author:
CIRILLO, Judge:
      BROSKY, Judge, WIEAND, Judge, SPAETH, President Judge,
      DEL SOLE, Judge,

text:
    492 A.2d 1119
    COMMONWEALTH of Pennsylvania v. Lawrence Demetrius SIMONS, Appellant.
    Superior Court of Pennsylvania.
    Argued July 23, 1984.
    Filed May 10, 1985.

      James J. Phelan, Jr., Narbeth, for appellant. -
    Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

      Before SPAETH, President Judge, and WICKERSHAM, BROSKY, WIEAND, CIRILLO, DEL SOLE, MONTEMURO, JOHNSON and POPOVICH, JJ.
   CIRILLO, Judge:

We here review a pretrial order denying appellant’s motion to bar retrial on double jeopardy grounds. Such an order is immediately appealable. Commonwealth v. Haefner, 473 Pa. 154, 373 A.2d 1094 (1977); Commonwealth v. Hoburn, 335 Pa.Super. 536, 485 A.2d 24 (1984); Commonwealth v. Arelt, 308 Pa.Super. 236, 454 A.2d 108 (1982); Commonwealth v. Yost, 305 Pa.Super. 316, 451 A.2d 549 (1982).

This case began in July of 1975, when appellant Lawrence Demetrius Simons solicited Wayne Thorpe, Grant Ravenell, and Angelo Casselle to rob Zollie Perry. While appellant and Casselle waited in a car as lookouts, Thorpe and Ravenell, armed with pistols, approached Perry to rob him. Perry was also armed, and shot Ravenell. Thorpe then si ot Perry. The four conspirators fled. Perry died from the shooting; Ravenell lived.

In separate jury trials in the Philadelphia Court of Common Pleas, first Simons, the mastermind, then Thorpe, the triggerman, were found guilty of second-degree murder and robbery. In both trials accomplices Ravenell and Casselle testified for the prosecution. After denying post-trial motions, the Honorable John A. Geisz sentenced both defendants to life imprisonment.

Simons and Thorpe appealed. Each argued on appeal that a new trial should be granted because the prosecutor had concealed from each jury the terms of a plea agreement between Ravenell and the Commonwealth. In Thorpe’s case, the Pennsylvania Supreme Court remanded to the trial court for an evidentiary hearing on this issue. Our Court, which at the time had cognizance of the Simons appeal, followed suit and remanded for a joint hearing with the Thorpe case. Commonwealth v. Simons, 275 Pa.Super. 564, 419 A.2d 44 (1980). After hearing evidence on the issue, Judge Geisz granted new trials to Thorpe and Simons in an opinion and order dated December 3, 1980.

Thorpe and Simons then filed motions to dismiss the charges against them, asserting that retrials would violate their rights not to be placed twice in jeopardy. In an order dated May 14, 1981, the court denied the motions. Simons here appeals from that order.

Appellant asserts his rights under the United States and Pennsylvania constitutions not to be placed twice in jeopardy for the same offense. U.S. Const, amend. V; Pa. Const, art. 1, § 10. The double jeopardy protections afforded by the federal and state constitutions generally are said to be coextensive, Commonwealth v. Hude, 492 Pa. 600, 425 A.2d 313 (1980); Commonwealth v. Gravely, 486 Pa. 194, 404 A.2d 1296 (1979), and our state courts adopt the approach of the United States Supreme Court in double jeopardy cases, Commonwealth v. Beaver, 317 Pa.Super. 88, 463 A.2d 1097 (1983).

Generally it is not a violation of double jeopardy prohibitions to retry a defendant who obtains a new trial on his own motion, even where the motion is necessitated by prosecutorial or judicial error. United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976). However, where the prosecutor deliberately commits prejudicial error in order to force the defendant into a “Hobson’s choice” between giving up his first jury and continuing a trial tainted by prejudice, double jeopardy considerations come into play.

The Double Jeopardy Clause does protect a defendant against governmental actions intended to provoke mistrial requests and thereby to subject defendants to the substantial burdens imposed by multiple prosecutions. It bars retrials where “bad-faith conduct by judge or prosecutor,” United States v. Jorn, supra, [400 U.S.] at 485, 27 L.Ed.2d 543, 91 S.Ct. 547 [at 557] threatens the “[h]arassment of an accused by successive prosecutions or declaration of a mistrial so as to afford the prosecution a more favorable opportunity to convict” the defendant. Downum v. United States, 372 U.S. [734] at 736, 10 L.Ed.2d 100, 83 S.Ct. 1033 [at 1034].

Id. at 611, 96 S.Ct. at 1081, 47 L.Ed.2d at 276. Lee v. United States, 432 U.S. 23, 97 S.Ct. 2141, 53 L.Ed.2d 80 (1977).

Based on these cases, our own Supreme Court has delineated two types of prosecutorial “overreaching” that will bar retrial of a defendant: misconduct designed and intended by the prosecutor to provoke a mistrial request, and misconduct undertaken in bad faith to prejudice or harass the defendant. Commonwealth v. Starks, 490 Pa. 336, 416 A.2d 498 (1980).

This Court amplified on the Starks test in Commonwealth v. Clark, 287 Pa.Super. 380, 430 A.2d 655 (1981). There we identified the two types of overreaching that would invoke the double jeopardy bar as: 1) prosecutorial misconduct intentionally calculated to trigger the declaration of a mistrial in order to secure a more favorable opportunity to convict an accused; and 2) prosecutorial misconduct undertaken in bad faith to harass an accused with successive prosecutions or prejudice his prospects for acquittal. This formulation of the test hews more closely to the language of Dinitz and Lee, and to their rationale of preventing the prosecutor from intentionally forcing a mistrial or putting the defendant to that “Hobson’s choice” whether to give up his right to have one tribunal decide his case or whether to go to verdict with a prejudiced jury.

Recently the United States Supreme Court held that only prosecutorial misconduct intended to provoke a mistrial would bar retrial under federal double jeopardy principles. Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982). The Court thus repudiated the notion that there are two separate types of prosecutorial misconduct that bar reprosecution, and reintroduced an interpretation of double jeopardy principles espoused by a plurality of the Pennsylvania Supreme Court in Commonwealth v. Potter, 478 Pa. 251, 386 A.2d 918 (1978) (Nix, J., concurred specially). See also Commonwealth v. Gravely, supra (plurality opinion). Consequently, as Mr. Justice Nix observed in his concurring opinion in Commonwealth v. Wallace, 500 Pa. 270, 455 A.2d 1187 (1983), there is no longer a Pennsylvania double jeopardy standard barring retrial in cases of prosecutorial misconduct unless the misconduct was intended to provoke the defendant to move for a mistrial. See also Commonwealth v. Rafalko, 335 Pa.Super. 122, 483 A.2d 986 (1984); Commonwealth v. Riffert, 322 Pa.Super. 230, 469 A.2d 267 (1983).

However, the Superior Court has said that the Kennedy rule applies only prospectively to appeals filed after May 24, 1982, the date of the Kennedy decision. Commonwealth v. Lark, 330 Pa.Super. 225, 479 A.2d 522 (1984); Commonwealth v. Freedman, 317 Pa.Super. 207, 463 A.2d 1158 (1983); Commonwealth v. Beaver, supra; see also Rafalko {Kennedy prospectively applied); Riffert (same); but see Commonwealth v. Arelt, supra (pre-Kennedy appeal; Court iterated Kennedy rule, but found no misconduct). We decline the Commonwealth’s invitation to overrule our prior decisions in order to adopt the Kennedy rule retroactively. As was stated in the case upon which the Commonwealth primarily relies for its retroactivity argument: “Evenhanded decision making requires that similarly situated individuals on direct appeal be treated the same.” Commonwealth v. Cabeza, 503 Pa. 228, 232, 469 A.2d 146, 148 (1983) (quoting Commonwealth v. Brown, 494 Pa. 380, 385, 431 A.2d 905, 908 (1981)). Simons, who filed his appeal in 1981, is situated similarly to those other individuals whose appeals arose in this State before Kennedy, and whose cases were judged by our appellate courts under the pre-Kennedy rule. In the interest of fairness and orderliness in our decision making, we will judge Simons’s case also under the pre-Kennedy rule.

The misconduct claimed to raise a double jeopardy bar is that over the course of Simons’s trial assistant district attorney David Berman concealed a deal between the Commonwealth and its witness, Grant Ravenell. Ravenell already had pled guilty to third-degree murder, robbery, and conspiracy, and was in jail awaiting sentencing. In his opening statement to the jury Berman admitted that the Commonwealth had had to make an agreement for Ravenell’s testimony, but denied that there was a sentencing deal, and stated that sentencing was up to the court. Ravenell, on both direct and cross-examination, stated that there was no sentencing deal, that he had been told the maximum sentence he could receive was fifty-five years, and that he expected to go to jail.

In fact, as it later turned out, the Honorable Armand Della Porta sentenced Ravenell to eleven to twenty-three months in prison, county time, with ten years’ psychiatric probation to follow, on the strength of a Commonwealth sentencing recommendation that Judge Della Porta apparently knew about at the time of Ravenell’s guilty plea. Furthermore, after Ravenell concluded his testimony in the Thorpe trial and the defense attorneys had left the courtroom, Berman moved that Ravenell be released immediately on his own recognizance, and Judge Geisz granted the motion.

After reviewing this case pursuant to our remand order, Judge Geisz found that the available evidence indicated that the Commonwealth did have a sentencing agreement with Ravenell which it failed to disclose at the Simons trial. The judge therefore ordered the new trial which Simons now claims is barred.

It is immediately obvious that the first type of prosecutorial misconduct identified in Starks —that designed to provoke the defendant to request a mistrial — is completely absent from this case. The prosecutor’s very act of concealment evidenced his intention not to provoke a mistrial request, and virtually guaranteed that none would be made.

Appellant maintains, however, that concealment of the deal constituted the second type of overreaching identified in Starks, “prosecutorial misconduct undertaken in bad faith to prejudice or harass the defendant.” 490 Pa. at 341, 416 A.2d at 500. Appellant argues that Berman concealed the deal intentionally, in bad faith, and in order to prejudice the defendant, and that therefore reprosecution is barred. We cannot agree with appellant’s simplistic interpretation of Starks.

Starks must be read in light of the guarantees embodied in the constitutional provision which it interprets. The Double Jeopardy Clause protects against oppressive governmental acts that threaten the individual’s right to be tried only once for one offense; however, it clearly does not establish a general remedy for bad faith misconduct by prosecutors. The task is to determine when prosecutorial misconduct amounts to “overreaching” sufficient to bar retrial on double jeopardy grounds. Commentators on the pre-Kennedy line of cases offer the theory that the Double Jeopardy Clause bars retrial only in those instances where the defendant’s interest in the finality of the proceeding against him is overcome by prosecutorial error that might be used to manipulate that interest. Westen & Drubel, Toward a General Theory of Double Jeopardy, 1978 Sup. Ct.Rev. 81, 92-97. Thus, prosecutorial misconduct runs afoul of the Double Jeopardy Clause only where it gives the prosecutor an opportunity to manipulate the defendant’s right to have his guilt or innocence decided in one proceeding. The prosecutor can create such an opportunity for manipulation by intentionally erring to induce an abortion of a first trial that is not going favorably for the prosecution; or by introducing an error that will force the defendant to have his case decided by a prejudiced fact finder, if the defendant insists on going through with the first trial despite the error.

This theory of double jeopardy protections in the context of prosecutorial error illuminates the meaning of “overreaching” as the Supreme Court used that term in Starks. “Overreaching” is misconduct designed 1) to provoke a mistrial to obtain a more favorable opportunity to convict the defendant; or 2) to harass the defendant with a threat of multiple prosecutions or to prejudice his prospects for acquittal before the first tribunal convened to try him in a way that forces a “Hobson’s choice” between seeking a new trial or proceeding to verdict before a prejudiced fact finder.

In Oregon v. Kennedy, the United States Supreme Court chose to limit the availability of relief under the Double Jeopardy Clause by declaring that only misconduct intended to provoke a mistrial would constitute a bar to reprosecution. Kennedy thus narrowed the scope of double jeopardy review to the first type of “overreaching” identified by the Starks Court. In this regard, the expansive reading of Kennedy advanced in the Dissenting Opinion of Del Sole, J. — that it bars retrial in any case where there has been “intentional misconduct,” At 303-306 is unsupportable. Kennedy quite explicitly decided that only misconduct undertaken with the specific intent to precipitate a mistrial will raise a double jeopardy bar. So much is clear from the plain language of Kennedy ’s holding:

we do hold that the circumstances under which ... a defendant may invoke the bar of double jeopardy in a second effort to try him are limited to those cases in which the conduct giving rise to the successful motion for a mistrial was intended to provoke the defendant into moving for a mistrial.

456 U.S. at 679, 102 S.Ct. at 2091, 72 L.Ed.2d at 427. The conclusion that Kennedy does not mandate double jeopardy relief in every instance of intentional misconduct is also inherent in the Supreme Court’s rejection of the more general “bad faith” prong of the pr e-Kennedy double jeopardy standard. See Black’s Law Dictionary 127 (5th ed. 1979) (“Bad faith”). After Kennedy, the bad faith of the prosecutor in committing prejudicial error is relevant only to establish whether he intended to abort the trial.

Even before Kennedy, however, the. Supreme Court never construed the Double Jeopardy Clause as a general safeguard against intentional prosecutorial misconduct; rather, the focus of the pr e-Kennedy decisions was on that type of misconduct undertaken with the bad faith intent to frustrate the defendant’s right to be tried only once. The Court recognized that even if the prosecutor did not specifically intend for his deliberate acts to abort the trial, he could still compromise the rights secured by the Double Jeopardy Clause by intentionally injecting error into the case to force the defendant to choose between opting for a mistrial or obtaining a verdict from a tainted jury, thereby “harassing” the defendant with the threat of multiple prosecutions. See Dinitz and Lee, supra; see also Oregon v. Kennedy, 456 U.S. at 689, 102 S.Ct. at 2096, 72 L.Ed.2d at 433 (Stevens, J., joined by Brennan, Marshall, and Blaekmun, JJ., concurring in the result) (“a prosecutor may be interested in putting the defendant through the embarrassment, expense, and ordeal of criminal proceedings even if he cannot obtain a conviction____ [WJith the purpose of harassing the defendant the prosecutor may commit repeated prejudicial errors and be indifferent between a mistrial or mistrials and an unsustainable conviction or convictions.”).

Of course, it is not always easy to discern or prove that the prosecutor erred with such a purpose in mind. However, the kind of error that can be used to subvert the defendant’s double jeopardy rights typically will create a positive prejudicial inference against the defendant in the eyes of the fact finder, and will occur under circumstances where its prejudicial impact on the fact finder will be apparent to the defense. Only thus may the prosecutor force the defendant into an untenable choice between asking for a mistrial, thus forfeiting his right to have his guilt or innocence decided in one proceeding, or accepting the prejudicial effect of the error, thus allowing his guilt or innocence to be decided by a fact finder tainted by prejudice. The elements of such a “Hobson’s choice” are consistently present in the Pennsylvania decisions inquiring into the double jeopardy implications of prosecutorial or judicial error. See, e.g., Commonwealth v. Virtu, 495 Pa. 59, 432 A.2d 198 (1981); Commonwealth v. Lee, 490 Pa. 346, 416 A.2d 503 (1980); Commonwealth v. Starks, supra; Commonwealth v. Gravely, supra; Commonwealth v. Potter, supra; Commonwealth v. Lark, supra; Commonwealth v. Riffert, supra; Commonwealth v. Freedman, supra; Commonwealth v. Beaver, supra; Commonwealth v. Lafferty, 315 Pa.Super. 241, 246, 461 A.2d 1261, 1263 (1983); Commonwealth v. McClain, 309 Pa.Super. 163, 454 A.2d 1134 (1983); Commonwealth v. Yost, supra; Commonwealth v. Miele, 300 Pa.Super. 197, 446 A.2d 298 (1982); Commonwealth v. Owens, 299 Pa.Super. 1, 445 A.2d 117 (1982); Commonwealth v. Custor, 296 Pa.Super. 235, 442 A.2d 746 (1982); Commonwealth v. Anderson, 294 Pa.Super. 1, 439 A.2d 720 (1981); Commonwealth v. Clark, supra. See also Commonwealth v. Beasley, 505 Pa. 279, 479 A.2d 460 (1984) (condemning “prosecutor’s blatant and inexcusable inattention” in allowing box labeled “Police shooting, homicide of police officer” to be brought into courtroom). We note that in Virtu, supra, one of two cases in which the Pennsylvania Supreme Court found misconduct egregious enough to bar retrial on double jeopardy grounds, the prosecutor had “prejudice[d] the accused in the presence of the jury” by calling a witness to the stand whom he knew would invoke his fifth amendment privilege not to testify. 495 Pa. at 69, 432 A.2d at 203-04. See also Commonwealth v. Warfield, 424 Pa. 555, 227 A.2d 177 (1967) (prosecutor deliberately caused mistrial to appeal question of law to Supreme Court).

We hold that prosecutorial error amounts to “overreaching” so as to bar retrial on double jeopardy grounds only where it is designed to force the defendant into a choice between proceeding to verdict before a tainted fact finder, and giving up his right to be tried only once. It is evident that the prosecutor’s concealment of a sentencing deal with Simons’s codefendant did not force Simons into such an untenable choice. The act of concealment did not prejudice Simons in the eyes of the jury, but was designed only to direct their animosity away from co-defendant Ravenell. Furthermore, the defense remained oblivious to its grounds for a new trial until long after the jury had performed its function. Clearly the prosecutor did not act with the bad faith intent to harass Simons with the threat of multiple prosecutions or prejudice his prospects for acquittal before the first jury in order to force a “Hobson’s choice” between seeking a mistrial or proceeding to verdict before a prejudiced jury. Instead, the prosecutor obviously intended that the defendant should remain unaware of the grounds for a new trial, and that the defendant’s first trial would be his last.

We by no means suggest that concealed misconduct is somehow preferable to blatant misconduct. The prosecutor’s act of concealment was deplorable and certainly such misconduct must be discouraged in a quasi-judicial officer whose sworn duty is to seek justice rather than narrowmindedly 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 of the Supreme Court in United States v. Morrison, 449 U.S. 361, 366, 101 S.Ct. 665, 669, 66 L.Ed.2d 564, 569 (1981): “The remedy in the criminal proceeding is limited to denying the prosecution the fruits of its transgression.” See also Commonwealth v. Torrez, 335 Pa.Super. 612, 485 A.2d 63 (1984) (discharge inappropriate remedy for failure of prosecutorial officers to conduct court-ordered lineup). 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.

The prosecutor did not deliberately overreach the defendant with the threat of multiple prosecutions, nor intentionally subvert the defendant’s right to be tried only once. Accordingly, the extraordinary remedy of discharge is not warranted in this case, and we hold that appellant’s double jeopardy rights would not be violated by retrial. The trial court’s award of a new trial adequately remedies the prosecutor’s wrongful concealment of the deal with Ravenell. See Commonwealth v. Hallowell, 477 Pa. 232, 383 A.2d 909 (1978).

Finally, we are constrained to correct a misimpression created in the Dissenting Opinion by Del Sole, J., that our holding has somehow restricted double jeopardy relief to cases where a mistrial based on prosecutorial misconduct has been granted during the trial. Judge Del Sole states that “if the Majority’s view is adopted, a trial court when faced with a motion for mistrial, might be reluctant to grant same since it would give rise to a double jeopardy claim while a conviction and new trial would not.” At —. This statement reflects a misreading of our opinion. We neither expressly nor impliedly distinguish prosecutorial misconduct met with the immediate declaration of a mistrial from prosecutorial misconduct remedied on appeal from a conviction. Our analysis focuses solely on whether misconduct by the prosecutor was designed to vitiate the defendant’s constitutional protection against double jeopardy. Any fear that trial judges will be loath to grant meritorious mistrial requests because of our holding is therefore completely unfounded. See Commonwealth v. Potter, supra (same double jeopardy standard applies whether or not mistrial is granted).

The pretrial order denying the motion to bar reprosecution is affirmed.

BROSKY, J., joins, but also files a concurring opinion.

WIEAND, J., files a concurring opinion.

SPAETH, President Judge, files a dissenting opinion.

DEL SOLE, J., files a dissenting opinion, in which POPO-VICH, J., joins.

BROSKY, Judge,

concurring:

I join in the majority’s well-reasoned treatment of the merits of this case. I write simply to also concur in the majority’s implied holding that appellant did not waive the issue treated herein by raising it for the first time in a pre-trial motion to dismiss filed in conjunction with his second trial.

Appellee, the Commonwealth contends that appellant has waived his double jeopardy claim by failing to raise it prior to his being granted a new trial. It is clear from the facts recited by the majority that appellant raised his double jeopardy claim for the first time in a pre-trial motion after the court below had granted him a new trial. Although the majority does not expressly address the Commonwealth’s argument, it does consider the merits of appellant’s claim.

Therefore, the conclusion is inescapable that the majority is holding that the procedure followed by appellant does not result in waiver of a double jeopardy claim. I agree with this holding on the basis of the rationale of Justice Roberts in Commonwealth v. Hallowell, 497 Pa. 203, 439 A.2d 1140 (1981) (Opinion in Support of Reversal).

Our present practice, with which appellant has fully complied, requires a defendant to raise before retrial a claim of overreaching, and permits a pre-retrial appeal from an adverse determination. See Commonwealth v. Haefner, 473 Pa. 154, 373 A.2d 1094 (1977); Commonwealth v. Bolden, 472 Pa. 602, 373 A.2d 90 (1977). This practice provides an effective, fair and reasonable vehicle for prompt adjudication of claims of prosecutorial overreaching, assuring proper development of the record necessary to adjudicate such a claim. See e.g., Commonwealth v. Mitchell, 488 Pa. 75, 410 A.2d 1232 (1980) (pre-retrial evidentiary hearing held pursuant to present procedure facilitated resolution of overreaching claim). Moreover, this practice assures that the issue of overreaching is ripe: the Commonwealth is seeking to retry the defendant, and the defendant is claiming that retrial will place him twice in jeopardy.

Id., 497 Pa. at 214, 439 A.2d at 1145.

On this basis, I would agree with the majority’s implicit holding in this case; namely that the procedure followed by appellant does not result in waiver of a double jeopardy claim.

WIEAND, Judge,

concurring:

I concur in the holding of the majority that retrial is not barred by principles of double jeopardy. I write separately because of my disagreement with language in the majority opinion to the effect that the decision of the United States Supreme Court in Oregon v. Kennedy must be given prospective application only.

The Supreme Court in Kennedy, although acknowledging the existence of confusion because of language in prior decisions, determined to clarify the “confusion” by stating the law to be that “ ‘reprosecution of a defendant who has successfully moved for a mistrial is not barred, so long as the Government did not deliberately seek to provoke the mistrial request.’ ” Id. at 678 n. 8, 102 S.Ct. at 2090-2091 n. 8, 72 L.Ed.2d at 426 n. 8, quoting United States v. DiFrancesco, 449 U.S. 117, 130, 101 S.Ct. 426, 434, 66 L.Ed.2d 328, 341 (1980). This decision did not represent a clear break with precedent. The Court did no more than clarify prior decisional language while applying settled precedents to the facts of the case then before it. Because the decision in Kennedy did not in fact alter existing precedent, it may be applied retrospectively to all cases pending on direct appeal. United States v. Johnson, 457 U.S. 537, 548-549, 102 S.Ct. 2579, 2587, 73 L.Ed.2d 202, 213 (1982). See: In re V.G.E., 452 A.2d 1195 (D.C.1982). See also: Commonwealth v. Price, 318 Pa.Super. 240, 464 A.2d 1320 (1983) (Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 to be applied retrospectively to all cases on direct appeal at time decision rendered).

The double jeopardy protections afforded by federal and state constitutions are coextensive. Commonwealth v. Hude, 492 Pa. 600, 613, 425 A.2d 313, 320 (1980). The courts of Pennsylvania have generally followed decisions of the Supreme Court of the United States in interpreting the double jeopardy clause of the state constitution. Commonwealth v. Beaver, 317 Pa.Super. 88, 100, 463 A.2d 1097, 1103 (1983). This Court has decided, subject to final review by the Supreme Court, that it will apply the double jeopardy parameters defined in Oregon v. Kennedy, supra, to cases arising under the state constitution. Commonwealth v. Beaver, supra, 317 Pa.Superior Ct. at 101, 463 A.2d at 1104, citing Commonwealth v. Wallace, 500 Pa. 270, 455 A.2d 1187 (1983) (Nix, J., concurring). I agree that we should do this. Because I am unable to discern any valid reason for denying retrospective application of those parameters, however, I would hold that Oregon v. Kennedy, supra, is applicable equally to all cases, whether arising before or after the date thereof. We would thus achieve uniformity without placing any defendant in danger of discernible injustice or hardship.

SPAETH, President Judge,

dissenting:

If this case were controlled by Oregon y. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982), retrial would not be barred, for the prosecution did not “intend[] to provoke [appellant] into moving for a mistrial.” To the contrary, the prosecutor intended, by concealing his misconduct, to preclude appellant from moving for a mistrial. Kennedy, however, does not control, for it is not to be applied retroactively. Commonwealth v. Beaver, 317 Pa. Super. 88, 102, 463 A.2d 1097, 1104 (1983). The case that does control is United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976), which Kennedy overruled. Under Dinitz, retrial is barred by “prosecutorial misconduct undertaken in bad faith to prejudice or harass” the defendant. Since that is precisely the sort of prosecutorial misconduct that occurred here, we should hold that retrial is barred and reverse the order of the trial court permitting retrial.

In Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982), the Court held

... that the circumstances under which such a defendant may invoke the bar of double jeopardy in a second effort to try him are limited to those cases in which the conduct giving rise to the successful motion for a mistrial was intended to provoke the defendant into moving for a mistrial.

Id. at 679, 102 S.Ct. at 2091.

I believe that Kennedy means what it says, and for that reason I cannot join Judge DEL SOLE, although I agree with much of what he says. Here, the prosecutor did not “intend[ ] to provoke [appellant] into moving for a mistrial.” His intention was just to the contrary. Usually, of course, intention must be inferred from conduct. The only inference to be drawn from the prosecutor’s conduct here is that he did not want appellant to know about the sentencing agreement with Ravenell. In other words, he hoped the trial would proceed smoothly without interruption to a guilty verdict: he intended, by concealing his misconduct, to preclude appellant from moving for a mistrial. Accordingly, if Kennedy controls this case, retrial is not barred.

However, Kennedy does not control this case. To explain this conclusion, it is necessary to consider United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976).

Dinitz held:

The Double Jeopardy Clause does protect a defendant against governmental actions intended to provoke mistrial requests and thereby to subject defendants to the substantial burdens imposed by multiple prosecutions. It bars retrials where “bad-faith conduct by judge or prosecutor,” threatens the “[hjarassment of an accused by successive prosecutions or declaration of a mistrial so as to afford the prosecution a more favorable opportunity to convict” the defendant

424 U.S. at 611, 96 S.Ct. at 1079 (citations omitted).

See also Lee v. United States, 432 U.S. 23, 33, 97 S.Ct. 2141, 2147, 53 L.Ed.2d 80 (1977) (“Only if the underlying error was ‘motivated by bad faith or undertaken to harass or prejudice’ would there be any barrier to retrial.”) {citing United States v. Jorn, 400 U.S. 470, 485, 91 S.Ct. 547, 557, 27 L.Ed.2d 543 (1971)). Our Supreme Court adopted this analysis in Commonwealth v. Starks, 490 Pa. 336, 416 A.2d 498 (1980):

Generally the double jeopardy clause does not bar retrial of a defendant who obtains a new trial upon his request for a mistrial____
This restriction on the double jeopardy clause, however, is not without its own limitations. The Supreme Court has held that double jeopardy will bar retrial if the defendant sought the mistrial as a result of prosecutorial misconduct amounting to overreaching____
The United States Supreme Court has enunciated principally two types of prosecutorial overreaching. First there is the prosecutorial misconduct which is designed to provoke a mistrial in order to secure a second, perhaps more favorable, opportunity to convict the defendant. Second there is the prosecutorial misconduct undertaken in bad faith to prejudice or harass the defendant. In contrast to prosecutorial error, overreaching is not an inevitable part of the trial process and cannot be condoned. It signals the breakdown of the integrity of the judicial proceeding, and represents the type of prosecutorial tactic which the double jeopardy clause was designed to protect against.

Id., 490 Pa. at 340-41, 416 A.2d at 500 (citations omitted). And see Commonwealth v. Virtu, 495 Pa. 59, 65 n. 7, 432 A.2d 198, 201 n. 7 (1981) (In Starks, Supreme Court “set forth circumstances under which prosecutorial misconduct would be the basis for a claim of former jeopardy____”); Commonwealth v. Clark, 287 Pa.Super. 380, 390 n. 9, 430 A.2d 655, 660 n. 9 (1981) (Starks represents the Commonwealth’s “authoritative standard for overreaching cases____”)

When Kennedy’s holding is compared with Dinitz’s, it is apparent that Kennedy overruled Dinitz, for Kennedy reduced the bases upon which a defendant, after moving for a mistrial, could plead double jeopardy from the two provided by Dinitz to only one. As Justice STEVENS explained:

Today the Court once again recognizes that the exception properly encompasses the situation in which the prosecutor commits prejudicial error with the intent to provoke a mistrial. But the Court reaches out to limit the exception to that one situation, rejecting the previous recognition that prosecutorial overreaching or harassment is also within the exception.
Oregon v. Kennedy, supra, 456 U.S. at 687, 102 S.Ct. at 2095 (footnotes omitted).

The majority, Justice STEVENS said, had “gratuitously lop[ped] off a portion of the previously recognized exception.” Id. at 681, 102 S.Ct. at 2092.

When one recognizes that Kennedy overruled Dinitz, the conclusion that Kennedy does not control this case becomes clear. Appellant was tried before Kennedy was decided. The decision whether to apply a new constitutional rule retroactively is a matter of judicial discretion, August v. Stasak, 492 Pa. 550, 424 A.2d 1328 (1981), and we have decided that because (among other reasons) Kennedy adopted a rule that “narrowed the prior [Dinitz ] standard of review applicable to mistrials, i.e., overruled cases holding to the contrary,” and because “injustice or hardship” would thereby be avoided, Kennedy should not be applied retroactively. Commonwealth v. Beaver, 317 Pa.Super. 88, 102, 463 A.2d 1097, 1104 (1983). See also Commonwealth v. Lark, 330 Pa.Super. 225, 230-231 n. 7, 479 A.2d 522, 524 n. 7 (1984) (“Our court has decided to apply Oregon v. Kennedy, supra, prospectively) (citations omitted).”

The question we must decide, therefore, is whether under Dinitz and the decisions by our Supreme Court adopting it, retrial is barred because the prosecutorial misconduct at issue here was “undertaken in bad faith to harass an accused by successive prosecutions or prejudice his prospects for an acquittal.” Commonwealth v. Clark, supra, 287 Pa.Super. at 390, 430 A.2d at 659 (citing Commonwealth v. Starks, supra). I have no doubt that it was; indeed, it would be difficult to imagine a closer fit with the Dinitz test. The prosecutor engaged in “misconduct”; he did so “in bad faith”; and his purpose was to “prejudice [appellant’s] prospects for an acquittal” — specifically, by concealing the sentencing agreement with Ravenell, to prevent the defense from damaging the credibility of the Commonwealth’s key witness.

The order of the trial court should be reversed.

DEL SOLE, Judge,

dissenting:

Today, the Majority determines that an Appellant’s double jeopardy rights would not be violated by a retrial, following a conviction, where that retrial was occasioned by the intentional misconduct of the District Attorney. I must respectfully dissent.

In the instant case the District Attorney’s Office actively concealed from Appellant and the trial court a sentencing arrangement made between the Commonwealth and its witness. The record establishes that this conduct was clearly intentional. Although this conduct was not intended to provoke a mistrial in order to avoid an acquittal it nevertheless deprived Appellant of a fair trial in order to secure a conviction. I find no functional difference between intentional misconduct, engaged in by the prosecution in order to avoid an acquittal by causing a mistrial and intentional misconduct, engaged in by the prosecution in concealing evidence, which results in a guilty verdict. In either case, the conduct of the prosecution once established, places the defendant twice in jeopardy for the same crime.

The Majority first concludes that the case of Oregon v. Kennedy, 456 U.S. 669, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982) does not apply to the instant fact situation and proceeds to a discussion of Pennsylvania law relying in part on Commonwealth v. Wallace, 500 Pa. 270, 455 A.2d 1187 (1983) . Without discussing whether or not Kennedy, is applicable, I believe that the Majority’s reliance on Wallace is misplaced and that Wallace in fact supports the position of the Appellant herein.

In Wallace the Supreme Court awarded the defendant a new trial based on the prosecutor’s failure to correct certain false testimony made by the Commonwealth’s chief witness. The prosecutor also failed to provide defense counsel with the witness’s complete criminal background and record. Following conviction, the defendant filed two motions, one requesting a new trial and one requesting discharge on double jeopardy grounds claiming the prosecutor’s actions were intentional. The Supreme Court, in a Majority Opinion written by Justice Larsen, granted the defendant’s motion for a new trial and further determined that it was premature at this point to consider defendant’s request for discharge on the grounds of double jeopardy. That Court noted that the trial judge made no findings on whether the District Attorney’s Office performed mistakenly or that the acts were done intentionally and in bad faith. If the conduct was simply mistaken, the Court held that any harm caused by the error would be cured by a second trial. The Supreme Court went on to say that if the actions were undertaken intentionally, a subsequent prosecution would not cure the taint of the District Attorney’s conduct. The Court specifically held:

“Accordingly, our grant of a new trial is without prejudice to Appellant’s right to petition the lower court for discharge on double jeopardy grounds (this issue has been preserved throughout these proceedings) prior to reprosecution, if any, at which time the issue would be considered in light of all the evidence adduced at the after-discovered evidence hearing.” (Emphasis added)

Commonwealth v. Wallace, supra, 500 Pa. at 282, 455 A.2d at 1187. What the Wallace court did was to remand to the trial court, after granting a new trial, with instructions that the trial court made a determination whether the actions of the District Attorney’s Office were intentional and then consider the defendant’s motion to bar prosecution on double jeopardy grounds. In the instant case the determination of intentional misconduct by the District Attorney’s in concealing evidence has been established.

The Pennsylvania Supreme Court’s decision in Commonwealth v. Wallace, rendered nine months after the United States Supreme Court announced its decision in Oregon v. Kennedy, in my judgment establishes the criteria on whether or not double jeopardy prohibition will attach. The criteria is intentional misconduct, which is in keeping with my reading of Oregon v. Kennedy where the United States Supreme Court, when faced with a double jeopardy claim following the declaration of a mistrial held that:

“But we do hold that circumstances under which such defendant may invoke the bar of double jeopardy in a second effort to try him are limited to those cases in which the conduct giving rise to the successful motion for a mistrial was intended to provoke the defendant into moving for a mistrial.” (Emphasis supplied)

This standard, intentional action by the prosecutor, established by the Supreme Court of the United States in prosecutorial misconduct cases replaces the doctrine of “overreaching”. In Kennedy, the trial court granted the defendant’s motion for a mistrial after the prosecutor asked a witness an objectionable question. The Oregon Court of Appeals accepted the trial court’s finding that the prosecutor did not intend to cause a mistrial. Nevertheless, the Court of Appeals held the mistrial was barred because the prosecutor’s conduct constituted “overreaching”. The United States Supreme Court rejected this “overreaching” standard and instead found “intent” on the part of the prosecutor to be the determinative factor.

“By contrast, a standard that examines the intent of the prosecutor, though certainly not entirely free from practical difficulties, is a manageable standard to apply. It merely calls for the court to make a finding of fact. Inferring the existence or nonexistence of intent from objective facts and circumstances is a familiar process in our criminal justice system.”

Oregon v. Kennedy, supra, 102 S.Ct. at 2089.

The Majority believes that it is necessary for a mistrial to be declared before intentional conduct gives rise to a double jeopardy claim. I disagree. Here, had the concealment of evidence by the prosecutor been discovered during trial, a mistrial would have been declared. However, the prosecutor’s concealment prevented Appellant from making the necessary mistrial motion. If the motion were made, it would have been granted and double jeopardy would have applied. I find the distinction between the two situations, that presented here and that which would have occurred had a mistrial been granted, not so significant as to deprive Appellant of his double jeopardy claim. The test is intentional misconduct. Intentional misconduct which is concealed is surely no better than intentional misconduct which becomes evident during trial. A party’s rights should not be affected because a prosecutor was clever enough to hide his misconduct during the course of the trial.

Also, if the Majority’s view is adopted, a trial court when faced with a motion for mistrial, might be reluctant to grant same since it would give rise to a double jeopardy claim while a conviction and new trial would not. This eventuality is also one that was addressed in Kennedy, supra, and the United States Supreme Court sought to avoid such actions by establishing an intentional standard as opposed to “overreaching”.

It may be argued that the misconduct here can be corrected by a retrial, however, that would also be the case had a mistrial been declared and a retrial ensues. Since in the latter situation double jeopardy would prevent the retrial, I believe that it should also prevent it in the instant case.

It is my view that intentional misconduct by a prosecutor which either results in a mistrial or in a conviction and subsequent new trial are not functionally different and double jeopardy protection should apply.

POPOVICH, J., joins.

      . Justice Roberts’ opinion was joined by two of the five other members of the Court. Justice Nix, in his Opinion in Support of Affirmance, did not comment upon the waiver issue, but did reach the merits of the case. Justices Larsen and Kauffman, in their Opinion in Support of Affirmance would have found the appellant’s double jeopardy claim to have been waived.

      . 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982).

      . My research has failed to disclose any case in which a second trial was held to be barred by prosecutorial misconduct resulting in a mistrial or the award of a new trial where such misconduct was not prompted by an intent to abort the trial for the purpose of enhancing the chances for obtaining a conviction before a different jury. In general, the award of a new trial has been held to be an adequate response to prosecutorial misconduct.

      . I note, however, that there is support for Judge DEL SOLE’s reading of Kennedy in Justice POWELL’s concurring opinion, which characterizes the holding of the majority as follows: "... the intention of a prosecutor determines whether his conduct, viewed by the defendant and the court as justifying a mistrial, bars a retrial of the defendant under the Double Jeopardy Clause.” 456 U.S. at 679, 102 S.Ct. at 2091.

      . Judge WIEAND’s statement that Kennedy "did not represent a clear break with precedent” but only "clarified] prior decisional language,” concurring at 297. WIEAND, J., is not only contrary to Justice STEVENS’s view of Kennedy but to this court’s view. See discussion infra, citing our decisions that Kennedy is not to be applied retroactively.

      . I cannot agree with the majority that there is a functional difference between concealed prosecutorial misconduct and overt misconduct, and in this I agree with Judge DEL SOLE. I also believe that the majority’s reliance on this distinction has the incongruous result of encouraging prosecutors to conceal misconduct, for if they are successful, upon the majority's analysis, double jeopardy will not bar a retrial. Thus, although the majority says that "[they] by no means suggest that concealed misconduct is somehow preferable to blatant misconduct," at 1126, they hold that it is preferable, for they do not apply a double jeopardy bar to concealed misconduct and would apply it to blatant misconduct.


source: Caselaw Access Project

author: CERCONE, Judge: SPAETH, President Judge,

license: Public Domain

text:
    492 A.2d 1133
    COMMONWEALTH of Pennsylvania, Appellant, v. Richard WOJTCZAK.
    Superior Court of Pennsylvania.
    Submitted Nov. 2, 1984.
    Filed May 10, 1985.

      Ronald T. Williamson, Assistant District Attorney, Norristown, for Commonwealth, appellant.
    Jeffrey A. Kroberger, Erdenheim, for appellee.
    Before SPAETH, President Judge, and OLSZEWSKI and CERCONE, JJ.
   CERCONE, Judge:

This case arises on appeal by the Commonwealth (“appellant”) from an Order dated January 8, 1983 in which the Court of Common Pleas of Montgomery County vacated the judgment of sentence originally imposed and granted the defendant a new trial. The Order was in response to defendant’s petition under the Post Conviction Hearing Act, 42 Pa.C.S.A. § 9541 et seq., in which defendant contended that trial counsel was ineffective in (1) failing to call the identification witnesses at the pre-trial suppression hearing and (2) in eliciting evidence of defendant’s prior convictions for sex related offenses from defendant on direct examination where defendant was on trial for a sex offense. The court below found this conduct by trial counsel to constitute ineffective assistance of counsel and, therefore, granted defendant a new trial. We reverse.

Defendant was found guilty of Involuntary Deviate Sexual Intercourse, Burglary, Felonious Restraint, Corruption of Minors and Indecent Assault. The charges arose out of an incident where a man (allegedly the defendant) entered the bunk room of a camp building at a private summer day camp and there invited a nine-year-old girl to accompany him into an older camp building. Once in the older building, the man grabbed the girl, put one hand over her mouth holding a knife in his other hand, threatened to kill her if she said anything, and forced her to engage in the act of sodomy. The victim observed the man throughout the occurrence in both the bunk room and the lobby of the first camp building which were well lighted and in the older building which was not well lighted. The incident occurred at noon on a sunny day. The director of the camp, the second witness, observed the man making a telephone call in the lobby of the first building. Both the victim and the director of the camp reported the crime to the police and gave a description of the man responsible. He was described as white, mustached and dressed in maroon pants and jacket. Maroon pants and jacket were found in defendant’s house when it was searched.

Both the witness and the victim independently identified defendant in photographic arrays prior to his arrest. At the pre-trial suppression hearing, the officer who conducted the photographic identification process testified that he presented two photographic arrays to each of the identifying witnesses. The first array contained eight photographs of white males, one of which was the petitioner. After viewing this array neither of the identifying witnesses was able to make a positive identification. In the presence of the witnesses, the officer took out the picture of defendant and substituted an older photograph of him. Based on this later array, both witnesses identified the defendant. Neither witness was called to testify at the suppression hearing.

At the suppression hearing, trial counsel filed a motion to exclude defendant’s prior convictions from being entered into evidence. The court ruled that the motion was premature. Counsel did not raise this motion at any subsequent proceeding. At trial, on direct examination, counsel asked defendant questions which revealed his prior convictions on sexual offenses.

Trial commenced following denial of defendant’s motion to suppress identification and items seized. At the request of defendant’s counsel, defendant was seated in the courtroom, rather than at counsel table, in a row of seats with a few other white males selected by his counsel. When asked to identify her assailant, the victim left the witness stand and led the assistant district attorney directly to the defendant and pointed him out as the man who was responsible for the crime.

At the PCHA hearing in this matter, defendant’s trial counsel testified that he did not call the identifying witnesses during the pre-trial proceedings so as to prevent them from having further opportunity to observe the photo array or to observe the defendant. He reasoned that the effect of further observations would only serve to reinforce the defendant at trial. He further testified that he had decided to introduce defendant’s prior criminal record for three reasons. The first was to show that defendant was being honest. The second was to show that none of his prior convictions were for crimes of violence. The third was to minimize the impact of such information on the jury.

In granting the applicant a new trial, the court below stated that our earlier holding in Commonwealth v. Brown, 302 Pa.Super.Ct. 80, 448 A.2d 535 (1982), mandated a new trial. It cited Brown for the proposition that absent the testimony of the identification witnesses, the suppression court lacked facts necessary to determine whether or not the witness could make a reliable identification and, therefore, the Commonwealth had failed to carry its burden of proof.

The lower court’s reliance on Brown is misplaced. In Brown, the defendant/appellant was appealing his conviction on a single issue, that is, whether it was error for the suppression court not to require the identification witnesses to testify about the photographic identification procedure. Our scope of review there was limited to whether the findings- of the suppression court were supported by the record and whether the inferences and legal conclusion based thereon were correct.

In the instant case, we are reviewing an Order granting a new trial based on a decision of ineffectiveness of trial counsel. Our scope of review on this issue is twofold: (1) whether the issue underlying the charge of ineffectiveness is of arguable merit, and (2) if so, whether the course chosen by counsel had some reasonable basis designed to effectuate his client’s interests. See: Commonwealth v. Stoyko, 504 Pa. 455, 472, 475 A.2d 714, 723 (1984); Commonwealth v. Tann, 500 Pa. 593, 600, 459 A.2d 322, 326 (1983).

The underlying issue is whether the photographic identification procedure was so unduly suggestive as to give rise to a substantial likelihood of misidentification and whether, if suggestive factors were involved, the witnesses’ in-court identification had an “independent origin” in the witnesses’ observation at the time of the crime. These certainly are issues of arguable merit. This court has long recognized the dangers involved in the photographic identification process. See i.e., Commonwealth v. Brown, supra; Commonwealth v. Johnson, 301 Pa.Super.Ct. 13, 446 A.2d 1311 (1982). Accord: Commonwealth v. Fowler, 466 Pa. 198, 204, 352 A.2d 17 (1976) citing Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). However, on appellate review, we must consider whether defendant’s trial counsel had a reasonable basis, designed to effectuate his client’s interests, for his trial tactics. In Commonwealth v. Dunbar, 503 Pa. 590, 470 A.2d 74 (1983), our Supreme Court said:

Before a claim of ineffectiveness can be sustained, it must be determined that, in light of all the alternatives available to counsel, the strategy actually employed was so unreasonable that no competent attorney would have chosen it____ The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record. We presume counsel is effective. Moreover, the burden of establishing ineffectiveness rests upon his client.

Id., 503 Pa. at 596, 470 A.2d at 77. Accord: Commonwealth v. Litzenberger, 333 Pa.Super.Ct. 471, 482 A.2d 968 (1984).

Trial counsel testified that he chose not to call the identifying witnesses to the suppression hearing in the hope that the victim and her witness would be unable to identify the defendant at trial. We find counsel’s strategy to be reasonable within the dictates of Dunbar. The victim was nine-years-old at the time of the incident. The trial took place five-and-one-half months later. • Although the child had clearly seen the defendant at the time of the incident, it is not an unreasonable strategy to prevent the child/victim’s viewing of defendant or his photograph in the hope that she would be unable to identify him at trial.

The second issue is whether trial counsel was ineffective by raising defendant’s prior convictions on direct examination. The court below found this to be evidence of ineffective assistance of counsel. Based on the facts of this case, we disagree.

At the suppression hearing, trial counsel did present a written Motion to Suppress defendant’s prior convictions. The motion was not ruled on as it was premature. Counsel did not raise the motion at trial. The court below found that the crimes involved were not crimen falsi offenses and, therefore, if counsel had raised such a motion, the trial court would have granted it. Relying on a Supreme Court opinion in Commonwealth v. Zapata, 455 Pa. 205, 314 A.2d 299 (1974) and on Commonwealth v. Candia, 286 Pa.Super.Ct. 282, 428 A.2d 993 (1981), the court below found that counsel’s strategy was “grossly inappropriate” and did “nothing but harm petitioner’s case.” In both Zapata and Candia, the appellate courts found trial counsel’s introduction of defendant’s prior convictions to establish a claim of ineffectiveness of counsel.

The lower court’s finding that a motion to suppress defendant’s prior convictions would have been granted at trial because the previous convictions involved were not crimen falsi does not dispose of that question. There are two general exceptions to the rule that evidence of prior criminal conduct is inadmissible to impeach a defendant who testifies in his own defense. The first is evidence that the defendant has been convicted of crimen falsi. Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d 255 (1973). The second exception arises if the defendant places his character in issue by presenting evidence that a particular aspect of his character is good. If he did so, then evidence of prior criminal activity that served to rebut that particular aspect of his character would be admissible. Commonwealth v. Hayes, 314 Pa.Super.Ct. 112, 126-127, 460 A.2d 791, 798 (1983) (Spaeth, J., dissenting) citing Commonwealth v. Moore, 246 Pa.Super.Ct. 163, 369 A.2d 862 (1977) and 42 Pa.C.S.A. § 5918(1) (1982). See also, Commonwealth v. Palmer, 315 Pa.Super.Ct. 601, 611, 462 A.2d 755, 760 (1983).

As previously stated, trial counsel introduced the defendant’s prior criminal record for three reasons. They were to show that he was honest, to show that his prior convictions had not been for crimes of violence, and to minimize the impact of such information on the jury by introducing it on direct examination rather than having it introduced by the Commonwealth.

The only defense witness, other than the defendant himself, was his wife. On direct examination, she testified that he was not a violent person, had never struck her and had only occasionally struck their child in a disciplinary-type of manner (T.T.R. 172). By eliciting such information, defendant was placing his character as a non-violent person in issue. Therefore, it is highly likely that the trial judge would have allowed the prosecution to raise defendant’s past record in an attempt to impeach this character evidence.

The Supreme Court’s holding in Commonwealth v. Zapata, supra, did not establish a per se rule. “Nevertheless, there may be situations where a defense attorney is substantially certain that the prosecution will utilize a defendant’s prior convictions if he decides to testify. In those situations, it may be reasonable trial strategy for the defense to bring those convictions out on direct examination in order to minimize their impact, thus muting the prosecutor’s thunder.” Supra, 455 Pa. at 208, 314 A.2d at 301. Likewise, this court in Commonwealth v. Candia, supra, did not establish a per se rule. In that case, the court found that trial counsel’s decision to question the appellant about his past criminal acts served only to invite “very damaging cross-examination by the Commonwealth,” supra 286 Pa.Super. at 288, 428 A.2d at 996, however, in that case there was no evidence that the defendant’s character was in issue. On several occasions subsequent to Zapatta and Candía, this court has found trial counsel not to be ineffective for raising a defendant’s prior criminal record. See, i.e., Commonwealth v. Palmer, supra, and Commonwealth v. Cayton, 300 Pa.Super.Ct. 417, 446 A.2d 924 (1982).

Therefore, we find, in light of the fact that the Commonwealth had an apparently very strong case against defendant and that he had no strong defense, that the strategy employed by trial counsel was not so unreasonable as to support defendant’s claim of ineffectiveness. Based on the foregoing reasoning, we must reverse the Order of the court below which granted appellant a new trial.

Reversed.

SPAETH, President Judge, files a dissenting opinion.

SPAETH, President Judge,

dissenting:

I should find trial counsel ineffective, and should therefore affirm the order granting a new trial. Indeed, I believe we should affirm on the opinion of the trial court, LOWE, P.J., which correctly characterizes counsel’s “strategy [as] grossly inappropriate”. Slip op. of tr. ct. at 1136.

It was the Commonwealth’s burden to demonstrate “by clear and convincing evidence at a suppression hearing that the witness’s proposed trial identification will be reliably based on the witness’s observations at the scene of the crime____ Whether the prosecution has met its burden requires a consideration of the totality of the circumstances.” Commonwealth v. Fowler, 466 Pa. 198, 204, 352 A.2d 17, 20 (1976). “The essential criteria in determining whether or not evidence of pre-trial identification is admissible is its reliability under all of the circumstances disclosed by the record.” Commonwealth v. Thompkins, 311 Pa.Super.Ct. 357, at 363, 457 A.2d 925, at 928 (1983) (emphasis in original). Here, the only evidence of reliability offered by the Commonwealth at the suppression hearing was the testimony of the officer who conducted the identification procedure. It would seem impossible to undermine the reliability of the identifications without calling the witnesses themselves. I find counsel’s explanation of why he didn’t call them — that he wanted to minimize the possibility of an accurate in-court identification — quite unpersuasive: Why bother to make a motion to suppress and then conduct its prosecution so weakly as to ensure its denial?

Be this as it may, counsel’s conduct of the motion to suppress is not the only issue: counsel also chose, on direct examination of appellant, to disclose that appellant had a prior record involving seventeen sexual offenses over the past fourteen years (at least two involving children). It is hard to imagine an attorney doing a greater disservice to his client’s case. While the majority is of course correct that Commonwealth v. Zapata, 455 Pa. 205, 314 A.2d 299 (1974), and Commonwealth v. Candia, 286 Pa.Super.Ct. 282, 428 A.2d 993 (1981), do not establish a per se rule, those cases nevertheless should control our decision here, as the trial court noted. In Zapata, the Supreme Court cautioned that before defense counsel introduces evidence of prior crimes, “counsel should be convinced that such evidence is available to the prosecution____ In the absence of such certainty, counsel would be acting ‘ineffectively’ ...,” 455 Pa. at 208, 314 A.2d at 301. And in Candía this court equally decisively rejected the “strategy” of introducing evidence of a prior conviction to establish credibility when, as here, the conviction was not for a crimen falsi.

The majority’s suggestion that appellant placed his character as a non-violent person in issue through his wife’s testimony is not persuasive. Even if he did, since his prior convictions were for non-violent offenses, they would not have been available for impeachment. But in any case, counsel could have had no reasonable basis to suppose that he would serve appellant’s interest by introducing evidence of appellant’s character, whether through the wife’s testimony or through proving appellant’s prior criminal record.

The order granting a new trial should be affirmed.

      . We note that Commonwealth v. Brown, supra, is no longer an accurate statement of the law in our Commonwealth. The court in Brown relied on the holding in Commonwealth v. Lee, 262 Pa.Super.Ct. 280, 396 A.2d 755 (1978) for its decision. Subsequently, Lee has been overruled by an en banc decision of this court, Commonwealth v. Thompkins, 311 Pa.Super.Ct. 357, 457 A.2d 925 (1983) in which I dissented.


author: PER CURIAM: WIEAND, Judge, BROSKY, Judge, SPAETH, President Judge, DEL SOLE, Judge,

text:
    492 A.2d 1138
    COMMONWEALTH of Pennsylvania v. Wayne THORPE, Appellant.
    Superior Court of Pennsylvania.
    Argued July 23, 1984.
    Filed May 10, 1985.
    Richard P. Hunter, Jr., Philadelphia, for appellant.
    Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before SPAETH, President Judge, and WICKERSHAM, BROSKY, WIEAND, CIRILLO, DEL SOLE, MONTEMURO, JOHNSON, and POPOVICH, JJ.
   PER CURIAM:

Today we decided that double jeopardy principles do not bar reprosecution of appellant’s co-defendant on charges arising from the killing of Zollie Perry. Appellant raises the identical issue decided in that case, and we therefore affirm on the basis of Commonwealth v. Simons, 342 Pa.Super. 281, 492 A.2d 1119 (1985).

Order affirmed.

WIEAND, J., files a concurring opinion.

BROSKY, J., joins, and files a concurring statement.

DEL SOLE, J., files a dissenting statement in which POPOVICH, J., joins.

SPAETH, President Judge, files a dissenting statement.

WIEAND, Judge,

concurring:

I concur for reasons appearing in my concurring opim m in Commonwealth v. Simons, 342 Pa.Super. 281, 492 A.2d 1119 (1985).

BROSKY, Judge,

concurring:

I concur on the basis of my Concurring Opinion in Commonwealth v. Simons, 342 Pa.Super. 281, 492 A.2d 397 (J. 1927/83, filed May 10, 1985).

SPAETH, President Judge,

dissenting:

I dissent for the reasons stated in my Dissenting Opinion in Commonwealth v. Simons, 342 Pa.Super. 281, 492 A.2d 1119 J. E4001/84 (filed May 10, 1985).

DEL SOLE, Judge,

dissenting:

I dissent for reasons discussed in my Dissenting Opinion in Commonwealth v. Simons, 342 Pa.Super. 281, 492 A.2d 1119 J. E4001/84; filed May 10, 1985).

POPOVICH, J., joins.


author: BROSKY, Judge:

text:
    492 A.2d 1139
    COMMONWEALTH of Pennsylvania, Appellant, v. Edward R. DAVIES.
    Superior Court of Pennsylvania.
    Argued Aug. 7, 1984.
    Filed May 17, 1985.

      Dara A. Decourcy, Assistant District Attorney, Pittsburgh, for Com., appellant.
    David J. Greenberg, Pittsburgh, for appellee.
    Before BROSKY, WATKINS and HESTER, JJ.
   BROSKY, Judge:

This is an appeal from an order entered granting appellee’s motion to dismiss. Appellant contends that the trial court erred in dismissing a charge of vehicular homicide brought against appellee, because appellant violated Pa.R. Crim.P. 1100 and 18 Pa.C.S. § 110. We agree with appellant and, accordingly, reverse the order of the trial court and remand the case for trial.

On June 14, 1981, a criminal complaint was filed charging that appellee, Edward P. Davies, operated a motor vehicle while under the influence of alcohol. Appellee was the driver of a van which struck a pedestrian, Michael McDonough.

On June 17, 1981, Mr. McDonough died from the injuries that he had received. On June 20, 1981, a second criminal complaint was filed, charging appellee with homicide by vehicle.

On July 1, 1981, a preliminary hearing was held on both complaints. The magistrate dismissed the charge of homicide by vehicle for the Commonwealth’s failure to state a prima facie case and held the appellee for court on the charge of driving under the influence.

An information was then filed charging appellee with driving under the influence, and the case was listed for trial. The District Attorney subsequently recommended appellee for placement in the Accelerated Rehabilitative Disposition program (A.R.D.). The court approved a one year probation for appellee and other related penalties. All of the conditions of the A.R.D. program were successfully completed by appellee on October 31, 1982.

On October 2, 1982, a new Criminal Complaint was filed charging appellee with the summary offense of driving at an unsafe speed and homicide by vehicle. This filing was based upon new evidence volunteered to the Commonwealth by witnesses to the incident. These witnesses informed the police of their knowledge in September of 1982.

On October 21, 1982, the appellee was charged by information with homicide by vehicle. Counsel for appellee, on November 17, 1982, filed an omnibus motion in which he sought dismissal of the criminal information, alleging that by calculating the period of the rule from the filing of the first complaint on June 14, 1981, Rule 1100 had been violated. Appellee further alleged that prosecution was barred based upon 18 Pa.C.S. § 110.

On November 24, 1982, a hearing was held on appellee’s motion. On that date, the court granted the petition, finding violations of both Rule 1100 and 18 Pa.C.S. § 110. The trial court’s rationale for rendering this decision was that the Commonwealth was not diligent in its investigation and that it intentionally failed to summon known witnesses in an attempt to circumvent Rule 1100. The Commonwealth timely filed this appeal from the order dated November 24, 1982.

Appellant argues that the lower court erred in dismissing the complaint pursuant to Rule 1100, and that the proper method of computation of the 180-day period of Rule 1100 was to begin calculating the time from the filing of the second complaint. A substantial number of cases dealing with the effect of Rule 1100 in a first complaint/second complaint solution have generally applied the “Mumich-Braithwaite” test, reflecting the holdings of Commonwealth v. Mumich, 239 Pa.Super. 209, 361 A.2d 359 (1976) and Commonwealth v. Braithwaite, 253 Pa.Super. 447, 385 A.2d 423 (1978). The rule promulgated in these cases was that the 180-day period would begin to run again upon the filing of a subsequent complaint providing that two prerequisites were met: (1) the first complaint had been properly dismissed, and (2) the record did not disclose evidence on the part of the Commonwealth to circumvent Rule 1100.

The case which has been cited as first modifying this test is Commonwealth v. Johnson, 487 Pa. 197, 409 A.2d 308 (1979). In Johnson, a complaint was filed and the matter was presented to a grand jury which dismissed the indictment for lack of evidence. After procuring additional evidence the Commonwealth re-presented the matter to a new grand jury which approved the indictment. The Supreme Court held that in such a situation the period between the two indictments should be tolled for purposes of Rule 1100, i.e., that the period of time between the two indictments would be excluded from the calculation of the Rule 1100 period. However, the Supreme Court, in the case of Commonwealth v. Genovese, 493 Pa. 65, 425 A.2d 367 (1981), recognized that Johnson did not involve a first complaint/second complaint situation. In Genovese, a district justice dismissed the first complaint for lack of a prima facie case. Upon the filing of a second complaint a second district justice held the case for trial. The Genovese court refused to extend the Johnson “tolling” approach to the first complaint/second complaint situation and reaffirmed the viability of the “Mumich-Braithwaite” standard.

However, in Commonwealth v. Navarro, 499 Pa. 279, 453 A.2d 308 (1982), and Commonwealth v. Leatherbury, 499 Pa. 450, 453 A.2d 957 (1982) the Supreme Court, in two short opinions, calculated the Rule 1100 period in a first complaint/second complaint situation by use of the Johnson “tolling” rationale. In other words, it began calculating the Rule 1100 period from the filing of the first complaint but excluded the time between the dismissal of that complaint and the filing of the second complaint.

A comparison of the Johnson “tolling” rationale and the “Mumich-Braithwaite” test indicates that, under either approach, two prerequisites must be met: that the first complaint has been properly dismissed, and that the record reveals no evidence that the Commonwealth attempted to circumvent Rule 1100. Thus, the only practical difference between the two approaches is whether the time between the filing of the first complaint and the dismissal of that complaint is included in the calculation of the Rule 1100 period.

In both Navarro and Leatherbury the same result would have resulted through the use of either the Johnson approach or the “Mumich-Braithwaite” test. Additionally, we note that nowhere in Navarro or Leatherbury does the court expressly overrule its holding in Genovese. While it would seem that under these circumstances Genovese thus still governs the method of calculating the Rule 1100 period where the prerequisites discussed above have been met, we need not decide this issue, for, in the instant case, the same result would be obtained by use of either the Johnson or the “Mumich-Braithwaite" method of calculation. Under either method the Rule 1100 period would not have been exceeded by the Commonwealth.

The first prerequisite of “Mumich-Braithwaite” is that the first complaint was properly dismissed. “[0]ur Court ... has interpreted ‘ “[pjroper dismissal” ... to mean that proceedings on the charges contained in the complaint were dismissed by a competent magisterial or judicial authority who committed no error of law in doing so. This would include, we think, dismissal for failure to make out a prima facie case’. Commonwealth v. Ardolino, supra [304 Pa.Super. 268] at 276, 450 A.2d [674] at 679, quoting Commonwealth v. Brennan, supra [264 Pa.Super. 206] at 210, 399 A.2d [739] at 741.” Commonwealth v. McClain, 325 Pa.Super. 29, 31, 472 A.2d 630, 631 (1984).

Instantly, while a prima facie case of driving under the influence was established at the preliminary hearing on the first complaint, the statements of the witnesses did not suggest the presence of the causal connection between that motor vehicle code violation and the victim’s death necessary to establish a prima facie case of homicide by vehicle. Thus, we find that that charge was properly dismissed.

The second prerequisite is that the record discloses no evidence on the part of the Commonwealth to circumvent Rule 1100. The Commonwealth contends that its failure to prove a prima facie case of homicide by vehicle did not reflect an intention to circumvent Rule 1100, but was simply the result of the fact that its interviews with the witnesses did not produce evidence of a causal connection between the offense of driving under the influence and the victim’s death or any evidence that the van was traveling at an unsafe speed. It argues that it later received new evidence from two witnesses that suggested that appellee was traveling at an excessive rate of speed and that the victim was not able to avoid the impact. The Commonwealth also notes that, after the dismissal of the homicide by vehicle charge, the record discloses that the investigation continued during September and October of 1981, before the Commonwealth recommended ARD disposition, but contends that no additional evidence was discovered.

At the preliminary hearing of July 1, 1981, one eyewitness, David Lewanewsky, testified for the Commonwealth. He testified favorably toward appellee, stating that while he was uncertain of the van’s speed, he estimated it to be between fifteen and twenty-five miles per hour.

At the coroner’s inquest of October 1, 1982, the only passenger in appellee’s van at the time of the accident, Patrick Megarry, testified as follows:

Q. Do you remember talking to the police back on June 14 of last year, 1981?
A. Not really.
Q. Do you remember giving the police a statement? A. Yes, kind of, just for a minute. We only talked about a minute.
Q. Do you remember what you told the police when you talked to them last year?
A. I don’t know exactly.
Q. Mr. Megarry, the police officers stated that you said you were going down Voscamp Street, travelling west and going about 20 miles per hour, and you noticed some people talking out in the street near the curb. Would that be a correct statement of what you said last year to the police officers?
A. Yes, probably.
Q. Do you remember saying that?
A. I don’t remember saying it, but if they’ve got it down, I guess I said it.
Q. Do you remember giving the police an estimate as to how fast the van was going?
A. I don’t remember exactly telling them right there, but I guess I did.
Q. Do you remember telling the police that this man, as you describe him, stepped out in front of the van when you were about four feet away from him?
A. Not really.
Q. Do you remember talking to the police this year? A. Yes.
Q. Back on September 16, 1982?
A. Yes.
Q, Do you drive a car?
A. Yes.
Q. How long have you been driving?
A. I guess nine years.
Q. Could you see the speedometer of the van that day from where you were seated?
A. No.
Q. Do you know approximately how fast that van was going down Voscamp Street?
A. I’d say about 35 or 40 miles an hour.

Also testifying at the inquest was another eyewitness, John Klinger, who stated the following:

Q. Mr. Klinger, do you recall being interviewed by the Pittsburgh police on September 15, 1981?
A. Yes.
Q. Do you remember what you told the police about what the speed of the van was?
A. I remember everything I said.
Q. What did you tell the police was the speed of the van at that time?
A. I said 20 miles an hour.
Q. You were re-interviewed by the police on September 13, 1982, about three weeks ago, were you not?
A. Yes.
Q. And you told them what speed at that time?
A. Forty-five or 50. No less than 45.
Q. Isn’t it also true that you told the police that on September 15, 1981 that you did not actually see Mr. McDonough get hit?
A. Yes, I said that.
Q. Would you agree when I state that the two stories you told are different?
A. They are not different. They are similar. I didn’t want to get involved, so I didn’t say too much, because then I would be sitting here and having to say it. So I didn’t tell too much. I only told enough not to get myself sitting right here.
Q. There’s a big difference between 25 miles an hour and 45 miles an hour. Would you agree?
A. Yes. I didn’t want to get involved.
Q. What caused you to change your mind?
A. His mother come down. She was crying and everything. Eddie ain’t no friend of mine, anyway. So she asked me would I talk. I talked. She asked questions. Everyone started telling her the truth.
She said, Why didn’t youns tell it then? I told her, I says, the families were being friendly. Why should I get involved? If you people ain’t going to be mad about it, I’m not going to be mad.

The court concluded that these two witnesses “originally told the investigating officers that the Defendant was driving within the speed limit, but now claim he was exceeding it and that the deceased did not accidentally get in the way of the vehicle, but was run down by the Defendant.” However, the lower court also speculated that since there were many witnesses to the incident, the Commonwealth’s failure to establish a prima facie case of vehicular homicide was due to either an intentional attempt to circumvent Rule 1100 by failing to summon known witnesses or the result of a failure to properly investigate the incident.

The latter assumption would not violate the second requirement of “Mumich-Braithwaite.” Investigative ineptitude is not the equivalent of an intentional attempt to circumvent Rule 1100. See McClain, supra.

The former assumption is simply not supported by the record and no reference to the record is made in support of it. It is inconsistent with the lower court’s finding that Klinger and Megarry had initially lied to the investigating officers. It is also inconsistent with the Commonwealth’s continuing investigation after the dismissal of July 1, 1981. Such investigation would make little sense if it is assumed that the Commonwealth had already discovered witnesses who could establish a prima facie case of vehicular homicide.

This Court is only bound by a trial court’s factual findings if they are supported by the record. Commonwealth v. Johnson, 310 Pa.Super. 385, 456 A.2d 988 (1983). Since we conclude in this case that the lower court’s finding that the Commonwealth intentionally attempted to circumvent Rule 1100 is not supported by the record, we find that the second prerequisite of “Mumich-Braithwaite ” was met.

Appellee, however, citing Commonwealth v. Earp, 476 Pa. 369, 382 A.2d 1215 (1978) (plurality), argues that, despite the fact that both prerequisites were met, neither the “Mumich-Braithwaite” or the Johnson method of calculating the Rule 1100 period should be used in the instant case because, unlike those cases, not all of the charges in the instant first complaint were dismissed. In Earp, the defendant was arrested and charged with murder, conspiracy and other offenses arising from a shooting. At a preliminary hearing the murder and conspiracy charges were dismissed because of the Commonwealth’s failure to prove a prima facie case. Later, appellant was again charged with murder and conspiracy. A plurality of the Supreme Court opined that the 180-day period must be measured continuously from the date of the filing of the first complaint since only some of the charges were initially dismissed, while the defendant was held in continuous custody on other charges arising from the same criminal episode. “This continuous confinement was the crucial factor in discharging the defendant, even though the murder and conspiracy charges were later refiled and the trial was commenced within 180 days of that date.” Genovese, 493 Pa. at 70, 425 A.2d at 370 (dicta), quoting Commonwealth v. Cartagena, 482 Pa. 6, 19, 393 A.2d 350, 357 (1978) (plurality) (dicta).

We believe that the case sub judice is distinguishable from Earp. Here, appellant was placed in the A.R.D. program. We do not believe that the A.R.D. program is the equivalent of “continuous confinement” as referred to in Earp. Enrollment in the program is pursuant to a conditional agreement to dismiss charges at a specified future time. Commonwealth v. Kindness, 247 Pa.Super. 99, 371 A.2d 1346 (1977). Admission into the A.R.D. program places criminal proceedings in abeyance, subject to renewal. Commonwealth v. Krall, 290 Pa.Super. 1, 434 A.2d 99 (1981). We conclude that such a program does not constitute the “continuous confinement” which was crucial in the Earp court’s decision to calculate the Rule 1100 period continuously from the date of the filing of the first complaint.

Even if the A.R.D. program were to be considered “continuous confinement”, we do not believe appellant’s argument would prevail. It is clear from the record that the Commonwealth did not know of evidence that would have established a prima facie case of homicide by vehicle at the time of the filing of the first complaint. We think it would be unfair to the Commonwealth for the Rule 1100 period to run continuously from the filing of the first complaint on charges filed in a second complaint arising from the same criminal episode even where the defendant is held to answer for charges in the first complaint, when the Commonwealth is not aware at the time of the filing of the first complaint of evidence that would establish a prima facie case for the charges in the second complaint. Thus, we conclude that, despite that fact that all the charges in the first complaint were not initially dismissed in the case at bar, the proper method for calculating the Rule 1100 period was that of either “Mumich-Braithwaite” or Johnson. As noted above, under either method, the Rule 1100 period would not have been exceeded by the Commonwealth.

Appellant also contends that 18 Pa.C.S. § 110 did not provide a correct alternative basis for the lower court to grant appellee’s motion for dismissal. Section 110 provides in relevant part as follows:

§ 110. When prosecution barred by former prosecution for different offense.
Although a prosecution is for a violation of a different provision of the statutes than a former prosecution or is based on different facts, it is barred by such former prosecution under the following circumstances:
(1) The former prosecution resulted in an acquittal or in a conviction as defined in section 109 of this title (relating to when prosecution barred by former prosecution for the same offense) and the subsequent prosecution is for:
(i) any offense of which the defendant could have been convicted on the first prosecution;
(ii) any offense based on the same conduct or arising from the same criminal episode, if such offense was known to the appropriate prosecuting officer at the time of the commencement of the first trial and was within the jurisdiction of a single court unless the court ordered a separate trial of the charge of such offense;

Appellant argues that, by its own terms, § 110 does not apply to the instant case. We agree.

First, admission into the A.R.D. program is not equivalent to a conviction under any circumstances, Com monwealth v. Knepp, 307 Pa.Super. 535, 453 A.2d 1016 (1982), nor is successful completion of the program equivalent to a finding of innocence, Commonwealth v. McSorley, 335 Pa.Super. 522, 485 A.2d 15 (1984). Therefore, 18 Pa. C.S. § 110(1) does not apply to the case at bar.

Even if the A.R.D. program were within the contemplation of § 110(1), as previously discussed, the record does not indicate that the prosecuting officer knew of the information which could have established the charge of vehicular homicide at the time the A.R.D. program commenced. Therefore, § 110(1) would still not preclude prosecution on that offense.

Given our conclusion that appellant violated neither Rule 1100 nor § 110, we will remand this case for trial.

Order reversed. Case remanded. Jurisdiction relinquished.

      . 75 Pa.C.S. § 3731.

      . 75 Pa.C.S. § 3732.

      . 75 Pa.C.S. § 3361.

      . Indeed, while in Navarro the Supreme Court discusses Genovese, it only notes that the result it reaches would have been the same under Genovese.

      . The analysis used by the Supreme Court in Leatherbury casts some doubt on the continuing viability of the second prerequisite of “Mumich-Braithwaite" in cases where the first complaint is dismissed rather than withdrawn through use of the nolle prosequi procedure. In Leatherbury the court stated the following:
      Since the Superior Court’s decision in the present case, this Court has held that Rule 1100 should be tolled between the dismissal of a first complaint and the filing of a second complaint, except where "there is an obvious attempt to evade the requirements of Rule 1100(c) [ (governing applications of the Commonwealth for extensions of time) ] through the use of the nolle prosequi procedure.” Commonwealth v. Johnson, 487 Pa. 197, 204, 409 A.2d 308, 311 (1979). Accord, Commonwealth v. Navarro, 499 Pa. 279, 453 A.2d 308 (1982). Because the charges contained in the first complaint were dismissed, the period between the dismissal and the filing of the second complaint is properly excluded under Rule 1100. With this exclusion, it is clear that appellee was tried in compliance with the Rule.

        Id., 499 Pa. at 453, 453 A.2d at 958.
      Thus, the Leatherbury court appears to have drawn a distinction between those cases in which the first complaint is withdrawn by the Commonwealth by use of the nolle prosequi procedure and those in which it is dismissed by the court. It implies that the Rule 1100 period will run continuously from the filing of the first complaint only where the Commonwealth withdraws the first complaint by use of the nolle prosequi procedure and that procedure is obviously used to attempt to evade the requirements of Rule 1100. It further implies that, if the complaint is instead dismissed, the Rule 1100 period will not run continuously from the first complaint even if the dismissal was the result of an effort by the Commonwealth to circumvent Rule 1100. See Leatherbury, supra. (O’Brien, C.J. dissenting). While such a holding would certainly seem somewhat incongruous and would overrule a large body of case law, see Ardolino, supra, we need not decide whether this is indeed the holding of Leatherbuiy since, as discussed infra., the record reveals no attempt by the Commonwealth to circumvent Rule 1100 by having the charges in the first complaint dismissed.

      . It is apparent from the transcripts of the proceedings below that the lower court believed that the Commonwealth would be wasting the court’s time by prosecuting this case since it stood little chance of achieving a conviction in light of the inconsistent statements made by its witnesses. While we may agree as to the likelihood of the Commonwealth winning a conviction, that was, of course, not relevant to appellee’s motion to dismiss.

      . We note that, in any event, Earp, as a plurality decision, does not, of course, constitute binding precedent. See Commonwealth v. Scott, 279 Pa.Super. 8, 420 A.2d 717 (1980).

      . Cf. Commonwealth v. Warren, 313 Pa.Super. 390, 459 A.2d 1285 (1983). In Warren, two criminal complaints were filed against the defendant as a result of an automobile collision. The first charged him with driving under the influence. The second, filed 10 days later contained, inter alia, charges of involuntary manslaughter and homicide by vehicle. A panel of this Court held that the defendant’s Rule 1100 claim had been waived. However, in dicta, two members of the panel agreed that under Earp, the 180 day period of Rule 1100 ran continuously from the filing of the first complaint on all charges arising from the automobile collision. We do not believe Warren
        governs the instant case since, first, its discussion of the Rule 1100 issue was dicta, and second, the facts of that case indicate that the Commonwealth knew of evidence at the time of the filing of the first complaint which would have established a prima facie case for the charges in the second complaint.

      . 18 Pa.C.S. § 109, which defines the terms acquittal and conviction as used in § 110 provides in relevant part that:
      (1) ... There is an acquittal if the prosecution resulted in a finding of not guilty by the trier of fact or in a determination that there was insufficient evidence to warrant a conviction. A finding of guilty of a lesser included offense is an acquittal of the greater inclusive offense, although the conviction is subsequently set aside.
      (3) ... There is a conviction if the prosecution resulted in a judgment of conviction which has not been reversed or vacated, a verdict of guilty which has not been set aside and which is capable of supporting a judgment, or a plea of guilty accepted by the court. In the latter two cases- failure to enter judgment must be for a reason other than a motion of the defendant.

      . Even this analysis gives appellee the benefit of what can only be termed an unwarranted assumption that the commencement of an A.R.D. program is the equivalent of the commencement of a trial.