For the Defense - Vol. 6, Issue 1 - 38

recovered a red baseball cap. Testing of both caps
revealed that the victim's blood was discovered
underneath the brim of the black cap and that the
defendant contributed DNA to the sweatband of
the red cap.
At the time of trial, the Commonwealth only
referenced the red baseball cap and proceeded to
introduce evidence that this cap contained both
the victim's blood and the defendant's DNA. The
lead crime scene investigator testified that he
saw the victim's blood on the red cap, and the
Commonwealth's blood forensic scientist testified
that both the victim and the defendant's DNA were
found on the hat. The Commonwealth also argued
that the presence of the victim's blood on the red
cap proved that the cap belonged to the killer and
that the shooting occurred at close range. The
defense never challenged this evidence, and the
jury convicted the defendant and sentenced him
to death.
Defendant sought PCRA relief after a defense
open records request caused the crime lab to
generate a forensic report in 2011. This report
revealed that two hats, each with a distinct
property number, had been analyzed and that
only the black baseball cap contained the victim's
blood. The parties agreed that the defendant was
entitled to a new trial, and the Commonwealth
withdrew its request to seek the death penalty.
During subsequent discovery proceedings,
the trial court heard testimony from multiple
Commonwealth witnesses including the lead
investigator, the forensic scientist, and the
prosecutors. The testimony showed that the
Commonwealth " misunderstood its own evidence
and conflated the findings relating to the red and
black caps. " 7 The defendant sought to bar re-trial.
While the trial court recognized that the trial was
a " farce, " 8 the trial court credited the testimony
that the mistakes were unintentional. It further
concluded that only intentional misconduct bars a
re-trial under Pennsylvania law.
The defendant filed an interlocutory appeal, and
the Superior Court affirmed. While the Superior
Court characterized the government's actions as
" egregious " and " intolerable " , it concluded that the
conduct " did not rise to the level of intentionality
required to bar further prosecution. " 9

For The Defense l Vol. 6, Issue 1

After granting allowance of appeal, the Supreme
Court reviewed the development of federal and
state case law as to double jeopardy protections
and considered jurisprudence from its sister courts.
The Court determined that the double jeopardy
" prohibition is not primarily intended to penalize
prosecutorial error, but to protect citizens from the
embarrassment, expense and ordeal of a second
trial for the same offense and from compelling
them to live in a continuing state of anxiety and
insecurity, as well as enhancing the possibility that
even though innocent they may be found guilty. " 10
Further, it emphasized, " [w]hen the government
engages in improper actions sufficiently damaging
to undercut the fairness of a trial, it matters little
to the accused whether such course of action
was undertaken with an express purpose to have
that effect or with a less culpable mental state. " 11
Ultimately, the Court held that, in addition to
prosecutorial tactics designed to provoke a mistrial
or to deny the defendant a new trial, Article
I, Section 10 of the Pennsylvania Constitution
protects against prosecutorial misconduct that is
undertaken recklessly, that is, " with a conscious
disregard for a substantial risk " that it will deprive
the defendant of a fair trial.12
In sum, the Supreme Court concluded that the
prosecution's " almost unimaginable mistakes, "
which " dovetailed with other serious errors by lawenforcement officers " and the DNA lab technician,
were " strongly suggestive of a reckless disregard
for consequences and for the very real possibility
of harm stemming from the lack of thoroughness
in preparing for a first-degree murder trial. " 13 The
Supreme Court reversed the Superior Court and
remanded for the entry of an order barring re-trial.

Commonwealth v. McClelland, 233 A.3d 717 (Pa.
filed July 21, 2020)
In McClelland, the Supreme Court sought to
clarify the precedential value of its prior holding
in Commonwealth ex rel. Buchanan v. Verbonitz14
in which five Justices held that hearsay alone is
insufficient to establish a prima facie case at a
preliminary hearing.
The Commonwealth charged McClelland with
sexual offenses against a minor child and sought
to establish the elements of each of the offenses
at the preliminary hearing by solely presenting
the testimony of a trooper who had witnessed

For the Defense - Vol. 6, Issue 1

Table of Contents for the Digital Edition of For the Defense - Vol. 6, Issue 1