Com. v. Weiss, R.

• Court: Superior Court of Pennsylvania
• Decided: September 27, 2023
• Docket: 315 WDA 2022
• Status: Unpublished

Opinion

J-A15005-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : RONALD LEE WEISS : : Appellant : No. 315 WDA 2022

Appeal from the Order Entered June 10, 2021 In the Court of Common Pleas of Indiana County Criminal Division at CP-32-CR-0000218-1997

BEFORE: MURRAY, J., McLAUGHLIN, J., and PELLEGRINI, J.*

MEMORANDUM BY MURRAY, J.: FILED: September 27, 2023

Ronald Lee Weiss (Appellant) appeals from the order denying his motion

to dismiss charges based on double jeopardy grounds. After careful

consideration, we affirm and remand for the case to proceed to trial.

Most of the underlying facts are not relevant to this appeal. See

Commonwealth v. Weiss, 776 A.2d 958, 961-62 (Pa. 2001) (Weiss I)

(detailing evidence adduced at Appellant’s 1997 homicide trial). In 1997, the

Commonwealth charged Appellant with the 1979 homicide of 16-year-old

Barbara Bruzda (Bruzda). The matter proceeded to a jury trial in July 1997.

The Pennsylvania Supreme Court explained:

Isadore Mihalakis, a forensic pathologist, testified [for the Commonwealth] that Bruzda died of massive skull fractures with associated brain injury, with the manner of her death being ____________________________________________

* Retired Senior Judge assigned to the Superior Court. J-A15005-23

homicide. … Kerm Wright [(Wright)], a [Commonwealth] witness, testified that [while he and Appellant were incarcerated together, Appellant] confessed to him in 1985 that he had killed Bruzda. Samuel Tribuiani [(Tribuiani)] … testified [for the Commonwealth that while he was incarcerated with Appellant] in 1993[, Appellant] confessed to him that he had killed a young girl some years before. [Appellant] testified on his own behalf and denied any involvement in the death of Bruzda.

Weiss I, 776 A.2d at 962 (paragraph breaks omitted). The jury convicted

Appellant of first-degree murder and sentenced him to death. Id. The

Pennsylvania Supreme Court affirmed Appellant’s conviction and death

sentence. Id. at 970 (stating, “the evidence presented was sufficient to

support the aggravating circumstance found” regarding the jury’s sentence of

death; namely, Appellant’s “significant history of felony convictions involving

the use or threat of violence to the person, 42 Pa.C.S. § 9711(d)(9)”

(addressing aggravating circumstances for first-degree murder where

defendant has significant history of felonies involving use or threat of

violence)).

This Court described the ensuing procedural history:

Appellant then pursued collateral relief pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. § 9541, et seq., and in 2007, the PCRA court granted Appellant a new trial. The basis for relief was a finding that the Commonwealth, acting through prosecutor J. Scott Robinette, Esquire (hereinafter “Robinette”), committed a Brady violation, see Brady v. Maryland, 373 U.S. 83, [87] (1963) [(“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.”)]. Specifically, the PCRA court found that Robinette had suppressed information regarding []

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Commonwealth witnesses [Trubuiani and Wright], both of whom were incarcerated at the time of Appellant’s jury trial and testified regarding “jail house” confessions by Appellant. The suppressed information related to efforts made by the Commonwealth to aid [Trubuiani and Wright’s] release from incarceration.

Subsequently, the Pennsylvania Supreme Court remanded the matter to the PCRA court after finding that the PCRA court failed to engage in part of the Brady analysis, i.e., whether the suppression of information that served as the basis of the Brady violation was material to the outcome of the case, i.e., did Appellant receive a fair trial under the circumstances. See Commonwealth v. Weiss, 986 A.2d 808 (Pa. 2009) (Weiss II)….

The PCRA court issued a decision on the remanded PCRA matters on March 19, 2012, where it agreed that the Commonwealth suppressed impeachment evidence in violation of the duties set forth in Brady. However, the court concluded that Appellant was not entitled to a new trial, because the other evidence presented to the jury was overwhelming, and, therefore, the jury’s verdict was worthy of every confidence. An appeal was taken from [this] decision, and on October 31, 2013, the Pennsylvania Supreme Court affirmed. See Commonwealth v. Weiss, 81 A.3d 767 (Pa. 2013) (Weiss III).

Appellant then pursued federal habeas corpus relief pursuant to 28 U.S.C.A. § 2254 [(governing remedies in federal courts available to inmates in state prison)]. By an Opinion and Order dated February 14, 2018, the United States District Court granted [Appellant’s] request for relief. See Weiss v. Wetzel, 2018 U.S. Dist. LEXIS 23741[, 2018 WL 895689], at *44 (W.D. Pa. 2018) (Weiss Fed.).3 The grant of the writ was conditional, in that it was stayed to permit the Commonwealth the opportunity to commence a new trial. [Id.] at *53. The matter was returned to th[e] state trial court to conduct the new trial.

3 The Court in Weiss Fed. held that Robinette’s misconduct deprived Appellant of a fair trial, where Robinette suppressed impeachment evidence regarding … [Trubuiani and Wright]. See 2018 U.S.

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Dist. LEXIS 23741 at *51 (stating that where “prosecutors do secret deals, suppress evidence of them, stand by silently when the witnesses they determine to be central to their case lie about those deals, and then cover their tracks with their own false statements in and to a trial court, all in a way that plainly impacts the course and outcome of the trial, both those charged with crimes and the public are deprived of the fair trial that our Constitution commands”).

Counsel for Appellant thereafter filed [on December 12, 2018, the instant motion to dismiss charges against Appellant based on double jeopardy grounds (Jeopardy Motion).] [T]he [trial] court scheduled and held a hearing pursuant to Pa.R.Crim.P. 587(B) (governing motions to dismiss on double jeopardy grounds) on January 15, 2019. The Commonwealth presented the testimony of Robinette; no other testimony was presented.

***

Trial Court Opinion and Order, 8/1/19, at 3-13 (footnote[] … added, citations and formatting modified, some capitalization omitted).

By order entered August 1, 2019, the trial court denied Appellant’s Jeopardy Motion. [See Opinion and Order, 8/1/19, at 31 (concluding although “Robinette’s failures and the resulting deprivation of due process were born out of arrogance and ignorance, … Robinette’s conduct was not intentionally undertaken to deprive [Appellant] of a fair trial”; thus, dismissal based on double jeopardy was unwarranted).] Appellant then filed a petition for permission to file an interlocutory appeal, which the trial court granted after finding that the matter was immediately appealable.

Commonwealth v. Weiss, 240 A.3d 185 (Pa. Super. 2020) (Weiss IV)

(unpublished memorandum at 1-3, 8) (footnote in original; citations modified;

some brackets and ellipses omitted).

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This Court in Weiss IV “vacate[d] the trial court’s order denying the

Jeopardy Motion and remand[ed] for further proceedings as to whether

Robinette’s conduct was undertaken recklessly,” id. (unpublished

memorandum at 12), pursuant to our Supreme Court’s then-recent decision

in Commonwealth v. Johnson, 231 A.3d 807, 826 (Pa. 2020)1 (holding

reckless as well as intentional conduct can be grounds for dismissal, and

stating: “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.”). We stated:

[T]he trial court, acting as factfinder, found insufficient evidence to establish that Robinette acted intentionally in failing to disclose his communications with Wright and Tribuiani. … However, the court did not consider or address whether Robinette’s actions constituted reckless behavior, pursuant to the recent dictates of Johnson.

Weiss IV (unpublished memorandum at 11-12) (emphasis in original). We

instructed the trial court to consider whether Johnson was applicable. Id.

(unpublished memorandum at 1, 12).

____________________________________________

1 We observed that “Johnson … was decided after Appellant filed the underlying appeal,” and “expanded upon existing case law concerning prosecutorial misconduct sufficient to bar retrial.” Weiss IV (unpublished memorandum at 11); see also In re Tr. of Scaife, 276 A.3d 776, 793 (Pa. Super. 2022) (“Normally, we apply a new decision to cases pending on appeal at the time of the decision.” (citation omitted)).

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On remand, the trial court considered the parties’ respective

memoranda and held three status conferences; no additional evidence was

adduced.2 On June 10, 2021, the trial court issued an order denying the

Jeopardy Motion, accompanied by a comprehensive, 42-page opinion.

Appellant filed a notice appeal from the June 10, 2021, order on March

8, 2022.3 On March 9, 2022, the trial court directed Appellant to file within

2 Appellant did not re-file a motion to dismiss on double jeopardy grounds,

and relied on his prior Jeopardy Motion. On May 3, 2021, Appellant filed a brief in support of the Jeopardy Motion.

3 Appellant’s notice of appeal was facially untimely. See Pa.R.A.P. 903(a) (appeals must “be filed within 30 days after the entry of the order from which the appeal is taken.”); see also Commonwealth v. Gross, 232 A.3d 819, 830 (Pa. Super. 2020) (en banc) (“Pre-trial orders denying double jeopardy claims are immediately appealable in the absence of a written finding of frivolousness by the hearing court.”) (citation omitted). However, there was a breakdown because the trial court failed to comply with Pa.R.Crim.P. 587(b) (procedure for motions to dismiss on double jeopardy). The Rule states:

(4) In a case in which the judge denies the motion, the findings of fact shall include a specific finding as to frivolousness.

(5) If the judge makes a finding that the motion is frivolous, the judge shall advise the defendant on the record that a defendant has a right to file a petition for review of that determination pursuant to Pa.R.A.P. 1311(a)(3) within 30 days of the order denying the motion.

(6) If the judge denies the motion but does not find it frivolous, the judge shall advise the defendant on the record that the denial is immediately appealable as a collateral order.

Pa.R.Crim.P. 587(b)(4)-(6). The June 10, 2021, order did not contain a finding as to frivolity or advise Appellant of his appeal rights pursuant to Rule 587(b). Cf. Commonwealth v. Sanchez, 262 A.3d 1283, 1284 n.1 (Pa. (Footnote Continued Next Page)

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21 days a concise statement of errors complained of on appeal, pursuant to

Pa.R.A.P. 1925(b).4 Appellant timely filed a concise statement (Concise

Statement). On March 18, 2022, the trial court issued an order adopting the

reasoning in its June 10, 2021, opinion and order.

Appellant presents two issues for our review:

[1.] Where Appellant’s conviction was previously vacated after he “was denied a fair trial because the Commonwealth materially corrupted the truth-seeking function of the trial by knowingly presenting or failing to correct perjured testimony,” and the lower court here concluded that the trial prosecutor’s “serious prosecutorial error” included “reckless conduct,” does Pennsylvania law bar retrial?

[2.] Where the federal court found that the trial prosecutor “knowingly” made “secret deals,” personally denied the existence of those deals to the trial court in what “was plainly a lie,” failed to correct testimony that he knew to be “deliberately misleading” and “demonstrably false,” and committed this misconduct “all in a way that plainly impact[ed] the course and outcome of trial,” was the lower court at liberty to deny relief by making contradictory findings and otherwise failing to apply the findings of the federal court?

Appellant’s Brief at 9-10.

Appellant first claims the trial court erred in denying his Jeopardy Motion

following remand, and in determining that Johnson was distinguishable. See

id. at 26-27, 32-34. According to Appellant, “Robinette’s misconduct was

Super. 2021) (trial court complied with Rule 587(b)(6)). Accordingly, we exercise jurisdiction.

4 The trial court cautioned that “any issue not properly included in the statement timely filed and served pursuant to Rule 1925(b) … shall be deemed waived.” Order, 3/9/22, ¶ 4.

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more outrageous” than the conduct in Johnson, id. at 33, and Robinette’s

“actions … were recklessly undertaken to prejudice [Appellant] to the point of

the denial of a fair trial.” Id. at 28; see also id. at 34 (claiming, “as in

Johnson, Robinette’s tactics 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.’” (quoting

Johnson, 231 A.3d at 827)). Appellant asserts this Court “should hold the

reckless misconduct denied Appellant a fair trial … and retrial should be barred

as it violates the Double Jeopardy Clause of the Pennsylvania Constitution.”

Id. at 29.

Conversely, the Commonwealth claims the trial court correctly found

Johnson distinguishable, and did not err in denying Appellant’s Jeopardy

Motion:

[Johnson] held that reckless as well as intentional prosecutorial misconduct may be deemed egregious, but it did not relax the Court’s long-established jurisprudence that only egregious overreaching, rather than ordinary misconduct, can bar retrial. The [trial] court [in this case] found that, although the prosecutor’s decision-making at [Appellant’s] original trial may have been flawed and erroneous, only one particular aspect of his conduct rose to the level of recklessness and the gravity of that conduct and its resulting impact on the trial were far less serious than the Commonwealth’s conduct in Johnson. [Appellant’s] double jeopardy motion was therefore properly denied. The trial court should be affirmed and this case remanded for retrial.

Commonwealth Brief at 19.

We conduct review mindful of the following:

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[A]n appeal grounded in double jeopardy raises a question of constitutional law. This [C]ourt’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. Kearns, 70 A.3d 881, 884 (Pa. Super. 2013) (citation

omitted). Although our review is not “blindly deferential” to a trial court’s

credibility determinations, we recognize a “fact-finder who hears witness

testimony first-hand is able to take into account not only the words that are

spoken and transcribed, but the witnesses’ demeanor, tone of voice,

mannerisms, and the like.” Johnson, 231 A.3d at 818 (citations omitted).

This Court has explained:

The Double Jeopardy Clauses of the Fifth Amendment to the United States Constitution and Article 1, § 10 of the Pennsylvania Constitution 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, § 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

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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.

Commonwealth v. Byrd, 209 A.3d 351, 353 (Pa. Super. 2019) (citation omitted). “Dismissal is an appropriate remedy in such a case because a mistrial would be an inadequate remedy for systematic intentional prosecutorial misconduct.” Id. (citation omitted and formatting altered). “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.” Id. (citation omitted). “[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.” Id. (citation omitted).

Commonwealth v. King, 271 A.3d 437, 443-44 (Pa. Super. 2021).

“However, because of the compelling societal interest in prosecuting criminal

defendants to conclusion, our Supreme Court has recognized that dismissal

of charges is an extreme sanction that should be imposed sparingly

and only in cases of blatant prosecutorial misconduct.” Commonwealth v.

Wilson, 147 A.3d 7, 13 (Pa. Super. 2006) (emphasis added).

In Johnson, our Supreme Court emphasized, “we do not suggest that

all situations involving serious prosecutorial error implicate double jeopardy

under the state Charter.” Johnson, 231 A.3d at 824.

To the contrary, we bear in mind the countervailing societal interests … regarding the need for effective law enforcement, see generally State v. Michael J., 274 Conn. 321, 875 A.2d 510, 534 (Conn. 2005) (referring to the need for an “optimal balance between the defendant’s double jeopardy rights and society’s interest in enforcing its criminal laws”), and highlight again that, in accordance with long-established double-jeopardy precepts,

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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 (emphasis in original); see also King, 271 A.3d

at 450 (summarizing: “In Johnson, the Commonwealth’s failure to conduct

even a cursory review of its evidence led to a non-existent piece of evidence

to establish Johnson’s guilt. This recklessness on the part of the

Commonwealth in Johnson represented an instance of seeking a conviction

at the expense of justice, and it rose to the level of overreaching.” (citing

Johnson, 231 A.3d at 824, 827)).

After careful consideration, we conclude that the trial court’s opinion

accompanying the June 10, 2021 order ably details Robinette’s “undisputed”

and pertinent conduct, and the evidence adduced at the January 15, 2019,

evidentiary hearing on Appellant’s Jeopardy Motion. See Trial Court Opinion,

6/10/21, at 7-15. As the record supports the trial court’s narrative, we adopt

and incorporate it here. See id.5 Further, the trial court addressed the merits

of Appellant’s claim, the facts and holding of Johnson/related precedent, and

5 In sum, the trial court found Robinette incorrectly represented there were

no “deals” or understandings between the Commonwealth and Tribuiani and Wright in exchange for their testimony. See Trial Court Opinion, 6/10/21, at 7-15. Robinette had written several letters on behalf of Tribuiani and Wright, both prior to and after Appellant’s trial, pertaining to possible parole/early release, and favorably describing Tribuiani and Wright’s assistance in the prosecution of Appellant’s case. See id. Robinette sent letters to, inter alia, the Pennsylvania Board of Probation and Parole, Superintendents at State Correctional Institutions housing Tribuiani and Wright, and district attorneys and sentencing judges involved in Tribuiani and Wright’s cases. See id.

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properly concluded that Johnson is distinguishable. See Trial Court Opinion,

6/10/21, at 18-42.6 The trial court capably addressed every facet of

Appellant’s claim, such that further commentary by this Court would be

redundant. Accordingly, we adopt the analysis and conclusion as our own.

See id.

In addition, we deem controlling this Court’s decision in

Commonwealth v. Sanchez, 262 A.3d 1283 (Pa. Super. 2021), which

involved a defendant’s appeal of the denial of a motion to dismiss based on

double jeopardy. The defendant in Sanchez

claimed that even if the prosecution’s actions in his case were unintentional, under Johnson, the prosecution’s reckless actions in failing to disclose the DNA results in his case deprived him of a fair trial such that retrying him would violate double jeopardy.

Id. at 1288. This Court detailed the “reckless” conduct in Johnson, see id.

at 1291-92, and concluded:

Notwithstanding the Commonwealth’s unfortunate errors in this case, they do not rise to the level of recklessness displayed in Johnson. On this record, we cannot agree with Appellant that the Commonwealth engaged in “prosecutorial overreaching” by acting “with a conscious disregard for a substantial risk” of depriving Appellant of a fair trial. Johnson, 231 A.3d at 826. Under these facts, the remedy for the Commonwealth’s actions is ____________________________________________

6 The trial court found “almost all of Robinette’s conduct to be negligent, undertaken on the basis of a mistaken belief that had some basis in law and fact.” Trial Court Opinion, 6/10/21, at 38. The court also found Robinette’s “reckless decision did not carry with it a substantial risk that [Appellant] would be denied a fair trial.” Id. at 39; see also id. (finding “Robinette was not in a position to promise leniency,” and “[u]nlike Johnson, the Commonwealth’s recklessness does not deal with the key piece of physical evidence leading to [Appellant’s] conviction.” (footnote omitted)).

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precisely what the court ordered here—a new trial. See Kearns, supra.

Sanchez, 262 A.3d at 1294 (footnote omitted; some citations modified). We

further observed that Johnson “discuss[ed the] great deference afforded to

trial courts regarding credibility determinations.” Id.; see also Johnson,

231 A.3d at 818, supra. Thus, this Court stated: “we see no reason to disrupt

the court’s credibility determinations in favor of the Commonwealth, which are

supported by the record.” Sanchez, 262 A.3d at 1294. We also emphasized,

“the only ‘false evidence’ on which [a]ppellant relies is distinguishable from

that in Johnson.” Id.

Sanchez is directly on-point, while Johnson is distinguishable.

Therefore, Appellant’s claim that the trial court erred in applying Johnson is

without merit. We reiterate that the trial court capably addressed and

distinguished Johnson. See, e.g., Trial Court Opinion, 6/10/21, at 38

(finding “almost all of Robinette’s conduct to be negligent”), id. at 39 (“Unlike

Johnson, the Commonwealth’s recklessness does not deal with the key piece

of physical evidence leading to the defendant’s conviction.” (footnote

omitted)), id. at 42 (finding, “the gravity of [Robinette’s] reckless conduct,

and the resulting impact said conduct had on the trial, is far less egregious

than the Commonwealth’s conduct in Johnson.”), and id. (concluding

“Robinette committed serious prosecutorial error, but when misconduct lacks

the intentionality required, or constitutes reckless conduct without a

substantial risk that the defendant will be denied a fair trial, Pennsylvania

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jurisprudence provides that the prejudice caused to the defendant can be

remedied by retrial.”).

Instantly, like the Court in Sanchez, we conclude “the Commonwealth’s

unfortunate errors … do not rise to the level of recklessness displayed in

Johnson[,]” Sanchez, 262 A.3d at 1294; therefore, “the remedy for the

Commonwealth’s actions is precisely what the court ordered here—a new

trial.” Id. (citing Kearns, supra); see also King, 271 A.3d at 450

(distinguishing Johnson and concluding “the prosecutor’s [violation of Brady

for failing to disclose to the defense a certain] … letter, although significant,

does not constitute overreaching that would require the imposition of the

double jeopardy bar precluding the retrial of this case,” and holding that

prosecutor’s error “does not rise to the level of the ‘almost unimaginable’ error

in Johnson”). Appellant’s first issue does not warrant relief.

In his second issue, Appellant claims the trial court “further erred in

failing to accept and give effect to the federal court’s findings of fact and

conclusions of law,” i.e., in Weiss Fed., supra. Appellant’s Brief at 27; see

also id. at 34-35 (arguing the “trial court made findings and conclusions that

ignored or directly contradicted the federal court’s ruling.”). According to

Appellant, “the federal court’s findings and conclusions were binding on [the

trial court] under Pennsylvania law, the law of the case, and the Supremacy

Clause of the United States Constitution.” Id. at 28; see also id. at 35-43.

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The Commonwealth argues Appellant waived this claim for failure to

preserve it in his Concise Statement. See Commonwealth Brief at 19-20, 41-

42. The Commonwealth correctly observes Appellant “raised a United States

Constitution Supremacy Clause, and only a Supremacy Clause, claim for the

first time in paragraph 2 of his March 17, 2022 [Concise S]tatement.” Id. at

42; see also Concise Statement, 3/17/22, ¶ 2 (claiming trial court’s

“disagreement” with the federal court’s findings “violated the supremacy

clause[.]”).

Any claim that is not presented in a court-ordered concise statement

results in waiver. See Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in the

Statement and/or not raised in accordance with the provisions of

this paragraph [] are waived.”); Commonwealth v. Lord, 719 A.2d 306, 309

(Pa. 1998) (same); see also Pa.R.A.P. 302(a) (providing that issues not

raised in the lower court are waived and cannot be raised for the first time on

appeal). Thus, Appellant waived any claim not presented in his Concise

Statement. See Lord; Concise Statement, 3/17/22, ¶ 2, supra.

We consider Appellant’s claim to the extent it claims a violation of the

Supremacy Clause of the United States Constitution.7 Appellant’s Brief at 41-

43. Appellant argues the trial court was “duty-bound to respect the federal

7 “[T]he Supremacy Clause[] provides that the laws of the United States ‘shall

be the supreme Law of the Land; … any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.’” Dooner v. DiDonato, 971 A.2d 1187, 1193 (Pa. 2009) (quoting U.S. Const. art. VI, cl. 2).

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court judgment invalidating [Appellant’s] conviction,” id. at 42, and “was not

at liberty to reach findings and conclusions contrary to the federal court’s

ruling….” Id. at 43.

The Commonwealth counters that the trial court did not violate the

Supremacy Clause because the federal court in Weiss Fed. “did not bar retrial

on double jeopardy grounds, and the issue of prosecutorial overreaching must

therefore be addressed by the Courts of this Commonwealth under the law of

this Commonwealth.” Commonwealth Brief at 49; see also id. at 43 (stating,

there “is no conflict between the [Weiss Fed.] decision based on federal law

and the lower court’s independent assessment of [Appellant’s] claims”).

Whether the trial court violated principles of preemption is a question of

law. Therefore, our standard of review is de novo and our scope of review is

plenary. Commonwealth v. Sow, 860 A.2d 154, 155 (Pa. Super. 2004).

Upon review, we agree with the Commonwealth. See Commonwealth

Brief at 43, 49, supra. The federal court’s grant of Appellant’s writ of habeas

corpus in Weiss Fed. was “conditional,” and permitted the Commonwealth to

“commence a new trial.” Weiss Fed. at *53; see also id. at *52 (stating

Appellant “was denied a fair trial,” but “so too the citizens of the

Commonwealth were denied the resolution of Ms. Bruzda’s murder that a fair

trial can deliver for them.”). The trial court was not precluded from making

factual findings and applying Pennsylvania law to the findings. Notably, this

Court in Weiss IV directed the trial court to make factual findings. Weiss

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IV, 240 A.3d 185 (unpublished memorandum at 1, 12). Consequently,

Appellant’s second issue does not merit relief.

For the above reasons, we affirm the order denying Appellant’s Jeopardy

Motion, and remand the case for retrial.

Order affirmed. Case remanded for retrial. Jurisdiction relinquished.

Judge McLaughlin joins the memorandum.

Judge Pellegrini files a dissenting memorandum.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/27/2023

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IN THE COURT OF COMMON PLEAS OF INDIANA COUNTY, PENNSYLVANIA

COMMONWEALTH OF PENNSYLVANIA, : Criminal Action - Law

vs. : No. 218 Crim. 1997 1. c -c t c. rcr C- rs RONALD LEE WEISS, c:: 1. 2- x- Defendant. Oc izz ...,, c ::,. 5£ (-,-- -: a2c ? -3 z ORDER OF COURT -2» oz< .L o c

AND NOW, this 10 day of June, 2021, this matter comes before

the Court on a remand from the Pennsylvania Superior Court following

Defendant's appeal from this Court's denial of the Motion to Dismiss

Case and Discharge Defendant on Double Jeopardy Grounds. After

careful consideration, it is hereby ORDERED, ADJUDGED, AND DECREED

that the Motion to Dismiss Case and Discharge Defendant on Double

Jeopardy Grounds is DENIED. This Order of Court is entered consistent

with the attached Opinion.

. BY THE COURT:

) --------------� '

Thomas M. Bianco, J.

0 253 IN THE COURT OF COMMON PLEAS OF INDIANA COUNTY, PENNSYLVANIA

vs. : No. 218 Crim. 1997

RONALD LEE WEISS, Defendant. r c • cz: 7 .czz C- c . f- -E --II- x_>> OPINION AND ORDER OF COURT oz o

Bianco, J. .r » .'< 0> OD-.C cc

This matter comes before the Court on a remand from the 9? � c ' -4 G2< c

Pennsylvania Superior Court following Defendant's appeal from this

Court's denial of the Motion to Dismiss Case and Discharge Defendant

on Double Jeopardy Grounds filed on behalf of Defendant. Specifically,

the Pennsylvania Superior Court stated in its Memorandum dated

August 21, 2020, "[alfter careful review, we are compelled to vacate

the order and remand for consideration of the Pennsylvania Supreme

Court's recent decision in Commonwealth v. Johnson, 2020 LEXIS

2791, 40 EAP 2018 (May 19, 2020)." Commonwealth v. Weiss, 1504

WDA 2019, at page 1. The Superior Court concluded by making it's

252 charge clear, stating "we ....... remand for further proceedings as to

whether Robinette's conduct was undertaken recklessly."

Commonwealth v. Weiss, l 504 WDA 2019, at page l 0, citing

Commonwealth v. iohnson, 2020 Pa. LEXIS 2791, at 39.

This Court held three status conferences with counsel, and at the

direction of the Court, defense counsel and counsel for the

Commonwealth each submitted a brief addressing the issues before

the Court. For the reasons set forth below, the Court finds that the

double jeopardy clauses of the United States Constitution and the

Pennsylvania Constitution do not bar the retrial of Defendant.

PROCEDURAL HISTORY / FACTS

As stated in this Court's Opinion dated April 4, 2019, and this

Court's Opinion dated August l, 2019, the Court will attempt to limit

its recitation of the procedural history and facts to the events relevant

to the issues before the Court.

2 Procedural History

The Court begins by setting forth the following procedural history

contained in the Court's April 4, 2019, Opinion, and restated in the

Court's August 1, 2019, Opinion:

"Defendant, Ronald Lee Weiss (hereinafter "Weiss"), was convicted

of first-degree murder following a jury trial held in July of 1997. The

jury returned a verdict of death following the penalty phase.

Weiss pursued a direct appeal, and in 2001, the Supreme Court of

Pennsylvania affirmed the judgment of sentence. See Commonwealth

v. Weiss, 776 A.2d 958 (Pa. 2001). Weiss then pursued collateral relief

pursuant to the Post Conviction Relief Act (hereinafter "PCRA"), 42

Pa.C.S.A. Section 9541, et seq., and in 2007, the PCRA Court granted

Weiss a new trial. The basis for the relief was a finding that the

Commonwealth committed a Brady violation, see Brady v. Maryland,

3 73 U.S. 83 (1963). Specifically, the PCRA Court found that the

Commonwealth suppressed information regarding two Commonwealth

witnesses, both of whom were incarcerated at the time of the jury trial

and testified regarding "jail house" confessions by Weiss. The

3 suppressed information related to efforts made by the Commonwealth

to aid the witnesses' release from incarceration.

Subsequently, the Pennsylvania Supreme Court remanded the

matter to the PCRA court after finding that the PCRA court failed to

engage in part of the Brady analysis, i.e., whether the suppression of

information that served as the basis of the Brady violation was material

to the outcome of the case, i.e., did Weiss receive a fair trial under the

circumstances. Commonwealth v. Weiss, 986 A.2d 808 (Pa. 2009)

(Weiss 11). Following the remand, the Honorable Charles R. Alexander

was assigned to complete the PCRA proceedings because the

Honorable William L. Henry, who presided over the initial PCRA

proceeding, had retired. Unfortunately, Judge Alexander passed away

before deciding the pending PCRA matters. The Honorable John H.

Foradora was assigned to conclude the PCRA proceedings.

Judge Foradora issued a decision on the remanded PCRA matters

on March 19, 2012. He agreed with the findings of the prior PCRA

court that the Commonwealth suppressed impeachment evidence in

violation of the duties set forth in Brady. However, Judge Foradora

4 concluded that Weiss was not entitled to a new trial, because the other

evidence presented to the jury was overwhelming, and, therefore, "the

jury's verdict was worthy of every confidence." Commonwealth v.

Weiss, 81 A.3d 767, 885-786 (Pa. 2013) (Weiss Ill). An appeal was

taken from Judge Foradora's decision, and on October 31, 2013, the

Pennsylvania Supreme Court affirmed. Weiss Ill, supra.

Weiss then pursued federal habeas corpus relief pursuant to 28

U.S.C. Section 2254, and by Opinion and Order dated February 14,

2018, the United States District Court granted Weiss' request for relief.

Weiss v. Wetzel, et al., 2018 WL 895689 (W.D. Pa. 2018). The grant of

the writ was conditional, in that it was stayed to permit the

Commonwealth the opportunity to commence a new trial. The matter

was returned to this state trial court to conduct the new trial.

Counsel for Weiss filed a document entitled "Motion to Dismiss

Case and Defendant on Double Jeopardy Grounds," and the Court

scheduled and held a hearing pursuant to Pa.R.Crim.P. 587 on January

15, 2019. The Commonwealth presented the testimony of John Scott

Robinette (hereinafter "Robinette"); no other testimony was presented."

5 (Opinion and Order of Court dated April 4, 2019, pp. 2-5) and (Opinion

and Order of Court dated August 1, 2019, pp. 2-5)."

By Opinion and Order of Court dated August 1, 2019, this Court

denied Defendant's Motion to Dismiss Case and Discharge Defendant

on Double Jeopardy Grounds. Defendant then requested permission to

file an interlocutory appeal, which was granted. Defendant then filed a

timely Notice of Appeal on September 27, 2019, and a Concise

Statement of Matter Complained of on Appeal on October 15, 2019.

In considering Defendant's appeal, the Pennsylvania Superior Court

began by noting that "an order denying a motion to dismiss on double

jeopardy is technically interlocutory, [but] the order is appealable as of

right." Commonwealth v. Weiss, 1504 WDA 2019, at p. 1, fn 1,

(additional citations omitted). And then as stated in the prologue

above, the Pennsylvania Superior Court remanded the matter to this

Court, stating "we vacate the trial court's order denying the Jeopardy

Motion and remand for further proceedings as to whether Robinette's

conduct was undertaken recklessly." Weiss at page 10, citing

Commonwealth y. Johnson, 2020 Pa. LEXIS 2791, at 39.

6 Facts

With regard to the relevant facts, once again, the Court believes

that it is appropriate to restate the facts set forth in the Court's

Opinion dated August 1, 2019, as follows:

"It is undisputed that the Commonwealth engaged in the following

conduct:

1. Trooper John Tamewitz (hereinafter "Tamewitz") obtained a

written statement from Samuel Tribuiani (hereinafter "Tribuiani")

on April 2, 1996. The written statement indicated that Weiss

confessed to the Bruzda murder while the two individuals were

incarcerated together. The written statement also indicates that

no promises were made in exchange for Tribuiani's testimony.

2. The following day, Tribuiani contacted Tamewitz and requested

his assistance in expediting his parole. Tribuiani was

incarcerated at S.C.I. Huntingdon at that time.

3. Tamewitz contacted Paul Strickland and Michael Marino, the

District Attorney of Montgomery County, to inquire about

Tribuiani's parole and early release status.

7 4. Robinette authored a memorandum on April 8, 1996, indicating

that he had a conversation with "S.D.A.G. von Geis," and that he

intended to contact the Superintendent at S.C.I. Huntingdon to

inquire about expediting Tribuiani's parole.

5. Robinette did, in fact, call the Superintendent at S.C.I.

Huntingdon and inquired if Tribuiani was eligible for parole or

pre-release.

6. Shortly after preparing the memorandum of April 9, 1996,

Robinette authored three letters regarding Tribuiani. The letters

were written to Tribuiani's sentencing judge, the Victim-Witness

Coordinator of Montgomery County, and the District Attorney of

Montgomery County. These individuals would have the

opportunity to provide input to the Pennsylvania Board of

Probation and Parole regarding Tribuiani's release on parole.

The letters request that the recipient "please consider

Tribuiani's valuable cooperation with this office when and if you

register any response to the Department of Corrections'

8 proposal for early release from his sentence." Tribuiani was

blind copied on these letters.

7. Robinette followed his letter to Michael Marino, the District

Attorney of Montgomery County, with a phone call to DA

Marino.

8. The Court notes at this time that Tribuiani was released through

the early release program on July 5, 1996, however, he was

placed back into a state correctional institution in June of 1997

due to violations of his release conditions. Tribuiani continued

to contact Tamewitz and Robinette to request their assistance in

getting him out of prison.

9. Kermeth Wright (hereinafter "Wright") signed a statement

indicating that Weiss had confessed to committing the Bruzda

murder while the two were incarcerated together. This

statement was signed in January of 1996.

1 0. On December 1 3, 1996, Robinette wrote a letter to Nicholas

Muller, the Chairman of the Pennsylvania Board of Probation and

Parole. Robinette stated "This Office has promised nothing to

9 Mr. Wright in exchange for his cooperation. I have explained to

him that parole authority in his case rests exclusively with the

Board of Probation and Parole. I am writing this letter merely to

inform the Board of Mr. Wright's cooperation in the investigation

and potential prosecution of a very serious crime." The letter

was carbon copied to Tamewitz and blind copied to Wright.

11. Robinette failed to disclose to defense counsel or to the

Court that Wright pied guilty to lying to an employee while in

state prison. The plea was entered on April 14, 1997,

approximately two months prior to the Weiss jury trial.

12. A pretrial motion hearing was held on May 16, 1997. The

Court granted the motion entitled "Motion for Disclosure of

Impeachment Information as to Potential Commonwealth

Witnesses." As a result, the Commonwealth was ordered to

notify the defense of "any deals or understandings made

between the Commonwealth and potential witnesses, Tribuiani

and Wright." In response to a direct inquiry by the Court on this

matter, Robinette stated "Deals, we don't have any deals with

10 them, Judge." The Court then stated "the motion is granted and

the answer is that there are no deals or consideration."

13. Later in the pretrial motion hearing of May 16, 1997,

Robinette stated "I would just like to make on the record we

have made no threats or promises and the only representation

that we have made to these witnesses is that we will honestly

report the level and extent of their cooperation and tell the truth

about what they do and that is one part of it and we will take

reasonable steps to protect their safety and those are the only

representations that we have ever made to those witnesses."

14. Following a pretrial motion hearing, on May 20, 1997,

Robinette authored and presented a letter to defense counsel

stating that the Commonwealth will only report the nature and

extent of the witnesses' cooperation whenever queried

regarding the same. Robinette obviously had already written

multiple letters on behalf of Tribuiani and Wright at the time this

letter was submitted.

11 l 5. Robinette authored a letter dated July 1, 1997, to Raymond J.

Sobina, Superintendent of S.C.I. Somerset. The letter identifies

Wright as a "cooperating Commonwealth witness," and under

the guise of "protecting the physical safety of Kermeth Wright,"

requests his transfer from SCI-Somerset, stating that "Mr.

Wright has expressed a preference for SCI-Laurel Highlands."

16. At the time of trial, the Commonwealth called Wright as a

witness. Robinette specifically asked Wright "Has anyone made

you any promises in exchange for your testimony?" Wright

responded "No, sir." On cross-examination, defense counsel

asked Wright "So they did something in exchange for the

statement, didn't they?" Robinette immediately objected and

the objection was sustained by the Court. On re-direct,

Robinette asked Wright if he "ask[ed] for anything in exchange

for that statement." Wright responded "No, I did not."

l 7. The Commonwealth also called Trooper Jeffrey Witmer of the

Pennsylvania State Police as a witness. Robinette asked Trooper

Witmer if Wright asked for anything in exchange for his

12 cooperation. Witmer responded by stating that Wright made no

requests.

18. The Commonwealth called Tribuiani as a witness at the time

of trial. During his testimony, Tribuiani stated that no one had

made any promises to him in exchange for his testimony. This

statement was made in response to Robinette's questioning.

19. Robinette also called Tamewitz as a witness. In response to

questioning by Robinette, Tamewitz stated that nothing was

promised to Tribuiani in exchange for his testimony.

20. After the conclusion of the trial, Robinette authored a letter

to William F. Ward, Chairman of the Pennsylvania Board of

Probation and Parole. This letter is dated July 17, 1997.

Robinette requests that the "Board consider Mr. Tribuiani's

contribution to this most unusual prosecution when evaluating

the propriety of granting him parole."

21. Robinette received a letter from Tribuiani dated August 2,

1997. Tribuiani wrote the letter to Robinette to thank him "for

13 all you are trying to or will try to do to expedite either my

release to a half way house again and/or parole."

22. Robinette authored a letter to Donald Vaughn,

Superintendent of SCI Graterford. The letter is dated September

15, 1997. In this letter, Robinette requests Mr. Vaughn to

"consider Mr. Tribuiani's cooperation with this office when

commenting of the propriety of his parole."

23. While not conduct attributable to the Commonwealth, the

Court notes that Tribuiani subsequently wrote a letter to

Robinette complaining that he wasn't paroled yet. In this letter,

Tribuiani makes reference to a secret agreement for leniency

between Robinette, Tamewitz, and Tribuiani. Tribuiani states

that he was promised a release from incarceration after the

conclusion of the trial.

24. Robinette also wrote a letter to the Pennsylvania Board of

Probation and Parole on behalf of Wright after the trial. This

letter was dated July 18, 1997. Robinette informed the Board of

Wright's assistance in the conviction of Weiss, and then

14 requested that the Board "consider Mr. Wright's contribution to

this most unusual prosecution when evaluating the propriety of

granting him parole."

DISCUSSION

The Pennsylvania Supreme Court, in Commonwealth v. Johnson

broadened the jeopardy relief standard, stating as follows:

"Under Article 1, 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."

Commonwealth v. Johnson at 826.

15 Double Jeopardy Analysis Prior to

Commonwealth v. Johnson. 231 A. 3d 807 (2020)

Since the lohnson Court expanded the double jeopardy relief

standard, this Court finds it appropriate to restate the analysis

contained in its Opinion dated August 1, 2019, and then supplement

that analysis based on the Johnson expansion. The following was set

forth in the Court's prior Opinion:

"The Court must now decide whether the double jeopardy clauses,

as set forth in the Fifth Amendment to the United States Constitution

and Article l, Section l O of the Pennsylvania Constitution, prohibit the

retrial of Weiss. In the recent and germane case of Commonwealth v.

Washington, 198 A.3d 381 (Pa.Super. 2018), the Pennsylvania Superior

Court set forth the legal standards that the Court must follow in

making this critical decision, stating as follows:

'The Double Jeopardy Clauses of the Fifth Amendment to the

United States Constitution and Article l, Section l O of the

Pennsylvania Constitution prohibit retrial where prosecutorial

misconduct during trial provokes a criminal defendant into moving

16 for a mistrial. See Oregon v. Kennedy, 456 U.S. 667, 679, 102 S.Ct.

2083, 72 L.Ed.2d 416 (1982); Commonwealth v. Simons, 514 Pa.

10, 522 A.2d 53 7, 540 (1987). However, Article 1, Section 10 of

the Pennsylvania Constitution offers broader protection than its

federal counterpart 'in 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.' Commonwealth

v. Smith, 532 Pa. 177, 615 A.2d 321, 325 (1992). Pennsylvania has

adopted a strict remedy for intentional prosecutorial misconduct:

'[U]nder Pennsylvania jurisprudence, it is the intentionality behind

the Commonwealth's subversion of the court process, not the

prejudice caused to the defendant, that is inadequately remedied

by appellate review or retrial. By and large, most forms of undue

prejudice caused by inadvertent prosecutorial error or misconduct

can be remedied in individual cases by retrial. Intentional

17 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.' Commonwealth v. Kearns, 70 A.3d

881, 884-885 (Pa.Super. 2013) (footnote and emphasis omitted).

Washington at 387, quoting Commonwealth v. Lynn, 192 A.3d 194,

199-200 (Pa.Super. 2018) (emphasis added by this Court).

The Washington Court then stated: "Because of the compelling

societal interest in prosecuting criminal defendants to conclusion, our

Supreme Court has recognized that dismissal of charges is an extreme

sanction that should by imposed sparingly and only in cases of blatant

prosecutorial misconduct." Id., quoting Commonwealth v. Wilson, 147

A.3d 7, 13, (Pa.Super. 2016) (citations omitted).

In this case, the state trial court, the Pennsylvania Supreme Court,

and the Federal District Court have found that the Commonwealth's

conduct deprived Weiss due process as guaranteed by the Fourteenth

Amendment to the United States Constitution, i.e., the Commonwealth

engaged in prosecutorial misconduct in violation of Brady v. Maryland,

373 U.S. 83 (1963). Therefore, in deciding whether the double

18 jeopardy Clauses of the Fifth Amendment to the United States

Constitution and Article 1, Section 1 0 of the Pennsylvania Constitution

prohibit retrial, the Court must answer one straightforward yet

challenging question: Did Weiss show that the prosecution's conduct,

as set forth in paragraphs l through 24 above, was intentionally

undertaken in an attempt to deprive Weiss of a fair trial? See Smith at

186, 61 5 A.2d at 32 5. See also Lynn at 200.

This Court believes that prosecutorial misconduct can be of such a

nature that the intentionality of the conduct and the intention to

prejudice the defendant is apparent. For example, in Smith, the

prosecution not only failed to disclose the adhesive "lifters" used by

Corporal Balshy during the autopsy to pull granular particles that

resembled sand from between the victim's toes, it implied that Balshy

fabricated his testimony, and even requested an investigation into the

possibility of charging Balshy with perjury. This was done by the

prosecution during the course of the jury trial, with knowledge of the

defense's theory that the victim was killed at the shore at Cape May,

New Jersey. Smith at 182, 615 A.2d at 323. The prosecution also

19 denied the existence of an agreement with a Commonwealth witness

that in exchange for his testimony he would receive favorable

treatment at his sentencing. Id.

The Pennsylvania Supreme Court summarized the misconduct by

stating "[d]eliberate failure to disclose material exculpatory physical

evidence during a capital trial, intentional suppression of the evidence

while arguing in favor of the death sentence on direct appeal, and the

investigation of Corporal Balshy's role in the production of the

evidence rather than its own role in the suppression of evidence

constitute prosecutorial misconduct such as violates all principles of

justice and fairness embodied in the Pennsylvania Constitution's

double jeopardy clause." Id. at 183, 615 A.2d at 324.

Another example of recognizable intentional conduct with an

intention to prejudice the defendant is set forth in Commonwealth v.

Daidone, 453 Pa.Super. 550,684 A.2d 179 (1996). In Daidone, the

prosecutor made "it appear that there [was] evidence of guilt which in

fact [did] not exist." !_g_. at 559, 684 A.2d 184. "The prosecutor made

side comments within the hearing of the jury, denigrated the trial

20 ·udge's rulings in open court, and constantly repeated questions to

which objections had been sustained in order to make it appear that

the trial court was not allowing the Commonwealth to present its entire

case." Id.

Turning to the present case, the intentionality of Robinette's

conduct is not easily determined. The Court turns to the testimony

provided by Robinette at the hearing on Defendant's Motion to Dismiss

held on January 15, 2019, in the context of the facts of record.

Tribuiani

Robinette stated that when the Pennsylvania State Police first

identified Tribuiani as an individual with information about the Bruzda

murder, one of the first things that Robinette asked Tamewitz was "is

he willing to testify and does he want anything." (Transcript of Motion

to Dismiss hearing (hereinafter "TMDH"), p. 1 5). Robinette was

informed that "yes, he's willing to testify and no, he understands that

there's nothing we can do for him, he doesn't want anything." (TMDH,

pp. 15-16). However, after Tribuiani agreed to testify and after

providing a written statement to Tamewitz, he asked for favors on his

21 behalf. (TMDH, p. 16). These requests led to the letters written and

phone calls made by Robinette on behalf of Tribuiani detailed in

paragraphs 3, 5, 6, 7, 20, and 22 above.

Robinette also authored a memorandum dated April 8, 1996; this is

the memorandum referenced in paragraph 4 above. It appears that the

writing was an internal memo to the file. In the memo, Robinette

states that "Initially, Tribuiani requested nothing in exchange for his

cooperation and testimony. He later contacted Trooper Tamewitz and

requested that Tamewitz assist in expediting his parole from SCI

Huntington [sic]." (TMDH, pp. 36-37). The memo concludes with the

following statement: "I will contact the superintendent of SCI

Huntingdon to inquire about the possibility of expediting the parole of

Tribuiani." (TMDH, p. 37).

Wright

Robinette stated that when Wright first came to his attention,

Wright didn't request anything and the Commonwealth didn't promise

him anything in exchange for his cooperation. (TMDH, p. l 2).

Robinette then stated that he wasn't in a position to promise Wright

22 anything because Wright was already serving a state sentence. (TMDH,

pp. 12-13). Robinette stated that he communicated this to Wright.

(TMDH, p. 13). Robinette testified that he told Wright that he would do

two things: "No l, I would do whatever I could to try to keep him safe

while he was incarcerated." (TMDH, p. 14). "And No. 2, I

communicated to him that I would always communicate the exact

nature and extent of his cooperation to anyone if I was asked to do it,

which in other words, I told him I would tell people about what he was

doing if I was asked to do that." Id. Wright subsequently made

requests for help from the Commonwealth; these requests resulted in

Robinette authoring the letters detailed in paragraphs l 0, l 5, and 24

above.

Representations to the Court and Defense Counsel

Despite the letters written and phone calls made on behalf of

Tribuiani, the memorandum written to the prosecution file, and the

letters written on behalf of Wright, Robinette remained steadfast in his

representations to the Court and to defense counsel. These

representations are contained in paragraphs 12, 13, and 14 above, and

23 include the following statements: "Deals, we don't have any deals with

them, Judge," "I would just like to make on the record we have made no

threats or promises and the only representation that we have made to

these witnesses is that we will honestly report the level and extent of

their cooperation and tell the truth about what they do and that is one

part of it and we will take reasonable steps to protect their safety and

those are the only representations that we have ever made to those

witnesses," and "the Commonwealth will only report the nature and

extent of the witnesses' cooperation whenever queried."

Trial Testimony

Once again, despite the letters written on behalf of Wright,

Robinette called Wright as a witness in the trial, and asked him the

following question: "Has anyone made you any promises in exchange

for your testimony?" In direct response to that question, Wright stated

"No, sir." (Transcript of Trial of July 8, 1997, p. 553). Robinette made

no effort to address this response. On cross-examination, defense

counsel asked Wright "So they did something in exchange for the

statement, didn't they?" Robinette immediately objected, and the trial

24 ·udge sustained the objection. On re-direct, Robinette addressed this

issue with Wright again, asking Wright if he asked "for anything in

exchange for that statement." Wright responded "No, I did not." Id. at

544.

With regard to Tribuiani's trial testimony, and despite the letters

written and the phone calls made on Tribuiani's behalf, Tribuiani was

asked if any promises were made to him in exchange for his testimony.

Tribuiani said "No," and Robinette did nothing to address this

testimony. Defense counsel did not ask a question regarding promises

in exchange for Tribuiani's testimony, however, the objection to a

similar question posed to Wright had already been sustained.

The Court notes that Robinette attempted to bolster the testimony

of Wright by asking Trooper Jeffrey Witmer if Wright had asked for

anything in exchange for his testimony; Witmer stated that Wright

made no requests. jg. at 547. Similarly, Tamewitz testified that no

promises were made to Tribuiani in exchange for his testimony. jg. at

564.

25 Robinette's testimony regarding intent

At the hearing on the Motion to Dismiss, Robinette testified in

detail regarding his efforts on behalf of Tribuiani and Wright. This

testimony was provided in response to questions posed by Deputy

Attorney General Gregory J. Simatic and defense counsel. During this

questioning, Robinette was asked about his state of mind regarding his

efforts, vis-a-vis the representations he made to the Court and

defense counsel, and the testimony he elicited during the trial. The

Court finds the following questions and answers particularly relevant:

Q: Did you feel that writing the letters on behalf of Mr. Tribuiani

were in keeping with your representation to the Court and defense

counsel about what you would do in on his behalf?

A: Absolutely.

(TMDH, pp. 17-18).

Q: And was it your belief that that was in keeping with your

earlier disclosure?

A: Absolutely. Exactly what I told Judge Ruddock and what I

told Mr. Dougherty our deal was.

26 (TMDH, p. 19).

Q: Attorney Robinette, can you maybe state with a little more

specificity why you felt that your actions were keeping up with your

obligations?

A: My understanding of a couple things, Judge, first of all, my

understanding of what Brady required at that time did not include

letters such as the ones that I had written. I have been involved some

appellate litigation where there were Brady issues raised during that

time frame. And I even remember cases that, I believe, were valid at

the time that said material had just be fathered [sic] for cross

examination isn't necessarily Brady material. Additionally, I think

there's some case law that reports of cooperation on behalf of

witnesses, not necessarily, not Brady material at that time. That was in

my mind. I didn't think it was. If it would have been a statement of a

witness that was inconsistent, I would have understood that to be

Brady material and that would have been turned over. These weren't

statements by the witnesses. These were my statements. They were in

my correspondence file. I couldn't imagine they would have been used

27 to cross examine the defendant. Particularly, because I had advised

the Court and defense counsel of what I was doing for these witnesses,

that I would try to help keep them safe and that I would report exactly,

you know, what it was that they were doing for us. So no, not only did

I never make a decision to not turn over those letters, Judge, I never

even considered turning over those letters. That never struck me as

something that----that I would do, never even considered it.

(TMDH, pp. 20-21).

Q: And maybe I'll move on to the issue of any potential false

testimony that was allegedly elicited at trial. Did you elicit any

testimony that you believe to be false?

A: No.

(TMDH, p. 22).

Q: So was it your intent throughout these proceedings to afford

Mr. Weiss a fair trial:

A: Yes.

Q: Did you ever entertain any notion of doing anything other

than that?

28 A: No.

(TMDH, p. 28).

The Court finds Robinette's testimony to be credible in a critical

regard; this Court believes that Robinette genuinely thinks that his

actions did not and do not constitute prosecutorial misconduct. He

didn't believe it at the time of the trial, and it appears that he is

skeptical of the decisions of the PCRA court, the Pennsylvania Supreme

Court, and the Federal District Court. The Court finds Robinette's

convictions regarding his conduct to be extremely flawed and

troubling, but not impossible to believe.

For example, it is possible that Robinette held the belief that since

Tribuiani and Wright did not request favorable treatment and no

promises were made to them in exchange for their testimony at the

time they first agreed to cooperate, statements such as "Deals, we

don't have any deals with them, Judge," and "we have made no threats

or promises and the only representation that we have made to these

witnesses is that we will honestly report the level and extent of their

cooperation and tell the truth about what they do and that is one part

29 of it and we will take reasonable steps to protect their safety and those

are the only representations that we have ever made to those

witnesses," were true statements.

It also is possible that Robinette did not believe that he had to

disclose the individual letters and phone calls, even when required to

disclose all "consideration" given, since he provided the general

parameters of what he agreed to do on behalf of Tribuiani and Wright.

With regard to this matter, this Court does not ignore the conditional

phrase "whenever queried regarding the same," contained within

Robinette's written statement to defense counsel. It is clear that

Robinette wrote the favorable letters and made the favorable phone

calls without being "queried" by a third party about Wright's

cooperation or Tribuiani's cooperation. Robinette was questioned

about this issue at the hearing on the Motion to Dismiss as follows:

Q: That's what the letter says. As far as for Mr. Tribuiani's pre-

release, were you queried by anybody from Montgomery County as to

write a letter or tell about cooperation?

Robinette responded as follows:

30 A: I was asked by Mr. Tribuiani to help him contact the people

who might have an opportunity to comment on his pre-release. Query

is a word that's being used as if to query, being synonymous with to

ask and that's the way I was using the word.

(TMDH, pp. 62-63).

Once again, Robinette's reasoning and decision-making regarding this

issue is seriously flawed, but not impossible to believe.

With regard to the testimony provided at trial, it appears that

Robinette phrased his direct exam questions to Wright, Tribuiani,

Tamewitz, and Trooper Witmer in such a way to require a response

regarding promises made in exchange for the confession testimony.

For example, Robinette's question to Wright was as follows: "Has

anyone made you any promises in exchange for your testimony?" Since

Wright agreed to testify prior to requesting assistance, Robinette

believed that the testimony was not in exchange for the assistance.

Once again, this reasoning is erroneous and troubling, but it is

possible to believe that Robinette did not intend to elicit perjured

testimony.

31 With regard to the possible existence of a "secret deal," the Court

finds that the only evidence of a secret deal is contained in a letter

written from Tribuiani to Robinette subsequent to the trial. The letter

makes reference to a secret deal for leniency. The Court gives no

weight to this reference, as Robinette had no decision-making

authority with regard to Tribuiani's criminal matters. In other words,

Robinette was incapable of delivering leniency.

The Court gives weight to the fact that Robinette wrote letters to a

judge, a district attorney, several state correctional institution

superintendents, and two chairmen of the Pennsylvania Board of

Probation and Parole. In other words, he certainly wasn't trying to hide

intentional wrongdoing. To the contrary, such actions are more

consistent with a prosecutor who possessed the unenviable pairing of

arrogance and ignorance.

Finally, the Court agrees with the PCRA court and the Federal

District Court that Robinette's conduct was outrageous, as such word

is defined as "unacceptable." However, an individual's conduct can be

32 outrageous yet inadvertent, thereby lacking intentionality toward a

specific result. The Court finds that to be the case here."

Double Jeopardy Analysis Subsequent to

Commonwealth v. Johnson, 231 A. 3d 807 (2020)

As stated above, the Pennsylvania Supreme Court, in

Commonwealth v. Johnson broadened the jeopardy relief standard.

Therefore, the Court now addresses whether Robinette's prosecutorial

misconduct was "undertaken recklessly, that is, with a conscious

disregard for a substantial risk that" Weiss would be denied a fair trial.

The Court begins by discussing the facts of Johnson, because the

Supreme Court took much care in stressing that the details of the

prosecutorial misconduct in each case are critical, stating "we do not

suggest that all situations involving serious prosecutorial error

implicate double jeopardy under the state Charter." Id. The High

Court then stated "[t]o the contrary, we bear in mind the countervailing

societal interest mentioned above regarding the need for effective law

enforcement. Id., (citation omitted). Finally, Justice Dougherty penned

33 a Concurring Opinion for the purpose of "expressing [his] view that,

although [the Supreme Court's] decision broadens the jeopardy relief

standard requiring intentional prosecutorial misconduct to include

reckless (conscious) prosecutorial disregard of a substantial risk the

defendant will be denied a fair trial, the standard continues to be a

stringent one that will be satisfied only in egregious cases. ld at 828

(Justice Dougherty, Concurring). Justice Dougherty went on to state

the following: "I do not read our decision as suggesting dismissal of

charges is warranted in every case of prosecutorial misconduct. In the

face of a double jeopardy challenge, unless there is evidence to

support a finding of deliberate and reckless prosecutorial disregard of

a substantial risk the defendant will be denied a fair trial, the remedy

should be less severe than dismissal. Where such evidentiary support

is lacking, the appropriate remedy will normally include the award of a

new trial." Id.

This Court believes it is critical to begin with the Pennsylvania

Supreme Court's opening statement of the question presented in

lohnson. The Supreme Court stated as follows: "The question

34 presented pertains to the scope of protection offered by the

Pennsylvania Constitution's Double Jeopardy Clause. We consider

whether that provision bars retrial where the Commonwealth obtains a

conviction based on false evidence and its misconduct, while not

undertaken with the intent to deny the defendant a fair trial,

nevertheless stems from prosecutorial errors that rise substantially

above ordinary negligence. Id at 810 (emphasis added).

In Johnson, the law enforcement and the prosecution committed an

almost unimaginable evidentiary error. The reality of the situation was

that there were two baseball caps, a black cap and a red cap. The

black cap was worn by the victim at the time of the shooting. Id at

811. It was collected as evidence1 and submitted to the crime lab for

testing; the victim's blood was present on the brim of the cap. jg. The

red cap, which was recovered at the scene approximately nine feet

from the victim's body, was sent for testing after Appellant, Kareem

1 The black cap was given to the police at the police station shortly after the shooting

by Debbie Williams, a friend of the victim, Walter Smith.

35 ohnson, was identified as a suspect; Johnson's DNA was present on

the sweatband of the red cap. Id at 810-811.

From that point forward, the Commonwealth proceeded with the

completely erroneous position that there was only one cap recovered,

the red cap. Id at 811-812. The Commonwealth compounded this

erroneous position by taking the lab results from the black cap, i.e.,

the presence of the victim's blood on the brim, and attributing those

findings to the lab findings of the lab results of testing on the red cap

(in addition to the actual lab results of testing on the red cap). Id. As

a result of this series of unthinkable errors, the prosecution began the

trial by telling the jury that Johnson was wearing the red cap, and was

so close to the victim at the time of the shooting, that the victim's

blood was found on Johnson's red cap. Id.

The red baseball cap was the Commonwealth's "crucial piece of

physical evidence," and the mistakes continued. Officer Trenwith

testified that "when he recovered the red cap from the scene he saw

drops of fresh blood underneath the cap's brim," and he went on to

testify that "he had never seen a case in which blood had spattered the

36 distance from Smith's body to where the red cap was found at the

scene." Id at 812. Further, the forensic scientist who performed the

DNA testing testified that the victim's blood and Johnson's DNA "were

both found on 'the hat."' lg. Johnson never challenged the one hat

presentation, and in the closing argument, the prosecution argument

was built on the fallacy that the victim's blood was on the brim of the

red cap. Id at 812-813. The jury convicted Johnson on all counts and

imposed the death penalty. Id at 813.

Following Johnson's direct appeals, Johnson filed an amended Post

Conviction Relief Act Petition; soon thereafter the Commonwealth's

lamentable error was discovered as the result of an open records

request. lg. After the discovery, the Commonwealth "agreed that

Appellant was entitled to a new trial, and the court entered an order to

that effect in April 2015." Id. (emphasis added).

Turning to the facts of this matter, the Court has detailed

Robinette's conduct that has been adjudged to be prosecutorial

misconduct. The Court points out at this time its belief that certain

conduct can be found to be negligent, while other conduct can be

37 found to be reckless. After careful review, this Court finds almost all

of Robinette's conduct to be negligent, undertaken on the basis of a

mistaken belief that had some basis in law or in fact. However, the

Court finds Robinette's conduct to be reckless with regard to the

statement that he would convey the nature and extent of Wright's and

Trubuiani's cooperation "whenever queried regarding the same."

As stated above, when questioned about the fact that he wrote

favorable letters or made favorable phone calls at the request of the

cooperating witness, Robinette responded as follows:

A: I was asked by Mr. Tribuiani to help him contact the people

who might have an opportunity to comment on his pre-release. Query

is a word that's being used as if to query, being synonymous with to

The Court finds that decisions made based upon this barely

believable explanation were made with a conscious disregard to the

result. Given this finding, the Court now must look at whether such

reckless conduct created a substantial risk that the defendant would be

38 denied a fair trial. The Court begins by conducting its own analysis of

this question.

Unlike Johnson, the Commonwealth's recklessness does not deal

with the key piece of physical evidence leading to the defendant's

conviction.2 Rather, it deals with the failure to disclose the fact that

Robinette made phone calls and wrote letters to report Wright's and

Tribuiani's cooperation. Robinette was not in a position to promise

leniency. He was not in a position to deliver on a deal for favorable

treatment. He was conveying the facts of the cooperation to the

ultimate decision makers. Robinette was reckless in his decision not to

disclose the phone calls and letters, however, the Court finds that this

reckless decision did not carry with it a substantial risk that Weiss

would be denied a fair trial.

'The Court points out that the Supreme Court in Johnson did not have to wrestle with the question of whether or not the prosecutorial misconduct posed a substantial risk of depriving the defendant of a fair trial. In fact, the Supreme Court begins its Opinion by phrasing the question to be answered as "[wle consider whether that provision bars retrial where the Commonwealth obtains a conviction based on false evidence and its misconduct...." Johnson at 810. Obviously, the fact that the conviction was based upon the misconduct was self-evident. That is not the case here.

39 Next, the Court sets forth its belief that the Pennsylvania Supreme

Court has already answered this question. In Weiss Ill, the Supreme

Court reached the following conclusion:

"After a careful review of the record and the PCRA court's

conclusions, we agree with the court that the Commonwealth's

evidence against Appellant, independent of the tainted trial

testimony of Mr. Wright and Mr. Tribuiani, contained adequate

evidence of Appellant's guilt that there is no reasonable probability

that if the Commonwealth had turned over the relevant

impeachment evidence Appellant would not have been convicted."

Weiss Ill at 699, 81 A.3d at 788 (emphasis added).3

This Court completely understands that the United States District

Court for the Western District of Pennsylvania, in addressing Weiss'

amended federal petition for writ of habeas corpus, found that the

Pennsylvania Supreme Court's conclusion set forth above "was so

lacking in justification that there was an error well understood and

This Court points out that the Supreme Court reached this conclusion considering the totality of Robinette conduct, not just the conduct that this Court has found to be reckless.

40 comprehended in existing law beyond any possibility for fairminded

disagreement."' Weiss v. Wetzel, et al., at p. 32. And in making this

finding, the Federal District Court stated several times that Weiss was

denied a fair trial. Weiss v. Wetzel, et al., at p. 36. However, this Court

does not believe that the same state court jurisprudence that

concluded that Weiss "received a fair trial with a verdict worthy of

confidence" should now conclude that double jeopardy protections and

precepts bar retrial.'

CONCLUSION

As stated in this Court's earlier Opinion, the Court holds a firm

belief that Robinette's failures and the resulting depravation of due

process were born out of arrogance and ignorance. The Court believes

that Robinette's conduct was not intentionally undertaken to deprive

Weiss of a fair trial. The Court does find that a portion of Robinette's

conduct was reckless, as the conduct was undertaken consciously,

'The Court notes that it has conducted an extensive search for guidance on this issue, however, given the complex procedural history of this matter, the Court has been unable to find a situation in which the Pennsylvania Supreme Court found prosecutorial misconduct that did not undermine confidence in the verdict, followed by a grant of federal habeas corpus on essentially the same issue, and then a double jeopardy claim prior to the commencement of the new trial.

41 without regard to the consequences, and with a barely arguable basis.

However, the gravity of the reckless conduct, and the resulting impact

said conduct had on the trial, is far less egregious than the

Commonwealth's conduct in Johnson. Robinette committed serious

prosecutorial error, but when misconduct lacks the intentionality

required, or constitutes reckless conduct without a substantial risk that

the defendant will be denied a fair trial, Pennsylvania jurisprudence

provides that the prejudice caused to the defendant can be remedied

by retrial. Defendant should be given a new trial. Therefore,

Defendant's Motion to Dismiss Case and Discharge Defendant on

Double Jeopardy Grounds is DENIED.

WHEREFORE, the Court enters the following Order of Court.

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