Commonwealth v. Washington , 492 Pa. 572 ( 1981 )

ROBERTS, Justice,

concurring.

According to the majority, appellant “admits” that the record supports the conclusion that the prosecutor had no “intention of aborting the trial and causing another.” To the contrary, in his brief at page 11, appellant states: “Although Judge Latrone may have been correct in concluding that the prosecutor did not intend in bad faith to cause the mistrial, the Commonwealth’s conduct generally in this case reflects such a callous disregard for the defendant’s right to a fair trial that it amounts to the type of prosecutorial overreaching that should bar the Commonwealth from trying the defendant a third time.” That this argument does not concede the absence of bad faith is obvious. That there was, for the second time, prosecutorial misconduct in appellant’s case is equally obvious. Nevertheless, because the prosecutor’s misconduct in this trial does not rise to a level which would bar appellant’s retrial by reason of double jeopardy, see Commonwealth v. Starks, 490 Pa. 336, 416 A.2d 498 (1980), I agree that the order of the court of common pleas must be affirmed.