Com. v. Traver, H. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
HERBERT TRAVER :
:
Appellant : No. 1722 MDA 2019
Appeal from the Order Entered October 10, 2019
In the Court of Common Pleas of Wyoming County
Criminal Division at No(s): CP-66-CR-0000283-2018
BEFORE: PANELLA, P.J., McLAUGHLIN, J., and STEVENS, P.J.E.*
MEMORANDUM BY PANELLA, P.J.: FILED JULY 21, 2020
Herbert Traver appeals from the order denying his motion to dismiss the
charges against him and bar retrial on double jeopardy grounds.1 After review,
we vacate the order and remand for consideration of the Pennsylvania
Supreme Court’s recent decision in Commonwealth v. Johnson, ___
A.3d.___, 40 EAP 2018 (Pa., filed May 19, 2020) (“Johnson (Pa.)”).
In June of 2018, a criminal complaint was filed against Traver charging
him with one count of rape, one count of corruption of minors, and two counts
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* Former Justice specially assigned to the Superior Court.
1 While an order denying a motion to dismiss on double jeopardy grounds is
technically interlocutory, it is appealable as of right as long as the trial court
certifies the motion as non-frivolous. See Pa.R.Crim.P. 587(B)(6);
Commonwealth v. Barber, 940 A.2d 369, 376 (Pa. Super. 2007). The trial
court found Traver’s motion non-frivolous. See Trial Court Order, 10/10/2019.
Thus, this appeal is properly before us.
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of indecent assault regarding allegations of sexual assault involving D.R., his
step-granddaughter (the “Victim”).
Following a preliminary hearing, all charges were held over for court. An
Information was filed, and thereafter an amended Information was filed
charging Traver with rape of a child, corruption of minors, and two counts of
indecent assault.
In May of 2019, a jury trial was held. The Commonwealth witnesses
called to testify were the Victim, age seventeen at the time of trial, her
brother, the principal investigating officer and a psychologist who testified as
an expert witness as to reasons for a delay in reporting complaints of sexual
abuse by child victims. In response, the defense called seven witnesses,
including family members, friends, and Traver’s primary care physician and
optometrist. In addition, Traver testified on his own behalf.
On cross-examination, the following exchange occurred between
counsel for the Commonwealth and Traver:
Q. Good afternoon, sir. The things you just testified to, you never
touched [the Victim’s] breasts, you never touched her vagina, and
you never had sexual intercourse with her, when you were
contacted by [the trooper] in February 2016, you never told him
that, did you?
A. He never asked me if I ever touched her.
Q. Because you never called him back, did you?
N.T., 5/22/2019, at 611. Defense counsel objected and requested a sidebar.
The objection was lodged and a motion for mistrial was made. In response,
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counsel for the Commonwealth provided the court with case law to support its
position that when a defendant elects to testify, a prosecutor may make
reference to the defendant’s pre-arrest silence for purposes of impeachment.
See id. at 613-614 (citing to Commonwealth v. Kuder, 62 A.3d 1038 (Pa.
Super. 2013), Commonwealth v. Fischere, 70 A.3d 1270 (Pa. Super. 2013),
Commonwealth v. DiNicola, 866 A.2d 329 (Pa. 2005), and
Commonwealth v. Bolus, 680 A.2d 839 (Pa. 1996)). The trial court granted
the motion and a mistrial was declared. The matter was rescheduled for jury
trial to commence on October 21, 2019. Traver subsequently filed a motion to
dismiss on double jeopardy grounds. The Commonwealth filed a response.
On October 7, 2019, oral argument was heard on the motion. Counsel
for the Commonwealth denied any intent to cause a mistrial by asking Traver
about his pre-arrest silence. See N.T., 10/7/2019, at 9-10. He stated that his
questioning was a good faith action based on his reading of the law. See id.
at 16.
On October 10, 2019, the trial court denied Traver’s motion to dismiss.
The trial court found that a mistrial was necessary because the court believed
that the questions posed to Traver on cross-examination may have had the
effect of biasing the jury. See Trial Court Opinion, 10/10/2019, at 6. However,
the trial court concluded that the protection of double jeopardy was not
warranted here, as it found no evidence of intentional prosecutorial
misconduct in the cross-examination questioning. See id. The trial court
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stated its order was immediately appealable. Traver subsequently filed this
timely appeal.
On appeal, Traver contends the trial court erred in failing to dismiss the
charges against him on double jeopardy grounds.
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[.]
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. Graham, 109 A.3d 733, 736 (Pa. Super. 2015) (citation
omitted).
The Double Jeopardy Clauses of the Fifth Amendment to the United
States Constitution and Article 1, § 10 of the Pennsylvania Constitution
prohibit retrial where prosecutorial misconduct during trial provokes a criminal
defendant into moving for a mistrial. See Oregon v. Kennedy, 456 U.S. 667,
679 (1982); see also Commonwealth v. Simons, 522 A.2d 537, 540 (Pa.
1987). However, Article 1, § 10 of the Pennsylvania Constitution offers
broader protection than its federal counterpart in 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
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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).
Further, our Supreme Court has recently held that in addition to the
behavior described in Smith, prosecutorial overreaching2 sufficient to invoke
double jeopardy protections under Article 1, § 10 of the Pennsylvania
Constitution includes reckless misconduct which deprives the defendant of a
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2
Prior to Kennedy, the limiting principle was expressed in terms of
prosecutorial overreaching – that is, misconduct intended to provoke a
defense motion for a mistrial or actions otherwise taken in bad faith to harass
or unfairly prejudice the defendant. See Lee v. United States, 432 U.S. 23,
34 (1977); see also Commonwealth v. Starks, 416 A.2d 498, 500 (Pa.
1980).
In Kennedy, the United States Supreme Court disapproved further use of the
“overreaching” test, and instead held the Fifth Amendment immunizes the
defendant from retrial only where the government’s actions were “intended to
‘goad’ the defendant into moving for a mistrial.” Id. at 675-676. In Simons,
the Pennsylvania Supreme Court adopted the Kennedy rule, and found
double jeopardy only attached to those mistrials which had been intentionally
caused by prosecutorial misconduct. Simons, 522 A.2d at 540.
Subsequently, in Smith, our Supreme Court construed Pennsylvania’s double-
jeopardy provision as supplying broader protections than its federal
counterpart, and returned to the pre-Kennedy “overreaching” test. Smith
was grounded on the distinction between mere error and overreaching, as set
forth in Starks. See Smith, 615 A.2d at 324. Starks conveyed that, whereas
prosecutorial errors are an “inevitable part of the trial process,” prosecutorial
overreaching is not. Starks, 416 A.2d at 500.
Our Supreme Court has concluded that although it departed from the Fifth
Amendment in the wake of the Kennedy decision, it never disavowed the
“overreaching” prerequisite, which is firmly entrenched in case precedent both
pre- and post-Kennedy. See Johnson (Pa.).
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fair trial. See Johnson (Pa.). Therefore, the type of misconduct which
qualifies as overreaching under our state constitution encompasses
governmental errors that occur absent a specific intent to deny a defendant
his constitutional rights. See id.
We can find no error in the trial court’s finding that there is no evidence
that the Commonwealth intentionally asked the cross-examination question
to provoke a mistrial. However, as the trial court did not have the opportunity
to consider whether the prosecutor’s actions constituted reckless behavior,
such as to qualify as overreaching under our state constitution, we
nevertheless vacate the order, and remand for consideration of our Supreme
Court’s decision in Johnson (Pa.).
Order vacated. Case remanded with instructions. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 07/21/2020
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