J-A29018-21
2022 PA Super 20
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RICHARD KRISTA :
:
Appellant : No. 446 WDA 2021
Appeal from the Order Entered March 16, 2021
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0007547-2012
BEFORE: BENDER, P.J.E., BOWES, J., and PELLEGRINI, J.*
OPINION BY BOWES, J.: FILED: FEBRUARY 4, 2022
Richard Krista appeals the denial of his second motion to bar retrial
based upon double jeopardy. We affirm.
This Court summarized the history of this case as follows on Appellant’s
appeal from the denial of his first motion to bar retrial based upon double
jeopardy:
Appellant was charged with two counts of homicide
pertaining to his involvement in the shooting of two men, which
took place on May 11, 2012, behind a housing project in West
Mifflin. Appellant’s first trial, which concluded on October 10,
2013, ended in a mistrial due to a hung jury. His second trial also
ended in a mistrial on January 23, 2014, due to a hung jury.
Appellant was tried a third time. However, during defense
counsel’s cross-examination of a police detective, the
Commonwealth objected to a series of questions and suggested
that Appellant can take the witness stand and explain what
happened on the night in question. Appellant moved for a mistrial,
and the trial court gave a curative instruction the following day.
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* Retired Senior Judge assigned to the Superior Court.
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On June 5, 2014, at the conclusion of the trial, Appellant was
convicted of two counts of first-degree murder. On July 29, 2014,
Appellant was sentenced to serve two consecutive terms of life
imprisonment without parole. Appellant then filed a direct appeal.
On August 9, 2016, this Court vacated Appellant’s judgment of
sentence and remanded for a new trial after determining the
prosecutor impermissibly commented on Appellant’s decision not
to testify, in violation of Appellant’s Fifth Amendment rights, and
the misconduct was not rendered harmless by the circumstances
under which it was made, or by the trial court’s delayed curative
instruction. Commonwealth v. Krista [(“Krista I”)], 156 A.3d
332, 174 WDA 2015 (Pa. Super. 2016) (unpublished
memorandum at 26).
Upon remand, Appellant filed a motion to bar retrial and
dismiss the charges. The trial court held a hearing and denied the
motion on December 8, 2017. Pursuant to Pa.R.Crim.P.
587(b)(4), the trial court stated in its order that Appellant’s
motion was not frivolous.
Commonwealth v. Krista (“Krista II”), 209 A.3d 1068 (Pa.Super. 2019)
(unpublished memorandum at 1-2). This Court affirmed and remanded for
further proceedings, holding that “the error in this case does not approach the
egregious and intentional nature of the conduct required to bar a retrial.”
Id.
(unpublished memorandum at 10). Appellant’s petition for allowance of
appeal was denied by our Supreme Court. See Commonwealth v. Krista
(“Krista III”),
216 A.3d 1035 (Pa. 2019) (per curiam order).
Back in the trial court, Appellant filed an omnibus pretrial motion which
included another request to bar retrial based upon double jeopardy. The
underpinning of the new motion was our Supreme Court’s decision in
Commonwealth v. Johnson, 231 A.3d 807 (Pa. 2020), in which the Court
held that reckless prosecutorial misconduct, in addition to intentional conduct,
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may bar a retrial. The trial court denied Appellant’s motion, holding that the
prosecutor’s misconduct did not rise to the level of reckless sabotage that
barred retrial under Johnson. See Order, 3/16/21, at unnumbered 2. The
trial court subsequently entered another order denying the motion, this time
stating its finding that the motion was not frivolous and advising Appellant
that its determination was thus immediately appealable as a collateral order.
See Order, 3/26/21. See also Pa.R.Crim.P. 587(B)(6) (“If the judge denies
the motion but does not find it frivolous, the judge shall advise the defendant
on the record that the denial is immediately appealable as a collateral order.”).
Appellant filed a timely notice of appeal, and both he and the trial court
complied with Pa.R.A.P. 1925. Appellant presents the following questions for
our determination:
Did the trial prosecutor engage in reckless misconduct by
impermissibly commenting on [Appellant]’s silence while
challenging him to “take the stand and explain what happened”
such that the double jeopardy provisions of Article I, Section 10
of the Pennsylvania Constitution bar a fourth trial in this case? If
so, did the trial court err by failing to dismiss the charges against
[Appellant] and bar retrial?
Appellant’s brief at 5.
We begin with our standard of review:
An appeal grounded in double jeopardy raises a question of
constitutional law. This court’s scope of review in making a
determination on a question of law is, as always, plenary. As with
all questions of law, the appellate standard of review is de novo.
To the extent that the factual findings of the trial court impact its
double jeopardy ruling, we apply a more deferential standard of
review to those findings.
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Where issues of credibility and weight of the evidence are
concerned, it is not the function of the appellate court to substitute
its judgment based on a cold record for that of the trial court. The
weight to be accorded conflicting evidence is exclusively for the
fact finder, whose findings will not be disturbed on appeal if they
are supported by the record.
Commonwealth v. Sanchez, 262 A.3d 1283, 1288 (Pa.Super. 2021)
(cleaned up).
The Double Jeopardy Clauses of both the federal and Pennsylvania
constitutions “protect a defendant from repeated criminal prosecutions for the
same offense.” Commonwealth v. Byrd, 209 A.3d 351, 353 (Pa.Super.
2019) (cleaned up). The purpose of this prohibition against double jeopardy
is to prevent the government from making “repeated attempts to convict the
accused, thereby subjecting him to embarrassment, expense, and ordeal and
compelling him to live in a continued state of anxiety and insecurity as well as
enhancing the possibility that even though innocent he may be found guilty.”
Commonwealth v. Wilson,
227 A.3d 928, 936 (Pa.Super. 2020) (cleaned
up).
However, subjecting a defendant to a second trial following a mistrial or
a successful appeal does not ordinarily offend double jeopardy protections.
“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.” Commonwealth v. Burke, 781 A.2d 1136, 1144 (Pa. 2001)
(cleaned up). Accordingly, “dismissal of charges is an extreme sanction that
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should be imposed sparingly,” only in the most blatant and egregious
circumstances. Id.
It has long been the case under both state and federal law that a
subsequent trial is prohibited when a mistrial resulted from prosecutorial
overreaching in the form of intentional misconduct designed to provoke a
mistrial. See, e.g., Byrd, supra at 353. In Commonwealth v. Smith,
615
A.2d 321 (Pa. 1980), our Supreme Court ruled that Pennsylvania’s constitution
provides more extensive double jeopardy protections than its federal
counterpart, holding that a retrial is impermissible “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 325. Nonetheless, “Smith did not create a per se bar to retrial in all
cases of intentional prosecutorial overreaching. Rather, the Smith court
primarily was concerned with prosecution tactics, which actually were
designed to demean or subvert the truth seeking process.” Commonwealth
v. Lambert,
765 A.2d 306, 327 (Pa.Super. 2000) (cleaned up).
Our High Court in Johnson again augmented the prevailing law, ruling
that the Pennsylvania constitution’s double jeopardy protections also prohibit
retrial if the prosecution acted recklessly. Specifically, the Johnson Court
held:
Under Article I, Section 10 of the Pennsylvania Constitution,
prosecutorial overreaching sufficient to invoke double jeopardy
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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.
Johnson, supra at 826 (citation and emphasis omitted). However, the Court
made it clear that it is still true that not every instance of error by the
Commonwealth requires a finding that retrial is barred:
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 . . . regarding the need
for effective law enforcement, and highlight again that, in
accordance with long-established double-jeopardy precepts,
retrial is only precluded where there is prosecutorial
overreaching – which, in turn, implies some sort of conscious act
or omission.
Id. at 826 (citation omitted, emphasis in original).
The Court explained that prosecutorial overreaching is conduct that
reflects a fundamental breakdown in the judicial process where “the
prosecutor, as representative of an impartial sovereign, is seeking conviction
at the expense of justice.” Id. While the “overreaching prerequisite” was
abandoned in federal jurisprudence, it remains “firmly entrenched” in
Pennsylvania’s double jeopardy law. Id. at 824 (cleaned up).
An examination of the application of the law to the facts of Johnson is
instructive. In Johnson, a gunman murdered the victim on the street outside
a bar, causing the victim’s companion to take cover and bystanders to flee.
When they arrived, the police recovered a red baseball cap from the middle of
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the street a few yards from the victim’s body and assigned it a property receipt
number. The victim’s companion later provided the police with another
baseball cap: a black cap that the victim had been wearing which had a bullet
hole in it. The black cap was assigned a different property receipt number
and was sent to the lab for testing, which revealed the presence of the victim’s
blood. When Johnson later became a suspect, police submitted his DNA
sample to test against the red cap, resulting in a positive match.
Thereafter, the Commonwealth prosecuted the case as if the red cap
were the only one, and that it contained both Johnson’s DNA and the victim’s
blood. At trial, the Commonwealth contended that the one hat with both
men’s DNA was objective, indisputable proof that Johnson was the shooter,
and that he fired at the victim from point-blank range. The inaccuracy was
further compounded when the police investigator who recovered the red cap
from the crime scene informed the jury that he had seen blood on the red cap,
and the forensic scientist testified to the presence of Johnson’s DNA and the
victim’s blood on “the” hat. Upon this evidence, Johnson was convicted and
sentenced to death.
In post-conviction proceedings, Johnson discovered that two separate
caps with different property receipt numbers had been analyzed by the crime
lab. The Commonwealth agreed that Johnson was entitled to a new trial.
However, Johnson argued that the Commonwealth should be prohibited from
retrying him where it had opted to proceed with a capital murder trial without
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even ordering a criminalistics report that would have revealed the existence
of separate hats, neither of which had the DNA of both Johnson and the victim.
The trial court disagreed. The court noted that the detective’s testimony about
seeing blood was incorrect, that the prosecution’s handling of the evidence
was “extremely negligent, perhaps reckless,” and that the later “exaggeration”
of the evidence was “intolerable.” Johnson, supra at 815. However, the
court found that the Smith standard for barring a retrial had not been met:
I find that an experienced prosecutor made an almost
unimaginable mistake, that it was a mistake which dovetailed with
other mistakes that 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 815-16. This Court affirmed, and our Supreme Court granted
discretionary review.
After a thorough examination of existing double jeopardy jurisprudence,
the Johnson Court ultimately announced the new rule detailed above, namely
that double jeopardy bars a retrial not only where the prosecution intentionally
violated a defendant’s right to a fair trial, but also where that result was
caused by prosecutorial misconduct that was undertaken recklessly, i.e., with
a conscious disregard for a substantial risk that it would violate the
defendant’s right to a fair trial.
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Applying that rule to the facts before it, the Supreme Court held that
the Commonwealth acted recklessly in prosecuting Johnson’s case. In so
doing, it reiterated the litany of errors: (1) the “notable discrepancy between
the property receipt numbers for the two caps” that the prosecutor never
attempted to reconcile; (2) the prosecution’s decision to proceed to a capital
trial without obtaining “a criminalistics report which would have summarized
the evidence connected with the matter and revealed that there were two
different caps involved;” (3) the fact that the “crucial piece of information”
that the victim’s friend personally handed the investigator the black cap with
a bullet hole in it that the victim had been wearing “was apparently forgotten
as the investigation ensued;” (4) the crime scene investigator testified to
something that he did not actually observe when he said that he saw blood on
the underside of the red cap, as “that would have been impossible;” and (5)
the absence of any corroborating photographs of blood on the red cap among
those taken from the crime scene “appears not to have been viewed as
problematic by anyone associated with the prosecution.” Id. at 826–27. The
Court then concluded that the prosecution’s acts and omissions, while not
undertaken to intentionally deprive Johnson of a fair trial, amounted to “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.” Id. at 827. Consequently, Johnson could not be retried.
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With this precedent in mind, we turn to the case sub judice. The
prosecutorial impropriety at issue is the comment made at the end of the
following exchange during defense counsel’s cross-examination of police
detective Patrick Kinavey:
Q. Detective Kinavey, [the crime] happened on May 11, 2012;
correct?
A. That is correct.
Q. And that was a Friday night; correct?
A. Yes.
Q. So one day later was Saturday. Sunday, two days. Monday,
three days. Correct?
A. That is correct.
Q. You said it was six days. That’s when you recall me having
contacted Detective Foley and turned [Appellant] in upon learning
that there was a warrant for him? You recall that; don’t you?
[Prosecutor]: Objection, Your Honor. [Defense counsel] is
testifying.
[Defense Counsel]: I’m asking.
[Prosecutor]: If [Appellant] wants to take the stand and explain
what happened, he can.
N.T. Trial, 5/28/14-6/5/14 (Vol. I), at 312.
This Court ruled in Krista I that the Commonwealth’s comment on
Appellant’s decision not to testify required a new trial because it violated his
Fifth Amendment rights and was not rendered harmless by a delayed curative
instruction. See Krista I, supra (unpublished memorandum at 26).
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Appellant’s initial double jeopardy motion was considered and rejected under
the principles of Smith and its pre-Johnson progeny. In particular, this Court
affirmed the following finding of the trial court:
I do think that the tensions were high; the parties and
counsel were, both of them at that point, let’s say, pushing each
other’s buttons, and while it was not a proper response, it was not
a response calculated to create a mistrial or deny a fair trial, but
rather an improper statement made out of frustration with
defense counsel’s questioning.
Krista II, supra (unpublished memorandum at 10) (emphasis omitted)
(quoting N.T., 12/8/17, at 22-25). Hence, it is the law of this case that the
prosecution neither intended to provoke Appellant into moving for a mistrial
nor acted with the intent to prejudice Appellant to the point of denying him a
fair trial. Consequently, the only question in this appeal is whether Johnson’s
holding compels a different result.
The trial court answered that question in the negative because it “found
no evidence of a conscious act that would rise to the level of recklessness.”
Trial Court Opinion, 5/14/21, at 4. The court made the specific factual finding
the prosecutor’s statement was spontaneous rather than the result of a
deliberative process. Id. This lack of a considered disregard of the impact
his comment would have on the fairness of the trial rendered this case
materially different from Johnson. As the court explained: “As distinguished
from Johnson, where the prosecutor had the luxury of time to prepare and
chose to ignore red flags that would have uncovered a material evidentiary
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error, the prosecutor here had no time to reflect upon the wisdom of his
statement.” Id. at 5.
Appellant argues that the trial court’s analysis is “intellectually
untenable,” and that “[t]he only reasonable inference that may be gleaned
from the instant circumstances is that [the prosecutor] acted recklessly in
violating [Appellant]’s constitutional rights after twice failing to convict him.”
Appellant’s brief at 55. Appellant suggests that adopting the trial court’s
reasoning amounts to recognizing “an ‘oops’ exception” to misconduct, which
will permit prosecutors to avoid the consequences of impropriety when they
are “experiencing moments of frustration, in the heat of debate, and under
pressure to secure a conviction[.]” Id. at 58.
Appellant notes that the prosecutor in this case was, and expressly
touted himself to be, an experienced prosecutor, and that he particularly knew
or should have known that Appellant would exercise his right not to testify,
just as he had in the prior two trials. Id. at 47, 60. Since a veteran prosecutor
“undeniably knows better than to comment on a defendant’s constitutional
right to remain silent,” the prosecutor’s “disregard for the substantial risk that
an unfair trial would result from such a comment can only be characterized as
conscious disregard.” Id. at 30. Appellant further posits that the prosecutor’s
“immediate concession that he committed misconduct . . . coupled with his
immediate effort to remediate his error” by suggesting a curative instruction,
“provides ample evidence that his disregard for the substantial and
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unjustifiable risk that an unfair trial would result was conscious, rather than
‘unconsciously inadvertent[,]’” as the trial court concluded. Id. at 61-62.
In sum, Appellant’s position is that the record demonstrates that the
prosecutor “knew before, during, and after making the comment that his
comment was constitutionally intolerable and that making it risked doing very
real violence to [Appellant’s] right to a fair trial. He made the comment
anyway.” Id. at 62.
We are unpersuaded by Appellant’s arguments. Initially, we note that
the analysis of the mental process of the prosecutor that Appellant imagines1
is intellectually untenable, as what Appellant describes is not recklessness,
but intentional misconduct. Appellant’s theory of what transpired in the
prosecutor’s consciousness is not recognition, then disregard, of a possibility
that he might violating Appellant’s rights. Such would be found where a
prosecutor contemplates that a statement probably will cross the line, but
decides to say it anyway rather than undertake further research or
deliberation. Instead, Appellant posits that the prosecutor thought: “I know
this is wrong to say because it violates Appellant’s right to a fair trial, but I
am going to say it anyway,” and then made his remark. Such would be an
____________________________________________
1 We observe that this Court, in explaining that the certified record established
neither the egregiousness nor the intentionality to warrant barring a retrial
under pre-Johnson law, rejected similar “speculation” by Appellant about the
prosecutor’s internal cognition. See Krista II, supra (unpublished
memorandum at 10).
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intentional violation of Appellant’s rights. It is the law of the case that no
intentional violation occurred here.
Nor is Appellant’s reasoning sound regarding the import of the
prosecutor’s “immediate effort to remediate his error” by suggesting a
curative instruction. The quick grasp of an error after it happened plainly does
not necessarily reflect pre-awareness that the error was about to be made and
a conscious decision to make it nonetheless. Further, the prosecutor’s prompt
concession that he had erred and desire to mitigate the damage, if anything,
militates against deeming the misconduct sufficient to bar retrial. See
Commonwealth v. Turner, 245 A.3d 1034,
2020 WL 7663840 at *5-*6
(Pa.Super. 2020) (non-precedential decision) (holding Johnson did not bar
retrial where an officer was unaware that the prosecutor did not have
supplemental report, the prosecutor did not have access to the report until
the trial date, and, unlike in Johnson, “the record reflects the
Commonwealth’s diligence in discovering its error and promptly correcting it”).
Moreover, in attempting to circumnavigate the prior double-jeopardy
ruling by recasting as reckless what he has all along maintained was an
intentional violation, Appellant loses sight of the fact that, regardless of the
mens rea involved, “in accordance with long-established double-jeopardy
precepts, retrial is only precluded where there is prosecutorial
overreaching[.]” Johnson, supra at 826 (emphasis omitted). Appellant’s
arguments focus on the topic of recklessness versus unconscious inadvertence
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without providing significant discussion of whether what the prosecution
recklessly or inadvertently did here satisfies what the Johnson court deemed
the “overreaching prerequisite.” Id. at 824. Indeed, Appellant’s advocacy
appears to be premised on the idea that the existence of overreaching is a
given, and it is just a matter of whether that overreaching was done recklessly.
That is simply not the case.
As mentioned above, overreaching is conduct that reveals a
fundamental breakdown in the judicial process where “the prosecutor, as
representative of an impartial sovereign, is seeking conviction at the expense
of justice.” Id. at 826. Examples of overreaching, in addition to the farcical
string of errors and omissions in Johnson, are the prosecution’s “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 [the defendants] to the
crime when the prosecutor knew for a fact that no such evidence existed,”
Commonwealth v. Martorano, 741 A.2d 1221, 1223 (Pa. 1999); and
contacting a defense witness to intimidate her and prevent her from testifying,
Byrd, supra at 359. In such scenarios, it is clear that the prosecutor made
conscious decisions, be they intentional malfeasance or a failure to heed red
flags signaling an unintentional error, to place getting a favorable verdict
ahead of the defendant’s rights.
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As this Court discussed in Krista II, even where a prosecutor engages
in willful misconduct, double jeopardy protections do not necessarily prohibit
a new trial. Rather, “retrial should be barred when the prosecutor's
misconduct is an act of deliberate overreaching and not an isolated incident.”
Krista II, supra (unpublished memorandum at 7). Updated to reflect
Johnson, the principle can be rephased as retrial should be barred when the
prosecutor’s misconduct is an act of deliberate or reckless overreaching and
not an isolated incident.
The last time we rejected Appellant’s double jeopardy motion, this Court
held that Appellant was not immunized against a subsequent trial because
“the error in this case does not approach the egregious and intentional nature
of the conduct required to bar a retrial.” Krista II, supra (unpublished
memorandum at 10). In other words, the prosecutor’s misconduct here was
neither intentional nor close to qualifying as the type of “overreaching”
necessary to grant Appellant the requested relief. Nothing in Johnson
changes the overreaching calculus.
The single spontaneous outburst at issue in this case is far from the
“almost unimaginable mistakes, which dovetailed with other serious errors by
law-enforcement officers and other police personnel,” which led to the
conclusion that the prosecution had operated with “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.” Johnson, supra
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at 827. What we are faced with in this case is unquestionably an improper
act, but not one undertaken to gain an advantage for the prosecution or to
forge blindly forward towards a conviction by “subvert[ing] the truth seeking
process.” Lambert, supra at 327 (cleaned up). Therefore, we hold that,
even if we agreed with Appellant that the prosecutor’s improper statement
was made recklessly, it did not amount to the overreaching that bars a
subsequent trial.
Finally, we reject Appellant’s contention that allowing retrial in this case
amounts to “an ‘oops’ exception” that would render the right established by
the Double Jeopardy Clause to become “an empty, illusory right” and permit
prosecutors to avoid repercussions for failing “to think carefully before
speaking.” Appellant’s brief at 58-59. First, Appellant’s very characterization
of the spontaneous utterance here as an “oops” suggests a complete lack of
the “conscious disregard” necessary to constitute recklessness. We again
remind Appellant that not even all intentional, willful misconduct is sufficiently
egregious to constitute the overreaching that precludes further prosecution.
Second, at oral argument, Appellant was unable to proffer an example
of an improper statement that would, under Appellant’s interpretation of the
law, constitute mere negligence rather than, at a minimum, recklessness. The
Johnson decision did not alter the long-standing principle that “dismissal of
charges is an extreme sanction that should be imposed sparingly.” Johnson,
supra at 828 (Dougherty, J. concurring) (citing Burke, supra at 1144). In
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other words, retrial remains the general rule, and double jeopardy dismissal
is still the exception. Adoption of Appellant’s legal position would have the
exception swallow the rule.
Finally, the Commonwealth did not escape consequences for the
prosecutor’s misconduct: Appellant’s conviction was overturned. To trigger
the extreme repercussion of a bar to retrial, Appellant was obligated to show
more, namely proof of overreaching, whether it was intentionally or merely
recklessly caused. The following succinctly explains our determination that
the trial court properly concluded that the prosecution’s single improper
statement warranted the ordinary sanction for misconduct rather than the
extreme sanction of dismissal based upon double jeopardy:
The prosecutor’s act . . . was deplorable and certainly such
misconduct must be discouraged in a quasi-judicial officer whose
sworn duty is to seek justice rather than narrow-mindedly pursue
convictions. Appellant is entitled to relief, which he received in
the form of a new trial. However, in deciding whether we must
go that further step and discharge appellant on double jeopardy
grounds, we must remember the admonition [that] the remedy in
the criminal proceeding is limited to denying the prosecution the
fruits of its transgression. The Commonwealth was denied the
fruits of its transgression when the tainted verdict of guilty was
struck down by the grant of a new trial. The question before us
is not whether the prosecutor’s act was wrong; it has already been
decided that it was. The question is whether the prosecutor's act
was of the type which the Double Jeopardy Clause was meant to
prevent; this we hold it was not.
Commonwealth v. Simons, 492 A.2d 1119, 1126 (Pa.Super. 1985), aff'd,
522 A.2d 537 (Pa. 1987).
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Therefore, because we are convinced neither (1) that trial court’s finding
that the prosecutor’s improper statement was the result of frustrated
inadvertence rather than recklessness is insufficiently supported by the
certified record, nor (2) that the impropriety here rose to the level of
overreaching necessary to trigger double jeopardy immunity, we affirm the
trial court’s order denying Appellant’s second motion to bar retrial.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/4/2022
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