J-S18011-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : EDGAR EUGENE STATLER : : Appellant : No. 52 MDA 2022
Appeal from the Judgment of Sentence Entered December 15, 2021 In the Court of Common Pleas of Franklin County Criminal Division at No(s): CP-28-CR-0002361-2018
BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and McCAFFERY, J.
MEMORANDUM BY BENDER, P.J.E.: FILED: JULY 26, 2022
Appellant, Edgar Eugene Statler, appeals from the judgment of sentence
of 11½-23 months’ incarceration, imposed after he was convicted of
manufacturing marijuana.1 A jury convicted Appellant of this offense at his
second trial, after his first trial resulted in a hung jury. Herein, Appellant
challenges the trial court’s denying his motion to bar reprosecution on double
jeopardy grounds. After careful review, we affirm.
A full recitation of the facts adduced at Appellant’s trials is not necessary
to the resolution of his claim in this appeal. Briefly, as summarized by
Appellant, his
home was searched by the Franklin County Sheriff’s Department on February 21, 2018[,] while the Sheriff’s Department was looking to serve outstanding warrants on Lenne Larue. Appellant permitted his residence to be searched by [d]eputies from the ____________________________________________
1 35 P.S. § 780-113(a)(30). J-S18011-22
Sheriff’s Department. During th[e] search[], an alleged marijuana grow operation was discovered in the basement. Lenne Larue was not found.
Appellant’s Brief at 9 (citations omitted).
As a result of this discovery, the Commonwealth ultimately charged
Appellant with one count of manufacturing marijuana. However, “[i]n the
intervening period, Appellant met with Detective [John] Brady [of the Franklin
County Drug Task Force] to discuss his cooperation with the Task Force.
Detective Brady took notes during these meetings, which included an alleged
confession by Appellant.” Id. at 9-10 (citation omitted). At trial, Assistant
District Attorney (ADA) Steven
Sess informed defense counsel and the [trial c]ourt that he was made aware of the interview and existence of the notes on the day of trial. ADA Sess indicated that he did not intend on using this information at trial and, thus, ADA Sess did not provide them to [Assistant Public Defender (APD) Christopher] Mosebrook on the day of trial. ADA Sess indicated to the [c]ourt that he ultimately decided to attempt to present this information “after [Appellant] opened the door by [APD Mosebrook’s] asking multiple questions about [Appellant]’s participation with the Franklin County Drug Task Force and claiming his … ultimate non- participation with the Task Force indicated [that] he had no useful information.”
Ultimately, a mistrial was declared after the [j]ury was unable to reach a unanimous verdict. Following this, the Commonwealth indicated [its intent] to re-try [Appellant] and [retrial was] scheduled for … October 16, 2020. On October 8, 2020, [Appellant] filed [a] Motion to Bar Reprosecution. On October 12, 2020, the Commonwealth filed an [an answer, and o]n January 8, 2021, a hearing on [Appellant]’s [m]otion was held.
Trial Court Opinion (TCO), 1/22/21, at 2.
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By order and opinion dated January 22, 2021, the trial court denied
Appellant’s motion to bar his second trial. The second trial was held on
November 1, 2021, after which the jury found Appellant guilty of
manufacturing marijuana. On December 15, 2021, the court sentenced
Appellant to 11½-23 months’ incarceration.
Appellant filed a timely notice of appeal. He then filed a timely, court-
ordered Pa.R.A.P. 1925(b) statement on January 14, 2022. The trial court
issued its Rule 1925(a) opinion on January 27, 2022, which fully incorporated
its January 22, 2021 opinion. Appellant now presents one issue for our review,
which is whether the trial court erred in denying his motion to bar retrial on
double jeopardy grounds due to prosecutorial misconduct during his first trial.
Appellant’s Brief at 8.
“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.” Commonwealth v. Culver, 51
A.3d 866, 882 (Pa. Super. 2012). We begin with a discussion of the evolving
standards in Pennsylvania governing double jeopardy claims premised upon
prosecutorial misconduct.
“Before September 1992, Pennsylvania’s double jeopardy protections
had been viewed as coextensive with those of the Fifth Amendment….”
Commonwealth v. Johnson, 231 A.3d 807, 819 (Pa. 2020). “Insofar as
individual rights are concerned,” the Double Jeopardy Clause of the Fifth
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Amendment2 “protects a defendant’s interest in having his fate decided by his
first jury.” Id. However, the Double Jeopardy Clause does not preclude retrial
just because prosecutorial misconduct occurred; rather, the general rule is
that “retrial is … allowed where the first proceeding ends in a mistrial….” Id.
An exception to the general rule permitting retrial was recognized for
prosecutorial overreach. The Double Jeopardy Clause barred retrial where
there was prosecutorial “misconduct intended to provoke a defense motion for
a mistrial or actions otherwise taken in bad faith to harass or unfairly prejudice
the defendant.” Id. at 820 (citing Lee v. United States, 432 U.S. 23, 34
(1977)). This standard was subsequently constricted in Oregon v. Kennedy,
456 U.S. 667 (1982). The Kennedy Court limited the Double Jeopardy
Clause’s bar of retrial due to prosecutorial misconduct to instances “where the
governmental conduct in question is intended to ‘goad’ the defendant into
moving for a mistrial….” Kennedy, 456 U.S. at 676. The Kennedy standard
continues to govern claims in federal courts.
In Pennsylvania, Kennedy only provides the floor of double jeopardy
protections premised on prosecutorial misconduct. In Commonwealth v.
Smith, 615 A.2d 321 (1992), the Pennsylvania Supreme Court “construed
Pennsylvania’s double[ ]jeopardy provision as supplying broader protections
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2 The Fifth Amendment to the federal constitution provides, in pertinent part, that “No person shall … be subject for the same offence to be twice put in jeopardy of life or limb[.]” U.S. Const. amend. V.
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than its federal counterpart as construed in Kennedy.” Johnson, 231 A.3d
at 821. Specifically, in Smith, our Supreme Court held that
the double jeopardy clause of the Pennsylvania Constitution prohibits retrial of a defendant 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.
Smith, 615 A.2d at 325.
Later, in Johnson, the Pennsylvania Supreme Court further expanded
these protections in Pennsylvania, ruling that,
[u]nder 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.
Johnson, 231 A.3d at 826.
Synthesizing these authorities, the double jeopardy protections of the
Pennsylvania Constitution prohibit retrial of a defendant where a prosecutor’s
misconduct 1) was intended to goad the defendant into requesting a mistrial,
2) was intended to deny the defendant of his right to a fair trial, and/or 3)
consciously disregarded a substantial risk to the defendant’s right to a fair
trial.
Here, Appellant argues that ADA Sess’ withholding of evidence of
Appellant’s inculpatory statements to Detective Brady was a violation of the
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discovery rules,3 and that it constituted intentional misconduct that deprived
Appellant of his right to a fair trial. He contends that the prosecutor effectively
admitted that the misconduct was intentional, as the prosecutor specifically
averred that he had withheld the evidence because he did not intend to
introduce it at trial. Appellant’s Brief at 17-18 (citing Commonwealth’s Answer
to Appellant’s Motion to Bar Retrial, 10/12/20, at 3). He further argues that
barring retrial was warranted under the circumstances of this case because:
The intentional withholding of a confession denies a defendant the right to a fair trial because it denies them the right to decide whether they want to go to trial at all. To have a confession sprung upon a defendant in the midst of a trial is unduly prejudicial to any defense presented thus far without the ability to prepare.
Id. at 18. Furthermore, Appellant attempts to distinguish the facts of this
case from those involved in Burke, arguing that “Burke’s holding was
predicated on the fact there was no bad faith overreaching seeking to deprive
the defendant of a fair trial, whereas this case involved admittedly
intentional[] actions which could only be designed to deprive Appellant of a
fair trial.” Id.
The trial court concluded that Appellant “failed to show that [the
prosecutor] engaged in conduct intentionally undertaken to prejudice
[Appellant] to the point of the denial of a fair trial.” TCO at 8. The court
3 Pa.R.Crim.P. 573(B)(1)(b) requires mandatory disclosure, “on request by the defendant,” of “any written confession or inculpatory statement, or the substance of any oral confession or inculpatory statement, and the identity of the person to whom the confession or inculpatory statement was made that is in the possession or control of the attorney for the Commonwealth[.]”
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began its analysis by recognizing that it was “undisputed that the
Commonwealth suppressed” the notes from Detective Brady that included
Appellant’s inculpatory statements. Id. at 6. Nevertheless, the court then
determined that the prosecutor’s misconduct had not violated the rule
established in Brady v. Maryland, 373 U.S. 83 (1963).
In Brady, the U.S. Supreme Court held that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Brady, 373 U.S. at 87[.] The Supreme Court subsequently held that the duty to disclose such evidence is applicable even if there has been no request by the accused, United States v. Agurs, 427 U.S. 97, 107 [(1976),] and the obligation extends to exculpatory evidence in the files of police agencies of the same government bringing the prosecution, Kyles v. Whitley, 514 U.S. 419 … (1995). Furthermore, under Brady, the evidence is material if there is a “reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Commonwealth v. … Lambert, … 884 A.2d 848, 854 ([Pa.] 2005) (quoting Strickler v. Greene, 527 U.S. 263, 280 … (1999)).
Commonwealth v. Puksar, 951 A.2d 267, 281 (Pa. 2008).
In his Motion to Bar Reprosecution, Appellant’s allegation of
prosecutorial misconduct underlying his double jeopardy claim was exclusively
raised in terms of a Brady violation. Appellant’s Motion to Bar Reprosecution,
10/8/20, at 2-3. The trial court determined that the prosecutor’s failure to
disclose Detective Brady’s notes did not violate Brady because the notes were
inculpatory, not exculpatory, and therefore not favorable to Appellant. TCO
at 6; see also Commonwealth v. Paddy, 15 A.3d 431, 450 (Pa. 2011)
(“Brady does not require the disclosure of information ‘that is not exculpatory
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but might merely form the groundwork for possible arguments or defenses.’”)
(citation omitted). We agree with the trial court that ADA Sess’ failure to
disclose Appellant’s inculpatory statements to Detective Brady did not violate
Brady.4
The trial court then turned to Appellant’s argument that ADA Sess
engaged in misconduct by violating the discovery rules, which was not
explicitly raised in Appellant’s Motion to Bar Reprosecution. At the hearing on
Appellant’s motion, Appellant “made reference to Pa.R.Crim.P. 573(B)(1)[]….”
TCO at 7. Relying on Commonwealth v. Collins, 957 A.2d 237 (Pa. 2008),
the trial court determined that ADA Sess’ withholding of Detective Brady’s
4 The court alternatively determined that ADA Sess did not violate Brady because “the content of the interview notes could have been readily obtained by [Appellant] because [Appellant] was the subject of the interview and, therefore, he knew about the information.” TCO at 6 (citing Commonwealth v. Pursell, 724 A.2d 293, 305 (Pa. 1999) (“The Commonwealth does not violate the Brady rule when it fails to turn over evidence readily obtainable by, and known to, the defendant.”) (emphasis added)).
We disagree with the court’s alternative analysis. The notes were not ‘readily obtainable’ by Appellant when they were held in the exclusive possession of the Commonwealth until their untimely disclosure to the defense. The trial court’s conclusion that Appellant had “equal access” to Detective Brady’s notes, TCO at 7, is simply belied by the face of the record. This limited exception to the Brady rule did not apply, regardless of whether Appellant was aware of his participation in the interview, and regardless of whether he told his attorney about the interview, particularly since Appellant disputes the factual premise that he had confessed to Detective Brady.
Nevertheless, Brady does not apply to inculpatory statements, see Paddy, supra, and Appellant no longer maintains that ADA Sess’ misconduct violated Brady on appeal. Thus, the trial court’s misapplication of the Brady exception does not affect our decision today.
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notes did not violate Rule 573. In Collins, our Supreme Court noted that,
when the withheld evidence “is exclusively in the custody of police, possession
is not attributed to the Commonwealth for purposes of Rule 573.” Collins,
957 A.2d at 253 (distinguishing violations of Brady, for which there is no
distinction made between the prosecutor and the police with regard to
evidence held by the government). The trial court reasoned that, here, ADA
Sess “was not aware of the existence of the interview notes until the morning
of trial [and], therefore, [he] did not possess it” for purposes of Rule
573(B)(1). TCO at 7-8.
We disagree with the trial court’s analysis under Rule 573. While it is
true that the prosecutor was not in possession of Detective Brady’s notes until
the first day of trial, ADA Sess admitted that he did not immediately disclose
that evidence once he became aware of it, and the obligation to disclose
evidence covered by Rule 573(B)(1)(b) does not cease on the day of trial.
Rule 573(D) provides for a continuing duty to disclose, stating that:
If, prior to or during trial, either party discovers additional evidence or material previously requested or ordered to be disclosed by it, which is subject to discovery or inspection under this rule, or the identity of an additional witness or witnesses, such party shall promptly notify the opposing party or the court of the additional evidence, material, or witness.
Pa.R.Crim.P. 573(D) (emphasis added).
Here, ADA Sess did not “promptly notify” Appellant or the trial court
when he first learned of the inculpatory statements referenced in Detective
Brady’s notes, as required by Rule 573(D). Instead, ADA Sess intentionally
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withheld that evidence, despite the fact that it was subject to mandatory
discovery pursuant to Rule 573(B)(1)(b), under the false belief that disclosure
was not required if he did not intend to use that evidence in the
Commonwealth’s case-in-chief. Thus, the trial court’s conclusion that the
Commonwealth did not violate Rule 573 runs afoul of the text of the rule and
is belied by the record. To the contrary, ADA Sess engaged in prosecutorial
misconduct by failing to disclose evidence of inculpatory statements made by
Appellant, in violation of Rule 573(B)(1)(b) and (D).
Although we disagree with the trial court’s analysis as to whether
prosecutorial misconduct occurred, that does not end our inquiry. As
recognized in Burke, “a mere finding of willful prosecutorial misconduct will
not necessarily warrant dismissal of charges” in all cases, and “where there is
no evidence of deliberate, bad faith overreaching by the prosecutor intended
to provoke the defendant into seeking a mistrial or to deprive the defendant
of a fair trial, the proper remedy for the Commonwealth’s failure to disclose
exculpatory materials should be less severe than dismissal.” Burke, 781 A.2d
1136, 1145-46. Here, relying on Burke, the trial court determined there was
“absolutely no evidence of record to support a finding that ADA Sess acted in
bad faith or with the specific intent to deny [Appellant] of a fair trial.” TCO at
5. We agree. Although we conclude that ADA Sess engaged in prosecutorial
misconduct by intentionally violating his obligation under Rule 573, we
ascertain no error on the part of the trial court in its ultimate conclusion that
Appellant failed to meet his burden of proving that ADA Sess intended to
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deprive Appellant of a fair trial by engaging in that misconduct. Further, we
ascertain insufficient evidence of record suggesting that the prosecutor’s
conduct was so reckless that it warranted the most extreme remedy of barring
retrial. See Johnson, supra.
As to the intentionality of the prosecutor’s conduct, by his own
admission, ADA Sess received Detective Brady’s notes on the day of trial,
specifically deliberated on whether to disclose them to the defense with other
members of his office, and then ultimately chose not to disclose them based
on the mistaken legal judgment that nondisclosure was justified if he did not
intend to use that evidence in his case-in-chief. See N.T. Motion Hearing at
14. Although the prosecutor’s admission clearly demonstrates intentional
misconduct, it does not implicitly suggest conduct intended to deprive
Appellant of a fair trial. It is only clear evidence of misconduct that was driven
by a mistaken belief as to a legal duty to disclose. A showing of bad faith
requires something more than a mistaken belief as to the law. Here, we agree
with the trial court that there was no evidence of bad faith beyond mere
conjecture.
To the contrary, the record tends to discount a bad faith motive for the
misconduct. ADA Sess withheld inculpatory evidence, not exculpatory
evidence. It is hard to fathom why a prosecutor, acting in bad faith, would
choose to withhold inculpatory evidence such as a confession, rather than seek
lawful admission of that evidence in the Commonwealth’s case-in-chief,
merely for the uncertain possibility of using that evidence for surprise value
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in the off chance that defense counsel’s cross-examination will open the door
to its introduction. Indeed, ADA Sess’ strategy at the second trial included
presentation of Appellant’s inculpatory statements in the Commonwealth’s
case-in-chief. See N.T. Second Trial, 11/1/21, at 13 (stating, during the
Commonwealth’s opening argument, that the jury could find Appellant guilty
of manufacturing marijuana based solely on his inculpatory statements to
Detective Brady). While it is implausible that the prosecutor acted in bad faith
in these circumstances, it is not impossible. Nevertheless, here, Appellant
points to no evidence beyond ADA Sess’ admissions to suggest bad faith of
that sort, and we ascertain no error in the trial court’s concluding that ADA
Sess’ admission did not suggest such a motive by itself. Consequently, we
ascertain no abuse of discretion in the trial court’s holding that Appellant failed
to meet his burden to demonstrate that ADA Sess possessed a bad faith
motive to deprive Appellant of a fair trial when he intentionally withheld
evidence of Appellant’s alleged confession to Detective Brady.
We also find Appellant’s attempt to distinguish Burke unconvincing. In
that case, Burke was accused of participating in a fake robbery scheme with
a coworker, Graham. Burke, 781 A.2d at 1137. Prior to trial, the prosecutor
failed to provide a statement made to police by Graham, which the trial court
had construed as exculpatory with respect to Burke. Id. at 1138-40. Indeed,
the Burke Court ultimately presumed that the withheld statement was
material under Brady. Id. at 1143. The trial court in Burke granted a motion
to dismiss the prosecution based on prosecutorial misconduct, reasoning that
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it was the only appropriate remedy given the prosecutor’s gross negligence in
failing to uphold her duty to disclose under both Brady and the discovery
rules. Id. at 1139-40. On appeal, this Court found that the remedy was too
drastic, and that the prosecutor’s failure to disclose warranted no more than
a continuance as a remedy. Id. at 1140.
Our Supreme Court rejected the approach of the trial court, finding the
trial judge had erroneously “approached the question generically, viewing the
non-disclosure as of a type that was necessarily prejudicial, without evaluating
the actual evidence and assessing what effect it may have had on the outcome
of the trial.” Id. at 1143. The Court found that the negligence of the
prosecutor fell far short of the “deliberate, bad faith prosecutorial misconduct
which warranted dismissal” in other cases. Id. at 1145 (emphasis added).
Furthermore, the Burke Court also found that the prosecutor’s “explainable
misunderstanding of her Brady obligation militate[d] against the view that
she deliberately failed to pursue and locate evidence known only to the police
in an effort to provoke [Burke] into seeking a mistrial or to deprive [him] of a
fair trial.” Id. Thus, the Burke Court agreed with the Superior Court’s
reversing the trial court’s order and remanded for a new trial. Id. at 1146.
Appellant contends that Burke is distinguishable because there was
intentional misconduct in that case. See Appellant’s Brief at 18. However,
he omits the Burke Court’s further qualifier that there was no “deliberate,
bad faith” misconduct conduct in that case. Burke, 781 A.2d at 1145
(emphasis added). Moreover, as here, the Burke Court indicated that the
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prosecutor’s mistake of law regarding Brady obligations militated against a
finding of bad faith. Id. As there is no evidence of bad faith on the part of
the prosecutor, we disagree with Appellant that Burke is distinguishable to
the extent that it suggests barring retrial is warranted in the circumstances of
this case.
Finally, we consider our Supreme Court’s ruling in Johnson, as that
case dictates that prosecutorial misconduct, although not intentional, may
also warrant barring retrial when the misconduct is so reckless that there is a
substantial risk that a defendant will be deprived of a fair trial. Here, defense
counsel was unlikely to have pursued the specific line of questioning of
Detective Brady had he known that Appellant had made inculpatory
statements to Detective Brady during those discussions. However, that
appears to be the extent of the actual prejudice suffered by Appellant due to
ADA Sess’ misconduct. We do recognize that, generally speaking, knowledge
of such inculpatory statements might conceivably affect pretrial deliberations
regarding whether to go to trial or to pursue a plea agreement with the
Commonwealth.5 Nevertheless, the prejudice of these consequences was ____________________________________________
5 Appellant argues that he was denied the right to decide whether he wanted to go to trial at all, implying that he may have sought to plead guilty, or negotiate such a plea, had he known about the inculpatory evidence. However, Appellant’s first trial ended in a mistrial due to a hung jury. Thus, Appellant had the opportunity to attempt to negotiate a plea to avoid his second trial, or to plead guilty without a plea agreement, yet he provides no argument or discussion as to why he did not seek a plea at that time, nor any discussion regarding whether the Commonwealth had ever offered a plea (Footnote Continued Next Page)
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largely theoretical and/or cured by a second trial, where Appellant’s
inculpatory statements to Detective Brady were no longer unanticipated, and
where Appellant again had the opportunity to explore the possibility of
obtaining a favorable plea agreement. Appellant pursued essentially the same
general legal strategy at his second trial, again attempting to construe himself
as an “innocent bystander” to Lenne LaRue’s marijuana operation. N.T.
Second Trial, 11/1/21, at 16. Thus, it does not appear that the risk of denying
Appellant a fair trial was significant in terms of its effect on Appellant’s trial
strategy, and Appellant’s suggestion that his decision on whether to go to trial
was affected is purely theoretical in the circumstances of this case.
In Johnson, by contrast, “the common pleas court saliently found that
the experienced prosecuting attorney made ‘almost unimaginable’ mistakes,
which ‘dovetailed’ with other serious errors by law-enforcement officers and
other police personnel such as the DNA lab technician.” Johnson, 231 A.3d
at 826 (citations omitted). In that case, the victim was killed in a shooting in
2002, and the case remained unsolved for several years. Id. 810-11. A key
piece of evidence that eventually tied Johnson to the crime was a red cap
found near the crime scene with Johnson’s DNA on it. Id. at 811-12. A black
cap with a bullet hole in it, which contained the victim’s DNA, was also
agreement. It seems unlikely, then, that prompt disclosure at the outset of Appellant’s first trial would have affected Appellant’s decision to maintain his innocence and fight the charges at trial. As was the case in Burke, the prejudice suffered by Appellant in this regard was purely theoretical.
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recovered at the scene. However, the prosecutor in Johnson had overlooked
obvious discrepancies in the collection of these pieces of evidence:
Of particular note, the Commonwealth misunderstood its own evidence and conflated the findings relating to the red and black caps. Although separate property receipt numbers had been assigned to the two hats, this did not prompt the Commonwealth to investigate whether its trial witnesses were discussing two distinct caps – or, alternatively, why a single red cap was associated with multiple property receipts. Even the Commonwealth’s forensic scientists who authored, or supervised generation of, the scientific reports did not realize at trial that there were two caps involved.
Id. at 813–14.
Due to the conflation of the red and black cap evidence, “the prosecuting
attorney repeatedly indicated in his opening statement that” Johnson had shot
the victim “essentially at point blank range[,] … thus accounting for [the
victim’s] blood supposedly being on the underside of the red cap’s brim.” Id.
at 812. That evidence was critical at trial, undermining the defense’s
argument that nobody had identified Johnson as the shooter; the prosecutor
specifically argued to the jury that the presence of both Johnson’s and the
victim’s DNA on the same hat indicated that they were right next to each other
when the victim was shot. Id. The jury was convinced. Johnson was
convicted of first-degree murder and sentenced to death. Id. at 813. The
Commonwealth’s errors were not discovered until years later, during the
litigation of Johnsons’ Post Conviction Relief Act petition. Id. at 813-14.
In ruling that the Commonwealth was barred from retrying Johnson, our
Supreme Court emphasized that
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[a]lthough the record … supports the common pleas court’s ultimate finding that these acts and omissions were not made intentionally or with a specific purpose to deprive [Johnson] of his rights, the record is likewise consistent with that tribunal’s characterization that such mistakes were “unimaginable.” Although “unimaginable” is not a traditional mens rea descriptor, it is, together with all of the circumstances on which it was based, 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. There is little dispute that those consequences include ‘prejudice [to] the defendant to the point of the denial of a fair trial.’
Id. at 827–28 (citation and footnote omitted).
We are simply unconvinced that the prosecutor’s misconduct here
carried the same potential risk of denying Appellant a fair trial that was at
issue in Johnson. The prosecutor’s errors in Johnson resulted in the jury’s
being presented with compelling-yet-false scientific evidence of Johnson’s
guilt in a capital case. Here, the prosecutor withheld inculpatory evidence
based upon a mistake of law in a simple case involving a small-scale marijuana
operation, where the value of the at-issue evidence would ultimately turn on
the credibility of Detective Brady and Appellant. Even if ADA Sess’ mistake
warranted a new trial for Appellant (a question we need not answer as
Appellant ultimately received, albeit for other reasons, a new trial), we do not
view ADA Sess’ misconduct to be of the same gravity as the consequences of
the prosecutor’s errors in Johnson.
In conclusion, we ascertain no error in the trial court’s concluding that
Appellant’s second trial should not be barred on double jeopardy grounds.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 07/26/2022
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