awarding the defendant a new trial on the ground that the prosecutor failed to correct false testimony from the Commonwealth’s principal witness without prejudice to the defendant’s right to petition the trial court for discharge on double jeopardy grounds
How later courts described this case
- awarding the defendant a new trial on the ground that the prosecutor failed to correct false testimony from the Commonwealth’s principal witness without prejudice to the defendant’s right to petition the trial court for discharge on double jeopardy grounds
- holding that undisclosed impeachment evidence if presented to the jury could have raised reasonable doubt such that retrial should be barred under Double Jeopardy Clause
- granting new trial where material witness’s “testimony on several items concerning his criminal record and background was false, and was allowed to go uncorrected by the district attorney”
- reversible Brady violation where prosecution failed to reveal evidence which could have been used to impeach the credibility of the Commonwealth’s “star” witness
Written by the judges who cited it.
The opinion
NIX, Justice,
concurring.
I agree with the majority’s conclusion that the judgment of sentence must be reversed and a new trial awarded in this case. However, I cannot accept the suggestion that double jeopardy concerns may preclude appellant’s further prosecution for these offenses. Here the majority concedes that the Commonwealth did in fact present sufficient evidence to sustain convictions of murder in the first degree in the case of Tina Spalla and murder in the second degree of Carl Luisi, Sr. To imply that the error in this trial might require insulating this appellant forever from liability highlights my frequent objections to the mistaken view of the scope of protection provided by double jeopardy. Commonwealth v. Hoskins, 494 Pa. 600, 601 , 432 A.2d 149, 150-151 (1981) (Nix, J., Opinion In Support of Affirmance); Commonwealth v. Starks, 490 Pa. 336, 344 , 416 A.2d 498, 502 (1980) (Nix, J., dissenting opinion); Commonwealth v, Lee, 490 Pa. 346, 350-351 , 416 A.2d 503, 505-506 (1980) (Nix, J., concurring opinion); Commonwealth v. Potter, 478 Pa. 251, 287 , 386 A.2d 918, 936 (1978) (Nix, J., Opinion In Support of Reversal).
*283 Further, in Oregon v. Kennedy, 456 U.S. 667 , 102 S.Ct. 2083 , 72 L.Ed.2d 416 (1982) the Supreme Court of the United States held:
.. . that a criminal defendant who successfully moves for a mistrial because of prosecutorial or judicial misconduct may not invoke the bar of the double jeopardy clause of the Fifth and Fourteenth Amendments against a second trial except in those cases in which the prosecutorial or judicial conduct giving rise to the successful motion for a mistrial was intended to provoke the defendant into moving for a mistrial.
The “prosecutorial overreaching” standard, referred to by the majority (p. 1193), previously an exception to the “manifest necessity” exception to the general rule that when a mistrial is declared over the defendant’s objection, retrial is barred, was disavowed as a federal constitutional standard in Oregon v. Kennedy, supra. And there is no such standard under state law. Thus the majority’s double jeopardy concerns are unwarranted and do not require further consideration.