Com. v. Melendez, W.

J-S06022-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WILBERTO MELENDEZ :
:
Appellant : No. 486 MDA 2022
Appeal from the Order Entered March 3, 2022
In the Court of Common Pleas of Lancaster County Criminal Division at
No(s): CP-36-CR-0002279-2018
BEFORE: STABILE, J., NICHOLS, J., and STEVENS, P.J.E.*
MEMORANDUM BY NICHOLS, J.: FILED JUNE 14, 2023
Appellant Wilberto Melendez appeals from the order denying his motion
to dismiss and bar retrial on charges of criminal homicide and related offenses.
Appellant argues that the trial court erred when it denied his motion to dismiss
the charges on double jeopardy grounds. We affirm.
The trial court summarized the facts and procedural history as follows:
By criminal information . . . [Appellant has been] charged with
allegedly having committed the offenses of criminal homicide;
firearms not to be carried without a license; persons not to
possess, use, manufacture, control, sell or transfer firearms; and
intimidation of witnesses or victims. Said charges stem from a
shooting alleged to have occurred on October 27, 2017, in the 300
block of Marshall Street in the City and County of Lancaster.
Following selection of a jury, trial initially commenced in the
instant matter on May 14, 2019. On May 21, 2019, during the
sixth day of testimony, a Commonwealth witness testified to
statements purportedly made by [Appellant] boasting that he had
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* Former Justice specially assigned to the Superior Court.
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committed a prior killing, had beaten that charge, and was going
to beat the current charges as well. Prior to the commencement
of trial, the attorney for the Commonwealth [indicated] that he
had affirmatively instructed all Commonwealth witnesses not to
discuss such matter[s]. Additionally, at this time, the attorney for
the Commonwealth indicated that he had not elicited, and was
surprised by, . . . such testimony. Due to the prejudicial nature
of such testimony, the court granted [Appellant’s] motion and
granted a mistrial.
The second trial in the instant matter commenced with jury
selection on May 10, 2021. On this date, a meeting occurred at
the Lancaster City Bureau of [Police] Headquarters between
Assistant District Attorney Cody Wade [(ADA Wade)], Detective
Sergeant Robert Whiteford, and Antasia Bair to prepare Ms. Bair
for her trial testimony. At the evidentiary hearing relative to
[Appellant’s] instant motion, [ADA] Wade credibly testified that
this meeting had not previously occurred due to scheduling
concerns. During this meeting, Ms. Bair reviewed her prior
statements and testimony, received a preview of what to expect
at trial, and was admonished by [ADA] Wade to tell the truth and
avoid reference to any improper subjects during her trial
testimony. This meeting was not recorded, nor were any verbatim
or substantially verbatim recordings generated from this meeting.
During this meeting, Ms. Bair mentioned certain things which were
relevant to the matter which were not previously disclosed or
varied from the information that she had previously provided to
the investigators. This information included claims that she had
seen Ernest Talton possess a firearm during the evening in
question and that she heard Ernest Talton admonish someone,
whom she believed to be [Appellant], that he should not harm the
victim. In addition, at this time, Ms. Bair indicated that she
observed [Appellant] “choke up” Quetesha Payne [in the parking
lot of] a Turkey Hill convenience store in the early morning hours
[during a confrontation involving Appellant, Talton, and the
victim] preceding the homicide. [ADA] Wade credibly testified
that he had no reason to believe the veracity of this representation
as it was not supported by any other evidence in this matter.
[ADA] Wade further credibly testified that he instructed Ms. Bair
during this meeting that they were not going to discuss this topic
during her trial testimony. Specifically, [ADA] Wade instructed
Ms. Bair that her trial testimony would be limited in scope to what
was developed during her testimony at the prior trial and in her
prior statements to the investigators. [ADA] Wade credibly
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testified that he believed that Ms. Bair was sufficiently cautioned
and that she understood that this allegation would not be
introduced during her testimony at the upcoming trial. Following
this meeting, [ADA] Wade instructed Detective Sergeant
Whiteford to prepare a supplemental report regarding this
meeting. Detective Sergeant Whiteford prepared such a report,
although this report did not include any reference to Ms. Bair’s
claims regarding [Appellant] purportedly placing his hands upon
Ms. Payne. At the evidentiary hearing held in this matter,
Detective Sergeant Whiteford testified that he did not hear Ms.
Bair make such comments. This supplemental report was
provided to counsel for [Appellant] on May 12, 2021.
On May 13, 2021, prior to the commencement of testimony for
the day, the court met with counsel for the parties outside the
presence of the jury. At this time, discussion was had regarding
the meeting with Ms. Bair. Specifically, Ms. Bair’s claims regarding
certain statements allegedly made by Ernest Talton were
addressed and the parties specifically agreed that this topic would
not be introduced at trial. Contrary to the representations
contained in [Appellant’s] memorandum [of law in support of his
motion to dismiss and bar retrial], the record does not
demonstrate any reference to remedies or discharge of
[Appellant] should this topic be introduced at trial. Additionally,
at this time, there was no reference made by counsel regarding
Ms. Bair’s allegations that [Appellant] had “choked up” Ms. Payne.
On May 14, 2021, the Commonwealth presented the testimony of
Antasia Bair at trial. It is noted that Ms. Bair was not an
eyewitness to the homicide. Based upon the credible
representations made by the attorneys for the Commonwealth,
Ms. Bair was presented to provide testimony regarding her
observations of the argument which occurred at the Turkey Hill
convenience store [parking lot] prior to the homicide, as well as
her knowledge of certain prior consistent statements made by an
eyewitness to the homicide which identified [Appellant] as the
shooter. During her testimony, Ms. Bair reiterated her claim that
[Appellant] had “choked up” Ms. Payne at the Turkey Hill. Again,
this allegation had not been referenced by Ms. Bair during her
testimony at the first trial and was not contained in any of her
prior statements. At this point, counsel for [Appellant] moved for
a mistrial on the basis that such testimony was prejudicial to
[Appellant] and was not provided to defense counsel through
discovery.
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Extensive argument was held on the record outside the presence
of the jury. During this argument, [ADA] Wade indicated that he
recalled Ms. Bair informing him at the recent meeting about
[Appellant] and Ms. Payne “getting into it”, but he couldn’t recall
what she had specifically told him. Additionally, at this time,
[ADA] Wade informed that court that he had instructed Ms. Bair
not to discuss this topic during her testimony. After consideration
of providing the jury with a strong curative instruction, the court
granted [Appellant’s] motion for a mistrial in light of the serious
nature of the instant matter.
On June 24, 2021, counsel for [Appellant] filed a motion to dismiss
and bar retrial. After consultation with counsel regarding their
availability, by order dated July 1, 2021, this court scheduled an
evidentiary hearing relative to [Appellant’s] motion for September
16, 2021.
In addition to the testimony noted above, at [the September 16,
2021] hearing, [ADA] Wade credibly testified that he did not seek
to elicit any testimony from Ms. Bair regarding any physical
contact between [Appellant] and Ms. Payne. [ADA] Wade further
credibly testified that he was not seeking to cause a mistrial or
prejudice [Appellant]. [ADA] Wade testified that the
Commonwealth was pleased with the progression of the trial and
that the award of a mistrial did not place the Commonwealth in a
more advantageous position.[1]
Trial Ct. Op. & Order, 3/3/22, at 1-5 (citations and footnotes omitted;
formatting altered).
On March 3, 2022,2 the trial court filed an opinion and order denying
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1 Detective Sergeant Whiteford also testified at the September 16, 2021
hearing. See N.T. Hr’g, 9/16/21, at 59-75.
2We note that although the trial court’s opinion and order denying Appellant’s
motion to dismiss was time-stamped and entered on the docket on March 2,
2022, the docket entries reflect that the trial court served the parties with a
copy of the opinion and order on March 3, 2022. See Commonwealth v.
Jerman, 762 A.2d 366, 368 (Pa. Super. 2000) (stating that “[i]n a criminal
case, the date of entry of an order is the date the clerk of courts enters the
(Footnote Continued Next Page)
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Appellant’s motion to dismiss.3 See id. at 16-18. Appellant filed a timely
notice of appeal and a timely court-ordered Pa.R.A.P. 1925(b) statement. In
lieu of a Rule 1925(a) opinion, the trial court issued an order incorporating its
March 3, 2022 opinion and order. See Trial Ct. Order, 6/17/22.4
On appeal, Appellant raises the following issue for review:
Whether [the] trial court erred in denying [Appellant’s] motion for
dismissal and barring retrial on double jeopardy grounds due to
reckless prosecutorial conduct[?]
Appellant’s Brief at 4 (formatting altered).
Appellant argues that double jeopardy bars retrial in this case because
the trial court declared a mistrial due to the Commonwealth’s misconduct. Id.
at 6-23. In support, Appellant alleges two specific instances of prosecutorial
misconduct: (1) a Brady5 violation relating to the Commonwealth’s failure to
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order on the docket, furnishes a copy of the order to the parties, and records
the time and manner of notice on the docket” (citations omitted)); see also
Pa.R.Crim.P. 114(C)(2)(c); Pa.R.A.P. 108(a)(1), (d)(1).
3 The trial court also found that Appellant’s motion was not frivolous. See
Trial Ct. Op. & Order at 17. “If the trial court enters an order denying the
motion to dismiss on double jeopardy grounds and in doing so, makes no
finding, in writing, that the motion is frivolous, then the order is a collateral
order under [Pa.R.A.P.] 313 and is immediately appealable.”
Commonwealth v. Kemick, 240 A.3d 214, 217 (Pa. Super. 2020) (citations
omitted); see also Pa.R.Crim.P. 587(B).
4 The trial court’s order adopting its prior opinion and order was time-stamped
and entered on the docket on March 29, 2022, but the docket entries indicate
that the trial court served the parties with a copy of this order on June 17,
2022. See Jerman, 762 A.2d at 368; Pa.R.Crim.P. 114(C)(2)(c).
5 Brady v. Maryland, 373 U.S. 83 (1963).
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disclose Ms. Bair’s statement that Appellant had choked Payne on the night of
the murder; and (2) the Commonwealth improperly elicited testimony about
the choking incident from Ms. Bair in violation of Pa.R.E. 404(b). Id. at 9-10.
First, regarding the alleged Brady violation, Appellant contends that the
Commonwealth possessed Ms. Bair’s statement “after trial began and
intentionally withheld them from the defense until after a mistrial was
declared.” Id. at 14. Appellant claims that the Commonwealth’s failure to
disclose Ms. Bair’s new statement satisfies all three prongs of the Brady
standard because (1) the new statement was favorable impeachment material
because it was inconsistent with Ms. Bair’s prior testimony and statements
and was inconsistent with the testimony of other witnesses; (2) the
prosecution willfully suppressed the new statement because it was not
included in Detective Sergeant Whiteford’s report of Ms. Bair’s interview; and
(3) Appellant was prejudiced by the admission of evidence relating to his other
bad acts. Id. at 19-21. Appellant concludes that the Commonwealth’s Brady
violation was intentional misconduct which bars retrial. Id. at 17-18, 21
(citing, inter alia, Commonwealth v. Smith, 615 A.2d 321 (Pa. 1992)).
Appellant also argues that the Commonwealth engaged in prosecutorial
misconduct by failing to adequately prepare Ms. Bair as a witness for trial. Id.
at 21-23. Appellant contends that ADA Wade’s testimony established that he
did not adequately prepare Ms. Bair so she would not testify as to the choking
incident, which is an inadmissible prior bad act. Id. at 22. Appellant
concludes double jeopardy bars retrial because the Commonwealth’s
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misconduct here “is tantamount to the level of recklessness in
[Commonwealth v. Johnson, 231 A.3d 807 (Pa. 2020)].” Id. at 23.
Our standard and scope of review in this case are as follows:
An appeal grounded in double jeopardy raises a question of
constitutional law. This Court’s scope of review in making a
determination on a question of law is, as always, plenary. As with
all questions of law, the appellate standard of review is de novo.
To the extent that the factual findings of the trial court impact its
double jeopardy ruling, we apply a more deferential standard of
review to those findings.
Where issues of credibility and weight of the evidence are
concerned, it is not the function of the appellate court to substitute
its judgment based on a cold record for that of the trial court. The
weight to be accorded conflicting evidence is exclusively for the
fact finder, whose findings will not be disturbed on appeal if they
are supported by the record.
Commonwealth v. King, 271 A.3d 437, 443 (Pa. Super. 2021) (citation
omitted).
Our Supreme Court has explained that
the [double] jeopardy prohibition is not primarily intended to
penalize prosecutorial error, but to protect citizens from the
embarrassment, expense and ordeal of a second trial for the same
offense and from compelling them to live in a continuing state of
anxiety and insecurity, as well as enhancing the possibility that
even though innocent they may be found guilty.
Johnson, 231 A.3d at 826 (citations omitted and formatting altered).
We must also consider the following:
The Double Jeopardy Clauses of the Fifth Amendment to the
United States Constitution and Article 1, [Section] 10 of the
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Pennsylvania Constitution[6] protect a defendant from repeated
criminal prosecutions for the same offense. Ordinarily, the law
permits retrial when the defendant successfully moves for mistrial.
If, however, the prosecution engages in certain forms of
intentional misconduct, the Double Jeopardy Clause bars retrial.
Article I, [Section] 10, which our Supreme Court has construed
more broadly than its federal counterpart, bars retrial not only
when prosecutorial misconduct is intended to provoke the
defendant into moving for a mistrial, but also when the conduct of
the prosecutor is intentionally undertaken to prejudice the
defendant to the point of the denial of a fair trial. An error by a
prosecutor does not deprive the defendant of a fair trial. However,
where the prosecutor’s conduct changes from mere error to
intentionally subverting the court process, then a fair trial is
denied.
Dismissal is an appropriate remedy in such a case because a
mistrial would be an inadequate remedy for systematic intentional
prosecutorial misconduct.
By and large, most forms of undue prejudice caused by
inadvertent prosecutorial error or misconduct can be remedied in
individual cases by retrial. Intentional prosecutorial misconduct,
on the other hand, raises systematic concerns beyond a specific
individual’s right to a fair trial that are left unaddressed by retrial.
A fair trial is not simply a lofty goal, it is a constitutional mandate,
and where that constitutional mandate is ignored by the
Commonwealth, we cannot simply turn a blind eye and give the
Commonwealth another opportunity.
In sum, conduct that constitutes mere prosecutorial error does not
implicate double jeopardy; it is prosecutorial overreaching that
cannot be condoned.
Commonwealth v. Byrd, 209 A.3d 351, 353-54 (Pa. Super. 2019) (citations
omitted and formatting altered).
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6 Article 1, Section 10 of the Pennsylvania Constitution provides in relevant
part, “No person shall, for the same offense, be twice put in jeopardy of life
or limb . . . .” Pa. Const. Art. 1, § 10.
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Additionally, our Supreme Court has expanded the definition of
“prosecutorial overreaching” to also include reckless conduct. Johnson, 231
A.3d at 826-27. Specifically, the Court held:
Under Article I, Section 10 of the Pennsylvania Constitution,
prosecutorial overreaching sufficient to invoke double jeopardy
protections includes misconduct which not only deprives the
defendant of his right to a fair trial, but is undertaken recklessly,
that is, with a conscious disregard for a substantial risk that such
will be the result. This, of course, is in addition to the behavior
described in Smith, relating to tactics specifically designed to
provoke a mistrial or deny the defendant a fair trial. In reaching
our present holding, we do not suggest that all situations involving
serious prosecutorial error implicate double jeopardy under the
state Charter. To the contrary, we bear in mind the countervailing
societal interests . . . regarding the need for effective law
enforcement, and highlight again that, in accordance with long-
established double-jeopardy precepts, retrial is only precluded
where there is prosecutorial overreaching – which, in turn,
implies some sort of conscious act or omission.
Johnson, 231 A.3d at 826 (citations omitted and emphasis in original); see
also Commonwealth v. Krista, 271 A.3d 465, 474 (Pa. Super. 2022)
(explaining that following Johnson, “retrial should be barred when the
prosecutor’s misconduct is an act of deliberate or reckless overreaching and
not an isolated incident”), appeal denied, 285 A.3d 597 (Pa. 2022).
To establish a Brady violation, a defendant must prove three elements:
“(1) the evidence at issue was favorable to the accused, either because it is
exculpatory or because it impeaches; (2) the evidence was suppressed by the
prosecution, either willfully or inadvertently; and (3) prejudice ensued.”
Commonwealth v. Roney, 79 A.3d 595, 607 (Pa. 2013) (citation omitted).
This Court has stated that “if a Brady violation is committed by a prosecutor,
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it can result in a dismissal on double jeopardy grounds if it is shown that the
prosecutor intended to deprive the defendant of a fair trial.” Commonwealth
v. Adams, 177 A.3d 359, 372 (Pa. Super. 2017) (citation omitted).
In Smith, the Commonwealth violated Brady by failing to disclose that
its chief witness received favorable treatment in unrelated criminal matters in
exchange for his testimony and by failing to disclose autopsy records that
contradicted the Commonwealth’s theory of the case and supported the
defendant’s. See Smith, 615 A.2d at 322-23. Also, there was evidence that
the Commonwealth knowingly concealed the Brady material during the trial
and for more than two years after defendant’s conviction. See id. at 323-24.
Therefore, the Smith Court concluded that “[b]ecause the prosecutor’s
conduct in this case was intended to prejudice the defendant and thereby deny
him a fair trial, [the defendant] must be discharged on the grounds that his
double jeopardy rights, as guaranteed by the Pennsylvania Constitution, would
be violated by conducting a second trial.” Id. at 325; cf. Adams, 177 A.3d
at 373-74 (holding that although the prosecutor and police committed a
Brady violation by failing to disclose video recordings of police interviews with
the co-defendant, dismissal was not warranted where the record established
the prosecutor did not act intentionally or in bad faith, but rather was “grossly
negligent”).
In Johnson, our Supreme Court granted the defendant’s petition for
allowance of appeal to determine whether “the Commonwealth’s
misrepresentation of physical evidence in [the defendant’s] first trial bar[s]
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retrial on double jeopardy grounds, notwithstanding the trial court’s finding
that the Commonwealth’s misconduct was unintentional?” Johnson, 231
A.3d at 816. Ultimately, the Johnson Court concluded that the
Commonwealth made “almost unimaginable mistakes,” in conflating two
different pieces of evidence and the results of DNA tests performed on that
evidence prior to and during trial. Id. at 826. The Court also found that
although the mistakes were unintentional, they were “strongly suggestive of
a reckless disregard for consequences and for the very real possibility of harm
stemming from the lack of thoroughness in preparing for a first-degree murder
trial.” Id. at 827 (citation omitted). Therefore, the Court held that double
jeopardy barred the defendant from being retried. Id. at 827-28. Following
Johnson, this Court held that a Brady violation will not bar retrial on double
jeopardy grounds where “[t]he prosecutor’s error . . . does not rise to the level
of the ‘almost unimaginable’ error in Johnson[,]” and the record did not
establish that “the prosecution engaged in overreaching or attempted to
subvert justice.” King, 271 A.3d at 450 (citation omitted).
Subject to certain exceptions, evidence of other crimes committed by a
defendant is generally inadmissible at trial. See Pa.R.Crim.P. 404(b)(1);
Commonwealth v. Strong, 825 A.2d 658, 665 (Pa. Super. 2003). However,
“[f]or double jeopardy purposes, unfairly prejudicial statements by witnesses
generally are not chargeable to the prosecuting attorney, especially when they
are unexpected and made on cross-examination.” Johnson, 231 A.3d at 827
n.14; see also Commonwealth v. Graham, 109 A.3d 733, 736-38 (Pa.
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Super. 2015) (concluding that the prosecutor did not engage in misconduct
where the defendant’s wife mentioned the defendant engaged in sexual
misconduct unrelated to the charged offenses because “[t]he prosecutor did
not ask, directly or indirectly, about any unrelated criminal conduct”).
Following Johnson, this Court also concluded that the Commonwealth’s
introduction of previously excluded evidence will not bar retrial, where the
Commonwealth did not engage in reckless overreaching. See
Commonwealth v. Hill, 1267 EDA 2022, 2023 WL 140340, at *4-5 (Pa.
Super. filed Jan. 10, 2023) (unpublished mem.) (prosecutor asked the
detective why the police began investigating the defendant, and the detective
testified that he identified the defendant from surveillance footage, in violation
of the trial court’s order granting the defendant’s motion in limine which
precluded that detective from offering identification evidence based on the
surveillance footage).7
Here, at trial, Ms. Bair testified that on the night of October 27, 2017,
there was a confrontation between two groups of people in the parking lot of
a Turkey Hill convenience store. See N.T. Trial, 5/14/21, at 453, 460-61. Ms.
Bair stated that Appellant arrived a few minutes later and that he was angry
and red faced. See id. at 462. ADA Wade asked Ms. Bair if Appellant said
anything, and she responded that Appellant threatened to choke the women
with Ms. Bair and was yelling “a lot of, . . . angry stuff.” See id. at 462-63.
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7We may cite to non-precedential decisions of this Court filed after May 1,
2019, for their persuasive value. See Pa.R.A.P. 126(b).
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She continued, “[a]nd in that time that’s when he choked up [Quetesha Payne]
because she was having words back with them. It was really about them at
the moment. And he choked her up.” See id. at 463. ADA Wade then asked
Ms. Bair about whether she heard if Appellant and Ernest Talton said anything
to each other during this confrontation. See id. Appellant did not immediately
object to the statement about the choking incident, but the trial court called
a sidebar. See id. The trial court asked if a cautionary instruction about prior
bad acts was necessary. See id. at 463-64. Appellant requested a mistrial
on two grounds: (1) Ms. Bair’s statement that he had choked a woman was a
prejudicial and inadmissible prior bad act, and (2) the Commonwealth violated
its continuing duty of discovery because it failed to disclose that Ms. Bair’s
new statement about Appellant choking or grabbing Ms. Payne. See id. at
464-501. The trial court granted the motion for mistrial. See id. at 501-02.
At the evidentiary hearing on Appellant’s motion to bar retrial, ADA
Wade testified that he and Detective Sergeant Whiteford met with Ms. Bair on
May 10, 2021, to prepare her to testify at trial. See N.T. Hr’g, 9/16/21, at
10-12. ADA Wade explained that Ms. Bair mentioned several facts for the first
time, including that Appellant had choked Ms. Payne during the confrontation
in the parking lot. See id. at 23-24, 46-47. ADA Wade instructed Ms. Bair
that during her testimony she had to tell the truth and not mention the first
trial or any other bad acts by Appellant. See id. at 24-26. On May 14, 2021,
the day Ms. Bair was scheduled to testify, ADA Wade briefly met with Ms. Bair
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and reminded her not to mention the prior trial, not to mention Appellant’s
other bad acts, and to tell the truth. See id. at 36-38.
After the Commonwealth informed Appellant that Ms. Bair had brought
up new information in her interview, Detective Sergeant Whiteford prepared
a supplemental report of the interview.8 See id. at 28-31. Ms. Bair’s
statement that Appellant choked Ms. Payne is not in that supplemental report.
See id. at 32-35. ADA Wade explained that he did not ask Detective Sergeant
Whiteford to revise the report to add the choking incident or Ms. Bair’s other
statements that were not included because he believed they were not relevant
and did not plan to introduce them at trial. See id. at 34-35, 49-50, 53-55.
In its opinion and order, the trial court addressed whether the
Commonwealth acted intentionally or reckless as follows:
[T]here is no evidence of record to suggest that any lack of
disclosure; by the attorneys for the Commonwealth resulted from
any intentional, willful, or reckless conduct, as opposed to mere
inadvertence.
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8 Appellant marked the supplemental report as Exhibit D-1. See N.T. Hr’g,
9/16/21, at 30-31. This exhibit is not included in the certified record.
Additionally, we note that numerous documents in the electronic certified
record are distorted or are illegible. See, e.g., Criminal Compl., 2/16/18;
Waiver of Arraignment, 5/8/18; Pro Se Mot. for Discovery/Transcripts,
8/16/19. Although the omission of Exhibit D-1 and the distorted documents
in the certified record does not impede our review, we remind counsel that,
the “[a]ppellant has the responsibility to make sure that the record forwarded
to an appellate court contains those documents necessary to allow a complete
and judicious assessment of the issues raised on appeal.” Commonwealth
v. Wint, 730 A.2d 965, 967 (Pa. Super. 1999) (citations and quotation marks
omitted); see also Pa.R.A.P. 1921, Note (stating that “[u]ltimate
responsibility for a complete record rests with the party raising an issue that
requires appellate court access to record materials” (citation omitted)).
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Most importantly, it must be recognized that the mistrial granted
in this matter, upon [Appellant’s] motion, did not pertain to any
purported discovery violations. More specifically, the court
granted a mistrial in this matter because the jury was presented
with testimony regarding a purported prior bad act allegedly
committed by [Appellant] some time before, and at a different
location, from the homicide.
In assessing this claim, as noted above, the court finds that [ADA]
Wade credibly testified that: he did not intend to introduce this
evidence at trial; he admonished Ms. Bair not to present this
testimony at trial; he did not elicit such testimony; he was
surprised by such testimony; and, he did not seek to prejudice
[Appellant’s] right to a fair trial. [ADA] Wade further credibly
testified that the Commonwealth has received no benefit from the
award of [Appellant’s] motion for a mistrial in this matter.
Accordingly, based upon the totality of the evidence presented, it
is clear to this court that the introduction of the challenged
testimony was solely the result of an unexpected “blurt out” on
the part of a lay witness, despite the reasonable attempts of the
attorneys for the Commonwealth to prevent such. The court finds
that the record in this matter is devoid of any evidence that the
Commonwealth acted in an intentional or reckless manner. The
court further finds that the record in this matter is devoid of any
evidence of prosecutorial overreaching which, in turn, implicates
some sort of conscious act or omission. Accordingly, the double
jeopardy bar of retrial is not warranted in this matter. Rather,
this court correctly granted [Appellant’s] motion for a mistrial
upon the inadvertent admission of the prejudicial prior bad acts
evidence. As the result thereof, [Appellant] will receive the
benefit of a new trial untainted by such evidence.
Trial Ct. Op. & Order at 15-16 (footnotes omitted and some formatting
altered); see also id. at 5 (concluding that ADA Wade’s testimony at the
September 16, 2021 evidentiary hearing was credible).
Based on our review, we conclude the record supports the trial court’s
credibility determinations and legal conclusions that the Commonwealth’s
actions were not intentionally or recklessly undertaken to deprive Appellant of
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a fair trial. See King, 271 A.3d at 443. Further, we agree with the trial court
and adopt its reasoning in concluding that Ms. Bair’s statement about the
choking incident was not Brady material nor did the Commonwealth violate
Brady, or Pa.R.Crim.P. 573. See Trial Ct. Op. & Order at 8-15. Additionally,
the trial court credited ADA Wade’s testimony that he did not intentionally
conceal evidence which he knew to be material with the intent to deprive
Appellant of a fair trial. Compare Smith, 615 A.2d at 322 with Adams, 177
A.3d at 373-74. Accordingly, on this record, we conclude that double jeopardy
does not bar retrial with respect to Ms. Bair’s statement about the choking
incident made during her witness preparation. With respect to the questioning
of Ms. Bair, the record reflects that ADA Wade did not ask Ms. Bair any
questions that directly or indirectly related to Appellant’s other criminal
conduct. See Graham, 109 A.3d at 736-38. Therefore, we agree with the
trial court that there was no intentional prosecutorial misconduct for double
jeopardy purposes. See Byrd, 209 A.3d at 353-54; Adams, 177 A.3d at 371-
72.
Further, applying the Johnson standard, we find that the
Commonwealth’s actions do not reflect a conscious disregard for the
substantial risk that Appellant would be deprived of a fair trial. See Johnson,
231 A.3d at 826. Accordingly, the trial court’s finding that the Commonwealth
did not act recklessly when it failed to disclose Ms. Bair’s statement about the
choking incident is supported by the record and pertinent legal authority. See
Trial Ct. Op. & Order at 15-16. As for the Commonwealth’s witness
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preparation and trial examination of Ms. Bair, the trial court found that the
Commonwealth made reasonable attempts to prevent the witness from
testifying about Appellant’s prior bad acts, but the witness’s statements were
unexpectedly “blurt[ed] out.” See Trial Ct. Op. & Order at 16. Our review
concludes that the record supports the trial court’s determination that the
Commonwealth did not engage in any reckless overreaching. See Krista, 271
A.3d at 474; King, 271 A.3d at 450; Hill, 2023 WL 140340 at *5. For these
reasons, we affirm the trial court’s order denying Appellant’s motion to bar
retrial.
Order affirmed. Case remanded for retrial. Jurisdiction relinquished.
P.J.E. Stevens joins the memorandum.
Judge Stabile concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 06/14/2023
- 17 -
Circulated 05/30/2023 11:32 AM
June 27, 2022
Re: Wilberto Melendez
Cp Cr No: 2279-2018
Superior Cr No: 486 MDA 2022
Index of Opinion
1. Index of Opinion
2. Order of the Court
3. Opinion and Order
IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEALTH
COMMONWEAL TH OF PENNSYLVANIA
VS. No. CP-36-CR-0002279-2018
WILBERTO MELENDEZ
ORDER
Appellant/Defendant,by
Appellant/Defendant, by Notice
Notice of Appeal
Appeal filed
filed on March 21,
21, 2022,
2022, has
bas appealed from
from
the order entered on March 2,
2, 2022, denying Appellant's
Appellant's Motion to Dismiss and Bar Retrial.
The reasons for this court's
court'srulings are contained in the Opinion and Order entered on March2,
March 2,
2022 .This court relies on said documents for compliance with Rule 1925(
2022. a) of the Pennsylvania
1925(a)
Rules of Appellate
Rules of Appellate Procedure.
Procedure.As such,
such,said documents are attached hereto.
said documents
BY T I06, URT:
BYTI URT:
MERRI M.
M. SPAHN, JR., JUDGE
JR., JUDGE
March 9 2022
ATTEST:
Copies to:
Copies to: Anderson,Esquire, Assistant District Attorney
Travis Anderson,
McMahon,Esquire, counsel for Appellant
Jack McMahon, r-
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IN TGIF COURT
IN THE COUNT OF
OF COMMON PLEAS
PLEAS OF
OF LANCASTER
LANCASTER COUNTY, PENNSYLVANIA
CRIMINAL
CRIMINAL
CO MMONWEA LTH 0
COMMONWEALTH OF9PENNISYL VANIA
PENNSYLVANIA
vs. No. P- 6-C -0002279-2018
CP-36-CR-0002279-2018
ILBERTO
WILBER TOMELENDE
MELENDEZ
SA00i A •N•lj
i+_4
OPINION acrd ORDER.
pP!toy_gn_ORDER
N'
B: SPAHN,
BY: SPAIN. JR., J. ::2
March 2, 2022
9 c
By Criminal Information docketed
docketed to Number CP-36-CR-0002279-2018,
CP- 6-C.R-0002279-2018, Defers&ant
Defer'dant i is
changed with
charged with allegedly having. COMM itted the
having committed offenses of Criminal
the offenses Criminal Homicide';
Homicide 1;Firearms Not to
be Carried Without aa1,icense';
License; Persons Not to Possess, Use, Manufacture, Control, Sell or
Transfer lii Victims' Said charges stem from aa
rearm s'; and, Intimidation of Witnesses or Victims'.
Firearms';
shooting alleged
shooting 27, 2017, in the 300 black
alleged to have occurred on October 27,2017, block of Marshall Street in
in the
City and
City and County of Lancaster.
Lancaster
Folloviing
Following,selection of aajury, trial initially commenced in the instant matter on May 14,
201. On
2019, On May
May 21, 2.019, during
21,2019, day of testimony, aaCommonwealth witness testified to
during the sixth day
staternents purportedly
statements purportedly made
made by
by Defendant
Defendant boasting that he had committed aaprior killing,
ki9ling, had
that charge,
beaten that charge, and
ard was going
going to beat the
the current charges as well. (N.T, 5!21119,
well. (NT 896-
5/21/19, p. 886
888). Prier
888). Pron to the cornmencement of trial,
the commencement trial, the attorney for
the attorney the Commonwealth
for the Commonwealth indicted
indicted that he
affirmatively instructed
had affirmatively instructed all Commonwealth witnesses not to discuss such matter
matter.
11HPa,C.SA. $259016)
'IP,CS.A 2501(a).
219 Pa-C,5-A, $6106a(D
18PCS.A 6106(a)(1).
Iy$Pa_C.S.A. §6105(a)(1 }, Mis
1gaCSA.$6/04a)I) It is noted that
that this change
charge was severed from trial
tria] in compliance with controlling
c'ontro11ing
authority_
authority
19 Pa. C-
-A- §4952(a)(1},
'I6AC.SA.$49$204I
AddiiionalIy,
Additionally, at
at this
this time,
time, the
the attorney
attorney for
for the Commonwealth indicated
indicated that he had not elicited,
and was surprised
surprised by,
by, by
by such testirony. (N.T, 5/21/19,
testimony. (N,T 5/2111.9, p. 886-987). Due to the
p. 886-887). the prejudicial
nature
nature of
of such
such testimony,
testimony, the coat granted
the court granted Defendant's
Defendauit's rnotion granted aamistrial.
motion and granted (N.T.
mistrial. (N,T,
5121119, p. 891).
5/21/19,p. 891
The second trial
trial in the instant rniatter
matter commenced with jury
jury selection on May 2021.
May 10, 2021
On this date,
date, a
a meeting occurred at the Lancaster City Bureau of Ecadquarters
Headquarters between Assistant
District Attorney
Attorney -Cody
Cody Wade,
Wade, Detective Sergeant
Serget Robert Whiteford, and Antasia
Artasia Bair to prepare
Ms. Bair for her trial testimony. (N.T, 9/16021,
testimony. tN,T, 9/16!21, p.
p. 10-12).
I0-12). At the evidentiary bearing
hearing relative to
lo
Defendant's
Defendant's instant rno0on,
motion, Attorney
Attorney Wade credibly
credibly testified
testi I
ied that this
this meeting had
had not
previously
previously occurred due to
to scheduling concerns. (N.T.
scheduling concerns. (NA'. 9/1621,p.
9/16121, p. 11).
1H). During this meeting, Ms.
Ms
Bair
Bair reviewed
reviewed her
her prior statements and
prior statements and testimony,
testimony, received
received aaprevinv
preview of •0at to expect
of what expect at
at trial,
and was admonished by
by Attoniey
Attorney Wade to tell the
the U uth and avoid reference to any improper
truth
-
subjects
subjects during
during her tnal
trial testimony. (I .T. 9/16/21,p.
testimony. (N,T. 9116121, p. '14, 24-26). This meeting was not recorded,
14,24-26.
nor were
;vere any
any verbatim or substantially verbatim recordings
recordings generated from this inceting. (N.T,
meeting. (N.T
9116121,
9/16/21, p,
p. 46,
46, 74-75).
74-75). During
During this
this meeting,
meeting, Ms. Bair
Bair mentioned certain things
things which were
relevant to the matter which wem
were not previously disclosed or varied from the information that
she
she had
had previously
previously provided
provided to
to the investigators. 9116121, p,
investigators. (N.T. 9/16/21, 27). This information
p. 27). information
included claims that she had seers Ernest Talton possess aafirearm during the evening in question
seen Emest
and that she heard Ernest Talton admonish someone, whom she believed to be
he the defendant, that
he should not farm
ham the victim
victim, .(Defense
( 1.
Defense Exhibit No. 1). 1•n addition,at this time,
In addition, tune, Ms.
Ms. Bair
indicated
indicated that
that she obsm cd the
she observed defendant choke
the defendant 'choke up" Quetesha Payne
up Quetesha Paync at
at a
aTurkey
Turkey Till
Hill
convenience store in.
in the early
early morning
mort,irg .hours
hours preceding
preceding the
the how icide. (N.T,
homicide (K T. 9/16/21,p
9116/21, p} 40))
40).
Attorney
Attorney Wade
Wade credibly
credibly testified
testified that he
he had no
no reason
reason to believe
believe the veracity of this
the veracity this
2
representation
representation as it was not supported by any
supported by any other evidence in this
Ibis matter. (NT,
(NJ. 9/16/21,
9116121, p.
p. 47,
54),
54). Attorney
Attorney Wade
Wade further credibly testified
further credibly that he
testified that he instructed
instructed Ms.
Ms. Bair during this
Bair during this meeting
mneeting that
that
they
they were
were not
not going
going to
to discuss fbis topic
discuss this topic during
during her
her trial
trial testimony. (N.T. 9/16/21,
testimony. (N,T, 9116121, p. 40, 47-48)
p. 40, 47-t48).
Specifically,
Specifically, Attorney Wade instructed
instructed Ms. Bair
Lair that
that her trial testimony
testimony would be
be limited
limited in
scope
scope to
to what
what was developed during
was developed during her testimony at
her testimony at the
the prior
prior trial
trial and in ;her
and in her prior statements to
prior statements to
the
the investigators. ( .T, 9/16/21,p.
investigators, (N.T. 9116/21, p- 40,
40, 47-48).
47-48). Attorney
Attorney Wade credibly testified
Wade credibly that he
testified that he believed
believed
that
that Ms.
Ms. Bair was
was sufficiently cautioned and
sufficiently cautioned and that she
she understood that this allegation would not
understood that not be
introduced
introduced Glaring
during her
her testimony at the
testimony at the upcoming
upcoming trial,. (N.T. 9/16/21,
trial, (N,T, 9116121, p. 48),
48). Follov Srlg this
Following this
meeting,
meeting, Attorney
Attorney Wade instructs
instructed Detective Sergeant Whiteford to
to prepare
prepare aasupplemental
supplemental
report
report regarding
regarding this
this meeting, (N, T, 9/16/21,
meeting. (N.T, 9116121, p.
p. 26-29,69-70).
6-29, 9-70). Detective
Detective Sergeant
Sergeant Whiteford
Whiteford
prepared
prepared such
such a
a report,
report, although
although this
this report
report did
did not
not include
include any
any reference to
to Ms.
Ms. Bair's
Bair's claims
regarding
regarding the
the defendant
defendant purportedly
purportedly placing his hands upon
upon Ms. Payne. (N. T. 9/16021,
Payne. (N,T, 9116121, p. 30-35)
s0- ).
At the evidentiary
evidentiary hearing
hearing held in this matter,
mater, Detective Sergeant
Sergeant Whiteford testified that he did
not bear
hearMs,
Ms. Bair make such comments.
comments.' (N.T.
1.T. 9/1621,
9116/21, p.
p. 65-68). This supplemental report
was
was provided
provided to counsel
counsel for
for the defendant
defendant on
on May
May 12, (N. T. 9/1621,
12, 2021.' (N,T. 9116121, p.
P. 26-29,
2C-29, 69-70)
69-70),
On May
May 13, 2021.. prior
13,2021, prior to the commencement of
of testimony for the day, the court met
with counsel
counsel for
for the
the parties outside the
parties outside the presence of the
presence of jury. At
the jury. At this tirre, discussion
this time, was hid
discussion was had
regarding the meeting
reganding the meeting with
with Ms,
Ms. Bair, Specifically, Ms.
Bair. Specifically. Ms. Bair's claims regarding
Bair's claims certain
regarding certain
statements
statements allegedly
allegedly made
made by
by Ernest Talton were
rest Talton addressed and
were addressed and the
the parties specifically agreed
parties specifically agreed
that
that this topic
topic would
woald not be
be introduced at tJa],
trial. Contrary to tbe
the representations contained in
3it is
'is noted
noted that
that Detective Sergeant Whiteford
Detective Serget Whiteford restified
testified that he Iihad
that he ad briefly stepped
stepped out
out of
ofthe meetin, with
th meeting with Ms
Ms- air
Bair
that occurred on May 10, 2021, (NT
I0, 2021. (NJ. 9/1621,
9116#21, p.
p. &5).
65)
is noted that Defendants
ltis
G it Defendant's rnemorandu
memoranda nsuggests
suggests that counsel for Defendant received this report at the end of the
day
day on MayMay 13, 2021. Such rc;presenta#ion
13,202I. representation is clearly inaccurate .as demonstralts that this
s the official transcript demonstrates
matter
matter was
wars addressed
addressed by
by counsel for
fee the
tee parties
parties with the
the court.
court prior
prior to
to the
the cornmeneernent
commencement of testimony 13,
testimony on May Id,
2021,
202
33
Defendant's
Defendant's memorandum,
memorandum, the
the record not. demonstrate
record does not demonstrate any
"y reference
reference to remedies or
to remedies or
discharge
discharge of
of Defendant should this
Defendant should this topic he introduced
topic be introduced at
at trial.
trial. Additionally, at this
Additionally, at this time,
time, there
there
was
was no
no reference
reference made
made by counsel regarding
by counsel regarding Ms.
Ms. Bair's
Bair's allegations
allegations that
that Derendant had choked
Defendant had "choked
up"
up" N4s,
Ms. Payne.
Payne. (N.T. 5/13121, p,
(N.T. 5/13/21, p. 230-232).
230-232)
On
On May
May 14,
14, 202 1, the
2021, Cornrnonwealth presented
the Commonwealth presented the testimony of Antasia
testimony of Bair at
Antasi Bair at trial.
trial. It
It
is
is noted
noted that
that Ms.
Ms. Bair
Bair was not eyewitness to the homicide.
not an eyewitness (N.T. 9/16/21,
homicide. (NT. 911612,1, p. 44),
44). Based upon
the
the credible
credible representations
representations trade
made by
by the attorneys for
the attoreys for the Conunonwealth, M
the Commonwealth, s. Bair
Ms. was
Bair was
presented
presented to
to provide
provide testimony
testimony regarding,
regarding her observations of
her observations of the
the argument
argument which occurred at
which occurred at the
the
Turkey
Turkey Hi 11 convenience
Hill convenience store
store prior
prior to
to the homicide, as
the homicide, as well
wc11 as
as her knowledge of
her knowledge of certain
certain prior
prior
consistent
consistent statements
statements made
made by
by an eyndtness to
an eyewitness to the homicide which
which identified Defendant
Defendant as the
shooter, (N.T. 9/16/2
shooter. (N.T. 9/1621,1, p.
p. 44,
44, 74),
74). During
During her
her testimony,
testimony, M s. Bair
Ms. Bair reiterated
reiterated her claim that
her claim that
Defendant had "choked up"
up" M s. Payne
Ms. Payne at the Turkey F1ti11. (N.`1'. 5114121,
Hill, (N.T. 5/1421, p. 462-462).
462-462) Again,
thin allegation had
this allegation had not
not been referenced
referenced by Ms,
Ms. Bair
Bair during
during her
her testimony
testimony at tlae
the first
first trial
trial and was
not
not contained
contained in
in any
any of
of her
her prior stxtemenLs. At this
prior statements. this point, counsel for
point, counsel for the defendant moved
the defendant moved for
for aa
mistrial on the
mistrial on the basis
basis that
that such
such testimony
testimony was prejudicial to Defendant
prejudicial o and was
Defendant and was not
not provided to
provided to
defense
defense counsel
counsel through
through discovery.
discovery
Extensive arrgument was
Extensive argument was held on the
held on the record outside the
record outside the presence
presence of
of the jary. During
the jury. this
During this
argument,
argument, Attorney
Attorney Wade
Wade indicated that he
indicated that he recalled
recalled Ms.
Ms. Rair inforniitig him
Bair informing at the
him at recent
the recent
meeting
meeting about
about the defendant and
the defendant and Ms.
Ms. Payne
Payne "getting into it", but
"getting into but he couldn't recall
he couldn't what she had
recall what had
specifically
specifically told
told hire. (N.T„ 5114121,
him, (N.T. 5/14/21, p.
p, 473).
473). Additi.ona]ly, at this
Additionally, at this time, Attomcy Wade
time, Attorney Wade
informed
informed that
that court
court that
that he
he had
had instructed
instructed Nis.
Ms. Bair
Bair not
not to discuss this
to discuss this topic during her
topic during her testimony.
testimanyy.
N,T.
N.T. 5114121,
5/14/21,pp. 473, 500). After
473, 500). After consideration
consideration of
of providing;
providing the
the jury
jury with,
with aastrong
strong curate
curative
instruction,
instruction, the court granted
granted Defendant's
Defendant's motion for aamistrial is of the serious nature ol
in light of of
4
d
the instant matter.
On Junc
June 24,
24. 2021,
2021, counsel
counsel for
for Defendant
Defendant filed
filed aaMotion to 1)ismiss
Motion to Dismiss and Bar
Bar Retrial.
Retrial
Aftcr
After consultation
consultation with counsel regarding
with counsel regarding their availability, by
their availability, by order
order dated
dated July
July 1,
I, 2021, this
2021, this
court scheduled
court scheduled an evidentiary bearing
an evidentiary relative to
hearing relative to Defendant's
Defendant's Motion
Motion for September 16,
1f, 2021
2021.
In.
In addition to
to the
the testimony noted above, at
noted above, such. hearing, Attorney
at such Attorney Wade credibly
Wade credibly
testified that he did not.
not seek to elicit
elicit any testimony from Ms. Bair regarding any physical contact
any testimony
between Defendant and Ms.
Ms. Payne. (N.T. 9/1621,p.
Payne. (N,T, 9110121, p- 49-50,53).
49-50, 53). Attorney Wade further
credibly
credibly testified
testified that he
he was
was not seeking to cause
not seeking cause aamistrial
mistrial or
or prejudice
prejudice the (.T,
the defendant. (N.T
9116/21,
9/16/21, p.
p. 49-50, 53). Attorney
49-50,53). Attomey Wade
Wade testified
testified that the
the Commonwealth was pleased
pleased with
with the
the
progression
progression of the
the trial and
and that the
the award of a.a mistrial did
did. not
not place
place the Commonwealth
Commonwealth in aa
more advantageous position. (N.T
advantageous position. (N.T. 9/16/21,p.
9/16121, p. 43, 50-51).
50-$1). Following this hearing,
hearing, the court.
the court
ordered
ordered submission of written
written legal
legal memorandum by counsel
counsel for
for the parties.
parties
It is noted that
that counsel for the defendant filed aasecond Motion to D
Dismiss
si miss and Bar Retrial
on
on November
November 8,
8, 2021.
2021'7 On
O Nuvernbcr
November 19, 2.021, counsel
19, 2021, counsel for
for Defendant
Defendant filed
filed their written
their written
memorandurn
memorandum of law. On
of law. On December
Deember 17,
7 2021,
2012 , the attorneys for
the attomeys the Commonwealth
for the Commonwealth filed
filed their
their
memorandum
memorandum of
of laws.
la, As such, the matter is ripe
ripe for review.
The
The Double
Double Jeopardy C,lauscs of
Jeopardy Clauses both the United
of both Mates Constitution
United States Constitution and
and Constitution
Constitution of
of
the
the Commonwealth of Petm.sy
Commonwealth of [van ia. "protect
Pennsylvania "protect aadefendant
defendant from repeated criminal
from repeated criminal prosecutions
prosecutions
for
for the
the same offense." Commonwealth v.
same offense." v. Byrd,
Byrd, 209
209 A.3d
A.3d .351.353 (Pa. Super.
351, 353 (Pa. Super. 2019).
2019). As further
As further
noted
noted by our Superior
by our Court ;the
Superior Court, the purpose
purpose behind this prohibition
behind this prohibition is
is to
to prevent
prevent the
the government
government
Te
7 The court
count is without
without knowledge
knowledge as to why tor Defendant filed aasecond motion in this regard. It.
why counsel for noted..
At is noted
that
that this
this motion is nearly
pearly identical to the motion filed previously on June
Jame 24, 202I,
2021, but for the omission of
0fthree
three
para ,pphs relative to
,
paragraphs of Attomey
to actions of Attorney Wade.
Wae Defenclw
Defendt makes 110 po rcferemce sccand motion in
reference to the second it] his
supporting
supporting memorandum,
memoranda
&
htIt is
is noted memorandum references
noted that the Commonwealth's rncrnorandum bath this docket number as well
references both weil as charge
eh arges
previously
previously docketed
docketed at
at Number
Number CP-36-CR-0{105109-2018-
€P.16-CR-000$109.201. On
O May
May 31,
31, 2019, the
the court
court approved
approved tbic
the motion of
motion of the
the
Commonwealth
Commonwealth to to nollu
pole prosse
prosse the charges docketed at
the changes at Number CP-3 6-C R-0005109-2018.
Number CP-36-CR0005109-201
5
5
from making
making "repeated
"repeated attempts subjecting
attempts to convict the accused, thereby subj to
ecting him to
embarrassment,
embarrassment, expense, and ordeal
expense, and and compelling
ordeal and compelling him
him to
to live in aacontinued
live in continued state
state of
of anxiety
anxiety
and
and insecurity
insecurity as
as well
well as entrancing tbe
as enhancing the possibility
possibility that even though
that even though innocent
innocent he may be
he may be found
found
guilty."
guilty." C'omrnonkvealth
Commonwealth v. v. Wilson,
Wilson, 227
227 A.3d 928, 936 (Pa.
A.3d 928,936 (Pa. Super.
Super. 2020).
2020).
It
It has
has been
been long standing jurisprudence,
long standing _jurisprudence, under
under both and federal
both state and federal law, that
that aa
subsequent
subsequent trkd
trial is
is prohibited
prohibited when
when aamistrial
mistrial resulted from prosecutorial
resulted from prosecutorial overreaching in the
form
for of
of intentional
intentional misconduct designed to
misconduct designed to provokc
provoke aa. mistrial.
mistrial. Byrd, 209 A..3d 353. In
A.3d at 353. In
Comm onwealth v. Smith,
Commonwealth ,Smith, the
the Pennsylvania
Pennsylvania Supreme Court ruled that the
the Constitution of this
this
ornmonwealth provides
Commonwealth provides more
more extensive double jeopardy
jeopardy protections
protections than
than its
its federal
federal
counterpart.
counterpart. Therein,
Therein, the Supreme
Supreme Court held that
that retrial is impermissible not
"not only when the
the
prosecutorial
prosecutorial misconduct
misconduct is
is intended
intended to
to provoke
provoke the
the defendant into
into mooring
moving for
for aamistrial,
mistrial, but
but
also
also when the
the conduct of the prosecutor
prosecutor is intentionally
intentionality andertaken
undertaken to prejudice the defendant to
the point
point of the denial of a
a fair trial." Commorwealth
Commornveallh •v. Mifh, 615
Stth, A.2d 321, 325 (Pa.
615 A,2d (Pa. 1980).
1.980).
Our Superior
Superior Court has noted that Smith
"Smith did not create
ercate a
a per se bar to retrial In
in all cases of
intentional
intentional prosecutorial overreaching. Rather,
prosecutorial overreaching. Rather, the Smilh court primarily
the Smith primarily eras
was concerned with
with
prosecution
prosecution tactics, which actually
actually were designed to demcan or subvert the
the truth seeking
process."
process." Camrnonwealth
Commorwealth v.
v. Lambert, 765 A.2d
A.2d 306,
306, 327
327 (Pa. Super.
Super. 2000).
2000).
As
As succinctly stated by
succinctly stated our Superior
by our Superior Count,
Court,
The double jeopardy
jeopardy clause of the Pennsylvania
Pennsylvania Constitution
prohibits
prohibits retrial of a defendant
retrial of defendant when
when the
the conduct of the prosecutor
conduct of prosecutor
is
is intentionally
intentionally undertakers
undertaken to
to prejudice
prejudice the
tbe defendant
defendant to
to the
the point
point
ofdenying
of denying hint
him aafair
rair trial. However,
However. because of the compelling
societal interest in prosecuting
prosecuting criminal defendants to
conclusion, Supreme Court has recognized that dismissal
conclusion, our Supreme
of charges is an extreme sanction that should be
of charges be imposed
imposed
sparingly only in
sparingly and only cases of
in cases of blatant
blatant prosecutorial misconduct.
prosecutoria! misconduct
Commonwealth
Commonwealth v. Wilson, 147
v. Wilson, 147 A.3d
A.3d 7,
7, 1.3 (Pa. Super.
13 (Pa. Super. 2016)
2016).
6
In
In Commonwealth v.
v. Krista,
Krista, _ _A.d
A.3d _ (Pa. Super,
Super. 214122),
2/4/22), Cie
the Superior Court noted
that
that subjecting
subjecting a
a defendant
defendant to
to aasecond
second trial
trial following
following aamistrial
mistrial or
or a successful appeal
a successful appeal does
does not
not
ordinarily
ordinarily oMend double jeopardy
offend double jeopardy protections.
protections.
In
In Commonwealth
Commonwealth v. Johnson, 231
v Johnson, 231 A.3d 807 (Pa.
A.34 807 (Pa, 2020),
2420), our
our Supreme
Supreme Court
Court considered
considered
whether jeopardy clause bars retrial "where the Commonwealth
whether the double jeopardy Cornmonwealth obtains aa. conviction
based
based on
on false
false evidence
evidence and.
and its misconduct,
misconduct, while
while not undertaken
undertaken with
with the intent to deny the
the
defendant. a
defendant a fair trial, nevertheless stems from prosecutorial
prosecutorial errors that rise substantially
substantially above
above
ordinary
ordinary negligence." Johnson, 231 A.3d
negligence." Johnson, 810. Therein,
A.d at 810, Therei, the High Court held that
`iprosecutorial
"prosecutoral overreaching
overreaching sufficient to
to invoke
invoke double jeopardy
jeopardy protections includes
ineludes
misconduct
misconduct which not only
which not deprives the defendant
only deprives defendant of his right to
toafair trial,
trial, but
but is undertaken
recklessly,
recklessly, that is,
is, with
with aaconscious disregard
disregard for
for aasubstantial .risk
risk that
that such will.
will be the result
result.
.Johnson,
Johnson, 231 A.3d
A,3d at 826. In so holding,
holding, the Court clarified that it did not
the Count not "suggest that all
situations
situations involving,
involving, serious prosecutorial
prosecutorial er
errorrimplicate
implicate double jeopardy."
jeopardy." Id
id Rather, "retrial
is
is only
only precluded
precluded where tbore.
there is .aa prosecutorial
prosecutorial overreaching which, in turn, implicates
imp] ica#es some
sorno sort
of conscious act or omission."
omission.." Id.Id
earns, 70 A,
In Commonwealth v. Kearns, 3d 88!
A.3d 881. (a.
(Pa.. Super. 2013), our Superior Court held that
a
a prosecutor's
prosecutor's gross
gross negligence
negligence in
in failing
failing to obtain and produce the Est-arrest
the defendant's post-arrest
written statement to
to police
police and statement of a
a principal eyewitness was an insufficient hasis
basis upon
which
which to
to bar retrial on double jeopardy grounds_ Rather, the court found
jeopardy grounds. found the appropriate remedy
in
in such
such circu rnstanc es was
circumstances the grant
was the grant of a
a new
new trial.
trial, This principle
principle has reaffirmed
has been recently reatlrmed
by
by the
the Superior
Superior Court. See,
See, Commonwealth
Commonweallh v.
v. Krisla,
Krista, Aid
Ad (Pa, 214122.) (holding
(Pa Super. 2/4/22)
that
that improper
improper commentary by a
commentary by aprosecutor
prosecutor impinging
impinging upon the defendant's right to remain silent
did
did not
not warrant
warrant double
double jeopardy relief; Commonwealth
jeopardy relief); Commoniveallh v,
• King and Haskins, A.3d ('a
_A.d • (Pa.
7
7
Super,
Super, 12114121)
12/14/21) (holding
(holding that
that aaBrady
Brady violation b
byy the Cornmonwcalth, in and
the Commonwealth, inerits
and of itself, merits
relief
relief in
in the
the farm
form of aanew trial
trial but
but not
not the application of the double
the application double jeopardy liar precluding
jeopardy bar
retrial);
retrial); C'ommorr►+'ealth
Commonwealth v. v. Sanchez, 262
262A.2d 1283 (Pa. Super.
1283 (Pa. Super. 2021) ( ommonivealth's
2021 (Commonwealth's
negligent
negligent failure
failure to disclose DNA
to disclose evidence to
DNA evidence the defendant before
to the before or during trial
or during did not
trial did not rise
rise to
to
the
the type
type of
of intent
intent or rceklessness
recklessness requiring,
requiring dismissal on double
dismissal on double jeopardy grounds);
jeopardy grounds);
Commonwealth v.
v Rivera, 241
24I A.3d 4H
411 (a.
(Pa. Super,
Super. 2020) (unpublished mcmorandum)'•
memorandum)
(multiple
(multiple systematic
systematic errors by
by the Commonwealth, including, but riot
not limited to, introducing
photographs
photographs at
at trial
trial that it
it failed
failed to
to disclose to
to appellants
appellants prior to
to trial,
trial, destroying relevant text
text
messages,
messages, and
and failing
failing to disclose prior
prior to trial
trial inculpatory statement made
inculpatory statement made by one appellant to
to
went
agent vvere
were the result of negligence
negligence and did not
not ri se to the level of intent or recklessness required
rise
to warrwit
warrant double jeopardy
jeopardy relief).
relief.
Mule
Rule 573
573 of
0f the Pcnasylvmiia
Pennsylvania Mules of Criminal
Rules of Criminal Procedure, as well
Procedure, as well as
as Brady
Brady v.
Maryland"'
Maryland" and Giglio
Giglio v. Unite 'FStares",
v. United Sates', and their progeny,
progony, govem
govern discovery in criminal
crh-
ninal cases,
eases,
and mandate that the Commonwealth
Ccmnionwealth produce
produce to the defendant, inter
later alia, all potentially
exculpatory evidence.
exculpatory evidence. Rule
Rule 573 of the Pennsylvania
Pennsylvania Mules
Rules of Criminal Procedure
Procedure "imposes
greater
greater obligations
obligations upon prosecutors than the Brady requirements." Commorwealth
C mmonweallh vv.
Maldonado,
Maldonado, 173 A.3d. 769,
173 A.34 769, 774 (Pa.
(Pa. Super.
Super. 2017). 1-
be Commonwealth violates Brady by failing
2017). The by
to disclose exculpatory
exculpatory evidence as well as evidence that may be used to impeach aaprosecution
witness..
witness. Commonwealth v.
v.Johnson,
Johnson, 174 A.3d
A.d 1050, 1056 (Pa.
(Pa. 2017,).
2017. Stated another way, the
duty
duty to disclose may
to disclose encompass impeachment
may encompass evidence as
impeachment evidence as well
wall as
as directly
directly exculpatory evidence.
exculpatory evidence.
9See, Pa. R—A.P. 126(b)
See,Pa.R.A.P. (stating non-prcc
1264) (sating cdential decisions
nor-precedential decisions of
efSuperior Lout# filed after May 1,
Superior Court I, 2019 may
tray be cited
for persuasive
persuasive value).
value)
37'3 U.S. 83 (19613) (holding that the government's
37US.83(1963(boding gaytemntent's withholding of evidence that is material to the determination
deterinhintivn of
eitherguiit
either guilt or pun ishrnent of a criminal defendant violates,
punishment violates the defendant's
defendat's constitutional rEaht
right to due process)
process)-
405 U.S. 15D
'40$u.S. (.1972) (holdhig that when
150(1972)(holding when the reliability
reliability of aagovernment
government witness
%vitness may well be determinative of afguilt
gutll
or innocence,
innocence, that
that gpndisclosure
nondisclosure of cvidonce
evidence affecting
affecting cri.dibility
credibility of
of the
the witness
witness violates the
the defendant's
defendant's
constitutional tight process).
right to due process)
88
ommorm ,calth v.
Commonwealth v. Lesko,
Lesko, 15
15 A.
A.3dd345 (Pa. 2011);
345 (Pa. Commomverdth v.v. Lambert,
20I1; Commorwealth 884 A.2d
Lambert, 884 A. 2d 848848 (Pa
(Pa.
2005).
2005).
Rule 573
$73 of
of the
the Pcnnsylvania
Pennsylvania Rules of
of Criminal Procedure
Procedure mandates disclosure of
mandates the disclosure of
certain infomation
certain information by
by the Coniumonwealth upon
the Commonwealth upon request
request by
by the defendant. These
the defendant. `dhcsc items
items include,
include,
in
in pertinent
pertinent part,
pant, "any evidence favorable
"any evidence to the
favorable to accused that
the accused that is material either
is matcrial either to guilt or
to guilt or
punishment and is
punishment and is within
within the
the possession or control
possession or control of the attorney
of the attorney for
for the Commonwealth."
Commonwealth."l 2 In
[n
addition,
addition, Rule
Rule 573 establishes
establishes that aatrial court
that count has
has the discretion to
the discretion to mandate the disclosure
mandate the disclosure of
of
certain
certain other
other information
information upon
upon pre Idai motion
pretrial of the
motion of the defendant and
and upon
upon aa. showing
showing that such
that such
information
information is
is material
material to
to the
the preparation of the defense
preparation of defense and
and that
that the request is reasonable,
request is reasonable. Thcse
These
items
items include,
include, in pertinent part,
part, "all
"all written
written and recorded statements,
statements, and substantially verbatim
and substantially verbatim
oral
oral statements,
statements, of eyewitnesses the
of eyewitnesses Commonwealth intends
the Commonwealth intends to call at
to call at trial"' and
trial" 3 and "any
"any other
other
evidence specifically identified by
by the defendant, provided
provided the defendant can
the defendant can additionally
additionally
establish
establish that
that its di&closure
disclosure would
would be in
in the interests Of
the interests justiee."' 4 Rule
of justice."" Rule 573
573 also imposes aa
also imposes
continuing duty of
continuing duty of such
such disclosure,
disclosure, both prior
prior to and during
to and during tnat.'
trial.'
Herein,
Herein, Defendant alleges that
Defendant alleges that his constitutional due
his constitutional due process
process rights
rights were violated in that
violated in
the
the Commonwealth
Commonwealth failed
failed to disolose certain
to disclose certain information regarding statements
information regarding ma(cments made to the
made to
ommon weal th by
Commonwealth by Antasia
Antasia Bair.
Bair. As detailed above,
As detailed on May
above, on May 10,
10, 202 1, Antasia
2021, Antasia Bair niet with
Bair met with
Assistant
Assistant District
District Attorney Coder Wade
Attorney Cody Wade and
and iDctective Sergeant. Robert
Detective Sergeant Robert Whiteford of the
Whiteford of the
Lancaster
Lancaster City
City Bureau of Police
Bureau of Police to
to prepare
prepare for
for her at trial.
ugcorning testimony at
her upcoming the
trial. During the
meeting,
meeting, Ms..
Ms. Bair
BHair provided infon
provided nation, which
information,
- which she had not
she bad not previously disclosed, including
previously disclosed, an
including an
allegation
allegation that
that Defendant
Defendant had physically choked Quetesha
physically choked Quetesha. Payne at aaTurkey
Payne at Turkey Hill
dill convenience
convenience
Pa.R-Crm.P.$730801%
pARCrim.P
12 57.i(B)(L)(a)-
' Pa.R.Crun.P.573(3)(2)(a)(H)-
Pp.R.Crim.P. 573(BX26a¥i)
I• Pa.R. riin.P. 573(B)(2)
'pA.R.Crim.P (a)(iv).
$7308X26Ki9)
Is Pa-R- rEm.P. 573(D).
puR.Crim.P, 5$73(D
99
store
store shortly
shortly before
before the instant
instant homicide
homicide would occur at aaseparate
would occur separate location
location in the City
in the City of
of
Lancaster.
Lancaster. This
This information
information was not
not included in
in. the supplemental
supplemental report
report prepared
prepared regarding the
meeting
meeting of
of May
May 10,
10, 202 1, which
2021, which was presented
presented to counsel for Defendant
to counsel on May
Defendant on 12, 2021
May 1, 202 1.
Additionally,
Additionally, Defendant asserts that the
the attorneys
attorneys for the Commonwealth failed
failed to
to mention this
information during
during aadiscussi
discussion court„ outside of the presence
on with the court, presentee of the jury, on May 13,
'021.
2021 It is recognized
recognized that this discussion pertaining
pertaining to other information provided by Ms. Bair
air
during
during the
the meeting of May
meeting of May 10,
10, 2021.
2021.
"A
A party
party seeking
seeking Brady haled
based relief
relief bears
bears the burden
burden of establishing entitlement to such
relief by
by proving
proving that:
that. (I
() the evidence
evidence at
at issue
issue was
was favorable
favorable to the accused,
accused, either
either because
because it is
is
exculpatory
exculpatory or
or because itit impeaches;
impeaches; (2)
(2) the evidence
evidence vvas suppressed by
was suppressed by the
the prosecution, either
either
willf41.1
willfullyyor
or inadvertently; (3) prejudice
inadvertently; and 6) prejudice ensured to the
the defendant..
defendant."'° Commonwealth
Common vealth v.v. Paddy,
15
15 A,3d
A.3d 431,
431, 450 (201.1).
450 (2011).
In the instant matter,
matter, the parties have presented
the parties presented inconsistent positions relative to the
nature of
ofthe
the information in gaestion.
question. The argues that the challenged comments of
The defense argues orMs.
Ms.
Bair are favorable
favorable to Defendant as impeachment
impeachment evidence as
as "it was new
new .information,
information,
inconsistent with Bair's
air's previous
previous statements to police and prior sworn testimony
testimony, ,as well as
inconsistent
inconsistent with other
outer eyewitnesses Hill; all of which
eyewitnesses at Turkey Hill which goes
goes directly to
to Bair'
Bair's
credibility."
credibility." (Defendant's
(Defendant's Brief in
in. Support of Granting Motion for Dismissal and Barring Retrial
—
p.p, 14).. Conversely, the
I4). Conversely, Commonweaith asserts that the disclosure in
the Commonwealth in question by Ms.
Nis. Bair
Bair is
not inconsistent
inconsistent with her prior statements
her prior statements. Rather,
Rather, the
the Commonwealth posits
posits that M1Ms.;. Bair's
current statements,
statements are simply
simply more detailed than her prior statements and would not be the
subject
subject of
of proper
proper impeachment. (Cominonwealth•s Brief
impeachment. (Commonwealth's Opposition to the
Brief in Opposition the Defendant's
Dcfendarlt';,•
Motion
Motion for Di =is sal and Barring retrial
Dismissal Retrial —pgs. 8,
pgs. 9, 10-12),
10-12).
10
IO
In
In assessing
assessing the
the parties'
parties' respective
respective posiEions,
positions, this court is
this court is placed
placed into
into the difficult
the difficult
situation
situation of
of assessing
assessing the
the favorability of this
favorability of this information
information to
to the defer&dit. As
the defendant. As recognized ky our
recd sized by our
appellate
appellate courts,
courts,
A
A deternaination
deternination of whether the prosecution witnesses
the statements of prosccution witnesses
would have been
would have been helpful
helpful toto the
the defense
defense is
is not
not to
to be
be made
made byby the
the
prosecution
prosecution or
or the
the trial
trial court.
court., ,.. Matters
Matters contained
contained in
in a
a v6tness'
witness
statement
statement may appear innocuous
may appear innocuous to to some, but
but have great significance
to counsel
to counsel viewing
vewing the
the statements
statements from
from the
the perspective of
perspective of an
an advocate
advocate
for the
the accused
accused abort
about to cross-examine aawitness.
to cross-examine witness,
Commonweallh
Commonwealth v.v, Alston,
41slon, 864 A.2d 539, 547 (Pa. Super.
A.2d 539,547(Pa. Super. 200-4)
2004) (citing
(citi )g Commonwealth
C'onimonwealth v.v. French.
French,
611 ,A2d
A.24 175, 179-80 (Pa.
(Pa. 1992).
1992).
The
The allegations
allegations of Ms.
Ms. Bair
Bair at issue herein
herein .are clearer not of an inherent
arc clearly inherent exculpatory
nature inasmueh
inasmuch as said statements allege that
that the defendant physically
physically assaulted aafemale
fernale in the
the
hours which preceded
preceded the
the homicide.
homicide. As such, Ms.
As such, Ms. Bair#s are in the
Bair's claims are the nature of aaprior bad
nature of
act.
Defendant claims that the new
pew information would be useful for impeachment purposes in
that M s. Bair had not previously
Ms. previously raised such claims.
clainns. As noted by
by the Commonwealth,
C;crmmonwcalth,
Pennsylvania
Pennsylvania jurisprudence has long
jurisprudence has long held
held that
that "it
it is
is well-established
well-established that
that for
for aastatement
statement to
to be
used for impeachment,
impeachment, aastatement must be
be inconsistent with, and not just different, .from
from trial
testimony. Mere omissions from prior
testimony.Mere prior statements do not render prior
prior statements inconsistent for
impeachment
impeachment purposes." Commonweallh v. Johnson,
purposes." Commonwealth ,luhnason, 758 A.2d 166, I70
170 (Pa.
Pa. Super. 20100); ee
Super 2000) ,see
also,
also, Commonwealth v.
». Washington,
Washington, 700 A.2d 400, 4I
411 n.17 {Pa.
(Pa. 1.997); C mmon w
ealth vV.
1997) Commonwealth
JWcEachin,
McEachin, 537
537 A.2d 883, 891 (Pa.
A.2d 883,891 Sapper. 1988);
(Pa. Super. 1988); Commonwealth v.
• Rue, A.2d 973,976
Rue, 524 A.24 97:3, 976 (Pa.
Super.
Super. 1987);
1987); Commonwealth v.v. Hammond,
end, 454 A.2d 60, 65 (a.
(Pa. Super. 1982). "Where aa
vvitrwss
witness offers
offers testimony that is
testimony that is more
more detailed
detailed than
than the
the vdtness'
witness' prior statement, that
prior statement, is not
that is not an
ari
inconsistent
inconsistent statement upon which
statement upon which one can impeach."
one can impeach." Commonwealth ».v. layiner„ IS3
Rayner, 15 3A.3d
,3d
11
II
1049,
1049, 1062 (Pa.
(Pa. Super. 2016), Accordingly,
Super. 2016). Accordingly, the additional
additional allegations Ms,. Bair
allegations at issue raised by Ms.
would
would not
not be traditionally appropriate impeachment
traditionally appropriate impeachment material as aaprior inconsistent statement
statement.
Although
Although the statement. at issue would not serve as the basis of impeachment as a
the statement aprior
inconsistent
inconsistent statement,
statement, itit must
must be
be recognized
recognized that the Commonwealth
that the Commonwealth has conceded that
has conceded that the
the
statement
statement lacks
lacks any
any additional support from the
additional support the other evidence
evidence in
in this
this inatter. Stated. another
matter. Stated
way,
way, the
the Commonwealth
Commonwealth went
went so far as to concede that they have no reason to believe that
no reason that Ms.
Bair's statemew
statement has any
any accuracy.
accuracy. Accordingly,
Accordingly, Defendant. of
Defendant could arguably seek introduction ol
the statement to cast doubt upon
upon Ms. Fair's credibility., independent of any concerns
Hair's overall credibility,
regarding inconsistency. 16 As
regarding inconsistency." such, this
As such, court cannot
this court cannot find
find this statement as
this statement as wholly
wholly lacking
lacking
exculpatory
exculpatory value,
value.
Tinting
Turning to the next prong
prong of the Brady
Brady analysis, the burden of
ofproof
proof is on the defendant
to
to demonstrate
demonstrate that
that the Commonwealth withheld
the Commonwealth withheld or suppressed
suppressed evidence.
evidence. Commorwealth
Commonwealth v_
Porter,
Porter, 728 A, 2d 890,
A.2d 590, 898 (a.
(Pa. 1999).
1999). As argued
argued by
by the
the Commonwealth herein, it is recognized
that
that Pennsylvania
Pennsylvania jurisprudence
jurisprudence iinposes constitutional requirement
imposes "no constitutional tbat the
requirement that prosecution
the prosecution
make a
a complete
complete and detailed accounting
accounting to
to the defense of all police investigatory work on aa.
case." Commonwealth
•ommoniveulth v.
• Natividad, 200 A.3d 11, 26 (Pa. 2019) (quoting
11,26 v. Illinois, 08
(quoting Moore v». 408
UJ
US..786,795(1995))-
786, 795 (1995)). Under Brady,
Brady, "the prosecutor
prosecutor is not required to deliver his entire file
iile to
only to disclose evidence favorable to the accused that, if suppressed, would
defense counsel, but only
deprive
deprive the
the defendanI
defendant of a
a fair trial," Commonnealih v,
trial." Commonwealth v. Haskfna,
Haskins, 60 A.3d 528,546-47
528, 546-47 (Pa
(Pa_
uper. 2012)
Super. 2012) (gooting
(quoting United Slates
States •v. Bagley, U.S, 667, 677 (1985).
Bagley, 473 11.$. (1985)). That noted,
nosed, the
the
'6 Whike
while itit is not within the purview
purview of the court to speculate
of the speculate as to the strategic disions
decisions of counsel for the
deferndant,
defendant, it cannot be overlooked that inlroduction
introduction of Ms. Hair's statements
M«. Baits statemcnLs in this regard
nerd would certainly expose
the jury to
t]wjury to the
the prejudicial
prejudicial nature of the
the prior
prior bad acts
acts alleged.
alleged in the
tbe statement.
statement, As will
wit Le addressed further herein, it
be l
is
is the
the prr judicial. impact
prejudicial impact of welt
such statements wllicl,
which led.
led the court to grant
gart Defendant's request
request for a
a mistrial in #his
this
matt er.
matter
1
12
appellate
appellate courts of this
courts of Commorkw alth have
this Commonwealth have recognized
recognized the pretrial disclosure
the pretrial disclosure of prior
of prior
statements
statements of
of Commonwealth
Commonwealth witnesses
witnesses to
to the defense. See, Commonwealth v.
the defense. Conlakos, +24
v. Contakos, x}2.4
A.2d
A.2d 1284 (Pa, 198
1284 (Pa, 1) (majority
1981) (majority of
of court
court agreeing
agreeing that
that defense is entitled
defense is entitled to
to notes of any
notes of any
interviews
interviews conducted by the
conducted by the prosecution
prosecution where
where the
the natcs
notes are
are aasubstantially
substantially verbatim record of
verbatim record of
the
the ii}teruiew}; Commonwealth v. Grayson,
interview); Commorwealth Grayson, 353
353 A.2d
A4.24 1'1976)(a
761) (a new trial was
new trial awarded where
was awarded where the
defense was denied access to review pretrial
pretrial statements made by
statenents madc Comm onwcalth witnesses),
by Commonwealth witnesses);
Commonwealth a
v. .Morris,
Morris, 281 A.2.d 8.51 (Pa.
A.2d 85I (Pa. 1971) (where: law enforcement officer conducted
197D (where
an interview of
of the victim
victim in
in aarape prosecution
prosecution and took
took extensive notes,
notes, those notes were
subject
subject to
to disclosure
disclosure to
to discovery
discovery by defense); Commonwealth V.
by defense); v. Parenle,
Parente, 440 A.2d (Pa.
A.2d 549 (Pa
Super. 1982)
Super. 1982) (the
(the recorded or substantially
substantially verbatim statements by eyewitnesses that the
Commonwealth intends to call
Commonwealth call at
at trial must be available
trial must available to defense counsel
to defense counsel upon
upon aamotion
motion for
for
pretrial discovery); see contra,
pretrial discovery); c: nlra, Comorwealth
Commoravealrh v.
• Steder,
Stetler, 95 A.3d 864 (a.
A.3d 864 (Pa. Super. 204)
2014)
(informal
(informal notes
notes compiled
compiled by
by investigators during interviews
investigators during are not
interviews are subjcet to
not subject to discovery
discovery
requirements
requirements under Rule 573 of the Pennsylvania
Pennsylvania Rules of Criminal Procedure in that they are
not
not substantially
substantially verbatim oral statements
verbatim oral statements ;signed, adapted, or
signed, adopted, or otherwise
otherwise shown
shown to be
to be
substantially
substantially verbatim statements of the witness),.
witness). There can be no doubt that these holdings
have
have been
been largely
largely incorporated
incorporated into Rule Pcnnsylvzinia Mules
Rule 573 of the Pennsylvania Procedure.
Rules of Criminal Procedure
Applied
Applied to the instant
instant matter,
matter, the statements at issue were first by 14s.
first offered by Ms, ]lair durhig
Bair during
a
a meeting
meeting which occurred on May 1 p.2021
May 10, 2021 at the Lancaster City Bureau of Police Headquaders.
Police Headquarters.
Present
Present at
at this
this meeting
meeting were
wereMs.
Ms. Bair,
Bair, Assistant
Assistant District
District Altomey
Attomey Cody Wade,
Wade, and Detective
Detective
Sergeant
Sergeant Robert Whileford.
Whiteford. The purpose
purpose of this meeting was to permit
p Ms. Bair to review her
prior
prior statements and te.•timany
statements and testimony so
so as
as to prepare
prepare leer Ior testimeiiy
her for trial. This meeting
testimony at trial xvus not
meeting was not
recorded,
recorded, nor
nor were any verbati',
were any or substantially
verbatim or substantially verbatim accounts preserved
verbatim account of this
preserved of this meeting.
meeting
13
As
As previously
previously addressed,
addressed, Assistant District Attorney
Assistant District Attorney Wade credibly testified
Wade credibly testified that he
he had
had no
lio
reason
reason to
to believe
believe the accuracy of
tbe accuraey of Ms.
Ms. Bair's representations
representations as
as they
they were not supported by
not supported by any
any
other widence in
other evidence in this
this matter.
matter. As
As such„
such, itit is clcar
clear that. Attorney Wade discounted
that Attorney discounted these
allegations and instructed
allegations instructed Pis.
Ms. Bair
Bair that
that they
they woald
would raised at trial.
raised at trial. At the direction
At the direction of
of Attorney
Attorney
Wade,
Wade, Detective
Detective Sergeant
Sergeant Whitef"ord
Whiteford prepared
prepared a supplemental report regarding the
a supplemental interview
the interview
which was promptly
promptly provided
provided to counsel for the defendant, Sergeant. %Vhiteford
defendant. Detective Sergeant Whiteford
credibly
credibly testified
testified that
that lie
he did not
not recall hearing
hearing Ms.
Ms. Bair
Bair making statements during
making any such statements during the
meeting
meeting and
and that
that he had
had briefly
briefly .stepped ofthe
stepped out of the mocting.
meeting. Additionally,
Additionally, Detective
Detective Sergeant
Whiteford
Whiteford credibly
credibly testified that any representations
that any suggestive to the
representations suggestive contrary made at the time
the contrary
of trial
trial were the
the result of confusion
confusion between
between this
this case and other matters. It must also be
be noted
noted
that, at the time
that, time of trial, Attorney Wade
trial, Attorney indicated to
Wade indicated to the cozu-t
court that had aavague
that he had vague recollection
that
that lbs.
Ms. Bair
Bair had told him during
had told during the
the meeting that Defendant
meeting that Defendant and lots.
Ms. Payne had "gotten
Payne had "gotten into
into if
it „
at
at the Turkey
Turkey bill
Hill convenience store, but.
but he was
was unable to describe her comments during the
to dcscribe
meeting
meeting with any additional
with any additional specificity
specificity.
With regard
regard to the issue of
to the of materi a] i
ty, evidence
materiality, -evidence is material. ifthere
material if there is aareasonable
reasonable
possibility
possibility tliat,
that, had the evidence been disclosed to the defense, the result of the trial would have
been
been different." Co root mreaf hv.
different." Commonwealth v. Lambert, 8$4 A.7d
Lambent, 884 A2d at 854; See also, Commonwealth vV-
CChins•, 988
Collins, 888 A.2d
A.24 Sb4,
564, 577-7
577-78 (Pa.
(Pa. 2005),
2005). The
The mere possibility
possibility that an item of undisclosed
information
information might
might have helped
helped the defense, or might
might have affected the outcome of the trial, does
not
not establish
establish materiality in the
materiality in the constitutional
constitutional sense. Corm aniveafth v.
sense. Commonwealth 807 A.2d
• Chambers, 807 A,2d 8T2,
872.,
87 (Pa.
887 (Pa. 2002).
2002).
granted Defendaw's
As the court granted Defendant's request
request for aamistrial, this court cannot
cni-not weigh any
determination
determination of
of materiality against the
materiality against the outcome
outcome of
of trial
trial as
as the
the matter never reached
matter never verdict.
reached verdict
14
14
That said
said,;it must be considered that Ms..Bair eyewitness to the homicide. Rather,
Ms. Bair was not an eyewitness
based upon
upon the
the credible
credible representations
representations made
made by
by the attorneys for
the attorneys Commonwealth, Ms,
for the Commonwealth, lvls. Bait
Bair
was
was presented
presented for the Iimi.ted
for the limited purpose of testifying
purpose of testi Cying regarding
regarding her
her observations of the argument
observations of argument
which occurred at the
the Turkey
Turkey Bill convenience store prior to the
Hill convenience the homicide,
homicide, as well to corroborate;
to corroborate
certain
certain prior
prior consistent statements made
consistent statements made by an eyewitness
by an eyevkitness to
to the
the homicide
homicide which identified
which identified
Defendant
Defendant as shooter.
as the shooter.
Mule
While evidence
evidence that Ids. Bair is
Ms. BEir is currently
currently raising claims that Defendant
Dcfend ant physically
ply sic ally
grabbed
grabbed a
a female during the argument
female during argument at
at the Turkey
Turkey Hi I
HillIconvenience
convenience store,
store, and that such
and that such
evidence
evidence is not supported
supported by
by any other evidence,
any other evidence, may arguably
may arguably be helpful in
be helpful in the impeachment of
the impeachment of
her credibility,
credibility, it
it is
is not of such
not of quality that
such quality that there is
is a
a reasonable
reasonable possibility that it
possibility that would .lead
it would to aa
lead to
different
different verdict
verdict at
at trial.
trial. Additionally,
Additionally, this court cannot
this court cannot overlook
overlook the prejudicial impact
impact of
of such
such
testimony
testimony as reflective
reflective of
of prior
prior violent
violent acts
acts orn
on the
the part of the
part of the defendant
defendant shortly before
before the
horn i6de. ire
homicide In suggesting
suggesting the benefit of
the benefit of introductio nof
introduction of such
such evidence
evidence for
for impeachment purposes,
impeachment purposes,
Defendant, herein,
herein, minimizes the integrated inculpatory
be integrated aspcets, which, taken to
inculpatory aspects, in their context,
substantially
substantially undermine
undermine the allegedly exculpatory
the allegedly exculpatory value of the
value of staternent.
the statement.
Accordingly, for the
Accordingly, for the foregoing reasorps, the
foregoing reasons, the court
count finds that Defendant
finds that Defendant has failed to
has failed to
establish
establish ruateriality
materiality in
in the constitutional
cons titudonal sense.
sense. Therefore,
There Coro, Defendant
Defendant has
has fail ed to
failed to prove
prove that
that
any
any Brady/Giglio
Brady/Giglio viol adan occurred
violation occurred in this matter.
in this matter. Assuming,
Assuming. arguendo,
arguendo, that
that aarevieAins court
reviewing court
may
may find such
such a
a violation,
violation, there
there is
is no evidence of
no evidence of record suggest that
record to suggest any lack
that any lack of
of disclosure
disclosure; by
by
the attorneys
the attorneys for
for the Commonwealth
Commonwealth resulted from any
resulted from any intentional, willful, or
intentional, willful, or reckless
reckless conduct,
conduct,
as opposed
opposed to mere inadvertence.
inadvertence
Mast
Most importantly,
importantly, it must be recognized
recognized that the mistrial granted
grwited in this matter, upon
Defendant's
Defendant's motion,
motion, did not pertain
pertain to any purported discovery violations.
violations. Niore
More specifically, the
15
court
court granted
granted a
a mistrial
mistrial in
in this
this matter
matter because the jury
because the jury was
was presented
presented with
with testimony
testimony regarding aa
purported
purported prior
prior bad
bad act allegedly committed
act allegedly committed by the defendant some
the defendant some time before, and at
time before, at aa
diff'mnt
different location,
location. from
from the hom]6de 17 .
homicide"
In assessing
In assessing this
this claim, as noted
claim, as above, the
noted above, the count
court rinds that Attorney
finds that Attorney NVade credibly
Wade credibly
testified
testified that:
that: he
he did
did not
not intend
intend to
to in trod ace this
introduce this evidence at trial18;
evidence at trial"; he admonished Ms.
he admonished Fair not
Ms. Bair not
to
to present
present this
this testimony at trial,
testimony at trial; he did not
he did elicit such
not elicit such testimony; was surprised
testimony; he was surprised by such
such
testimony;
testimony; and,
and, he
he dial
did not seek to
not seek prejudice the
to prejudice defendant's right
the defendant's to aafair
right to fair trial. Attorney Wade
trial. Altomey Wade
further credibly testified
further credibly testified that
that the Comronwealth has
the Commonwealth has received
received no
no benefit from the
benefit from award of
the award of
Defendant's
Defendant's motion
motion for
for a
a mistrial
mistrial in
in this.
this utter.
matter
Accordingly,
Accordingly, based upon
upon the
the totality of the
totality of evidence presented,
the evidence presen(ed, it is clear to
is clear to this
this court
court that
that
the
the introduction
introduction of
of the challenged
challenged testimony solely the
testimony was solely the result
result of an unexpected "blurt out"
Out" on
the
tbe part
part of
of aalay
lay witness,
witness, despile the reasonable
despite the reasonable attempts of the:
attempts of attorneys for
the attorneys for the Commonwealth
the Commonwealth
to
to prevent
prevent such. court finds
such. The court finds that
that the
the record
record in this
this natter
matter is devoid of
is devoid of any
any evidence
evidence that
that the
the
Commonwealth
Commonwealth acted
acted in
in an intentional or
an intentional or reckless manner. The court
manner. The further finds
court further that the
finds that
record
record in this matter
in this matter is devoid of
is devoid of any
any evidence of prosecutorial
evidence of prosecutorial overreaching
overreaching which, turn,
which, in turn,
implicates
implicates .some
some sort ofconscious omission, Accordingly,
conscious act or omission. Accordingly, the double jeopardy bar of
retrial
retrial is
is not wwrrantcd
warranted in
in this
this matter.
matter. Rather,
Rather, this correctly granted
this court correctly granted. Defendant's
Defendant's motion for
a
a mistrial
mistrial upon
upon the
the inadvertent
inadvertent admission of the
the prejudicial
prejudicial prior
prior bad acts evidence. As the result
result
thereof,
thereof, Defendant
Defendant will
will receive
receive the
the benefit of aainew
benefit of new trial
trial untainted by
by such
such evidence.
evidence
"At trial, the Conmonwralth
Attial, CorrowtAth offered no argument argumcrit regarding admissibility of
regarding the admissibility of such testimony
testimony under any
recognized exception
recognized exception to
to the general prohibiticm
general prohibition against the admission
adoiso of prior
poor bad acts
act evidence.
evident.
I' The
re court further
further Cnds ffiat the
fade that the Communwea[th
Conorwesth coted cDrnmitted, mo
nip violation of any
any{ notice
nvti= requirements contained in
Rule
Rule 404(b)
404(b) ofof the
the Pennsylvania
Pennsylvaia Rules Evidmee in
Rules of Evidence in that
that the ComTnonwealth was not
the Commonwealth not intending to
to introduce
intrcAuce such
evidence_
evidence
16
Rule
Rule 587(B)
587() of the Pennsyl-vania
of the Pennsylvania Bales of Criminal
Rules of Crimizial Procedure directs that
Procedure directs this court
that this court must
must
make
make a
a determination
determination as
as to
to whether
whether Defendant's current challenge
Defendant s current chaIJenge should
should be
be deemed as
as
frivolous.
frivolous. Said
Said determination will impact
impact tilt timing of
the timing ofany
any potential appeal of
potential appeal of this court's
cciurt's
decision. Our appellate
appellate courts have held that
that a frivolous double
a frivolous double jeopardy claim i
jeopardy claim iss"a claim
claim
clearly
clearly and
and palpably
palpably xiwithout
ithout merit,
merit; it
it is
is aaclaim [that]
[that] presents
presents no
no debatable question."
debatable question"
Commonweallh
Commonwealth v. Orie,
Orle, 33 A.3d 17, 21 (Pa.
17,21 (a. Super. 2011) (quoting Commonwealth v.v. Gains, 5S56
556
A.2d 870, 874-.5 (Pa. Super.I989)
874-5 (Pa. Super.198x) (en
(era bane)).
bane)). Further, our appellate courts have held that,
Where
Where the trial court has
trial court has rejected
rejected a a criminal
criminal defendant's
defendant s double
double
jeopardy claim which
jeopardy claim which isis at
at least
least 'colorable' oror arguable',
`arguable', access
access
to
to appellate review
review is imperative. Otherwise,
is imperative. Otherwise, the risk is
the risk is simply
simply
too
too great
great that the criminal
criminal defendant
defendant will
will be deprived of
be deprived of his
his
right to
right to be
be free from an unnecessary retria] with its
retrial with accornpan ing
its accompanying
4.. Iexpense, trauma,
expense, trauma., and
and rigors incident to to aacriminal prose ution
prosecution
for the second time.
Gains, 502 A,2d
A.2d at 875 (citing Commonwealth
Commonwealth'v.
v. Brady, 502 A.2d
A 2d 286, 288 (Pa. 1986)).
1986))
This court has failed to discover any
any :further appellate guidance
further appellate guidance to its analysis in this
to aid its
regard.
regard. This court is wholly cognizant
ccgnizant ofthe cballen es, which
the challenges which may result to the parties
partics by any
rurther
further delay
delay in
in resolution of this
resolution of i-nalter. That
this mater. That noted, although this
noted, although this court
court has determined that
has determined that no
no
evidence exists of record to support
support Defendant's claims regarding the nature of conduct of the
attorneys
attorneys for
for the Commonwealth and that
Commonwealth and that Defendant's
Defendant's claim
claim lack merit, this
lack merit, this court
court cannot
cannot
conclude that
that Defendant's claim presents no
"no debatable question". Accordingly, this court finds
Defendant's claim to be
Defendant's claim be of .aa non-frivolous mature.
nature
17
IN
IN THE
THE COURT
COURT OF COM moN PLEAS OF
OF COMMON OF LAN CAS TER
LANCASTER OU TY, PENN
COUNTY, SYLVANIA
PENNSYLVANIA
RIMI 1'AL
CRIMINAL
COMMON WALTH OF
COMMONWEALTH OF PENNSYLVANIA
VS. No.
No CP-36-CR-0002279-2018
CP-30-CIS-()0022.79-2018
WILBE TOIviELENDE
WIL BERTO MELENDEZ
ORDER
ORDER
AND
AND NOW,
NOW, this 2nd day
day of March, 2022,
2022„ following an evidentiary bearing in
hearing relative to
Defendant's
Defendant's Motion to Dismiss and Bar Retrial and tije Arritten submissi
the written submissions
ons of the parties, it i
is
hereby
hereby ORDERED
ORDERED that
that said
said Motion
Motion is
is DENIED.
DENIED.
Pursuant
Pursuant to
to Rule
Rule 587(13)(5) of the
587(B)¥5) of the Pennsylvania
Pennsylvania Rules of Criminal
Rules of Criminal Procedure, Defendant
Procedure, Defendant
is
is hereby
hereby advised that this order is immediately appcalable
appealable as aacollateral order
order.
BY
BY :COURT:
OURT-
•Ak
•
IMEi ': LL M. SPAHN, JR., JUICE
JR, JUDGE
ATTEST.
ATTEST
Copies
Copies to
to:- 'T'ravis.
Travis S, S. Ar dersola, Esquire,
Anderson, Esquire, First
First Deputy
Deputy District.
Distriet Attorney
Attorney
Cody
Cody Wade,
Wade, Esquire,
Esquire, Assistant
Assistant District Attorney
District AttomeY
Jack
Jack Mc 1Mon, Esquire,
McMahon, Esquire, Counsel
Counsel for
for Defendant,
Defendant, 139
139 North
North Croskey Street,
Philadelphia,
Philadelphia, Pennsylvania„
Pennsylvania, 19103
Jeremy
Jerem D.D, Williams,
Williams, Esquire,
Esquire, Counsel for
for Defendant„
Defendant, 13
13 East M ark[ Street,
East Market
York, Pennsylvania, 17401