Com. v. Strong, J.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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 (Footnote Continued Next Page)

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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

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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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