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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37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

* Former Justice specially assigned to the Superior Court. J-S06022-23

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 ____________________________________________

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

____________________________________________

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).

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 long- established 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. ____________________________________________

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. ____________________________________________

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

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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- r � ~ g3 ' ~ - 7 ' c � re > €/ 1 � 25 :3s 4

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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

2 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, 202 33 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

5 5 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).

6 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.

7 7 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 crh- ninal 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) 88 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

99 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

1 12 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

13 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

14 14 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

15 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

16 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

17 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