Com. v. Stokes, P. ( 2017 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
PATRICK EUGENE STOKES, : No. 551 WDA 2017
:
Appellant :
Appeal from the Order, March 15, 2017,
in the Court of Common Pleas of Crawford County
Criminal Division at No. CP-20-CR-0000828-2016
BEFORE: BOWES, J., SOLANO, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED OCTOBER 25, 2017
Patrick Eugene Stokes appeals from the March 15, 2017 order denying
his motion to dismiss based on double jeopardy grounds. After careful
review, we affirm.
The trial court summarized the relevant facts and procedural history of
this case as follows.
[Appellant] had been charged in three counts
with making terroristic threats (graded as a first
degree misdemeanor), harassment, and disorderly
conduct stemming from an encounter in the
Courthouse with his son’s mother (hereinafter
referred to as the “Victim”) on July 28,
2016.[Footnote 1] They had just attended a custody
hearing to determine whether he posed a threat to
the boy and whether counseling was needed, in light
of his recent conviction for endangering the child’s
welfare.[Footnote 2] His trial commenced on
January 11, 2017,[Footnote 3] and after the
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Commonwealth rested its case, [appellant] testified
on his own behalf.
[Footnote 1] The Information was
amended following trial, in the
expectation that [appellant] would enter
a plea, to substitute for terroristic
threats, 18 Pa.C.S.A. § 2708(a)(1), [for]
the third degree misdemeanor offense of
harassment, id. §§ 2709(a)(4), (c)(2).
The other two charges were graded as
summary offenses. Id. §§ 2709(a)(3),
(c)(1), 5503(a)(3), (b).
[Footnote 2] Case No. CR 1224-2015, in
which [appellant] had ple[d] guilty on
June 9, 2016, and was awaiting
sentencing. See 23 Pa.C.S.A. § 5329
(“Consideration of criminal conviction” in
custody actions).
[Footnote 3] Although [appellant] had
requested a bench trial, the
Commonwealth imposed its right to a
trial by jury on the misdemeanor charge.
During cross-examination, [appellant] was
asked [by Assistant District Attorney Andrew Natalo
(hereinafter “A.D.A. Natalo”)] whether the hearing
had occurred “out of the blue,” and answered, “No,
sir. It was a determination to see if I was a danger
to my child’s life or if I was harmed -- if I could harm
him, I guess.” The trial was halted and a mistrial
declared when he was next asked, “I guess what
would have brought that on?” and his answer was, “I
had criminal charges . . . .”
[Appellant] filed his motion [to dismiss] on
January 23, 2017, and on January 27, 2017, [the
trial court] ordered him to file a brief ten business
days prior to the date on which it was to be argued;
the Commonwealth was directed to file a reply brief.
[Appellant’s] counsel apologetically submitted a brief
on March 3, 2017, the day that the [trial c]ourt
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heard argument on the motion. The Commonwealth
had, nevertheless, filed a brief in opposition to the
motion a week earlier, on February 24, 2017.
Trial court opinion, 3/15/17 at 1-2 (citations to notes of testimony omitted;
internal quotation marks in original).
Thereafter, on March 15, 2017, the trial court filed an order and
opinion denying appellant’s motion to dismiss. On March 30, 2017,
appellant filed a timely notice of appeal challenging the trial court’s refusal
to grant his request for dismissal and bar a second trial. The record reflects
that the trial court did not order appellant to file a concise statement of
errors complained of on appeal, in accordance with Pa.R.A.P. 1925(b).
Nonetheless, on April 20, 2017, the trial court filed a Rule 1925(a) opinion,
indicating that it was relying on the reasoning set forth in its March 15, 2017
memorandum.
Appellant raises the following issue for our review:
Should the retrial of [appellant] be barred by the
Fifth Amendment of the United States Constitution
and Article 1 Section 10 of the Pennsylvania
Constitution because the Prosecution deliberately
elicited testimony from [a]ppellant regarding his
prior conviction after being admonished not to
proceed with the line of questioning, which resulted
in a mistrial?
Appellant’s brief at 4.
We begin by observing that an order denying a motion to dismiss
charges based on double jeopardy is interlocutory but appealable as of right.
Commonwealth v. Barber, 940 A.2d 369, 376 (Pa.Super. 2007) (stating,
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“[i]t is well settled in Pennsylvania that a defendant is entitled to an
immediate interlocutory appeal as of right from an order denying a
non-frivolous motion to dismiss on state or federal double jeopardy
grounds.”), appeal denied, 960 A.2d 835 (Pa. 2008); see also
Commonwealth v. Orie, 22 A.3d 1021, 1023-1024 (Pa. 2011) (holding
that an appeal from a pre-trial order denying double jeopardy protection is
final and appealable). “An appeal grounded in double jeopardy raises a
question of constitutional law.” Commonwealth v. Taylor, 120 A.3d 1017,
1020 (Pa.Super. 2015) (citation omitted). “This court’s scope of review in
making a determination on a question of law is, as always, plenary. As with
all questions of law, the appellate standard of review is de novo.” Id.1
Instantly, appellant contends that A.D.A. Natalo intentionally
cross-examined him with regard to his prior convictions2 and that such
conduct amounted to prosecutorial misconduct. (Appellant’s brief at 5-6.)
Appellant invokes the protection of both the Double Jeopardy Clause of the
Fifth Amendment to the United States Constitution and Article I, Section 10
1 Clearly, the trial court in this matter denied appellant’s motion to dimiss on
its merits and not as frivolous.
2 Appellant pled guilty to endangering the welfare of children, fleeing or
attempting to elude a police officer, and the summary offense of operating a
vehicle without the required financial responsibility on June 19, 2016. See
18 Pa.C.S.A. § 4304(a), 75 Pa.C.S.A. §§ 3733(a) and 1786, respectively.
These convictions arose out of an incident that occurred on December 11,
2015, when appellant fled from police with his three-year-old child in the
backseat after police attempted to stop him for driving without a valid
inspection sticker.
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of the Pennsylvania Constitution,3 and maintains that the appropriate
remedy is the preclusion of a new trial on double jeopardy grounds. (Id. at
7.) For the following reasons, we disagree.
In Commonwealth v. Smith, 615 A.2d 321 (Pa. 1992), our supreme
court examined the protection of the Double Jeopardy Clause in a case
involving prosecutorial misconduct pursuant to the standard set forth in
Oregon v. Kennedy, 456 U.S. 667 (1982). In Smith, our supreme court
broadened the double jeopardy protection provided by the federal courts and
United States Constitution, which requires the prosecution to have
intentionally caused a mistrial through misconduct. Specifically, the Smith
court stated 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. Because the court determined that the prosecutor
intended to prejudice the defendant and deprive him of a fair trial, it found
3 The Fifth Amendment of the United States Constitution provides, in
relevant 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. Similarly,
Article I, § 10 of the Pennsylvania Constitution provides that “[n]o person
shall, for the same offense, be twice put in jeopardy of life or limb.”
Pa. Const. Art. I, § 10.
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that his double jeopardy rights would be violated if he faced a new trial and
discharged him. (Id.)
Several years later in Commonwealth v. Martorano, 741 A.2d 1221(Pa. 1999), the defendants were awarded a new trial based upon
prosecutorial misconduct. On remand, the trial court denied the defendants’
motion to dismiss on double jeopardy grounds, but a panel of this court
reversed. Relying on Smith, our supreme court held that pervasive
prosecutorial misconduct throughout the proceedings demonstrated the
prosecutor’s intent to deprive the defendants of a fair trial and that double
jeopardy barred their retrial. In Martorano, our supreme court amplified
the Smith standard and held that double jeopardy barred retrial of the
defendants where the prosecutor:
acted in bad faith throughout the trial, consistently
making reference to evidence that the trial court had
ruled inadmissible, continually def[ied] the trial
court’s rulings on objections and . . . repeatedly
insist[ed] that there was fingerprint evidence linking
[the defendants] to the crime when the prosecutor
knew for a fact that no such evidence existed.
Martorano, 741 A.2d at 1223.
More recently, in Commonwealth v. Minnis, 83 A.3d 1047(Pa.Super. 2014), a panel of this court reiterated that Martorano stands for
the proposition that, “where the defendant alleges prosecutorial misconduct
as a basis for double jeopardy protection, the outcome depends on
the nature of the alleged misconduct.” Minnis, 83 A.3d at 1052 (emphasis
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added). For prosecutorial misconduct to prohibit retrial on double jeopardy
grounds, the prosecutor’s conduct must be both egregious and pervasive.
Id. at 1052-1053. The Commonwealth can “therefore engage in misconduct
that warrants a new trial but is not sufficiently egregious to bar mistrial on
double jeopardy grounds.” Id. at 1053 n.5 (internal citation omitted).
In the instant matter, we find that appellant’s contention that
A.D.A. Natalo intentionally provoked appellant into moving for a mistrial,
such that his retrial should be barred on double jeopardy grounds, is belied
by the record. Similar to Minnis, the trial court concluded that mistrial was
warranted in this case but that it did not believe that A.D.A. Natalo’s conduct
was so egregious as to bar retrying appellant. Specifically, the trial court
stated as follows:
A.D.A. Natalo was advised not to inquire into
the reason for the custody hearing, and yet
persisted. [Notes of testimony, 1/11/17 at 43] (“You
can’t ask about the conviction, but you can address
why [“Mother/Victim”] was absent from the child’s
life.”). By pursuing this line of inquiry, he thus
engaged in deliberate misconduct which caused a
mistrial. Subjectively, however, it does not appear
that he intended to provoke [appellant] into moving
for a mistrial because he based his challenge to the
motion upon the propriety of his conduct (which he
continues to assert). [Id. at 50-52;
Commonwealth’s brief at] 5-8. His lack of desire to
obtain a retrial may be inferred on an objective basis
as well, in that he anticipated that this line of
questioning would be objectionable and attempted to
obtain a ruling in advance. [Notes of testimony,
1/11/17 at 44] (“I don’t want to cause a mistrial
when I ask him why he was there for a custody
hearing.”). A prosecutor seeking a mistrial would
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not disclose that desire with such an expression of
uncertainty and concern. The prosecutorial
misconduct in this case, therefore, does not prohibit
retrial.
A.D.A. Natalo mistook our instruction to be a
license to proceed in the manner he did unless and
until defense counsel lodged an objection, which
came perhaps a bit belatedly. See
[Commonwealth’s brief at] 5 (“The Commonwealth’s
first argument against dismissal is based [up]on the
[trial c]ourt’s actual ruling ... that
cross-examination would have to commence in order
to see what was objectionable and what was not.”)
His misconduct is thus not of the blatant variety
justifying the dismissal of charges. See
Commonwealth v. Burke, [781 A.2d 1136, 1144-
1145 (Pa. 2001)] (“Because of the compelling
societal interest in prosecuting criminal defendants
to conclusion, . . . dismissal of charges is an extreme
sanction that should be imposed sparingly and . . .
only in cases of blatant prosecutorial misconduct.”).
Trial court opinion, 3/15/17 at 5-6 (case citations and citations to notes of
testimony amended; footnotes omitted).
Based upon our review of the record in this matter, we discern no
error on the part of the trial court in reaching this conclusion. We agree that
A.D.A. Natalo’s conduct, while reckless, did not rise to the level of having
been committed with the intent to provoke appellant into seeking a mistrial.
At most, the record demonstrates that A.D.A. Natalo misapprehended the
trial court’s ruling about appellant’s prior conviction, and the trial court, in
an abundance of caution, granted a mistrial. This is not the type of
pervasive misconduct that this court found to bar retrial in Smith and
Martorano. See, e.g., Commonwealth v. Basemore, 875 A.2d 350, 356
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(Pa.Super. 2005) (finding no support in either Smith or Martorano “for the
idea that either grossly negligent or reckless conduct by a prosecutor
implicates double jeopardy concerns.”), appeal denied, 895 A.2d 548 (Pa.
2006). Accordingly, appellant’s claim that this case should be dismissed on
double jeopardy grounds must fail.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/25/2017
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