Com. v. Perez, Y.

J-S63020-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
YARED ABDIEL PEREZ :
:
Appellant : No. 259 WDA 2018
Appeal from the Order January 23, 2018
In the Court of Common Pleas of Erie County Criminal Division at No(s):
CP-25-CR-0001535-2017
BEFORE: OTT, J., MURRAY, J., and STEVENS*, P.J.E.
MEMORANDUM BY MURRAY, J.: FILED OCTOBER 25, 2018
Yared Abdiel Perez (Appellant) appeals from the order denying his
motion to dismiss charges based on double jeopardy. We affirm.
The trial court detailed the facts and procedural history of this case as
follows:
On July 17, 2017, an Information was filed against Appellant
on six criminal counts, including: (1) Violation of the Controlled
Substance, Drug, Device and Cosmetic Act, Possession with Intent
to Deliver; (2) Liquefied Ammonia Gas, Precursors and Chemicals;
(3) Operating A Methamphetamine Laboratory; (4) Violation of
the Controlled Substance, Drug, Device and Cosmetic Act,
Possession of Drug Paraphernalia; (5) Recklessly Endangering
Another Person; and (6) Endangering Welfare of Children.
A jury trial was held for the above-captioned matter before the
[trial court] on December 12th and 13th, 2017. Appellant was the
last witness to testify in the jury trial on December 13th, 2017.
Assistant District Attorney Jared M. Trent, while cross-examining
Appellant, inquired as to how Appellant learned of the charges
against [him] in the instant matter. In response to this particular
line of questioning, Appellant answered he learned of the charges
____________________________________
* Former Justice specially assigned to the Superior Court.
J-S63020-18
from his “parole agent.” Specifically, the exchange between ADA
Trent and Appellant proceeded, in pertinent part, as follows:
Q: If you had been charged, would you have known about
this?
A: What?
Q: If you were charged in this case?
A: I was charged in this case.
Q: How did you find out about that?
A: When they arrested me. I got a call from my – I got a
call from my parole agent, he told me to come in. It was
weird because – it was weird because he never calls me,
never. So when he called me, he told me to come there and
that's how I found out about it.
(See Notes of Testimony, Jury Trial, Day 2, Dec. 13, 2017, pg.
168:14-24).
Upon eliciting this response from Appellant, ADA Trent ceased
cross-examining Appellant and expressed his concern with this
[t]rial [c]ourt. (Id. at 168:20-169:1). Appellant, through
Attorney Clelland, orally moved for a mistrial. (Id. at 171:11-19).
This [t]rial [c]ourt granted Appellant’s request for a mistrial, and
the jury was discharged. (Id. at 171:21-22).
On January 10, 2018, Appellant filed, through Attorney
Clelland, the present “Motion to Dismiss Information – Double
Jeopardy” (hereinafter “Motion to Dismiss”). By Order dated
January 11th, 2018, a hearing was scheduled on January 17 th,
2018 for Appellant’s Motion to Dismiss. On January 17th, 2018,
said hearing was held, and this [c]ourt heard testimony and oral
arguments from both counsel. At said hearing, ADA Trent stated
he did not know the answer to the particular question he asked
Appellant during trial, i.e., that Appellant learned of the charges
against him in the instant matter through his parole agent. (See
Motion to Dismiss Transcript, Jan. 17, 2018, at pg. 11:11-13;
14:9-12). Attorney Trent also indicated he did not intentionally
provoke Appellant to elicit this particular response and argued
such an inquiry does not “constitute either gross negligence or
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intentional misconduct.” (Id. at 15:9). ADA Trent additionally
conceded the line questioning of Appellant at issue constituted an
“inartful” inquiry. (Id. at 14).
By Opinion and Order January 22nd, 2018, this [t]rial [c]ourt
denied Appellant’s “Motion to Dismiss Information – Double
Jeopardy.” Therein, pursuant to Pennsylvania Rule of Criminal
Procedure 587(B)(4) and (6), this [t]rial [c]ourt also found
Appellant’s Motion to Dismiss on double jeopardy grounds was not
frivolous. Thus, this [t]rial [c]ourt advised Appellant that said
Order was “immediately appealable as a collateral order pursuant
to Pa.R.Crim.P. 587(B)(6).” Pa.R.Crim.P. 587(B)(4) & (6). Thus,
on February 16th, 2018, Appellant filed his interlocutory Notice of
Appeal wherein Appellant appealed this [t]rial [c]ourt’s Order
dated January 22, 2018. By Order dated the same day, on
February 16th, 2018, this [t]rial [c]ourt directed Appellant to file
his concise statement of matters complained of on appeal within
twenty-one days of the entry of said Order. On March 6th, 2018,
Appellant filed his Concise Statement of Matters Complain[ed] of
on Appeal.
On March 16th, 2018, the Superior Court of Pennsylvania issued
a Per Curiam Order directing Attorney Clelland to show cause in
the form of a letter why Appellant’s appeal at Docket Number 259
WDA 2018 should not be quashed as a premature appeal from this
[t]rial [c]ourt’s interlocutory Order dated January 22, 2018. By
letter dated March 20th, 2018, Attorney Clelland responded to the
Pennsylvania Superior Court’s Order. Therein, Attorney Clelland
noted he was enclosing a copy of this [t]rial [c]ourt’s Order dated
January 22nd, 2018, wherein this [t]rial [c]ourt advised Appellant
of his right to appeal pursuant to Pennsylvania Rule of Criminal
Procedure 587(B)(6).
Trial Court Opinion, 3/29/18, at 1-3.
On appeal, Appellant presents a single issue for review:
WHETHER THE TRIAL COURT COMMITTED AN ABUSE OF
DISCRETION AND/OR ERROR OF LAW WHEN IT DENIED
APPELLANT’S MOTION TO DISMISS CRIMINAL INFORMATION
BASED ON THE FACT THAT DOUBLE JEOPARDY HAD ATTACHED?
Appellant’s Brief at 3.
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With respect to Appellant’s double jeopardy claim, our scope and
standard of review is as follows:
An 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. Graham, 109 A.3d 733, 736 (Pa. Super. 2015) (citation
omitted).
The prohibition against double jeopardy was designed to protect
individuals from being tried or punished more than once for the same
allegation or offense. Commonwealth v. Ball, 146 A.3d 755, 759 (Pa.
2016). The Fifth Amendment of the United States Constitution provides, in
relevant part, that no person shall “be subject for the same offence to be twice
put in jeopardy of life or limb[.]” U.S. Const. amend. V. Likewise, Article I, §
10 of the Pennsylvania Constitution provides that “No person shall, for the
same offense, be twice put in jeopardy of life or limb.” Pa. Const. art. I, § 10;
see also Commonwealth v. Minnis, 83 A.3d 1047, 1049 n.1 (Pa. Super.
2014) (en banc).
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In assessing a double jeopardy claim grounded in prosecutorial
misconduct, we are guided by the following:
The Double Jeopardy Clauses of the Fifth Amendment to the
United States Constitution and Article 1, § 10 of the Pennsylvania
Constitution protect a defendant from repeated criminal
prosecutions for the same offense. Ordinarily, the law permits
retrial when the defendant successfully moves for mistrial. If,
however, the prosecution engages in certain forms of intentional
misconduct, the Double Jeopardy Clause bars retrial. Article I, §
10, which our Supreme Court has construed more broadly than its
federal counterpart, bars retrial not only when prosecutorial
misconduct is intended to provoke the defendant into moving for
a mistrial, but also when the conduct of the prosecutor is
intentionally undertaken to prejudice the defendant to the point
of the denial of a fair trial. An error by a prosecutor does not
deprive the defendant of a fair trial. However, where the
prosecutor’s conduct changes from mere error to intentionally
subverting the court process, then a fair trial is denied.
Commonwealth v. Adams, 177 A.3d 359, 371 (Pa. Super. 2017) (citations
omitted). “[W]hether a dismissal is warranted turns on whether the
Commonwealth intended to deprive the defendant of a fair trial. As [we have]
explained, dismissal is an appropriate remedy in such a case because a
mistrial would be an inadequate remedy for systematic intentional
prosecutorial misconduct[.]” Id. at 372.
Additionally:
Dismissal of criminal charges punishes not only the prosecutor . .
. but also the public at large, since the public has a reasonable
expectation that those who have been charged with crimes will be
fairly prosecuted to the full extent of the law. Thus, the sanction
of dismissal of criminal charges should be utilized only in the most
blatant cases. Given the public policy goal of protecting the public
from criminal conduct, a trial court should consider dismissal of
charges where the actions of the Commonwealth are egregious
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and where demonstrable prejudice will be suffered by the
defendant if the charges are not dismissed.
Id. (citations omitted).
Appellant argues that the trial court erred in dismissing his double
jeopardy claim because the Commonwealth’s questioning of Appellant during
his first trial amounted to gross negligence, which he asserts is a sufficient
level of prosecutorial misconduct to bar retrial on double jeopardy grounds.
Appellant contends that “intent is of no concern when determining whether
negligent or grossly negligent behavior occurred.” Appellant’s Brief at 8
(emphasis in original).
Appellant’s argument is not consistent with our jurisprudence relating
to double jeopardy claims based on prosecutorial misconduct. We have stated
that “gross negligence on the part of the Commonwealth is never a sufficient
basis upon which to bar retrial on double jeopardy grounds.”
Commonwealth v. Kearns, 70 A.3d 881, 886 (Pa. Super. 2013) (emphasis
in original). As we further explained:
[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
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.
* * *
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The additional protections provided under Pennsylvania’s Double
Jeopardy clause do not extend to non-intentional prosecutorial
misconduct, but rather only bar retrial following a defendant’s
successful motion for a mistrial when the conduct of the
prosecutor [giving rise to the mistrial] is intentionally undertaken
to prejudice the defendant to the point of the denial of a fair trial.
Id. at 884-86 (quotations, citations, and footnotes omitted).
In this case, ADA Trent’s prosecutorial misconduct was not intentional.
Notably, the record reflects that immediately upon eliciting the prejudicial
response from Appellant set forth above, ADA Trent ceased questioning
Appellant and brought the issue to the attention of the trial court. N.T.,
12/13/17, at 168-69. Thus, the trial court appropriately rejected Appellant’s
double jeopardy claim, stating:
In the instant case, ADA Trent represented to this [t]rial [c]ourt
that he did not know the answer to the prejudicial question which
caused Appellant to move for a mistrial. In addition, ADA Trent
conceded his line of questioning during Appellant’s cross-
examination eliciting the prejudicial response was “inartful.”
Moreover, immediately upon eliciting the prejudicial statement
from Appellant, ADA Trent ceased his cross-examination of
Appellant and later expressed his concern to Attorney Clelland and
the [c]ourt outside the presence of the jury. ADA Trent stated his
“intention was to explore the conversations with [Appellant’s]
sister.” (See Notes of Testimony, Jury Trial, Day 2, Dec. 13, 2017,
pg. 169:24-25). ADA Trent also admitted he did not anticipate
Appellant’s answer. (Id. at 170:3-4). As such, this [t]rial [c]ourt
finds and concludes no prosecutorial misconduct occurred because
ADA Trent did not intentionally provoke Appellant to elicit this
particular response, nor was he motivated by bad faith to harass
or prejudice Appellant. Accordingly, this [t]rial [c]ourt properly
concluded Double Jeopardy does not preclude the Commonwealth
from trying Appellant for a second time and properly denied
Appellant’s Motion to Dismiss.
Trial Court Opinion, 3/29/18, at 4-5.
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Based on our review of the certified record, we agree with the trial
court’s conclusion that ADA Trent did not intentionally commit prosecutorial
misconduct in order to prejudice Appellant to the point of denying him a fair
trial. See Kearns, 70 A.3d at 884-86. Although ADA Trent’s line of
questioning was “inartful,” the record is replete with evidence that it was not
ADA Trent’s intention to prejudice Appellant and deny him a fair trial.
Accordingly, we conclude that the trial court did not abuse its discretion in
denying Appellant’s motion to dismiss the charges against him on grounds of
double jeopardy.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/25/2018
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