by the attorney

himself, first, there was a notable discrepancy between the property receipt numbers for

the two caps.     The prosecutor was aware this meant that the associated results

reflecting the presence of the victim’s blood and Appellant’s DNA might have related to

different pieces of physical evidence. Yet, in the face of this information, he never

sought to verify his working hypothesis that the receipt numbers pertained the same

baseball cap. He did not even notice this error at the preliminary hearing when he had

in his possession property receipt number 2425291, which clearly stated that it was

associated with a black baseball cap. Second, in preparation for a capital case, the

prosecutor did not obtain a criminalistics report which would have summarized the

evidence connected with the matter and revealed that there were two different caps

involved.

       As to the court’s suggestion that these items “dovetailed” with the errors of other

law enforcement personnel who held lead roles in the investigation and prosecution,

there are two particularly noteworthy examples. First, on the night of the shooting, the


                                        [J-65-2019] - 30
assigned detective interviewed the victim’s companion, Ms. Williams, who personally

handed him a black baseball cap with a bullet hole in it, and explained that it was the

hat the victim was wearing when he was shot. This crucial piece of information was

apparently forgotten as the investigation ensued.      Second, the lead crime scene

investigator testified that, when he went to the location of the murder, he saw fresh

drops of blood under the brim of the red cap, when that would have been impossible –

as persuasively explained by the common pleas court. Additionally, the fact that no

photographs of the underside of the brim were part of the crime scene record appears

not to have been viewed as problematic by anyone associated with the prosecution.

We, like the common pleas court, cannot escape the conclusion that the officer testified

to something that he did not actually observe, especially in light of his subsequent

explanation that the testimony was wrong and was based on a mere assumption. Cf.

supra note 6.14

      Although the record, as discussed, supports the common pleas court’s ultimate

finding that these acts and omissions were not made intentionally or with a specific

purpose to deprive Appellant of his rights, the record is likewise consistent with that

tribunal’s characterization that such mistakes were “unimaginable.”            Although

“unimaginable” is not a traditional mens rea descriptor, it is, together with all of the

14For double jeopardy purposes, unfairly prejudicial statements by witnesses generally
are not chargeable to the prosecuting attorney, especially when they are unexpected
and made on cross-examination. Accord State v. Wittsell, 66 P.3d 831, 836 (Kan.
2003); State v. Lee, 344 S.W.3d 865, 871 (Mo. Ct. App. 2011).

With that said, in the present dispute the officers’ material erroneous testimony was
expected by the district attorney and was elicited on direct examination. As well, such
errors were substantively intertwined with the Commonwealth’s central theory of the
case based on the supposed presence at the crime scene of only a single baseball cap.
Therefore, they carry some weight in our analysis, but only insofar as they tend to
magnify the errors made by the prosecutor himself.


                                    [J-65-2019] - 31
circumstances on which it was based, strongly suggestive of a reckless disregard for

consequences and for the very real possibility of harm stemming from the lack of

thoroughness in preparing for a first-degree murder trial. See generally Johnson, 2018

WL 3133226, at *1 (expressing that the Commonwealth acted with “deliberate

indifference” during its preparation for trial).15     There is little dispute that those

consequences include “prejudice [to] the defendant to the point of the denial of a fair

trial.” Smith, 532 Pa. at 186, 615 A.2d at 325. That being the case, Article I, Section 10

immunizes Appellant from being put in jeopardy a second time for the crimes with which

he was charged in connection with the killing of Walter Smith.

      Accordingly, the judgment of the Superior Court is reversed and the matter is

remanded for entry of an order granting Appellant’s motion to preclude retrial.



      Justices Todd, Donohue, Dougherty and Wecht join the opinion.

      Justice Dougherty files a concurring opinion.

      Justice Mundy files a dissenting opinion in which Justice Baer joins.




15 As summarized above, Appellant stresses that the injury comprises the risk of an
erroneous conviction, years spent on death row, and potential execution predicated on
a fundamentally flawed trial. The harm in this case also includes substantial resources
expended in years of post-conviction proceedings and in litigating the current pre-trial
motion to dismiss.


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