Double Jeopardy; Prosecutorial Misconduct

Commonwealth v. Johnson, 2018 WL 3133226 (Pa. Super. 2018) (unreported), allocatur granted Dec. 19, 2018, appeal docket 40 EAP 2018

Johnson was convicted of murder and sentenced to death for shooting someone in the street where part of the evidence introduced against him at trial concerned a hat with both his DNA and the victim’s DNA.  Johnson was granted a new trial based on ineffective assistance of counsel.  During preparation for his second trial, Johnson discovered that the hat in question did not contain the victim’s DNA, only Johnson’s DNA.  In fact, there was a second hat that only contained the victim’s DNA, and not Johnson’s DNA.  The Commonwealth had misrepresented the DNA evidence.  Johnson moved to bar retrial based on the Commonwealth’s deliberate indifference during trial preparation that resulted in the misrepresentation of DNA evidence at the first trial.

Both the trial court and the Superior Court found that while the Commonwealth’s actions were “intolerable” resulting in a “farce” of a capital murder trial, those actions did not rise to the level of intentionality required to bar further prosecution.  Commonwealth v. Adams, 177 A.3d 359, 370 (Pa. Super. 2017) (“Article I, § 10 [of the Pennsylvania Constitution], which our Supreme Court has construed more broadly than its federal counterpart, bars retrial 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. An error by a prosecutor does not deprive the defendant of a fair trial. However, where the prosecutor’s conduct changes from mere error to intentionally subverting the court process, then a fair trial is denied.”) (citations omitted). 

Superior Court explained controlling precedent holds:   “Because of the compelling societal interest in prosecuting criminal defendants to conclusion, th[e Supreme] Court has recognized that dismissal of charges is an extreme sanction that should be imposed sparingly and, relevant to the question here, only in cases of blatant prosecutorial misconduct.” Commonwealth v. Burke, 781 A.2d 1136, 1144 (Pa. 2001).

The Supreme Court granted allocatur on the following issue:

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?