Com. v. Brown, J. ( 2016 )

J-A01038-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
JAWAYNE K. BROWN
Appellee No. 3014 EDA 2014
Appeal from the Order Entered October 9, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0102174-2005,
CP-51-CR-0609071-2006
*****
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
RICHARD BROWN
Appellee No. 3046 EDA 2014
Appeal from the Order Entered October 9, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0102173-2005
*****
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
AQUIL BOND
Appellee No. 3054 EDA 2014
J-A01038-16
Appeal from the Order Entered October 9, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0102171-2005
BEFORE: LAZARUS, J., OTT, J., and STEVENS, P.J.E.*
MEMORANDUM BY LAZARUS, J.: FILED JUNE 06, 2016
The Commonwealth of Pennsylvania appeals from the order of the
Court of Common Pleas of Philadelphia County that granted the motions to
bar retrial filed by Jawayne K. Brown, Richard Brown and Aquil Bond
(collectively, “Appellees”). After careful review, we affirm.
The underlying facts of this case have been previously set forth by this
Court as follows:
At approximately 4:20 a.m. on the morning of November 21,
2002, Rohan Haughton (“Haughton”) called his fiancée Nicole
Islam to tell her that Hadith Goodman (“Goodman”) had asked
him to take money to Chante Baker (“Baker”) and drive her to
the airport. Airline records showed that Goodman had
purchased tickets for himself and Baker on two flights to
California, but that neither showed up or boarded a plane. Just
before midnight of the next day, the Philadelphia police found
Haughton’s body in a parked Chevrolet Tahoe. He had been
bound and gagged with duct tape and had died of a gunshot
wound to the head.
In late November 2002, police arrested Vincent Smithwick
(“Smithwick”) on drug charges and soon referred him to federal
law enforcement authorities for prosecution on federal crimes.
Smithwick learned that another inmate, Christopher Smith,
(“Smith”), intended to cooperate with Pennsylvania state
authorities and offer testimony regarding Smithwick’s
involvement in Haughton’s murder. Smithwick thus came
____________________________________________
*
Former Justice specially assigned to the Superior Court.
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forward and entered into two plea agreements, one state and
one federal, pursuant to which he implicated himself in various
crimes, including the murders of Haughton and another man. In
return for his testimony, state and federal authorities agreed to
a maximum term of incarceration for Smithwick of 20 – 40 years
of concurrent time for all state and federal charges. In addition
to himself, Smithwick also identified Jawayne Brown, Baker,
Smith, Richard Brown and Aquil Bond (“Bond”) as individuals
responsible for Haughton’s murder.
Baker subsequently also entered into a plea bargain agreement,
pursuant to which she agreed to testify about her role in
Haughton’s death in exchange for the Commonwealth’s
agreement to drop all murder, kidnapping, and weapons
offenses against her. She pled guilty to robbery and conspiracy
charges, and the Commonwealth agreed not to seek the
mandatory minimum five to ten years of incarceration for those
crimes.
The trial of Jawayne Brown, Smith, Richard Brown, and Bond for
Haughton’s murder commenced on July 14, 2006, with Baker
and Smithwick as the principal witnesses for the Commonwealth.
Baker testified that on several prior occasions she had traveled
to California with Goodman to take large amounts of cash (taped
to her body) for him. According to Baker, on November 20,
2002, Goodman had advised her that they would be taking
another such trip together; early the next morning, however, he
came by her house to tell her that he would be taking a later
flight, and that instead Haughton would bring the money to her
in advance and accompany her on her flight. Baker testified that
Richard Brown saw Goodman leaving her house and questioned
her about his visit. Baker told him that Haughton would be
arriving with a large sum of money. According to Baker, Richard
Brown told her that he was surprised she had not confided in
him about this operation previously, since “that is what he did,
he robbed people.”
Baker testified that a few hours later, in the early morning of
November 21, Richard Brown brought Haughton into her house
at gunpoint. She testified that with Richard Brown and Smith in
attendance, Jawayne Brown and Bond beat and tortured
Haughton, demanding that he give them the money that Baker
was supposed to take to California for Goodman. According to
Baker, Smithwick then arrived and Jawayne Brown, Smith, Bond
and Smithwick took Haughton out the back door of the house.
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Smithwick testified that Bond called him in the early morning
hours of November 21 and told him to come to Baker’s house.
Upon his arrival, he saw Haughton tied up and gagged in the
kitchen, being questioned about the money while Bond prodded
him with a steak knife. According to Smithwick, Richard Brown
then ordered Bond to put Haughton “to sleep,” at which time
Smithwick, along with Jawayne Brown, Bond, and Smith, forced
Haughton out the back door, over a fence, and into Haughton’s
Chevrolet Tahoe. While Smith followed in a separate vehicle,
Jawayne Brown drove the Tahoe. In the backseat of the Tahoe,
Bond and Smithwick continued to attempt to force Haughton to
disclose the location of the money. When Haughton failed to
disclose any additional information, Smithwick testified that
Bond shot him in the head. Jawayne Brown, Bond and
Smithwick then abandoned the Tahoe and joined Smith in his
vehicle. Smith drove them all to a hotel. Smithwick testified
that Bond then gave him $5,000 for his efforts.
Commonwealth v. Brown, J. et al., No. 3282 EDA 2006, unpublished
memorandum at 2-5 (Pa. Super. filed February 17, 2012) (citations
omitted).
Following a jury trial before the Honorable Sheila Woods-Skipper,
Appellees were convicted of second-degree murder and other offenses on
July 31, 2006. Following separate hearings held on different days in October
2006, the court sentenced Appellees to life imprisonment without parole plus
additional sentences for other crimes.
On direct appeal, this Court reversed the judgments of sentence and
granted Appellees a new trial based on prosecutorial misconduct. See
Brown, J., supra; Commonwealth v. Brown, R., No. 3055 EDA 2006,
unpublished memorandum (Pa. Super. filed February 17, 2012). This Court
noted:
We . . . direct our focus herein on two specific instances of
prosecutorial misconduct . . . namely the prosecutor’s improper
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attempts to bolster the credibility of a key government witness
(Smithwick). These two instances of prosecutorial misconduct
were highly prejudicial . . . and, when considered in the context
of the atmosphere of the trial as a whole, constituted deliberate
attempts to destroy the objectivity of the jury and prevent the
jury from rendering a true verdict.
Commonwealth v. Brown, J., supra at 9.
The Commonwealth sought en banc reargument, which this Court
denied on April 18, 2012. The Commonwealth then filed petitions for
allowance of appeal from this Court’s orders, which our Supreme Court
denied on September 18, 2013.
On remand, this case was assigned to the Honorable Benjamin Lerner.
Appellees each filed a motion to dismiss, and argument was held on August
13, 2014. On October 9, 2014, Judge Lerner granted the motions on double
jeopardy grounds.
The Commonwealth filed a timely appeal in which it raises the
following issues for our review:
1. Did the lower court err in barring retrial under
Commonwealth v. Smith[, 615 A.2d 321 (Pa. 1992)]?
2. Did the lower court err in concluding that it was required to
bar retrial due to statements in this Court’s prior panel
opinion?
3. Did the lower court err in refusing to transfer these cases to
the trial judge, where the prosecutor’s intent was in issue?
4. Did the trial judge abuse her discretion in finding that the
Commonwealth did not unavoidably prejudice the jury, where
the Commonwealth fairly responded to defense arguments
that the prosecution irresponsibly made a “knee jerk” plea
deal with a witness?
Appellant’s Brief, at 4.
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Because this Court’s memorandum in support of reversing the
judgment of sentence and granting a new trial is inextricably linked to the
matter before us, we cite significant portions therefrom.
After discussing the prohibition against improper bolstering or
vouching for a government witness, this Court noted:
In the present case, during Smithwick’s testimony (both direct
and cross-examinations) the terms of the written plea
agreement with the Commonwealth were described and
discussed at length. After Smithwick concluded his testimony,
counsel for the Commonwealth then advised the Court that it
intended to call as its next witness Edward McCann (“McCann”),
an Assistant District Attorney and chief of the homicide unit of
the Philadelphia District Attorney’s Office. McCann signed
Smithwick’s plea bargain agreement on behalf of the
Commonwealth. Because McCann had not been on the
Commonwealth’s witness list, defense counsel . . . objected and
demanded an offer of proof, at which time counsel for the
Commonwealth provided the following:
MR. CAMERON: Sure. He is simply going to say, as
counsel well knows, that in conjunction with [the federal
prosecutor] he spoke to [Smithwick]. Thereafter a plea
agreement was drafted. Thereafter a written statement
was given. Thereafter pursuant to the agreement he was
arrested on third-degree murder. Thereafter he pled guilty
to those charges. Thereafter he’s filling his agreement
under the agreement. And that’s it.
In response, defense counsel . . . renewed their objections on
the grounds that the information contained in this offer of proof
had already been provided to the jury during Smithwick’s
testimony – and that the actual purpose of McCann’s testimony
was to bolster Smithwick’s credibility. Counsel for the
Commonwealth then twice represented to the court that there
would be no attempts to bolster Smithwick’s credibility:
[COUNSEL FOR BOND]: Yeah. I object to Mr. McCann
saying anything about the [plea bargain] agreement. The
agreement is in black and white. The agreement is what it
is. What counsel is trying to do now is bolster the
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credibility of the witness saying, Oh, yeah, I heard his
story. I believe him.
[PROSECUTOR]: He is not going to say that.
[COUNSEL FOR BOND] But that is the implication,
Judge. The agreement is in black and white. It was
explained to you by Mr. Smithwick. There is nothing Mr.
McCann can add in addition to what has been already
testified to. The only reason he is putting Mr. McCann on
is to somehow give this an aura of credibility that I would
object to.
[PROSECUTOR] He is not going to say anything
about credibility.
Based upon these representations, the trial court allowed
McCann to testify.
On the stand, after asking McCann relatively perfunctory
questions about the terms of the plea bargain with Smithwick,
counsel for the Commonwealth then asked a series of questions
in direct contradiction to his prior representations to the trial
court regarding the credibility of Smithwick:
Q: And the various things – and you’ve spoken with
him, correct?
A: I have spoken to him on more than one occasion,
yes.
Q: And has [sic] been corroborated in the
things that he told you?
[COUNSEL FOR JAWAYNE BROWN]: Objection.
THE COURT: Sustained.
BY THE PROSECUTOR:
Q: Do you make these kinds of deals out of the
blue without corroboration?
[COUNSEL FOR JAWAYNE BROWN]: Objection.
THE COURT: Sustained.
[COUNSEL FOR SMITH]: We have a motion, Your
Honor.
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THE COURT: Overruled for now. Go ahead.
BY THE PROSECUTOR:
Q: Is this a common practice for you as chief of
the homicide unit to make these kind of deals?
[COUNSEL FOR JAWAYNE BROWN] Objection.
[COUNSEL FOR SMITH] Objection.
THE COURT: Sustained.
[PROSECUTOR] I’ll handle it in my argument.
[COUNSEL FOR SMITH] Objection to comments.
THE COURT: That is sustained as well. That is
striken.
The trial court then denied a motion for mistrial for prosecutorial
misconduct asserted by defense counsel.
Commonwealth v. Brown, J., supra at 13-16 (citations omitted, emphasis
in original).
With respect to this exchange, this Court noted:
This questioning regarding corroboration constituted plainly
improper and willful attempts by the prosecutor to bolster
Smithwick’s credibility, despite his unambiguous representations
to the trial court (in response to objections by defense counsel
on this issue) in advance of McCann’s testimony to the contrary.
As in [Commonwealth v.] Reed, [446 A.2d 311 (Pa. Super.
1982)], the prosecutor’s inflammatory questions here insinuated
the existence of facts in the prosecutor’s personal knowledge but
not a part of the trial record (i.e., the results of a prior
undisclosed investigation into Smithwick’s credibility). The
prosecutor’s clear intention here was to leave the jury with the
strong impression that Smithwick, as a result of a prior
investigation by McCann and/or the District Attorney’s Office,
had the support of prosecuting authorities as a credible witness.
There is no other reasonable inference to be drawn.
That the trial court sustained the objections to the questions and
thus precluded McCann from answering them is irrelevant.
Improper questioning may form the basis of a claim of
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prosecutorial misconduct, even where objections are sustained
and thus the questions go unanswered. In Commonwealth v.
Hoskins, 403 A.2d 521 (Pa. 1979), for instance, our Supreme
Court granted a new trial because the prosecutor asked a
question during cross-examination of the defendant implying
that an important defense witness was involved in drug
trafficking and the Muslim religion, even though these issues
were not relevant to the case. Id. at 528. Although the
objection to the question was sustained, our Supreme Court
ruled that the trial court erred in not granting a mistrial, noting
that “[s]uch inferences are clearly improper and inflammatory.”
Id. Likewise, in Commonwealth v. Percell, 454 A.2d 542 (Pa.
1982), our Supreme Court reached a similar decision when the
prosecutor asked a defense witness several questions about
witness tampering charges in an unrelated case, even though
the trial court had ruled this evidence inadmissible.
...
Not every instance of prosecutorial misconduct mandates the
granting of a new trial. Commonwealth v. Montalvo, 986
A.2d 84, 108 (Pa. 2009) cert. denied, 131 S.Ct. 127 (2010)
(quoting Commonwealth v. Cooper, 941 A.2d 655, 668 (Pa.
2007). Reversible error occurs when the unavoidable effect of
the challenged comments would prejudice the jurors and form in
their minds a fixed bias and hostility toward the defendant such
that the jurors could not weigh the evidence and render a true
verdict. Commonwealth v. Miller, 819 A.2d 504, 515 (Pa.
2002), cert. denied, 540 U.S. 827 (2003) (quoting
Commonwealth v. Simmons, 662 A.2d 621, 638-39 (Pa.
1995), cert. denied, 516 U.S. 1128 (1996)).
. . . ..
In the present case, we must conclude that the prosecutor’s
misconduct had serious consequences in unfairly influencing the
jury and thus depriving Jawayne Brown and Bond of a fair trial.
In particular, the Commonwealth’s case against Jawayne Brown
and Bond depended heavily, and in certain respects solely, on
the credibility of Smithwick’s testimony. While Baker’s
testimony provided evidence of the events occurring in her
house on the morning of July 21, 2002, she was not in the Tahoe
when Haughton was killed and thus she could not testify
regarding the final sequence of events that resulted in
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Haughton’s murder. In addition, the Commonwealth did not
produce any forensic evidence placing Jawayne Brown, Bond or
other co-defendants in the Tahoe, as none of the fingerprints
inside matched the accused and no other trace evidence (e.g.,
hair follicles, body fluids) was taken from the vehicle for
analysis.
In view of this evidence, Smithwick was a key witness for the
Commonwealth, as his testimony provided the jury with a
detailed explanation of the events taking place after Haughton
was taken from Baker’s house, including what happened in the
Tahoe. The Commonwealth’s case thus depended in substantial
part on the credibility of Smithwick’s testimony. When
determining the extent of prejudicial effect on a jury, our
Supreme Court has advised as follows:
An accepted guide in determining prejudicial effect is that,
if the remark may be said with fair assurance to have had
but a slight effect upon the jury, if any at all, and one is
not left in doubt that it had no substantial influence in the
case, it will not vitiate the otherwise fair trial.
Commonwealth v. Davis, 440 A.2d 1185, 1188 (Pa. 1981)
(quoting Commonwealth v. Phillips, 132 A.2d 733, 736 (Pa.
Super. 1957)). Given the importance of Smithwick’s credibility
to the Commonwealth’s case, the prosecutor’s improper
bolstering – by implying to the jury that an investigation by
McCann (or other members of the Philadelphia District Attorney’s
Office) had corroborated the veracity of Smithwick’s testimony –
was prejudicial to the rights of [Appellees] to a fair trial. Put
another way, under the Davis standard, on the facts presented
in this case, we cannot conclude that the prosecutor’s conduct
“had no substantial influence in the case.” Reed, 446 A.2d at
316 (citing Davis 440 A.2d at 1188)).
Commonwealth v. Brown, J., supra, at 18-22.
Accordingly, this Court found prosecutorial misconduct with respect to
bolstering the credibility of a Commonwealth witness.
This Court then considered whether the Commonwealth engaged in
prosecutorial misconduct during closing argument.
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At trial it was agreed that Smithwick would only testify to the murders
to which he pled guilty, namely those of Haughton and Anthony Harris. The
Commonwealth kept to this agreement during trial.
During his closing argument, however, the prosecutor referenced
Smithwick’s involvement in five additional murders.
[PROSECUTOR]: It’s not just about this case. They
tried to say what is the point of Mr. McCann. Well, the
point of Mr. McCann was he just didn’t give up this
case. He helped solve seven murders that there was no
evidence on. Seven murders. So I’ll give him that deal
in a heartbeat. Particularly in this. If we can get those
kinds of guys that did what they did to Rohan
Haughton, and the way they tortured him.
Defense counsel then moved for a mistrial. After an extended
discussion at sidebar, the trial court denied the motion for a
mistrial, at which time the following exchange occurred in the
presence of the jury.
THE COURT: Jurors, I am sustaining defense’s objections
regarding that. There is no evidence on the record that
indicates that Mr. Smithwick helped to solve seven
unsolved murders. My recollection is that the testimony
was that he did participate in the involvement of
multiple other cases. But there is no specific
information regarding seven unsolved murders.
[Prosecutor]: Multiple as opposed to seven. My
apologies.
What did he gain by –
[Counsel for Jawayne Brown]: I would object.
THE COURT: Let me just clarify. The evidence on the
record does not indicate Mr. Smithwick’s involvement in
the solving of seven unsolved murders. There is no
evidence that says that.
[Prosecutor]: As I said, I’ll withdraw the seven. He has
helped with multiple cases was the word you heard
from the judge.
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The prosecutor’s conduct here was clearly improper, for at least
two reasons. First, he argued facts dehors the trial record.
While a prosecutor may comment on the credibility of a
Commonwealth witness during a closing argument, he must base
his arguments on evidence presented at trial or on inferences
that reasonably derive from evidence presented at trial.
Commonwealth v. Miller, 819 A.2d 504, 516 (Pa. 2002), cert.
denied, 540 U.S. 827; Commonwealth v. Robinson, 864 A.2d
460, 526 (Pa. 2004) (citing Commonwealth v. Miles, 681 A.2d
1295, 1301 (Pa. 1996), cert. denied, 520 U.S. 1187 (1997)). In
this case, the only evidence in the record regarding Smithwick
playing any role in connection with cases other than the murders
of Haughton and Anthony Harris was from ADA McCann, who
testified that arrests were made in other cases as a result of
information provided by Smithwick, and from Smithwick and
Detective Bamberski, both of whom testified generally that the
statement Smithwick provided subsequent to the signing of the
plea agreement covered matters other than the Haughton
murder. No evidence was presented at trial that (1) information
provided by Smithwick had solved any murder case, and/or (2)
that Smithwick had provided information in exactly seven cases
(or in any other murder cases). The lack of evidence in this
regard was largely the result of the trial court’s ruling (described
above) precluding Smithwick from testifying about any cases
other than the murders of Haughton and Anthony Harris – and
for this reason should have been well known to the prosecutor.
Second, the prosecutor’s assertion that the information provided
by Smithwick helped to solve seven other murder cases
constituted an obvious effort by the prosecutor to bolster
Smithwick’s credibility. From the prosecutor’s reference to
“solving murder cases,” the jury could have reasonably inferred
that the information provided by Smithwick had led not just to
arrests, but also successful prosecutions resulting in convictions.
Such an inference provides a strong implication that Smithwick’s
testimony in murder cases is accurate and truthful, and that
prior juries must have found him to be credible and believable.
The record in this case, however, contains no evidence regarding
the outcomes of any of Smithwick’s testimony in other cases
(including whether or not anyone had been convicted based on
his testimony). As a result, the prosecutor’s representation to
the jury in this case that Smithwick helped to solve other murder
cases constituted an effort to bolster Smithwick’s credibility
without any basis in the record for doing so.
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Commonwealth v. Brown, J., supra, at 23-27.
The Commonwealth’s first issue on appeal is whether the trial court
erred by barring retrial under Commonwealth v. Smith, 615 A.2d 321 (Pa.
1992). In Smith, the defendant was found guilty of three counts of first-
degree murder and was sentenced to death. On direct appeal, the Supreme
Court ordered a new trial due to the admission of impermissible hearsay by
associates of an alleged co-conspirator. Before retrial, Smith filed a motion
to preclude a new trial based on double jeopardy because he discovered that
the prosecution’s chief witness, who denied the existence of an agreement in
exchange for his testimony, did indeed receive favorable treatment from the
Commonwealth at sentencing. Smith also learned that the Commonwealth
intentionally failed to disclose evidence material to the defense’s case. The
trial court denied relief, and this Court affirmed on direct appeal. Our
Supreme Court granted allowance of appeal, and reversed. The Court
explained:
Such misconduct, standing alone, would suffice to implicate the
protection of the double jeopardy clause. But further
examination of the record established the bad faith of the
prosecution beyond any possibility of doubt: Indeed, it would be
hard to imagine more egregious prosecutorial tactics.
Id. at 323. In setting forth the holding of the case, the Supreme Court
stated:
We now hold 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.
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Id. at 325. Based on the Smith court’s reference to the egregiousness of
the prosecution’s misconduct, the Commonwealth argues that under Smith,
dismissal on double jeopardy grounds is only required where the
Commonwealth intends to cause a mistrial or acts egregiously. The
Commonwealth asserts that in the instant matter, the prosecution did not
act egregiously, and, therefore the prohibition against double jeopardy is not
implicated.
It is clear from the holding of Smith that egregiousness on the part of
the prosecution is not a requirement for the bar against retrial. In
Commonwealth v. Martorano, 741 A.2d 1221 (Pa. 1999), the Superior
Court reversed both appellants’ convictions for first-degree murder due to
“pervasive prosecutorial misconduct, including blatantly disregarding the
trial court’s evidentiary rulings, disparaging the integrity of the trial court in
front of the jury, and repeatedly alluding to evidence that the prosecutor
knew did not exist.” Id. at 1222.
On remand, Martorano and his co-defendant moved to dismiss based
on double jeopardy. The trial court denied the motion, but on appeal, this
Court reversed. The Supreme Court granted allowance of appeal and
affirmed the dismissal, noting:
While [the prosecution’s] misconduct does not involve
concealment of evidence as in Smith, it nonetheless evinces the
prosecutor’s intent to deprive Appellees of a fair trial; to ignore
the bounds of legitimate advocacy; in short, to win a conviction
by any means necessary. This is precisely the kind of
prosecutorial overreaching to which double jeopardy protection
applies.
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Martorano, supra at 1223.
Viewed together, Smith and Martorano stand for the proposition that
where the prosecution intentionally engages in misconduct to deprive a
defendant of a fair trial, double jeopardy attaches.
The Commonwealth relies on several cases in which the appellate
courts have held that prosecutorial misconduct does not bar retrial.
However, these cases do not require us to reverse the trial court because
they do not involve the intentional misconduct that our Supreme Court
identified in Smith and Martorano.
For example, the Commonwealth cites Commonwealth v. Burke,
781 A.2d 1136 (Pa. 2001), where the Supreme Court held that dismissal of
charges was not appropriate where the Commonwealth’s failure to provide
discovery materials to the defendant was not “prosecutorial misconduct” but
instead “primarily involve[d] miscommunication between the police
departments involved in the investigation and/or police mishandling of the
evidence.” Id. at 1145. Because there was no intentional misconduct in
Burke, the double jeopardy concerns in Smith were not present.
Similarly, the Commonwealth points to Commonwealth v. Kearns,
70 A.3d 881 (Pa. Super. 2013), where this Court reversed the grant of
double jeopardy relief based on the prosecution withholding important
documents that should have been provided to defense counsel.
Significantly, this Court found that although the prosecution acted in a
grossly negligent manner, it did not act intentionally.
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The Commonwealth’s reliance on Commonwealth v. Chmiel, 777
A.2d 459 (Pa. Super. 2001), is also misplaced. Although this Court noted
that the prosecutor engaged in misconduct, it found that “Chmiel failed to
establish the higher standard of intentional prosecutorial misconduct
designed to deprive Chmiel of a fair trial or to subvert the truth determining
process in order for the double jeopardy clause to be implicated and retrial
barred.” Id. at 466.
Likewise, in Commonwealth v. Moose, 623 A.2d 831 (Pa. Super.
1993), this Court affirmed the denial of a motion for dismissal where the
prosecutor committed misconduct by refusing to provide a witness’
statement to the defense until the first day of trial. Nevertheless, this Court
found “this was not a case where the evidence and misconduct at trial show
a clear, calculated orchestration by the prosecution to deny Moose a fair
trial.” Id. at 837.
The issue before the trial court in the instant matter was not whether
the actions of the Commonwealth prejudiced Appellees. That question was
squarely answered in the affirmative by this Court when it reversed the
judgments of sentence and remanded for a new trial. Rather, the relevant
inquiry is whether the Commonwealth intentionally prejudiced Appellees to
the point of denying them a fair trial. Smith, supra.
In support of its claim that the questioning of ADA McCann was not
undertaken to deprive Appellees of a fair trial, the Commonwealth asserts
that it was “intended to respond to Jawayne’s erroneous and misleading
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arguments in his opening statement that the Commonwealth gullibly
believed Smithwick without independently investigating his claims.”
Commonwealth’s Brief, at 22. At no point during the offer of proof before
McCann’s testimony did the Commonwealth state that it was going to ask
McCann whether he had corroborated Smithwick’s testimony. Nevertheless,
the Commonwealth asked the following questions: “Has [Smithwick] been
corroborated in the things that he told you?” N.T. 7/18/06, at 139. “Do you
make these kind of deals out of the blue without corroboration?” Id. “Is
this a common practice for you as chief of the homicide unit to make these
kinds of deals?” Id. The court sustained objections to the three questions.
If the Commonwealth had corroborating evidence, it could have
presented it to the jury. Instead, through its questioning of McCann, the
Commonwealth suggested to the jury that evidence not before it
corroborated Smithwick’s testimony. This constituted improper bolstering.
See Commonwealth v. Reed, 311 A.2d 314 (Pa. Super. 1982) (“vouching
[occurs] when the prosecution indicates that information that is not before
the jury supports the witness’s testimony.”). As noted by Appellee Jawayne
Brown, “[b]y intentionally seeking to introduce information that had not
been presented to the jury through admissible evidence, the prosecutor
sought to circumvent the trial process and prejudice the Appellee in the eyes
of the jury, to the point of denying him a fair trial.” Brief of Jawayne Brown,
at 20.
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On direct appeal, this Court also granted a new trial based on the
following remark during the Commonwealth’s closing argument:
[PROSECUTOR]: It’s not just about this case. They
tried to say what is the point of Mr. McCann. Well, the
point of Mr. McCann was he just didn’t give up this
case. He helped solve seven murders that there was no
evidence on. Seven murders. So I’ll give him that deal
in a heartbeat. Particularly in this. If we can get those
kinds of guys that did what they did to Rohan
Haughton, and the way they tortured him.
N.T. Trial, 7/25/06, at 62.
The Commonwealth argues that this remark “failed to cause improper
prejudice,” Commonwealth’s Brief, at 27, and that “the prosecutor’s intent
was to correct defense misrepresentations about the Commonwealth’s case,
not undermine defendants’ right to a fair trial.” Id. at 23. The record belies
these assertions.
Prior to Smithwick’s testimony, the prosecutor understood that he was
to limit the testimony to the two murders to which Smithwick had pled
guilty. N.T. Trial, 7/18/06, at 22-23. Accordingly, when the prosecutor
made his closing statement, he was aware that the five additional murders
were outside the scope of the evidence.
Furthermore, although McCann testified that Smithwick “provided
information” and “testified in other cases,” id. at 138-39, the prosecutor
argued that Smithwick “helped solve” seven murders. On direct appeal, this
Court found this statement “an obvious effort by the prosecutor to bolster
Smithwick’s credibility.” Commonwealth v. Brown, J., supra at 26.
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When the trial court first admonished the prosecutor for trying to use
ADA McCann to bolster Smithwick’s credibility, the prosecutor responded.
“I’ll handle it in my argument.” N.T. Trial, 7/18/06, at 140. We agree with
Judge Lerner, who noted “[the prosecutor] tried to make good on that
promise despite knowing that what he was doing was improper and despite
having already been warned by the trial judge about improper attempts to
bolster his witness’s credibility.” Trial Court Opinion, 2/6/15, at 18.
The trial court properly applied the standard set forth in Smith and
Martorano when it concluded that the Commonwealth’s attempt to “pollute
the jury with inadmissible, prejudicial statements . . . demonstrates a
willingness to deny the defendants their fundamental right to have their
cases decided solely on the basis of the evidence presented and the
applicable law.” Id.
Accordingly, we conclude that the trial court did not err in finding that
the Commonwealth intentionally prejudiced Appellees to the point of denying
them a fair trial, thus precluding retrial under Smith and Martorano.
The Commonwealth next argues that the trial court erred in concluding
that it was required to bar retrial due to statements in this Court’s prior
panel opinion. We disagree. The Commonwealth notes that in its Rule
1925(a) opinion, the trial court stated:
Unfortunately, the Superior Court, on direct review of the
convictions in these cases, has already determined that the
prosecutorial misconduct which polluted this trial did, in fact,
sink to the Smith and Martorano levels, a conclusion with
which this court, after reviewing the trial court record, is
compelled to agree.
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Trial Court Opinion, 2/6/15, at 13.
We note that the trial court specifically stated that it conducted its own
review of the record when determining whether the prosecutorial misconduct
in this case barred retrial under Smith and Martorano. See also Trial
Court Opinion, 2/6/15/ at 3 (“On October 8, 2014, after reviewing the trial
record and considering the arguments and pleadings of all counsel, this court
granted [A]ppellees’ Motions to Bar Retrial.”) (emphasis added). The trial
court would not have engaged in an independent analysis if it had believed
that this Court’s prior decision required it to bar retrial.
The Commonwealth also draws our attention to the following
statement from the trial court opinion:
The Superior Court ultimately went on to find that the
prosecutorial misconduct “was highly prejudicial” to the
defendants and “when considered in the context of the
atmosphere of the trial as a whole, constituted deliberate
attempts to destroy the objectivity of the jury and prevent the
jury from rendering a true verdict.” Superior Court Opinion, p.
29. (emphasis added). This finding as to the prosecutor’s
motive and intent – twice repeated in the Opinion at pp. 9 and
29 – clearly brings this case within the Smith-Martorano
double jeopardy boundaries and distinguishes it from those
cases in which even intentional prosecutorial misconduct was not
deemed sufficiently egregious to bar a retrial.
Trial Court Opinion, 2/6/15, at 18.
Here, the trial court merely sets forth the earlier findings of this Court
that the Commonwealth engaged in acts that prejudiced Appellees. It was
the trial court alone that reached the independent conclusion that these acts
met the requirements for dismissal under Smith and Martorano.
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This position is supported by the following exchange between the
prosecutor and the court at the hearing on the motions to bar retrial:
Commonwealth: I am saying that the claim, as I understand it
here, is that everything that’s in the Superior Court decision
somehow mirrors Jay Smith and that the Court is bound by that
–
The Court: No, it doesn’t.
Commonwealth: -- and that somehow that is what is barring
retrial.
The Court: I am not saying it bars retrial. What I am
saying is, the opinion conclusively finds, makes a finding about
what the Commonwealth’s attorney was doing in this case when
he engaged in the misconduct which the Superior Court said was
sufficient to grant a new trial. Of course, the Superior Court
wasn’t commenting in its opinion on the issue of retrial that
wasn’t before them. The double jeopardy motion wouldn’t be
filed until the case came back here and the Commonwealth was
seeking to retry the defendants.
N.T. Oral Argument, 10/9/14, at 11-12.
Based on our review of the record, we conclude that the trial court
independently decided the double jeopardy issue. Accordingly, the
Commonwealth is not entitled to relief on this issue.
The Commonwealth next argues that the trial court erred by not
transferring this matter to the judge who presided over Appellees’ trial. In
Commonwealth v. Buffington, 44 A.2d 1194 (Pa. Super. 1982), this Court
noted that when determining the motives of the prosecutor, the trial judge is
in a better position to decide the question than a court examining a dry
record. See also Commonwealth v. Wright, 255 A.2d 651 (Pa. 1970).
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However, there are significant procedural differences between Buffington,
Wright and the instant matter.
In Buffington and Wright, the trial court granted the defendants’
motions for mistrial. Then, prior to appellate review, the same court denied
the motions to bar retrial based on double jeopardy. In neither case had
there been an intervening appellate decision holding that the
Commonwealth’s actions “constituted deliberate attempts to destroy the
objectivity of the jury and prevent the jury from rendering a true verdict.”
Commonwealth v. Brown, J. et al, supra at 9. Moreover, both Wright
and Buffington provide that a transfer is not necessary when the
prosecutor’s intent is clear from the record. Here, Judge Lerner found that
the prosecutor intentionally had undertaken to prejudice the defendant to
the point of the denial of a fair trial. See Smith, supra.
Furthermore, Local Rule 605 of the Criminal Division of the Court of
Common Pleas of Philadelphia County provides in relevant part, “All Pretrial
Motions applicable to cases in the . . . Homicide Program will be scheduled
by the applicable Calendar Judge and heard by the Motions Court Judge
assigned to that Program.” Phila. Co. Crim. Div. Rule 605. Because Judge
Lerner was the assigned Judge, transferring the matter to the judge who
presided over the trial would have been a violation of Local Rule 605.
Accordingly, there is no merit to the Commonwealth’s position that
Judge Lerner erred by not transferring the matter to Judge Woods-Skipper.
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In its final issue, the Commonwealth seeks to relitigate whether the
prosecutor committed misconduct.
This Court already decided the issue on direct appeal from the
judgments of sentence. The Commonwealth then sought reargument in this
Court and allowance of appeal in our Supreme Court, both of which were
denied.
The law of the case doctrine provides, in pertinent part, that
“upon a second appeal, an appellate court may not alter the
resolution of a legal question previously decided by the same
appellate court. . . .” Commonwealth v. Starr, 664 A.2d 1236,
1331 (Pa. 1995). We may not depart from the law of the case
doctrine unless confronted with exceptional circumstances, such
as “where the prior holding was clearly erroneous and would
create a manifest injustice if followed.” Id. at 1332.
Commonwealth v. Yarris, 731 A.2d 581, 586 (Pa. 1999). In light of
the thorough analysis of the prior panel of this Court with respect to
prosecutorial misconduct, see Brown, J., supra; Commonwealth v.
Brown, R., supra, the Commonwealth has failed to establish that it is
entitled to the exceptional remedy of a departure from the law of the case
doctrine.
For all of these reasons, we conclude that the trial court did not err
when it concluded that double jeopardy bars the retrial of Appellees.
Orders affirmed.
OTT, J., joins the memorandum.
STEVENS, P.J.E., files a dissenting memorandum.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/6/2016
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