Com. v. Vellner, M. ( 2018 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
MICHAEL DAVID VELLNER, : No. 1583 MDA 2017
:
Appellant :
Appeal from the Order Entered September 26, 2017,
in the Court of Common Pleas of Northumberland County
Criminal Division at No. CP-49-CR-0000451-2015
BEFORE: LAZARUS, J., KUNSELMAN, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED APRIL 03, 2018
Michael David Vellner appeals the September 26, 2017 order of the
Court of Common Pleas of Northumberland County that denied appellant’s
motion to dismiss on double jeopardy grounds. After careful review, we
affirm.
The record reflects that appellant was charged with two counts of
aggravated indecent assault and indecent assault.1 The trial court scheduled
a jury trial for March 17, 2016. At trial, Pennsylvania State Trooper
Kevin Kearney (“Trooper Kearney”) testified that he interviewed appellant
after gathering information that appellant was a suspect in a crime. (Notes
of testimony, 3/17/16 at 11-15.) The Commonwealth began to play the
1 18 Pa.C.S.A. §§ 3125 and 3126, respectively.
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videotape of the interview. In the taped interview, prior to reading appellant
his Miranda2 rights, Trooper Kearney asked appellant if he remembered
him. Appellant responded that Trooper Kearney looked familiar.
Trooper Kearney stated, “I was your PO[3] about 20 years ago.” (Id. at 18.)
Shortly thereafter, appellant’s attorney moved for a mistrial. (Id.) The
Commonwealth’s attorney, Michael P. Toomey, Esq. (“ADA Toomey”),
stated:
To be honest, your Honor, I did not review that part
of the video, because if I had, I would have certainly
not played it. When I was reviewing the case for
trial[,] I skipped ahead to the actual interview
because the Miranda wasn’t challenged. So I mean
it’s the Commonwealth’s position that the Court can
give cautionary instruction and instruct the jury not
to consider it. All he said is I was a PO, that was
20 years ago.
Id. at 20. The trial court granted the mistrial for the introduction of prior
crimes by the Commonwealth. (Id. at 21.)
On April 7, 2016, appellant moved to dismiss on the basis of double
jeopardy. The trial court conducted a hearing on the motion on May 6,
2016. ADA Toomey testified that he reviewed the videotape with the
exception of the part where Trooper Kearney asked appellant if he
remembered him and recalled that he had been his “P.O.” He explained that
he did not watch that portion of the tape because he thought it would just
2 Miranda v. Arizona, 384 U.S. 436 (1966).
3 A “PO” in this context refers to a parole officer or a probation officer.
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consist of Trooper Kearney reading the Miranda warnings from a prepared
sheet or card. (Notes of testimony, 5/6/16 at 23-24.) ADA Toomey testified
that he reviewed the tape so that he would not play any portion for the jury
that would refer to prior bad acts, crimes, or wrongs. (Id. at 25.) He
explained:
I didn’t want to have a mistrial, Your Honor. That
was my purpose.
I wanted to avoid a mistrial. I wanted to convict
[appellant]. I felt this was a strong case and we
were going to win. I did not intentionally try to do
that to cause a mistrial. I mean, you can see my
notes. I went through the entire thing with the
exception of the beginning. Believe me, that will
never happen again.
Id.On May 10, 2016, the trial court denied the motion to dismiss on the
basis that ADA Toomey’s failure to redact the prejudicial comment on the
videotape shown to the jury was not intentional. Appellant appealed to this
court and asserted that the trial court erred when it denied the motion to
dismiss the information.
This court determined that the trial court did not satisfy the
requirements of Rule 587(B)(3-6) of the Pennsylvania Rules of Criminal
Procedure, vacated the order, and remanded for compliance with the rules.
Commonwealth v. Vellner, No. 944 MDA 2016, unpublished memorandum
(Pa.Super. filed June 22, 2017).
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On remand, the trial court conducted a hearing on September 26,
2017. The trial court stated that its findings of fact and conclusions of law
were contained in the statement in lieu of formal opinion that was filed on
September 28, 2016, held the motion was not frivolous4, and advised
appellant of his right to appeal immediately the determination as a collateral
order. As the motion is not frivolous, this court has jurisdiction to hear this
appeal.
On October 12, 2017, appellant filed a notice of appeal. On
October 17, 2017, the trial court ordered appellant to file a concise
statement of errors alleged on appeal, pursuant to Rule 1925(b) of the
Pennsylvania Rules of Appellate Procedure. On October 19, 2017, appellant
complied with the order. On October 20, 2017, the trial court filed a
statement in lieu of opinion.
Appellant raises the following issue for this court’s review: “Whether
the trial court erred when it denied the appellant’s motion to dismiss charges
on the grounds of double jeopardy because the Commonwealth caused the
mistrial in the first place?” (Appellant’s brief at 6 (capitalization omitted).)
“An appeal grounded in double jeopardy raises a
question of constitutional law. This court's scope of
review in making a determination on a question of
law is, as always, plenary. As with all questions of
4 This court would have jurisdiction of an appeal of the collateral order
denying the motion to dismiss if the trial court found that the motion was
not frivolous. If the trial court found that the motion was frivolous, then
appellant could secure review only by first filing a petition for review under
Rule 1573 of the Pennsylvania Rules of Appellate Procedure.
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law, the appellate standard of review is de novo[.]”
Commonwealth v. Vargas, 947 A.2d 777, 780
(Pa.Super. 2008) (internal citations omitted). 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. Wood, 803 A.2d 217, 220
(Pa.Super. 2002) (quoting Commonwealth v.
Young, 692 A.2d 1112, 1114-15 (Pa.Super. 1997)).
....
Our Supreme Court has determined that the Double
Jeopardy Clause of Pennsylvania's constitution
provides greater protection than its federal
counterpart:
[T]he 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).
As this Court has reflected:
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The Smith standard precludes retrial
where the prosecutor's conduct
evidences intent to so prejudice the
defendant as to deny him a fair trial. A
fair trial, of course, is not a perfect trial.
Errors can and do occur. That is why our
judicial system provides for appellate
review to rectify such errors. However,
where the prosecutor's conduct changes
from mere error to intentionally
subverting the court process, then a fair
trial is denied.
Commonwealth v. Chmiel, 777 A.2d 459, 464
(Pa.Super.2001).
Thus under 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 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. As this Court has often
repeated, “[a] fair trial is not simply a lofty goal, it is
a constitutional mandate, . . . [and] [w]here that
constitutional mandate is ignored by the
Commonwealth, we cannot simply turn a blind eye
and give the Commonwealth another opportunity.”
Chmiel, 777 A.2d at 464 (quoting Commonwealth
v. Martorano, 559 Pa. 533, 741 A.2d 1221, 1223
(1999)).
Commonwealth v. Kearns, 70 A.3d 881, 884-885 (Pa.Super. 2013).
(emphasis in original).
Here, appellant contends that the Commonwealth goaded him into
moving for a mistrial when it played a videotape in which the state trooper
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stated that he had previously been the parole officer of appellant. Appellant
contends that the playing of the videotape compromised his ability to have a
fair trial and that the Commonwealth played the video either deliberately or,
if it never listened to the video, played it at its own peril to appellant’s
detriment.
The trial court determined that the Commonwealth did not intend to
play the portion of the videotape that referred to appellant’s prior criminal
history. The trial court, as fact-finder, based this determination on
Attorney Toomey’s testimony. Based on these factual findings, this court
agrees with the trial court that there was no intent to cause the mistrial or
deny appellant a fair trial.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/3/2018
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