J-A29018-21

2022 PA Super 20

COMMONWEALTH OF PENNSYLVANIA

v.

RICHARD KRISTA 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 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. 

____________________________________________

* 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 Super. 2016) (unpublished 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