Com. v. Devault, T. ( 2023 )

J-A02029-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TRAVIS LEE DEVAULT :
:
Appellant : No. 1260 WDA 2021
Appeal from the Order Entered January 6, 2021
In the Court of Common Pleas of Allegheny County
Criminal Division at CP-02-CR-0002250-2018
BEFORE: BOWES, J., MURRAY, J., and PELLEGRINI, J.*
MEMORANDUM BY MURRAY, J.: FILED:FEBRUARY 24, 2023
Travis Lee DeVault (Appellant) appeals from the order denying his
motion to dismiss based on double jeopardy.1 After careful review, we affirm.
The trial court detailed the convoluted history of this case in its opinion.
See Trial Court Opinion, 3/15/22, at 1-5. Pertinently, on April 2, 2018, the
Commonwealth charged Appellant with rape of a child, involuntary deviate
sexual intercourse with a child, unlawful contact with minors, incest of a minor,
sexual assault, dissemination photo/film of a child sex act, child pornography,
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* Retired Senior Judge assigned to the Superior Court.
1 This appeal is proper pursuant to Pa.R.Crim.P. 587(b)(6) (“If the judge
denies the motion [to dismiss on double jeopardy grounds,] but does not find
it frivolous, the judge shall advise the defendant on the record that the denial
is immediately appealable as a collateral order.”). See Order, 1/6/21 (“This
Order is immediately appealable as a collateral order.”).
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sexual exploitation of children, promoting prostitution of a minor, endangering
the welfare of a child, indecent exposure, and corruption of minors.2 The
charges arose from Appellant’s abuse of his daughter (the Victim). See
Criminal Information, 4/2/18, at 1-3 (unnumbered).
The trial court convened a jury trial on June 18, 2019. The
Commonwealth subpoenaed Appellant’s former girlfriend, Tiffanie Marshall, to
testify. N.T., 6/18-19/19, at 3-4; 12. Ms. Marshall (who had been released
on bond and was awaiting trial in an unrelated matter) was under the influence
of drugs when she came to court. Id. at 4. She was detained overnight and
testified the next day. See id. at 5-12. During direct examination, the
Commonwealth asked about events that occurred on October 31, 2017:
Q. … What did [Appellant] say to you on October 31, 2017?
A. Should I go into the whole story? I’m sorry, I don’t know how
to clarify exactly what happened. He had just gotten off house
arrest a few days before and we went drinking.
[Defense Counsel]. Can we approach?
Id. at 25.
Defense counsel requested a mistrial based on Ms. Marshall’s mention
of Appellant being on house arrest. The trial court denied the motion, but
issued a cautionary instruction to the jury that Ms. Marshall had
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2 18 Pa.C.S.A. §§ 3121(c), 3123(b), 6318(a)(1), 4302(b)(1), 3124.1,
6312(c), 6312(d), 6320(a), 5902(b.1)(5), 4304(a)(1), 3127(a), and
6301(a)(1)(ii).
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misconstrued and used a term [she should not have and] should
not impact you in any way. In other words, you cannot assume
from what she just said that this defendant, who is absolutely
presumed innocent, was ever actually in truly a house arrest
situation.
Id. at 26-30. The trial court also directed the Commonwealth to caution its
witnesses “not to mention anything about those words or incarceration or
anything like that.” Id. at 25-27.
The Commonwealth resumed its examination of Ms. Marshall, who
testified that Appellant asked her to “show [the Victim] how to perform oral
sex because when [the Victim] has sex [with Appellant] she just lays there.”
Id. at 31. The Commonwealth continued:
Q. You said [Appellant] actually told you that he had sex with his
daughter []?
A. Yes.
Q. Do you remember when he told you this?
A. Yes.
Q. When was this?
A. October 31, 2017.
Q. How do you remember that date?
A. I’ll never forget it for the rest of my life.
Q. Why?
A. Because it was very traumatic.
Q. Where were you when [Appellant] told you he had sex with his
daughter?
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A. In our bedroom on our bed after he just forced me to have
sex with another man.
Q. Who was the other man?
A. I’m not sure, some guy he got off of Craig’s List.
Id. at 33 (emphasis added).
Defense counsel again moved for mistrial, stating that Ms. Marshall was
“going into [Appellant’s prior] uncharged bad acts about which I have no
discovery.” Id. at 34. The trial court agreed and granted a mistrial. Id. at
36.
After numerous delays, see Trial Court Opinion, 3/15/22, at 3-4, the
case was reassigned to a different judge. Appellant thereafter filed his motion
to dismiss on double jeopardy grounds. The court held an evidentiary hearing
on December 5, 2020. On January 6, 2021, the trial court issued its order
denying relief, along with findings of fact and conclusions of law. After further
delay, Appellant filed this nunc pro tunc appeal.3
Appellant presents one issue for review:
Did the trial court err in denying [Appellant’s] motion to dismiss
on double jeopardy grounds, where the Commonwealth’s conduct,
including refusing to prepare a volatile witness and, after the
witness volunteered inadmissible, inflammatory, and prejudicial
information that [Appellant] had subjected her to rape by another
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3Due to changes in counsel, a brief period when Appellant was proceeding pro
se, and the failure of prior counsel to inform Appellant of the trial court’s order
denying his motion, the trial court reinstated Appellant’s right to appeal nunc
pro tunc. See Trial Court Opinion, 3/15/22, at 4-5. Appellant and the trial
court have complied with Pa.R.A.P. 1925.
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man, asking for more details about the rape, [which] evinces
intentional conduct that recklessly caused a mistrial?
Appellant’s Brief at 4.
We begin by recognizing:
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. Sanchez, 262 A.3d 1283, 1288-89 (Pa. Super.
2021) (citations omitted).
Although our review is not “blindly deferential” to the trial court’s
credibility determinations, we appreciate that a “fact-finder who hears witness
testimony first-hand is able to take into account not only the words that are
spoken and transcribed, but the witnesses’ demeanor, tone of voice,
mannerisms, and the like.” Commonwealth v. Johnson, 231 A.3d 807, 818
(Pa. 2020) (citations omitted).
Recently, this Court discussed retrial following the grant of mistrial due
to prosecutorial misconduct. We explained:
It has long been the case under both state and federal law that a
subsequent trial is prohibited when a mistrial resulted from
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prosecutorial overreaching in the form of intentional misconduct
designed to provoke a mistrial. In Commonwealth v. Smith, []
615 A.2d 321 ([Pa.] 1992), our Supreme Court ruled that
Pennsylvania’s constitution provides more extensive double
jeopardy protections than its federal counterpart, holding that a
retrial is impermissible “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.” Id. at 325. Nonetheless, “Smith did not create a
per se bar to retrial in all cases of intentional prosecutorial
overreaching. Rather, the Smith [C]ourt primarily was
concerned with prosecution tactics, which actually were designed
to demean or subvert the truth seeking
process.” Commonwealth v. Lambert, 765 A.2d 306, 327 (Pa.
[ ] Super. 2000) (cleaned up).
Our High Court in Johnson again augmented the prevailing law,
ruling that the Pennsylvania constitution’s double jeopardy
protections also prohibit retrial if the prosecution acted
recklessly. Specifically, the Johnson 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.
Johnson, supra at 826 (citation and emphasis omitted).
However, the Court made it clear that … not every instance of
error by the Commonwealth requires a finding that retrial is
barred:
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
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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.
Id. at 826 (citation omitted, emphasis in original).
The Court explained that prosecutorial overreaching is conduct
that reflects a fundamental breakdown in the judicial process
where “the prosecutor, as representative of an impartial
sovereign, is seeking conviction at the expense of justice.” Id.
While the “overreaching prerequisite” was abandoned in federal
jurisprudence, it remains “firmly entrenched” in Pennsylvania’s
double jeopardy law.
Commonwealth v. Krista, 271 A.3d 465, 469–70 (Pa. Super. 2022) (some
citations omitted, emphasis in original). For prosecutorial misconduct to
prohibit retrial on double jeopardy, the misconduct must be “an act of
deliberate or reckless overreaching and not an isolated incident.” Id. at 474.
Appellant argues the trial court erred in denying his motion to bar retrial
because the Commonwealth’s conduct, “viewed as a whole, evinces intentional
conduct that recklessly caused a mistrial.” Appellant’s Brief at 13. He
maintains the prosecutor refused “to prepare [Ms.] Marshall’s testimony,
refus[ed] to take corrective action when [Ms. Marshall] volunteered
inadmissible, inflammatory, and prejudicial information, and, ultimately
compound[ed] its prejudice by affirmatively asking for more evinces [sic] at
least recklessness as to causing a mistrial.”4 Id.
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4 Appellant abandoned the claim he presented to the trial court in which he
alleged Commonwealth misconduct for failing to disclose the alleged
(Footnote Continued Next Page)
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The trial court concluded the Commonwealth did not “engage[] in
prosecutorial misconduct that necessitates the relief requested.” Trial Court
Opinion, 1/6/21, at 9. The trial court explained:
The evidence does not support that the Commonwealth was aware
of this uncharged conduct prior to Ms. Marshall taking the witness
stand. There was no testimony offered, including from Ms.
Marshall herself, that this allegation of forced sex was ever relayed
to the Commonwealth at any time during either the investigation
or leading up to the trial. On June 19, 2019[,] Ms. Marshall was
provided an opportunity to review the police report generated by
the Allegheny County Police of her interview regarding the events
of October 31, 201[7]. Although the report details that
[Appellant] and Ms. Marshall engaged in sexual activity with a
male who they met on Craig’s List on October 31, 201[7], a review
of Commonwealth’s Exhibit 1 does not indicate that any of the
sexual activity was forced. Furthermore, when given the
opportunity, she did not offer any corrections or additions to this
statement in advance of her testimony. Moreover, the answer
provided by Ms. Marshall that precipitated the mistrial was non-
responsive to the Commonwealth’s question, such that there is no
evidence that the Commonwealth sought to elicit this prejudicial
testimony. It became apparent during argument that [defense]
counsel for [Appellant], when confronted with the evidence
presented at this hearing[,] did not believe the Commonwealth
knew in advance of trial that Ms. Marshall would have testified to
this uncharged conduct and that under those circumstances it may
not have resulted in a mistrial. The Commonwealth may have
erred by its failure to recognize or appreciate the prejudicial
nature of Ms. Marshall’s response prior to asking the follow-up
question. However, prosecutorial error does not satisfy the
standard to allow for the relief requested.
Id. at 9-10 (footnote omitted).
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inducement of Ms. Marshall’s testimony. See N.T., 12/5/20, at 179-83;
Appellant’s Brief at 14-26; Trial Court Opinion, 1/6/21, at 6.
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The record supports the trial court’s conclusion that the prosecutor did
not engage in the type of “reckless overreaching” which bars retrial. See,
e.g., N.T., 6/18-19/19, at 36 (prosecutor stating she “had no way of knowing
that the witness would use the word force.”); see also Krista, 271 A.3d at
473-75. Thus, we are not persuaded by Appellant’s argument that the trial
court erred in denying his motion to dismiss on double jeopardy grounds.
Order affirmed. Case remanded for retrial. Jurisdiction relinquished.
Judge Pellegrini joins the memorandum.
Judge Bowes concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/24/2023
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