Com. v. Book, S. ( 2018 )

J-S18020-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SHAWN MICHAEL BOOK, :
:
Appellant : No. 1126 WDA 2017
Appeal from the Order July 20, 2017
in the Court of Common Pleas of Butler County,
Criminal Division at No(s): CP-10-CR-0000630-2016,
CP-10-CR-0001483-2015
BEFORE: STABILE, J., MUSMANNO, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY MUSMANNO, J.: FILED JUNE 27, 2018
Shawn Michael Book (“Book”) appeals from the Order denying his Motion
to bar a retrial, following the declaration of a mistrial in Book’s second jury
trial.1 We affirm.
In its Opinion, the trial court described the history underlying the instant
appeal, which we adopt as though fully restated herein. See Trial Court
Opinion, 7/20/17, at 1-15.
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1 This is an interlocutory appeal as of right. See Commonwealth v.
Hallman, 67 A.3d 1256, 1260 (Pa. Super. 2013) (recognizing that “a
defendant can immediately appeal as of right an order that denies a non-
frivolous motion to dismiss on state or federal double jeopardy grounds.”).
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Book’s first jury trial, on the charges of burglary2 and related crimes,
ended in a mistrial.3 During his second jury trial, three incidents took place,
culminating in the trial court’s declaration of a mistrial, sua sponte. First,
Commonwealth witness Toni Arnold (“Arnold”) improperly referred to Book’s
prior incarceration, after which the trial court denied Book’s Motion for a
mistrial. See N.T., 4/17/17, at 226-27. Second, Book’s wife, Michelle Book
(“Michelle”), another Commonwealth witness, testified regarding privileged
communications between her and Book. See N.T., 4/18/17, at 56-58.
Counsel for Book objected to the testimony. Id. at 57-58. The trial court did
not rule on the objection, but no further testimony regarding the discussion
took place.4 Third, it was discovered that discovery materials, including a
possible recording related to interviews conducted by Master Trooper Dominic
Caimona (“Master Trooper Caimona”) and Corporal Randolph Guy, were not
provided to defense counsel. See N.T., 4/18/17, at 189-91 (wherein Michelle
testified regarding interviews conducted by the officers, and a subsequent
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2 See 18 Pa.C.S.A. § 3502.
3 During the first trial, a police officer improperly had testified regarding facts
from which it could be inferred that Book had a criminal record.
4 The trial court requested that the prosecutor provide additional foundation
to establish that the conversation was not privileged, i.e., that a third person
was present during the conversation. Id. at 58. The prosecutor was unable
to provide the necessary foundation. Id. at 58-59.
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sidebar discussion regarding the possibility of a Brady5 violation). This came
to light during the testimony of Master Trooper Caimona, who had been called
as a witness by Book. Following the third event, the trial court, sua sponte,
declared a mistrial, providing the following rationale for its decision:
[N]umber one, we have the inadvertent[,] but certainly
prejudicial[,] blurt out by [] Arnold concerning the fact that [Book]
was in prison. Then we have Michelle[’s] [] testimony in violation
of the spousal privilege[,] and then we have this issue[,] which[,]
I think[,] is cumulatively going to make me declare a mistrial at
this point.
Id. at 226-27.
Book subsequently filed the instant Motion to Dismiss With Prejudice
seeking to bar a third trial. In support, Book claimed that prosecutorial
misconduct caused the prior mistrials, and consequently, a retrial would
violate his constitutional protection against double jeopardy. Motion to
Dismiss With Prejudice, 6/6/17, at 1; Brief in Support of Motion, 6/6/17, at 3
(unnumbered). In an Opinion and Order entered on July 20, 2017, the trial
court denied Book’s Motion to Dismiss With Prejudice. Thereafter, Book filed
the instant timely appeal, followed by a court-ordered Pa.R.A.P. 1925(b)
Concise Statement of matters complained of on appeal.
Book presents the following claims for our review:
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5 See Brady v. Maryland, 373 U.S. 83, 87 (1963) (holding that the
prosecution must disclose evidence favorable to the accused that is material
either to guilt or to punishment).
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A. Whether the [trial] [c]ourt committed an error of law and/or
abuse of discretion in denying [Book’s] “Motion to Dismiss With
Prejudice”?
B. Whether the [p]rosecutor and/or other agents of the
Commonwealth engaged in prosecutorial
misconduct/overreach in the instant case[,] aimed at either
forcing [Book] to request a mistrial and/or deny [Book] a fair
trial?
C. Whether the conduct of the agents of the Commonwealth,
namely members of the [Pennsylvania] State Police, should be
imputed to the Commonwealth as misconduct barring retrial of
[Book]?
D. Whether the overreach/prosecutorial misconduct by the
Commonwealth/its agents prohibits retrial of [Book] via Pa.
Const., art. I, § 10 and U.S. Const., amend. V.[?]
Brief for Appellant at 9 (emphasis omitted, issues renumbered for clarity).
In the Argument section of his brief, Book reduces his claims to the
following three issues: (1) whether prosecutorial misconduct, as defined
under Commonwealth v. Smith, 615 A.2d 321 (Pa. 1980), occurred in the
instant case, thereby creating a double jeopardy prohibition of retrial, see
Brief for Appellant at 19; (2) whether the weight of the evidence in this case
indicates that the Commonwealth actors engaged in the prosecutorial
overreach proscribed under the Smith test and, therefore, the double
jeopardy prohibition of retrial is triggered, see id. at 39; and (3) whether the
trial court should impute prosecutorial misconduct on the part of Pennsylvania
State Police personnel to the prosecutor for purposes of double jeopardy
analysis, see id. at 61.
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In assessing a double jeopardy claim,6 we are guided by the following:
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.
Commonwealth v. Graham, 109 A.3d 733, 736 (Pa. Super. 2015)
(quotation marks, brackets, and citations omitted).
Thus, whether a dismissal is warranted turns on whether the
Commonwealth intended to deprive the defendant of a fair trial.
Commonwealth v. Adams, 177 A.3d 359, 372 (Pa. Super. 2017).
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 where that
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6 Book does not challenge the trial court’s sua sponte declaration of a mistrial.
Rather, Book challenges the denial of his Motion to Dismiss With Prejudice,
based upon a claim of prosecutorial misconduct. “Double jeopardy, as it
relates to prosecutorial misconduct, will attach where the prosecutorial
misconduct is calculated to trigger a mistrial.” Commonwealth v. Diehl,
615 A.2d 690, 693 (Pa. 1992).
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constitutional mandate is ignored by the Commonwealth, we
cannot simply turn a blind eye and give the Commonwealth
another opportunity.
Id. (citations and internal quotation marks omitted). However,
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. (citations omitted).
In his first issue, Book argues that, where manifest necessity is the
result of prosecutorial misconduct, the “Smith test” should be applied, and
retrial should be barred. Brief for Appellant at 19. Book asserts that the
prosecutorial overreach in this case is similar to the misconduct that occurred
in Smith. Id. at 25. According to Book, the Commonwealth’s case was not
proceeding as planned, and a representative from the Pennsylvania State
Police, seated at the prosecutor’s table, was aware of this. Id. Book posits
that this created a motive for the Pennsylvania State Police and/or the
prosecutor to intentionally inject error into the case, to force Book to choose
between opting for a mistrial or obtaining a verdict. Id. According to Book,
the mistrial was declared during the testimony of Master Trooper Caimona,
who had over two hours to prepare for his “eventually-fatal testimony[,]
during which he was, by all accounts, in almost constant contact with the
officers [and] well aware of the issues which had arisen during the rest of the
trial.” Id. at 26. Book asserts that the purpose of Master Trooper Caimona’s
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testimony was to create the type of error that would meet the “Smith test.”
Id.
In his second issue, Book argues that the “weight of the evidence”
indicates that the “Commonwealth actors engaged in the prosecutorial
‘overreach’ proscribed by the Smith Rule,” thereby triggering Book’s double
jeopardy protections. Id. at 39 (internal quotation marks and some
capitalization omitted). In support, Book directs our attention to
inconsistencies in the testimony of other witnesses, which, he claims,
established the motive for the Commonwealth to inject error into the case.
See id. at 26-45. Book contends that it would be “ludicrous” to presume that
the prosecutor did not make known, to the police witnesses, the negative
implications of the “egregiously-lacking investigation,” and the “fatal nature”
of exposing the shortfalls, inconsistencies, “and outright lies” to the jury. Id.
at 39-40. Book contends that the Pennsylvania State Police witnesses and the
prosecutor then acted upon their “perceived need” to inject error into the case.
Id. Book asserts that fatal errors in both trials “have been the direct result of
a concerted effort by [Pennsylvania State Police] personnel, and/or the
[p]rosecutor, which mirror, in both form and function, the alternative prongs
of the ‘Smith test’ ….” Id. at 46.
In its Opinion, the trial court set forth the appropriate law, addressed
Book’s first two challenges to the denial of his Motion to Dismiss With
Prejudice, and concluded that they lack merit. See Trial Court Opinion,
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7/20/17, at 16-18. We agree with the sound reasoning of the trial court, as
set forth in its Opinion, and affirm on this basis as to Book’s claims, with the
following addendum.
As our Supreme Court announced in Smith, “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.”
Smith, 615 A.2d at 325.
An example of egregious prosecutorial misconduct which has been
deemed sufficient to warrant dismissal may be found in Smith.
In Smith, the Commonwealth deliberately withheld from a capital
defendant: (1) the existence of an agreement with its chief
witness pursuant to which he received lenient treatment at
sentencing on unrelated charges in exchange for his testimony,
and (2) material, exculpatory physical evidence that it had
discovered mid-trial. The physical evidence consisted of grains of
sand that were found between the toes of the murder victim at
her autopsy. The sand was consistent with Smith’s defense that
the crime had been committed in Cape May, New Jersey, by
others, and not by him in Pennsylvania, as the Commonwealth
had alleged. At trial, when a Pennsylvania state trooper testified
on cross-examination that granular particles which looked like
sand had been removed from the victim’s body, the
Commonwealth implied that [the trooper] had fabricated his
testimony and the trial prosecutor recommended to his superior
that he investigate the feasibility of prosecuting the state trooper
for perjury. While the trial was still in progress, the state police
discovered the adhesive “lifters” that had been used to remove
and retain the sand from the victim’s feet. The Commonwealth,
however, failed to disclose this evidence and, indeed, continued
to suppress the evidence for over two years while the case was on
direct appeal to this Court. In light of this deliberate, bad faith
failure to disclose potentially exculpatory evidence, this Court
discharged Smith under the double jeopardy clause of the
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Pennsylvania Constitution, opining that “it would be hard to
imagine more egregious prosecutorial tactics.” [Smith,] … 615
A.2d at 323.
On the other hand, a mere finding of willful prosecutorial
misconduct will not necessarily warrant dismissal of charges. For
example, in Commonwealth v. Moose, … 602 A.2d 1265 ([Pa.]
1992), [the Pennsylvania Supreme] Court found that the
prosecutor’s failure to inform defense counsel of a witness’s police
statement[,] which contained incriminating admissions allegedly
made by the defendant[,] amounted to a “willful violation of Rule
305.” Id. at … 1274. The [Supreme] Court held that “the district
attorney’s conduct raised significant ethical concerns” and
referred the matter to the Disciplinary Board for its consideration.
Id. … at 1274 n.8 & 1276 n.12. Nonetheless, the [Supreme] Court
did not dismiss the charges against Moose, but rather remanded
the matter for a new trial. Id. … at 1276.
Commonwealth v. Burke, 781 A.2d 1136, 1144-45 (Pa. 2001).
In the instant case, the prosecutor’s conduct does not approach that of
the deliberate, bad faith, prosecutorial misconduct that warranted the
dismissal in Smith. Further, the prosecutor’s conduct does not even approach
the conduct of the prosecutor in Moose. There is no evidence here of
deliberate overreaching by the Commonwealth or its witnesses. Although
Book offers speculation regarding the motives of the Commonwealth’s
witnesses, there is no evidence supporting his assertions. Simply put, the
errors in this case in no way approach the egregious and intentional nature of
the conduct addressed in Smith. Accordingly, we cannot grant Book relief on
his first two issues.
In his third issue, Book claims that the conduct and motives of the
Pennsylvania State Police witnesses should be imputed to the prosecutor, for
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the purpose of applying the Smith test. Brief for Appellant at 61. Book
contends that the prosecutor should “feel adverse effects from the intentional
acts of her fellow Commonwealth Agents in the prosecution of [Book] in now[]
two (2) trials.” Id. at 65.
In Adams, this Court recognized the important role that police have in
disclosing potentially exculpatory material. Adams, 177 A.3d at 373.
However, our Court concluded that “there may be no double-jeopardy
dismissal if [police] misconduct is unintentional[,] or if it does not lead to
intentional misconduct of the prosecutor.” Id.
Here, the trial court found no evidence that the Pennsylvania State
Police witnesses intentionally acted to provoke a mistrial. Trial Court Opinion,
7/20/17, at 17. Further, the trial court found no evidence that would support
a finding that Master Trooper Caimona purposefully injected error into the
proceedings, based upon an awareness that the Commonwealth’s case was
not proceeding “as planned.” Id. Finally, as observed by the trial court,
Master Trooper Caimona was called upon to testify by Book, and not the
prosecutor. Id.
Because the trial court found that there was no intentional misconduct
or intent to deprive Book of a fair trial, and because those findings are
supported by the record, we affirm the trial court’s conclusion that Book is not
entitled to have the charges against him dismissed on double jeopardy
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grounds. We therefore affirm the Order of the trial court, which denied Book’s
Motion to Dismiss With Prejudice.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/27/2018
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