Com. v. Weiss, R. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RONALD LEE WEISS :
:
Appellant : No. 315 WDA 2022
Appeal from the Order Entered June 10, 2021
In the Court of Common Pleas of Indiana County
Criminal Division at CP-32-CR-0000218-1997
BEFORE: MURRAY, J., McLAUGHLIN, J., and PELLEGRINI, J.*
MEMORANDUM BY MURRAY, J.: FILED: September 27, 2023
Ronald Lee Weiss (Appellant) appeals from the order denying his motion
to dismiss charges based on double jeopardy grounds. After careful
consideration, we affirm and remand for the case to proceed to trial.
Most of the underlying facts are not relevant to this appeal. See
Commonwealth v. Weiss, 776 A.2d 958, 961-62 (Pa. 2001) (Weiss I)
(detailing evidence adduced at Appellant’s 1997 homicide trial). In 1997, the
Commonwealth charged Appellant with the 1979 homicide of 16-year-old
Barbara Bruzda (Bruzda). The matter proceeded to a jury trial in July 1997.
The Pennsylvania Supreme Court explained:
Isadore Mihalakis, a forensic pathologist, testified [for the
Commonwealth] that Bruzda died of massive skull fractures with
associated brain injury, with the manner of her death being
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* Retired Senior Judge assigned to the Superior Court.
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homicide. … Kerm Wright [(Wright)], a [Commonwealth]
witness, testified that [while he and Appellant were incarcerated
together, Appellant] confessed to him in 1985 that he had killed
Bruzda. Samuel Tribuiani [(Tribuiani)] … testified [for the
Commonwealth that while he was incarcerated with Appellant] in
1993[, Appellant] confessed to him that he had killed a young girl
some years before. [Appellant] testified on his own behalf and
denied any involvement in the death of Bruzda.
Weiss I, 776 A.2d at 962 (paragraph breaks omitted). The jury convicted
Appellant of first-degree murder and sentenced him to death. Id. The
Pennsylvania Supreme Court affirmed Appellant’s conviction and death
sentence. Id. at 970 (stating, “the evidence presented was sufficient to
support the aggravating circumstance found” regarding the jury’s sentence of
death; namely, Appellant’s “significant history of felony convictions involving
the use or threat of violence to the person, 42 Pa.C.S. § 9711(d)(9)”
(addressing aggravating circumstances for first-degree murder where
defendant has significant history of felonies involving use or threat of
violence)).
This Court described the ensuing procedural history:
Appellant then pursued collateral relief pursuant to the Post
Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. § 9541, et seq.,
and in 2007, the PCRA court granted Appellant a new trial.
The basis for relief was a finding that the Commonwealth,
acting through prosecutor J. Scott Robinette, Esquire
(hereinafter “Robinette”), committed a Brady violation, see
Brady v. Maryland, 373 U.S. 83, [87] (1963) [(“the
suppression by the prosecution of evidence favorable to an
accused upon request violates due process where the
evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the
prosecution.”)]. Specifically, the PCRA court found that
Robinette had suppressed information regarding []
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Commonwealth witnesses [Trubuiani and Wright], both of
whom were incarcerated at the time of Appellant’s jury trial
and testified regarding “jail house” confessions by
Appellant. The suppressed information related to efforts
made by the Commonwealth to aid [Trubuiani and Wright’s]
release from incarceration.
Subsequently, the Pennsylvania Supreme Court
remanded the matter to the PCRA court after finding that
the PCRA court failed to engage in part of the Brady
analysis, i.e., whether the suppression of information that
served as the basis of the Brady violation was material to
the outcome of the case, i.e., did Appellant receive a fair
trial under the circumstances. See Commonwealth v.
Weiss, 986 A.2d 808 (Pa. 2009) (Weiss II)….
The PCRA court issued a decision on the remanded
PCRA matters on March 19, 2012, where it agreed that the
Commonwealth suppressed impeachment evidence in
violation of the duties set forth in Brady. However, the
court concluded that Appellant was not entitled to a new
trial, because the other evidence presented to the jury was
overwhelming, and, therefore, the jury’s verdict was worthy
of every confidence. An appeal was taken from [this]
decision, and on October 31, 2013, the Pennsylvania
Supreme Court affirmed. See Commonwealth v. Weiss,
81 A.3d 767 (Pa. 2013) (Weiss III).
Appellant then pursued federal habeas corpus relief
pursuant to 28 U.S.C.A. § 2254 [(governing remedies in
federal courts available to inmates in state prison)]. By an
Opinion and Order dated February 14, 2018, the United
States District Court granted [Appellant’s] request for relief.
See Weiss v. Wetzel, 2018 U.S. Dist. LEXIS 23741[, 2018
WL 895689], at *44 (W.D. Pa. 2018) (Weiss Fed.).3 The
grant of the writ was conditional, in that it was stayed to
permit the Commonwealth the opportunity to commence a
new trial. [Id.] at *53. The matter was returned to th[e]
state trial court to conduct the new trial.
3 The Court in Weiss Fed. held that Robinette’s
misconduct deprived Appellant of a fair trial, where
Robinette suppressed impeachment evidence
regarding … [Trubuiani and Wright]. See 2018 U.S.
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Dist. LEXIS 23741 at *51 (stating that where
“prosecutors do secret deals, suppress evidence of
them, stand by silently when the witnesses they
determine to be central to their case lie about those
deals, and then cover their tracks with their own false
statements in and to a trial court, all in a way that
plainly impacts the course and outcome of the trial,
both those charged with crimes and the public are
deprived of the fair trial that our Constitution
commands”).
Counsel for Appellant thereafter filed [on December
12, 2018, the instant motion to dismiss charges against
Appellant based on double jeopardy grounds (Jeopardy
Motion).] [T]he [trial] court scheduled and held a hearing
pursuant to Pa.R.Crim.P. 587(B) (governing motions to
dismiss on double jeopardy grounds) on January 15, 2019.
The Commonwealth presented the testimony of Robinette;
no other testimony was presented.
***
Trial Court Opinion and Order, 8/1/19, at 3-13 (footnote[] …
added, citations and formatting modified, some capitalization
omitted).
By order entered August 1, 2019, the trial court denied
Appellant’s Jeopardy Motion. [See Opinion and Order, 8/1/19, at
31 (concluding although “Robinette’s failures and the resulting
deprivation of due process were born out of arrogance and
ignorance, … Robinette’s conduct was not intentionally undertaken
to deprive [Appellant] of a fair trial”; thus, dismissal based on
double jeopardy was unwarranted).] Appellant then filed a
petition for permission to file an interlocutory appeal, which the
trial court granted after finding that the matter was immediately
appealable.
Commonwealth v. Weiss, 240 A.3d 185 (Pa. Super. 2020) (Weiss IV)
(unpublished memorandum at 1-3, 8) (footnote in original; citations modified;
some brackets and ellipses omitted).
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This Court in Weiss IV “vacate[d] the trial court’s order denying the
Jeopardy Motion and remand[ed] for further proceedings as to whether
Robinette’s conduct was undertaken recklessly,” id. (unpublished
memorandum at 12), pursuant to our Supreme Court’s then-recent decision
in Commonwealth v. Johnson, 231 A.3d 807, 826 (Pa. 2020)1 (holding
reckless as well as intentional conduct can be grounds for dismissal, and
stating: “Under Article I, Section 10 of the Pennsylvania Constitution,
prosecutorial overreaching sufficient to invoke double jeopardy protections
includes misconduct which not only deprives the defendant of his right to a
fair trial, but is undertaken recklessly, that is, with a conscious disregard for
a substantial risk that such will be the result.”). We stated:
[T]he trial court, acting as factfinder, found insufficient evidence
to establish that Robinette acted intentionally in failing to
disclose his communications with Wright and Tribuiani. …
However, the court did not consider or address whether
Robinette’s actions constituted reckless behavior, pursuant to
the recent dictates of Johnson.
Weiss IV (unpublished memorandum at 11-12) (emphasis in original). We
instructed the trial court to consider whether Johnson was applicable. Id.(unpublished memorandum at 1, 12).
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1 We observed that “Johnson … was decided after Appellant filed the
underlying appeal,” and “expanded upon existing case law concerning
prosecutorial misconduct sufficient to bar retrial.” Weiss IV (unpublished
memorandum at 11); see also In re Tr. of Scaife, 276 A.3d 776, 793 (Pa.
Super. 2022) (“Normally, we apply a new decision to cases pending on appeal
at the time of the decision.” (citation omitted)).
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On remand, the trial court considered the parties’ respective
memoranda and held three status conferences; no additional evidence was
adduced.2 On June 10, 2021, the trial court issued an order denying the
Jeopardy Motion, accompanied by a comprehensive, 42-page opinion.
Appellant filed a notice appeal from the June 10, 2021, order on March
8, 2022.3 On March 9, 2022, the trial court directed Appellant to file within
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2 Appellant did not re-file a motion to dismiss on double jeopardy grounds,
and relied on his prior Jeopardy Motion. On May 3, 2021, Appellant filed a
brief in support of the Jeopardy Motion.
3 Appellant’s notice of appeal was facially untimely. See Pa.R.A.P. 903(a)
(appeals must “be filed within 30 days after the entry of the order from which
the appeal is taken.”); see also Commonwealth v. Gross, 232 A.3d 819,
830 (Pa. Super. 2020) (en banc) (“Pre-trial orders denying double jeopardy
claims are immediately appealable in the absence of a written finding of
frivolousness by the hearing court.”) (citation omitted). However, there was
a breakdown because the trial court failed to comply with Pa.R.Crim.P. 587(b)
(procedure for motions to dismiss on double jeopardy). The Rule states:
(4) In a case in which the judge denies the motion, the findings of
fact shall include a specific finding as to frivolousness.
(5) If the judge makes a finding that the motion is frivolous, the
judge shall advise the defendant on the record that a defendant has
a right to file a petition for review of that determination pursuant to
Pa.R.A.P. 1311(a)(3) within 30 days of the order denying the motion.
(6) If the judge denies the motion but does not find it frivolous, the
judge shall advise the defendant on the record that the denial is
immediately appealable as a collateral order.
Pa.R.Crim.P. 587(b)(4)-(6). The June 10, 2021, order did not contain a
finding as to frivolity or advise Appellant of his appeal rights pursuant to Rule
587(b). Cf. Commonwealth v. Sanchez, 262 A.3d 1283, 1284 n.1 (Pa.
(Footnote Continued Next Page)
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21 days a concise statement of errors complained of on appeal, pursuant to
Pa.R.A.P. 1925(b).4 Appellant timely filed a concise statement (Concise
Statement). On March 18, 2022, the trial court issued an order adopting the
reasoning in its June 10, 2021, opinion and order.
Appellant presents two issues for our review:
[1.] Where Appellant’s conviction was previously vacated after he
“was denied a fair trial because the Commonwealth materially
corrupted the truth-seeking function of the trial by knowingly
presenting or failing to correct perjured testimony,” and the lower
court here concluded that the trial prosecutor’s “serious
prosecutorial error” included “reckless conduct,” does
Pennsylvania law bar retrial?
[2.] Where the federal court found that the trial prosecutor
“knowingly” made “secret deals,” personally denied the existence
of those deals to the trial court in what “was plainly a lie,” failed
to correct testimony that he knew to be “deliberately misleading”
and “demonstrably false,” and committed this misconduct “all in
a way that plainly impact[ed] the course and outcome of trial,”
was the lower court at liberty to deny relief by making
contradictory findings and otherwise failing to apply the findings
of the federal court?
Appellant’s Brief at 9-10.
Appellant first claims the trial court erred in denying his Jeopardy Motion
following remand, and in determining that Johnson was distinguishable. See
id. at 26-27, 32-34. According to Appellant, “Robinette’s misconduct was
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Super. 2021) (trial court complied with Rule 587(b)(6)). Accordingly, we
exercise jurisdiction.
4 The trial court cautioned that “any issue not properly included in the
statement timely filed and served pursuant to Rule 1925(b) … shall be deemed
waived.” Order, 3/9/22, ¶ 4.
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more outrageous” than the conduct in Johnson, id. at 33, and Robinette’s
“actions … were recklessly undertaken to prejudice [Appellant] to the point of
the denial of a fair trial.” Id. at 28; see also id. at 34 (claiming, “as in
Johnson, Robinette’s tactics were ‘strongly suggestive of a reckless disregard
for consequences and for the very real possibility of harm stemming from the
lack of thoroughness in preparing for a first-degree murder trial.’” (quoting
Johnson, 231 A.3d at 827)). Appellant asserts this Court “should hold the
reckless misconduct denied Appellant a fair trial … and retrial should be barred
as it violates the Double Jeopardy Clause of the Pennsylvania Constitution.”
Id. at 29.
Conversely, the Commonwealth claims the trial court correctly found
Johnson distinguishable, and did not err in denying Appellant’s Jeopardy
Motion:
[Johnson] held that reckless as well as intentional prosecutorial
misconduct may be deemed egregious, but it did not relax the
Court’s long-established jurisprudence that only egregious
overreaching, rather than ordinary misconduct, can bar retrial.
The [trial] court [in this case] found that, although the
prosecutor’s decision-making at [Appellant’s] original trial may
have been flawed and erroneous, only one particular aspect of his
conduct rose to the level of recklessness and the gravity of that
conduct and its resulting impact on the trial were far less serious
than the Commonwealth’s conduct in Johnson. [Appellant’s]
double jeopardy motion was therefore properly denied. The trial
court should be affirmed and this case remanded for retrial.
Commonwealth Brief at 19.
We conduct review mindful of the following:
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[A]n appeal grounded in double jeopardy raises a question
of constitutional law. This [C]ourt’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. Kearns, 70 A.3d 881, 884 (Pa. Super. 2013) (citation
omitted). Although our review is not “blindly deferential” to a trial court’s
credibility determinations, we recognize a “fact-finder who hears witness
testimony first-hand is able to take into account not only the words that are
spoken and transcribed, but the witnesses’ demeanor, tone of voice,
mannerisms, and the like.” Johnson, 231 A.3d at 818 (citations omitted).
This Court has explained:
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
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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. Byrd, 209 A.3d 351, 353 (Pa. Super.
2019) (citation omitted). “Dismissal is an appropriate remedy in
such a case because a mistrial would be an inadequate remedy for
systematic intentional prosecutorial misconduct.” Id. (citation
omitted and formatting altered). “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.” Id. (citation omitted).
“[A] fair trial is not simply a lofty goal, it is a constitutional
mandate, … and where that constitutional mandate is ignored by
the Commonwealth, we cannot simply turn a blind eye and give
the Commonwealth another opportunity.” Id. (citation omitted).
Commonwealth v. King, 271 A.3d 437, 443-44 (Pa. Super. 2021).
“However, because of the compelling societal interest in prosecuting criminal
defendants to conclusion, our Supreme Court has recognized that dismissal
of charges is an extreme sanction that should be imposed sparingly
and only in cases of blatant prosecutorial misconduct.” Commonwealth v.
Wilson, 147 A.3d 7, 13 (Pa. Super. 2006) (emphasis added).
In Johnson, our Supreme Court emphasized, “we do not suggest that
all situations involving serious prosecutorial error implicate double jeopardy
under the state Charter.” Johnson, 231 A.3d at 824.
To the contrary, we bear in mind the countervailing societal
interests … regarding the need for effective law enforcement, see
generally State v. Michael J., 274 Conn. 321, 875 A.2d 510,
534 (Conn. 2005) (referring to the need for an “optimal balance
between the defendant’s double jeopardy rights and society’s
interest in enforcing its criminal laws”), and highlight again that,
in accordance with long-established double-jeopardy precepts,
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retrial is only precluded where there is prosecutorial
overreaching - which, in turn, implies some sort of conscious act
or omission.
Johnson, 231 A.3d at 826 (emphasis in original); see also King, 271 A.3d
at 450 (summarizing: “In Johnson, the Commonwealth’s failure to conduct
even a cursory review of its evidence led to a non-existent piece of evidence
to establish Johnson’s guilt. This recklessness on the part of the
Commonwealth in Johnson represented an instance of seeking a conviction
at the expense of justice, and it rose to the level of overreaching.” (citing
Johnson, 231 A.3d at 824, 827)).
After careful consideration, we conclude that the trial court’s opinion
accompanying the June 10, 2021 order ably details Robinette’s “undisputed”
and pertinent conduct, and the evidence adduced at the January 15, 2019,
evidentiary hearing on Appellant’s Jeopardy Motion. See Trial Court Opinion,
6/10/21, at 7-15. As the record supports the trial court’s narrative, we adopt
and incorporate it here. See id.5 Further, the trial court addressed the merits
of Appellant’s claim, the facts and holding of Johnson/related precedent, and
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5 In sum, the trial court found Robinette incorrectly represented there were
no “deals” or understandings between the Commonwealth and Tribuiani and
Wright in exchange for their testimony. See Trial Court Opinion, 6/10/21, at
7-15. Robinette had written several letters on behalf of Tribuiani and Wright,
both prior to and after Appellant’s trial, pertaining to possible parole/early
release, and favorably describing Tribuiani and Wright’s assistance in the
prosecution of Appellant’s case. See id. Robinette sent letters to, inter alia,
the Pennsylvania Board of Probation and Parole, Superintendents at State
Correctional Institutions housing Tribuiani and Wright, and district attorneys
and sentencing judges involved in Tribuiani and Wright’s cases. See id.
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properly concluded that Johnson is distinguishable. See Trial Court Opinion,
6/10/21, at 18-42.6 The trial court capably addressed every facet of
Appellant’s claim, such that further commentary by this Court would be
redundant. Accordingly, we adopt the analysis and conclusion as our own.
See id.
In addition, we deem controlling this Court’s decision in
Commonwealth v. Sanchez, 262 A.3d 1283 (Pa. Super. 2021), which
involved a defendant’s appeal of the denial of a motion to dismiss based on
double jeopardy. The defendant in Sanchez
claimed that even if the prosecution’s actions in his case were
unintentional, under Johnson, the prosecution’s reckless actions
in failing to disclose the DNA results in his case deprived him of a
fair trial such that retrying him would violate double jeopardy.
Id. at 1288. This Court detailed the “reckless” conduct in Johnson, see id.
at 1291-92, and concluded:
Notwithstanding the Commonwealth’s unfortunate errors in this
case, they do not rise to the level of recklessness displayed in
Johnson. On this record, we cannot agree with Appellant that
the Commonwealth engaged in “prosecutorial overreaching” by
acting “with a conscious disregard for a substantial risk” of
depriving Appellant of a fair trial. Johnson, 231 A.3d at 826.
Under these facts, the remedy for the Commonwealth’s actions is
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6 The trial court found “almost all of Robinette’s conduct to be negligent,
undertaken on the basis of a mistaken belief that had some basis in law and
fact.” Trial Court Opinion, 6/10/21, at 38. The court also found Robinette’s
“reckless decision did not carry with it a substantial risk that [Appellant] would
be denied a fair trial.” Id. at 39; see also id. (finding “Robinette was not in
a position to promise leniency,” and “[u]nlike Johnson, the Commonwealth’s
recklessness does not deal with the key piece of physical evidence leading to
[Appellant’s] conviction.” (footnote omitted)).
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precisely what the court ordered here—a new trial. See Kearns,
supra.Sanchez, 262 A.3d at 1294 (footnote omitted; some citations modified). We
further observed that Johnson “discuss[ed the] great deference afforded to
trial courts regarding credibility determinations.” Id.; see also Johnson,
231 A.3d at 818, supra. Thus, this Court stated: “we see no reason to disrupt
the court’s credibility determinations in favor of the Commonwealth, which are
supported by the record.” Sanchez, 262 A.3d at 1294. We also emphasized,
“the only ‘false evidence’ on which [a]ppellant relies is distinguishable from
that in Johnson.” Id.
Sanchez is directly on-point, while Johnson is distinguishable.
Therefore, Appellant’s claim that the trial court erred in applying Johnson is
without merit. We reiterate that the trial court capably addressed and
distinguished Johnson. See, e.g., Trial Court Opinion, 6/10/21, at 38
(finding “almost all of Robinette’s conduct to be negligent”), id. at 39 (“Unlike
Johnson, the Commonwealth’s recklessness does not deal with the key piece
of physical evidence leading to the defendant’s conviction.” (footnote
omitted)), id. at 42 (finding, “the gravity of [Robinette’s] reckless conduct,
and the resulting impact said conduct had on the trial, is far less egregious
than the Commonwealth’s conduct in Johnson.”), and id. (concluding
“Robinette committed serious prosecutorial error, but when misconduct lacks
the intentionality required, or constitutes reckless conduct without a
substantial risk that the defendant will be denied a fair trial, Pennsylvania
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jurisprudence provides that the prejudice caused to the defendant can be
remedied by retrial.”).
Instantly, like the Court in Sanchez, we conclude “the Commonwealth’s
unfortunate errors … do not rise to the level of recklessness displayed in
Johnson[,]” Sanchez, 262 A.3d at 1294; therefore, “the remedy for the
Commonwealth’s actions is precisely what the court ordered here—a new
trial.” Id. (citing Kearns, supra); see also King, 271 A.3d at 450
(distinguishing Johnson and concluding “the prosecutor’s [violation of Brady
for failing to disclose to the defense a certain] … letter, although significant,
does not constitute overreaching that would require the imposition of the
double jeopardy bar precluding the retrial of this case,” and holding that
prosecutor’s error “does not rise to the level of the ‘almost unimaginable’ error
in Johnson”). Appellant’s first issue does not warrant relief.
In his second issue, Appellant claims the trial court “further erred in
failing to accept and give effect to the federal court’s findings of fact and
conclusions of law,” i.e., in Weiss Fed., supra. Appellant’s Brief at 27; see
also id. at 34-35 (arguing the “trial court made findings and conclusions that
ignored or directly contradicted the federal court’s ruling.”). According to
Appellant, “the federal court’s findings and conclusions were binding on [the
trial court] under Pennsylvania law, the law of the case, and the Supremacy
Clause of the United States Constitution.” Id. at 28; see also id. at 35-43.
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The Commonwealth argues Appellant waived this claim for failure to
preserve it in his Concise Statement. See Commonwealth Brief at 19-20, 41-
42. The Commonwealth correctly observes Appellant “raised a United States
Constitution Supremacy Clause, and only a Supremacy Clause, claim for the
first time in paragraph 2 of his March 17, 2022 [Concise S]tatement.” Id. at
42; see also Concise Statement, 3/17/22, ¶ 2 (claiming trial court’s
“disagreement” with the federal court’s findings “violated the supremacy
clause[.]”).
Any claim that is not presented in a court-ordered concise statement
results in waiver. See Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in the
Statement and/or not raised in accordance with the provisions of
this paragraph [] are waived.”); Commonwealth v. Lord, 719 A.2d 306, 309
(Pa. 1998) (same); see also Pa.R.A.P. 302(a) (providing that issues not
raised in the lower court are waived and cannot be raised for the first time on
appeal). Thus, Appellant waived any claim not presented in his Concise
Statement. See Lord; Concise Statement, 3/17/22, ¶ 2, supra.
We consider Appellant’s claim to the extent it claims a violation of the
Supremacy Clause of the United States Constitution.7 Appellant’s Brief at 41-
43. Appellant argues the trial court was “duty-bound to respect the federal
____________________________________________
7 “[T]he Supremacy Clause[] provides that the laws of the United States ‘shall
be the supreme Law of the Land; … any Thing in the Constitution or Laws of
any State to the Contrary notwithstanding.’” Dooner v. DiDonato, 971 A.2d
1187, 1193 (Pa. 2009) (quoting U.S. Const. art. VI, cl. 2).
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court judgment invalidating [Appellant’s] conviction,” id. at 42, and “was not
at liberty to reach findings and conclusions contrary to the federal court’s
ruling….” Id. at 43.
The Commonwealth counters that the trial court did not violate the
Supremacy Clause because the federal court in Weiss Fed. “did not bar retrial
on double jeopardy grounds, and the issue of prosecutorial overreaching must
therefore be addressed by the Courts of this Commonwealth under the law of
this Commonwealth.” Commonwealth Brief at 49; see also id. at 43 (stating,
there “is no conflict between the [Weiss Fed.] decision based on federal law
and the lower court’s independent assessment of [Appellant’s] claims”).
Whether the trial court violated principles of preemption is a question of
law. Therefore, our standard of review is de novo and our scope of review is
plenary. Commonwealth v. Sow, 860 A.2d 154, 155 (Pa. Super. 2004).
Upon review, we agree with the Commonwealth. See Commonwealth
Brief at 43, 49, supra. The federal court’s grant of Appellant’s writ of habeas
corpus in Weiss Fed. was “conditional,” and permitted the Commonwealth to
“commence a new trial.” Weiss Fed. at *53; see also id. at *52 (stating
Appellant “was denied a fair trial,” but “so too the citizens of the
Commonwealth were denied the resolution of Ms. Bruzda’s murder that a fair
trial can deliver for them.”). The trial court was not precluded from making
factual findings and applying Pennsylvania law to the findings. Notably, this
Court in Weiss IV directed the trial court to make factual findings. Weiss
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IV, 240 A.3d 185 (unpublished memorandum at 1, 12). Consequently,
Appellant’s second issue does not merit relief.
For the above reasons, we affirm the order denying Appellant’s Jeopardy
Motion, and remand the case for retrial.
Order affirmed. Case remanded for retrial. Jurisdiction relinquished.
Judge McLaughlin joins the memorandum.
Judge Pellegrini files a dissenting memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/27/2023
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Circulated 06/30/2023 10:20 AM
IN THE COURT OF COMMON PLEAS OF INDIANA COUNTY,
PENNSYLVANIA
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AND NOW, this 10 day of June, 2021, this matter comes before
the Court on a remand from the Pennsylvania Superior Court following
Defendant's appeal from this Court's denial of the Motion to Dismiss
Case and Discharge Defendant on Double Jeopardy Grounds. After
careful consideration, it is hereby ORDERED, ADJUDGED, AND DECREED
that the Motion to Dismiss Case and Discharge Defendant on Double
Jeopardy Grounds is DENIED. This Order of Court is entered consistent
with the attached Opinion.
.
BY THE COURT:
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Thomas M. Bianco, J.
0 253
IN THE COURT OF COMMON PLEAS OF INDIANA COUNTY,
PENNSYLVANIA
COMMONWEALTH OF PENNSYLVANIA, : Criminal Action - Law
vs. : No. 218 Crim. 1997
RONALD LEE WEISS,
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This matter comes before the Court on a remand from the
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Pennsylvania Superior Court following Defendant's appeal from this
Court's denial of the Motion to Dismiss Case and Discharge Defendant
on Double Jeopardy Grounds filed on behalf of Defendant. Specifically,
the Pennsylvania Superior Court stated in its Memorandum dated
August 21, 2020, "[alfter careful review, we are compelled to vacate
the order and remand for consideration of the Pennsylvania Supreme
Court's recent decision in Commonwealth v. Johnson, 2020 LEXIS
2791, 40 EAP 2018 (May 19, 2020)." Commonwealth v. Weiss, 1504
WDA 2019, at page 1. The Superior Court concluded by making it's
252
charge clear, stating "we ....... remand for further proceedings as to
whether Robinette's conduct was undertaken recklessly."
Commonwealth v. Weiss, l 504 WDA 2019, at page l 0, citing
Commonwealth v. iohnson, 2020 Pa. LEXIS 2791, at 39.
This Court held three status conferences with counsel, and at the
direction of the Court, defense counsel and counsel for the
Commonwealth each submitted a brief addressing the issues before
the Court. For the reasons set forth below, the Court finds that the
double jeopardy clauses of the United States Constitution and the
Pennsylvania Constitution do not bar the retrial of Defendant.
PROCEDURAL HISTORY / FACTS
As stated in this Court's Opinion dated April 4, 2019, and this
Court's Opinion dated August l, 2019, the Court will attempt to limit
its recitation of the procedural history and facts to the events relevant
to the issues before the Court.
2
Procedural History
The Court begins by setting forth the following procedural history
contained in the Court's April 4, 2019, Opinion, and restated in the
Court's August 1, 2019, Opinion:
"Defendant, Ronald Lee Weiss (hereinafter "Weiss"), was convicted
of first-degree murder following a jury trial held in July of 1997. The
jury returned a verdict of death following the penalty phase.
Weiss pursued a direct appeal, and in 2001, the Supreme Court of
Pennsylvania affirmed the judgment of sentence. See Commonwealth
v. Weiss, 776 A.2d 958 (Pa. 2001). Weiss then pursued collateral relief
pursuant to the Post Conviction Relief Act (hereinafter "PCRA"), 42
Pa.C.S.A. Section 9541, et seq., and in 2007, the PCRA Court granted
Weiss a new trial. The basis for the relief was a finding that the
Commonwealth committed a Brady violation, see Brady v. Maryland,
3 73 U.S. 83 (1963). Specifically, the PCRA Court found that the
Commonwealth suppressed information regarding two Commonwealth
witnesses, both of whom were incarcerated at the time of the jury trial
and testified regarding "jail house" confessions by Weiss. The
3
suppressed information related to efforts made by the Commonwealth
to aid the witnesses' release from incarceration.
Subsequently, the Pennsylvania Supreme Court remanded the
matter to the PCRA court after finding that the PCRA court failed to
engage in part of the Brady analysis, i.e., whether the suppression of
information that served as the basis of the Brady violation was material
to the outcome of the case, i.e., did Weiss receive a fair trial under the
circumstances. Commonwealth v. Weiss, 986 A.2d 808 (Pa. 2009)
(Weiss 11). Following the remand, the Honorable Charles R. Alexander
was assigned to complete the PCRA proceedings because the
Honorable William L. Henry, who presided over the initial PCRA
proceeding, had retired. Unfortunately, Judge Alexander passed away
before deciding the pending PCRA matters. The Honorable John H.
Foradora was assigned to conclude the PCRA proceedings.
Judge Foradora issued a decision on the remanded PCRA matters
on March 19, 2012. He agreed with the findings of the prior PCRA
court that the Commonwealth suppressed impeachment evidence in
violation of the duties set forth in Brady. However, Judge Foradora
4
concluded that Weiss was not entitled to a new trial, because the other
evidence presented to the jury was overwhelming, and, therefore, "the
jury's verdict was worthy of every confidence." Commonwealth v.
Weiss, 81 A.3d 767, 885-786 (Pa. 2013) (Weiss Ill). An appeal was
taken from Judge Foradora's decision, and on October 31, 2013, the
Pennsylvania Supreme Court affirmed. Weiss Ill, supra.
Weiss then pursued federal habeas corpus relief pursuant to 28
U.S.C. Section 2254, and by Opinion and Order dated February 14,
2018, the United States District Court granted Weiss' request for relief.
Weiss v. Wetzel, et al., 2018 WL 895689 (W.D. Pa. 2018). The grant of
the writ was conditional, in that it was stayed to permit the
Commonwealth the opportunity to commence a new trial. The matter
was returned to this state trial court to conduct the new trial.
Counsel for Weiss filed a document entitled "Motion to Dismiss
Case and Defendant on Double Jeopardy Grounds," and the Court
scheduled and held a hearing pursuant to Pa.R.Crim.P. 587 on January
15, 2019. The Commonwealth presented the testimony of John Scott
Robinette (hereinafter "Robinette"); no other testimony was presented."
5
(Opinion and Order of Court dated April 4, 2019, pp. 2-5) and (Opinion
and Order of Court dated August 1, 2019, pp. 2-5)."
By Opinion and Order of Court dated August 1, 2019, this Court
denied Defendant's Motion to Dismiss Case and Discharge Defendant
on Double Jeopardy Grounds. Defendant then requested permission to
file an interlocutory appeal, which was granted. Defendant then filed a
timely Notice of Appeal on September 27, 2019, and a Concise
Statement of Matter Complained of on Appeal on October 15, 2019.
In considering Defendant's appeal, the Pennsylvania Superior Court
began by noting that "an order denying a motion to dismiss on double
jeopardy is technically interlocutory, [but] the order is appealable as of
right." Commonwealth v. Weiss, 1504 WDA 2019, at p. 1, fn 1,
(additional citations omitted). And then as stated in the prologue
above, the Pennsylvania Superior Court remanded the matter to this
Court, stating "we vacate the trial court's order denying the Jeopardy
Motion and remand for further proceedings as to whether Robinette's
conduct was undertaken recklessly." Weiss at page 10, citing
Commonwealth y. Johnson, 2020 Pa. LEXIS 2791, at 39.
6
Facts
With regard to the relevant facts, once again, the Court believes
that it is appropriate to restate the facts set forth in the Court's
Opinion dated August 1, 2019, as follows:
"It is undisputed that the Commonwealth engaged in the following
conduct:
1. Trooper John Tamewitz (hereinafter "Tamewitz") obtained a
written statement from Samuel Tribuiani (hereinafter "Tribuiani")
on April 2, 1996. The written statement indicated that Weiss
confessed to the Bruzda murder while the two individuals were
incarcerated together. The written statement also indicates that
no promises were made in exchange for Tribuiani's testimony.
2. The following day, Tribuiani contacted Tamewitz and requested
his assistance in expediting his parole. Tribuiani was
incarcerated at S.C.I. Huntingdon at that time.
3. Tamewitz contacted Paul Strickland and Michael Marino, the
District Attorney of Montgomery County, to inquire about
Tribuiani's parole and early release status.
7
4. Robinette authored a memorandum on April 8, 1996, indicating
that he had a conversation with "S.D.A.G. von Geis," and that he
intended to contact the Superintendent at S.C.I. Huntingdon to
inquire about expediting Tribuiani's parole.
5. Robinette did, in fact, call the Superintendent at S.C.I.
Huntingdon and inquired if Tribuiani was eligible for parole or
pre-release.
6. Shortly after preparing the memorandum of April 9, 1996,
Robinette authored three letters regarding Tribuiani. The letters
were written to Tribuiani's sentencing judge, the Victim-Witness
Coordinator of Montgomery County, and the District Attorney of
Montgomery County. These individuals would have the
opportunity to provide input to the Pennsylvania Board of
Probation and Parole regarding Tribuiani's release on parole.
The letters request that the recipient "please consider
Tribuiani's valuable cooperation with this office when and if you
register any response to the Department of Corrections'
8
proposal for early release from his sentence." Tribuiani was
blind copied on these letters.
7. Robinette followed his letter to Michael Marino, the District
Attorney of Montgomery County, with a phone call to DA
Marino.
8. The Court notes at this time that Tribuiani was released through
the early release program on July 5, 1996, however, he was
placed back into a state correctional institution in June of 1997
due to violations of his release conditions. Tribuiani continued
to contact Tamewitz and Robinette to request their assistance in
getting him out of prison.
9. Kermeth Wright (hereinafter "Wright") signed a statement
indicating that Weiss had confessed to committing the Bruzda
murder while the two were incarcerated together. This
statement was signed in January of 1996.
1 0. On December 1 3, 1996, Robinette wrote a letter to Nicholas
Muller, the Chairman of the Pennsylvania Board of Probation and
Parole. Robinette stated "This Office has promised nothing to
9
Mr. Wright in exchange for his cooperation. I have explained to
him that parole authority in his case rests exclusively with the
Board of Probation and Parole. I am writing this letter merely to
inform the Board of Mr. Wright's cooperation in the investigation
and potential prosecution of a very serious crime." The letter
was carbon copied to Tamewitz and blind copied to Wright.
11. Robinette failed to disclose to defense counsel or to the
Court that Wright pied guilty to lying to an employee while in
state prison. The plea was entered on April 14, 1997,
approximately two months prior to the Weiss jury trial.
12. A pretrial motion hearing was held on May 16, 1997. The
Court granted the motion entitled "Motion for Disclosure of
Impeachment Information as to Potential Commonwealth
Witnesses." As a result, the Commonwealth was ordered to
notify the defense of "any deals or understandings made
between the Commonwealth and potential witnesses, Tribuiani
and Wright." In response to a direct inquiry by the Court on this
matter, Robinette stated "Deals, we don't have any deals with
10
them, Judge." The Court then stated "the motion is granted and
the answer is that there are no deals or consideration."
13. Later in the pretrial motion hearing of May 16, 1997,
Robinette stated "I would just like to make on the record we
have made no threats or promises and the only representation
that we have made to these witnesses is that we will honestly
report the level and extent of their cooperation and tell the truth
about what they do and that is one part of it and we will take
reasonable steps to protect their safety and those are the only
representations that we have ever made to those witnesses."
14. Following a pretrial motion hearing, on May 20, 1997,
Robinette authored and presented a letter to defense counsel
stating that the Commonwealth will only report the nature and
extent of the witnesses' cooperation whenever queried
regarding the same. Robinette obviously had already written
multiple letters on behalf of Tribuiani and Wright at the time this
letter was submitted.
11
l 5. Robinette authored a letter dated July 1, 1997, to Raymond J.
Sobina, Superintendent of S.C.I. Somerset. The letter identifies
Wright as a "cooperating Commonwealth witness," and under
the guise of "protecting the physical safety of Kermeth Wright,"
requests his transfer from SCI-Somerset, stating that "Mr.
Wright has expressed a preference for SCI-Laurel Highlands."
16. At the time of trial, the Commonwealth called Wright as a
witness. Robinette specifically asked Wright "Has anyone made
you any promises in exchange for your testimony?" Wright
responded "No, sir." On cross-examination, defense counsel
asked Wright "So they did something in exchange for the
statement, didn't they?" Robinette immediately objected and
the objection was sustained by the Court. On re-direct,
Robinette asked Wright if he "ask[ed] for anything in exchange
for that statement." Wright responded "No, I did not."
l 7. The Commonwealth also called Trooper Jeffrey Witmer of the
Pennsylvania State Police as a witness. Robinette asked Trooper
Witmer if Wright asked for anything in exchange for his
12
cooperation. Witmer responded by stating that Wright made no
requests.
18. The Commonwealth called Tribuiani as a witness at the time
of trial. During his testimony, Tribuiani stated that no one had
made any promises to him in exchange for his testimony. This
statement was made in response to Robinette's questioning.
19. Robinette also called Tamewitz as a witness. In response to
questioning by Robinette, Tamewitz stated that nothing was
promised to Tribuiani in exchange for his testimony.
20. After the conclusion of the trial, Robinette authored a letter
to William F. Ward, Chairman of the Pennsylvania Board of
Probation and Parole. This letter is dated July 17, 1997.
Robinette requests that the "Board consider Mr. Tribuiani's
contribution to this most unusual prosecution when evaluating
the propriety of granting him parole."
21. Robinette received a letter from Tribuiani dated August 2,
1997. Tribuiani wrote the letter to Robinette to thank him "for
13
all you are trying to or will try to do to expedite either my
release to a half way house again and/or parole."
22. Robinette authored a letter to Donald Vaughn,
Superintendent of SCI Graterford. The letter is dated September
15, 1997. In this letter, Robinette requests Mr. Vaughn to
"consider Mr. Tribuiani's cooperation with this office when
commenting of the propriety of his parole."
23. While not conduct attributable to the Commonwealth, the
Court notes that Tribuiani subsequently wrote a letter to
Robinette complaining that he wasn't paroled yet. In this letter,
Tribuiani makes reference to a secret agreement for leniency
between Robinette, Tamewitz, and Tribuiani. Tribuiani states
that he was promised a release from incarceration after the
conclusion of the trial.
24. Robinette also wrote a letter to the Pennsylvania Board of
Probation and Parole on behalf of Wright after the trial. This
letter was dated July 18, 1997. Robinette informed the Board of
Wright's assistance in the conviction of Weiss, and then
14
requested that the Board "consider Mr. Wright's contribution to
this most unusual prosecution when evaluating the propriety of
granting him parole."
DISCUSSION
The Pennsylvania Supreme Court, in Commonwealth v. Johnson
broadened the jeopardy relief standard, stating as follows:
"Under Article 1, Section 10 of the Pennsylvania Constitution,
prosecutorial overreaching sufficient to invoke double jeopardy
protections includes misconduct which not only deprives the
defendant of his right to a fair trial, but is undertaken recklessly,
that is, with a conscious disregard for a substantial risk that such
will be the result. This of course, is in addition to the behavior
described in Smith, relating to tactics specifically designed to
provoke a mistrial or deny the defendant a fair trial."
Commonwealth v. Johnson at 826.
15
Double Jeopardy Analysis Prior to
Commonwealth v. Johnson. 231 A. 3d 807 (2020)
Since the lohnson Court expanded the double jeopardy relief
standard, this Court finds it appropriate to restate the analysis
contained in its Opinion dated August 1, 2019, and then supplement
that analysis based on the Johnson expansion. The following was set
forth in the Court's prior Opinion:
"The Court must now decide whether the double jeopardy clauses,
as set forth in the Fifth Amendment to the United States Constitution
and Article l, Section l O of the Pennsylvania Constitution, prohibit the
retrial of Weiss. In the recent and germane case of Commonwealth v.
Washington, 198 A.3d 381 (Pa.Super. 2018), the Pennsylvania Superior
Court set forth the legal standards that the Court must follow in
making this critical decision, stating as follows:
'The Double Jeopardy Clauses of the Fifth Amendment to the
United States Constitution and Article l, Section l O of the
Pennsylvania Constitution prohibit retrial where prosecutorial
misconduct during trial provokes a criminal defendant into moving
16
for a mistrial. See Oregon v. Kennedy, 456 U.S. 667, 679, 102 S.Ct.
2083, 72 L.Ed.2d 416 (1982); Commonwealth v. Simons, 514 Pa.
10, 522 A.2d 53 7, 540 (1987). However, Article 1, Section 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 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, 532 Pa. 177, 615 A.2d 321, 325 (1992). Pennsylvania has
adopted a strict remedy for intentional prosecutorial misconduct:
'[U]nder 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
17
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.' Commonwealth v. Kearns, 70 A.3d
881, 884-885 (Pa.Super. 2013) (footnote and emphasis omitted).
Washington at 387, quoting Commonwealth v. Lynn, 192 A.3d 194,
199-200 (Pa.Super. 2018) (emphasis added by this Court).
The Washington Court then stated: "Because of the compelling
societal interest in prosecuting criminal defendants to conclusion, our
Supreme Court has recognized that dismissal of charges is an extreme
sanction that should by imposed sparingly and only in cases of blatant
prosecutorial misconduct." Id., quoting Commonwealth v. Wilson, 147
A.3d 7, 13, (Pa.Super. 2016) (citations omitted).
In this case, the state trial court, the Pennsylvania Supreme Court,
and the Federal District Court have found that the Commonwealth's
conduct deprived Weiss due process as guaranteed by the Fourteenth
Amendment to the United States Constitution, i.e., the Commonwealth
engaged in prosecutorial misconduct in violation of Brady v. Maryland,
373 U.S. 83 (1963). Therefore, in deciding whether the double
18
jeopardy Clauses of the Fifth Amendment to the United States
Constitution and Article 1, Section 1 0 of the Pennsylvania Constitution
prohibit retrial, the Court must answer one straightforward yet
challenging question: Did Weiss show that the prosecution's conduct,
as set forth in paragraphs l through 24 above, was intentionally
undertaken in an attempt to deprive Weiss of a fair trial? See Smith at
186, 61 5 A.2d at 32 5. See also Lynn at 200.
This Court believes that prosecutorial misconduct can be of such a
nature that the intentionality of the conduct and the intention to
prejudice the defendant is apparent. For example, in Smith, the
prosecution not only failed to disclose the adhesive "lifters" used by
Corporal Balshy during the autopsy to pull granular particles that
resembled sand from between the victim's toes, it implied that Balshy
fabricated his testimony, and even requested an investigation into the
possibility of charging Balshy with perjury. This was done by the
prosecution during the course of the jury trial, with knowledge of the
defense's theory that the victim was killed at the shore at Cape May,
New Jersey. Smith at 182, 615 A.2d at 323. The prosecution also
19
denied the existence of an agreement with a Commonwealth witness
that in exchange for his testimony he would receive favorable
treatment at his sentencing. Id.The Pennsylvania Supreme Court summarized the misconduct by
stating "[d]eliberate failure to disclose material exculpatory physical
evidence during a capital trial, intentional suppression of the evidence
while arguing in favor of the death sentence on direct appeal, and the
investigation of Corporal Balshy's role in the production of the
evidence rather than its own role in the suppression of evidence
constitute prosecutorial misconduct such as violates all principles of
justice and fairness embodied in the Pennsylvania Constitution's
double jeopardy clause." Id. at 183, 615 A.2d at 324.
Another example of recognizable intentional conduct with an
intention to prejudice the defendant is set forth in Commonwealth v.
Daidone, 453 Pa.Super. 550,684 A.2d 179 (1996). In Daidone, the
prosecutor made "it appear that there [was] evidence of guilt which in
fact [did] not exist." !_g_. at 559, 684 A.2d 184. "The prosecutor made
side comments within the hearing of the jury, denigrated the trial
20
·udge's rulings in open court, and constantly repeated questions to
which objections had been sustained in order to make it appear that
the trial court was not allowing the Commonwealth to present its entire
case." Id.Turning to the present case, the intentionality of Robinette's
conduct is not easily determined. The Court turns to the testimony
provided by Robinette at the hearing on Defendant's Motion to Dismiss
held on January 15, 2019, in the context of the facts of record.
Tribuiani
Robinette stated that when the Pennsylvania State Police first
identified Tribuiani as an individual with information about the Bruzda
murder, one of the first things that Robinette asked Tamewitz was "is
he willing to testify and does he want anything." (Transcript of Motion
to Dismiss hearing (hereinafter "TMDH"), p. 1 5). Robinette was
informed that "yes, he's willing to testify and no, he understands that
there's nothing we can do for him, he doesn't want anything." (TMDH,
pp. 15-16). However, after Tribuiani agreed to testify and after
providing a written statement to Tamewitz, he asked for favors on his
21
behalf. (TMDH, p. 16). These requests led to the letters written and
phone calls made by Robinette on behalf of Tribuiani detailed in
paragraphs 3, 5, 6, 7, 20, and 22 above.
Robinette also authored a memorandum dated April 8, 1996; this is
the memorandum referenced in paragraph 4 above. It appears that the
writing was an internal memo to the file. In the memo, Robinette
states that "Initially, Tribuiani requested nothing in exchange for his
cooperation and testimony. He later contacted Trooper Tamewitz and
requested that Tamewitz assist in expediting his parole from SCI
Huntington [sic]." (TMDH, pp. 36-37). The memo concludes with the
following statement: "I will contact the superintendent of SCI
Huntingdon to inquire about the possibility of expediting the parole of
Tribuiani." (TMDH, p. 37).
Wright
Robinette stated that when Wright first came to his attention,
Wright didn't request anything and the Commonwealth didn't promise
him anything in exchange for his cooperation. (TMDH, p. l 2).
Robinette then stated that he wasn't in a position to promise Wright
22
anything because Wright was already serving a state sentence. (TMDH,
pp. 12-13). Robinette stated that he communicated this to Wright.
(TMDH, p. 13). Robinette testified that he told Wright that he would do
two things: "No l, I would do whatever I could to try to keep him safe
while he was incarcerated." (TMDH, p. 14). "And No. 2, I
communicated to him that I would always communicate the exact
nature and extent of his cooperation to anyone if I was asked to do it,
which in other words, I told him I would tell people about what he was
doing if I was asked to do that." Id. Wright subsequently made
requests for help from the Commonwealth; these requests resulted in
Robinette authoring the letters detailed in paragraphs l 0, l 5, and 24
above.
Representations to the Court and Defense Counsel
Despite the letters written and phone calls made on behalf of
Tribuiani, the memorandum written to the prosecution file, and the
letters written on behalf of Wright, Robinette remained steadfast in his
representations to the Court and to defense counsel. These
representations are contained in paragraphs 12, 13, and 14 above, and
23
include the following statements: "Deals, we don't have any deals with
them, Judge," "I would just like to make on the record we have made no
threats or promises and the only representation that we have made to
these witnesses is that we will honestly report the level and extent of
their cooperation and tell the truth about what they do and that is one
part of it and we will take reasonable steps to protect their safety and
those are the only representations that we have ever made to those
witnesses," and "the Commonwealth will only report the nature and
extent of the witnesses' cooperation whenever queried."
Trial Testimony
Once again, despite the letters written on behalf of Wright,
Robinette called Wright as a witness in the trial, and asked him the
following question: "Has anyone made you any promises in exchange
for your testimony?" In direct response to that question, Wright stated
"No, sir." (Transcript of Trial of July 8, 1997, p. 553). Robinette made
no effort to address this response. On cross-examination, defense
counsel asked Wright "So they did something in exchange for the
statement, didn't they?" Robinette immediately objected, and the trial
24
·udge sustained the objection. On re-direct, Robinette addressed this
issue with Wright again, asking Wright if he asked "for anything in
exchange for that statement." Wright responded "No, I did not." Id. at
544.
With regard to Tribuiani's trial testimony, and despite the letters
written and the phone calls made on Tribuiani's behalf, Tribuiani was
asked if any promises were made to him in exchange for his testimony.
Tribuiani said "No," and Robinette did nothing to address this
testimony. Defense counsel did not ask a question regarding promises
in exchange for Tribuiani's testimony, however, the objection to a
similar question posed to Wright had already been sustained.
The Court notes that Robinette attempted to bolster the testimony
of Wright by asking Trooper Jeffrey Witmer if Wright had asked for
anything in exchange for his testimony; Witmer stated that Wright
made no requests. jg. at 547. Similarly, Tamewitz testified that no
promises were made to Tribuiani in exchange for his testimony. jg. at
564.
25
Robinette's testimony regarding intent
At the hearing on the Motion to Dismiss, Robinette testified in
detail regarding his efforts on behalf of Tribuiani and Wright. This
testimony was provided in response to questions posed by Deputy
Attorney General Gregory J. Simatic and defense counsel. During this
questioning, Robinette was asked about his state of mind regarding his
efforts, vis-a-vis the representations he made to the Court and
defense counsel, and the testimony he elicited during the trial. The
Court finds the following questions and answers particularly relevant:
Q: Did you feel that writing the letters on behalf of Mr. Tribuiani
were in keeping with your representation to the Court and defense
counsel about what you would do in on his behalf?
A: Absolutely.
(TMDH, pp. 17-18).
Q: And was it your belief that that was in keeping with your
earlier disclosure?
A: Absolutely. Exactly what I told Judge Ruddock and what I
told Mr. Dougherty our deal was.
26
(TMDH, p. 19).
Q: Attorney Robinette, can you maybe state with a little more
specificity why you felt that your actions were keeping up with your
obligations?
A: My understanding of a couple things, Judge, first of all, my
understanding of what Brady required at that time did not include
letters such as the ones that I had written. I have been involved some
appellate litigation where there were Brady issues raised during that
time frame. And I even remember cases that, I believe, were valid at
the time that said material had just be fathered [sic] for cross
examination isn't necessarily Brady material. Additionally, I think
there's some case law that reports of cooperation on behalf of
witnesses, not necessarily, not Brady material at that time. That was in
my mind. I didn't think it was. If it would have been a statement of a
witness that was inconsistent, I would have understood that to be
Brady material and that would have been turned over. These weren't
statements by the witnesses. These were my statements. They were in
my correspondence file. I couldn't imagine they would have been used
27
to cross examine the defendant. Particularly, because I had advised
the Court and defense counsel of what I was doing for these witnesses,
that I would try to help keep them safe and that I would report exactly,
you know, what it was that they were doing for us. So no, not only did
I never make a decision to not turn over those letters, Judge, I never
even considered turning over those letters. That never struck me as
something that----that I would do, never even considered it.
(TMDH, pp. 20-21).
Q: And maybe I'll move on to the issue of any potential false
testimony that was allegedly elicited at trial. Did you elicit any
testimony that you believe to be false?
A: No.
(TMDH, p. 22).
Q: So was it your intent throughout these proceedings to afford
Mr. Weiss a fair trial:
A: Yes.
Q: Did you ever entertain any notion of doing anything other
than that?
28
A: No.
(TMDH, p. 28).
The Court finds Robinette's testimony to be credible in a critical
regard; this Court believes that Robinette genuinely thinks that his
actions did not and do not constitute prosecutorial misconduct. He
didn't believe it at the time of the trial, and it appears that he is
skeptical of the decisions of the PCRA court, the Pennsylvania Supreme
Court, and the Federal District Court. The Court finds Robinette's
convictions regarding his conduct to be extremely flawed and
troubling, but not impossible to believe.
For example, it is possible that Robinette held the belief that since
Tribuiani and Wright did not request favorable treatment and no
promises were made to them in exchange for their testimony at the
time they first agreed to cooperate, statements such as "Deals, we
don't have any deals with them, Judge," and "we have made no threats
or promises and the only representation that we have made to these
witnesses is that we will honestly report the level and extent of their
cooperation and tell the truth about what they do and that is one part
29
of it and we will take reasonable steps to protect their safety and those
are the only representations that we have ever made to those
witnesses," were true statements.
It also is possible that Robinette did not believe that he had to
disclose the individual letters and phone calls, even when required to
disclose all "consideration" given, since he provided the general
parameters of what he agreed to do on behalf of Tribuiani and Wright.
With regard to this matter, this Court does not ignore the conditional
phrase "whenever queried regarding the same," contained within
Robinette's written statement to defense counsel. It is clear that
Robinette wrote the favorable letters and made the favorable phone
calls without being "queried" by a third party about Wright's
cooperation or Tribuiani's cooperation. Robinette was questioned
about this issue at the hearing on the Motion to Dismiss as follows:
Q: That's what the letter says. As far as for Mr. Tribuiani's pre-
release, were you queried by anybody from Montgomery County as to
write a letter or tell about cooperation?
Robinette responded as follows:
30
A: I was asked by Mr. Tribuiani to help him contact the people
who might have an opportunity to comment on his pre-release. Query
is a word that's being used as if to query, being synonymous with to
ask and that's the way I was using the word.
(TMDH, pp. 62-63).
Once again, Robinette's reasoning and decision-making regarding this
issue is seriously flawed, but not impossible to believe.
With regard to the testimony provided at trial, it appears that
Robinette phrased his direct exam questions to Wright, Tribuiani,
Tamewitz, and Trooper Witmer in such a way to require a response
regarding promises made in exchange for the confession testimony.
For example, Robinette's question to Wright was as follows: "Has
anyone made you any promises in exchange for your testimony?" Since
Wright agreed to testify prior to requesting assistance, Robinette
believed that the testimony was not in exchange for the assistance.
Once again, this reasoning is erroneous and troubling, but it is
possible to believe that Robinette did not intend to elicit perjured
testimony.
31
With regard to the possible existence of a "secret deal," the Court
finds that the only evidence of a secret deal is contained in a letter
written from Tribuiani to Robinette subsequent to the trial. The letter
makes reference to a secret deal for leniency. The Court gives no
weight to this reference, as Robinette had no decision-making
authority with regard to Tribuiani's criminal matters. In other words,
Robinette was incapable of delivering leniency.
The Court gives weight to the fact that Robinette wrote letters to a
judge, a district attorney, several state correctional institution
superintendents, and two chairmen of the Pennsylvania Board of
Probation and Parole. In other words, he certainly wasn't trying to hide
intentional wrongdoing. To the contrary, such actions are more
consistent with a prosecutor who possessed the unenviable pairing of
arrogance and ignorance.
Finally, the Court agrees with the PCRA court and the Federal
District Court that Robinette's conduct was outrageous, as such word
is defined as "unacceptable." However, an individual's conduct can be
32
outrageous yet inadvertent, thereby lacking intentionality toward a
specific result. The Court finds that to be the case here."
Double Jeopardy Analysis Subsequent to
Commonwealth v. Johnson, 231 A. 3d 807 (2020)
As stated above, the Pennsylvania Supreme Court, in
Commonwealth v. Johnson broadened the jeopardy relief standard.
Therefore, the Court now addresses whether Robinette's prosecutorial
misconduct was "undertaken recklessly, that is, with a conscious
disregard for a substantial risk that" Weiss would be denied a fair trial.
The Court begins by discussing the facts of Johnson, because the
Supreme Court took much care in stressing that the details of the
prosecutorial misconduct in each case are critical, stating "we do not
suggest that all situations involving serious prosecutorial error
implicate double jeopardy under the state Charter." Id. The High
Court then stated "[t]o the contrary, we bear in mind the countervailing
societal interest mentioned above regarding the need for effective law
enforcement. Id., (citation omitted). Finally, Justice Dougherty penned
33
a Concurring Opinion for the purpose of "expressing [his] view that,
although [the Supreme Court's] decision broadens the jeopardy relief
standard requiring intentional prosecutorial misconduct to include
reckless (conscious) prosecutorial disregard of a substantial risk the
defendant will be denied a fair trial, the standard continues to be a
stringent one that will be satisfied only in egregious cases. ld at 828
(Justice Dougherty, Concurring). Justice Dougherty went on to state
the following: "I do not read our decision as suggesting dismissal of
charges is warranted in every case of prosecutorial misconduct. In the
face of a double jeopardy challenge, unless there is evidence to
support a finding of deliberate and reckless prosecutorial disregard of
a substantial risk the defendant will be denied a fair trial, the remedy
should be less severe than dismissal. Where such evidentiary support
is lacking, the appropriate remedy will normally include the award of a
new trial." Id.This Court believes it is critical to begin with the Pennsylvania
Supreme Court's opening statement of the question presented in
lohnson. The Supreme Court stated as follows: "The question
34
presented pertains to the scope of protection offered by the
Pennsylvania Constitution's Double Jeopardy Clause. We consider
whether that provision bars retrial where the Commonwealth obtains a
conviction based on false evidence and its misconduct, while not
undertaken with the intent to deny the defendant a fair trial,
nevertheless stems from prosecutorial errors that rise substantially
above ordinary negligence. Id at 810 (emphasis added).
In Johnson, the law enforcement and the prosecution committed an
almost unimaginable evidentiary error. The reality of the situation was
that there were two baseball caps, a black cap and a red cap. The
black cap was worn by the victim at the time of the shooting. Id at
811. It was collected as evidence1 and submitted to the crime lab for
testing; the victim's blood was present on the brim of the cap. jg. The
red cap, which was recovered at the scene approximately nine feet
from the victim's body, was sent for testing after Appellant, Kareem
1 The black cap was given to the police at the police station shortly after the shooting
by Debbie Williams, a friend of the victim, Walter Smith.
35
ohnson, was identified as a suspect; Johnson's DNA was present on
the sweatband of the red cap. Id at 810-811.
From that point forward, the Commonwealth proceeded with the
completely erroneous position that there was only one cap recovered,
the red cap. Id at 811-812. The Commonwealth compounded this
erroneous position by taking the lab results from the black cap, i.e.,
the presence of the victim's blood on the brim, and attributing those
findings to the lab findings of the lab results of testing on the red cap
(in addition to the actual lab results of testing on the red cap). Id. As
a result of this series of unthinkable errors, the prosecution began the
trial by telling the jury that Johnson was wearing the red cap, and was
so close to the victim at the time of the shooting, that the victim's
blood was found on Johnson's red cap. Id.The red baseball cap was the Commonwealth's "crucial piece of
physical evidence," and the mistakes continued. Officer Trenwith
testified that "when he recovered the red cap from the scene he saw
drops of fresh blood underneath the cap's brim," and he went on to
testify that "he had never seen a case in which blood had spattered the
36
distance from Smith's body to where the red cap was found at the
scene." Id at 812. Further, the forensic scientist who performed the
DNA testing testified that the victim's blood and Johnson's DNA "were
both found on 'the hat."' lg. Johnson never challenged the one hat
presentation, and in the closing argument, the prosecution argument
was built on the fallacy that the victim's blood was on the brim of the
red cap. Id at 812-813. The jury convicted Johnson on all counts and
imposed the death penalty. Id at 813.
Following Johnson's direct appeals, Johnson filed an amended Post
Conviction Relief Act Petition; soon thereafter the Commonwealth's
lamentable error was discovered as the result of an open records
request. lg. After the discovery, the Commonwealth "agreed that
Appellant was entitled to a new trial, and the court entered an order to
that effect in April 2015." Id. (emphasis added).
Turning to the facts of this matter, the Court has detailed
Robinette's conduct that has been adjudged to be prosecutorial
misconduct. The Court points out at this time its belief that certain
conduct can be found to be negligent, while other conduct can be
37
found to be reckless. After careful review, this Court finds almost all
of Robinette's conduct to be negligent, undertaken on the basis of a
mistaken belief that had some basis in law or in fact. However, the
Court finds Robinette's conduct to be reckless with regard to the
statement that he would convey the nature and extent of Wright's and
Trubuiani's cooperation "whenever queried regarding the same."
As stated above, when questioned about the fact that he wrote
favorable letters or made favorable phone calls at the request of the
cooperating witness, Robinette responded as follows:
A: I was asked by Mr. Tribuiani to help him contact the people
who might have an opportunity to comment on his pre-release. Query
is a word that's being used as if to query, being synonymous with to
ask and that's the way I was using the word.
(TMDH, pp. 62-63).
The Court finds that decisions made based upon this barely
believable explanation were made with a conscious disregard to the
result. Given this finding, the Court now must look at whether such
reckless conduct created a substantial risk that the defendant would be
38
denied a fair trial. The Court begins by conducting its own analysis of
this question.
Unlike Johnson, the Commonwealth's recklessness does not deal
with the key piece of physical evidence leading to the defendant's
conviction.2 Rather, it deals with the failure to disclose the fact that
Robinette made phone calls and wrote letters to report Wright's and
Tribuiani's cooperation. Robinette was not in a position to promise
leniency. He was not in a position to deliver on a deal for favorable
treatment. He was conveying the facts of the cooperation to the
ultimate decision makers. Robinette was reckless in his decision not to
disclose the phone calls and letters, however, the Court finds that this
reckless decision did not carry with it a substantial risk that Weiss
would be denied a fair trial.
'The Court points out that the Supreme Court in Johnson did not have to wrestle with
the question of whether or not the prosecutorial misconduct posed a substantial risk
of depriving the defendant of a fair trial. In fact, the Supreme Court begins its
Opinion by phrasing the question to be answered as "[wle consider whether that
provision bars retrial where the Commonwealth obtains a conviction based on false
evidence and its misconduct...." Johnson at 810. Obviously, the fact that the
conviction was based upon the misconduct was self-evident. That is not the case
here.
39
Next, the Court sets forth its belief that the Pennsylvania Supreme
Court has already answered this question. In Weiss Ill, the Supreme
Court reached the following conclusion:
"After a careful review of the record and the PCRA court's
conclusions, we agree with the court that the Commonwealth's
evidence against Appellant, independent of the tainted trial
testimony of Mr. Wright and Mr. Tribuiani, contained adequate
evidence of Appellant's guilt that there is no reasonable probability
that if the Commonwealth had turned over the relevant
impeachment evidence Appellant would not have been convicted."
Weiss Ill at 699, 81 A.3d at 788 (emphasis added).3
This Court completely understands that the United States District
Court for the Western District of Pennsylvania, in addressing Weiss'
amended federal petition for writ of habeas corpus, found that the
Pennsylvania Supreme Court's conclusion set forth above "was so
lacking in justification that there was an error well understood and
This Court points out that the Supreme Court reached this conclusion considering
the totality of Robinette conduct, not just the conduct that this Court has found to be
reckless.
40
comprehended in existing law beyond any possibility for fairminded
disagreement."' Weiss v. Wetzel, et al., at p. 32. And in making this
finding, the Federal District Court stated several times that Weiss was
denied a fair trial. Weiss v. Wetzel, et al., at p. 36. However, this Court
does not believe that the same state court jurisprudence that
concluded that Weiss "received a fair trial with a verdict worthy of
confidence" should now conclude that double jeopardy protections and
precepts bar retrial.'
CONCLUSION
As stated in this Court's earlier Opinion, the Court holds a firm
belief that Robinette's failures and the resulting depravation of due
process were born out of arrogance and ignorance. The Court believes
that Robinette's conduct was not intentionally undertaken to deprive
Weiss of a fair trial. The Court does find that a portion of Robinette's
conduct was reckless, as the conduct was undertaken consciously,
'The Court notes that it has conducted an extensive search for guidance on this
issue, however, given the complex procedural history of this matter, the Court has
been unable to find a situation in which the Pennsylvania Supreme Court found
prosecutorial misconduct that did not undermine confidence in the verdict, followed
by a grant of federal habeas corpus on essentially the same issue, and then a double
jeopardy claim prior to the commencement of the new trial.
41
without regard to the consequences, and with a barely arguable basis.
However, the gravity of the reckless conduct, and the resulting impact
said conduct had on the trial, is far less egregious than the
Commonwealth's conduct in Johnson. Robinette committed serious
prosecutorial error, but when misconduct lacks the intentionality
required, or constitutes reckless conduct without a substantial risk that
the defendant will be denied a fair trial, Pennsylvania jurisprudence
provides that the prejudice caused to the defendant can be remedied
by retrial. Defendant should be given a new trial. Therefore,
Defendant's Motion to Dismiss Case and Discharge Defendant on
Double Jeopardy Grounds is DENIED.
WHEREFORE, the Court enters the following Order of Court.
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