Com. v. Melendez, W.

Opinion

J-S06022-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA :

v. :

: :

WILBERTO MELENDEZ :

:

Appellant : No. 486 MDA 2022

Appeal from the Order Entered March 3, 2022 In the Court of Common Pleas of Lancaster County Criminal Division at No(s): CP-36-CR-0002279-2018

BEFORE: STABILE, J., NICHOLS, J., and STEVENS, P.J.E.*

MEMORANDUM BY NICHOLS, J.: FILED JUNE 14, 2023

Appellant Wilberto Melendez appeals from the order denying his motion

to dismiss and bar retrial on charges of criminal homicide and related offenses.

Appellant argues that the trial court erred when it denied his motion to dismiss

the charges on double jeopardy grounds. We affirm.

The trial court summarized the facts and procedural history as follows:

By criminal information . . . [Appellant has been] charged with allegedly having committed the offenses of criminal homicide; firearms not to be carried without a license; persons not to possess, use, manufacture, control, sell or transfer firearms; and intimidation of witnesses or victims. Said charges stem from a shooting alleged to have occurred on October 27, 2017, in the 300 block of Marshall Street in the City and County of Lancaster.

Following selection of a jury, trial initially commenced in the instant matter on May 14, 2019. On May 21, 2019, during the sixth day of testimony, a Commonwealth witness testified to statements purportedly made by [Appellant] boasting that he had

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* Former Justice specially assigned to the Superior Court.

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committed a prior killing, had beaten that charge, and was going to beat the current charges as well. Prior to the commencement of trial, the attorney for the Commonwealth [indicated] that he had affirmatively instructed all Commonwealth witnesses not to discuss such matter[s]. Additionally, at this time, the attorney for the Commonwealth indicated that he had not elicited, and was surprised by, . . . such testimony. Due to the prejudicial nature of such testimony, the court granted [Appellant’s] motion and granted a mistrial.

The second trial in the instant matter commenced with jury selection on May 10, 2021. On this date, a meeting occurred at the Lancaster City Bureau of [Police] Headquarters between Assistant District Attorney Cody Wade [(ADA Wade)], Detective Sergeant Robert Whiteford, and Antasia Bair to prepare Ms. Bair for her trial testimony. At the evidentiary hearing relative to [Appellant’s] instant motion, [ADA] Wade credibly testified that this meeting had not previously occurred due to scheduling concerns. During this meeting, Ms. Bair reviewed her prior statements and testimony, received a preview of what to expect at trial, and was admonished by [ADA] Wade to tell the truth and avoid reference to any improper subjects during her trial testimony. This meeting was not recorded, nor were any verbatim or substantially verbatim recordings generated from this meeting. During this meeting, Ms. Bair mentioned certain things which were relevant to the matter which were not previously disclosed or varied from the information that she had previously provided to the investigators. This information included claims that she had seen Ernest Talton possess a firearm during the evening in question and that she heard Ernest Talton admonish someone, whom she believed to be [Appellant], that he should not harm the victim. In addition, at this time, Ms. Bair indicated that she observed [Appellant] “choke up” Quetesha Payne [in the parking lot of] a Turkey Hill convenience store in the early morning hours [during a confrontation involving Appellant, Talton, and the victim] preceding the homicide. [ADA] Wade credibly testified that he had no reason to believe the veracity of this representation as it was not supported by any other evidence in this matter. [ADA] Wade further credibly testified that he instructed Ms. Bair during this meeting that they were not going to discuss this topic during her trial testimony. Specifically, [ADA] Wade instructed Ms. Bair that her trial testimony would be limited in scope to what was developed during her testimony at the prior trial and in her prior statements to the investigators. [ADA] Wade credibly

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testified that he believed that Ms. Bair was sufficiently cautioned and that she understood that this allegation would not be introduced during her testimony at the upcoming trial. Following this meeting, [ADA] Wade instructed Detective Sergeant Whiteford to prepare a supplemental report regarding this meeting. Detective Sergeant Whiteford prepared such a report, although this report did not include any reference to Ms. Bair’s claims regarding [Appellant] purportedly placing his hands upon Ms. Payne. At the evidentiary hearing held in this matter, Detective Sergeant Whiteford testified that he did not hear Ms. Bair make such comments. This supplemental report was provided to counsel for [Appellant] on May 12, 2021.

On May 13, 2021, prior to the commencement of testimony for the day, the court met with counsel for the parties outside the presence of the jury. At this time, discussion was had regarding the meeting with Ms. Bair. Specifically, Ms. Bair’s claims regarding certain statements allegedly made by Ernest Talton were addressed and the parties specifically agreed that this topic would not be introduced at trial. Contrary to the representations contained in [Appellant’s] memorandum [of law in support of his motion to dismiss and bar retrial], the record does not demonstrate any reference to remedies or discharge of [Appellant] should this topic be introduced at trial. Additionally, at this time, there was no reference made by counsel regarding Ms. Bair’s allegations that [Appellant] had “choked up” Ms. Payne.

On May 14, 2021, the Commonwealth presented the testimony of Antasia Bair at trial. It is noted that Ms. Bair was not an eyewitness to the homicide. Based upon the credible representations made by the attorneys for the Commonwealth, Ms. Bair was presented to provide testimony regarding her observations of the argument which occurred at the Turkey Hill convenience store [parking lot] prior to the homicide, as well as her knowledge of certain prior consistent statements made by an eyewitness to the homicide which identified [Appellant] as the shooter. During her testimony, Ms. Bair reiterated her claim that [Appellant] had “choked up” Ms. Payne at the Turkey Hill. Again, this allegation had not been referenced by Ms. Bair during her testimony at the first trial and was not contained in any of her prior statements. At this point, counsel for [Appellant] moved for a mistrial on the basis that such testimony was prejudicial to [Appellant] and was not provided to defense counsel through discovery.

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Extensive argument was held on the record outside the presence of the jury. During this argument, [ADA] Wade indicated that he recalled Ms. Bair informing him at the recent meeting about [Appellant] and Ms. Payne “getting into it”, but he couldn’t recall what she had specifically told him. Additionally, at this time, [ADA] Wade informed that court that he had instructed Ms. Bair not to discuss this topic during her testimony. After consideration of providing the jury with a strong curative instruction, the court granted [Appellant’s] motion for a mistrial in light of the serious nature of the instant matter.

On June 24, 2021, counsel for [Appellant] filed a motion to dismiss and bar retrial. After consultation with counsel regarding their availability, by order dated July 1, 2021, this court scheduled an evidentiary hearing relative to [Appellant’s] motion for September 16, 2021.

In addition to the testimony noted above, at [the September 16, 2021] hearing, [ADA] Wade credibly testified that he did not seek to elicit any testimony from Ms. Bair regarding any physical contact between [Appellant] and Ms. Payne. [ADA] Wade further credibly testified that he was not seeking to cause a mistrial or prejudice [Appellant]. [ADA] Wade testified that the Commonwealth was pleased with the progression of the trial and that the award of a mistrial did not place the Commonwealth in a more advantageous position.[1]

Trial Ct. Op. & Order, 3/3/22, at 1-5 (citations and footnotes omitted;

formatting altered).

On March 3, 2022,2 the trial court filed an opinion and order denying

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1 Detective Sergeant Whiteford also testified at the September 16, 2021 hearing. See N.T. Hr’g, 9/16/21, at 59-75.

2We note that although the trial court’s opinion and order denying Appellant’s motion to dismiss was time-stamped and entered on the docket on March 2, 2022, the docket entries reflect that the trial court served the parties with a copy of the opinion and order on March 3, 2022. See Commonwealth v. Jerman, 762 A.2d 366, 368 (Pa. Super. 2000) (stating that “[i]n a criminal case, the date of entry of an order is the date the clerk of courts enters the (Footnote Continued Next Page)

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Appellant’s motion to dismiss.3 See id. at 16-18. Appellant filed a timely

notice of appeal and a timely court-ordered Pa.R.A.P. 1925(b) statement. In

lieu of a Rule 1925(a) opinion, the trial court issued an order incorporating its

March 3, 2022 opinion and order. See Trial Ct. Order, 6/17/22.4

On appeal, Appellant raises the following issue for review:

Whether [the] trial court erred in denying [Appellant’s] motion for dismissal and barring retrial on double jeopardy grounds due to reckless prosecutorial conduct[?]

Appellant’s Brief at 4 (formatting altered).

Appellant argues that double jeopardy bars retrial in this case because

the trial court declared a mistrial due to the Commonwealth’s misconduct. Id.

at 6-23. In support, Appellant alleges two specific instances of prosecutorial

misconduct: (1) a Brady5 violation relating to the Commonwealth’s failure to

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order on the docket, furnishes a copy of the order to the parties, and records the time and manner of notice on the docket” (citations omitted)); see also Pa.R.Crim.P. 114(C)(2)(c); Pa.R.A.P. 108(a)(1), (d)(1).

3 The trial court also found that Appellant’s motion was not frivolous. See Trial Ct. Op. & Order at 17. “If the trial court enters an order denying the motion to dismiss on double jeopardy grounds and in doing so, makes no finding, in writing, that the motion is frivolous, then the order is a collateral order under [Pa.R.A.P.] 313 and is immediately appealable.” Commonwealth v. Kemick, 240 A.3d 214, 217 (Pa. Super. 2020) (citations omitted); see also Pa.R.Crim.P. 587(B).

4 The trial court’s order adopting its prior opinion and order was time-stamped and entered on the docket on March 29, 2022, but the docket entries indicate that the trial court served the parties with a copy of this order on June 17, 2022. See Jerman, 762 A.2d at 368; Pa.R.Crim.P. 114(C)(2)(c).

5 Brady v. Maryland, 373 U.S. 83 (1963).

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disclose Ms. Bair’s statement that Appellant had choked Payne on the night of

the murder; and (2) the Commonwealth improperly elicited testimony about

the choking incident from Ms. Bair in violation of Pa.R.E. 404(b). Id. at 9-10.

First, regarding the alleged Brady violation, Appellant contends that the

Commonwealth possessed Ms. Bair’s statement “after trial began and

intentionally withheld them from the defense until after a mistrial was

declared.” Id. at 14. Appellant claims that the Commonwealth’s failure to

disclose Ms. Bair’s new statement satisfies all three prongs of the Brady

standard because (1) the new statement was favorable impeachment material

because it was inconsistent with Ms. Bair’s prior testimony and statements

and was inconsistent with the testimony of other witnesses; (2) the

prosecution willfully suppressed the new statement because it was not

included in Detective Sergeant Whiteford’s report of Ms. Bair’s interview; and

(3) Appellant was prejudiced by the admission of evidence relating to his other

bad acts. Id. at 19-21. Appellant concludes that the Commonwealth’s Brady

violation was intentional misconduct which bars retrial. Id. at 17-18, 21

(citing, inter alia, Commonwealth v. Smith, 615 A.2d 321 (Pa. 1992)).

Appellant also argues that the Commonwealth engaged in prosecutorial

misconduct by failing to adequately prepare Ms. Bair as a witness for trial. Id.

at 21-23. Appellant contends that ADA Wade’s testimony established that he

did not adequately prepare Ms. Bair so she would not testify as to the choking

incident, which is an inadmissible prior bad act. Id. at 22. Appellant

concludes double jeopardy bars retrial because the Commonwealth’s

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misconduct here “is tantamount to the level of recklessness in

[Commonwealth v. Johnson, 231 A.3d 807 (Pa. 2020)].” Id. at 23.

Our standard and scope of review in this case are as follows:

An appeal grounded in double jeopardy raises a question of constitutional law. This Court’s scope of review in making a determination on a question of law is, as always, plenary. As with all questions of law, the appellate standard of review is de novo. To the extent that the factual findings of the trial court impact its double jeopardy ruling, we apply a more deferential standard of review to those findings.

Where issues of credibility and weight of the evidence are concerned, it is not the function of the appellate court to substitute its judgment based on a cold record for that of the trial court. The weight to be accorded conflicting evidence is exclusively for the fact finder, whose findings will not be disturbed on appeal if they are supported by the record.

Commonwealth v. King, 271 A.3d 437, 443 (Pa. Super. 2021) (citation

omitted).

Our Supreme Court has explained 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.

Johnson, 231 A.3d at 826 (citations omitted and formatting altered).

We must also consider the following:

The Double Jeopardy Clauses of the Fifth Amendment to the United States Constitution and Article 1, [Section] 10 of the

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Pennsylvania Constitution[6] protect a defendant from repeated criminal prosecutions for the same offense. Ordinarily, the law permits retrial when the defendant successfully moves for mistrial. If, however, the prosecution engages in certain forms of intentional misconduct, the Double Jeopardy Clause bars retrial. Article I, [Section] 10, which our Supreme Court has construed more broadly than its federal counterpart, bars retrial not only when prosecutorial misconduct is intended to provoke the defendant into moving for a mistrial, but also when the conduct of the prosecutor is intentionally undertaken to prejudice the defendant to the point of the denial of a fair trial. An error by a prosecutor does not deprive the defendant of a fair trial. However, where the prosecutor’s conduct changes from mere error to intentionally subverting the court process, then a fair trial is denied.

Dismissal is an appropriate remedy in such a case because a mistrial would be an inadequate remedy for systematic intentional prosecutorial misconduct.

By and large, most forms of undue prejudice caused by inadvertent prosecutorial error or misconduct can be remedied in individual cases by retrial. Intentional prosecutorial misconduct, on the other hand, raises systematic concerns beyond a specific individual’s right to a fair trial that are left unaddressed by retrial. A fair trial is not simply a lofty goal, it is a constitutional mandate, and where that constitutional mandate is ignored by the Commonwealth, we cannot simply turn a blind eye and give the Commonwealth another opportunity.

In sum, conduct that constitutes mere prosecutorial error does not implicate double jeopardy; it is prosecutorial overreaching that cannot be condoned.

Commonwealth v. Byrd, 209 A.3d 351, 353-54 (Pa. Super. 2019) (citations

omitted and formatting altered).

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6 Article 1, Section 10 of the Pennsylvania Constitution provides in relevant part, “No person shall, for the same offense, be twice put in jeopardy of life or limb . . . .” Pa. Const. Art. 1, § 10.

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Additionally, our Supreme Court has expanded the definition of

“prosecutorial overreaching” to also include reckless conduct. Johnson, 231

A.3d at 826-27. Specifically, the Court held:

Under Article I, Section 10 of the Pennsylvania Constitution, prosecutorial overreaching sufficient to invoke double jeopardy protections includes misconduct which not only deprives the defendant of his right to a fair trial, but is undertaken recklessly, that is, with a conscious disregard for a substantial risk that such will be the result. This, of course, is in addition to the behavior described in Smith, relating to tactics specifically designed to provoke a mistrial or deny the defendant a fair trial. In reaching our present holding, we do not suggest that all situations involving serious prosecutorial error implicate double jeopardy under the state Charter. To the contrary, we bear in mind the countervailing societal interests . . . regarding the need for effective law enforcement, and highlight again that, in accordance with longestablished double-jeopardy precepts, retrial is only precluded where there is prosecutorial overreaching – which, in turn, implies some sort of conscious act or omission.

Johnson, 231 A.3d at 826 (citations omitted and emphasis in original); see

also Commonwealth v. Krista, 271 A.3d 465, 474 (Pa. Super. 2022)

(explaining that following Johnson, “retrial should be barred when the

prosecutor’s misconduct is an act of deliberate or reckless overreaching and

not an isolated incident”), appeal denied, 285 A.3d 597 (Pa. 2022).

To establish a Brady violation, a defendant must prove three elements:

“(1) the evidence at issue was favorable to the accused, either because it is

exculpatory or because it impeaches; (2) the evidence was suppressed by the

prosecution, either willfully or inadvertently; and (3) prejudice ensued.”

Commonwealth v. Roney, 79 A.3d 595, 607 (Pa. 2013) (citation omitted).

This Court has stated that “if a Brady violation is committed by a prosecutor,

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it can result in a dismissal on double jeopardy grounds if it is shown that the

prosecutor intended to deprive the defendant of a fair trial.” Commonwealth

v. Adams, 177 A.3d 359, 372 (Pa. Super. 2017) (citation omitted).

In Smith, the Commonwealth violated Brady by failing to disclose that

its chief witness received favorable treatment in unrelated criminal matters in

exchange for his testimony and by failing to disclose autopsy records that

contradicted the Commonwealth’s theory of the case and supported the

defendant’s. See Smith, 615 A.2d at 322-23. Also, there was evidence that

the Commonwealth knowingly concealed the Brady material during the trial

and for more than two years after defendant’s conviction. See id. at 323-24.

Therefore, the Smith Court concluded that “[b]ecause the prosecutor’s

conduct in this case was intended to prejudice the defendant and thereby deny

him a fair trial, [the defendant] must be discharged on the grounds that his

double jeopardy rights, as guaranteed by the Pennsylvania Constitution, would

be violated by conducting a second trial.” Id. at 325; cf. Adams, 177 A.3d

at 373-74 (holding that although the prosecutor and police committed a

Brady violation by failing to disclose video recordings of police interviews with

the co-defendant, dismissal was not warranted where the record established

the prosecutor did not act intentionally or in bad faith, but rather was “grossly

negligent”).

In Johnson, our Supreme Court granted the defendant’s petition for

allowance of appeal to determine whether “the Commonwealth’s

misrepresentation of physical evidence in [the defendant’s] first trial bar[s]

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retrial on double jeopardy grounds, notwithstanding the trial court’s finding

that the Commonwealth’s misconduct was unintentional?” Johnson, 231

A.3d at 816. Ultimately, the Johnson Court concluded that the

Commonwealth made “almost unimaginable mistakes,” in conflating two

different pieces of evidence and the results of DNA tests performed on that

evidence prior to and during trial. Id. at 826. The Court also found that

although the mistakes were unintentional, they 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.” Id. at 827 (citation omitted). Therefore, the Court held that double

jeopardy barred the defendant from being retried. Id. at 827-28. Following

Johnson, this Court held that a Brady violation will not bar retrial on double

jeopardy grounds where “[t]he prosecutor’s error . . . does not rise to the level

of the ‘almost unimaginable’ error in Johnson[,]” and the record did not

establish that “the prosecution engaged in overreaching or attempted to

subvert justice.” King, 271 A.3d at 450 (citation omitted).

Subject to certain exceptions, evidence of other crimes committed by a

defendant is generally inadmissible at trial. See Pa.R.Crim.P. 404(b)(1);

Commonwealth v. Strong, 825 A.2d 658, 665 (Pa. Super. 2003). However,

“[f]or double jeopardy purposes, unfairly prejudicial statements by witnesses

generally are not chargeable to the prosecuting attorney, especially when they

are unexpected and made on cross-examination.” Johnson, 231 A.3d at 827

n.14; see also Commonwealth v. Graham, 109 A.3d 733, 736-38 (Pa.

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Super. 2015) (concluding that the prosecutor did not engage in misconduct

where the defendant’s wife mentioned the defendant engaged in sexual

misconduct unrelated to the charged offenses because “[t]he prosecutor did

not ask, directly or indirectly, about any unrelated criminal conduct”).

Following Johnson, this Court also concluded that the Commonwealth’s

introduction of previously excluded evidence will not bar retrial, where the

Commonwealth did not engage in reckless overreaching. See

Commonwealth v. Hill, 1267 EDA 2022, 2023 WL 140340, at *4-5 (Pa.

Super. filed Jan. 10, 2023) (unpublished mem.) (prosecutor asked the

detective why the police began investigating the defendant, and the detective

testified that he identified the defendant from surveillance footage, in violation

of the trial court’s order granting the defendant’s motion in limine which

precluded that detective from offering identification evidence based on the

surveillance footage).7

Here, at trial, Ms. Bair testified that on the night of October 27, 2017,

there was a confrontation between two groups of people in the parking lot of

a Turkey Hill convenience store. See N.T. Trial, 5/14/21, at 453, 460-61. Ms.

Bair stated that Appellant arrived a few minutes later and that he was angry

and red faced. See id. at 462. ADA Wade asked Ms. Bair if Appellant said

anything, and she responded that Appellant threatened to choke the women

with Ms. Bair and was yelling “a lot of, . . . angry stuff.” See id. at 462-63.

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7We may cite to non-precedential decisions of this Court filed after May 1, 2019, for their persuasive value. See Pa.R.A.P. 126(b).

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She continued, “[a]nd in that time that’s when he choked up [Quetesha Payne]

because she was having words back with them. It was really about them at

the moment. And he choked her up.” See id. at 463. ADA Wade then asked

Ms. Bair about whether she heard if Appellant and Ernest Talton said anything

to each other during this confrontation. See id. Appellant did not immediately

object to the statement about the choking incident, but the trial court called

a sidebar. See id. The trial court asked if a cautionary instruction about prior

bad acts was necessary. See id. at 463-64. Appellant requested a mistrial

on two grounds: (1) Ms. Bair’s statement that he had choked a woman was a

prejudicial and inadmissible prior bad act, and (2) the Commonwealth violated

its continuing duty of discovery because it failed to disclose that Ms. Bair’s

new statement about Appellant choking or grabbing Ms. Payne. See id. at

464-501. The trial court granted the motion for mistrial. See id. at 501-02.

At the evidentiary hearing on Appellant’s motion to bar retrial, ADA

Wade testified that he and Detective Sergeant Whiteford met with Ms. Bair on

May 10, 2021, to prepare her to testify at trial. See N.T. Hr’g, 9/16/21, at

10-12. ADA Wade explained that Ms. Bair mentioned several facts for the first

time, including that Appellant had choked Ms. Payne during the confrontation

in the parking lot. See id. at 23-24, 46-47. ADA Wade instructed Ms. Bair

that during her testimony she had to tell the truth and not mention the first

trial or any other bad acts by Appellant. See id. at 24-26. On May 14, 2021,

the day Ms. Bair was scheduled to testify, ADA Wade briefly met with Ms. Bair

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and reminded her not to mention the prior trial, not to mention Appellant’s

other bad acts, and to tell the truth. See id. at 36-38.

After the Commonwealth informed Appellant that Ms. Bair had brought

up new information in her interview, Detective Sergeant Whiteford prepared

a supplemental report of the interview.8 See id. at 28-31. Ms. Bair’s

statement that Appellant choked Ms. Payne is not in that supplemental report.

See id. at 32-35. ADA Wade explained that he did not ask Detective Sergeant

Whiteford to revise the report to add the choking incident or Ms. Bair’s other

statements that were not included because he believed they were not relevant

and did not plan to introduce them at trial. See id. at 34-35, 49-50, 53-55.

In its opinion and order, the trial court addressed whether the

Commonwealth acted intentionally or reckless as follows:

[T]here is no evidence of record to suggest that any lack of disclosure; by the attorneys for the Commonwealth resulted from any intentional, willful, or reckless conduct, as opposed to mere inadvertence.

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8 Appellant marked the supplemental report as Exhibit D-1. See N.T. Hr’g, 9/16/21, at 30-31. This exhibit is not included in the certified record. Additionally, we note that numerous documents in the electronic certified record are distorted or are illegible. See, e.g., Criminal Compl., 2/16/18; Waiver of Arraignment, 5/8/18; Pro Se Mot. for Discovery/Transcripts, 8/16/19. Although the omission of Exhibit D-1 and the distorted documents in the certified record does not impede our review, we remind counsel that, the “[a]ppellant has the responsibility to make sure that the record forwarded to an appellate court contains those documents necessary to allow a complete and judicious assessment of the issues raised on appeal.” Commonwealth v. Wint, 730 A.2d 965, 967 (Pa. Super. 1999) (citations and quotation marks omitted); see also Pa.R.A.P. 1921, Note (stating that “[u]ltimate responsibility for a complete record rests with the party raising an issue that requires appellate court access to record materials” (citation omitted)).

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Most importantly, it must be recognized that the mistrial granted in this matter, upon [Appellant’s] motion, did not pertain to any purported discovery violations. More specifically, the court granted a mistrial in this matter because the jury was presented with testimony regarding a purported prior bad act allegedly committed by [Appellant] some time before, and at a different location, from the homicide.

In assessing this claim, as noted above, the court finds that [ADA] Wade credibly testified that: he did not intend to introduce this evidence at trial; he admonished Ms. Bair not to present this testimony at trial; he did not elicit such testimony; he was surprised by such testimony; and, he did not seek to prejudice [Appellant’s] right to a fair trial. [ADA] Wade further credibly testified that the Commonwealth has received no benefit from the award of [Appellant’s] motion for a mistrial in this matter.

Accordingly, based upon the totality of the evidence presented, it is clear to this court that the introduction of the challenged testimony was solely the result of an unexpected “blurt out” on the part of a lay witness, despite the reasonable attempts of the attorneys for the Commonwealth to prevent such. The court finds that the record in this matter is devoid of any evidence that the Commonwealth acted in an intentional or reckless manner. The court further finds that the record in this matter is devoid of any evidence of prosecutorial overreaching which, in turn, implicates some sort of conscious act or omission. Accordingly, the double jeopardy bar of retrial is not warranted in this matter. Rather, this court correctly granted [Appellant’s] motion for a mistrial upon the inadvertent admission of the prejudicial prior bad acts evidence. As the result thereof, [Appellant] will receive the benefit of a new trial untainted by such evidence.

Trial Ct. Op. & Order at 15-16 (footnotes omitted and some formatting

altered); see also id. at 5 (concluding that ADA Wade’s testimony at the

September 16, 2021 evidentiary hearing was credible).

Based on our review, we conclude the record supports the trial court’s

credibility determinations and legal conclusions that the Commonwealth’s

actions were not intentionally or recklessly undertaken to deprive Appellant of

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a fair trial. See King, 271 A.3d at 443. Further, we agree with the trial court

and adopt its reasoning in concluding that Ms. Bair’s statement about the

choking incident was not Brady material nor did the Commonwealth violate

Brady, or Pa.R.Crim.P. 573. See Trial Ct. Op. & Order at 8-15. Additionally,

the trial court credited ADA Wade’s testimony that he did not intentionally

conceal evidence which he knew to be material with the intent to deprive

Appellant of a fair trial. Compare Smith, 615 A.2d at 322 with Adams, 177

A.3d at 373-74. Accordingly, on this record, we conclude that double jeopardy

does not bar retrial with respect to Ms. Bair’s statement about the choking

incident made during her witness preparation. With respect to the questioning

of Ms. Bair, the record reflects that ADA Wade did not ask Ms. Bair any

questions that directly or indirectly related to Appellant’s other criminal

conduct. See Graham, 109 A.3d at 736-38. Therefore, we agree with the

trial court that there was no intentional prosecutorial misconduct for double

jeopardy purposes. See Byrd, 209 A.3d at 353-54; Adams, 177 A.3d at 371-

72.

Further, applying the Johnson standard, we find that the

Commonwealth’s actions do not reflect a conscious disregard for the

substantial risk that Appellant would be deprived of a fair trial. See Johnson,

231 A.3d at 826. Accordingly, the trial court’s finding that the Commonwealth

did not act recklessly when it failed to disclose Ms. Bair’s statement about the

choking incident is supported by the record and pertinent legal authority. See

Trial Ct. Op. & Order at 15-16. As for the Commonwealth’s witness

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preparation and trial examination of Ms. Bair, the trial court found that the

Commonwealth made reasonable attempts to prevent the witness from

testifying about Appellant’s prior bad acts, but the witness’s statements were

unexpectedly “blurt[ed] out.” See Trial Ct. Op. & Order at 16. Our review

concludes that the record supports the trial court’s determination that the

Commonwealth did not engage in any reckless overreaching. See Krista, 271

A.3d at 474; King, 271 A.3d at 450; Hill, 2023 WL 140340 at *5. For these

reasons, we affirm the trial court’s order denying Appellant’s motion to bar

retrial.

Order affirmed. Case remanded for retrial. Jurisdiction relinquished.

P.J.E. Stevens joins the memorandum.

Judge Stabile concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 06/14/2023

Circulated 05/30/2023 11:32 AM

June 27, 2022

Re: Wilberto Melendez Cp Cr No: 2279-2018 Superior Cr No: 486 MDA 2022

Index of Opinion

1. Index of Opinion 2. Order of the Court 3. Opinion and Order

IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA CRIMINAL DIVISION

COMMONWEALTH COMMONWEAL TH OF PENNSYLVANIA

VS. No. CP-36-CR-0002279-2018

WILBERTO MELENDEZ

ORDER

Appellant/Defendant,by Appellant/Defendant, by Notice Notice of Appeal

Appeal filed

filed on March 21,

21, 2022,

2022, has

bas appealed from

from

the order entered on March 2, 2, 2022, denying Appellant's Appellant's Motion to Dismiss and Bar Retrial.

The reasons for this court's court'srulings are contained in the Opinion and Order entered on March2, March 2,

2022 .This court relies on said documents for compliance with Rule 1925( 2022. a) of the Pennsylvania 1925(a)

Rules of Appellate Rules of Appellate Procedure.

Procedure.As such,

such,said documents are attached hereto.

said documents

BY T I06, URT: BYTI URT:

MERRI M.

M. SPAHN, JR., JUDGE

JR., JUDGE

March 9 2022

ATTEST:

Copies to: Copies to: Anderson,Esquire, Assistant District Attorney Travis Anderson,

McMahon,Esquire, counsel for Appellant Jack McMahon, r-

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IN TGIF COURT IN THE COUNT OF OF COMMON PLEAS

PLEAS OF

OF LANCASTER

LANCASTER COUNTY, PENNSYLVANIA CRIMINAL CRIMINAL

CO MMONWEA LTH 0 COMMONWEALTH OF9PENNISYL VANIA PENNSYLVANIA

vs. No. P- 6-C -0002279-2018 CP-36-CR-0002279-2018

ILBERTO WILBER TOMELENDE MELENDEZ

SA00i A •N•lj

i+_4

OPINION acrd ORDER. pP!toy_gn_ORDER

N'

B: SPAHN, BY: SPAIN. JR., J. ::2 March 2, 2022

9 c

By Criminal Information docketed docketed to Number CP-36-CR-0002279-2018, CP- 6-C.R-0002279-2018, Defers&ant Defer'dant i is changed with charged with allegedly having. COMM itted the having committed offenses of Criminal the offenses Criminal Homicide';

Homicide 1;Firearms Not to

be Carried Without aa1,icense';

License; Persons Not to Possess, Use, Manufacture, Control, Sell or

Transfer lii Victims' Said charges stem from aa rearm s'; and, Intimidation of Witnesses or Victims'.

Firearms';

shooting alleged shooting 27, 2017, in the 300 black alleged to have occurred on October 27,2017, block of Marshall Street in in the

City and City and County of Lancaster.

Lancaster

Folloviing Following,selection of aajury, trial initially commenced in the instant matter on May 14,

201. On 2019, On May May 21, 2.019, during 21,2019, day of testimony, aaCommonwealth witness testified to during the sixth day

staternents purportedly statements purportedly made made by

by Defendant

Defendant boasting that he had committed aaprior killing, ki9ling, had

that charge, beaten that charge, and ard was going

going to beat the

the current charges as well. (N.T, 5!21119, well. (NT 896-

5/21/19, p. 886

888). Prier 888). Pron to the cornmencement of trial, the commencement trial, the attorney for the attorney the Commonwealth for the Commonwealth indicted indicted that he

affirmatively instructed had affirmatively instructed all Commonwealth witnesses not to discuss such matter matter.

11HPa,C.SA. $259016) 'IP,CS.A 2501(a). 219 Pa-C,5-A, $6106a(D 18PCS.A 6106(a)(1). Iy$Pa_C.S.A. §6105(a)(1 }, Mis 1gaCSA.$6/04a)I) It is noted that that this change

charge was severed from trial tria] in compliance with controlling c'ontro11ing

authority_ authority 19 Pa. C-

-A- §4952(a)(1}, 'I6AC.SA.$49$204I

AddiiionalIy, Additionally, at at this

this time,

time, the

the attorney

attorney for

for the Commonwealth indicated indicated that he had not elicited,

and was surprised surprised by, by, by

by such testirony. (N.T, 5/21/19, testimony. (N,T 5/2111.9, p. 886-987). Due to the p. 886-887). the prejudicial

nature nature of of such such testimony,

testimony, the coat granted the court granted Defendant's Defendauit's rnotion granted aamistrial.

motion and granted (N.T.

mistrial. (N,T,

5121119, p. 891). 5/21/19,p. 891 The second trial trial in the instant rniatter matter commenced with jury jury selection on May 2021.

May 10, 2021

On this date, date, a a meeting occurred at the Lancaster City Bureau of Ecadquarters Headquarters between Assistant

District Attorney Attorney -Cody Cody Wade,

Wade, Detective Sergeant

Serget Robert Whiteford, and Antasia Artasia Bair to prepare

Ms. Bair for her trial testimony. (N.T, 9/16021, testimony. tN,T, 9/16!21, p.

p. 10-12).

I0-12). At the evidentiary bearing hearing relative to

lo

Defendant's Defendant's instant rno0on, motion, Attorney

Attorney Wade credibly

credibly testified

testi I

ied that this

this meeting had

had not

previously previously occurred due to to scheduling concerns. (N.T.

scheduling concerns. (NA'. 9/1621,p.

9/16121, p. 11).

1H). During this meeting, Ms.

Ms

Bair Bair reviewed reviewed her her prior statements and

prior statements and testimony, testimony, received

received aaprevinv

preview of •0at to expect of what expect at

at trial,

and was admonished by by Attoniey

Attorney Wade to tell the the U uth and avoid reference to any improper truth

-

subjects subjects during during her tnal trial testimony. (I .T. 9/16/21,p.

testimony. (N,T. 9116121, p. '14, 24-26). This meeting was not recorded, 14,24-26.

nor were ;vere any any verbatim or substantially verbatim recordings recordings generated from this inceting. (N.T, meeting. (N.T

9116121, 9/16/21, p, p. 46, 46, 74-75).

74-75). During

During this

this meeting,

meeting, Ms. Bair

Bair mentioned certain things things which were

relevant to the matter which wem were not previously disclosed or varied from the information that

she she had had previously previously provided provided to

to the investigators. 9116121, p, investigators. (N.T. 9/16/21, 27). This information p. 27). information

included claims that she had seers Ernest Talton possess aafirearm during the evening in question seen Emest

and that she heard Ernest Talton admonish someone, whom she believed to be he the defendant, that

he should not farm ham the victim

victim, .(Defense

( 1. Defense Exhibit No. 1). 1•n addition,at this time, In addition, tune, Ms.

Ms. Bair

indicated indicated that that she obsm cd the

she observed defendant choke the defendant 'choke up" Quetesha Payne up Quetesha Paync at

at a

aTurkey

Turkey Till

Hill

convenience store in.

in the early

early morning

mort,irg .hours

hours preceding

preceding the

the how icide. (N.T,

homicide (K T. 9/16/21,p 9116/21, p} 40))

40).

Attorney Attorney Wade Wade credibly credibly testified

testified that he

he had no

no reason

reason to believe

believe the veracity of this the veracity this

33

representation representation as it was not supported by any supported by any other evidence in this Ibis matter. (NT,

(NJ. 9/16/21,

9116121, p.

p. 47,

54), 54). Attorney Attorney Wade Wade further credibly testified further credibly that he testified that he instructed instructed Ms.

Ms. Bair during this

Bair during this meeting

mneeting that

that

they they were were not not going

going to

to discuss fbis topic

discuss this topic during during her

her trial

trial testimony. (N.T. 9/16/21, testimony. (N,T, 9116121, p. 40, 47-48)

p. 40, 47-t48).

Specifically, Specifically, Attorney Wade instructed instructed Ms. Bair

Lair that

that her trial testimony

testimony would be

be limited

limited in

scope scope to to what what was developed during was developed during her testimony at her testimony at the

the prior

prior trial

trial and in ;her

and in her prior statements to prior statements to

the the investigators. ( .T, 9/16/21,p.

investigators, (N.T. 9116/21, p- 40, 40, 47-48).

47-48). Attorney

Attorney Wade credibly testified Wade credibly that he testified that he believed believed

that that Ms.

Ms. Bair was was sufficiently cautioned and sufficiently cautioned and that she she understood that this allegation would not understood that not be

introduced introduced Glaring during her

her testimony at the

testimony at the upcoming upcoming trial,. (N.T. 9/16/21, trial, (N,T, 9116121, p. 48), 48). Follov Srlg this

Following this

meeting, meeting, Attorney Attorney Wade instructs instructed Detective Sergeant Whiteford to to prepare

prepare aasupplemental

supplemental

report report regarding regarding this this meeting, (N, T, 9/16/21, meeting. (N.T, 9116121, p.

p. 26-29,69-70).

6-29, 9-70). Detective

Detective Sergeant

Sergeant Whiteford

Whiteford

prepared prepared such such a a report,

report, although

although this

this report

report did

did not

not include

include any

any reference to

to Ms.

Ms. Bair's

Bair's claims

regarding regarding the the defendant

defendant purportedly

purportedly placing his hands upon upon Ms. Payne. (N. T. 9/16021, Payne. (N,T, 9116121, p. 30-35)

s0- ).

At the evidentiary evidentiary hearing hearing held in this matter, mater, Detective Sergeant Sergeant Whiteford testified that he did

not bear hearMs, Ms. Bair make such comments.

comments.' (N.T.

1.T. 9/1621,

9116/21, p.

p. 65-68). This supplemental report

was was provided provided to counsel counsel for

for the defendant

defendant on

on May

May 12, (N. T. 9/1621, 12, 2021.' (N,T. 9116121, p.

P. 26-29,

2C-29, 69-70)

69-70),

On May

May 13, 2021.. prior

13,2021, prior to the commencement of of testimony for the day, the court met

with counsel counsel for for the

the parties outside the

parties outside the presence of the presence of jury. At

the jury. At this tirre, discussion this time, was hid discussion was had

regarding the meeting reganding the meeting with with Ms,

Ms. Bair, Specifically, Ms.

Bair. Specifically. Ms. Bair's claims regarding Bair's claims certain regarding certain

statements statements allegedly allegedly made

made by

by Ernest Talton were

rest Talton addressed and were addressed and the

the parties specifically agreed parties specifically agreed

that that this topic topic would

woald not be

be introduced at tJa],

trial. Contrary to tbe

the representations contained in

3it is 'is noted noted that that Detective Sergeant Whiteford Detective Serget Whiteford restified testified that he Iihad

that he ad briefly stepped stepped out

out of

ofthe meetin, with

th meeting with Ms

Ms- air

Bair

that occurred on May 10, 2021, (NT I0, 2021. (NJ. 9/1621,

9116#21, p.

p. &5).

65)

is noted that Defendants ltis G it Defendant's rnemorandu memoranda nsuggests

suggests that counsel for Defendant received this report at the end of the day day on MayMay 13, 2021. Such rc;presenta#ion 13,202I. representation is clearly inaccurate .as demonstralts that this s the official transcript demonstrates matter matter was wars addressed addressed by

by counsel for

fee the

tee parties

parties with the

the court.

court prior

prior to

to the

the cornmeneernent

commencement of testimony 13, testimony on May Id,

2021,

Defendant's Defendant's memorandum, memorandum, the

the record not. demonstrate record does not demonstrate any "y reference

reference to remedies or

to remedies or

discharge discharge of of Defendant should this

Defendant should this topic he introduced topic be introduced at

at trial.

trial. Additionally, at this Additionally, at this time, time, there

there

was was no no reference reference made made by counsel regarding by counsel regarding Ms.

Ms. Bair's

Bair's allegations

allegations that

that Derendant had choked Defendant had "choked

up" up" N4s, Ms. Payne.

Payne. (N.T. 5/13121, p, (N.T. 5/13/21, p. 230-232).

230-232)

On On May May 14,

14, 202 1, the

2021, Cornrnonwealth presented the Commonwealth presented the testimony of Antasia testimony of Bair at Antasi Bair at trial.

trial. It

It

is is noted noted that that Ms.

Ms. Bair

Bair was not eyewitness to the homicide.

not an eyewitness (N.T. 9/16/21, homicide. (NT. 911612,1, p. 44), 44). Based upon

the the credible credible representations representations trade

made by

by the attorneys for

the attoreys for the Conunonwealth, M the Commonwealth, s. Bair Ms. was

Bair was

presented presented to to provide

provide testimony

testimony regarding,

regarding her observations of her observations of the

the argument

argument which occurred at which occurred at the

the

Turkey Turkey Hi 11 convenience Hill convenience store store prior

prior to

to the homicide, as

the homicide, as well

wc11 as

as her knowledge of

her knowledge of certain

certain prior

prior

consistent consistent statements statements made

made by

by an eyndtness to

an eyewitness to the homicide which which identified Defendant Defendant as the

shooter, (N.T. 9/16/2 shooter. (N.T. 9/1621,1, p.

p. 44,

44, 74),

74). During

During her

her testimony,

testimony, M s. Bair

Ms. Bair reiterated

reiterated her claim that her claim that

Defendant had "choked up"

up" M s. Payne

Ms. Payne at the Turkey F1ti11. (N.`1'. 5114121, Hill, (N.T. 5/1421, p. 462-462).

462-462) Again,

thin allegation had this allegation had not not been referenced

referenced by Ms,

Ms. Bair

Bair during

during her

her testimony

testimony at tlae

the first

first trial

trial and was

not not contained contained in in any

any of

of her

her prior stxtemenLs. At this prior statements. this point, counsel for point, counsel for the defendant moved the defendant moved for

for aa

mistrial on the mistrial on the basis basis that

that such

such testimony

testimony was prejudicial to Defendant prejudicial o and was Defendant and was not

not provided to

provided to

defense defense counsel counsel through through discovery.

discovery

Extensive arrgument was Extensive argument was held on the held on the record outside the record outside the presence presence of

of the jary. During

the jury. this

During this

argument, argument, Attorney Attorney Wade

Wade indicated that he

indicated that he recalled recalled Ms.

Ms. Rair inforniitig him

Bair informing at the him at recent

the recent

meeting meeting about about the defendant and the defendant and Ms.

Ms. Payne

Payne "getting into it", but "getting into but he couldn't recall he couldn't what she had recall what had

specifically specifically told told hire. (N.T„ 5114121, him, (N.T. 5/14/21, p.

p, 473).

473). Additi.ona]ly, at this Additionally, at this time, Attomcy Wade time, Attorney Wade

informed informed that that court court that

that he

he had

had instructed

instructed Nis.

Ms. Bair

Bair not

not to discuss this

to discuss this topic during her topic during her testimony.

testimanyy.

N,T. N.T. 5114121, 5/14/21,pp. 473, 500). After 473, 500). After consideration consideration of

of providing;

providing the

the jury

jury with,

with aastrong

strong curate

curative

instruction, instruction, the court granted granted Defendant's

Defendant's motion for aamistrial is of the serious nature ol in light of of

4

d

the instant matter.

On Junc June 24,

24. 2021,

2021, counsel

counsel for

for Defendant

Defendant filed

filed aaMotion to 1)ismiss Motion to Dismiss and Bar Bar Retrial.

Retrial

Aftcr After consultation consultation with counsel regarding with counsel regarding their availability, by their availability, by order order dated

dated July

July 1,

I, 2021, this

2021, this

court scheduled court scheduled an evidentiary bearing an evidentiary relative to hearing relative to Defendant's Defendant's Motion

Motion for September 16,

1f, 2021

2021.

In. In addition to to the

the testimony noted above, at noted above, such. hearing, Attorney at such Attorney Wade credibly Wade credibly

testified that he did not.

not seek to elicit

elicit any testimony from Ms. Bair regarding any physical contact any testimony

between Defendant and Ms.

Ms. Payne. (N.T. 9/1621,p.

Payne. (N,T, 9110121, p- 49-50,53).

49-50, 53). Attorney Wade further

credibly credibly testified testified that he he was

was not seeking to cause

not seeking cause aamistrial mistrial or

or prejudice

prejudice the (.T, the defendant. (N.T

9116/21, 9/16/21, p.

p. 49-50, 53). Attorney 49-50,53). Attomey Wade

Wade testified

testified that the

the Commonwealth was pleased pleased with

with the

the

progression progression of the the trial and

and that the

the award of a.a mistrial did did. not

not place

place the Commonwealth

Commonwealth in aa

more advantageous position. (N.T advantageous position. (N.T. 9/16/21,p.

9/16121, p. 43, 50-51).

50-$1). Following this hearing, hearing, the court.

the court

ordered ordered submission of written written legal

legal memorandum by counsel counsel for

for the parties.

parties

It is noted that that counsel for the defendant filed aasecond Motion to D Dismiss

si miss and Bar Retrial

on on November November 8, 8, 2021.

2021'7 On

O Nuvernbcr

November 19, 2.021, counsel 19, 2021, counsel for

for Defendant

Defendant filed

filed their written

their written

memorandurn memorandum of law. On of law. On December

Deember 17,

7 2021,

2012 , the attorneys for

the attomeys the Commonwealth for the Commonwealth filed filed their

their

memorandum memorandum of of laws.

la, As such, the matter is ripe ripe for review.

The The Double Double Jeopardy C,lauscs of Jeopardy Clauses both the United of both Mates Constitution United States Constitution and and Constitution

Constitution of

of

the the Commonwealth of Petm.sy Commonwealth of [van ia. "protect Pennsylvania "protect aadefendant defendant from repeated criminal from repeated criminal prosecutions prosecutions

for for the the same offense." Commonwealth v.

same offense." v. Byrd, Byrd, 209

209 A.3d

A.3d .351.353 (Pa. Super.

351, 353 (Pa. Super. 2019).

2019). As further

As further

noted noted by our Superior by our Court ;the Superior Court, the purpose purpose behind this prohibition behind this prohibition is is to

to prevent

prevent the

the government

government

Te 7 The court count is without without knowledge

knowledge as to why tor Defendant filed aasecond motion in this regard. It.

why counsel for noted..

At is noted

that that this this motion is nearly pearly identical to the motion filed previously on June Jame 24, 202I,

2021, but for the omission of 0fthree

three

para ,pphs relative to , paragraphs of Attomey to actions of Attorney Wade.

Wae Defenclw

Defendt makes 110 po rcferemce sccand motion in reference to the second it] his

supporting supporting memorandum, memoranda

& htIt is is noted memorandum references noted that the Commonwealth's rncrnorandum bath this docket number as well references both weil as charge eh arges

previously previously docketed docketed at

at Number

Number CP-36-CR-0{105109-2018-

€P.16-CR-000$109.201. On O May

May 31,

31, 2019, the

the court

court approved

approved tbic

the motion of

motion of the

the

Commonwealth Commonwealth to to nollu pole prosse

prosse the charges docketed at the changes at Number CP-3 6-C R-0005109-2018.

Number CP-36-CR0005109-201

from making making "repeated "repeated attempts subjecting attempts to convict the accused, thereby subj to ecting him to

embarrassment, embarrassment, expense, and ordeal expense, and and compelling ordeal and compelling him him to

to live in aacontinued

live in continued state state of

of anxiety

anxiety

and and insecurity insecurity as as well

well as entrancing tbe

as enhancing the possibility possibility that even though that even though innocent innocent he may be

he may be found

found

guilty." guilty." C'omrnonkvealth Commonwealth v. v. Wilson, Wilson, 227

227 A.3d 928, 936 (Pa.

A.3d 928,936 (Pa. Super.

Super. 2020).

2020).

It It has has been

been long standing jurisprudence, long standing _jurisprudence, under under both and federal both state and federal law, that that aa

subsequent subsequent trkd trial is

is prohibited

prohibited when

when aamistrial

mistrial resulted from prosecutorial resulted from prosecutorial overreaching in the

form for of of intentional intentional misconduct designed to misconduct designed to provokc provoke aa. mistrial.

mistrial. Byrd, 209 A..3d 353. In A.3d at 353. In

Comm onwealth v. Smith, Commonwealth ,Smith, the the Pennsylvania

Pennsylvania Supreme Court ruled that the the Constitution of this

this

ornmonwealth provides Commonwealth provides more more extensive double jeopardy jeopardy protections

protections than

than its

its federal

federal

counterpart. counterpart. Therein, Therein, the Supreme

Supreme Court held that

that retrial is impermissible not "not only when the

the

prosecutorial prosecutorial misconduct misconduct is

is intended

intended to

to provoke

provoke the

the defendant into

into mooring

moving for

for aamistrial,

mistrial, but

but

also also when the the conduct of the prosecutor prosecutor is intentionally intentionality andertaken undertaken to prejudice the defendant to

the point point of the denial of a a fair trial." Commorwealth Commornveallh •v. Mifh, 615 Stth, A.2d 321, 325 (Pa.

615 A,2d (Pa. 1980).

1.980).

Our Superior Superior Court has noted that Smith "Smith did not create

ercate a

a per se bar to retrial In in all cases of

intentional intentional prosecutorial overreaching. Rather, prosecutorial overreaching. Rather, the Smilh court primarily the Smith primarily eras was concerned with

with

prosecution prosecution tactics, which actually actually were designed to demcan or subvert the the truth seeking

process." process." Camrnonwealth Commorwealth v.

v. Lambert, 765 A.2d

A.2d 306,

306, 327

327 (Pa. Super.

Super. 2000).

2000).

As As succinctly stated by succinctly stated our Superior by our Superior Count,

Court,

The double jeopardy

jeopardy clause of the Pennsylvania Pennsylvania Constitution prohibits prohibits retrial of a defendant retrial of defendant when when the

the conduct of the prosecutor conduct of prosecutor is is intentionally

intentionally undertakers undertaken to

to prejudice

prejudice the

tbe defendant

defendant to

to the

the point

point

ofdenying of denying hint

him aafair

rair trial. However,

However. because of the compelling societal interest in prosecuting prosecuting criminal defendants to conclusion, Supreme Court has recognized that dismissal conclusion, our Supreme of charges is an extreme sanction that should be of charges be imposed imposed

sparingly only in sparingly and only cases of in cases of blatant

blatant prosecutorial misconduct.

prosecutoria! misconduct

Commonwealth Commonwealth v. Wilson, 147 v. Wilson, 147 A.3d

A.3d 7,

7, 1.3 (Pa. Super.

13 (Pa. Super. 2016)

2016).

In In Commonwealth v.

v. Krista,

Krista, _ _A.d

A.3d _ (Pa. Super,

Super. 214122),

2/4/22), Cie

the Superior Court noted

that that subjecting subjecting a a defendant

defendant to

to aasecond

second trial

trial following

following aamistrial

mistrial or

or a successful appeal

a successful appeal does

does not

not

ordinarily ordinarily oMend double jeopardy offend double jeopardy protections.

protections.

In In Commonwealth Commonwealth v. Johnson, 231 v Johnson, 231 A.3d 807 (Pa.

A.34 807 (Pa, 2020),

2420), our

our Supreme

Supreme Court

Court considered

considered

whether jeopardy clause bars retrial "where the Commonwealth whether the double jeopardy Cornmonwealth obtains aa. conviction

based based on on false false evidence evidence and.

and its misconduct,

misconduct, while

while not undertaken

undertaken with

with the intent to deny the the

defendant. a defendant a fair trial, nevertheless stems from prosecutorial prosecutorial errors that rise substantially substantially above

above

ordinary ordinary negligence." Johnson, 231 A.3d negligence." Johnson, 810. Therein, A.d at 810, Therei, the High Court held that

`iprosecutorial "prosecutoral overreaching overreaching sufficient to to invoke

invoke double jeopardy

jeopardy protections includes ineludes

misconduct misconduct which not only which not deprives the defendant only deprives defendant of his right to toafair trial,

trial, but

but is undertaken

recklessly, recklessly, that is, is, with

with aaconscious disregard disregard for

for aasubstantial .risk

risk that

that such will.

will be the result

result.

.Johnson, Johnson, 231 A.3d A,3d at 826. In so holding, holding, the Court clarified that it did not the Count not "suggest that all

situations situations involving, involving, serious prosecutorial prosecutorial er

errorrimplicate

implicate double jeopardy."

jeopardy." Id

id Rather, "retrial

is is only only precluded precluded where tbore.

there is .aa prosecutorial prosecutorial overreaching which, in turn, implicates imp] ica#es some

sorno sort

of conscious act or omission."

omission.." Id.

Id

earns, 70 A,

In Commonwealth v. Kearns, 3d 88!

A.3d 881. (a.

(Pa.. Super. 2013), our Superior Court held that

a a prosecutor's prosecutor's gross gross negligence

negligence in

in failing

failing to obtain and produce the Est-arrest the defendant's post-arrest

written statement to to police

police and statement of a a principal eyewitness was an insufficient hasis basis upon

which which to to bar retrial on double jeopardy grounds_ Rather, the court found jeopardy grounds. found the appropriate remedy

in in such such circu rnstanc es was circumstances the grant was the grant of a

a new

new trial.

trial, This principle

principle has reaffirmed has been recently reatlrmed

by by the the Superior Superior Court. See, See, Commonwealth

Commonweallh v.

v. Krisla,

Krista, Aid

Ad (Pa, 214122.) (holding (Pa Super. 2/4/22)

that that improper improper commentary by a commentary by aprosecutor prosecutor impinging

impinging upon the defendant's right to remain silent

did did not not warrant warrant double double jeopardy relief; Commonwealth jeopardy relief); Commoniveallh v, • King and Haskins, A.3d ('a _A.d • (Pa.

88

Super, Super, 12114121)

12/14/21) (holding (holding that

that aaBrady

Brady violation b

byy the Cornmonwcalth, in and the Commonwealth, inerits and of itself, merits

relief relief in in the the farm

form of aanew trial

trial but

but not

not the application of the double the application double jeopardy liar precluding jeopardy bar

retrial); retrial); C'ommorr►+'ealth Commonwealth v. v. Sanchez, 262 262A.2d 1283 (Pa. Super.

1283 (Pa. Super. 2021) ( ommonivealth's 2021 (Commonwealth's

negligent negligent failure failure to disclose DNA

to disclose evidence to DNA evidence the defendant before to the before or during trial or during did not

trial did not rise

rise to

to

the the type type of of intent intent or rceklessness

recklessness requiring,

requiring dismissal on double dismissal on double jeopardy grounds);

jeopardy grounds);

Commonwealth v.

v Rivera, 241

24I A.3d 4H

411 (a.

(Pa. Super,

Super. 2020) (unpublished mcmorandum)'• memorandum)

(multiple (multiple systematic systematic errors by

by the Commonwealth, including, but riot not limited to, introducing

photographs photographs at at trial

trial that it

it failed

failed to

to disclose to

to appellants

appellants prior to

to trial,

trial, destroying relevant text text

messages, messages, and and failing

failing to disclose prior prior to trial

trial inculpatory statement made inculpatory statement made by one appellant to to

went agent vvere were the result of negligence negligence and did not

not ri se to the level of intent or recklessness required rise

to warrwit warrant double jeopardy jeopardy relief).

relief.

Mule Rule 573 573 of

0f the Pcnasylvmiia

Pennsylvania Mules of Criminal Rules of Criminal Procedure, as well Procedure, as well as

as Brady

Brady v.

Maryland"' Maryland" and Giglio Giglio v. Unite 'FStares", v. United Sates', and their progeny, progony, govem

govern discovery in criminal crhninal

cases,

eases,

and mandate that the Commonwealth Ccmnionwealth produce

produce to the defendant, inter later alia, all potentially

exculpatory evidence. exculpatory evidence. Rule Rule 573 of the Pennsylvania Pennsylvania Mules

Rules of Criminal Procedure Procedure "imposes

greater greater obligations obligations upon prosecutors than the Brady requirements." Commorwealth C mmonweallh vv.

Maldonado, Maldonado, 173 A.3d. 769, 173 A.34 769, 774 (Pa.

(Pa. Super.

Super. 2017). 1-

be Commonwealth violates Brady by failing 2017). The by to disclose exculpatory exculpatory evidence as well as evidence that may be used to impeach aaprosecution

witness.. witness. Commonwealth v.

v.Johnson,

Johnson, 174 A.3d

A.d 1050, 1056 (Pa.

(Pa. 2017,).

2017. Stated another way, the

duty duty to disclose may to disclose encompass impeachment may encompass evidence as impeachment evidence as well wall as

as directly

directly exculpatory evidence.

exculpatory evidence.

9See, Pa. R—A.P. 126(b) See,Pa.R.A.P. (stating non-prcc 1264) (sating cdential decisions nor-precedential decisions of efSuperior Lout# filed after May 1, Superior Court I, 2019 may tray be cited

for persuasive persuasive value).

value)

37'3 U.S. 83 (19613) (holding that the government's 37US.83(1963(boding gaytemntent's withholding of evidence that is material to the determination deterinhintivn of

eitherguiit either guilt or pun ishrnent of a criminal defendant violates, punishment violates the defendant's defendat's constitutional rEaht right to due process)

process)-

405 U.S. 15D '40$u.S. (.1972) (holdhig that when 150(1972)(holding when the reliability reliability of aagovernment government witness

%vitness may well be determinative of afguilt gutll

or innocence, innocence, that that gpndisclosure

nondisclosure of cvidonce evidence affecting

affecting cri.dibility

credibility of

of the

the witness

witness violates the

the defendant's

defendant's

constitutional tight process).

right to due process)

99

ommorm ,calth v. Commonwealth v. Lesko, Lesko, 15

15 A.

A.3dd345 (Pa. 2011);

345 (Pa. Commomverdth v.v. Lambert, 20I1; Commorwealth 884 A.2d Lambert, 884 A. 2d 848

848 (Pa

(Pa.

2005). 2005).

Rule 573 $73 of

of the

the Pcnnsylvania

Pennsylvania Rules of

of Criminal Procedure

Procedure mandates disclosure of mandates the disclosure of

certain infomation certain information by by the Coniumonwealth upon the Commonwealth upon request request by

by the defendant. These

the defendant. `dhcsc items items include,

include,

in in pertinent pertinent part, pant, "any evidence favorable "any evidence to the favorable to accused that the accused that is material either is matcrial either to guilt or to guilt or

punishment and is punishment and is within within the

the possession or control possession or control of the attorney of the attorney for

for the Commonwealth."

Commonwealth."l 2 In

[n

addition, addition, Rule Rule 573 establishes

establishes that aatrial court that count has

has the discretion to

the discretion to mandate the disclosure mandate the disclosure of of

certain certain other other information information upon

upon pre Idai motion

pretrial of the

motion of the defendant and and upon

upon aa. showing

showing that such

that such

information information is is material

material to

to the

the preparation of the defense preparation of defense and and that

that the request is reasonable, request is reasonable. Thcse These

items items include, include, in pertinent part, part, "all

"all written

written and recorded statements, statements, and substantially verbatim and substantially verbatim

oral oral statements, statements, of eyewitnesses the of eyewitnesses Commonwealth intends the Commonwealth intends to call at to call at trial"' and trial" 3 and "any

"any other

other

evidence specifically identified by by the defendant, provided provided the defendant can the defendant can additionally additionally

establish establish that that its di&closure

disclosure would

would be in

in the interests Of

the interests justiee."' 4 Rule of justice."" Rule 573

573 also imposes aa

also imposes

continuing duty of continuing duty of such such disclosure,

disclosure, both prior

prior to and during

to and during tnat.'

trial.'

Herein, Herein, Defendant alleges that Defendant alleges that his constitutional due his constitutional due process process rights

rights were violated in that violated in

the the Commonwealth Commonwealth failed failed to disolose certain to disclose certain information regarding statements information regarding ma(cments made to the made to

ommon weal th by Commonwealth by Antasia Antasia Bair.

Bair. As detailed above,

As detailed on May above, on May 10,

10, 202 1, Antasia

2021, Antasia Bair niet with Bair met with

Assistant Assistant District District Attorney Coder Wade Attorney Cody Wade and

and iDctective Sergeant. Robert Detective Sergeant Robert Whiteford of the Whiteford of the

Lancaster Lancaster City City Bureau of Police

Bureau of Police to

to prepare

prepare for

for her at trial.

ugcorning testimony at

her upcoming the trial. During the

meeting, meeting, Ms..

Ms. Bair BHair provided infon

provided nation, which information,

- which she had not she bad not previously disclosed, including previously disclosed, an including an

allegation allegation that that Defendant

Defendant had physically choked Quetesha physically choked Quetesha. Payne at aaTurkey Payne at Turkey Hill

dill convenience

convenience

Pa.R-Crm.P.$730801% pARCrim.P 12 57.i(B)(L)(a)- ' Pa.R.Crun.P.573(3)(2)(a)(H)- Pp.R.Crim.P. 573(BX26a¥i) I• Pa.R. riin.P. 573(B)(2) 'pA.R.Crim.P (a)(iv).

$7308X26Ki9)

Is Pa-R- rEm.P. 573(D). puR.Crim.P, 5$73(D store store shortly shortly before before the instant

instant homicide

homicide would occur at aaseparate would occur separate location location in the City

in the City of

of

Lancaster. Lancaster. This This information

information was not

not included in

in. the supplemental

supplemental report

report prepared

prepared regarding the

meeting meeting of of May May 10,

10, 202 1, which

2021, which was presented presented to counsel for Defendant to counsel on May Defendant on 12, 2021 May 1, 202 1.

Additionally, Additionally, Defendant asserts that the the attorneys

attorneys for the Commonwealth failed failed to

to mention this

information during during aadiscussi

discussion court„ outside of the presence on with the court, presentee of the jury, on May 13,

'021. 2021 It is recognized recognized that this discussion pertaining pertaining to other information provided by Ms. Bair air

during during the the meeting of May meeting of May 10,

10, 2021.

2021.

"A A party party seeking

seeking Brady haled

based relief

relief bears

bears the burden

burden of establishing entitlement to such

relief by by proving proving that:

that. (I

() the evidence

evidence at

at issue

issue was

was favorable

favorable to the accused, accused, either

either because

because it is

is

exculpatory exculpatory or or because itit impeaches;

impeaches; (2)

(2) the evidence

evidence vvas suppressed by was suppressed by the

the prosecution, either

either

willf41.1 willfullyyor or inadvertently; (3) prejudice inadvertently; and 6) prejudice ensured to the the defendant..

defendant."'° Commonwealth Common vealth v.v. Paddy,

15 15 A,3d A.3d 431, 431, 450 (201.1).

450 (2011).

In the instant matter, matter, the parties have presented the parties presented inconsistent positions relative to the

nature of ofthe the information in gaestion.

question. The argues that the challenged comments of The defense argues orMs.

Ms.

Bair are favorable favorable to Defendant as impeachment impeachment evidence as

as "it was new

new .information,

information,

inconsistent with Bair's air's previous

previous statements to police and prior sworn testimony testimony, ,as well as

inconsistent inconsistent with other outer eyewitnesses Hill; all of which eyewitnesses at Turkey Hill which goes goes directly to

to Bair'

Bair's

credibility." credibility." (Defendant's (Defendant's Brief in

in. Support of Granting Motion for Dismissal and Barring Retrial

— p.p, 14).. Conversely, the I4). Conversely, Commonweaith asserts that the disclosure in the Commonwealth in question by Ms.

Nis. Bair

Bair is

not inconsistent inconsistent with her prior statements her prior statements. Rather, Rather, the

the Commonwealth posits

posits that M1Ms.;. Bair's

current statements, statements are simply simply more detailed than her prior statements and would not be the

subject subject of of proper proper impeachment. (Cominonwealth•s Brief impeachment. (Commonwealth's Opposition to the Brief in Opposition the Defendant's Dcfendarlt';,•

Motion Motion for Di =is sal and Barring retrial Dismissal Retrial —pgs. 8, pgs. 9, 10-12),

10-12).

10

IO

In In assessing assessing the

the parties'

parties' respective

respective posiEions,

positions, this court is

this court is placed

placed into

into the difficult

the difficult

situation situation of of assessing

assessing the

the favorability of this

favorability of this information information to

to the defer&dit. As

the defendant. As recognized ky our recd sized by our

appellate appellate courts, courts,

A

A deternaination

deternination of whether the prosecution witnesses the statements of prosccution witnesses would have been would have been helpful helpful toto the

the defense

defense is

is not

not to

to be

be made

made byby the

the

prosecution prosecution or

or the

the trial

trial court.

court., ,.. Matters

Matters contained

contained in

in a

a v6tness'

witness

statement statement may appear innocuous may appear innocuous to to some, but but have great significance to counsel to counsel viewing

vewing the

the statements

statements from

from the

the perspective of

perspective of an

an advocate

advocate

for the

the accused

accused abort

about to cross-examine aawitness.

to cross-examine witness,

Commonweallh Commonwealth v.v, Alston, 41slon, 864 A.2d 539, 547 (Pa. Super.

A.2d 539,547(Pa. Super. 200-4)

2004) (citing

(citi )g Commonwealth

C'onimonwealth v.v. French.

French,

611 ,A2d A.24 175, 179-80 (Pa.

(Pa. 1992).

1992).

The The allegations allegations of Ms.

Ms. Bair

Bair at issue herein

herein .are clearer not of an inherent arc clearly inherent exculpatory

nature inasmueh inasmuch as said statements allege that that the defendant physically physically assaulted aafemale fernale in the

the

hours which preceded preceded the

the homicide.

homicide. As such, Ms.

As such, Ms. Bair#s are in the Bair's claims are the nature of aaprior bad nature of

act.

Defendant claims that the new pew information would be useful for impeachment purposes in

that M s. Bair had not previously Ms. previously raised such claims.

clainns. As noted by

by the Commonwealth,

C;crmmonwcalth,

Pennsylvania Pennsylvania jurisprudence has long jurisprudence has long held held that

that "it

it is

is well-established

well-established that

that for

for aastatement

statement to

to be

used for impeachment, impeachment, aastatement must be be inconsistent with, and not just different, .from from trial

testimony. Mere omissions from prior testimony.Mere prior statements do not render prior prior statements inconsistent for

impeachment impeachment purposes." Commonweallh v. Johnson, purposes." Commonwealth ,luhnason, 758 A.2d 166, I70 170 (Pa.

Pa. Super. 20100); ee

Super 2000) ,see

also, also, Commonwealth v.

». Washington,

Washington, 700 A.2d 400, 4I 411 n.17 {Pa.

(Pa. 1.997); C mmon w

ealth vV.

1997) Commonwealth

JWcEachin, McEachin, 537 537 A.2d 883, 891 (Pa.

A.2d 883,891 Sapper. 1988);

(Pa. Super. 1988); Commonwealth v.

• Rue, A.2d 973,976

Rue, 524 A.24 97:3, 976 (Pa.

Super. Super. 1987);

1987); Commonwealth v.v. Hammond, end, 454 A.2d 60, 65 (a.

(Pa. Super. 1982). "Where aa

vvitrwss witness offers offers testimony that is testimony that is more

more detailed

detailed than

than the

the vdtness'

witness' prior statement, that prior statement, is not that is not an

ari

inconsistent inconsistent statement upon which statement upon which one can impeach."

one can impeach." Commonwealth ».v. layiner„ IS3 Rayner, 15 3A.3d

,3d

11

II

1049, 1049, 1062 (Pa.

(Pa. Super. 2016), Accordingly, Super. 2016). Accordingly, the additional additional allegations Ms,. Bair allegations at issue raised by Ms.

would would not not be traditionally appropriate impeachment traditionally appropriate impeachment material as aaprior inconsistent statement statement.

Although Although the statement. at issue would not serve as the basis of impeachment as a the statement aprior

inconsistent inconsistent statement, statement, itit must

must be

be recognized

recognized that the Commonwealth that the Commonwealth has conceded that has conceded that the

the

statement statement lacks lacks any

any additional support from the additional support the other evidence evidence in

in this

this inatter. Stated. another matter. Stated

way, way, the the Commonwealth Commonwealth went went so far as to concede that they have no reason to believe that no reason that Ms.

Bair's statemew statement has any any accuracy.

accuracy. Accordingly,

Accordingly, Defendant. of Defendant could arguably seek introduction ol

the statement to cast doubt upon upon Ms. Fair's credibility., independent of any concerns Hair's overall credibility,

regarding inconsistency. 16 As regarding inconsistency." such, this As such, court cannot this court cannot find

find this statement as

this statement as wholly

wholly lacking

lacking

exculpatory exculpatory value, value.

Tinting Turning to the next prong prong of the Brady

Brady analysis, the burden of ofproof

proof is on the defendant

to to demonstrate demonstrate that that the Commonwealth withheld the Commonwealth withheld or suppressed suppressed evidence.

evidence. Commorwealth

Commonwealth v_

Porter, Porter, 728 A, 2d 890, A.2d 590, 898 (a.

(Pa. 1999).

1999). As argued

argued by

by the

the Commonwealth herein, it is recognized

that that Pennsylvania Pennsylvania jurisprudence jurisprudence iinposes constitutional requirement imposes "no constitutional tbat the requirement that prosecution the prosecution

make a a complete complete and detailed accounting accounting to

to the defense of all police investigatory work on aa.

case." Commonwealth •ommoniveulth v.

• Natividad, 200 A.3d 11, 26 (Pa. 2019) (quoting 11,26 v. Illinois, 08 (quoting Moore v». 408

UJ US..786,795(1995))-

786, 795 (1995)). Under Brady, Brady, "the prosecutor

prosecutor is not required to deliver his entire file iile to

only to disclose evidence favorable to the accused that, if suppressed, would defense counsel, but only

deprive deprive the the defendanI defendant of a

a fair trial," Commonnealih v, trial." Commonwealth v. Haskfna, Haskins, 60 A.3d 528,546-47 528, 546-47 (Pa

(Pa_

uper. 2012) Super. 2012) (gooting (quoting United Slates

States •v. Bagley, U.S, 667, 677 (1985).

Bagley, 473 11.$. (1985)). That noted, nosed, the

the

'6 Whike while itit is not within the purview purview of the court to speculate of the speculate as to the strategic disions decisions of counsel for the deferndant, defendant, it cannot be overlooked that inlroduction introduction of Ms. Hair's statements M«. Baits statemcnLs in this regard nerd would certainly expose the jury to t]wjury to the the prejudicial

prejudicial nature of the the prior

prior bad acts

acts alleged.

alleged in the

tbe statement.

statement, As will

wit Le addressed further herein, it be l is is the the prr judicial. impact prejudicial impact of welt such statements wllicl, which led.

led the court to grant

gart Defendant's request request for a

a mistrial in #his

this

matt er. matter

13

appellate appellate courts of this courts of Commorkw alth have this Commonwealth have recognized recognized the pretrial disclosure the pretrial disclosure of prior of prior

statements statements of of Commonwealth

Commonwealth witnesses

witnesses to

to the defense. See, Commonwealth v.

the defense. Conlakos, +24 v. Contakos, x}2.4

A.2d A.2d 1284 (Pa, 198 1284 (Pa, 1) (majority 1981) (majority of

of court

court agreeing

agreeing that

that defense is entitled

defense is entitled to

to notes of any

notes of any

interviews interviews conducted by the conducted by the prosecution prosecution where

where the

the natcs

notes are

are aasubstantially

substantially verbatim record of verbatim record of

the the ii}teruiew}; Commonwealth v. Grayson, interview); Commorwealth Grayson, 353 353 A.2d

A4.24 1'1976)(a

761) (a new trial was

new trial awarded where was awarded where the

defense was denied access to review pretrial pretrial statements made by statenents madc Comm onwcalth witnesses), by Commonwealth witnesses);

Commonwealth a v. .Morris,

Morris, 281 A.2.d 8.51 (Pa.

A.2d 85I (Pa. 1971) (where: law enforcement officer conducted 197D (where

an interview of of the victim

victim in

in aarape prosecution

prosecution and took

took extensive notes,

notes, those notes were

subject subject to to disclosure disclosure to

to discovery

discovery by defense); Commonwealth V.

by defense); v. Parenle, Parente, 440 A.2d (Pa.

A.2d 549 (Pa

Super. 1982) Super. 1982) (the (the recorded or substantially substantially verbatim statements by eyewitnesses that the

Commonwealth intends to call Commonwealth call at at trial must be available trial must available to defense counsel to defense counsel upon

upon aamotion

motion for

for

pretrial discovery); see contra, pretrial discovery); c: nlra, Comorwealth Commoravealrh v.

• Steder,

Stetler, 95 A.3d 864 (a.

A.3d 864 (Pa. Super. 204)

2014)

(informal (informal notes notes compiled

compiled by

by investigators during interviews investigators during are not interviews are subjcet to not subject to discovery

discovery

requirements requirements under Rule 573 of the Pennsylvania Pennsylvania Rules of Criminal Procedure in that they are

not not substantially substantially verbatim oral statements verbatim oral statements ;signed, adapted, or signed, adopted, or otherwise otherwise shown

shown to be

to be

substantially substantially verbatim statements of the witness),.

witness). There can be no doubt that these holdings

have have been been largely largely incorporated

incorporated into Rule Pcnnsylvzinia Mules Rule 573 of the Pennsylvania Procedure.

Rules of Criminal Procedure

Applied Applied to the instant instant matter,

matter, the statements at issue were first by 14s.

first offered by Ms, ]lair durhig Bair during

a a meeting meeting which occurred on May 1 p.2021 May 10, 2021 at the Lancaster City Bureau of Police Headquaders.

Police Headquarters.

Present Present at at this this meeting

meeting were

wereMs.

Ms. Bair,

Bair, Assistant

Assistant District

District Altomey

Attomey Cody Wade,

Wade, and Detective

Detective

Sergeant Sergeant Robert Whileford.

Whiteford. The purpose

purpose of this meeting was to permit p Ms. Bair to review her

prior prior statements and te.•timany statements and testimony so so as

as to prepare

prepare leer Ior testimeiiy her for trial. This meeting testimony at trial xvus not meeting was not

recorded, recorded, nor nor were any verbati',

were any or substantially verbatim or substantially verbatim accounts preserved verbatim account of this preserved of this meeting.

meeting

As As previously previously addressed, addressed, Assistant District Attorney Assistant District Attorney Wade credibly testified Wade credibly testified that he he had

had no

lio

reason reason to to believe believe the accuracy of

tbe accuraey of Ms.

Ms. Bair's representations representations as

as they

they were not supported by not supported by any

any

other widence in other evidence in this this matter.

matter. As

As such„

such, itit is clcar

clear that. Attorney Wade discounted that Attorney discounted these

allegations and instructed allegations instructed Pis.

Ms. Bair

Bair that

that they

they woald

would raised at trial.

raised at trial. At the direction At the direction of

of Attorney

Attorney

Wade, Wade, Detective Detective Sergeant Sergeant Whitef"ord

Whiteford prepared

prepared a supplemental report regarding the a supplemental interview the interview

which was promptly promptly provided

provided to counsel for the defendant, Sergeant. %Vhiteford defendant. Detective Sergeant Whiteford

credibly credibly testified testified that that lie

he did not

not recall hearing

hearing Ms.

Ms. Bair

Bair making statements during making any such statements during the

meeting meeting and and that that he had

had briefly

briefly .stepped ofthe stepped out of the mocting.

meeting. Additionally,

Additionally, Detective

Detective Sergeant

Whiteford Whiteford credibly credibly testified that any representations that any suggestive to the representations suggestive contrary made at the time the contrary

of trial trial were the the result of confusion

confusion between

between this

this case and other matters. It must also be be noted

noted

that, at the time that, time of trial, Attorney Wade trial, Attorney indicated to Wade indicated to the cozu-t court that had aavague that he had vague recollection

that that lbs.

Ms. Bair Bair had told him during

had told during the

the meeting that Defendant meeting that Defendant and lots.

Ms. Payne had "gotten

Payne had "gotten into

into if

it „

at at the Turkey Turkey bill Hill convenience store, but.

but he was

was unable to describe her comments during the to dcscribe

meeting meeting with any additional with any additional specificity specificity.

With regard regard to the issue of

to the of materi a] i ty, evidence

materiality, -evidence is material. ifthere material if there is aareasonable reasonable

possibility possibility tliat, that, had the evidence been disclosed to the defense, the result of the trial would have

been been different." Co root mreaf hv.

different." Commonwealth v. Lambert, 8$4 A.7d Lambent, 884 A2d at 854; See also, Commonwealth vV-

CChins•, 988 Collins, 888 A.2d A.24 Sb4,

564, 577-7

577-78 (Pa.

(Pa. 2005),

2005). The

The mere possibility

possibility that an item of undisclosed

information information might might have helped

helped the defense, or might might have affected the outcome of the trial, does

not not establish establish materiality in the materiality in the constitutional constitutional sense. Corm aniveafth v.

sense. Commonwealth 807 A.2d • Chambers, 807 A,2d 8T2, 872.,

87 (Pa. 887 (Pa. 2002).

2002).

granted Defendaw's

As the court granted Defendant's request request for aamistrial, this court cannot cni-not weigh any

determination determination of of materiality against the materiality against the outcome outcome of

of trial

trial as

as the

the matter never reached

matter never verdict.

reached verdict

That said said,;it must be considered that Ms..Bair eyewitness to the homicide. Rather, Ms. Bair was not an eyewitness

based upon upon the the credible

credible representations

representations made

made by

by the attorneys for

the attorneys Commonwealth, Ms, for the Commonwealth, lvls. Bait Bair

was was presented presented for the Iimi.ted for the limited purpose of testifying purpose of testi Cying regarding regarding her

her observations of the argument observations of argument

which occurred at the the Turkey

Turkey Bill convenience store prior to the Hill convenience the homicide, homicide, as well to corroborate;

to corroborate

certain certain prior prior consistent statements made consistent statements made by an eyewitness by an eyevkitness to

to the

the homicide

homicide which identified which identified

Defendant Defendant as shooter.

as the shooter.

Mule While evidence evidence that Ids. Bair is Ms. BEir is currently

currently raising claims that Defendant Dcfend ant physically

ply sic ally

grabbed grabbed a a female during the argument female during argument at at the Turkey

Turkey Hi I

HillIconvenience

convenience store,

store, and that such

and that such

evidence evidence is not supported supported by

by any other evidence,

any other evidence, may arguably may arguably be helpful in be helpful in the impeachment of the impeachment of

her credibility, credibility, it it is

is not of such

not of quality that

such quality that there is is a

a reasonable

reasonable possibility that it possibility that would .lead it would to aa

lead to

different different verdict verdict at

at trial.

trial. Additionally,

Additionally, this court cannot this court cannot overlook overlook the prejudicial impact impact of

of such

such

testimony testimony as reflective reflective of

of prior

prior violent

violent acts

acts orn

on the

the part of the

part of the defendant

defendant shortly before

before the

horn i6de. ire homicide In suggesting suggesting the benefit of the benefit of introductio nof introduction of such

such evidence

evidence for

for impeachment purposes, impeachment purposes,

Defendant, herein, herein, minimizes the integrated inculpatory be integrated aspcets, which, taken to inculpatory aspects, in their context,

substantially substantially undermine undermine the allegedly exculpatory the allegedly exculpatory value of the value of staternent.

the statement.

Accordingly, for the Accordingly, for the foregoing reasorps, the foregoing reasons, the court count finds that Defendant finds that Defendant has failed to has failed to

establish establish ruateriality materiality in

in the constitutional

cons titudonal sense.

sense. Therefore,

There Coro, Defendant

Defendant has

has fail ed to

failed to prove

prove that

that

any any Brady/Giglio Brady/Giglio viol adan occurred violation occurred in this matter.

in this matter. Assuming, Assuming. arguendo,

arguendo, that

that aarevieAins court

reviewing court

may may find such such a a violation,

violation, there

there is

is no evidence of

no evidence of record suggest that record to suggest any lack that any lack of

of disclosure

disclosure; by

by

the attorneys the attorneys for for the Commonwealth

Commonwealth resulted from any resulted from any intentional, willful, or intentional, willful, or reckless reckless conduct,

conduct,

as opposed opposed to mere inadvertence.

inadvertence

Mast Most importantly, importantly, it must be recognized recognized that the mistrial granted grwited in this matter, upon

Defendant's Defendant's motion, motion, did not pertain

pertain to any purported discovery violations.

violations. Niore

More specifically, the

court court granted granted a a mistrial

mistrial in

in this

this matter

matter because the jury

because the jury was

was presented

presented with

with testimony

testimony regarding aa

purported purported prior prior bad

bad act allegedly committed act allegedly committed by the defendant some the defendant some time before, and at time before, at aa

diff'mnt different location, location. from

from the hom]6de 17 .

homicide"

In assessing In assessing this this claim, as noted

claim, as above, the noted above, the count

court rinds that Attorney finds that Attorney NVade credibly Wade credibly

testified testified that:

that: he

he did

did not

not intend

intend to

to in trod ace this

introduce this evidence at trial18;

evidence at trial"; he admonished Ms.

he admonished Fair not Ms. Bair not

to to present present this this testimony at trial,

testimony at trial; he did not he did elicit such

not elicit such testimony; was surprised testimony; he was surprised by such such

testimony; testimony; and, and, he

he dial

did not seek to

not seek prejudice the to prejudice defendant's right the defendant's to aafair right to fair trial. Attorney Wade trial. Altomey Wade

further credibly testified further credibly testified that that the Comronwealth has the Commonwealth has received received no

no benefit from the

benefit from award of the award of

Defendant's Defendant's motion motion for

for a

a mistrial

mistrial in

in this.

this utter.

matter

Accordingly, Accordingly, based upon upon the

the totality of the

totality of evidence presented, the evidence presen(ed, it is clear to is clear to this

this court

court that

that

the the introduction introduction of of the challenged

challenged testimony solely the testimony was solely the result result of an unexpected "blurt out"

Out" on

the tbe part part of of aalay lay witness,

witness, despile the reasonable despite the reasonable attempts of the:

attempts of attorneys for the attorneys for the Commonwealth the Commonwealth

to to prevent prevent such. court finds such. The court finds that that the

the record

record in this

this natter

matter is devoid of

is devoid of any

any evidence

evidence that

that the

the

Commonwealth Commonwealth acted acted in

in an intentional or

an intentional or reckless manner. The court manner. The further finds court further that the finds that

record record in this matter in this matter is devoid of is devoid of any

any evidence of prosecutorial evidence of prosecutorial overreaching overreaching which, turn, which, in turn,

implicates implicates .some some sort ofconscious omission, Accordingly, conscious act or omission. Accordingly, the double jeopardy bar of

retrial retrial is is not wwrrantcd warranted in

in this

this matter.

matter. Rather,

Rather, this correctly granted this court correctly granted. Defendant's Defendant's motion for

a a mistrial mistrial upon upon the

the inadvertent

inadvertent admission of the the prejudicial

prejudicial prior

prior bad acts evidence. As the result result

thereof, thereof, Defendant Defendant will will receive

receive the

the benefit of aainew

benefit of new trial

trial untainted by

by such

such evidence.

evidence

"At trial, the Conmonwralth Attial, CorrowtAth offered no argument argumcrit regarding admissibility of regarding the admissibility of such testimony testimony under any

recognized exception recognized exception to to the general prohibiticm general prohibition against the admission adoiso of prior

poor bad acts

act evidence.

evident.

I' The re court further further Cnds ffiat the

fade that the Communwea[th Conorwesth coted cDrnmitted, mo nip violation of any

any{ notice

nvti= requirements contained in Rule Rule 404(b)

404(b) ofof the the Pennsylvania

Pennsylvaia Rules Evidmee in Rules of Evidence in that that the ComTnonwealth was not the Commonwealth not intending to to introduce

intrcAuce such

evidence_ evidence

Rule Rule 587(B)

587() of the Pennsyl-vania of the Pennsylvania Bales of Criminal Rules of Crimizial Procedure directs that Procedure directs this court that this court must

must

make make a a determination determination as as to

to whether

whether Defendant's current challenge Defendant s current chaIJenge should should be

be deemed as

as

frivolous. frivolous. Said Said determination will impact impact tilt timing of

the timing ofany

any potential appeal of

potential appeal of this court's cciurt's

decision. Our appellate appellate courts have held that that a frivolous double

a frivolous double jeopardy claim i jeopardy claim iss"a claim claim

clearly clearly and and palpably palpably xiwithout

ithout merit,

merit; it

it is

is aaclaim [that]

[that] presents

presents no

no debatable question."

debatable question"

Commonweallh Commonwealth v. Orie, Orle, 33 A.3d 17, 21 (Pa.

17,21 (a. Super. 2011) (quoting Commonwealth v.v. Gains, 5S56 556

A.2d 870, 874-.5 (Pa. Super.I989)

874-5 (Pa. Super.198x) (en (era bane)).

bane)). Further, our appellate courts have held that,

Where Where the trial court has trial court has rejected

rejected a a criminal

criminal defendant's

defendant s double

double

jeopardy claim which jeopardy claim which isis at at least

least 'colorable' oror arguable', `arguable', access

access

to to appellate review

review is imperative. Otherwise, is imperative. Otherwise, the risk is the risk is simply

simply

too too great

great that the criminal

criminal defendant

defendant will

will be deprived of

be deprived of his

his

right to right to be

be free from an unnecessary retria] with its retrial with accornpan ing its accompanying

4.. Iexpense, trauma,

expense, trauma., and

and rigors incident to to aacriminal prose ution prosecution

for the second time.

Gains, 502 A,2d A.2d at 875 (citing Commonwealth Commonwealth'v.

v. Brady, 502 A.2d

A 2d 286, 288 (Pa. 1986)).

1986))

This court has failed to discover any any :further appellate guidance further appellate guidance to its analysis in this to aid its

regard. regard. This court is wholly cognizant ccgnizant ofthe cballen es, which the challenges which may result to the parties partics by any

rurther further delay delay in in resolution of this

resolution of i-nalter. That this mater. That noted, although this noted, although this court court has determined that has determined that no

no

evidence exists of record to support support Defendant's claims regarding the nature of conduct of the

attorneys attorneys for for the Commonwealth and that Commonwealth and that Defendant's Defendant's claim

claim lack merit, this

lack merit, this court

court cannot

cannot

conclude that that Defendant's claim presents no "no debatable question". Accordingly, this court finds

Defendant's claim to be Defendant's claim be of .aa non-frivolous mature.

nature

IN IN THE THE COURT COURT OF COM moN PLEAS OF OF COMMON OF LAN CAS TER LANCASTER OU TY, PENN COUNTY, SYLVANIA

PENNSYLVANIA

RIMI 1'AL CRIMINAL

COMMON WALTH OF COMMONWEALTH OF PENNSYLVANIA

VS. No.

No CP-36-CR-0002279-2018 CP-30-CIS-()0022.79-2018

WILBE TOIviELENDE WIL BERTO MELENDEZ

ORDER ORDER

AND AND NOW, NOW, this 2nd day

day of March, 2022,

2022„ following an evidentiary bearing in hearing relative to

Defendant's Defendant's Motion to Dismiss and Bar Retrial and tije Arritten submissi the written submissions ons of the parties, it i

is

hereby hereby ORDERED ORDERED that that said

said Motion

Motion is

is DENIED.

DENIED.

Pursuant Pursuant to to Rule

Rule 587(13)(5) of the

587(B)¥5) of the Pennsylvania Pennsylvania Rules of Criminal Rules of Criminal Procedure, Defendant Procedure, Defendant

is is hereby hereby advised that this order is immediately appcalable appealable as aacollateral order order.

BY BY :COURT:

OURT-

•Ak

•

IMEi ': LL M. SPAHN, JR., JUICE JR, JUDGE

ATTEST. ATTEST

Copies Copies to to:- 'T'ravis.

Travis S, S. Ar dersola, Esquire, Anderson, Esquire, First First Deputy

Deputy District.

Distriet Attorney

Attorney

Cody Cody Wade,

Wade, Esquire,

Esquire, Assistant

Assistant District Attorney District AttomeY

Jack Jack Mc 1Mon, Esquire, McMahon, Esquire, Counsel Counsel for

for Defendant,

Defendant, 139

139 North

North Croskey Street,

Philadelphia, Philadelphia, Pennsylvania„ Pennsylvania, 19103 Jeremy Jerem D.D, Williams,

Williams, Esquire,

Esquire, Counsel for

for Defendant„

Defendant, 13

13 East M ark[ Street,

East Market

York, Pennsylvania, 17401