concurring:
While I believe the prosecution’s misconduct bars retrial, this writer takes the opportunity to comment on the factual setting of the case for the purpose of giving courts of this Commonwealth some guidance in cases where prosecutorial *13misconduct has been alleged.1 This is consistent with the dictates of the United States Supreme Court as well as our own high Court that “ ‘appellate tribunals have the duty to make an independent evaluation of the circumstances[ ]” attendant to claims of prosecutorial misconduct (i.e., overreaching or bad faith). Commonwealth v. Cohen, 489 Pa. 167, 179, 413 A.2d 1066, 1073 (1980) (quoting Shepphard v. Maxwell, 384 U.S. 333, 362, 86 S.Ct. 1507, 1522, 16 L.Ed.2d 600 (1966). Cf. Commonwealth v. Tolassi, 489 Pa. 41, 51-53, 413 A.2d 1003, 1008 (1980) (although findings of the trial court were not in error appellate court conducted its own independent evaluation of the facts).
It is a rare instance, indeed, in which a prosecutor openly admits to intentionally aborting the trial with the injection therein of highly prejudicial information consonant with prosecutorial misconduct. Therefore, close attention must be paid to the factual setting surrounding the complained of conduct. This case provides this Court with such an opportunity.
*14The guidelines adopted by the majority, as originally set forth in Commonwealth v. Clark, 287 Pa.Super. 380, 394, 430 A.2d 655, 663 (1981), with one exception, are relevant to indicate the presence or absence of bad faith on the part of the prosecution.2 Notwithstanding the fact that the list is not exhaustive, these guidelines, when applied to the facts before us, support a finding of bad faith intent.
First of all, the prosecution’s case was neither abundant nor convincing as the key prosecution witness, the victim, could only testify having seen two of the five defendants immediately before the incident occurred. But see Commonwealth v. Washington, 492 Pa. 572, 424 A.2d 1340 (1981); Commonwealth v. Potter, 478 Pa. 251, 386 A.2d 918 (1978) (Opinion in Support of Affirmance); Commonwealth v. Wright, 439 Pa. 198, 266 A.2d 651 (1970); Commonwealth v. Myers, supra; Commonwealth v. Simms, 284 Pa.Super. 528, 426 A.2d 620 (1981); Commonwealth v. Rios, 246 Pa.Super. 479, 371 A.2d 937 (1977). According to the victim’s uncorroborated testimony, defendants Ross and Johnston approached him one evening while watching television in the trustees’ room.3 (N.T. 40) They asked him to go into the *15next room, which was the chapel room. (N.T. 41) When the victim refused, he was led by the arm into the room and forced to perform a sexual act on Johnston. (N.T. 40, 45) Defendant Ross repeated Johnston’s demands, and the victim once again was forced to perform a sexual act. (N.T. 45)
Moments later, defendants, Turner, Anderson, and Bryant in turn entered the room.4 (N.T. 48, 51) Turner then approached the victim, and the sexual activity continued. Bryant followed. After Bryant was finished, defendant Anderson told the victim “to get up and pull [his] pants down and lean over the ping-pong table”. (N.T. 52-53) When his pants were down, “Anderson was behind. . . [and] stuck a broomstick ... in [the victim’s] rectum.” (N.T. 54) The victim then was forced onto a cot from behind and his clothes removed. (N.T. 57) The scenario continued with “[a]ll five of the inmates” penetrating the victim, “after one got off, the other got on, they just told each other to get on, and they kept taking turns.” (N.T. 60) The inmates all left the room, which was approximately two hours after the victim’s initial entry into the room. (N.T. 60)
At no time during the entire episode could the victim see who was forcing him to engage in sexual activity because the room was dark. The sole source of light in the chapel room came from the reflection of a television in an adjoining room. This light was visible from the opening and closing of the connecting door. Because he would have been able to see from the television light if the door had been opened, the victim only could say positively that nobody left the room once they had entered except when the cot was brought in.
*16The remainder of the prosecution’s case consisted of a physician’s testimony concerning an examination the victim had the day after the incident. His testimony established that the laceration observed on the victim could have been caused with a reasonable degree of medical certainty by the insertion of an object into the anus.5 (N.T. 112)
No one else testified on behalf of the prosecution because the prosecution’s attempt to strengthen its case was undermined by Charles Valentine, a potential witness, who persistently refused to testify. Thus, things were going badly at trial for the prosecution. But see Commonwealth v. Simms, supra; Commonwealth v. Thomas, 270 Pa.Super. 375, 411 A.2d 767 (1979).
This was the second trial; the first trial had ended in a mistrial due to the prosecution’s attempt to call Valentine as a surprise witness. After the testimony of the physician was presented during the second trial, and the prosecution was about to close its case, the court excused the jury and said the following in open court:
“The reason I am staying, the reason the lawyers are staying, the second matter that was mentioned at the time we were at Sidebar, suggested by counsel and agreed on by the Court, relates to all the rest of you who are here in the Court Room. The matter that will be preliminarily considered is going to be an In Camera hearing relative to the possible next witness of the prosecution. For that reason, no one other than the counsel, the defendants, the prosecution, the prosecutor’s assistant, and the Stenographer and myself will be in the Court Room. I mention this because I know that there is always a concern with whether or not there should be a public hearing, a public trial. There will be a public hearing and public trial, but certain matters must be considered preliminary and properly are considered out of the presence of the public. If *17the matter is presented to the jury, the public is involved, because the jury will then consider it and the public will be able to hear it. But the matter that we will discuss beginning at 1:15 is going to an In Camera hearing relative to the next possible witness’s testimony. We will recess until 1:15, when I want to see counsel.” (N.T. 119-120) (Emphasis added)
An in camera hearing followed. The court determined at the hearing that Valentine would not be able to invoke the Fifth Amendment and ordered Valentine to testify because he would be Immune from prosecution. A recess was held so that Valentine could consult with his attorney. When the proceedings resumed, Valentine testified as follows:
[Prosecution]
Q Did you understand the nature and extent of the Immunity Order that Judge Mannix issued?
[Valentine]
A Yes, I did.
Q Did you discuss the matter with your attorney, Mr. Rabik?
A Yes.
Q Did Mr. Rabik explain to you the ramifications of the failure to comply with an Immunity Order issued by Judge Mannix?
A Yes.
Q Did you understand what Mr. Rabik said to you regarding the implications if you do not comply with or obey the ruling that Judge Mannix made requiring you to testify?
A Yes.
Q Did you understand that you would not be in any way tried for any matters that occurred on March 19, 1979, at the Beaver County Jail?
A Yes.
Q Understanding all of that, did you make a decision as to whether or not you would honor the ruling that Judge Mannix has made in this case?
*18A Yes, I have.
Q What is that?
A Refuse to testify.
Q And you are going to refuse, continue to refuse to testify, is that correct?
A Yes.
Q Knowing full well that there will be another proceeding based upon your failure and your refusal, your willful refusal to honor the ruling of Judge Mannix?
A Yes.
Q THE COURT: Are you finished?
[The Prosecutor]
MR. STANICHAK: Yes, your Honor.
THE COURT: Mr. Rabik is there anything you want to ask or state?
[Valentine’s attorney]
MR. RABIK: I have no questions, Your Honor.
THE COURT: Mr. Valentine, you understand my having simply issued an order directing you to testify, but if you fail to comply with that immunity order you are going to be returned to jail and you are going to be subsequently brought back before me for sentencing for contempt of my order? Do you understand that.
MR. VALENTINE: Yes.
THE COURT: And you realize you are in direct violation of my order, in what we call contempt of Court? MR. VALENTINE: Yes.
THE COURT: You realize that?
MR. VALENTINE: Yes, I do.
THE COURT: All right. I am directing the Sheriff’s Department to take you back to jail, confine him there. We will subsequently consider the matter of the contempt of this Court’s order, and that will be done at a later time after this proceeding is over. You will be returned to the jail. You will be later brought before the Court and I will decide at that time what I shall sentence you to for contempt of this order.
*19MR. VALENTINE: Yes.
(WHEREUPON, the witness was excused.) (N.T. 152 -55) (emphasis added).
Before the in camera proceeding was adjourned, the prosecution made one last motion:
“Your Honor, before we conclude, there is one matter I want to move, since the witness, Charles Valentine, has indicated that he refuses to honor the Order of the Court, that he has thumbed his nose at the Order of Court, and the law, as we understand it, and since he has been recommited back to the Beaver County Jail, we, at this time, move Your Honor that he is a witness who is unavailable. And we have his sworn statement, and we are going to move that it be introduced into evidence and be read to the Jury before the Commonwealth rests.” (N.T. 155-56) (Emphasis added)
Defense counsels for all the defendants objected to the prosecution’s motion because Valentine’s sworn statement was not subject to cross-examination. (N.T. 157) Before ruling on the motion, the court ordered a recess and said it was “inclined to think their, [defense counsels’], objection is well taken.” (N.T. 157) It was during this recess that the prosecution conversed with the reporters concerning Valentine’s sworn statement and his refusal to testify.6 When the proceedings resumed, the court denied the motion, and the prosecution rested its case. Clearly, this sequence of events *20shows that the trial was proceeding in a manner unfavorable to the prosecution. But see Commonwealth v. Simms, supra, 284 Pa.Super. at 535-36, 426 A.2d at 623, (1981) (a mistrial was declared two hours after the trial commenced, which was “long before the prosecutor could have had in his mind the thought of provoking a mistrial because of things not going his way.”) (Emphasis added). Valentine’s refusal to testify and the court’s denial of the prosecution’s motion to admit his statement substantially undermined its chances of obtaining convictions against at least three of the defendants.7
The second factor to consider is whether the prosecution’s misconduct caused serious and incurable prejudice to the defendants. The news article that the jurors read contained prejudicial information as it disclosed Valentine’s identity, his motive for refusing to testify, and the incorrect contents of his statement. This disclosure caused the mistrial because it informed the jurors of damaging inadmissible evidence. But see Commonwealth v. Palmer, 276 Pa.Super. 473, 419 A.2d 555 (1980). In our system of justice, a verdict cannot be based on inadmissible evidence; rather, it must be based on “evidence and argument in open court, and not by any outside influence, whether of private talk or public print.” Commonwealth v. Pierce, 451 Pa. 190, 199 ftn. 5, 303 A.2d 209, 212 ftn. 5 (1973) (Emphasis added). This is so because:
“Jurors are of course human beings and even with the best of intentions in the world they are in the well-known phrase of Holmes and Hughes, JJ., ‘extremely likely to be impregnated by the environing atmosphere.’ ” Commonwealth v. Pierce, 451 Pa. 190, 199 ftn. 5, 303 A.2d 209, 214 ftn. 5 (1973).
As human beings and not machines, the jury was “extremely likely to be impregnated” by the prejudicial nature of the prosecution’s disclosure. Id.
*21Next, it is appropriate to examine whether the prosecutor’s conversation with the reporters was in defiance of any “direct order or clear admonition by the trial court”. Commonwealth v. Clark, 287 Pa.Super. at 392, 430 A.2d at 661. In the instant case, the court ordered an in camera proceeding relative to the possibility of Valentine testifying. By definition, that proceeding was “not open to the public.” Black’s Law Dictionary 684 (5th Ed. 1979). Furthermore, the trial court’s statement in open court, infra at 6-7, clearly indicated that the matter was to be “considered out of the presence of the public”. (N.T. 120) This writer equates the prosecutor’s divulgence of information to the press, who had been excluded from the in camera proceeding by the court, as equivalent to defiance by the prosecutor of a direct court order. But see Commonwealth v. Potter, supra.
The prosecutor attempts to neutralize the serious nature of his misconduct by contending that although he disclosed information in a conversation with the press, it was “background information” and was not for print. A review of the record, however, also reveals an absence of any neutral explanation (i.e., trial strategy, inadvertence, or inexperience) for the prosecutor’s conduct. To begin with, the prosecution’s tactic was not proper trial strategy. See DR 7-107; See also ABA Standards Fair Trial and Free Press § 1.1, Comment 1.1 at 82-84 (Tent. Draft, December, 1966). Additionally, his explanation is an admission that the information was not given inadvertently.8 Another admission *22established that he should have known the information given to news reporters in the heat of the trial “would [be] expect[ed] to be disseminated by means of public communication”. See DR 7-107. The following admission by the prosecutor also negated any possibility that his inexperience could explain his conduct:
Q Where did you confront Barbara Stack White? [the Post-Gazette reporter]
A Before I answer that question specifically, I think that it is important for the Court to have a background before we reach the conversation that took place. During the second trial on these various rapes, homosexual rape assaults, firstly, it has been my philosophy that lawyers should not publicize or engage in any type of conversation or activities with media people because they have always completely distorted and smeared names and stories all over the place, and I have been the victim of this over a period of time. If anybody should not speak, I have to plead to this Court that I should not. With that in mind, Barbara White Stack came to my office on a number of occasions prior to the trial of the first case, and she acted *23like a lady, and I related to her what my philosophies were and further related to her that on a number of occasions she would receive information that would be of a background nature. During this period of time, she appeared to act like a lady in that total and complete regard. Now, in the first trial, there were no cautionary instructions, and a mistrial was made simply by virtue of the motion of the defense counsel, which in my judgment should not have been granted by the Court.” 10/11/79, p. 24. (emphasis added).
Under these circumstances, the prosecutor’s conversation with the reporters about the case in litigation, in which he disclosed prejudicial information, constituted deliberate prosecutorial misconduct. See Commonwealth v. Pierce, 451 Pa. 190, 303 A.2d 209 (1973).
With respect to the last factor to consider (i.e., the trial court’s observations concerning the prosecutor’s motives), the record shows that the court was inclined to believe that the prosecutor’s actions were not deliberate. In a colloquy with one of the defense counsels, the court said:
“Now, as I understand the testimony in this case, and I don’t but generally, the prosecutor revealed this information under, I think, apparently a hypothesis on his part. He was only giving background information, and he didn’t really expect it to be published. However, in fairness to the reporters involved, he didn’t say he didn’t want it published, as I understand it. There’s no evidence he said, ‘I don’t want this published.’ So, it could have been a combination of Mr. Stanichak relying on something in good faith that he may not have had a right to rely on and the reporters relying on the fact that he didn’t instruct them not to publish. So, by a possible misunderstanding on the part of Mr. Stanichak, not deliberately, but misunderstanding how he had presented this and what he himself considered to be the basis of his presentation but not making it clear to the media, this results. Now, it resulted in a situation that you agreed with Judge Mannix on. He had to grant the mistrial, and you had to move for it to *24protect your client. Now, you’re saying this has to be intentional, that we have to find that Mr. Stanichak did this intentionally?” 10/11/79, pp. 58-59. (emphasis added)
Even though the trial court’s observations as set forth above are relevant to an inquiry into bad faith intent on the part of the prosecutor, it does not follow automatically that the trial court’s observations are conclusive where the record supports a finding of prosecutorial overreaching.9 See Commonwealth v. Virtu, 495 Pa. 59, 432 A.2d 198 (1981); see also Commonwealth v. Clark, supra. Those observations are but one of a number of factors to consider in evaluating the prosecutor’s actions.
Commonwealth v. Virtu, supra, is controlling on that issue. In Virtu, the prosecutor “denied any intention to cause a mistrial or to seek unfair advantage by causing the witness to assert his Fifth Amendment privilege before the jury. He claimed that his intended questions at trial went no farther than those asked and answered at the suppression hearing.” Id., 495 at 65, 432 A.2d at 201 (footnote omitted). The trial court accepted the prosecutor’s version of the facts and concluded that the prosecution “did not deliberately provoke a mistrial. . . . ” Id., 495 at 65, 432 A.2d at 202. On appeal, our Supreme Court reversed and said that “Fagan [the prosecutor] knew, or should have known, that under the decisions of this Court, his alleged ‘good faith’ belief in the invalidity of a witnesses] contemplated assertion of his Fifth Amendment privilege was irrelevant.” Id. Similarly, in the instant case, the prosecutor should have known that his *25divulgence of information to the press was improper and might surface in public print.
To reiterate, the observations of the trial court are relevant but not conclusive of the retrial issue. In the instant case, where the evidence of guilt was not overwhelming, the prosecutor’s conduct caused serious and incurable prejudice to the defendants, there was an absence of any neutral explanation for the prosecutor’s conduct, and the prosecutor defied a direct order of court, this writer concludes that appellants may not be retried.
. The unique procedural posture of this case also deserves comment. The trial court was faced with a mistrial motion made on behalf of two of the defendants and an objection to the granting of that motion by three of the defendants. The prosecution, in chambers, moved for a mistrial as to all of the defendants. The court granted the defendant’s mistrial motion and sua sponte declared a mistrial as to the three objecting defendants. This situation is unique because “a motion by the defendant for mistrial is ordinarily assumed to remove any barrier to reprosecution, even if the defendant’s motion is necessitated by prosecutorial or judicial error.” Commonwealth v. Meekins, 266 Pa.Super. 157, 162-164, 403 A.2d 591, 594 (1979) (quoting United States v. Jorn, 400 U.S. 470, 483, 91 S.Ct. 547, 557, 27 L.Ed.2d 543, 556-57 (1971) (emphasis added) (citations omitted). On the other hand, “[wjhere a mistrial is declared in the face of an accused’s desire to continue the trial, reprosecution may be precluded, even though had the case proceeded to verdict and been reversed on appeal, no barrier to retrial would exist.” Commonwealth v. Myers, 422 Pa. 180, 192-93, 220 A.2d 859, 866 (1966) (emphasis added).
A trial court, however, need not be hamstrung when a mistrial motion has been objected to by some but not all of the defendants, because it has the power to declare a mistrial for reasons of manifest necessity when an event at trial is “prejudicial to the defendant and he elects not to move for a mistrial.” Commonwealth v. Africa, 281 Pa.Super. 419, 428 n. 14, 422 A.2d 539, 544 n. 14 (1980) (emphasis added). In the instant case, the trial court correctly handled the mistrial motion and the objections.
. This writer adopts the view set forth by Judge Hoffman in a dissenting opinion and rejects one of the guidelines formulated by the majority in this case and in Commonwealth v. Clark, 287 Pa.Super. 380, 392, 430 A.2d 655, 661 (1981). In Clark, the majority concluded that a court should consider as relevant “the absence of any actions undertaken by the prosecutor to preserve the trial and to enhance the defendant’s prospects for a fair trial after the misconduct occurred”. Id. (Emphasis added.) As the minority opinion appropriately states, this writer considers “a prosecutor’s urging that a mistrial not be granted after he has engaged in misconduct [to be] totally irrelevant in determining whether he intended to provoke a mistrial or engaged in a bad faith effort to prejudice the defendant. Moreover, reliance on such a factor may encourage prosecutors whose deliberate misconduct provokes a motion for a mistrial to attempt to prevent a successful double jeopardy claim by vigorously arguing that a mistrial should not be granted.” Commonwealth v. Clark, 287 Pa.Super. at 399, 430 A.2d at 664 (Emphasis in original).
. The trustees’ room was a room downstairs in the Beaver County Jail where all the trustees slept. (N.T. 30, 38) According to the victim, the trustees were inmates who were rewarded for their good behavior and whose responsibilities entailed “sweep[ing] the range, and tak[ing] the meals to the other inmates.” (N.T. 31) The chapel *15room was located next door to the trustees’ room and had a door which was barred by cardboard. (N.T. 41) The chapel room contained a ping-pong table and a weight set. The laundry room also was in the basement and led to the trustees’ room. (N.T. 39).
. For whatever reason, this consolidated appeal does not include defendant Turner. However, the victim’s testimony on Turner’s participation in the criminal episode is nonetheless relevant to the prosecutorial misconduct issue.
. There is also testimony in the record which was introduced as part of the defense establishing that the victim did not identify the voices of defendants Anderson and Turner when blindfolded at a voice identification proceeding. (N.T. 192, 198) The victim, however, did identify defendants Bryant, Ross, and Johnston. (N.T. 198, 201)
. A news reporter for the Post-Gazette testified to this fact at the hearing on the pretrial motion to quash the information:
[Defense Counsel for defendant Turner]:
Q Can you tell the Court when he [the prosecutor] gave that information?
[Reporter for the Post-Gazette]:
A It was in a recess.
Q Was that a recess?
A Valentine had just refused to testify and was being sent back to the jail, and during the period when he was being sent back to the jail, there was a short recess. 10/11/79, p. 6. Another reporter for the Beaver County Times also corroborated Barbara White’s testimony. 10/11/79, p. 28.
Hereinafter, all references to the pretrial hearing will be designated 10/11/79, p.-.
. According to one of the briefs, Valentine’s statement actually implicated three and not all of the defendants, as was reported in the news. See Brief for Appellants Bryant and Ross at p. 4.
. The full text of the prosecutor’s explanation consisted of the following:
“So, right at the conclusion of that, the granting of that mistrial, I gave them the background information as to what had transpired. There were no cautionary instructions, and at that time I didn’t feel that anybody was going to be violated in any of their rights. Because she [the news reporter] had been up to that moment a lady, acted like a lady, and Mr. Atzinger [the other news reporter], I may add, was a gentleman at that time and remained a gentleman at all times and they were in a quandary as to what the procedural aspects of it were, I explained it to them. Now we go into the second trial, and in the interim—I think it’s in the interim—the Supreme Court of the United States had issued a new ruling indicating that in various in camera proceedings the Court could specifically exclude media *22people, and there had been a hue and cry all over the country about that. During the course of the second trial, it became necessary to have an immunity hearing in which Judge Mannix specifically excluded the media people. So, they were wandering out there in the halls. As I came out of the courtroom, Barbara White Stack immediately approached me. Mr. Atzinger was near her, and because of the manner in which she had treated these matters, I have to plead guilty of being a gentleman. I just couldn’t walk away from her. Mr. Atzinger was there. I immediately cautioned them that I felt sorry that they couldn’t be in the courtroom, that those were the rules, but I would tell them what happened and under no circumstances were they to use this in any type of a newspaper article and attach my name to it. This was simply for their background information that they would be able to use at the conclusion of the case. Then I went on further to explain what happened. Most of those quotes are accurate, and you can tell from the informality of the statements that I was placed in that position, in that posture of being informal, being off the Record. That’s exactly what happened, and I am now to the point where I certainly don’t want to violate any rules of any prosecutorial overreaching. I had no intention. This was simply a total violation and a breach, and I consider Ms. White Stack’s conduct in this entire matter reprehensible.” (N.T. 10/11/79, at pp. 25-26) (emphasis added).
. Additionally, this writer is mindful of the Supreme Court’s “reluctanc[e] to mandate dismissal of charges against this or any defendant in the absence of a completed fact finding procedure.” Commonwealth v. Virtu, supra, 495 Pa. at 69, 432 A.2d at 203. Accord Commonwealth v. McElligott, 495 Pa. 75, 432 A.2d 587 (1981). In the instant case, a hearing was held to determine if the prosecutor’s conduct barred retrial, and a record of that proceeding was made. The trial court’s observations and the contents of the in camera proceeding are also of record. Under these circumstances, this writer considers the fact-finding procedure to have been completed even though the trial court did not make a specific finding as to whether he believed the prosecutor or the reporters.