Com. v. Kittrell, R. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
ROLAND KITTRELL :
:
Appellant : No. 735 MDA 2018
Appeal from the Order Entered April 30, 2018
In the Court of Common Pleas of Centre County Criminal Division at
No(s): CP-14-CR-0001435-2010
BEFORE: LAZARUS, J., OLSON, J., and MUSMANNO, J.
MEMORANDUM BY OLSON, J.: FILED AUGUST 16, 2019
Appellant, Roland Kittrell, appeals from an order entered on April 30,
2018 in the Criminal Division of the Court of Common Pleas of Centre County.
On appeal, Appellant claims that the trial court erred in denying his motion
which asserted double jeopardy as a bar to re-prosecution of assault charges
stemming from an incident that occurred at SCI-Rockview on December 31,
2009.1 For the reasons explained below, we affirm.
On December 31, 2009, Appellant, then an inmate at SCI-Rockview,
engaged in a violent altercation with three correctional officers, Lucas S.
Nicholas, Timothy Watson, and Rodney Kauffman. As a result of this incident,
the Commonwealth, on July 16, 2010, filed a criminal complaint charging
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1 The parties agreed before the trial court that Appellant’s double jeopardy
motion was not frivolous. Hence, we may exercise jurisdiction over this appeal
from a collateral order. See Pa.R.A.P. 313; Pa.R.Crim.P. 587(B)(6).
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Appellant with one count of aggravated assault, 18 Pa.C.S.A. § 2702(a)(2),
three counts of aggravated assault, 18 Pa.C.S.A. § 2702(a)(3), and three
counts of simple assault, 18 Pa.C.S.A. § 2701(a)(1).
Appellant proceeded to trial pro se on January 24, 2011. At the
conclusion of a one-day trial, a jury convicted Appellant of three counts of
aggravated assault and two counts of simple assault. After the
Commonwealth filed notice of its intent to seek a mandatory minimum
sentence pursuant to 42 Pa.C.S.A. § 9714(a), the court, on March 15, 2011,
sentenced Appellant to an aggregate term of 25 to 50 years’ incarceration.
On November 18, 2011, this Court affirmed Appellant’s judgment of sentence
and our Supreme Court denied Appellant’s petition for allowance of appeal on
March 28, 2012.
Appellant filed a timely Post-Conviction Relief Act (“PCRA”) petition
pursuant to 42 Pa.C.S.A. §§ 9541-9546 on December 11, 2012. After several
amendments, the PCRA court dismissed the petition. This Court affirmed the
dismissal of Appellant’s PCRA petition on July 24, 2015.
Thereafter, Appellant filed a petition for writ of habeas corpus pursuant
to 28 U.S.C. § 2254 in the United States District Court for the Middle District
of Pennsylvania. Among other things, Appellant’s petition requested a new
trial on grounds that the trial court’s waiver of counsel colloquy was deficient
and that Appellant did not validly waive his Sixth Amendment rights. The
district court granted Appellant’s petition and vacated his judgment of
sentence on February 20, 2018.
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After the district court granted Appellant’s habeas corpus petition, the
Commonwealth declared its intent to retry the case. Thereafter, counsel for
Appellant was appointed on March 16, 2018, jury selection took place on April
2, 2018, and a new trial was scheduled to commence on May 2, 2018.
On April 16, 2018, the trial court convened a hearing to consider two
pro se motions filed by Appellant before the appointment of counsel. Among
other things, the motions alleged that the Commonwealth withheld
exculpatory evidence, including disciplinary reports for the corrections officers
involved in the December 31, 2009 incident. At the conclusion of the hearing,
counsel for the Commonwealth agreed to permit Appellant’s counsel to review
the district attorney’s paper file in its entirety on April 18, 2018. On April 20,
2018, following his review, counsel for Appellant filed a motion alleging that
intentional misconduct by the prosecution in violation of the principles of
double jeopardy barred a second trial and compelled the dismissal of all
charges against Appellant.
On April 26, 2018, the trial court convened a hearing to address the
Commonwealth’s motions in limine and Appellant’s motion to dismiss. At the
hearing, counsel for Appellant introduced several documents that were never
disclosed to Appellant before his first trial, including an exchange of emails
between the prosecutor and lead investigator as well as a handwritten
statement prepared shortly after the December 31, 2009 incident by one of
the corrections officers. In addition, the state trooper who led the
investigation into the incident testified at the hearing.
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The trial court issued findings of fact, conclusions of law, and an order
disposing of Appellant’s motion on April 30, 2018. Initially, the court found
that the Commonwealth withheld evidence from Appellant prior to trial. In
relevant part, it stated:
The court does note, however, that the evidence adduced on April
2[6], 2018 established that, prior to [Appellant’s] criminal trial in
January 2011, the Centre County District Attorney’s Office was
aware of the summary harassment charge filed against Sergeant
Watson, a material witness and alleged victim in the case against
[Appellant], based on the December 31, 2009 incident underlying
th[e] criminal action. The evidence further established that
[Appellant] was not advised of the summary charge (in which
[Appellant] was the alleged victim) [] prior to his criminal trial in
the context of pretrial discovery. In addition, the District
Attorney’s Office was clearly aware of the fact that Sergeant
Watson had been the subject of disciplinary proceedings in
relation to the December 31, 2009 incident. It further appear[ed]
to the [trial court], based on the evidence adduced at the April 26,
2018 hearing and fair inferences therefrom the District Attorney’s
Office had Sergeant Watson’s disciplinary file (or portions thereof,
including a three page handwritten statement given by Sergeant
Watson) in its possession prior to the time of trial, or at the very
least, that it could have procured the file if reasonable efforts had
been undertaken to do so.
Trial Court Findings of Fact, Conclusions of Law, and Order, 4/30/18, at 3.
Despite these findings, however, the court denied Appellant’s motion because
the concealed evidence did not satisfy the materiality prong under Brady v.
Maryland, 373 U.S. 83 (1963).2 This timely appeal followed.
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2 “[T]o establish a Brady violation, a defendant must demonstrate that: (1)
the evidence was suppressed by the Commonwealth, either willfully or
inadvertently; (2) the evidence was favorable to the defendant; and (3) the
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Appellant raises a single issue for our consideration.
Whether the trial court erred when it denied Appellant’s motion to
bar retrial and dismiss all charges for violation of double jeopardy
due to intentional prosecutorial misconduct on the basis that the
evidence suppressed by the Commonwealth was not “material”
pursuant to Brady v. Maryland, 373 U.S. 83 (1963) and its
progeny where the factual findings of the trial court conclude that
the prosecution deliberately withheld exculpatory evidence in its
possession from the defense?
Appellant’s Brief at 8.
“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 law, the
appellate standard of review is de novo[.]” Commonwealth v. Vargas, 947
A.2d 777, 780 (Pa. Super. 2008) (internal citations omitted). If the factual
findings of the trial court impact its double jeopardy ruling, we apply a
deferential standard to review those assessments:
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, 1114–1115 (Pa. Super. 1997).
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evidence was material, in that its omission resulted in prejudice to the
defendant.” Commonwealth v. Haskins, 60 A.3d 538, 545 (Pa. Super.
2012), appeal denied, 78 A.3d 1090 (Pa. 2013).
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This Court has previously outlined the double jeopardy principles that
govern the issues presently before us.
“The Double Jeopardy Clause of the Fifth Amendment protects a
criminal defendant from repeated prosecutions for the same
offense.” Oregon v. Kennedy, 456 U.S. 667 (1982). However,
the “Double Jeopardy Clause is no bar to retrial” when “the
defendant moves for a mistrial[.]” Id. at 673. The Supreme Court
of the United States has recognized a limited exception to this
rule, holding that:
[T]he circumstances under which ... a defendant may invoke
the bar of double jeopardy in a second effort to try him are
limited to those cases in which the conduct giving rise to the
successful motion for a mistrial was intended to provoke the
defendant into moving for a mistrial.
Id.
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, 615 A.2d 321, 325 (Pa. 1992).
As this Court has reflected:
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.
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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, 741 A.2d 1221, 1223 (Pa. 1999).
It is now well-settled that when a defendant requests a mistrial,
the federal Double Jeopardy Clause bars retrial only when “the
conduct giving rise to the successful motion for a mistrial was
intended to provoke the defendant into moving for a mistrial.”
Kennedy, 456 U.S. at 679. The additional protections provided
under Pennsylvania's Double Jeopardy clause do not extend to
non-intentional prosecutorial misconduct, but rather only bar
retrial following a defendant's successful motion for a mistrial
“when the conduct of the prosecutor [giving rise to the mistrial] is
intentionally undertaken to prejudice the defendant to the point
of the denial of a fair trial.” Smith, 615 A.2d at 325.
Commonwealth v. Kearns, 70 A.3d 881 (Pa. Super. 2013), appeal denied,
84 A.3d 1063 (Pa. 2014).
The trial court in this case determined that, “despite the fact that the
district attorney’s office withheld potentially exculpatory and/or impeachment
evidence, [Appellant] did not demonstrate the existence of a reasonable
probability that the result of the trial would have been different had the
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suppressed evidence been disclosed [before trial].” Trial Court Rule 1925
Opinion, 7/3/18, at 2. In light of this finding, the court declined to determine
whether the Commonwealth’s failure to produce evidence was motivated by
an intent to deprive Appellant of a fair trial. As such, the trial court treated
the Brady criteria as essential prerequisites to finding the type of
prosecutorial misconduct needed to bar a re-trial.
Appellant challenges this analysis. He asserts that where the
prosecution deliberately withholds exculpatory evidence, the criteria
announced in Brady – in particular, the materiality prong – play a diminished
role in a court’s analysis and cannot be dispositive. Instead, Appellant argues
that the controlling inquiry in such cases is the willfulness of the
Commonwealth’s subversion of the judicial process, not the prejudice to the
defendant. See Appellant’s Brief at 28. According to Appellant, only the
dismissal of charges, not appellate review or retrial, constitutes an adequate
remedy to the systematic concerns that arise from intentional prosecutorial
misconduct undertaken to gain unfair advantage. Id.
Appellant relies upon our Supreme Court’s decision in Smith, supra to
support his claims. In Smith, the defendant (Smith) was convicted of three
counts of first-degree murder and sentenced to death. On direct appeal, our
Supreme Court, citing an evidentiary error, vacated Smith’s convictions and
remanded for a new trial.
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Before he could be retried, Smith invoked double jeopardy to bar a
second trial based upon newly discovered evidence of prosecutorial
misconduct. Specifically, Smith alleged that the Commonwealth knowingly
denied an agreement with its chief witness to exchange favorable sentencing
treatment for testimony implicating the defendant. This prohibited Smith from
impeaching the witness’ veracity at trial by exposing his motive to testify
falsely. Smith also alleged that the Commonwealth deliberately concealed
physical evidence pertinent to the location of the scene of the crime. This
evidence was potentially exculpatory and, thus, highly material to the
development of Smith’s defense at trial.3 The trial court denied Smith’s double
jeopardy motion and this Court affirmed. Upon further review, our Supreme
Court concluded that a second trial would violate Smith’s double jeopardy
rights under the Pennsylvania Constitution since “the prosecutor’s conduct []
was intended to prejudice the defendant and thereby deny him a fair trial.”
Smith, 615 A.2d at 325.
Our Supreme Court did not elaborate upon the rule it announced in
Smith or offer a test to assist future courts in determining, precisely, what
type of prosecutorial nondisclosures qualified as intentionally prejudicial so as
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3 The physical evidence consisted of grains of sand that were discovered
between one of the victim’s toes at her autopsy. Since it was the prosecution’s
theory that the murders occurred in Pennsylvania, whereas the defense
theorized that the murders took place in Cape May, New Jersey, where another
suspect had been but Smith had not, the concealed evidence was potentially
exculpatory to Smith.
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to implicate double jeopardy protections. From its discussion, however, we
infer that the Supreme Court contemplated suppression tactics that violated
the principles announced in Brady. See id. at 322 (noting that the tactics
challenged by Smith “were clearly in violation of the rule of [Brady]”) and 324
(observing that “[Commonwealth’s d]eliberate failure to disclose material
exculpatory physical evidence during a capital trial … constitute[s]
prosecutorial misconduct such as violates all principles of justice and fairness
embodied in the Pennsylvania Constitution’s double jeopardy clause.”)
(emphasis added). Moreover, throughout its opinion, the Court repeatedly
stressed that neither the physical evidence bearing upon the location of the
crime scene nor the Commonwealth’s agreement with its chief witness were
placed before the factfinder to consider at Smith’s first trial. Taking these
factors into consideration, and bearing in mind the Smith Court’s declaration
that the prosecutor’s intentional misconduct must be “undertaken to prejudice
the defendant to the point of the denial of a fair trial,” Smith, 615 A.2d at
325, we are persuaded that only suppression tactics that undermine
confidence in the outcome of a trial constitute nondisclosure that triggers
double jeopardy protections.
Based upon our review of the certified record before us, we conclude
that this case is distinguishable from Smith inasmuch as the nondisclosures
alleged here do not fall within the class of nondisclosures identified in Smith
as triggering the protections of the double jeopardy clause of the Pennsylvania
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Constitution. The trial court in this case concluded that the Commonwealth
intentionally withheld documents from Appellant prior to his trial but that
Appellant was not entitled to relief since the omissions were not prejudicial.
The documents at issue confirm that one of the corrections officers struck
Appellant while he was handcuffed during the December 31, 2009 incident.4
They also reveal that the officer received a summary harassment citation and
was subject to disciplinary procedures as a result of this conduct. As the trial
court and the Commonwealth point out, however, the officer conceded many
times at both the preliminary hearing and before the jury at trial that he struck
Appellant at the conclusion of the altercation and received discipline for his
actions. See N.T. Preliminary Hearing, 7/28/10, at 49-52; see also N.T. Trial,
1/24/11, at 120, 145, and 152. Appellant does not dispute that the jury heard
these multiple concessions by the officer, nor does Appellant challenge the
trial court’s materiality finding. Instead, Appellant simply argues that in view
of the Commonwealth’s deliberate concealment of certain documents, the
materiality of the suppressed items should play a diminished role in our
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4 Unlike the suppressed physical evidence in Smith that related to the location
of the scene of the murders and supported Smith’s defense at trial, the
documents omitted here did not support any defense Appellant advanced at
trial. The evidence showed that the corrections officers handcuffed Appellant
after he was subdued following the altercation and that one of the officers
then struck Appellant to prevent him from spitting in the officer’s face. Since
the undisclosed documents here pertained only to events that occurred after
Appellant’s assaults concluded, they could not have supported a self-defense
claim.
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analysis. This position is inconsistent with our reading of Smith and is
foreclosed by the applicable standards for pre-trial disclosure under our rules
of criminal procedure, as we discuss below.
Our rules of criminal procedure incorporate both Brady’s language and
rationale (including its materiality requirement) in describing the
Commonwealth’s duty to make disclosure prior to trial. Rule 573(B) states in
pertinent part:
(B) Disclosure by the Commonwealth.
(1) Mandatory. In all court cases, on request by the
defendant, [5] and subject to any protective order which the
Commonwealth might obtain under this rule, the Commonwealth
shall disclose to the defendant's attorney all of the following
requested items or information, provided they are material to
the instant case. The Commonwealth shall, when applicable,
permit the defendant's attorney to inspect and copy or photograph
such items.
(a) Any evidence favorable to the accused that is material
either to guilt or to punishment, and is within the
possession or control of the attorney for the
Commonwealth[.]
Pa.R.Crim.P. 573(B) (emphasis added). Since our discovery rules for criminal
cases provide that only “material” evidence shall be subject to mandatory
disclosure, we shall assume that a showing of materiality is necessary to
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5 On August 25, 2010, trial counsel for Appellant served an informal discovery
request on the Centre County District Attorney’s office pursuant to
Pa.R.Crim.P. 573.
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demonstrate prosecutorial misconduct in the failure to produce evidence prior
to trial.
Our prior decision in Haskins summarized the relevant principles that
guide a court in determining whether suppressed evidence is material to the
defense:
To demonstrate prejudice, “the evidence suppressed must have
been material to guilt or punishment.” Commonwealth v.
Gibson, 951 A.2d 1110, 1126 (Pa. 2008). Evidence is material
under Brady when there is a reasonable probability that, had the
evidence been disclosed, the result of the trial could have been
different. Kyles v. Whitley, 514 U.S. 419, 433–434 (1995).
“The mere possibility that an item of undisclosed information
might have helped the defense, or might have affected the
outcome of the trial does not establish materiality in the
constitutional sense.” Commonwealth v. McGill, 832 A.2d
1014, 1019 (Pa. 2003), quoting U.S. v. Agurs, 427 U.S. 97(1976). The relevant inquiry is “not whether the defendant would
more likely than not have received a different verdict with the
evidence, but whether in its absence he received a fair trial,
understood as a trial resulting in a verdict worthy of confidence.”
Kyles, 514 U.S. at 434. To prove materiality where the
undisclosed evidence affects a witness' credibility, a defendant
“must demonstrate that the reliability of the witness may well be
determinative of [the defendant's] guilt or innocence.”
Commonwealth v. Johnson, 727 A.2d 1089, 1094 (Pa. 1999).
Haskins, 60 A.3d at 547 (parallel citations omitted).
Reviewing the evidence in its totality, we cannot conclude that the
absence of the suppressed materials resulted in a verdict unworthy of
confidence. The corrections officer to whom the suppressed materials relate
repeatedly admitted at trial that he struck Appellant toward the conclusion of
the altercation and after Appellant was handcuffed. Additionally, the officer
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admitted that he faced disciplinary action for his conduct. The jury heard this
evidence and, nevertheless, returned a guilty verdict. Appellant forwards no
claim that the reliability of the corrections officer was determinative of guilt,
that prior disclosure of the suppressed documents would have placed the
officer’s credibility beyond rehabilitation, or that pre-trial disclosure would
have altered Appellant’s strategy at trial. In the absence of such factors,
Appellant has not come forward with meritorious grounds for reversal.
Although we conclude that the trial court did not err in considering the
materiality of the undisclosed documents and in denying relief, we cannot
overstate our disapproval of the Commonwealth’s conduct in the prosecution
of this case.6 The electronic mail exchanges between the assistant district
attorney’s office and the lead investigator demonstrate that both officials
blithely disregarded the duties of their respective offices. In short, their
actions displayed contempt for the judicial process they are sworn to uphold.
See Commonwealth v. Starks, 416 A.2d 498, 500 (Pa. 1980) (“In contrast
to prosecutorial error, overreaching is not an inevitable part of the trial process
and cannot be condoned.”) (emphasis added). But for the disclosure of the
substance of the concealed materials at Appellant’s trial and the fact that the
undisclosed materials would not have altered the trials’ outcome, we would
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6 We hasten to note that the current elected District Attorney in Centre County
is not same District Attorney who administered that office at the time
Appellant’s case was prosecuted.
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not hesitate to conclude that the prosecution in this case purposefully
undertook a course of action intended to prejudice Appellant by denying him
a fair trial.
Order affirmed. Case remanded for trial. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 08/16/2019
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