concurring and dissenting.
I cannot agree with the majority’s characterization of appellant’s claim as “without merit.” The prosecutor’s actions clearly approach that level of misconduct which would invoke the bar of the double jeopardy clause. See Commonwealth v. Starks, 490 Pa. 336, 416 A.2d 498 (1980). The record reveals prosecutorial overreaching which, although not shown to have been motivated by desire to prejudice appellant or to provoke a mistrial, at the very least deserves strong condemnation by this Court.
On the second day of appellant’s trial an article appeared in the Pittsburgh Press concerning the events of the trial and detailing appellant’s prior criminal activity. The article attributed its source to the assistant district attorney who was prosecuting the case. After the defense brought the article to the court’s attention, the court questioned the jury and discovered that each of the jurors had read the article. Consequently, appellant filed a motion for a mistrial, which was granted.
At a subsequent hearing on appellant’s motion to dismiss indictments, both the assistant district attorney and the newspaper reporter testified. The assistant district attorney denied ever having had a discussion with the reporter and also denied knowing him by name or sight. He conceded, however, that “I might well have been discussing the case in a position where it could have been heard. I can’t deny that for a minute.”
The reporter testified otherwise. He said that he had approached the prosecutor to verify information concerning appellant’s criminal activities. The hearing transcript reads in pertinent part:
“Q. Now, in addition, as I indicated to you, you are indicating that he [appellant] was charged with raping a female prisoner in the Youngstown City Jail and that those charges were dropped so that he could be extradited here for the murder charge. Now, specifically where did you get that information?
*613A. Mr. Steele [Assistant District Attorney].
Q. And when did you get that information?
A. When I talked to him.
Q. So that the day in question [the first day of trial], whenever it was you talked to Mr. Steele, he indicated to you this last paragraph, that Fields had been charged with raping a female prisoner in the Youngstown County Jail and authorities had dropped the charges?
A. I asked him to verify whether or not Mr. Fields had been charged with raping a woman in Ohio, and he did.
Q. And did he then go on to say that those charges had been dropped?
A. Yeah, because I asked him how did Fields get here and he explained that to me.
Q. The charges had been dropped so that he could be extradited here to stand trial on the homicide charge?
A. That’s right.
Q. And you’re sure that the only conversation that you had with Mr. Steele was on this day, whenever it is, late in the day, and that that was part of the conversation?
A. Quite sure.”
Public disclosure by a prosecutor of information prejudicial to a defendant in the midst of trial is conduct which must be closely circumscribed by the courts. See generally Commonwealth v. Pierce, 451 Pa. 190, 303 A.2d 209 (1973). While the prosecutor in this case did not evidence an intent to prejudice the defendant or to provoke a mistrial, his actions did in fact result in a mistrial, which deprived the defendant of a trial by the jury originally sworn to decide his case. This Court should not summarily dismiss as merit-less a claim based on such misconduct. Rather, it should express its strong disapproval of the prosecutor’s actions.