Com. v. Davis, E. ( 2017 )

J-S51039-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
EVAN DAVIS :
:
Appellant : No. 2795 EDA 2016
Appeal from the Judgment of Sentence July 25, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0005486-2013
BEFORE: BOWES, SHOGAN, JJ., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED SEPTEMBER 07, 2017
Appellant Evan Davis appeals from the judgment of sentence entered
in Philadelphia County after a jury convicted Appellant of third-degree
murder, criminal conspiracy, and related weapons charges. Appellant claims
the trial court erred in denying as frivolous his pretrial motion to bar a retrial
on double jeopardy grounds. After careful review, we affirm.
Appellant was charged with the aforementioned offenses in connection
with the February 6, 2013 shooting death of Kiree Harris (“the victim”). On
that night, Appellant and his brother, Edwin Davis were contacted by
Michelle White, who was romantically involved with Ernest Davis, the brother
of Appellant and Edwin Davis. White told Appellant and Edwin Davis that her
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*
Former Justice specially assigned to the Superior Court.
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father, Paul White had been in a physical altercation with a man named
Omar Simmons. The Davis brothers agreed to come and fight Simmons.
Shortly thereafter, Appellant and his friend “Hasan” arrived at White’s
home and began cleaning two semi-automatic pistols, using rubber gloves
and towels. Edwin Davis and another unidentified individual arrived
approximately twenty minutes later. Michelle White told the Davis brothers
to “take care of some business” and directed them to the apartment complex
where Simmons lived. N.T. 12/23/13, at 14-15.
The Davis brothers asked Richard Boyle to accompany them to
Simmons’ apartment. Boyle knocked on Simmons’ door as Simmons would
not have recognized him. When no one answered the door, the Davis
brothers fired multiple gunshots through the door, striking the sleeping
victim, who had no involvement in the fight between Paul White and
Simmons. The victim died as a result of two gunshot wounds to the torso.
Officers responded to reports of the shooting and investigated the
scene of the crime. The next day, Appellant was implicated in the victim’s
death as Michelle White and Richard Boyle gave statements to the police
identifying the Davis brothers as the shooters. As a result of White’s
statement, police then investigated White’s home where they recovered four
latex gloves from a wastebasket. The gloves were submitted to the
Criminalistics Laboratory for DNA testing.
After Appellant, Edwin Davis, Paul White, and Michelle White were
charged in connection with the victim’s murder, Michelle White pled guilty to
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third-degree murder and conspiracy on December 23, 2013. As a part of
this agreement, Michelle White agreed to testify against Appellant and his
co-conspirators at a joint trial. While the trial was originally scheduled to
commence in September 2014, the case was continued twice: first, by
Appellant, on September 8, 2014, and then by Edwin Davis on June 29,
2015. The trial was then rescheduled for June 29, 2015.
Eleven days before trial was set to begin, on June 18, 2015, the
prosecutor learned that police had recovered the latex gloves from Michelle
White’s apartment that were believed to be used by Appellant and his cohort
to clean the guns and bullets used to commit the victim’s murder. The
prosecutor was unaware that the gloves had been recovered as this evidence
was not documented in the investigation of the murder scene by the
assigned detective, but were recorded by a different officer in a separate
crime scene report.
The prosecutor immediately notified defense counsel of this finding
and sent her the property receipt and photographs of the gloves. On June
19, 2015, the prosecutor obtained a court order for a sample of Appellant’s
DNA to determine if the DNA testing of the gloves matched Appellant’s
sample. Three days before trial was scheduled to begin, on June 26, 2015,
the prosecutor received the laboratory report which revealed that there was
substantial likelihood that Appellant’s DNA was on the gloves.
On June 27, 2015, Appellant filed a motion to exclude the DNA
evidence or to grant a continuance. The trial court denied this motion,
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declining to exclude the evidence as it found the prosecutor had not
deliberately withheld the evidence. In addition, the trial court was reluctant
to grant a continuance, which would require a severance of Appellant’s case
from his co-conspirators’ trial. The prosecution opposed Appellant’s request
for a continuance as the trial court’s refusal to continue the entire joint trial
would force the Commonwealth to prosecute Appellant and his co-
defendants in separate trials.
The trial court denied the motion for a continuance and provided
Appellant funding to obtain his own DNA expert. The trial court noted that
the Commonwealth faced the risk of having to retry Appellant a second time
if the defense expert disagreed with the DNA analysis. Further, the trial
court indicated that if Appellant were convicted and subsequently received a
contradictory opinion from his DNA expert, he could file a motion for a new
trial. The prosecutor agreed with this remedy, asserting that the expert
report he received was “such a conservative estimate that [he] would be
shocked if another DNA lab disagrees.” N.T. 6/29/15, at 14.
On June 29, 2015, Appellant proceeded to a jury trial, at which the
Commonwealth presented the testimony of Boyle and Michelle White, who
admitted they witnessed Appellant and Edwin Davis commit the murder.
Marlietta Cowan also testified for the prosecution, indicating that she saw
Appellant and a cohort clean their guns and bullets while wearing latex
gloves at Michelle White’s home. The trial court permitted the
Commonwealth to admit the DNA evidence from the latex gloves. Bryne
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Strother, an expert in DNA analysis, had concluded that Appellant’s DNA was
found on three of the eight samples tested. At the conclusion of the trial,
the jury convicted Appellant of third-degree murder, conspiracy, and related
firearms charges.
On August 7, 2015, Appellant filed a motion for a new trial based on
the assessment of defense DNA expert, Arthur W. Young. After the trial
court requested and received an additional report from Young, who opined
that the DNA results were inconclusive, the trial court granted Appellant a
new trial in an order dated January 4, 2016.
On February 18, 2016, Appellant filed a motion to dismiss the charges
and bar retrial based on double jeopardy principles. The trial court held a
hearing, at which the prosecutor testified that he was not aware that police
had recovered the gloves until June 2015, when he was preparing for trial.
He immediately informed defense counsel of this discovery, was able to
expedite the DNA testing, and sent the laboratory report to defense counsel
when it became available.
After consideration of this testimony, the trial court denied Appellant’s
motion to dismiss as it found that the delay in obtaining the DNA testing was
attributable to human error and further noted that the prosecutor made a
good faith effort to rectify the situation once the error was discovered. As
the trial court found that the prosecutor did not attempt to deny Appellant a
fair trial, it reasoned that Appellant’s motion was frivolous. Notes of
Testimony (N.T.), 7/18/16, at 163. Appellant did not appeal this finding of
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frivolousness by filing a Petition for Review in this Court along with a request
for a stay. See Commonwealth v. Orie, 610 Pa. 552, 22 A.3d 1021, 1027
(2011) (providing that a defendant may obtain preliminary appellate review
of a trial court’s finding that the defendant’s pretrial double jeopardy claim is
frivolous by filing a petition for review in the Superior Court along with a
request for a stay).
Instead of seeking preliminary appellate review of the denial of his
motion to bar retrial, Appellant proceeded to trial at which a jury again
convicted Appellant of third-degree murder, conspiracy, and related weapons
charges. On the same day, the trial court sentenced Appellant to twenty to
forty years’ incarceration on the murder charges and concurrent sentences
on the remaining charges. Both parties filed motions for reconsideration,
which the trial court denied. This timely appeal followed.
Appellant’s sole claim on appeal is whether the trial court erred in
denying his pretrial motion to bar a retrial on double jeopardy grounds.1
Appellant invokes the protection of both the Double Jeopardy Clause of the
Fifth Amendment to the United States Constitution and Article I, Section 10
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1
Although Appellant did not seek preliminary appellate review of the trial
court’s finding that his motion to bar a retrial on double jeopardy grounds
was frivolous, he is entitled to appellate review on the merits of his claim on
direct appeal following retrial. Commonwealth v. Brady, 510 Pa. 336,
345, 508 A.2d 286, 291 (1986), holding modified by Orie, 610 Pa. 552, 22
A.3d at 1025.
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of the Pennsylvania Constitution, which apply to bar a mistrial where the
“prosecution engages in conduct intended to provoke the defendant’s motion
for mistrial.” Commonwealth v. Minnis, 83 A.3d 1047, 1051 (Pa.Super.
2014) (citing Commonwealth v. Starks, 490 Pa. 336, 341, 416 A.2d 498,
500 (1980)).
In addition, our Supreme Court has held the double jeopardy clause in
Article I, Section 10 of the Pennsylvania Constitution provides greater
protection than its federal counterpart, finding
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.
Minnis, 83 A.3d at 1052 (quoting Commonwealth v. Martorano, 559 Pa.
533, 537, 741 A.2d 1221, 1222 (1999)).
Appellant concedes that the trial court was correct in finding that the
prosecution did not intentionally withhold the DNA evidence and the delay in
obtaining the DNA testing was attributable to human error. He does not
contest the trial court’s finding that the prosecution acted in good faith in
trying to rectify the situation with prompt DNA testing of the evidence.
Nevertheless, Appellant claims that it was “blatantly intentional” for the
prosecutor to contest his motion for continuance to review the DNA
evidence, “knowing full well that forcing Appellant to trial without affording
him the opportunity to consult with his own expert, was blatant error.”
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Appellant’s Brief, at 11. Moreover, Appellant claims that the Commonwealth
should not have objected to his motion for a new trial and demanded a
hearing, asserting that the jury should have been the arbiter of the
credibility of his defense expert.
However, we do not see how the prosecutor’s disagreement with
Appellant’s legal arguments constitutes misconduct that would warrant
dismissal of the charges against Appellant. Our Supreme Court has
emphasized that “dismissal of charges is an extreme sanction that should be
imposed sparingly… only in cases of blatant prosecutorial misconduct.”
Commonwealth v. Burke, 566 Pa. 402, 416, 781 A.2d 1136, 1144 (2001).
Further, the Supreme Court provided that:
Dismissal of criminal charges punishes not only the prosecutor ...
but also the public at large, since the public has a reasonable
expectation that those who have been charged with crimes will
be fairly prosecuted to the full extent of the law. Thus, the
sanction of dismissal of criminal charges should be utilized only
in the most blatant cases. Given the public policy goal of
protecting the public from criminal conduct, a trial court should
consider dismissal of charges where the actions of the
Commonwealth are egregious and where demonstrable prejudice
will be suffered by the defendant if the charges are not
dismissed.
Id. (citation omitted).
In this case, the prosecution did not engage in misconduct but merely
contested Appellant’s legal arguments. The prosecution objected to
Appellant’s motion for continuance as this was the third continuance request
from the defense in a joint murder trial with three defendants. As the trial
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court would not continue the cases of Appellant’s co-defendants, any
continuance would require the severance of Appellant’s case and necessitate
multiple trials. Moreover, the prosecutor expressed his belief that it was
unlikely that another DNA expert would reach a different result than the
laboratory’s conservative analysis.
Thus, in contesting the motion for continuance, the prosecutor chose
to proceed with the risk of having to try Appellant twice over severing
Appellant’s case from his co-defendants, which would guarantee multiple
trials. The trial court agreed with the Commonwealth and denied Appellant’s
request for a continuance, which it found unnecessary to assure that
Appellant received a fair trial. The trial court provided Appellant funding for
a defense expert to review the DNA evidence and assured Appellant he could
move for a mistrial if the retained expert reached an opinion contradicting
the laboratory report identifying Appellant’s DNA on the gloves.
Similarly, while Appellant contends that the Commonwealth
“demanded” a hearing on his motion for a new trial, it was necessary for the
trial court to schedule a hearing to require Appellant to prove he was entitled
to this remedy. As the trial court found that the initial report of Appellant’s
DNA expert did not provide sufficient information to allow the trial court to
decide the motion at the hearing, the trial court ordered Appellant’s expert
to provide a supplemental report. After reviewing this document in which
the defense expert opined that the DNA testing was “inconclusive,” the trial
court granted Appellant’s motion for a new trial.
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Viewing the record, we reject Appellant’s claim that the prosecution
engaged in misconduct intentionally undertaken to prejudice the defendant
to the point of the denial of a fair trial. Accordingly, we conclude that the
trial court did not err in denying Appellant’s motion to bar retrial on double
jeopardy grounds.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/7/2017
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