The Superior Court of Pennsylvania has issued a ruling in the case of COMMONWEALTH of Pennsylvania v. James Phillip MINNIS, Appellant, 2014 WL 69112, 2014 PA Super 5, 339 WDA 2012 (Jan. 9, 2014). This was an appeal from the Order of the Court of Common Pleas, Erie County, Criminal Division at No. CP–25–CR–0003286–2006. The Judges were BENDER, FORD ELLIOTT, BOWES, GANTMAN, DONOHUE, ALLEN,LAZARUS, OTT and WECHT. Judge Donohue wrote the Opinion.
The Superior Court en banc held that a defendant who moves for a new trial does not thereby waive any argument that double jeopardy bars a second trial. The Court thus overruled Commonwealth v. Constant, 925 A.2d 810 (Pa.Super.2007), appeal denied, 594 Pa. 675, 932 A.2d 1285 (2007), where the Superior Court ruled that that a defendant who has been convicted and upon his own motion secures a new trial may not plead double jeopardy on his second trial.
Furthermore, 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.