Com. v. Bey, F.

J-A23025-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
FREEDOM BEY :
:
Appellant : No. 1405 WDA 2018
Appeal from the Order Dated September 10, 2018
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0010884-2008
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
FREEDOM BEY :
:
Appellant : No. 1406 WDA 2018
Appeal from the Order Entered September 26, 2018
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0010884-2008
BEFORE: BENDER, P.J.E., KUNSELMAN, J., and MUSMANNO, J.
MEMORANDUM BY BENDER, P.J.E.: FILED JANUARY 24, 2020
At 1405 WDA 2018, Appellant, Freedom Bey, filed an interlocutory
appeal from the trial court’s order denying his motion seeking to bar retrial on
double jeopardy grounds. At 1406 WDA 2018, Appellant filed an interlocutory
appeal from the trial court’s order denying his motion for in forma pauperis
(IFP) status in the same case. After careful review, we affirm the order at
J-A23025-19
1405 WDA 2018, vacate the order at 1406 WDA 2018, and remand for further
proceedings.
This Court summarized the facts adduced at Appellant’s first trial during
his direct appeal as follows:
On June 28, 2008, between 3:00 a.m. and 4:00 a.m., [Appellant],
Randall Bentley, Jordan Doctor and Brenda Escedy were out to eat
at Eat’n Park at the Waterfront shopping complex in Homestead,
Pennsylvania. See N.T. Jury Trial, 7/13-14/10, at 35, 47-46, 177.
Brendan Brooks, the victim, and Daniel Wallar entered the
restaurant and sat down. See id.[] at 67. [Appellant] was
slamming his plate and fork down, “like normal intoxicated people
would be.” Id.[] at 49.
[Appellant] got up from his table, walked out of the restaurant,
went to the window where Brooks and Wallar were seated, and
started banging his hands on his chest and called Brooks out of
the restaurant. See id.[] at 49-50. Kristi Lynn Emery was waiting
on Brooks and Wallar and testified that Brooks remained calm.
See id.[] at 51. Angela Casale, the manager of Eat’n Park,
testified that she saw Brooks start walking toward the door. See
id.[] at 89. Casale attempted to dissuade Brooks from leaving
because she did not want there to be a fight. See id. She said
that [Appellant] was irate, jumping up and down, screaming at
the top of his lungs. See id.[] at 90. Unfortunately, Brooks did
not heed Casale’s advice and left the restaurant. Once Brooks
was outside on the sidewalk, Emery and Casale observed
[Appellant] “pull his right hand out, extend his arm and shoot
[Brooks] three times.” Id.[] at 54.
Following a jury trial, which began on July 13, 2010, the jury
convicted [Appellant] of [first-degree murder and carrying a
firearm without a license]. On September 29, 2010, the trial court
sentenced [Appellant] to life imprisonment on the murder
conviction and to a concurrent two (2) to four (4) year term of
incarceration on the firearms conviction.
Commonwealth v. Bey, No. 1693 WDA 2010, unpublished memorandum at
1-2 (Pa. Super. filed July 12, 2013). Appellant subsequently filed an
-2-
J-A23025-19
unsuccessful direct appeal. See Commonwealth v. Bey, 70 A.3d 1268 (Pa.
Super. 2013) (unpublished memorandum), appeal denied, 80 A.3d 774 (Pa.
2013).
Appellant then filed a timely, pro se PCRA1 petition, his first, on
December 3, 2014. Subsequently, appointed counsel filed an amended PCRA
petition (hereinafter “PCRA Petition”) on Appellant’s behalf on January 20,
2017. In the PCRA Petition, Appellant sought dismissal of the charges or a
new trial based on, inter alia, various allegations of prosecutorial misconduct
and after-discovered evidence. On October 11, 2017, the PCRA court granted
the petition, vacating Appellant’s sentence and awarding him a new trial based
on the after-discovered evidence, noting it had done so because of the
Commonwealth’s “acquiescence based upon” that evidence. Order, 10/11/17,
at 1 (single page). In the order, the PCRA court judge, the Honorable Joseph
K. Williams, also indicated that he would not preside over the new trial due to
his transfer to another division. Id. The trial court reassigned Appellant’s
case to the Honorable Jill E. Rangos, who then presided over Appellant’s
double-jeopardy hearing. Appellant’s motion seeking IFP status was
separately decided by the Honorable David R. Cashman.
On January 16, 2018, Appellant filed an omnibus pre-trial motion
seeking, inter alia, to bar his retrial on double jeopardy grounds. The trial
court held a hearing to address the motion on August 23, 2018, which
____________________________________________
1 Post Conviction Relief Act, 42 Pa.C.S. §§ 9541–9546.
-3-
J-A23025-19
continued on September 4, 2018. At the conclusion of the hearing, the court
denied Appellant’s motion, but also determined that it was not frivolous. See
N.T., 9/4/18, at 38. On September 10, 2018, the court issued its findings of
fact and conclusions of law. See Findings of Fact and Conclusions of Law
(hereinafter “Opinion”), 9/10/18. On September 24, 2018, Appellant filed a
motion seeking IFP status. On September 26, 2018, Judge Cashman denied
the motion.
Appellant filed notices of appeal from each order on October 2, 2018,
which were later consolidated sua sponte by this Court. See Order, 11/14/18,
at 1 (single page).2 He also filed a timely, court-ordered Pa.R.A.P. 1925(b)
statement on October 24, 2018. Judge Rangos issued a statement pursuant
to Rule 1925(a) indicating that the trial court would rely on its September 10,
2018 findings of fact and conclusions of law. Judge Cashman separately
issued a Rule 1925(a) opinion addressing the IFP issue on March 15, 2019.
In Appellant’s brief, his statement of the questions presented does not
directly correspond to the issues he subsequently presents in the argument
section. Consequently, we will address only the issues presented in the
argument section of Appellant’s brief that are also clearly raised in his
statement of the questions presented. Any issues omitted from either section
of Appellant’s brief are waived. See Graziani v. Randolph, 856 A.2d 1212,
____________________________________________
2 At 1405 WDA 2018, Appellant challenged the trial court’s denial of his motion
to dismiss on double jeopardy grounds. At 1406 WDA 2018, Appellant
challenged the trial court’s order denying him IFP status.
-4-
J-A23025-19
1216 (Pa. Super. 2004) (finding waived all claims raised in the argument
section of the appellant’s brief that were not raised in the ‘questions presented’
section); see also Pa.R.A.P. 2116 (“No question will be considered unless it
is stated in the statement of questions involved or is fairly suggested
thereby.”). In the argument section of Appellant’s brief, he presents the
following claims for our review, which we have rewritten for clarity and ease
of disposition:
I. Did the trial court err when it determined that Appellant’s
retrial is not precluded on double-jeopardy grounds due to
numerous instances of prosecutorial misconduct?
II. Was the Commonwealth precluded from proceeding on the
charge of first[-]degree murder under the doctrine of
judicial admissions?
III. Did the trial court abuse its discretion when it reopened the
record to permit the Commonwealth to present an additional
witness at the double-jeopardy hearing?
IV. Did Appellant follow the proper procedure when he filed his
double-jeopardy motion at the pretrial stages of the second
trial, rather than by appealing the PCRA court’s decision to
grant a new trial?
V. Did the trial court err when it denied Appellant’s motion for
IFP status?
VI. Did the trial court err when it quashed Appellant’s subpoena
seeking information from the Pittsburgh Police regarding the
Sin City Disciples?
VII. Did the trial court err when it refused to pay for an expert
witness on criminal gangs?
See Appellant’s Brief at 15, 80, 84, 92, 94, 105, 114.
I.
-5-
J-A23025-19
Appellant’s first claim concerns the trial court’s determination that
double jeopardy did not bar his retrial. Appellant argues the prosecutor’s
ostensible misconduct was, individually or collectively, intentionally designed
to deny him a fair trial. The prosecutor at Appellant’s trial was Assistant
District Attorney Lisa Pellegrini of the Allegheny County District Attorney’s
Office.
We begin by determining, as argued by the Commonwealth, if Appellant
waived this double-jeopardy claim by failing to appeal the PCRA court’s order
granting a new trial. The Commonwealth argues that the trial court (Judge
Rangos) was compelled by the coordinate jurisdiction rule to honor the
decisions of the PCRA court (Judge Williams). The Commonwealth contends
that the PCRA court effectively denied Appellant’s double-jeopardy claim in
the order granting Appellant a new trial.
Our Supreme Court has described the coordinate jurisdiction rule as
follows:
One of the distinct rules that are encompassed within the “law of
the case” doctrine6 is the coordinate jurisdiction rule. Generally,
the coordinate jurisdiction rule commands that upon transfer of a
matter between trial judges of coordinate jurisdiction, a transferee
trial judge may not alter resolution of a legal question previously
decided by a transferor trial judge. … Starr, … 664 A.2d [at] 1331
…; see also Riccio v. American Republic Insurance Co., …
705 A.2d 422, 425 ([Pa.] 1997). More simply stated, judges of
coordinate jurisdiction should not overrule each other’s decisions.
Id.; Okkerse v. Howe, … 556 A.2d 827, 831 ([Pa.] 1989).
6 Among rules that comprise the law of the case doctrine are
that: “(1) upon remand for further proceedings, a trial court
may not alter the resolution of a legal question previously
decided by the appellate court in the matter; (2) upon a
-6-
J-A23025-19
second appeal, an appellate court may not alter the
resolution of a legal question previously decided by the
same appellate court; and (3) upon transfer of a matter
between trial judges of coordinate jurisdiction, the
transferee trial court may not alter the resolution of a legal
question previously decided by the transferor trial court.”
Commonwealth v. Starr, … 664 A.2d 1326, 1331 ([Pa.]
1995).
The reason for this respect for an equal tribunal’s decision, as
explained by our [C]ourt, is that the coordinate jurisdiction rule is
“based on a policy of fostering the finality of pre-trial applications
in an effort to maintain judicial economy and efficiency.” Starr,
664 A.2d at 1331. Furthermore, consistent with the law of the
case doctrine, the coordinate jurisdiction rule serves to protect the
expectations of the parties, to insure uniformity of decisions, to
maintain consistency in proceedings, to effectuate the
administration of justice, and to bring finality to the litigation. Id.
This general prohibition against revisiting the prior holding of a
judge of coordinate jurisdiction, however, is not absolute.
Departure from the rule is allowed in “exceptional circumstances”
when there has been a change in the controlling law or where
there was a substantial change in the facts or evidence.
Zane v. Friends Hosp., 836 A.2d 25, 29 (Pa. 2003).
Here, the Commonwealth argues that Appellant
has waived his double-jeopardy claim by not challenging Judge
Williams’ order granting him a new trial. In his PCRA petition,
[Appellant] requested relief in the form of discharge from the case
or, in the alternative, a new trial…. While [Appellant] had not
expressly couched his claim for relief in terms of double jeopardy,
Judge Rangos believed that [Appellant]’s request for the dismissal
of the charges against him based on the actions of ADA Pellegrini
was essentially a double-jeopardy motion by another name and
one that had already been decided-and denied-by Judge
Williams…. As a result, Judge Rangos determined that the law of
the case doctrine and the rule of coordinate jurisdiction, see …
Starr, 664 A.2d [at] 1331 …, actually precluded her from ruling
on the merits of [Appellant]’s double–jeopardy motion, as she was
bound by Judge Williams’ prior determination…. Nevertheless, out
of an abundance of caution, Judge Rangos decided to hold a
hearing on [Appellant]’s motion and make a ruling on its merits.
-7-
J-A23025-19
Commonwealth’s Brief at 16 n.8 (some citations omitted). Indeed, Judge
Rangos initially held that Appellant was barred from relitigating whether
double jeopardy principles barred his retrial, before she proceeded to entertain
Appellant’s double-jeopardy motion out of an abundance of caution. See N.T.,
8/15/18, at 9-11. The trial court reached its initial conclusion by
distinguishing Commonwealth v. Minnis, 83 A.3d 1047 (Pa. Super. 2014)
(en banc), from the facts and procedural posture of this case. Id. at 9. After
careful consideration, we disagree with the trial court that this matter is
distinguishable from Minnis.
In Minnis, the defendant filed a PCRA petition requesting either
dismissal of the charges or a new trial based on prosecutorial misconduct.
Minnis, 83 A.3d at 1049. The PCRA court did not hold a hearing on the issue,
but granted relief in the form of a new trial. Id. at 1049-50. Minnis then filed
a pre-trial motion seeking to bar his retrial on double-jeopardy grounds. The
“trial court concluded that Minnis waived his constitutional double[-]jeopardy
claim because he requested and received a new trial” during the PCRA
proceedings. Id. at 1050.
The Minnis Court reversed the lower court’s decision, thereby
overruling Commonwealth v. Constant, 925 A.2d 810 (Pa. Super. 2007)
(holding that seeking relief in the form of a new trial waives a claim that retrial
is barred by double jeopardy). The Minnis Court reasoned as follows:
[W]e are compelled to conclude that the Constant Court erred in
holding that a defendant who moves for a new trial necessarily
waives any argument that double jeopardy bars a second trial.
-8-
J-A23025-19
We cannot reconcile that outcome with the development of the
applicable law, as expressed in Martorano,[3] nor can we
reconcile it with our Supreme Court’s pronouncement in Potter[4]
that the availability of double jeopardy protection does not depend
on “nice procedural distinctions.” Potter, … 386 A.2d at 921. We
hereby overrule Constant.
The nature and extent of the alleged prosecutorial misconduct in
this case remains to be determined. The trial court permitted
discovery on the matter, but ultimately declined to conduct a
hearing based on this Court’s opinion in Constant. Since
Constant no longer represents binding authority, we will remand
to the trial court for further proceedings consistent with this
opinion.
Minnis, 83 A.3d at 1053.
Here, as was the case in Minnis, Appellant argued in his PCRA petition
for dismissal of his charges and, in the alternative, a new trial. Judge Williams
did not conduct an evidentiary hearing. Moreover, when Judge Williams
granted Appellant a new trial, he did not expressly deny Appellant’s request
for dismissal of the charges, although, implicitly, his ruling essentially had that
effect. The trial court contends that the instant case is distinguishable because
“all discovery occurred before J[udge] Williams granted a new trial[,]”
whereas additional evidence of prosecutorial misconduct was uncovered after
Minnis was granted his new trial. However, there is nothing in Minnis that
____________________________________________
3 Commonwealth v. Martorano, 741 A.2d 1221, 1223 (Pa. 1999) (holding
that “a fair trial is not simply a lofty goal, it is a constitutional mandate, and
where that constitutional mandate is ignored and subverted by the
Commonwealth, we cannot simply turn a blind eye and give the
Commonwealth another opportunity”) (cleaned up).
4 Commonwealth v. Potter, 386 A.2d 918 (Pa. 1978).
-9-
J-A23025-19
suggests that such a distinction is dispositive of whether a double-jeopardy
motion is precluded at a new trial.5 Furthermore, both the Minnis and Potter
decisions clearly disapprove of the strict application of waiver principles to
double-jeopardy claims following the granting of a new trial on prosecutorial
misconduct grounds. Accordingly, we conclude that the trial court erred when
it determined that it was precluded from ruling on Appellant’s double-jeopardy
claim due to Judge Williams’ decision to grant a new trial to Appellant under
the PCRA.
Thus, we now turn to the merits of Appellant’s double-jeopardy claim.
“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.” Commonwealth v. Mattis, 686 A.2d 408, 410
(Pa. Super. 1996).
Under both the federal and state constitutions, double jeopardy
bars retrial where the prosecutor’s misconduct was intended to
provoke the defendant into moving for a mistrial. See Oregon v.
Kennedy, 456 U.S. 667 … (1982); Commonwealth v. Simons,
… 522 A.2d 537 ([Pa.] 1987). In Commonwealth v. Smith, …
615 A.2d 321 ([Pa.] 1992), our Supreme Court recognized that
the standard set forth in Oregon v. Kennedy, supra, was
inadequate to protect a defendant’s rights under the Pennsylvania
Constitution. The Court stated:
We now hold that the double jeopardy clause of the
Pennsylvania Constitution prohibits retrial of a defendant
____________________________________________
5We leave for another day whether a double-jeopardy claim is precluded when
the issue was fully litigated during the PCRA process, i.e., where the PCRA
court holds an evidentiary hearing on the issue and explicitly denies the
request for dismissal of charges based on that hearing. Here, there was no
PCRA hearing, and no explicit denial of the requested relief.
- 10 -
J-A23025-19
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.
Smith, … 615 A.2d at 325 (quoted in … Martorano, … 741 A.2d
[at] 1223…).
Prosecutorial misconduct includes actions intentionally designed
to provoke the defendant into moving for a mistrial or conduct by
the prosecution intentionally undertaken to prejudice the
defendant to the point where he has been denied a fair trial.
Smith, … 615 A.2d at 325. The double jeopardy clause of the
Pennsylvania Constitution prohibits retrial of a defendant
subjected to the kind of prosecutorial misconduct intended to
subvert a defendant’s constitutional rights. Id. … at 325.
However, Smith did not create a per se bar to retrial in all cases
of intentional prosecutorial overreaching. See Commonwealth
v. Simone, 712 A.2d 770 (Pa. Super. 1998)…. “Rather, the
Smith Court primarily was concerned with prosecution tactics,
which actually were designed to demean or subvert the truth
seeking process.” Id. at 774-75. The Smith standard precludes
retrial where the prosecutor’s conduct evidences intent to so
prejudice the defendant as to deny him a fair trial. A fair trial, of
course is not a perfect trial. Errors can and do occur. That is why
our judicial system provides for appellate review to rectify such
errors. However, where the prosecutor’s conduct changes from
mere error to intentionally subverting the court process, then a
fair trial is denied.
Commonwealth v. Chmiel, 777 A.2d 459, 463–64 (Pa. Super. 2001).
Here, Appellant contends that the prosecutor’s misconduct was of such
a nature that it was designed to intentionally deprive him of a fair trial, thus
barring his retrial under the Pennsylvania Constitution.6 He raises numerous
____________________________________________
6 Because the Pennsylvania Constitution provides greater double-jeopardy
protection than its federal counterpart and, in fact, subsumes and then adds
to the federal standard, we need not consider the federal standard separately.
In any event, Appellant does not argue that the prosecutor’s actions were
designed to provoke him into moving for a mistrial.
- 11 -
J-A23025-19
sub-issues in his argument but, notably, none of the sub-issues were
specifically raised in Appellant’s Rule 1925(b) Statement, nor in his statement
of the questions presented. It is now axiomatic that “[a]ny issues not raised
in a 1925(b) statement will be deemed waived.” Commonwealth v. Lord,
719 A.2d 306, 309 (Pa. 1998). While the “Statement should not be redundant
or provide lengthy explanations as to any error[,]” Pa.R.A.P. 1925(b)(4)(iv),
and “[e]ach error identified in the Statement will be deemed to include every
subsidiary issue that was raised in the trial court[,]” Pa.R.A.P. 1925(b)(4)(v),
the Statement must, nonetheless, “concisely identify each error that the
appellant intends to assert with sufficient detail to identify the issue to be
raised for the judge[,]” Pa.R.A.P. 1925(b)(4)(ii). Here, Appellant did not
specifically identify what (mis)conduct formed the basis for his double
jeopardy claim in his Rule 1925(b) statement. Out of an abundance of
caution, we will consider the specific claims of misconduct alleged by Appellant
only insofar as they were addressed to some extent by the trial court in its
opinion, but we otherwise deem waived any issue not considered at all in that
opinion due to Appellant’s lack of specificity in his Rule 1925(b) statement.7
First, Appellant argues that “repeated references, both in [the
prosecutor’s] questioning [of Appellant] and in her closing, were made to
____________________________________________
7 We further note that, following the filing of the trial court’s Rule 1925(a)
statement, Appellant did not file any request for the trial court to file a
supplemental opinion to address any sub-issues he believes should have been
considered by the trial court in reference to the denial of his motion to bar
retrial on double jeopardy grounds.
- 12 -
J-A23025-19
[Appellant’s] selling [m]arijuana, despite [Appellant’s] not being charged with
any drug related crimes.” Appellant’s Brief at 26; see also N.T. Trial,
7/13/10-7/16/10, at 501-03, 515, 529, 589 (closing argument). Appellant
cites Commonwealth v. Collins, 341 A.2d 492 (Pa. 1975), for the
proposition that it “is improper for a prosecutor to attack a defendant on the
basis of involvement with illegal drugs when such is a tangential issue in the
case.” Appellant’s Brief at 23.
The Commonwealth argues that the prosecutor’s references to
Appellant’s admitted drug dealing were proper and, even if improper, would
still not warrant the extreme remedy of barring his retrial. Additionally, the
trial court determined that
the Prosecutor’s comments about [Appellant’s] being a drug
dealer were based on [his] own testimony and were a fair
response to … Defense counsel’s closing argument. [Appellant]
made his drug dealing a relevant issue, rather than a tangential
issue in the case, by arguing that the victim’s knowledge of his
drug dealing was the motive for prior attacks by the victim on
[Appellant]. Those past acts of violence against [Appellant] by
the victim formed the basis of his self-defense argument.
Opinion at ¶ 18 (unnumbered pages, citation omitted).
We agree with the Commonwealth and the trial court. A “defendant
may open the door and voluntarily step beyond the protection of … the general
rule prohibiting the introduction of evidence concerning his prior and other
crimes.” Commonwealth v. Flagg, 242 A.2d 921, 922 (Pa. Super. 1968).
Here, Appellant opened the door to discussions of his drug dealing, as it was
incorporated into the narrative of his self-defense claim.
- 13 -
J-A23025-19
From the outset of the case, Appellant presented a claim of self-defense.
See N.T. Trial at 31 (Appellant’s trial attorney’s stating during his opening
statement that the prosecutor “has to prove beyond a reasonable doubt that
it was not in self-defense”). Appellant then provided, without any
provocation, the first reference to marijuana use during his direct-
examination. Id. at 458 (Appellant’s indicating that he would “normally” pay
the victim to look the other way when his friends were smoking marijuana in
the club where victim worked as a bouncer). Later, during the direct-
examination of Appellant, he indicated that he smoked marijuana as well,
again without any prompting by his counsel. Id. at 467.
The first reference to Appellant’s selling drugs occurred during his cross-
examination:
Q. So why would he kidnap you?
MR. THOMASSEY:[8] Objection. How would he know the answer to
that, Judge?
THE COURT: Overruled, overruled, overruled.
Keep going.
BY MS. PELLEGRIN[I]:
Q. Why you?
A. He wanted some money.
Q. Well, what did you do for a living back then?
____________________________________________
8 Mr. Thomassey served as defense counsel during Appellant’s first trial.
- 14 -
J-A23025-19
A. Like I told you, at the time I had worked -- I was working
construction but, you know, I had a lot of money. I am not going
to proclaim to be an angel.
Q. Well, how did you make that money, sir?
A. First I was known for having money. My grandmother passed.
She left me a nice sum of money, but I also sold marijuana. I
would sell high-grade marijuana.
Id. at 501.
The prosecutor then proceeded to ask several questions regarding
Appellant’s admission about dealing marijuana, and yet defense counsel did
not object to any of these questions. Id. at 501-04. Appellant then proffered
his theory that the victim intended to kidnap him to obtain the proceeds of his
drug dealing. Id. at 503 (“Drug dealers, drug dealers’ associates, drug
dealers’ children, their wives, their girlfriends. They were kidnapping anybody
that they thought they could extort money out of.”). During this line of
questioning, an issue concerning Appellant’s prior offense for illegal
possession of a gun arose, and was debated at sidebar. Id. at 504-08. Yet,
Appellant’s attorney did not make any objection or comments concerning
Appellant’s admitting that he sold marijuana or to the prosecutor’s questions
in that regard. Later, the prosecutor again referenced Appellant’s marijuana
dealing when quoting his statement to police. Id. at 523. And, again,
Appellant’s attorney did not object. Id. Appellant provided the next mention
of his marijuana dealing, which was not prompted by the prosecutor’s
question, but was repeated by the prosecutor after he mentioned it:
Q. Then you happen to run into your good friend Ramon Bentley?
- 15 -
J-A23025-19
A. That would be correct.
Q. Okay. And he’s begging you to hang out with him. Right?
A. Yeah, you could say that.
Q. Because he wants you to help him get out of the street life.
Right?
A. Not so much he wants me to help him get out of the street life.
Not that he wanted me to help him get out of the street life.
Ramon Bentley knew I wasn’t one to be around -- to try to be
around trouble because I’m not a troublesome person, plus
Ramon Bentley wanted to sell marijuana for me.
Q. So on June 28th of 2008, you were still selling marijuana? I’m
just trying to understand what you just said, sir. Correct.
Id. at 528.
From this record, it is clear that Appellant, not the prosecutor, initially
exposed his marijuana dealing to the jury. Furthermore, at no point did
Appellant’s attorney object during the numerous follow up questions
concerning that fact. Moreover, it was clear that Appellant believed, and
attempted to convey to the jury his belief, that the victim had repeatedly
targeted him, and eventually plotted to kidnap him and/or his son in order to
extort money because Appellant was known to be a marijuana dealer who
carried a lot of cash on his person.
Indeed, this was precisely the argument made to the jury during defense
counsel’s closing statement:
Freedom’s out there. He’s a street kid – you heard him -- selling
marijuana. Big deal. So what. Ten years from now it probably
will be legal. You didn’t hear anything about cocaine. You didn’t
hear anything about heroin. So he works and makes a couple
bucks selling a little weed. Who cares.
- 16 -
J-A23025-19
Big Bub knew that he had money and routinely put the arm on
him. That’s what this case is all about….
Id. at 584 (emphasis added).
Subsequently, in response to this line of argument, the prosecutor made
a few references to Appellant’s dealing marijuana in her closing statement.
Id. at 589-590. Again, the defense did not object. Moreover, the
prosecutor’s references to Appellant’s drug dealing were not a core aspect of
the prosecutor’s argument, which continued on for an additional 13 pages of
the transcript. See id. at 590-603. At no point did the prosecutor directly or
indirectly infer Appellant’s guilt for murder because he dealt drugs.
As Appellant never objected to the prosecutor’s mentioning of his
marijuana dealing, this aspect of Appellant’s double-jeopardy claim is waived.9
In any event, alternatively, we would agree with the trial court and the
Commonwealth that no prosecutorial misconduct occurred with respect to this
information, as the proverbial door was opened by Appellant, and/or the
____________________________________________
9 Appellant argues that he was not required to object at trial to prosecutorial
misconduct for it to be considered as part of his double-jeopardy claim, citing
Martorano for the proposition that such claims turn exclusively on “the nature
and egregiousness of the prosecutorial misconduct[,]” not whether challenges
to the alleged misconduct were preserved with an objection. Appellant’s Reply
Brief at 18. However, Appellant cites to no authorities interpreting Martorano
in such a broad, far-reaching fashion, and the decision itself is silent on waiver.
Moreover, such an interpretation runs contrary to all of our
preservation/waiver rules, and ignores the possibility that, in some
circumstances, there is a strategic basis for the failure to object. Accordingly,
we reject Appellant’s assertion that waiver principles are completely
abandoned for double-jeopardy claims seeking to bar retrial. Furthermore,
this is not a case where the prosecutorial misconduct at issue had only been
discovered after the fact, in which case it would be unreasonable to expect a
contemporaneous objection.
- 17 -
J-A23025-19
remarks constituted fair response to Appellant’s self-defense theory and
related statements by counsel. In Collins, by contrast, the Commonwealth
admitted that the “that the conduct of the prosecutor during the trial was
reprehensible and censurable.” Collins, 341 A.2d at 492. Although Collins
is similar to the instant case in that drug dealing was frequently mentioned by
the prosecutor, and Collins admitted to dealing drugs on the stand, id. at 500,
there is no indication in Collins that the defendant’s drug dealing was part-
and-parcel of his defense strategy; indeed, Collins had argued at his trial that
he was not present at the time of the murder. Thus, had Appellant not waived
this aspect of his claim, we would nonetheless hold that it does not support
his argument that his retrial should be barred on double-jeopardy grounds.
Next, Appellant contends that the prosecutor engaged in misconduct by
leaving an impression with the jury that he used his right to discovery to
facilitate the presentation of false testimony. See Commonwealth v.
Bricker, 487 A.2d 346, 353-54 (Pa. 1985) (holding that “remarks implying
that the defense used its right of discovery to present false testimony” had
violated “the rules … that a prosecutor must limit statements to facts in
evidence and reasonable inferences therefrom and must not express personal
opinions on guilt, credibility, or strategy”). Contrary to the Commonwealth’s
argument, this specific subclaim was, in fact, raised in Appellant’s motion to
bar retrial. See Appellant’s Omnibus Pretrial Motion, 1/16/18, at 37-38.
However, the trial court did not address this matter in its opinion, and
Appellant did not specifically reference it in his Rule 1925(b) statement.
- 18 -
J-A23025-19
Accordingly, the claim has been waived. See Lord, supra. Nevertheless, if
we were able to consider this matter, we would find that it does not rise to
the level of misconduct that would bar Appellant’s retrial.
After getting Appellant to admit that he had fully read the discovery
material made available to him, see N.T. Trial at 511, 562, the prosecutor
made the following remarks about him during her closing statement:
See, this is all he’s had, two years and fourteen days. Remember
he said that? Two years and fourteen days with all the police
reports. Okay. Contrary to what the defense wants you to
believe, you know, I must turn over all the police reports, the
photos and everything else. He’s had two years and fourteen days
to fit every single fact into his version of events to make him look
like the victim, to make Brendan Brooks the thug. Two years and
fourteen days, and who do we have to say that Brendan Brooks
terrorized him? His friends. Well, you can judge their credibility
for yourself, and the defendant. Nothing, nothing else. He made
it up.
Id. at 589-90. The prosecutor ostensibly was referencing this theory later in
her closing statement (“He’s trying to con you with two years and fourteen
days of preparation.”), which prompted an objection by the defense. Id. at
602.
In, Bricker, we held that a similar statement by the prosecutor
constituted prosecutorial misconduct:
And I remind you as Mr. Hilner pointed out to you, that defendants
get complete discovery. They get the homicide file, they get the
statements, they get to review it.
Mr. Gabler had all that information available to him before he sat
down and discussed the case with Bricker and with Prosdocimo.
So you would expect his story to be perfect, because you can put
it together from the information you get.
- 19 -
J-A23025-19
And it is very difficult to shoot down a fabricated story. But if you
use your common sense in this case, there will be no doubt in your
mind that it is fabricated.
Bricker, 487 A.2d at 354 (quoting the prosecutor’s closing statement).
Thus, we agree with Appellant that the prosecutor’s statement regarding
discovery was not permissible under the lead opinion in Bricker. However,
as noted by the Commonwealth, Bricker was a plurality opinion and, as such,
it is not entitled to precedential value. As the Commonwealth argues:
In fact, in contrast to the position adopted by [Appellant], this
Court, in Commonwealth v. Judy, 978 A.2d 1015, 1024 (Pa.
Super. 2009), has stated that “[i]n cases where the outcome is
controlled by credibility determinations, a prosecutor is permitted
to make comments reinforcing the fact that the jury is presented
with conflicting accounts.” The Court continued: “A prosecutor[’]s
contention that a defendant lied is neither unfair nor prejudicial
when the outcome of the case is controlled by credibility, the
accounts of the victim and the defendant conflict, and defense
counsel suggests that the victim is fabricating.” Id. Here, there
was no testifying victim because he was dead, but the
Commonwealth presented two Eat’n Park employees who testified
that [Appellant] shot Brooks and that Brooks had no weapon in
his hands and made no motion toward his pocket or waistband[.]
([N.T. Trial at] 56, 93-94, 106). [Appellant] then took the stand
and offered conflicting testimony. Under these circumstances, the
Commonwealth submits that the rationale of Judy still applies and
that it was certainly fair for ADA Pellegrini to suggest that while
preparing for trial, [Appellant] had tailored his testimony to the
police reports and other discovery that he had received.
Commonwealth’s Brief at 35-36.
We agree with the Commonwealth that the Bricker plurality is not
controlling precedent. Furthermore, we agree with the Commonwealth that,
as per the rationale set forth in Judy, in cases that turn on the credibility of
conflicting testimony, and where the defendant’s testimony contradicts the
- 20 -
J-A23025-19
testimony produced by the Commonwealth, it is irrational to prohibit a
prosecutor from assailing the credibility of the accused. As the Judy Court
explained, the general rule is that “a prosecutor cannot intrude upon the
exclusive function of the jury to evaluate the credibility of witnesses by broadly
characterizing the testimony of a witness as a big lie.” Judy, 978 A.2d at
1023 (quotation marks omitted). “Nonetheless, a prosecutor’s assertion that
a witness had lied does not warrant a new trial when the statement was a fair
inference from irrefutable evidence rather than a broad characterization.” Id.
at 1023-24 (quotation marks omitted). Thus, while it may be generally
improper for a prosecutor to suggest that a defendant’s access to discovery
was the basis for fabricating a defense, such a comment is permissible in
limited circumstances.
Here, Appellant’s version of events was simply incompatible with the
other eyewitnesses’ testimony regarding the shooting. In his version of
events, the victim had drawn a knife on him, whereas the other witnesses
testified that Appellant shot an unarmed man. It is undisputed, however, that
police discovered a knife in the victim’s pocket, and the defense exploited that
fact to support its self-defense theory. Appellant’s knowledge of the victim’s
possession of a knife could have come from two potential sources: 1) If
Appellant was telling the truth, he observed the knife in victim’s hand just
prior to shooting him; however, 2) if Appellant was lying, he could have simply
learned of the victim’s knife through discovery, and then used that fact to
buttress a fabricated version of events. Thus, in the specific circumstances of
- 21 -
J-A23025-19
this case, we determine that the prosecutor’s comments constituted rational
inferences from undisputed evidence, as well as fair response to the defense’s
theory that the victim had pulled a knife on him before the shooting occurred.
In any event, even if we were to deem that the comments to that effect were
impermissible, we would nevertheless conclude that they were only marginally
impermissible and minimally prejudicial, and that the prosecutor did not
clearly make them with the intent to deprive Appellant of a fair trial, as there
was a reasonable argument that they were permissible.
Next, Appellant argues that the prosecutor knowingly allowed a witness,
Daniel Wallar, to testify to statements he knew or should have known were
false—specifically, Mr. Wallar’s in-court identification of Appellant as the
shooter. The trial court determined that there was no misconduct regarding
that witness’s testimony at all. Opinion at 12 ¶¶ 26-27.
Mr. Wallar was a friend of the victim, a fellow member of the Sin City
Disciples, and was with the victim at the Eat’n Park. Mr. Wallar followed the
victim out of the restaurant just prior to the shooting. N.T. Trial at 133. He
observed the victim arguing with someone, but he did not hear what the
argument was about. Id. at 134. He then observed “an individual firing a
couple of shots.” Id. at 137. The prosecutor then asked if he could identify
the shooter. Id. As Mr. Wallar began responding that he could, the prosecutor
immediately asked for a sidebar. Id. At that point, Judge Williams placed the
following statement on the record:
- 22 -
J-A23025-19
Let me frame this. Assistant District Attorney Pellegrini at this
point in the proceedings has asked for a sidebar and informed Mr.
Thomassey[, defense counsel,] and myself that prior to this
moment she never knew that the witness, Mr. Wallar, could
identify anyone as the shooter in this matter and buttresses that
statement with it[ is] a complete surprise to her that he can say
who the shooter was. When I listened to this testimony in the
way that it’s evolved, I think it was -- it didn’t evolve naturally to
me. I think if I were in this case, I would have just asked what
happened, but the incremental steps in this serendipitous course
to get to this point makes me uncomfortable to preclude the
defense from using prior history about this person because I
believe that he is really not a credible person and I don’t know if
the probative value of what he says far exceeds prejudicial value
of the [c]ourt[’s] knowing the breadth and the scope of who he is.
I haven’t ruled on this, but contingent upon what he says and how
this evolves, I may revisit my ruling about the matters as to what
can come in in terms of his history.
Id. at 137-38. Previously, the trial court had ruled that defense counsel’s
cross-examination of Mr. Wallar would be restricted due to the limited nature
of his expected testimony. However, following the revelation that Mr. Wallar
was going to identify Appellant as the shooter, defense counsel requested that
Judge Williams revisit that ruling. Id. at 138-39.
In the ensuing discussion between the parties and the trial court, Judge
Williams expressed both that it was “blatantly and patently unfair in the midst
of a trial” to have a Commonwealth witness surprise the defense with a new
identification, but also that he believed “the Commonwealth’s position that
they had no idea prior to this point that [Mr. Wallar was] going to identify the
defendant….” Id. at 139. When the court stated that the prosecutor should
have known that Mr. Wallar had seen the shooter given the other evidence,
- 23 -
J-A23025-19
including his position as observed on the security cameras, the prosecutor
responded:
Your Honor, with all due respect, the detective questioned Mr.
Wallar repeatedly. I have met with Mr. Wallar for pretrial
interviews. He said he could not identify anyone. I confronted
him with the fact, “You’re standing right there. What do you mean
you can’t identify him?” I’m not going to put words in his mouth.
The guy said he can’t identify someone. It happens all the time,
whether you’re scared, whether you don’t want to be a snitch. I
don’t know what his reason is, but I can tell you right now with
regard to how I’m putting [o]n this case, because of the actions
you have, I have to go step by step so that the jury can
understand.
Id. at 140.
Defense counsel immediately responded, “Maybe you misunderstood
me, Ms. Pellegrini. I’m not alleging any prosecutorial misconduct here
at all, Judge. I believe what you’re telling me.” Id. at 141 (emphasis added).
The trial court agreed, stating, “I’m not blaming you for having done anything
that’s inappropriate.” Id. The court then determined that it would permit the
defense to use crimen falsi evidence to impeach Mr. Waller, which the court
had previously precluded, due to Mr. Wallar’s unanticipated testimony. Id.
Now, through new counsel, Appellant alleges that there “is nothing on
the record to indicate that ADA Pellegrini spent one second contemplating
whether Mr. Wall[a]r was in fact going to testify truthfully, or whether he was
going to commit perjury. The only concern ADA Pellegrini had was whether
or not Judge Williams was going to allow defense counsel to cross-examine
Mr. Wall[a]r on his [prior crimen falsi offenses.]” Appellant’s Brief at 41.
- 24 -
J-A23025-19
Appellant argues further that the prosecutor was overly concerned about
whether a mistrial would be granted. Id.
However, the defense never requested a mistrial over this matter.
Indeed, Appellant’s trial counsel expressly stated that he was not alleging any
prosecutorial misconduct at all during the discussion that followed Mr. Wallar’s
unexpected testimony. Furthermore, Appellant’s concern about Mr. Wallar’s
truthfulness with regard to his sudden decision to identify him as the shooter
appears overwrought, and his allegation of prosecutorial misconduct borders
on absurdity. See id. at 47-48 (“ADA Pellegrini knowingly allowed false
testimony by Mr. Wall[a]r, and made no attempt to correct the record about
statements that she knew to be false….”). First, Appellant claimed that he
shot the victim in self-defense. Thus, the unexpected testimony by Mr.
Wallar—that he could identity Appellant as the shooter despite having claimed
otherwise beforehand—did not even conflict with the defense’s theory of the
case. We are consequently confused regarding what part of Mr. Wallar’s
testimony that Appellant even contends was untruthful. Even if Mr. Wallar
was lying when he said that he could identify the shooter, Appellant does not
even dispute the underlying truth of the matter, i.e., that he shot the victim.
Thus, we cannot ascertain how Appellant was prejudiced by that particular
aspect of Mr. Wallar’s testimony.
Moreover, contrary to Appellant’s assertions, the record clearly indicates
that the prosecutor was surprised by Mr. Wallar’s sudden ability to identify
Appellant. She immediately brought it to the court’s attention in accordance
- 25 -
J-A23025-19
with her ethical responsibilities as an attorney and as a prosecutor. That the
prosecutor was also concerned with the scope of cross-examination is not
evidence of misconduct. Accordingly, for all the above reasons, we conclude
that there was no prosecutorial misconduct at all involving Mr. Wallar’s
testimony, and that even if there was, Appellant was not prejudiced because
the unexpected testimony—that Mr. Wallar observed Appellant shoot the
victim—did not conflict with Appellant’s own version of events.
Next, Appellant complains that ADA Pellegrini misled the defense and
the court after Judge Williams granted Appellant a new trial. In her written
response in opposition to Appellant’s double-jeopardy motion, the prosecutor
indicted that “neither the Commonwealth nor the Allegheny County Police
Department ([ACPD]) possessed any knowledge of the additional Eat’n Park
security videos.” Commonwealth’s Response to Appellant’s Omnibus Pretrial
Motion, 2/20/18, at 8. At the double-jeopardy hearing, Appellant’s current
counsel cross-examined the investigating officer from the ACPD, Detective
Patrick Kinavey. Counsel asked the detective if he “watched all the videos in
this case?” First Double-Jeopardy Hearing, 8/23/18, at 69. Detective Kinavey
responded, “I did.” Id. From this, Appellant asserts that “ADA Pellegrini is
still making false and misleading statements to the trial court in an attempt
to deprive [Appellant] of his rights.” Appellant’s Brief at 49. Appellant
continues: “ADA Pellegrini’s written statement that the Commonwealth,
including the [ACPD], had no knowledge of the additional surveillance video,
- 26 -
J-A23025-19
was blatantly false, [and] contradicts the testimony of her own detective in
this case….” Id.
This claim was not raised, for obvious reasons, in Appellant’s double-
jeopardy motion. While this was excusable, as Detective Kinavey had not yet
testified in ostensible contradiction to ADA Pellegrini’s statement, the matter
was also not specifically raised in Appellant’s Rule 1925(b) statement, nor was
it addressed in the trial court’s opinion. Accordingly, we agree with the
Commonwealth that Appellant waived consideration of this aspect of his
double-jeopardy claim. See Lord, supra.
In any event, we agree entirely with the Commonwealth’s determination
that this issue is “baseless.” Commonwealth’s Brief at 41. As the
Commonwealth explains:
In her written response, ADA Pellegrini stated that neither she nor
the [ACPD] had any knowledge of any additional Eat’n Park
security footage beyond the one of the vestibule of the restaurant
that was played at trial (see [Commonwealth’s Response to
Appellant’s Omnibus Pretrial Motion, 2/20/18, at 8.]). At the
subsequent double-jeopardy hearing, Detective Kinavey of the
ACP[D], … testified that he had actually viewed other angles of
surveillance-camera footage from Eat’n Park just after the murder
but that he collected only the one that was ultimately used at trial
([Double Jeopardy Hearing, at] 57-58, 68-69). [Appellant] has
seized on this testimony from Detective Kinavey as proof that ADA
Pellegrini’s written response was intentionally false, but Detective
Kinavey never stated at the hearing that he had informed ADA
Pellegrini that he had viewed any other surveillance footage, and
ADA Pellegrini testified that she did not recall having asked
Detective Kinavey whether there was any other available video
([Id. at] 79). For this reason, [Appellant] certainly has not
established that the words chosen by the prosecutor were an
intentional falsehood made to deceive the court or the defense,
and the Commonwealth would respectfully submit that the words
- 27 -
J-A23025-19
actually lend further support to Judge Rangos’ determination that
ADA Pellegrini believed that there was no other available video
(see [Second Double-Jeopardy Hearing, 9/4/18, at] 35).
Commonwealth’s Brief at 41-42. Appellant has not demonstrated an
intentional misstatement by ADA Pellegrini. At best, he has demonstrated
that the prosecutor and Detective Kinavey were not on the same page
regarding the full scope of the detective’s investigation of the security footage.
While this is unfortunate, it does not suggest that the prosecutor was
intentionally trying to mislead the court.
Next, Appellant complains that the prosecutor repeatedly referred to
him as a ‘con man’ during her closing statement:
In an attempt to impugn the credibility of [Appellant], ADA
Pellegrini referred to [Appellant] as a con man (or said he was
trying to con someone) fourteen (14) times, in the following
statement:
[…]but he’s a con man. Uses emotions, his intellect to con
people. Did you notice that when he was on the stand and
you saw him with the tissue and the[]re were no tears. Not
a single tear. See, he conned Gina for the car. Shelly, to
mooch off of her, stay at her place, whatever else, whatever
else. He conned her into hiding him for two-plus days. He
conned Nelena into letting he and Shelly stay in that house.
He conned Brenda. She thought he was a nice guy. ... He
conned [the] mother of his child, Natesha. ... He tried to con
Detective Kinavey…[.] He’s trying to con you with two years
and fourteen days of preparation. That’s the first time
anybody’s ever heard that story. ... He’s trying to con you
because he wants to get away with this. He’s trying to con
you into believing that Brendan Brooks deserved to be
killed. He’s trying to con you into thinking that his firing the
gun at a crowded Eat’n Park on a Friday night is okay. He’s
trying to con you into thinking that possessing this illegal
gun, pulling it out, firing it twice into the body of the victim
is not specific intent to kill.
- 28 -
J-A23025-19
[N.T. Trial] at 601-[]02.
ADA Pellegrini intentionally chose to use a loaded word that is full
of a negative context to diminish the character and credibility of
[Appellant]. There is nothing in the record to support ADA
Pellegrini’s use of this word. No witness said that he/she was
conned, no witness stated that he/she was swindled, tricked, or
persuaded by deception of cajolery by [Appellant]. ADA Pellegrini
intentionally chose this loaded word to inflame the passions of the
jury and tell them if they believed [Appellant] they fell prey to
dishonesty and were duped. This was an intentional choice by
ADA Pellegrini to deny [Appellant] a fair trial[;] one such
statement could be dismissed as an accident, or not intentional,
but fourteen times was an intentional decision by ADA Pellegrini.
In fact, during the double[-]jeopardy hearing ADA Pellegrini was
asked if any witness stated that [Appellant] conned them, [and]
ADA Pellegrini stated that she could not recall anyone stating
[Appellant] conned them.
Appellant’s Brief at 50-52 (footnotes and quotation marks omitted).
We disagree that these comments clearly evidence an intent to deny
Appellant a fair trial.
It is well settled that prosecutorial misconduct does not
occur unless the unavoidable effect of the comments at issue was
to prejudice the jurors by forming in their minds a fixed bias and
hostility toward the defendant, thus impeding their ability to weigh
the evidence objectively and render a true verdict. Because a
criminal trial is an adversary proceeding, the prosecution as well
as the defense must be allowed reasonable latitude in presenting
its case to the jury.
Commonwealth v. Paddy, 800 A.2d 294, 316 (Pa. 2002) (citation omitted).
As discussed above, “[i]n cases where the outcome is controlled by
credibility determinations, a prosecutor is permitted to make comments
reinforcing the fact that the jury is presented with conflicting accounts.” Judy,
978 A.2d at 1024. Here, the trial court determined that the prosecutor’s
“description of [Appellant] as a ‘con man’ was based on the evidence
- 29 -
J-A23025-19
presented, and defense counsel’s closing argument, and was fair argument in
a case in which the outcome depended upon the credibility of [Appellant].”
Opinion at ¶ 21. We agree. Either Appellant was fully truthful in his account
of the shooting, lying, or some combination thereof. Appellant takes umbrage
to the manner in which the prosecutor effectively called him a liar, but it was
the essence of the Commonwealth’s case that Appellant’s self-defense claim
was a lie. Furthermore, Appellant’s argument focuses far too much on the
fact that the witnesses in this case did not specifically utter the word, “con,”
in reference to Appellant’s statements and conduct. Far more relevant was
the fact that the jury had been presented with utterly incompatible accounts
of the shooting that could only be reconciled by determining whether or not
Appellant was lying, thus making comments on Appellant’s truthfulness by the
prosecutor both fair and unavoidable. Tellingly, here, Appellant’s trial counsel
did not object to the prosecutor’s repeated use of the term. Thus, again, we
ascertain no prosecutorial misconduct. Moreover, even considered as
misconduct, we would conclude that it was not so egregious as to suggest a
specific intent to deprive Appellant of a fair trial.
Appellant also argues that the prosecutor surreptitiously attempted to
admit his prior conviction into evidence during her direct examination of
Detective Kinavey and during the cross-examination of Appellant.
Revelation by a prosecutor of prior criminal activity in addition to
being improper as a matter of evidentiary law, may be a basis for
a finding of misconduct. In Commonwealth v. Percell, … 454
A.2d 542, 544 ([Pa.] 1982), we stated that “[a] reference, either
expressly or by reasonable implication, to prior criminal activity,
- 30 -
J-A23025-19
which does not qualify as a recognized exception to the general
rule excluding evidence of an accused’s prior criminal convictions
... is impermissible.” In addition to finding that the improper
reference was made to prior criminal conduct, we found that the
prosecutor engaged in misconduct by deliberately injecting an
improper matter into the case.
Bricker, 487 A.2d at 352.
Appellant contends that the prosecutor first attempted to expose the
jury to evidence of his prior conviction by asking the detective if Appellant was
permitted to possess a firearm (which might imply that he had a prior
conviction) instead of whether Appellant had a license to carry a firearm.
Appellant’s Brief at 60. Appellant is referring to the following exchange
between the prosecutor and Detective Kinavey:
Q. Detective, did you determine through the state of Pennsylvania
whether this defendant is licensed to carry a firearm?
MR. THOMASSEY: I’ll stipulate that he was not, Judge. That’s not
an issue in this matter.
BY MS. PELLEGRINI:
Q. So through the stipulation, Detective, Commonwealth’s Exhibit
No. 25, this is issued by the Pennsylvania State Police?
A. Yes.
Q. He is not -- he cannot possess a firearm?
A. That is correct, he cannot possess a firearm.
THE COURT: Wait one second. Jurors, it’s a different point. In this
proceeding you may hear the word “stipulation.” When both sides
agree to something being factual, then that’s a stipulation, but it’s
where both parties concede there’s a factual basis to which one
party is moving forward. All right?
MS. PELLEGRINI: Offer for cross.
N.T. Trial at 280-81 (emphasis added).
- 31 -
J-A23025-19
Notably, yet again, Appellant complains of alleged misconduct that did
not warrant a defense objection during his trial. Thus, this matter has been
waived. Nevertheless, we ascertain that Appellant was unlikely to have been
significantly prejudiced by the prosecutor’s question. That question
immediately followed the previous inquiry into whether Appellant was licensed
to carry a firearm. Because of that sequence, we seriously doubt the jury
would have assumed, as Appellant suggests, that the prosecutor had
transitioned from the topic of licensure to implying that Appellant had been
convicted of a prior crime that barred him from possessing a firearm. Instead,
the jury was more likely to have inferred from Detective Kinavey’s answer that
Appellant was not permitted to possess a firearm because he was not licensed
to do so.
Appellant also contends the prosecutor impermissibly broached the
subject of his prior conviction during his cross-examination:
During cross examination, [Appellant] stated that[,] “In 2000 I
had a license to carry a firearm.” [N.T. Trial] at 504. Following
this statement ADA Pellegrini asked to approach. Id. After
approaching, ADA [Pellegrini] stated: “[Appellant] just said that
he had a license to carry a gun in 2000. Well, in 2001 … he pled
guilty to firearms without a license, and I’d like to - I believe he’s
opened the door.” Id. at 505. Again, ADA Pellegrini is showing
that she knows the difference between carrying a firearm without
a license, and person not to possess, but more importantly, ADA
Pellegrini is attempting to be permitted to impeach [Appellant]’s
statement that he had a permit, in 2000, with a 2001 conviction.
This is completely improper, because 2001 comes after 2000, and
it is entirely possible for someone to have a license in 2000, and
not 2001. This shows that ADA Pellegrini simply wanted to place
into evidence that [Appellant] had a prior conviction, regardless
of how sneaky she had to be in the case.
- 32 -
J-A23025-19
Appellant’s Brief at 60-61.
However, it is clear from the record that the prosecutor did not attempt
to surreptitiously expose Appellant’s prior conviction to the jury—she
immediately requested a sidebar to get a ruling as to whether that door had
been opened by Appellant. This was proper, not improper conduct. Appellant
cites no case law whatsoever suggesting that a prosecutor cannot make such
an argument to the court outside the presence of the jury. Appellant’s
argument suggests that when a prosecutor loses a legal argument (and then
complies with the resulting ruling), that is evidence of misconduct intended to
deprive the defendant of a fair trial. Such a conclusion is absurd and,
nevertheless, not supported by any case law cited by Appellant. Accordingly,
we conclude that this aspect of Appellant’s double-jeopardy claim is meritless
as well.
Appellant next argues that his retrial should be barred due to the
prosecutor’s failure to preserve a video of the parking lot outside of the Eat’n
Park, which did not show the shooting, but which arguably corroborated part
of his account of events. This was precisely the issue for which Appellant was
granted a new trial. Nevertheless, Appellant believes that the
Commonwealth’s conduct with regard to the after-discovered video was so
egregious that it evidenced an intent to deprive him of a fair trial. Appellant
contends that
mere hours after the shooting law enforcement knew that there
were multiple surveillance cameras at Eat[’n] Park. ADA
Pellegrini, who is in charge of the investigation and prosecution,
- 33 -
J-A23025-19
on December 22, in response to a direct discovery request from
[Appellant]’s then attorney, stated in a letter to defense counsel
that “You were provided with all available video.” ADA Pellegrini
is responsible for gauging the effect of any failure by police to
bring favorable evidence to her attention, and here, she knew that
there was at least one other video available, because the police
report specifically mentioned camera two. Further, had Ms.
Pellegrini contacted one of the detectives on this case, they would
have informed her that more video was available. ADA Pellegrini
testified that she didn’t recall if she asked any of the detectives if
there were more videos available. [First Double-Jeopardy
Hearing] at 80. Further, numerous crime scene photos show other
surveillance cameras both inside and outside of Eat[’n] Park. ADA
Pellegrini, who was in charge of the investigation and prosecution
in this case, certainly would have seen those cameras before she
wrote the December 22, 2008 letter to [Appellant]’s attorney
stating that all available video had been turned over. Further,
[Appellant]’s attorney[] Ms. Kreisman[,] testified that she didn’t
subpoena any additional video because she thought the
Commonwealth would provide her all of the video. [First Double-
Jeopardy Hearing] at 23.
Ms. Pellegrini capitalized on her failure to preserve and provide
the defense with all of the video in her closing argument. In her
closing[,] ADA Pellegrini stated[:] “And what does he do? He goes
out to that car and gets that gun, and now he has the great
equalizer, the great—this thing right here.” [N.T. Trial] at 597.
This statement was completely untrue, and the Commonwealth
knew that this statement was untrue, as Det. Kinavey testified[:]
Q: “Now, you watched all the videos in this case?
A: I did.
Q: So, the videos don’t show [Appellant] going into his
vehicle, do they?
A: It does not show his vehicle, correct.”
[First Double-Jeopardy Hearing] at 69.
During the Double-Jeopardy hearing, none of the police officers,
[n]or ADA Pellegrini[,] could remember who was the lead
detective and who sat at counsel table with ADA Pellegrini during
trial. This is important to this case, as in different parts of the
case, the detective sitting at counsel table, would have known that
ADA Pellegrini was making an untrue statement. For example, if
Det. Kinavey was at counsel table, then he would have known that
- 34 -
J-A23025-19
ADA Pellegrini was not making a truthful statement when she
stated [Appellant] went to his vehicle to get the gun. This not
truthful statement by ADA Pellegrini directly contradicts
[Appellant]’s testimony in this case. However, as ADA Pellegrini
is the individual who is responsible for gauging the effect of not
providing the evidence, regardless of any failure by the police, the
responsibility for this untrue statement, and ADA Pellegrini’s
decision to capitalize on her discovery violation, is the
responsibility of the prosecutor, ADA Pellegrini.
Appellant’s Brief at 64-66.
Here, there is no dispute that the at-issue video should have been given
to Appellant in discovery. Indeed, Appellant was granted a new trial due to
this very discovery violation. However, the crux of Appellant’s double-
jeopardy argument is that the prosecutor knew about the video and
intentionally lied to the defense when she averred that all security videos had
been provided in discovery, or that she suspected or should have known that
it existed, but nonetheless intentionally failed to look into the matter so she
could use the absence of the video to deprive Appellant of a fair trial.
In denying Appellant’s double-jeopardy claim, the trial court rejected
this characterization of the prosecutor’s actions, determining instead that
Appellant “failed to establish intent, bad faith or a motive by the prosecutor
to provoke a mistrial or intentionally deprive Appellant of a fair trial by
withholding video from other security cameras at Eat’n Park.” Opinion at ¶
14. As the Commonwealth explains:
At the hearing on [Appellant’s double-jeopardy] motion, … ADA
Pellegrini testified that she had only ever been given one video
from the surveillance cameras at Eat’n Park—the one played by
the Commonwealth at trial that depicted the vestibule of the
restaurant—and that, when asked about the subject prior to trial
- 35 -
J-A23025-19
by [Appellant]’s defense counsel at the time, Erika Kreisman, she
told Attorney Kreisman that she had provided the defense with all
of the video[s] in her possession. [Detective] Kinavey … testified
that he had watched all of the angles of the Eat’n Park surveillance
video [N.T. Trial at 57]. Detective Kinavey stated that, after
having done so, he collected only the angle from Camera 2—the
one that showed the vestibule that captured customers entering
and exiting the restaurant—and that he did not ask Eat’n Park to
preserve any of the other footage. At a continuation of the hearing
about two weeks later, William Moore, the director of safety and
security for Eat’n Park Hospitality Group, testified that Eat’n Park
does not have a corporate policy as to when surveillance video
must be saved, but because of the shooting, he chose to preserve,
of his own volition, some of the surveillance footage captured by
other cameras at the time of the murder in order to protect the
corporation’s interests should some sort of issue arise as a result
of the shooting. Moore stated that discs containing the video
remained in his desk drawer until he received a subpoena from
the defense at a point subsequent to [Appellant]’s trial.
Commonwealth’s Brief at 18-19. The Commonwealth then contends that, with
regard to its concession to a new trial, it was not admitting any error that
warranted barring Appellant’s retrial:
Appellant took the stand in his own defense at trial and, as far the
Commonwealth is concerned, told a fanciful story regarding what
led to the death of [the victim]. For instance, [Appellant], in
explaining why he was in possession of a gun after maintaining
that he did not carry one, said that he just happened to take one
from his friend Ramon Bentley that night because he felt that
Bentley was too intoxicated to carry it around. The
Commonwealth finds this testimony to be incredible, as was
[Appellant]’s contention that he believed that there was someone
out in the parking lot of the Eat’n Park in a Chevy Blazer who was
working in association with Brooks to do him harm. Nevertheless,
that was the story that [he] told, and it was ultimately for the jury
to determine its veracity. Thus, given that the parking-lot
surveillance video arguably provided some support for
[Appellant]’s version of events, the Commonwealth, out of a sense
of fairness, acknowledged that it was an error in the discovery
process for [Appellant] to have gone to trial without having access
to the footage. But[,] that is certainly not the same thing as
- 36 -
J-A23025-19
saying that the Commonwealth believes that the video would have
likely produced a different verdict at trial or that the prosecutor
had intentionally tried to prevent [Appellant] from having a fair
trial.
Id. at 20.
The Commonwealth futher argues:
While this Court has not foreclosed the possibility that misconduct
by the police, in addition to the prosecutor, may also warrant the
dismissal of charges under a double-jeopardy analysis, “there may
be no double-jeopardy dismissal if [the police] misconduct is
unintentional or if it does not lead to intentional misconduct of the
prosecutor.” Commonwealth v. Adams, 177 A.3d 359, 372-73
(Pa. Super. 2017). Here, Detective Kinavey’s actions certainly do
not rise to the level of intentional misconduct, as his hearing
testimony suggested that he saw no evidentiary value in the
parking-lot video, a not-unreasonable position given that the
video-which, inarguably, does not depict the shooting-does not
appear on its surface to have any bearing on the murder. In
denying [Appellant]’s motion to dismiss pursuant to double
jeopardy, Judge Rangos found credible the testimony of both ADA
Pellegrini and Detective Kinavey and ruled that there was no
intentional withholding of any video evidence. Thus, because the
instant matter clearly does not contain the “deliberate
concealment” of evidence found by the Supreme Court in Smith
to have established bad faith on the part of the prosecution such
that retrial was precluded-in other words, because nobody here
hid anything-[Appellant]’s claim as to the video must certainly fail.
See also Adams, 177 A.3d at 374 (“Because the trial court found
that there was no intentional misconduct or intent to deprive
Appellant of a fair trial, and because those findings are supported
by the record, we affirm its holding that Appellant is not entitled
to have the charges against him dismissed on double jeopardy
grounds.”).
Commonwealth’s Brief at 21-22 (some citations omitted).
We agree with the Commonwealth’s analysis. Because the trial court
did not find any intent to conceal or destroy exculpatory evidence by either
the prosecutor or the police, there are no grounds for barring Appellant’s
- 37 -
J-A23025-19
retrial on double jeopardy principles based on the failure of the
Commonwealth to provide the at-issue video during discovery. The discovery
violation warranted a new trial where Appellant could present the after-
discovered video. However, it did not evidence misconduct that was
intentionally designed to deprive Appellant of a fair trial.
Finally, Appellant also maintains that the prosecutor engaged in
misconduct by failing to preserve the knife found in the victim’s pocket. It is
undisputed that a knife was found in the victim’s possession after the shooting
and that it was subsequently returned to the victim’s wife five days after the
shooting. Appellant contends that the prosecutor engaged in misconduct by
not preserving that evidence, and for ostensibly misleading the jury by
repeatedly suggesting that the victim was unarmed when he was shot by
Appellant.
We first note that this is a not a matter of after-discovered evidence.
Appellant was aware of the victim’s possession of the knife at trial, and it is
undisputed that such information was disclosed to the defense, and that the
failure to preserve the knife was raised by the defense prior to the first trial
and before the jury. At trial, one of the Commonwealth’s own witnesses,
Detective Scott Towne, told the jury of its existence:
Q. I’m going to show you what I’ve marked as Defense Exhibits D
and E which were turned over in discovery in this case by
the District Attorney’s Office to me and ask you if you
recognize those two items.
A. Yes, I do.
- 38 -
J-A23025-19
Q. What are they?
A. Defense Exhibit D is a typed receipt from the Allegheny County
Police Department as far as items returned to a family member,
and Defense Exhibit E is a UPMC Mercy valuables record envelope
which would have been collected at the hospital by hospital staff.
Q. So the hospital staff at UPMC Mercy collects things, that’s E,
gives them to the Allegheny County Police, that’s D, who gave
them to Linda Brooks, the wife of the deceased. Correct?
A. That’s correct.
Q. And you would agree that at the hospital they found a knife on
Mr. Brooks that was turned over to the police who turned it over
to Mrs. Brooks. That’s what the property receipts indicate.
Correct?
A. The Defense Exhibit E from UPMC Mercy has one knife, which
you have circled, and on the Defense Exhibit D, it has one Mtech,
that’s M-t-e-c-h, folding pocketknife as one of the items returned
to Linda Brooks.
N.T. Trial at 242-43 (emphasis added). Subsequently, during his closing
statement, Appellant’s trial counsel made the following argument to the jury:
So it seems to me -- it seems to me when [the victim] comes out
of the restaurant, he has a phone, they want to say, in his hand.
Right? So they got that. So the same place they got the phone,
they got the knife. So I expected the District Attorney to bring
some detective in here to explain—explain this, explain it to me,
please, where the knife went, where did they get it[?] Guess what
they did? They ignored it. They ignored it because what they
want to do is just say it’s another inner-city killing. Just put them
all in prison. You can’t do that. Don’t you let them do that.
Id. at 581.
Thus, while the Commonwealth’s failure to preserve the knife
constitutes misconduct, it was, nonetheless, discussed at length at trial, its
existence was used to buttress Appellant’s self-defense claim, and the
Commonwealth’s failure to preserve it was used by Appellant to discredit the
- 39 -
J-A23025-19
investigation in the eyes of the jury. Critical to Appellant’s self-defense claim
was whether the knife was in the victim’s hand at the time of the shooting, a
claim that was proffered by Appellant alone, but contradicted by the
Commonwealth’s eye-witnesses. In this context, it appears speculative, at
best, that the actual knife would have provided any more value to the defense.
Arguably, the Commonwealth’s failure to preserve the knife has only served
to hurt the prosecution because of the way Appellant’s trial counsel was able
to exploit that error. We also note that Appellant has failed to discuss any
efforts the defense made to recovered the knife from the victim’s family over
the last 10-11 years; thus, it is not even clear from the record that it is not
recoverable.
As to the specific matter at hand—whether the failure to preserve the
knife was misconduct intended to deprive Appellant of a fair trial—the trial
court determined that Appellant failed to meet his burden of showing that the
Commonwealth acted in bad faith by returning the pocketknife to the victim’s
family. Opinion at 10 ¶ 15. Because it was found in the victim’s pocket,
Detective Hediger did not believe it to be of evidentiary value. While it was
not for Detective Hediger to make such a determination, the trial court
nonetheless evaluated his credibility and determined that he did not act to
intentionally deprive Appellant of a fair trial. Indeed, the fact that the
existence of the knife was documented in the police report supports this
determination. Accordingly, although we agree with Appellant that the police
- 40 -
J-A23025-19
should have preserved the knife for trial, we also agree with the trial court
that this misconduct did not justify barring Appellant’s retrial.
As discussed above, we additionally conclude that none of the other
matters raised by Appellant individually warrant barring his retrial on double-
jeopardy grounds. After careful consideration, we are also unconvinced that
these matters collectively warrant barring Appellant’s retrial. While the
prosecutor in this case was at-times overzealous, we see no clear evidence of
a specific intent to deprive Appellant of a fair trial, nor evidence of misconduct
intended to provoke Appellant into seeking a mistrial. Moreover, we conclude
that the prosecutorial misconduct that did occur in this case will be adequately
remedied by the new trial that the PCRA court already afforded to Appellant.
II
Next, Appellant argues that “under the doctrine of judicial admissions[,]
the Commonwealth is precluded from proceeding on the charge of first-degree
murder” at Appellant’s new trial. Appellant’s Brief at 80 (some capitalization
omitted). “Statements of fact by one party in pleadings, stipulations,
testimony, and the like, made for that party’s benefit, are termed judicial
admissions and are binding on the party.” John B. Conomos, Inc. v. Sun
Co., Inc. (R&M), 831 A.2d 696, 712 (Pa. Super. 2003).
For an averment to qualify as a judicial admission, it must be a
clear and unequivocal admission of fact. Judicial admissions are
limited in scope to factual matters otherwise requiring evidentiary
proof, and are exclusive of legal theories and conclusions of law.
The fact must have been unequivocally admitted and not be
merely one interpretation of the statement that is purported to be
a judicial admission.
- 41 -
J-A23025-19
Id. at 713.
Appellant contends that the Commonwealth made a binding judicial
admission by conceding that Appellant’s after-discovered evidence claim
warranted a new trial. The Commonwealth contends that this issue is outside
the scope of the double-jeopardy claim certified by the trial court pursuant to
42 Pa.C.S. § 702(b). Section 702(b) provides as follows:
(b) Interlocutory appeals by permission.--When a court or
other government unit, in making an interlocutory order in a
matter in which its final order would be within the jurisdiction of
an appellate court, shall be of the opinion that such order involves
a controlling question of law as to which there is substantial
ground for difference of opinion and that an immediate appeal
from the order may materially advance the ultimate termination
of the matter, it shall so state in such order. The appellate court
may thereupon, in its discretion, permit an appeal to be taken
from such interlocutory order.
42 Pa.C.S. § 702(b).
Here, it is undisputed that the trial court certified that Appellant’s
double-jeopardy claim was immediately appealable pursuant to Section
702(b). The Commonwealth contends that none of Appellant’s remaining
claims were certified for interlocutory review and, thus, that this Court lacks
jurisdiction to entertain them. The instant issue, however, arguably arises out
of the same after-discovered evidence claim that forms a substantial part of
Appellant’s double-jeopardy claim. Additionally, Appellant seeks the same
form of relief—barring retrial. Thus, out of an abundance of caution, we will
address this claim on its merits.
As Appellant explains:
- 42 -
J-A23025-19
Under [the after-discovered evidence test,] a defendant must
plead and prove, by a preponderance of the evidence[,] the
following four prong test:
1) The evidence could not have been obtained prior to the
conclusion of the trial by the exercise of reasonable
diligence;
2)The evidence is not merely corroborative or cumulative;
3)The evidence would not be used solely to impeach the
credibility of a witness; and
4) The evidence would likely result in a different verdict if a
new trial were granted.
Commonwealth v. Pagan, 950 A.2d 270, 292 ([Pa.] 2008) [].
This test is conjunctive, and the defendant must show that each
factor has been met. Id. Following the filing [of Appellant]’s PCRA
petition, the Commonwealth filed their answer on September 22,
2017. Paragraph four (4) of the Commonwealth’s Answer states:
“Upon review of the record and the PCRA Petition, the
Commonwealth submits that Petitioner is entitled to PCRA relief
as to the newly[-]discovered evidence claim; specifically, the
newly discovered additional video surveillance.” Therefore, the
Commonwealth, in their answer admitted that … it is likely that a
first-degree murder conviction is unlikely.
Appellant’s Brief at 80-81 (some capitalization omitted).
We disagree. We ascertain no “clear and unequivocal admission of fact”
in the Commonwealth’s concession that the after-discovered evidence
warranted a new trial in this case. The alleged ‘fact’ conceded—that the
evidence would likely result in a different verdict if a new trial were granted—
is a fact expressed as a probability, which necessarily includes the possibility
that the verdict would be the same after a new trial if the newly-discovered
fact were before the jury. Statements about probability of mere likelihood
(‘more likely than not,’ or similar characterizations), are equivocal statements
- 43 -
J-A23025-19
of fact. Thus, by conceding that Appellant met the requirements of the after-
discovered test in his PCRA petition, the Commonwealth only conceded that a
new trial might result in a different verdict, not that it can only result in a
different verdict. Accordingly, this claim lacks merit.10
III.
Next, Appellant contends that the trial court abused its discretion by
permitting the Commonwealth to “reopen” the double-jeopardy hearing,
“when the Commonwealth did not provide a reasonable explanation as to why
it should be allowed to reopen the hearing.” Appellant’s Brief at 84-85.
Appellant waived this issue.
Initially, we must again address the Commonwealth’s assertion that this
issue was not certified by the trial court for immediate appeal pursuant to
Section 702(b). However, we see no rational reason to divorce a claim related
to the process of the trial court in denying Appellant’s double-jeopardy claim
from the claim itself. Appellant’s double-jeopardy claim is properly before this
Court at this time and, thus, subsidiary issues involving the process of deciding
that issue could be deemed previously litigated or moot in a subsequent direct
____________________________________________
10 Additionally, we are not inclined to create a new rule whereby the
Commonwealth is disincentivized from yielding to the court’s granting of a
new trial in cases when potentially exculpatory evidence is discovered after a
conviction. Indeed, we commend the Commonwealth for its concession in this
case, when it could have presented at least a plausible argument that the
after-discovered evidence was not likely to result in a different verdict.
- 44 -
J-A23025-19
appeal. Thus, we will address the merits of this claim under the umbrella of
Appellant’s double-jeopardy claim.
Following the first double-jeopardy hearing in this case, the
Commonwealth filed a motion seeking to reopen the record. See
Commonwealth’s Motion to Reopen the Record, 8/27/18. The matter was
addressed at the outset of the second double-jeopardy hearing, held on
September 4, 2018. The trial court first acknowledged Appellant’s objection
to reopening the record. N.T., 9/4/18, at 6. Defense counsel then stated that
reopening the record “would prejudice the defense” because counsel did not
have “an investigator or transcript from the original hearing to use today.”
Id. Counsel also indicated that the court’s denial of IFP status had hampered
his ability to cross-examine or rebut the Commonwealth’s witness. Id. In
direct response to this allegation of prejudice, the trial court twice indicated
its willingness to postpone the hearing to allow the defense more time to
prepare. Id. at 6, 7. After conferring with Appellant, defense counsel stated
that his client wished to proceed, effectively refusing the opportunity to
postpone the matter. Id. at 7-8.
In his brief, Appellant asserts that the court did not allow him an
opportunity to object to the Commonwealth’s motion to reopen. The record
plainly belies that assertion, as the court clearly acknowledged Appellant’s
objection to reopening the record and then offered to postpone the hearing to
allow Appellant sufficient time to prepare. Appellant further asserts that
reopening the record “precluded the defense from having an opportunity to
- 45 -
J-A23025-19
meet the additional evidence….” Appellant’s Brief at 90. Yet, Appellant fails
to assert why the court’s offer of a postponement was insufficient to alleviate
any prejudice he would suffer by reopening the record to permit a single
Commonwealth witness to testify.11 Indeed, in his brief, Appellant fails to
mention or discuss the court’s offer to postpone the case at all. On this basis,
we conclude that Appellant waived his claim that the trial court erred by
permitting the Commonwealth to reopen the record by refusing the court’s
offer to postpone the matter and electing to proceed with the hearing.
Alternatively, even if we considered the merits of his claim, Appellant has
failed to convince us that he was prejudiced by the court’s decision to reopen
the record.
IV.
Next, Appellant argues that he followed the correct procedure by filing
a double-jeopardy motion during the pre-trial proceedings, i.e., that he did
not waive his double-jeopardy claim by failing to appeal the PCRA court’s order
granting him a new trial (which effectively denied the identical double
jeopardy claim that was raised in his PCRA petition). We addressed this
matter at the outset of Appellant’s double-jeopardy claim above, holding that
Appellant did not waive the claim by failing to appeal from the PCRA court’s
order.
____________________________________________
11 Nor does Appellant contend with the fact that the court indicated that the
at-issue witness’s testimony was unlikely to be of “tremendous consequence”
to the double-jeopardy issue. N.T., 9/4/18, at 10-11.
- 46 -
J-A23025-19
V.
Appellant asserts that the trial court erred in denying him IFP status,
which is the sole claim raised under Appellant’s appeal filed at 1406 WDA
2018. Appellant, who is currently represented by private counsel, argued
below that he was nonetheless entitled to IFP status because he is, and has
been, indigent since the outset of his first trial.12 The Commonwealth argues
that this appeal should be quashed, claiming that we lack jurisdiction to
entertain it.
The Superior Court has jurisdiction to entertain appeals taken (1)
as of right from a final order, Pa.R.A.P. 341, 42 Pa.C.S. § 742; (2)
from interlocutory orders by permission, Pa.R.A.P. 312, Pa.R.A.P.
1311, 42 Pa.C.S. § 702(b); (3) from certain interlocutory orders
as of right, Pa.R.A.P. 311; 42 Pa.C.S. § 702(a); and (4) from
certain collateral orders, Pa.R.A.P. 313.
A final order is (1) any order that disposes of all claims or of all
parties, (2) any order that is expressly defined as a final order by
statute, or (3) any order entered as a final order pursuant to
subsection (c) of Pa.R.A.P. 341.
Redevelopment Auth. of Cambria County v. Intl. Ins. Co., 685 A.2d 581,
585 (Pa. Super. 1996) (some citations omitted).
In the civil context, our Supreme Court has held that:
A litigant who is denied the ability to bring a cause of action due
to his true inability to pay the costs is effectively put out of court.
Because such a denial may close the courthouse door to litigants,
____________________________________________
12 It appears that Appellant’s current counsel was retained on Appellant’s
behalf by a third party after Appellant was awarded a new trial. Appellant
posits that “indigency turns on [his] ablity to pay costs and fees, not whether
undersigned counsel was court-appointed or privately retained.” Appellant’s
Brief at 96.
- 47 -
J-A23025-19
they must be permitted to appeal the denial of in forma pauperis
status.
Grant v. Blaine, 868 A.2d 400, 402–03 (Pa. 2005).
Instantly, Appellant did not seek permission for an interlocutory appeal
by permission pursuant to Section 702(b). Furthermore, none of the special
circumstances set forth in Rule 311, Rule 313, or Section 702(a) apply. Thus,
we must quash the appeal at 1406 WDA 2018 unless the order denying IFP
status constitutes a final order. Applying the test stated above, it is clear that
order denying IFP status clearly does not dispose of all claims or any parties.
Appellant’s trial will proceed with the same charges and same litigants
(Appellant and the Commonwealth) regardless of Appellant’s IFP status.
Additionally, the order denying IFP status is not expressly defined as a final
order by any statute, and there is no indication that Rule 341 applies. This
suggests that the denial of IFP status is not a final order.
Indeed, Appellant is in no sense ‘put out of court’ by the order denying
IFP status. The Commonwealth has no interest in ending the prosecution,
which will continue regardless of Appellant’s IFP status. If convicted again,
Appellant could challenge the denial if IFP status in a direct appeal from the
order of sentence. Thus, Appellant would have another opportunity to
challenge the order unless acquitted, in which case the IFP status issue would
become moot. Additionally, Appellant might continue to seek IFP status in the
trial court if he can prove that he qualifies under the relevant standard. Thus,
in no sense is the lower court’s order denying IFP status a final order in the
- 48 -
J-A23025-19
same manner as it is in the civil context, as our Supreme Court held in Grant,
supra.
Nevertheless, in Commonwealth v. Lepre, 18 A.3d 1225 (Pa. Super.
2011), this Court, citing “the dearth of case law concerning IFP applications
for fees and costs in the context of a criminal case,” applied the holding in
Grant and consider the merits of an appeal from an order denying IFP status
in a criminal case. Id. at 1226. The Lepre decision failed to conduct any
separate analysis from Grant in the criminal context; however, to our
knowledge, there is no case law that reaches a contrary result. Because of
this, we are compelled to conclude that the order denying IFP status is a final,
appealable order. Lepre; see also Commonwealth v. Pepe, 897 A.2d 463,
465 (Pa. Super. 2006) (“It is beyond the power of a Superior Court panel to
overrule a prior decision of the Superior Court … except in circumstances
where intervening authority by our Supreme Court calls into question a
previous decision of this Court.”). Thus, we reach the merits of Appellant’s
claim.
In Appellant’s motion for IFP status, he averred that he “is indigent and
does not have the ability to pay for the necessary routine costs involved with
this case, transcripts, subpoenas, a private investigator, etc….” IFP Motion,
8/16/18, at 2 ¶ 6. The trial court (Judge Cashman) denied the motion
because,
[Appellant] provided nothing but the bald assertion of the question
of his indigency and did not provide a sufficient basis for this
[c]ourt to make a determination as to whether or not he was
- 49 -
J-A23025-19
indigent and did not have the resources to fund his litigation and,
accordingly, this [c]ourt denied, without a hearing, his request
for the Commonwealth to pay the costs of his litigation.
IFP Opinion, 3/15/19, at 4-5 (emphasis added).
This Court recognized in Lepre that “[i]f a trial court disbelieves the
averments in an application to proceed in forma pauperis, it is required to hold
a hearing on the application to determine the veracity of the allegations
contained therein.” Lepre, 18 A.3d at 1227 (quoting Crosby Square
Apartments v. Henson, 666 A.2d 737, 738 (Pa. Super. 1995)). However,
in both Lepre and Crosby, the appellants had made more specific averments
of their financial status. For instance, Lepre had averred that he had “$1,600
in monthly gross income, no assets, an obligation to support one child,
monthly rent of $400, and approximately $85,000 in various debts.” Lepre,
18 A.3d at 1228.
Nevertheless, neither Lepre nor Crosby were incarcerated at the time
they filed their motions for IFP status, whereas it is undisputed in this case
that Appellant has been incarcerated since 2008, a condition that Appellant
averred in his IFP motion had deprived him of “the ability to work, or otherwise
earn any money.” IFP Motion at 1 ¶ 4. While that does not necessarily mean
that Appellant will qualify for IFP status under the applicable standard, we
nevertheless conclude that Appellant has sufficiently “pled a prima facie case
of poverty and averred an inability to pay” to warrant an IFP hearing. Lepre,
18 A.3d at 1228. Thus, the trial court’s decision to deny Appellant’s IFP
motion without a hearing constituted an abuse of its discretion. Id.
- 50 -
J-A23025-19
Accordingly, we vacate the order denying Appellant’s motion for IFP
status, and remand for a hearing to decide that motion, at which Appellant
must be afforded the opportunity to present evidence of his poverty/inability
to pay.13
VI.
Next, Appellant claims the trial court erred by quashing a defense
subpoena served on the Pittsburgh Police Gang Intelligence Unit. It is
undisputed that the victim was a member of the Sin City Disciples. The
Commonwealth maintains that the Sin City Disciples is a motorcycle club,
whereas Appellant alleges that the organization is essentially a criminal gang,
or at least, that the Sin City Disciples has a significant criminal element.
Appellant further contends his characterization of the Sin City Disciples
buttresses his self-defense claim, and that the subpoena was necessary to
collect potentially exculpatory evidence to that effect. The Commonwealth
avers that we do not have jurisdiction to entertain this claim. We are
compelled to agree with the Commonwealth.
____________________________________________
13 We express no opinion at this time regarding the ultimate weight the trial
court should afford to the fact that Appellant was provided with private counsel
by a third party for his new trial. Such a fact is surely relevant to the trial
court’s analysis, as the cost of counsel is itself a significant factor in
determining his ability to pay the costs associated with his legal defense.
However, to our knowledge, there is no case law suggesting that a defendant
is not entitled to IFP status when a third party retains counsel on his or her
behalf. Accordingly, we leave it to the trial court to address this matter in the
first instance.
- 51 -
J-A23025-19
Appellant did not file an interlocutory appeal from the order quashing
his subpoena. On this basis alone, we conclude that we are without
jurisdiction to entertain this issue. The matter is simply not before us at this
time, despite Appellant’s inclusion of the issue in his Rule 1925(b) statement
and brief. While we conclude we are without jurisdiction to entertain this
matter, we do so without prejudice to Appellant’s ability to raise the claim
again on any subsequent direct appeal.
Alternatively, to the extent that Appellant alleges that this matter was
essential to his double-jeopardy claim, we would still reject it on the merits.
Appellant argues that the prosecutor engaged in misconduct at the first trial
by characterizing the Sin City Disciples as something other than a criminal
gang. He also alleges that the current prosecutor engaged in misconduct by
refusing to stipulate that Sin City Disciples were ‘at least 1% criminal’ for
purposes of the new trial and/or double-jeopardy hearing.14
Regarding the prosecutor’s statements during trial, even if those
statements constituted prosecutorial misconduct, we cannot imagine a
scenario in which that fact would have been critical in our determination of
whether Appellant is entitled to a new trial, or whether barring retrial would
____________________________________________
14 Appellant buttresses these arguments by asserting that the Sin City
Disciples are listed as a criminal gang by federal authorities. However,
Appellant fails to direct this Court’s attention to where this fact is supported
by the certified record. Nevertheless, even if accepted as true, this fact would
not alter the following analysis.
- 52 -
J-A23025-19
be warranted on double jeopardy grounds. At the very most, we would
consider it to have warranted a new trial in conjunction with the other acts of
prosecutorial misconduct, relief for which has already been granted. 15 As to
Appellant’s complaint that the prosecution refuses to stipulate to the
criminality of the Sin City Disciples, we observe that the Commonwealth has
no legal nor ethical duty whatsoever to stipulate to any fact, much less a fact
under contention. Accordingly, even if we had jurisdiction to entertain this
matter as a subsidiary issue of Appellant’s double-jeopardy issue, and even if
it demonstrated prosecutorial misconduct, it would still not convince us that
Appellant is entitled to relief beyond his already-granted new trial.
VII.
Finally, Appellant argues that the trial court erred when it refused to
provide him with funds for a gang expert to substantiate his allegations about
the Sin City Disciples. However, Appellant does not allege that the court
refused to hear expert testimony to that effect, only that the court refused to
pay for it. Consequently, this issue does not pertain to the merits of
Appellant’s double-jeopardy claim at all, and instead falls under the rubric of
his IFP claim. Thus, whether Appellant is entitled to such an expert paid for
by the court hinges, at least in part, on whether Appellant is entitled to IFP
____________________________________________
15 We note that proving that the Sin City Disciples is a criminal gang does not
vindicate Appellant’s self-defense claim. At best, it provides some support for
Appellant’s contention that he was fearful of the victim, which might affect a
jury’s credibility assessment of his state of mind when he shot the victim.
However, even if the jury believed that the victim was a member of a gang, it
could still have determined that Appellant did not act in self-defense.
- 53 -
J-A23025-19
status. As we are remanding for the court to reconsider Appellant’s IFP status,
Appellant may present this matter again before the trial court following its
determination.
However, for purposes of Appellant’s double-jeopardy claim, and for the
same reasons discussed with regard to Appellant’s previous issue, we would
still conclude that Appellant’s second trial should not be barred on double-
jeopardy grounds merely because the prosecutor mischaracterized the nature
of the Sin City Disciples organization, even if Appellant could have proven
through expert testimony that it is a criminal organization.
Order affirmed at 1405 WDA 2018. Order vacated at 1406 WDA 2018.
Case remanded for a hearing to determine if Appellant is entitled to IFP
status. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/24/2020
- 54 -