Com. v. Perez, Y. ( 2018 )


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  • J-S63020-18
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
    :        PENNSYLVANIA
    :
    v.                          :
    :
    :
    YARED ABDIEL PEREZ                       :
    :
    Appellant             :   No. 259 WDA 2018
    Appeal from the Order January 23, 2018
    In the Court of Common Pleas of Erie County Criminal Division at No(s):
    CP-25-CR-0001535-2017
    BEFORE:    OTT, J., MURRAY, J., and STEVENS*, P.J.E.
    MEMORANDUM BY MURRAY, J.:                        FILED OCTOBER 25, 2018
    Yared Abdiel Perez (Appellant) appeals from the order denying his
    motion to dismiss charges based on double jeopardy. We affirm.
    The trial court detailed the facts and procedural history of this case as
    follows:
    On July 17, 2017, an Information was filed against Appellant
    on six criminal counts, including: (1) Violation of the Controlled
    Substance, Drug, Device and Cosmetic Act, Possession with Intent
    to Deliver; (2) Liquefied Ammonia Gas, Precursors and Chemicals;
    (3) Operating A Methamphetamine Laboratory; (4) Violation of
    the Controlled Substance, Drug, Device and Cosmetic Act,
    Possession of Drug Paraphernalia; (5) Recklessly Endangering
    Another Person; and (6) Endangering Welfare of Children.
    A jury trial was held for the above-captioned matter before the
    [trial court] on December 12th and 13th, 2017. Appellant was the
    last witness to testify in the jury trial on December 13th, 2017.
    Assistant District Attorney Jared M. Trent, while cross-examining
    Appellant, inquired as to how Appellant learned of the charges
    against [him] in the instant matter. In response to this particular
    line of questioning, Appellant answered he learned of the charges
    ____________________________________
    * Former Justice specially assigned to the Superior Court.
    J-S63020-18
    from his “parole agent.” Specifically, the exchange between ADA
    Trent and Appellant proceeded, in pertinent part, as follows:
    Q: If you had been charged, would you have known about
    this?
    A: What?
    Q: If you were charged in this case?
    A: I was charged in this case.
    Q: How did you find out about that?
    A: When they arrested me. I got a call from my – I got a
    call from my parole agent, he told me to come in. It was
    weird because – it was weird because he never calls me,
    never. So when he called me, he told me to come there and
    that's how I found out about it.
    (See Notes of Testimony, Jury Trial, Day 2, Dec. 13, 2017, pg.
    168:14-24).
    Upon eliciting this response from Appellant, ADA Trent ceased
    cross-examining Appellant and expressed his concern with this
    [t]rial [c]ourt.    (Id. at 168:20-169:1).      Appellant, through
    Attorney Clelland, orally moved for a mistrial. (Id. at 171:11-19).
    This [t]rial [c]ourt granted Appellant’s request for a mistrial, and
    the jury was discharged. (Id. at 171:21-22).
    On January 10, 2018, Appellant filed, through Attorney
    Clelland, the present “Motion to Dismiss Information – Double
    Jeopardy” (hereinafter “Motion to Dismiss”). By Order dated
    January 11th, 2018, a hearing was scheduled on January 17 th,
    2018 for Appellant’s Motion to Dismiss. On January 17th, 2018,
    said hearing was held, and this [c]ourt heard testimony and oral
    arguments from both counsel. At said hearing, ADA Trent stated
    he did not know the answer to the particular question he asked
    Appellant during trial, i.e., that Appellant learned of the charges
    against him in the instant matter through his parole agent. (See
    Motion to Dismiss Transcript, Jan. 17, 2018, at pg. 11:11-13;
    14:9-12). Attorney Trent also indicated he did not intentionally
    provoke Appellant to elicit this particular response and argued
    such an inquiry does not “constitute either gross negligence or
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    J-S63020-18
    intentional misconduct.” (Id. at 15:9). ADA Trent additionally
    conceded the line questioning of Appellant at issue constituted an
    “inartful” inquiry. (Id. at 14).
    By Opinion and Order January 22nd, 2018, this [t]rial [c]ourt
    denied Appellant’s “Motion to Dismiss Information – Double
    Jeopardy.” Therein, pursuant to Pennsylvania Rule of Criminal
    Procedure 587(B)(4) and (6), this [t]rial [c]ourt also found
    Appellant’s Motion to Dismiss on double jeopardy grounds was not
    frivolous. Thus, this [t]rial [c]ourt advised Appellant that said
    Order was “immediately appealable as a collateral order pursuant
    to Pa.R.Crim.P. 587(B)(6).” Pa.R.Crim.P. 587(B)(4) & (6). Thus,
    on February 16th, 2018, Appellant filed his interlocutory Notice of
    Appeal wherein Appellant appealed this [t]rial [c]ourt’s Order
    dated January 22, 2018. By Order dated the same day, on
    February 16th, 2018, this [t]rial [c]ourt directed Appellant to file
    his concise statement of matters complained of on appeal within
    twenty-one days of the entry of said Order. On March 6th, 2018,
    Appellant filed his Concise Statement of Matters Complain[ed] of
    on Appeal.
    On March 16th, 2018, the Superior Court of Pennsylvania issued
    a Per Curiam Order directing Attorney Clelland to show cause in
    the form of a letter why Appellant’s appeal at Docket Number 259
    WDA 2018 should not be quashed as a premature appeal from this
    [t]rial [c]ourt’s interlocutory Order dated January 22, 2018. By
    letter dated March 20th, 2018, Attorney Clelland responded to the
    Pennsylvania Superior Court’s Order. Therein, Attorney Clelland
    noted he was enclosing a copy of this [t]rial [c]ourt’s Order dated
    January 22nd, 2018, wherein this [t]rial [c]ourt advised Appellant
    of his right to appeal pursuant to Pennsylvania Rule of Criminal
    Procedure 587(B)(6).
    Trial Court Opinion, 3/29/18, at 1-3.
    On appeal, Appellant presents a single issue for review:
    WHETHER THE TRIAL COURT COMMITTED AN ABUSE OF
    DISCRETION AND/OR ERROR OF LAW WHEN IT DENIED
    APPELLANT’S MOTION TO DISMISS CRIMINAL INFORMATION
    BASED ON THE FACT THAT DOUBLE JEOPARDY HAD ATTACHED?
    Appellant’s Brief at 3.
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    J-S63020-18
    With respect to Appellant’s double jeopardy claim, our scope and
    standard of review is as follows:
    An appeal grounded in double jeopardy raises a question of
    constitutional law. This [C]ourt’s scope of review in making a
    determination on a question of law is, as always, plenary. As with
    all questions of law, the appellate standard of review is de novo[.]
    To the extent that the factual findings of the trial court impact its
    double jeopardy ruling, we apply a more deferential standard of
    review to those findings:
    Where issues of credibility and weight of the evidence are
    concerned, it is not the function of the appellate court to substitute
    its judgment based on a cold record for that of the trial court. The
    weight to be accorded conflicting evidence is exclusively for the
    fact finder, whose findings will not be disturbed on appeal if they
    are supported by the record.
    Commonwealth v. Graham, 
    109 A.3d 733
    , 736 (Pa. Super. 2015) (citation
    omitted).
    The prohibition against double jeopardy was designed to protect
    individuals from being tried or punished more than once for the same
    allegation or offense.   Commonwealth v. Ball, 
    146 A.3d 755
    , 759 (Pa.
    2016). The Fifth Amendment of the United States Constitution provides, in
    relevant part, that no person shall “be subject for the same offence to be twice
    put in jeopardy of life or limb[.]” U.S. Const. amend. V. Likewise, Article I, §
    10 of the Pennsylvania Constitution provides that “No person shall, for the
    same offense, be twice put in jeopardy of life or limb.” Pa. Const. art. I, § 10;
    see also Commonwealth v. Minnis, 
    83 A.3d 1047
    , 1049 n.1 (Pa. Super.
    2014) (en banc).
    -4-
    J-S63020-18
    In assessing a double jeopardy claim grounded in prosecutorial
    misconduct, we are guided by the following:
    The Double Jeopardy Clauses of the Fifth Amendment to the
    United States Constitution and Article 1, § 10 of the Pennsylvania
    Constitution protect a defendant from repeated criminal
    prosecutions for the same offense. Ordinarily, the law permits
    retrial when the defendant successfully moves for mistrial. If,
    however, the prosecution engages in certain forms of intentional
    misconduct, the Double Jeopardy Clause bars retrial. Article I, §
    10, which our Supreme Court has construed more broadly than its
    federal counterpart, bars retrial not only when prosecutorial
    misconduct is intended to provoke the defendant into moving for
    a mistrial, but also when the conduct of the prosecutor is
    intentionally undertaken to prejudice the defendant to the point
    of the denial of a fair trial. An error by a prosecutor does not
    deprive the defendant of a fair trial. However, where the
    prosecutor’s conduct changes from mere error to intentionally
    subverting the court process, then a fair trial is denied.
    Commonwealth v. Adams, 
    177 A.3d 359
    , 371 (Pa. Super. 2017) (citations
    omitted).     “[W]hether a dismissal is warranted turns on whether the
    Commonwealth intended to deprive the defendant of a fair trial. As [we have]
    explained, dismissal is an appropriate remedy in such a case because a
    mistrial    would   be   an   inadequate   remedy   for   systematic   intentional
    prosecutorial misconduct[.]” Id. at 372.
    Additionally:
    Dismissal of criminal charges punishes not only the prosecutor . .
    . but also the public at large, since the public has a reasonable
    expectation that those who have been charged with crimes will be
    fairly prosecuted to the full extent of the law. Thus, the sanction
    of dismissal of criminal charges should be utilized only in the most
    blatant cases. Given the public policy goal of protecting the public
    from criminal conduct, a trial court should consider dismissal of
    charges where the actions of the Commonwealth are egregious
    -5-
    J-S63020-18
    and where demonstrable prejudice will be suffered by the
    defendant if the charges are not dismissed.
    Id. (citations omitted).
    Appellant argues that the trial court erred in dismissing his double
    jeopardy claim because the Commonwealth’s questioning of Appellant during
    his first trial amounted to gross negligence, which he asserts is a sufficient
    level of prosecutorial misconduct to bar retrial on double jeopardy grounds.
    Appellant contends that “intent is of no concern when determining whether
    negligent or grossly negligent behavior occurred.”                Appellant’s Brief at 8
    (emphasis in original).
    Appellant’s argument is not consistent with our jurisprudence relating
    to double jeopardy claims based on prosecutorial misconduct. We have stated
    that “gross negligence on the part of the Commonwealth is never a sufficient
    basis    upon    which     to   bar       retrial   on   double    jeopardy   grounds.”
    Commonwealth v. Kearns, 
    70 A.3d 881
    , 886 (Pa. Super. 2013) (emphasis
    in original). As we further explained:
    [U]nder Pennsylvania jurisprudence, it is the intentionality behind
    the Commonwealth’s subversion of the court process, not the
    prejudice caused to the defendant, that is inadequately remedied
    by appellate review or retrial. By and large, most forms of undue
    prejudice caused by inadvertent prosecutorial error or misconduct
    can be remedied in individual cases by retrial.           Intentional
    prosecutorial misconduct, on the other hand, raises systematic
    concerns beyond a specific individual’s right to a fair trial that are
    left unaddressed by retrial.
    *        *     *
    -6-
    J-S63020-18
    The additional protections provided under Pennsylvania’s Double
    Jeopardy clause do not extend to non-intentional prosecutorial
    misconduct, but rather only bar retrial following a defendant’s
    successful motion for a mistrial when the conduct of the
    prosecutor [giving rise to the mistrial] is intentionally undertaken
    to prejudice the defendant to the point of the denial of a fair trial.
    
    Id. at 884-86
     (quotations, citations, and footnotes omitted).
    In this case, ADA Trent’s prosecutorial misconduct was not intentional.
    Notably, the record reflects that immediately upon eliciting the prejudicial
    response from Appellant set forth above, ADA Trent ceased questioning
    Appellant and brought the issue to the attention of the trial court.           N.T.,
    12/13/17, at 168-69. Thus, the trial court appropriately rejected Appellant’s
    double jeopardy claim, stating:
    In the instant case, ADA Trent represented to this [t]rial [c]ourt
    that he did not know the answer to the prejudicial question which
    caused Appellant to move for a mistrial. In addition, ADA Trent
    conceded his line of questioning during Appellant’s cross-
    examination eliciting the prejudicial response was “inartful.”
    Moreover, immediately upon eliciting the prejudicial statement
    from Appellant, ADA Trent ceased his cross-examination of
    Appellant and later expressed his concern to Attorney Clelland and
    the [c]ourt outside the presence of the jury. ADA Trent stated his
    “intention was to explore the conversations with [Appellant’s]
    sister.” (See Notes of Testimony, Jury Trial, Day 2, Dec. 13, 2017,
    pg. 169:24-25). ADA Trent also admitted he did not anticipate
    Appellant’s answer. (Id. at 170:3-4). As such, this [t]rial [c]ourt
    finds and concludes no prosecutorial misconduct occurred because
    ADA Trent did not intentionally provoke Appellant to elicit this
    particular response, nor was he motivated by bad faith to harass
    or prejudice Appellant. Accordingly, this [t]rial [c]ourt properly
    concluded Double Jeopardy does not preclude the Commonwealth
    from trying Appellant for a second time and properly denied
    Appellant’s Motion to Dismiss.
    Trial Court Opinion, 3/29/18, at 4-5.
    -7-
    J-S63020-18
    Based on our review of the certified record, we agree with the trial
    court’s conclusion that ADA Trent did not intentionally commit prosecutorial
    misconduct in order to prejudice Appellant to the point of denying him a fair
    trial.    See Kearns, 
    70 A.3d at 884-86
    .       Although ADA Trent’s line of
    questioning was “inartful,” the record is replete with evidence that it was not
    ADA Trent’s intention to prejudice Appellant and deny him a fair trial.
    Accordingly, we conclude that the trial court did not abuse its discretion in
    denying Appellant’s motion to dismiss the charges against him on grounds of
    double jeopardy.
    Order affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 10/25/2018
    -8-
    

Document Info

Docket Number: 259 WDA 2018

Filed Date: 10/25/2018

Precedential Status: Precedential

Modified Date: 10/25/2018