Com. v. Thomas, R. ( 2023 )

J-S04023-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37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 NOVEMBER 13, 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 vacate and remand for further
proceedings.
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
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* Retired Senior Judge assigned to the Superior Court.
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group of people was standing around him as he gasped for
air. Ashmore was unable to answer the officers’ questions
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
(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
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homicide detectives. Spearman was found unavailable to testify after he
refused to leave his cell, walk to the witness stand, or acknowledge his name
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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accounts and improperly communicating with witnesses and
defendants outside of his official duties. There was no
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
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who was under the influence of illegal narcotics and
suggested everything that ultimately was said in the
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 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 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.5 Even if the Commonwealth
violated Brady, 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
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5 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
witnesses into signing false statements, giving individuals cash rewards for
providing fabricated statements, and various sex crimes.
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trial.6
Appellant filed a notice of appeal on Monday, April 4, 2022.7 On June
2, 2022, Appellant filed a voluntary concise statement of errors complained of
on appeal pursuant to Pa.R.A.P. 1925(b). On September 11, 2023, this Court
issued a disposition affirming the trial court’s denial of Appellant’s motion to
bar retrial. Subsequently, both parties filed petitions for reargument and/or
panel reconsideration. Based on the parties’ petitions, this Court withdrew its
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6 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.
7 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 conferred under Rule 313
of appellate rules and enduring precedent). 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. See id.-8-
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prior disposition and granted panel reconsideration.
In his principal brief, Appellant had raised 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
that no Brady violation had occurred?
(Appellant’s Brief at 2).8
As a preliminary matter, we must address certain claims raised in the
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8 In our initial disposition, we had deemed Appellant’s first and third issues
waived for failure to preserve them in his Rule 1925(b) statement.
Specifically, 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, we had limited
our review to Appellant’s second issue on appeal. See Commonwealth v.
Castillo, 585 Pa. 395, 403, 888 A.2d 775, 780 (2005) (explaining any issues
not raised in Rule 1925(b) statement are waived).
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parties’ petitions for reargument. Significantly, in its petition for reargument,
the Commonwealth admits:
[T]he Commonwealth unintentionally included two
misstatements of material fact regarding who was consulted
and what was known about former [D]etective Philip Nordo
at the time of [Appellant’s] September 2018 trial. One of
those misstatements formed the basis for this Court’s ruling.
These misstatements formed a substantial part of the
Commonwealth’s argument as to why a violation of [Brady]
was not reckless or intentional. Because correcting these
misstatements requires the consideration of evidence not in
the existing record, and because that additional evidence at
least potentially impacts the resolution of issues in the case,
the Commonwealth respectfully requests that this court
vacate its decision and remand for the limited purpose of
resolving these two issues of fact at an evidentiary hearing.
(Commonwealth’s Petition for Reargument, filed 9/25/23, at 1-2). The
Commonwealth then details the specific misstatements at issue. (See id. at
3-4). The Commonwealth further asks this Court to remand, stating:
The Commonwealth did not intentionally make inaccurate
assertions of fact in its appellate brief. Instead, they
occurred because of a miscommunication within the District
Attorney’s Office: the undersigned prosecutor from the
Appeals Unit who drafted the brief, proceeding in good faith,
was unaware of facts known to other attorneys in the office.
These facts were not apparent from the existing record. The
undersigned prosecutor who drafted the Commonwealth’s
brief for appellee did not become aware of these facts until
this Court issued its decision and the attorneys with such
actual knowledge informed him of them.
The inaccuracy of the aforementioned misstatements
cannot be corrected on the current record for two reasons.
First, the existing record is either ambiguous or silent as to
their inaccuracy. Second, because the actual facts are
based on non-record evidence—namely, the post-
evidentiary hearing letter from [Assistant District Attorney
Michael] Garmisa to defense counsel, attached hereto as
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Exhibit A. Accordingly, a remand for further development
of the evidence is necessary to ensure a complete record.
(Id. at 5). In his petition for reargument and/or panel reconsideration,
Appellant discusses the Commonwealth’s concessions and joins its request for
a remand. (See Appellant’s Petition for Reargument, filed 9/25/23, at 1, 9-
11).9
Based on the parties’ agreement, the best resolution of this case is to
remand for another evidentiary hearing, at which time any errors in the record
can be corrected and any new evidence can be heard by the trial court prior
to the court’s ruling on Appellant’s motion to bar retrial. Accordingly, we
vacate and remand for further proceedings.
Order vacated. Case remanded for further proceedings. Jurisdiction is
relinquished.
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9 Appellant also sought reargument and/or panel reconsideration, challenging
this Court’s initial waiver analysis. Appellant claims that “[w]hile the ways in
which error was claimed were not specifically delineated, the issue in the
1925(b) Statement specifically stated that the [c]ourt generally erred in
denying the motion to dismiss. It is respectfully submitted that [Appellant’s]
question was within the rules and allowed for subsidiary questions to be
raised.” (Id. at 8). Appellant further insists that “the broad term error [raised
in the concise statement] would include violations of the coordinate
jurisdiction and collateral estoppel doctrines….” (Id. at 9). We disagree with
Appellant’s position and did not grant panel reconsideration on this ground.
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Date: 11/13/2023
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