Commonwealth v. Anderson, 2011 Pa. Super. 223 (2011) (en banc)

Holding: Prosecutorial misconduct that occurs after a trial but before a retrial can serve to bar the retrial under the double jeopardy clause of the Pennsylvania Constitution.

Summary:  Anderson was employed as a residential service aide at the Polk Center State Hospital, a facility that houses mentally challenged patients.  While there, he repeatedly sexually abused three of the residents.  In 2000, was caught in an abandoned cottage on the property by a coworker, and an investigation was begun.  Later that year he was charged with multiple counts of involuntary deviate sexual intercourse and indecent assault.

At Anderson's first trial, the jury returned a verdict of guilty with respect to one of his victims, but was deadlocked with respect to the other two.  He was retried, found guilty, and appealed.  The Superior Court concluded that the prosecutor's closing argument - which included intemperate language and simulated masturbation in defendant's direction - was misconduct.  As a result, the Court vacated Anderson's judgment of sentence, and remanded the matter for retrial.

Prior to his third trial, Anderson moved the court to hold a competency hearing to evaluate his mentally challenged victims' ability to independently recall their abuse.  At the hearing the Commonwealth questioned the victims extensively about their favorite sports teams, the players on those teams, and on the outcome of recent games.  The witnesses answered correctly.

On cross-examination, however, the defense asked:

COUNSEL: Did he tell you what the answer to the sports questions were?
WITNESS: Yes.
COUNSEL: Did he go over these specific questions he was going to ask you?
WITNESS: Yes.
COUNSEL: Did he tell you what the answers should be?
WITNESS: Yes.

On this basis, the trial court concluded that the witnesses had been improperly coached, and scheduled a second competency hearing.  It further ordered that the prosecution was to have no contact with the victims without a psychiatrist present, and that the prosecution was to keep a log of its meetings with the victims, which was to be handed over to the defense.

At the next competency hearing, the defense moved for a mistrial on the grounds of prosecutorial misconduct, alleging that the prosecution had had additional meetings with the victims, that they were not noted in a log, and that a log had not been provided.  The trial court noted that the case had been plagued with prosecutorial misconduct from early on, and dismissed the charges.  The Commonwealth agreed.

The Superior Court, sitting en banc, affirmed the decision of the trial court, and held that "the prosecutor's actions constituted an overall pattern of misconduct designed to violate [Anderson's] right to a fair trial."  The cumulative effect of this misconduct denied Anderson a fair trial and therefore, the Court reasoned, dismissal based on double jeopardy was appropriate.