Com. v. Adams, J. ( 2017 )

J-A12001-17
2017 PA Super 413COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF
PENNSYLVANIA
v.
JORDAN TIMOTHY ADAMS
Appellant No. 813 WDA 2016
Appeal from the Order Dated May 5, 2016
In the Court of Common Pleas of Warren County
Criminal Division at No(s): CP-62-CR-000173-2015
BEFORE: OLSON, J., SOLANO, J., and RANSOM, J.
DISSENTING OPINION BY RANSOM, J.: FILED DECEMBER 27, 2017
I respectfully dissent. In my view, the Majority opinion places
insufficient weight on the police officer’s admitted practice of entering video
recordings into evidence only if they include inculpatory statements.
This is an appeal from an order denying Appellant’s motion to dismiss
all charges on double jeopardy grounds. Appellant’s initial prosecution
resulted in a mistrial after it was revealed that the Commonwealth had failed
to disclose exculpatory videotaped interviews with Appellant’s co-conspirator.
Although the trial court found three instances of prosecutorial conduct related
to the withholding of said tapes, it nevertheless determined that Appellant was
not entitled to dismissal of his charges.
With regard to the examination of double jeopardy claims, the Majority
recognizes that:
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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 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.
Graham, 109 A.3d at 736 (internal citations and quotations omitted). Thus,
the operative determination is whether the Commonwealth intended to
deprive the defendant of a fair trial.
Here, the trial court found three instances of prosecutorial misconduct
in the form of Brady1 violations but determined that the prosecutor had not
intentionally committed misconduct. Rather, the court found the prosecutor
grossly negligent in his assumptions and unwilling to accept responsibility for
his mistakes. See Trial Court Opinion (TCO), 7/5/16, at 4-9. The trial court
also examined the conduct of the police. In so doing, the trial court found:
This practice of putting a DVD into the file only when there is
inculpatory evidence is concerning. The [Pennsylvania State
Police] regulations require that the original of all recorded
polygraph interviews by placed in the investigating officer’s case
file. Zeybel’s contrary practice functionally placed an extra hurdle
to the disclosure of exculpatory interviews through discovery.
____________________________________________
1 Brady v. Maryland, 83 S. Ct. 1194 (1963).
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TCO at 7.
Pennsylvania courts have previously held that the Commonwealth’s
Brady obligation extends to exculpatory evidence in the files of police
agencies of the same government bringing the prosecution. See
Commonwealth v. Burke, 781 A.2d 1136, 1142 (Pa. 2001); see also
Commonwealth v. Sullivan, 820 A.2d 795, 802 (Pa. Super. 2003) (noting
that the prosecution’s duty to disclose favorable evidence extends to others
acting on the government’s behalf, including the police).
Indeed, the Majority recognizes as much. See Maj. Op. at 25-26
(finding no reason to foreclose the possibility that intentional misconduct by
the police should also warrant dismissal under a double jeopardy analysis).
The Majority recognizes that police violate a defendant’s due process rights
where they destroy exculpatory evidence regardless of intention or when they
destroy potentially useful evidence in bad faith. See Commonwealth v.
Snyder, 963 A.2d 396, 406 (Pa. 2009). Nevertheless, the Majority accepts
the trial court’s finding that the officers acted unintentionally in not including
the video of Redding and notes that miscommunication between the police
and prosecutor alone cannot be the basis for misconduct. See Maj. Op. at
28-29 (citing Burke, 781 A.2d at 1145-46).
However, I cannot agree with the weight the Majority places upon
Corporal Zeybel’s admission that it is his longstanding practice to act in open
contravention of police regulations. Here, Corporal Zeybel testified that he
only entered a recorded statement into case evidence if it had “evidentiary
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value.” Corporal Zeybel assigned “value” only to those recordings that
contained an inculpatory statement, i.e., a confession. See Notes of
Testimony (N.T.), 5/5/16, at 86-87. Corporal Zeybel also admitted he was
mistaken for failing to comply with police regulations requiring him to do so.
Since Appellant’s mistrial, Corporal Zeybel has begun to include information
regarding recordings in his report, but persists in omitting recordings from
case evidence unless they include a confession or are specifically requested,
despite Pennsylvania State Police regulations requiring all recorded polygraph
interviews to be put in the officer’s case file. See N.T., 5/5/16, at 86-87, 101;
Maj. Op. at 12; Appellant’s Ex. 1 to Hr’g on Appellant’s Mot. to Dismiss, at 13.
Despite the mistrial, Corporal Zeybel does not proffer potentially
exculpatory evidence obtained from polygraphs, and it is unclear whether he
understands the definition of exculpatory evidence. Id. at 87, 101. For
example, he also testified that until the trial he did not realize his interview
with Appellant’s co-defendant was considered “part of” Appellant’s case. See
N.T., 5/5/16, at 77.
While the Majority notes concern with Corporal Zeybel’s admitted
practice that he only enters inculpatory and not exculpatory statements into
evidence, it accepts at face value that he does so in order that the recordings
will not become a “thorn” in the side of police and not to deprive defendants
of a fair trial. See Maj. Op. at 29. I cannot see any way in which this practice,
in contravention of Brady and the regulations of the State Police themselves,
does not intentionally deprive a defendant from receiving a fair trial.
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We have previously noted that
[i]ntentional prosecutorial misconduct . . . 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.
Commonwealth v. Kearns, 70 A.3d 881, 884–85 (Pa. Super. 2013) (internal
citations and quotations omitted). I cannot agree with the Majority’s trust
that “measures have been taken” to guarantee that complete discovery is
disclosed to criminal defendants in all future cases, as the conduct testified to
here raises systematic concerns beyond merely Appellant’s right to a fair trial,
and testimony indicates that the concerns may be ongoing.
Accordingly, I would find that the police in the instant matter
intentionally subverted the court process, and would reverse the trial court.
See Graham, 109 A.3d at 736.
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