Com. v. Strong, J. ( 2014 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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