Com. v. Thomas, R. ( 2023 )

J-S04023-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
RONALD THOMAS :
:
Appellant : No. 1034 EDA 2022
Appeal from the Order Entered March 4, 2022
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0013001-2010
BEFORE: MURRAY, J., KING, J., and PELLEGRINI, J.*
MEMORANDUM BY KING, J.: FILED SEPTEMBER 11, 2023
Appellant, Ronald Thomas, appeals from the order entered in the
Philadelphia County Court of Common Pleas, denying his motion to bar retrial
under principles of double jeopardy. We affirm.
This Court has previously set forth the underlying relevant facts and
procedural history of this case as follows:
The charges against [Appellant] relate to his shooting and
murder of Anwar Ashmore (Ashmore).
Ashmore was fatally shot in the chest at the corner of North
Stanley and West [Huntingdon] Streets in Philadelphia at
approximately 9:00 P.M. on the evening of April 22, 2010.
He suffered injuries to his sternum, heart, ribs, lungs and
left arm. When Philadelphia Police Officers William Forbes
and Anthony Ricci arrived on the scene moments later, a
group of people was standing around him as he gasped for
air. Ashmore was unable to answer the officers’ questions
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* Retired Senior Judge assigned to the Superior Court.
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and the bystanders denied having heard anything. Ashmore
was pronounced dead at Temple University Hospital
moments after arriving. The cause of death was two
gunshot wounds to the chest, later determined to be from a
.45 caliber handgun.
Approximately one hour after the shooting, Detectives Philip
Nordo, Tracy Byard, Thorsten Lucke and Billy Golphin
arrived at the scene. The police did not locate any
eyewitnesses to the murder that night. However, one
month later, on May 22, 2010, they arrested Raphael
Spearman three blocks from the murder scene after a police
chase. He was in possession of a .45 caliber handgun that
was later determined to be the gun that fired the bullets that
killed Ashmore. Over the ensuing days and months, Troy
Devlin, Jeffrey Jones, Raphael Spearman and Kaheem
Brown identified [Appellant] as Ashmore’s killer. Detective
Nordo took the statements of Devlin, Jones and Spearman.
Detective [Nathan] Williams took Brown’s statement.
* * *
Trial commenced on September 11, 2018.[1] The
Commonwealth proceeded under the theory that
[Appellant] murdered Ashmore in retaliation for the
shooting of his associate…approximately five months
earlier. At trial, the Commonwealth presented Devlin,
Jones, Spearman and Brown, each of whom identified
[Appellant] as the shooter in their police statements, but
then recanted at trial.[2] …
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1 This was Appellant’s second trial, as this Court had granted Appellant a new
trial based on the admission of hearsay evidence at his first trial in 2013. See
Commonwealth v. Thomas, No. 1121 EDA 2013 (Pa.Super. 2015)
(unpublished memorandum) (“Thomas I”), appeal denied, 635 Pa. 743, 134
A.3d 56 (2016).
2 In recanting his testimony, Devlin claimed that he did not remember
anything about the murder or giving a statement to police. Jones claimed his
earlier statement to police implicating Appellant had been coerced by the
homicide detectives. Spearman was found unavailable to testify after he
refused to leave his cell, walk to the witness stand, or acknowledge his name
(Footnote Continued Next Page)
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* * *
On September 19, 2018, at the conclusion of trial, the jury
convicted [Appellant] of first-degree murder and related
charges. The court sentenced him to an aggregate term of
life imprisonment. [Appellant] timely appealed. …
* * *
[Prior to trial, o]n September 5, 2018, the Commonwealth
[had] filed a Motion in Limine to Preclude Reference to
Detective Nordo’s Alleged Misconduct on the basis that such
evidence was hearsay, irrelevant and collateral. More
specifically, the Commonwealth maintained that, although
the detective had since been fired by the Philadelphia Police
Department for his misconduct, his actions occurred
approximately five years after his interrogations in this case,
none of the allegations involved [Appellant’s] case, no
criminal charges had been filed, and the Commonwealth did
not intend to call him as a witness. Therefore, the
Commonwealth argued, Detective Nordo’s misconduct was
a collateral issue. The court granted the motion the same
day.
Neither Detective Nordo nor Detective Williams testified at
trial. At the time of trial, Detective Nordo had been
dismissed from the Philadelphia Police Department for
allegedly putting money in prison inmates’ commissary
accounts and improperly communicating with witnesses and
defendants outside of his official duties. There was no
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on the record. Nevertheless, the Commonwealth introduced Spearman’s
testimony from Appellant’s first trial in 2013, during which Spearman had also
recanted his police statement implicating Appellant and stated that the
detectives had coerced his testimony. Brown testified at Appellant’s 2018 trial
that he did not know or remember anything about the murder. Brown was
also confronted with his 2013 testimony, in which Brown had claimed that the
detectives tortured him into signing a statement implicating Appellant. At the
2018 trial, Brown maintained that he could not remember giving the 2013
testimony or remember the detectives torturing him. See Commonwealth
v. Thomas, No. 2898 EDA 2018, unpublished memorandum at 4-12
(Pa.Super. filed June 3, 2020) (“Thomas II”).
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evidence of misconduct by Detective Williams at that time.
Since [Appellant’s] trial, the Commonwealth has filed
criminal charges against Detectives Nordo and Williams
premised on their alleged misconduct in the investigation of
crimes and use of police resources and has vacated the
judgment of sentence and conviction in other cases based
on Detective Nordo’s misconduct. It has provided
[Appellant] with related discovery. On April 22, 2019,
[Appellant] filed a motion for remand to allow the trial court
to conduct an evidentiary hearing based on this newly
provided evidence. This Court denied the motion per
curiam, without prejudice to [Appellant] bringing the issue
up [before the] merits panel.
* * *
Since the conclusion of his trial, the Commonwealth has
provided [Appellant] with information about Detective
Nordo’s role in an unrelated murder case, Commonwealth
v. Powell, No. CP-51-CR-0006915-2015. In Powell, the
trial court dismissed all charges after “new and uniquely
troubling information” about Detective Nordo’s investigative
techniques were revealed at a pretrial hearing on Powell’s
motion to dismiss.
At the hearing, the evidence showed that Detective Nordo
made phone calls and unauthorized visits to incarcerated
witnesses and deposited money into their prison accounts.
He also had unauthorized contact with a judge without the
District Attorney’s knowledge and sought pretrial release of
an incarcerated witness. He lied about whether he had prior
relationships with witnesses he claimed only to have met
during his investigation of Powell and his co-defendant. One
of the witnesses could be heard on recorded prison phone
calls telling Detective Nordo that he loves him and calling
him “Coach.” Nordo was unavailable for Powell’s pretrial
hearing because Nordo’s attorney stated that Nordo would
assert his Fifth Amendment privilege against self-
incrimination.
Further, Detective Nordo took a statement from a person
who was under the influence of illegal narcotics and
suggested everything that ultimately was said in the
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statement. That statement alluded to another conversation
between the individual and the detectives that was not
recorded. The detective had kept Powell’s co-defendant in
custody for seventeen hours before taking his written
statement.
The Commonwealth also disclosed to [Appellant] a grand
jury report that detailed Detective Nordo’s coercive
interrogation techniques, including threatening individuals
with prosecution, intimidating individuals into signing false
statements and giving people cash rewards for providing
fabricated statements. The disclosure included multiple
indictments that charged Detective Nordo with coercive sex
crimes related to his interrogation of suspects and
witnesses.
* * *
Detective Nathan Williams was arrested in November 2019
and charged with tampering with public records, unsworn
falsification to authorities, tampering with or fabricating
physical evidence, and obstructing the administration of
law. Since that time, the Commonwealth provided
[Appellant] with certain related disclosures pursuant to its
practice. Those disclosures included information from an
internal investigation report showing that Detective Williams
used police database records to find personal information
about a woman that his cousin had been harassing and send
the woman’s personal information to his cousin, and then
lying, attempting to conceal his misconduct from internal
investigators.
Thomas II at 3-16 (internal citations and footnotes omitted). On direct
appeal from his 2018 judgment of sentence, this Court remanded for an
evidentiary hearing concerning the newly-discovered evidence of the
misconduct of Detectives Nordo and Williams, and to determine whether the
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Commonwealth committed a Brady3 violation by failing to disclose this
information to defense counsel prior to trial. See id. at 24-25.
Upon remand, the parties agreed not to conduct an evidentiary hearing
and to grant Appellant a new trial based on the Commonwealth’s “negligent”
Brady violation in suppressing certain 2005 allegations against Detective
Nordo. (See Commonwealth’s Answer Regarding Nordo’s Misconduct and its
Nexus to this Case, 5/20/21, at ¶32).4 Thus, on May 25, 2021, based on the
Commonwealth’s agreement, the assigned homicide calendar jurist, Judge
Ransom, awarded Appellant a new trial.
Thereafter, the case was reassigned to Judge DeFino-Nastasi for a new
trial. On July 8, 2021, Appellant filed a motion to bar retrial on double
jeopardy grounds based on the Commonwealth’s intentional or reckless failure
to disclose Detective Nordo’s misconduct to defense counsel prior to
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3 Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)
(holding suppression by prosecution of evidence favorable to accused upon
request violates due process where evidence is material either to guilt or to
punishment, irrespective of good faith or bad faith of prosecution).
4 Specifically, the Commonwealth conceded: “Although the Commonwealth
had actual knowledge of some of Nordo’s prior acts of misconduct (and
constructive knowledge of other prior acts of misconduct…) at the time
[Appellant] was put on trial in this case in 2013 as well as in 2018, the trial
prosecutors negligently suppressed that Brady information from the defense.”
(See id.) The 2005 allegations against Detective Nordo which the
Commonwealth admitted that it had failed to disclose, involved a sexual
incident in an interrogation room where a witness’s sperm was discovered in
the interrogation room. The Commonwealth did not prosecute Detective
Nordo based on any misconduct arising from this incident at that time.
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Appellant’s 2018 trial. The court held hearings on the motion on February 15,
2022 and March 4, 2022.
At the February 15, 2022 hearing, Deputy District Attorney Matthew
Krouse of the Delaware County District Attorney’s Office testified that he was
previously employed as an Assistant District Attorney at the Philadelphia
District Attorney’s Office. Attorney Krouse prosecuted Appellant’s second trial
in 2018. Attorney Krouse said that Detective Nordo was involved in the
investigation of Appellant’s case but was not called as a witness, and Attorney
Krouse had no interaction with him pertaining to Appellant’s case. Attorney
Krouse testified that in June 2018 (prior to Appellant’s trial), Attorney Krouse’s
supervisor, then-Assistant Chief Ed Cameron,5 sent an email to Attorney
Krouse indicating that charges had been dismissed against a defendant in the
Powell case based on allegations of Detective Nordo’s misconduct. Attorney
Krouse discussed an email chain regarding Detective Nordo, which Attorney
Krouse confirmed was the extent of his knowledge regarding Detective Nordo’s
misconduct. Attorney Krouse said he knew there was an indication that
Detective Nordo put money on people’s books and promised to help people
with backtime in the Powell case. In light of this knowledge, Attorney Krouse
maintained that he wanted to ensure he did everything possible to pass the
necessary information to Appellant’s counsel and let the defense be aware
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5 Attorney Cameron died several months before the hearing.
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that Detective Nordo was under investigation.
Attorney Krouse acknowledged that some witnesses who had given
police statements implicating Appellant had recanted their testimony in
Appellant’s initial 2013 trial, but Attorney Krouse believed those witnesses did
so for the typical reasons that witnesses recant, such as not wanting to be a
“snitch,” and no witness had made an allegation against Detective Nordo that
mirrored the allegations from the Powell case. After discussions with his
supervisors, Attorney Krouse filed the motion in limine in Appellant’s case to
preclude reference to the open investigation of Detective Nordo, as Attorney
Krouse believed it was collateral in nature. Attorney Krouse also confirmed
that, as far as he knew, there was no indication of any credible allegations
against Detective Nordo as they pertained to witnesses involved in Appellant’s
case.
Attorney Krouse testified that he did not learn about other allegations
against Detective Nordo (beyond those in Powell) until December 2018, after
Appellant’s 2018 trial. At that time, the Conviction Integrity Unit (“CIU”)
reached out to Attorney Krouse about Detective Nordo. Attorney Krouse
reiterated that in September 2018, he did not have any knowledge about any
misconduct by Detective Nordo other than what was disclosed in the June
2018 emails regarding the Powell case. Further, at the time of Appellant’s
September 2018 trial, there had been no unit-wide meetings concerning
Detective Nordo or policies in place regarding Detective Nordo. In December
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2018 or early 2019, Attorney Krouse was instructed to go over his cases and
let his supervisors know if Detective Nordo had been involved in a case.
On cross-examination,6 Attorney Krouse discussed an August 2018
email, in which he asked his supervisors if he had to pass any information to
the defense in Appellant’s case concerning the allegations about Detective
Nordo. Attorney Krouse’s supervisors advised him that if Attorney Krouse was
not planning to call Detective Nordo as a witness, then Attorney Krouse did
not need to pass the information to the defense, unless so requested. At that
time, Attorney Krouse understood that Detective Nordo was placed on a “do
not call” witness list. Attorney Krouse confirmed that he did not believe that
the allegations against Detective Nordo in the Powell case were material to
Appellant’s case. Because Attorney Krouse was not calling Detective Nordo
as a witness, Attorney Krouse did not believe he had an obligation to disclose
any information to defense counsel about allegations against Detective Nordo.
Attorney Krouse also stated that the transcript from Powell was publicly
available in June 2018, which detailed the extent of Detective Nordo’s
misconduct in Powell, but Attorney Krouse had not read the transcript.
Attorney Krouse made clear that there was no intention to hide anything from
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6 We note that although it was Appellant’s burden at this hearing, the
Commonwealth initially called Attorney Krouse, so Appellant’s attorney
conducted cross-examination. Following Attorney Krouse’s testimony,
Appellant called the remaining witnesses, and the Commonwealth conducted
cross-examination of those witnesses.
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the defense regarding Detective Nordo. (See N.T. Hearing, 2/15/22, at 13-
94).
Assistant District Attorney Sarah Boyette testified next. Attorney
Boyette testified that she works in the Philadelphia District Attorney’s Office
in the CIU. Following this Court’s 2020 remand decision, Attorney Boyette’s
assignment was to review Appellant’s case in light of Detective Nordo’s
misconduct and to ascertain what the CIU’s position would be on this case.
As part of her investigation, Attorney Boyette reviewed the transcripts of
Appellant’s 2013 trial and 2018 retrial. She also reviewed appellate filings
and opinions regarding both trials. Attorney Boyette further reviewed the
Philadelphia Police Department’s homicide file, and she conducted additional
research about the underlying relationships and facts of this case. Attorney
Boyette confirmed that two of the witnesses who recanted their police
statements implicating Appellant, had alleged misconduct involving Detective
Nordo. Following her review of the file, Attorney Boyette concluded that there
had been a Brady violation in this case, and relief was due on those grounds.
Attorney Boyette stated that her supervisors, Patricia Cummings and Mike
Garmisa, agreed with her conclusion. Attorney Boyette elaborated on her
conclusion, stating that she believed the trial prosecutor had negligently
suppressed Brady information from the defense because the Commonwealth
had a duty to disclose it and breached that duty; therefore, the breach was
inherently negligent, and Appellant was entitled to a new trial.
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Upon cross-examination, Attorney Boyette confirmed that she did not
find any evidence that would have allowed her to take a position as to any
questions of intent or recklessness. Upon questioning from the court, Attorney
Boyette elaborated that the Brady violation in this case was the
Commonwealth’s failure to inform defense counsel of both the substantive
scope of Detective Nordo’s misconduct and the extensive time frame.
Specifically, Attorney Boyette testified that the District Attorney’s Office knew
of Detective Nordo’s misconduct as of May 2005, based on a complaint by a
person in an interrogation room as to some kind of sexual misconduct by
Detective Nordo. In other words, Attorney Boyette believed the
Commonwealth had committed a Brady violation when it represented to the
defense prior to Appellant’s 2018 trial that the scope of Detective Nordo’s
misconduct was limited to making promises to assist with probation backtime,
putting money on books, and making improper jail calls (as discussed in
Powell).
Because there were other incidents of misconduct against Detective
Nordo at that time, including the 2005 sexual complaint incident, Attorney
Boyette testified that Attorney Krouse did not disclose all pertinent information
about Detective Nordo to defense counsel. Attorney Boyette also referenced
other allegations against Detective Nordo about coercing witness statements,
but Attorney Boyette admitted she was not privy to the details of those
allegations and could not provide anything specific as it pertained to those
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allegations. Aside from the 2005 incident and the allegations involved in the
Powell case, Attorney Boyette confirmed that she could not give a date or
time of any other information regarding misconduct by Detective Nordo. (See
id. at 96-128).
Assistant District Attorney Michael Garmisa testified that he is the
supervisor in the CIU. Attorney Garmisa discussed a Police Misconduct
Disclosure database (“PMD”) that contains any claims related to Detective
Nordo’s involvement in a case (also known as the “Nordo packet”). Attorney
Garmisa stated that the PMD has gotten bigger over time. At the time of
Appellant’s second trial in 2018, the PMD would have contained the allegations
against Detective Nordo at issue in the Powell case. Attorney Garmisa stated
that there were no other cases at that time involving Detective Nordo’s alleged
misconduct. Nevertheless, Attorney Garmisa recalled that the Special
Investigations Unit had made requests from the homicide unit for any cases
that Detective Nordo had worked on due to the active grand jury investigation.
Attorney Garmisa also discussed that as of December 17, 2018 (after
Appellant’s 2018 trial), the PMD contained information related to the case of
Commonwealth v. Camp, CP-51-CR-0007886-2015, in which charges had
been dismissed against a defendant on April 11, 2017. In that case, Detective
Nordo was a witness who had supposedly discovered a weapon and claimed it
was the defendant’s weapon. Ultimately, the Commonwealth dropped the
charges in Camp based on the ongoing grand jury investigation into Detective
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Nordo. However, the information pertaining to the grand jury investigation
was protected by grand jury secrecy. Attorney Garmisa confirmed that there
was not a “Nordo team” in place at the time of Appellant’s second trial in
September 2018. As additional allegations unfolded against Detective Nordo,
there were more formal policies in place concerning how to handle cases
where Detective Nordo had been involved. As of December 2018, the policy
was not to call any witness in a case who may have been tainted by Detective
Nordo. Attorney Garmisa made clear that he had no conversations with
Attorney Krouse regarding calling Nordo-related witnesses in September
2018; the first contact Attorney Garmisa had about any cases involving
Detective Nordo was in December 2018 concerning another matter unrelated
to Appellant’s case. (Id. at 129-191). Following Attorney Garmisa’s
testimony, the proceedings were adjourned.
On March 4, 2022, the hearing continued. Attorney Anthony Voci, Jr.
testified that he was the chief of the homicide unit in 2018. In 2017, Attorney
Voci was aware that Detective Nordo was under investigation for a series of
incidents that were deemed unlawful and inappropriate. Attorney Voci stated
that he was essentially “screened off” from anything related to Detective
Nordo, and anything related to Detective Nordo would be handled by the CIU,
which would then decide whether the homicide unit would proceed on cases
where Detective Nordo was a witness. Attorney Voci confirmed that Attorney
Krouse had consulted with the CIU regarding how to proceed in Appellant’s
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case, and the CIU gave Attorney Krouse permission to go forward with trial.
Attorney Voci discussed a December 6, 2018 email he drafted, which
instructed his colleagues to review their files carefully to see if Detective Nordo
was assigned or involved in any cases. If Detective Nordo’s name came up
anywhere, attorneys were to notify Attorney Voci immediately. Attorney Voci
sent the email to ensure that he could notify the CIU about their existence.
Thereafter, the CIU would provide guidance on how to proceed.
Attorney Voci discussed an email from August 2018, in which Attorney
Krouse had asked then-Assistant Chief Ed Cameron about whether Attorney
Krouse had to pass information about Detective Nordo to defense counsel in
Appellant’s case. Attorney Cameron responded that Attorney Krouse should
not call Detective Nordo as a witness, and Attorney Cameron believed that the
Commonwealth did not have to turn anything over related to Detective Nordo
if he was not going to be called as a witness. Attorney Voci, who was also on
the email thread, agreed with Attorney Cameron’s suggestion, but said he
would double check with Patricia Cummings in the CIU. Attorney Voci said
that regardless of his personal opinion, the CIU would make the final decisions
regarding how to handle any cases involving Detective Nordo.
Upon cross-examination, Attorney Voci testified that Patricia Cummings
was the head of the CIU at the time, and she determined whether a case could
proceed based on Detective Nordo’s amount of involvement and other
evidence in the case. Attorney Voci also clarified that the reason he was
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“screened off” from cases involving Detective Nordo was because a stack of
Attorney Voci’s business cards had been found in Detective Nordo’s vehicle.
Attorney Voci had no idea why his business cards would be in Detective
Nordo’s vehicle because Attorney Voci had not seen Detective Nordo in 15
years. (See N.T. Hearing, 3/4/22, at 13-40). Following Attorney Voci’s
testimony, the defense rested its case and the parties proceeded to argument.
At the conclusion of the March 4, 2022 hearing, the court denied
Appellant’s motion to bar retrial. Specifically, the court decided that the
Commonwealth’s actions did not violate Brady in this case where the relevant
information concerning Detective Nordo’s misconduct was in the public domain
at the time of Appellant’s September 2018 trial. Regarding the 2005 incident
that the Commonwealth did not disclose to trial counsel, the court decided
such action was not a Brady violation (notwithstanding Attorney Boyette’s
position that it was) because the 2005 incident involving Detective Nordo
would not be material evidence that would affect the outcome of Appellant’s
trial. Regarding the grand jury proceedings pertaining to Detective Nordo, the
court explained that such information was secret and could not be shared
outside the grand jury room.7 Even if the Commonwealth violated Brady,
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7 The court explained that Detective Nordo was indicated in 2019, after
Appellant’s second trial. The court said that it was not until the indictment
that Detective Nordo’s coercive interrogation techniques actually came to
light, including threatening individuals with prosecution, intimidating
(Footnote Continued Next Page)
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however, the court ruled that its conduct was not intentional and/or reckless
as required to bar a retrial under double jeopardy principles. Nevertheless,
the court determined that the information regarding Detective Nordo
constituted after-discovered evidence, which entitled Appellant to a new trial.8
(See id. at 60-79).
Appellant filed a notice of appeal on Monday, April 4, 2022.9 On June
2, 2022, Appellant filed a voluntary concise statement of errors complained of
on appeal pursuant to Pa.R.A.P. 1925(b).
Appellant raises three issues for our review:
Where the Commonwealth conceded, and the [trial] court
granted, a motion for a new trial based on a violation of
[Brady], did the doctrine of collateral estoppel and the
coordinate jurisdiction rule bar a second judge from
reopening that decision months later when [A]ppellant
sought to bar retrial on double jeopardy grounds?
Should the motion to dismiss have been granted where
there was both intentional and reckless suppression of
evidence by the Commonwealth as the [c]ourt seemed to
find?
Assuming that the [trial c]ourt could reopen this matter,
were there insufficient factual and legal bases for finding
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witnesses into signing false statements, giving individuals cash rewards for
providing fabricated statements, and various sex crimes.
8 Although there were some references to Detective Williams during the
hearings, Appellant did not develop any argument concerning Detective
Williams’ alleged misconduct in any meaningful way at the hearings or on
appeal. Therefore, we do not discuss any misconduct by Detective Williams
in this decision.
9 We discuss the propriety of the appeal infra.
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that no Brady violation had occurred?
(Appellant’s Brief at 2).
As a preliminary matter, we note that a trial court must make a
determination of frivolousness following the denial of a motion to dismiss on
double jeopardy grounds. See Pa.R.Crim.P. 587(b)(3) and (4) (explaining
that following hearing on motion to dismiss based on double jeopardy
violation, trial court shall enter on record statement of findings of fact and
conclusions of law, and in case where judge denies motion, findings of fact
shall include specific findings as to frivolousness). If the court decides the
motion was frivolous, the trial court must advise the appellant that he has the
right to file a petition for review of that order within 30 days. See Pa.R.Crim.P.
587(b)(5). If the court decides the motion was not frivolous, the court must
advise the appellant that the order is immediately appealable as a collateral
order. See Pa.R.Crim.P. 587(b)(6).
In Commonwealth v. Gross, 232 A.3d 819 (Pa.Super. 2020) (en
banc), appeal denied, 663 Pa. 352, 242 A.3d 307 (2020), this Court addressed
an appeal from an order dismissing appellant’s double jeopardy motion on the
merits, even though the trial court did not make any findings regarding
frivolousness. See id. (explaining that order denying double jeopardy motion
that makes no finding that motion is frivolous is collateral order under
Pa.R.A.P. 313; noting that whether trial court followed or deviated from Rule
587 does not deprive this Court of appellate jurisdiction; our jurisdiction is
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conferred under Rule 313 of appellate rules and enduring precedent). See
also Commonwealth v. Ramos, No. 1552 EDA 2021 (Pa.Super. filed Dec.
13, 2022) (unpublished memorandum)10 (relying on Gross and holding that
order denying appellant’s motion to dismiss on double jeopardy grounds was
immediately appealable as collateral order even though trial court did not
make specific finding as to frivolousness).
Here, the trial court’s March 4, 2022 order denying relief did not state
whether Appellant’s motion was frivolous, nor did the court issue any findings
of fact on this issue. Nevertheless, we deem the order appealable as a
collateral order and proceed to a merits review. See Gross, supra; Ramos,
supra.
As a second preliminary matter, we note the general rule that “to
preserve their claims for appellate review, appellants must comply whenever
the [trial] court orders them to file a Statement of Matters Complained of on
Appeal pursuant to [Rule] 1925. Any issues not raised in a [Rule] 1925(b)
statement will be deemed waived.” Commonwealth v. Castillo, 585 Pa.
395, 403, 888 A.2d 775, 780 (2005) (quoting Commonwealth v. Lord, 553
Pa. 415, 420, 719 A.2d 306, 309 (1998)). Where the court does not order an
appellant to file a Rule 1925(b) statement, and an appellant files one on his
own accord, he is limited on appeal to raising only those issues he presented
____________________________________________
10 See Pa.R.A.P. 126(b) (stating non-precedential decisions of Superior Court
filed after May 1, 2019 may be cited for persuasive value).
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in his voluntary Rule 1925(b) statement. See Commonwealth v. Nobles,
941 A.2d 50 (Pa.Super. 2008); Commonwealth v. Snyder, 870 A.2d 336(Pa.Super. 2005).
Here, Appellant voluntarily filed a Rule 1925(b) statement on June 2,
2022. In his concise statement, Appellant raised the following single issue:
“Did the [c]ourt commit error when the [c]ourt denied the Motion for Double
Jeopardy after [granting] a new trial, based on the Commonwealth’s
intentional and/or reckless Brady violations which violated his right to a fair
trial?” (Rule 1925(b) Statement, filed 6/2/22, at 1). Significantly, Appellant
did not raise in his concise statement his first issue on appeal concerning
whether the trial court violated the coordinate jurisdiction rule or the doctrine
of collateral estoppel; or his third issue concerning whether there were
“insufficient factual or legal bases” for the court to find that no underlying
Brady violation occurred. Rather, the sole issue Appellant preserved in his
concise statement was his second issue raised on appeal, namely, whether
the court erred in denying the motion to dismiss based on the
Commonwealth’s intentional and/or reckless conduct. Thus, Appellant’s first
and third issues are waived, and we limit our review to Appellant’s second
appellate issue.11 See Nobles, supra; Snyder, supra.____________________________________________
11 Based on our conclusion that the court properly denied Appellant’s motion
to dismiss because the Commonwealth’s actions did not amount to intentional
(Footnote Continued Next Page)
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Our standard and scope of review in this case are as follows:
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), appeal
denied, 633 Pa. 775, 126 A.3d 1282 (2015) (quoting Commonwealth v.
Kearns, 70 A.3d 881, 884 (Pa.Super. 2013), appeal denied, 624 Pa. 663, 84
A.3d 1063 (2014)).
In his second issue on appeal,12 Appellant argues that the
Commonwealth’s conduct in this case was both intentional and reckless.
____________________________________________
or reckless conduct, Appellant’s first and third issues would not have entitled
him to relief even if he properly preserved them.
12 We note that Appellant’s argument section in his principal brief does not
directly track each question to be argued and seems to overlap the arguments
for each issue raised in the statement of questions presented, in violation of
Pa.R.A.P. 2119. See Pa.R.A.P. 2119(a) (providing that argument section shall
be divided into as many parts as there are questions to be argued). We
discern Appellant’s arguments related to the Commonwealth’s alleged
intentional and/or reckless conduct from both Appellant’s principal brief and
his reply brief.
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Specifically, Appellant contends that the Commonwealth operated under a
policy of “if you don’t ask, you don’t get” concerning what information to
disclose. (Appellant’s Brief at 14). Appellant claims that the only information
regarding Detective Nordo’s improper conduct that was available in the public
domain at the time of Appellant’s 2018 trial was from newspaper articles.13
Appellant acknowledges that there were transcripts in Powell, wherein the
charges against a defendant were dismissed based on Detective Nordo’s
improper conduct, but Appellant insists that those transcripts were not widely
disseminated and there was no evidence that Appellant’s counsel knew of the
events in that case. Appellant emphasizes that the Powell case was
completely separate from Appellant’s case, and it was only one of many cases
still being tried well after Detective Nordo had been terminated from the police
force. Appellant maintains that the depth and breadth of Detective Nordo’s
misconduct was unknown to trial counsel despite any newspaper articles or
the Powell transcripts evidencing Detective Nordo’s improper conduct.
Appellant stresses that the Commonwealth abdicated its responsibility to turn
over Brady material that was not in the public domain. Appellant suggests
____________________________________________
13 Appellant states that the newspaper articles were published on April 13,
2017 and August 23, 2017 referencing Detective Nordo’s termination by the
Police Department. Another article, published July 3, 2018, discussed the
Powell case. Appellant claims that the articles addressed Detective Nordo’s
improper contacts with witnesses and placing money into the inmate accounts
of a Commonwealth witness. Appellant claims “[t]his was a far cry from the
coercing of statements and manipulation of evidence that underlay
[Appellant’s] convictions.” (Id. at 26-27).
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the Commonwealth had compiled a “Nordo packet” containing evidence of all
of Detective Nordo’s improper conduct in various cases, which it failed to
disclose to Appellant prior to his 2018 trial.14
Appellant further submits that the Commonwealth misled the court and
defense counsel prior to trial when it filed its motion in limine seeking to
____________________________________________
14 Appellant states: “The court found that the conduct was both reckless and
intentional based on the email exchanges between ADA Krouse, Deputy Chief
Cameron and Chief Voci in instructing Krouse ‘not to call Nordo and to only
turn over Nordo materials if requested by the defense.’” (Id. at 19) (citing
Trial Court Opinion at 8).
This is a misrepresentation of the trial court’s opinion without proper context
for the court’s statement. The trial court opinion reproduces an email from
then-Assistant Chief Cameron to the Homicide Unit ADAs informing the unit
that the charges in Powell had been dismissed due to Detective Nordo’s
misconduct. The details of the email discuss how Detective Nordo put money
on prison accounts of prisoners, gave his cell phone number to some
prisoners, and indicated to two prison witnesses that he would go to their
backtime judges and try to help them out. The court goes on to state:
In August of 2018, trial ADA Matthew Krouse emailed his
superiors to inquire about whether Nordo could be called as
a witness in the instant matter and whether he needed to
turn over any information regarding Nordo to the defense.
Cameron and ADA Anthony Voci—Deputy Chief of the
Homicide Unit at the time—instructed ADA Krouse not to call
Nordo and to only turn over Nordo materials if requested by
the defense. This email would be evidence of a reckless or
intentional Brady violation if the information to which
Cameron referred was not already out in the public
domain—but it was. The information known about Nordo
detailed by Cameron in the email was readily available to
[Appellant] through the notes of testimony from the Powell
case as well as an April 2018 Philadelphia Inquirer Article.
(Trial Court Opinion at 8).
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preclude reference to Detective Nordo’s termination from the police force
based on improper conduct. Appellant claims the Commonwealth was aware
of more information than it had disclosed at the time of the motion in limine
concerning Detective Nordo’s actions. Appellant contends that the motion in
limine “essentially discussed improper contact with witnesses and putting
money in inmate accounts, [but] the Powell case revealed so much more;
specifically, [Detective] Nordo had fabricated and manipulated evidence, and
his investigative techniques were suspect.” (Id. at 30).15 Appellant contends
that “[i]t is one thing where the defense does not do its homework, but it is
quite another when the Commonwealth recklessly or intentionally misleads.”
(Id. at 32). Based on Detective Nordo’s actions in Powell, Appellant
emphasizes that Detective Nordo had elicited the statements of Troy Devlin,
Jeffrey Jones, and Rafael Spearman, in Appellant’s case under “questionable
circumstances resembling the tactics used in Powell.” (Id. at 33). Appellant
insists that the Commonwealth “saw its case potentially unraveling if this
____________________________________________
15 Appellant insists the Commonwealth failed to disclose the following facts to
Appellant prior to trial: (1) Detective Nordo’s misconduct in other cases
included coercing witnesses and making improper promises to them for the
purpose of obtaining statements; (2) Detective Nordo had unauthorized visits
to incarcerated Commonwealth witnesses and deposited monies into their
prison accounts; (3) Detective Nordo lied about whether he had prior
relationships with various witnesses, and one was heard on a recorded prison
call telling Detective Nordo that he loved him; this witness referred to him as
“Coach”; (4) Detective Nordo took statements from an individual who was
under the influence of narcotics at the time and suggested to the witness what
was said in the statement; and (5) Detective Nordo kept Powell’s codefendant
in custody for 17 hours before putting his statement in writing. (Id. at 31).
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Brady material was disclosed…[and] it chose to purposefully and intentionally
hide this evidence.” (Appellant’s Reply Brief at 21). Appellant avers that the
only reason he did not oppose the Commonwealth’s motion in limine was
because the Commonwealth only represented Detective Nordo’s financial
misappropriation allegations, which was not relevant to Appellant’s case; had
Appellant known about Detective Nordo’s fabrication of evidence and coercing
of statements, Appellant would have “delved” into these allegations and
sought more discovery. (Id. at 17). Appellant concludes the
Commonwealth’s actions in this case were intentional and/or reckless
violations of Brady compelling dismissal of this case. We disagree.
This Court has explained:
The double jeopardy clause of the Pennsylvania Constitution
prohibits retrial of a defendant when the conduct of the
prosecutor is intentionally undertaken to prejudice the
defendant to the point of denying him a fair trial. 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. 2016) (internal
citations omitted). See also Commonwealth v. Smith, 532 Pa. 177, 186,
615 A.2d 321, 325 (1992) (holding double jeopardy clause of Pennsylvania
Constitution prohibits retrial of defendant not only when prosecutorial
misconduct is intended to provoke defendant into moving for mistrial, but also
when conduct of prosecutor is intentionally undertaken to prejudice defendant
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to point of denial of fair trial). Compare Kearns, supra (holding prosecutor’s
gross negligence in failing to obtain and produce defendant’s post-arrest
written statement to police and statement of principal eyewitness was
insufficient basis upon which to bar retrial on double jeopardy grounds;
appropriate remedy in such circumstances is new trial). Further, even where
a prosecutor suppresses evidence in violation of Brady, but it is not conscious
of its relevance until after trial, such conduct “merits relief…in the form of a
new trial, but not the application of the double jeopardy bar precluding the
retrial of this case.” Commonwealth v. King, 271 A.3d 437, 449-50
(Pa.Super. 2021).
In Commonwealth v. Johnson, 659 Pa. 277, 231 A.3d 807 (2020),
our Supreme Court considered whether the double jeopardy clause 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.” Johnson, supra at 283, 231 A.3d at 810. The
relevant facts of Johnson are as follows. During investigation of the victim’s
death, police recovered a red baseball cap located in the middle of the street
approximately nine feet from the victim’s body. The cap was assigned a
property receipt number. Shortly after the murder, the victim’s friend Ms.
Williams gave a statement to police. Ms. Williams was with the victim on the
night of the murder and described the details of her observations to police.
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Ms. Williams also explained that the victim had worn a black baseball cap on
the night in question. After the shooting, Ms. Williams picked up the black
baseball cap, which had a bullet hole in it, and she gave it to police while
giving her statement. The black baseball cap was assigned a separate
property receipt number and was submitted to the crime lab for testing.
Testing revealed the presence of the victim’s blood under the brim of the black
cap. Several years later, upon new information connecting the appellant to
the crime, police obtained a sample of the appellant’s DNA and submitted it
for testing along with the red cap. Testing showed the appellant was a
contributor to the DNA in the sweatband of the red cap.
The Commonwealth subsequently proceeded with its prosecution of the
case as if there was only one baseball cap—the red one—which the
Commonwealth argued contained both the victim’s blood and the appellant’s
DNA. Nevertheless, the Commonwealth’s argument was factually inaccurate,
as neither cap had DNA from both individuals.
At trial, the Commonwealth’s crucial piece of physical evidence was the
red baseball cap, and the prosecutor repeatedly suggested that the appellant
had shot the victim at point blank range. Consistent with the Commonwealth’s
factually inaccurate theory of the case, the lead crime-scene investigator
testified at trial that when he recovered the red baseball cap from the scene,
he saw fresh blood underneath the brim of the cap. The Commonwealth’s
forensic scientist also testified that the victim’s blood and the appellant’s DNA
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were both found on “the hat.” In closing argument, the prosecutor again told
the jury that the DNA evidence showed the appellant’s sweat on the
sweatband of the red cap, as well as the victim’s blood on the brim.
In PCRA proceedings, the appellant learned the two caps, a red one and
a black one, had been analyzed in connection with the Commonwealth’s case,
and that the victim’s blood was found only on the black one. The
Commonwealth thereafter agreed that the appellant was entitled to a new
trial. The appellant subsequently filed a motion to dismiss based on double
jeopardy grounds. The appellant learned during discovery related to the
motion to dismiss, that the Commonwealth had “misunderstood its own
evidence and conflated the findings related to the red and black caps.” Id. at
288, 231 A.3d at 813-14. Notwithstanding the “unimaginable mistakes by
experienced police officers and an experienced prosecutor” made in the case,
the trial court found no intentional misconduct or bad faith on the
Commonwealth’s part and denied the appellant’s motion to dismiss. Id. at
292, 231 A.3d at 815-16. This Court affirmed the trial court’s ruling.
On appeal to the Supreme Court, the Court initially decided that the
record supported the trial court’s credibility determinations in favor of the
Commonwealth. The Court stated that the trial court had personally heard
extensive testimony from numerous witnesses involved in the prosecution,
actively questioned many of the witnesses, and ultimately credited the
prosecutor’s testimony and found the Commonwealth had not acted with the
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intent to deprive the appellant of a fair trial. Id. at 297, 231 A.3d at 818-19.
Regarding the scope of double jeopardy protections, the Supreme Court
held that “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.” Id. at 309, 231
A.3d at 826. In so holding, the Court clarified that it did not “suggest that all
situations involving serious prosecutorial error implicate double jeopardy[.]”
Id. Rather, “retrial is only precluded where there is prosecutorial
overreaching—which, in turn, implies some sort of conscious act or
omission.” Id. (emphasis in original).
Applying its holding to the facts of the case at hand, the Court
emphasized the trial court’s findings that the prosecutor had made “almost
unimaginable” mistakes, which “dovetailed” with other serious errors by law-
enforcement officers and other police personnel such as the DNA lab
technician. Id. Recounting the errors in the case, the Court highlighted: (1)
the prosecutor’s failure to notice that there were two property receipt numbers
for the two caps, and his failure to verify whether the receipt numbers
pertained to different caps; (2) the prosecutor’s failure to obtain a
criminalistics report which would have summarized the evidence and revealed
that there were two different caps involved; (3) the failure of the detective
who had interviewed Ms. Williams on the night of the shooting to recall the
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evidence of the black baseball cap and Ms. Williams’ statement that the victim
had worn the black cap on the night of the murder; (4) the false testimony
from the lead crime scene investigator at trial that he saw fresh drops of blood
under the brim of the red cap on the night of the murder, which was factually
inaccurate. On this point, the Court stated it could not “escape the conclusion
that the officer testified to something that he did not actually observe[.]” Id.
at 311, 231 A.3d at 827. Thus, the Supreme Court held that the
Commonwealth’s actions 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.” Id. Such actions
prejudiced the appellant to the point of a denial of a fair trial, immunizing the
appellant from retrial for the murder of the victim. See also Commonwealth
v. Sanchez, 262 A.3d 1283 (Pa.Super. 2021), appeal denied, ___ Pa. ___,
278 A.3d 853 (2022) (affirming order denying motion to dismiss on double
jeopardy grounds where Commonwealth failed to disclose DNA evidence from
fingernail clippings of victim to defense before or during trial;
Commonwealth’s actions were not intentional misconduct and actions did not
rise to level of type of recklessness in Johnson).
Instantly, the trial court explained its denial of relief as follows:
[T]o the extent that a Brady violation was assented to by
the Homicide calendar judge, the violation certainly did not
amount to an intentional or reckless suppression of
evidence, warranting a dismissal. [Appellant] points to a
series of internal emails exchanged amongst ADA Matthew
Krouse and the Chief and Assistant Chief of the Philadelphia
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District Attorney’s Homicide Unit in the summer of 2018,
prior to [Appellant’s] trial, in support of his claim of a
reckless or intentional Brady violation. On June 6, 2018,
then-[District Attorney’s Office] Homicide Chief Edward
Cameron sent an email to the Homicide Unit ADAs informing
the unit that the case of Commonwealth v. Darnell
Powell had been dismissed due to Nordo’s misconduct. In
that email, Mr. Cameron details what is known to the office
at that time. Cameron wrote:
“The only thing we know is that Nordo put money on
the prison accounts of the prisoners listed in the above
attachments. He also gave his cell number to some
prisoners and talked to them in recorded prison calls.
In Powell, he indicated to the two prison witnesses
that he would go to their backtime Judges and would
try and help them out.”
In August of 2018, trial ADA Matthew Krouse emailed his
superiors to inquire about whether Nordo could be called as
[a] witness in the instant matter and whether he needed to
turn over any information regarding Nordo to the defense.
Cameron and ADA Anthony Voci—Deputy Chief of the
Homicide Unit at the time—instructed ADA Krouse not to call
Nordo and to only turn over Nordo materials if requested by
the defense. This email would be evidence of a reckless or
intentional Brady violation if the information to which
Cameron referred was not already out in the public
domain—but it was.[16] The information known about Nordo
detailed by Cameron in the email was readily available to
[Appellant] through the notes of testimony from the Powell
case as well as an April 2018 Philadelphia Inquirer Article.
Although this court does not find a Brady violation,
[Appellant] is entitled to a new trial based on after
discovered evidence due to the information uncovered by
the investigating grand jury and the recent conviction of
____________________________________________
16 See Commonwealth v. Roney, 622 Pa. 1, 79 A.3d 595 (2013), cert.
denied, 574 U.S. 829, 135 S.Ct. 56, 190 L.Ed.2d 56 (2014) (explaining that
Brady is not violated when appellant knew, or with reasonable diligence could
have uncovered, evidence in question, or when evidence was available to
defense from other sources).
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Nordo. …
* * *
Here, the additional evidence of former-detective Nordo’s
misconduct as well as his conviction qualifies as after-
discovered evidence. Although the defense did not present
the testimony of the trial witnesses at the [evidentiary]
hearing, a review of the trial record reveals that witnesses
recanted their testimony at trial stating that Nordo, who was
involved in their interview, either promised them something
or threatened them with prosecution. Such evidence, along
with Nordo’s conviction is not merely corroborative or
cumulative; would not be used solely to impeach the
credibility of a witness and would likely result in a different
verdict if a new trial were granted. However, this court does
not find that retrial is barred due to an intentional or
reckless Brady violation.
(Trial Court Opinion, filed 6/10/22, at 7-9).
Initially, we see no reason to disrupt the court’s implicit determination
that the testimony from each witness at the February 15, 2022 and March 4,
2022 hearings was credible. See Graham, supra. See also Johnson,
supra at 296, 231 A.3d at 818 (discussing great deference afforded to trial
courts regarding credibility determinations). The collective testimony from
the witnesses at the hearings demonstrate that at the time of Appellant’s 2018
trial, the Commonwealth was aware: (1) there was a 2005 sexual incident
involving Detective Nordo; (2) charges against a defendant had been
dismissed in the Powell case due to Detective Nordo’s misconduct in the
nature of putting money on inmate’s books and promising to help with
witnesses’ backtime; and (3) there was an ongoing grand jury investigation
surrounding Detective Nordo’s misconduct. Regarding the 2005 sexual
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incident, although the Commonwealth did not disclose this evidence to
defense counsel prior to Appellant’s 2013 or 2018 trials, we agree with the
trial court that it would have been completely irrelevant to the facts at issue
in Appellant’s case. Regarding the allegations against Detective Nordo in
Powell, the transcripts were in the public domain and defense counsel could
have ascertained that information and moved for further discovery if defense
counsel had believed the allegations in Powell were consistent with witness
recantations in Appellant’s first 2013 trial. Concerning the grand jury
investigation, the investigation was kept secret and the Commonwealth
attorneys involved in this case were not privy to those details.
Even if there was a Brady violation committed in this case, we agree
with the trial court that any Brady violation was not intentionally undertaken
to prejudice defendant to point of denial of fair trial. See Smith, supra. We
further agree with the trial court that the Commonwealth’s actions here did
not amount to the type of “prosecutorial overreaching” whereby the
Commonwealth acted “with a conscious disregard for a substantial risk” of
depriving Appellant of a fair trial. Johnson, supra at 309, 231 A.3d at 826.
Rather, the record makes clear that at the time of Appellant’s September 2018
trial, the Commonwealth was not yet aware of the breadth or depth of
Detective Nordo’s misconduct, the details of which were still unfolding at that
time. It was not until Detective Nordo’s 2019 indictment that the
Commonwealth learned of Detective Nordo’s coercive interrogation tactics,
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which might have affected the witness statements against Appellant in this
case. Under these facts, the remedy due to Appellant is precisely what the
court ordered here and what the Commonwealth agreed to—a new trial. See
Kearns, supra. Based upon the foregoing, we affirm the order denying
Appellant’s motion to dismiss the charges against him based on double
jeopardy grounds.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/11/2023
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