Com. v. Traver, H. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
HERBERT TRAVER :
:
Appellant : No. 382 MDA 2021
Appeal from the Order Entered March 19, 2021
In the Court of Common Pleas of Wyoming County Criminal Division at
No(s): CP-66-CR-0000283-2018
BEFORE: PANELLA, P.J., MURRAY, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED JANUARY 06, 2022
Defendant/Appellant, Herbert Traver, files this interlocutory appeal from
the trial court’s order denying his motion to bar retrial on grounds of double
jeopardy. Specifically, Mr. Traver contends that double jeopardy attached
when the Commonwealth impermissibly referenced his pre-arrest silence
during its cross-examination of him at trial. After careful consideration, we
affirm the trial court’s order finding no reckless misconduct on the part of the
Commonwealth and remand for a new trial.
In June of 2018, Mr. Traver was arrested and charged with one count of
rape, one count of corruption of minors, and two counts of indecent assault
on allegations that he sexually assaulted D.R., his step-granddaughter, on
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* Former Justice specially assigned to the Superior Court.
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various occasions starting when she was 11 years old. The rape allegedly
occurred in July of 2014, when D.R. was 12 years old.
A three-day jury trial commenced on May 20, 2019. D.R., who was 17
years old at the time of trial, testified, as did her brother, the investigating
police officer, and a psychologist who provided expert testimony on delayed
reports by child victims. The defense called seven witnesses, including family
members, friends, Traver’s primary care physician, and Traver himself, who
collectively offered testimony calling into question whether Traver, 72 years
old at the time of trial, was physically capable of committing sexual assault
given his physical limitations and medical diagnoses, including clinical
blindness, cardiac issues, and alleged erectile dysfunction.
Specifically at issue is the following exchange during the
Commonwealth’s cross-examination of Traver:
Cmwlth: Good afternoon sir. The things you testified to[--]you
never touched [D.R.’s] breasts, you never touched her vagina,
and you never had intercourse with her[--]and you were contacted
by Trooper Cooney in February, 2016, you never told him that,
did you?
Traver: He never asked me if I ever touched her.
Cmwlth: Because you never called him back, did you?
N.T., 5/22/2019, at 611.
The defense lodged an objection and requested a sidebar, during which
it moved for mistrial on the argument that the Commonwealth had subverted
Traver’s right to pre-arrest silence. In apparent anticipation of such a motion,
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the Commonwealth supplied the court with caselaw to support its position that
reference to a defendant’s pre-arrest silence is permissible to impeach a
defendant witness. Nevertheless, despite finding that the Commonwealth had
not engaged in prosecutorial overreaching, the trial court granted the defense
motion and declared a mistrial, citing its concern that the implication of the
question “may have had the affect [sic] of biasing the jury.” Trial Court
Opinion, 4/16/21, at 5.
Prior to the commencement of a new trial, Traver filed a motion to
dismiss on double jeopardy grounds. After considering oral argument and
briefs, the trial court denied Traver’s motion to dismiss on the conclusion that
double jeopardy protection was unwarranted in the absence of requisite
intentional prosecutorial misconduct. See Commonwealth v. Smith, 615
A.2d 321 (Pa. 1992) (predicating double jeopardy protection on prosecutorial
misconduct intended to either prompt a defense motion for mistrial or deprive
defendant of a fair trial). Traver filed a timely interlocutory appeal to this
Court.
In Commonwealth v. Traver, 1722 MDA 2019, unpublished
memorandum at **1-3 (Pa.Super. 2020), a panel of this Court concluded
there was no intentional misconduct by the prosecutor to cause a defense
motion for mistrial or deprive Traver of a fair trial. However, it remanded the
matter for reconsideration of the facts under the Pennsylvania Supreme
Court’s new decision in Commonwealth v. Johnson, 231 A.3d 807 (Pa.
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2020), which expanded grounds for double jeopardy relief to include
unintentional prosecutorial misconduct that is, nevertheless, reckless.
On remand, the trial court determined the prosecutor did not recklessly
ask the question at issue. In so determining, the trial court rejected Traver’s
position that the prosecutor falsely misled the jury into thinking Traver
avoided answering the Trooper’s pre-arrest questions regarding the
allegations against him.
Specifically, the court opined that it was actually defense counsel who
informed the jury through his cross-examination of Trooper Cooney that
Traver was aware of the allegations against him as early as 2016 when he
chose not to return a phone call by Trooper Cooney, who left a message that
he sought an interview. The trial court alludes to the following exchange in
support of its opinion:
Defense Counsel: 2018. OK. Now you’d agree with me that
these allegations were under investigation, really, since 2016.
Trooper Cooney: Correct. It was February of 2016.
Q: OK and you’d agree with me that Mr. Traver was made
aware, either through your office or through other – through
Human Services, Children and Youth Services that he was under
investigation?
A: Yes, I reached out to Mr. Traver originally after I got the
original referral. I left a message at his house and a different
attorney at the time, that he had contacted me.
N.T., 5/21/19, at 187-88.
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As such, the trial court concluded that the Commonwealth’s reference
to Traver’s failure to cooperate with the investigation when confronted with
D.R.’s accusations was an explanation in fair response to defense counsel’s
line of questioning revealing to the jury that the investigation into Traver had
begun in 2016—nearly two and one-half years prior to his arrest—when Traver
had been contacted by Children and Youth Services and Trooper Cooney.
In his timely interlocutory appeal, Traver presents the following
questions for this Court’s consideration:
1. Did the prosecutor in the trial before the lower court engage in
reckless misconduct by questioning Appellant during cross
examination in a manner which violated his right to remain
silent under the 5th and 14th Amendments to the United States
Constitution and Article I, Section 9 of the Pennsylvania
Constitution?
2. Assuming, arguendo, misconduct, was the unavoidable affect
[sic] of the prosecutor’s actions a denial of the Appellant’s right
to a fair trial?
Brief for Appellant, at 4.
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
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fact finder, whose findings will not be disturbed on appeal if they
are supported by the record.
Commonwealth v. Sanchez, --- A.3d ----, 2021 PA Super 197 (Oct. 4, 2021)
(citations omitted).
Prior to Johnson, the Pennsylvania Supreme Court held in Smith that
the double jeopardy clause of the Pennsylvania Constitution prohibits retrial
of a defendant not only in instances where the prosecutorial misconduct was
intended to provoke a defense motion for mistrial but also where it was
intended to deprive a defendant of a fair trial. Smith, thus, distinguished a
prosecutor’s “mere error” from “overreaching,” with only the latter
constituting a tactic that “reflects that the prosecutor, as representative of an
impartial sovereign, is seeking conviction at the expense of justice.”
Johnson, 231 A.3d at 820 (discussing Smith and Commonwealth v.
Simons, 522 A.2d 537, 539 (Pa. 1987)). The double jeopardy clause, our
Supreme Court concluded, was designed to protect against such a tactic.
Johnson expanded the class of prosecutorial overreaching sufficient to
invoke double jeopardy protections to include not only intentional conduct but
also conduct “undertaken recklessly, that is, with a conscious disregard for a
substantial risk that [the deprivation of a defendant’s right to a fair trial] will
result.” Id. at 826.
Recently, this Court discussed the Johnson standard of reckless
misconduct, as follows:
In Johnson, our Supreme Court considered whether the double
jeopardy clause bars retrial “where the Commonwealth obtains a
conviction based on false evidence and its misconduct, while not
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undertaken with the intent to deny the defendant a fair trial,
nevertheless stems from prosecutorial errors that rise
substantially above ordinary negligence.” Johnson, supra at ––
––, 231 A.3d at 810. The relevant facts of Johnson are as follows.
During investigation of the victim's death, police recovered a red
baseball cap located in the middle of the street approximately nine
feet from the victim's body. The cap was assigned a property
receipt number. Shortly after the murder, the victim's friend Ms.
Williams gave a statement to police. Ms. Williams was with the
victim on the night of the murder and described the details of her
observations to police. Ms. Williams also explained that the victim
had worn a black baseball cap on the night in question. After the
shooting, Ms. Williams picked up the black baseball cap, which had
a bullet hole in it, and she gave it to police while giving her
statement. The black baseball cap was assigned a separate
property receipt number and was submitted to the crime lab for
testing. Testing revealed the presence of the victim's blood under
the brim of the black cap. Several years later, upon new
information connecting the appellant to the crime, police obtained
a sample of the appellant's DNA and submitted it for testing along
with the red cap. Testing showed the appellant was a contributor
to the DNA in the sweatband of the red cap.
The Commonwealth subsequently proceeded with its prosecution
of the case as if there was only one baseball cap—the red one—
which the Commonwealth argued contained both the victim's
blood and the appellant's DNA. Nevertheless, the
Commonwealth's argument was factually inaccurate, as neither
cap had DNA from both individuals.
At trial, the Commonwealth's crucial piece of physical evidence
was the red baseball cap, and the prosecutor repeatedly
suggested that the appellant had shot the victim at point blank
range. Consistent with the Commonwealth's factually inaccurate
theory of the case, the lead crime-scene investigator testified at
trial that when he recovered the red baseball cap from the scene,
he saw fresh blood underneath the brim of the cap. The
Commonwealth's forensic scientist also testified that the victim's
blood and the appellant's DNA were both found on “the hat.” In
closing argument, the prosecutor again told the jury that the DNA
evidence showed the appellant's sweat on the sweatband of the
red cap, as well as the victim's blood on the brim.
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In PCRA proceedings, the appellant learned the two caps, a red
one and a black one, had been analyzed in connection with the
Commonwealth's case, and that the victim's blood was found only
on the black one. The Commonwealth thereafter agreed that the
appellant was entitled to a new trial. The appellant subsequently
filed a motion to dismiss based on double jeopardy grounds. The
appellant learned during discovery related to the motion to
dismiss, that the Commonwealth had “misunderstood its own
evidence and conflated the findings related to the red and black
caps.” Id. at ––––, 231 A.3d at 813-14. Notwithstanding the
“unimaginable mistakes by experienced police officers and an
experienced prosecutor” made in the case, the trial court found
no intentional misconduct or bad faith on the Commonwealth's
part and denied the appellant's motion to dismiss. Id. at ––––,
231 A.3d at 815-16. This Court affirmed the trial court's ruling.
On appeal to the Supreme Court, the Court initially decided that
the record supported the trial court's credibility determinations in
favor of the Commonwealth. The Court stated that the trial court
had personally heard extensive testimony from numerous
witnesses involved in the prosecution, actively questioned many
of the witnesses himself, and ultimately credited the prosecutor's
testimony and found the Commonwealth had not acted with the
intent to deprive the appellant of a fair trial. Id. at ––––, 231 A.3d
at 818-19.
Regarding the scope of double jeopardy protections, the Supreme
Court held that “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.” Id. at ––––, 231 A.3d at 826. In so
holding, the Court clarified that it did not “suggest that all
situations involving serious prosecutorial error implicate double
jeopardy[.]” Id. Rather, “retrial is only precluded where there is
prosecutorial overreaching—which, in turn, implies some sort of
conscious act or omission.” Id. (emphasis in original).
Applying its holding to the facts of the case at hand, the Court
emphasized the trial court's findings that the prosecutor had made
“almost unimaginable” mistakes, which “dovetailed” with other
serious errors by law-enforcement officers and other police
personnel such as the DNA lab technician. Id. Recounting the
errors in the case, the Court highlighted: (1) the prosecutor's
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failure to notice that there were two property receipt numbers for
the two caps, and his failure to verify whether the receipt numbers
pertained to different caps; (2) the prosecutor's failure to obtain
a criminalistics report which would have summarized the evidence
and revealed that there were two different caps involved; (3) the
failure of the detective who had interviewed Ms. Williams on the
night of the shooting to recall the evidence of the black baseball
cap and Ms. Williams’ statement that the victim had worn the
black cap on the night of the murder; (4) the false testimony from
the lead crime scene investigator at trial that he saw fresh drops
of blood under the brim of the red cap on the night of the murder,
which was factually inaccurate. On this point, the Court stated it
could not “escape the conclusion that the officer testified to
something that he did not actually observe[.]” Id. at ––––, 231
A.3d at 827. Thus, the Supreme Court held that the
Commonwealth's actions 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. Such actions prejudiced the
appellant to the point of a denial of a fair trial, immunizing the
appellant from retrial for the murder of the victim.
Commonwealth v. Sanchez, --- A.3d ----, 2021 PA Super 197 (Oct. 4,
2021).
Traver claims the Commonwealth’s cross-examination was done in
reckless disregard of the risk that confronting him with his pre-arrest silence
would violate his federal and state rights to silence and, thus, deprive him of
a fair trial. As such, he concludes that at the very least a reckless use of his
silence occurred that brings his case within the scope of Johnson, such that
double jeopardy relief must attach. We disagree.
Both the Fifth Amendment of the United States Constitution and Article
1, Section 9 of the Pennsylvania Constitution protect an individual's right not
to be compelled to be a witness against himself or herself. Commonwealth
v. Adams, 39 A.3d 310, 316 (Pa.Super. 2012), aff'd, 104 A.3d 511 (Pa.
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2014). This right has been held to extend to the pre-arrest setting, but
decisional law of this Commonwealth has observed that when defendants elect
to testify, the Commonwealth may comment on their pre-arrest silence for
impeachment purposes or in fair response to their testimony or defense
tactics:
The Fifth Amendment and the Fourteenth Amendment's due
process clause generally prohibit a prosecutor from commenting
upon a criminal defendant's decision not to testify or upon his
decision to remain silent during the preliminary stages of a
criminal investigation. See Doyle v. Ohio, 426 U.S. 610, 618,
96 S.Ct. 2240, 49 L.Ed.2d 91 (1976); Griffin v. California, 380
U.S. 609, 613–14, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965);
Commonwealth v. Randall, 758 A.2d 669, 681 (Pa.Super.
2000). The United States Supreme Court has held that, when a
defendant elects to testify, neither the Fifth Amendment nor due
process principles are offended by a prosecutor's reference to that
defendant's silence, when that reference is used to impeach the
testifying defendant's credibility. This holds true whether a
defendant chooses to remain silent pre-arrest or [. . . ] post-arrest
where no Miranda warnings are given.[fn] See Jenkins v.
Anderson, 447 U.S. 231, 238, 100 S.Ct. 2124, 65 L.Ed.2d 86(1980) (pre-arrest); Brecht v. Abrahamson, 507 U.S. 619, 628,
113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (citing Fletcher v. Weir,
455 U.S. 603, 606–07, 102 S.Ct. 1309, 71 L.Ed.2d 490 (1982)
(per curiam ) (post-arrest)).
...
[I]n Commonwealth v. Bolus, 545 Pa. 103, 680 A.2d 839(1996)[, the Pennsylvania Supreme Court] was “called upon for
the first time to decide whether a prosecutor may refer to a
criminal defendant's pre-arrest silence.” Id. at 843. The Court
expressly distinguished [Commonwealth v. Turner, 499 Pa.
579, 454 A.2d 537 (1982)[(addressing reference to post-arrest,
pre-Miranda silence)] based upon the time at which the accused's
silence occurred. The Court explained:
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We find Turner, however, to be distinguishable from
the instant matter. In Turner, the period of silence
which was referenced by the prosecution occurred
after the defendant's arrest, but prior to the time the
defendant was given his Miranda warnings. In the
instant matter, the prosecutor questioned Appellant
regarding his silence which occurred months before he
was arrested.
Id. The Bolus Court adopted the United States Supreme Court's
rationale in Jenkins, and held that, “when a criminal defendant
waives his right to remain silent and testifies at his own trial,
neither the United States nor the Pennsylvania Constitution
prohibit a prosecutor from impeaching a defendant's credibility by
referring to his pre-arrest silence.” Id. at 844.
Commonwealth v. Kuder, 62 A.3d 1038, 1049, 1051-52 (Pa.Super. 2013).
Furthermore:
a prosecutor may make fair comment on the admitted evidence
and may provide fair rebuttal to defense arguments.”
Commonwealth v. Burno, 626 Pa. 30, 94 A.3d 956, 974 (2014).
“Even an otherwise improper comment may be appropriate if it is
in fair response to defense counsel's remarks. Any challenge to a
prosecutor's comment must be evaluated in the context in which
the comment was made.” Id. (citation and internal quotation
marks omitted).
Commonwealth v. Reid, 259 A.3d 395, 429 (Pa. 2021). See also
Commonwealth v. Fischere, 70 A.3d 1270, 1276 (Pa.Super. 2013) (“our
Supreme Court has held ‘there is no Fifth Amendment proscription precluding
the raising of silence in fair response to defense argumentation.’) (citing
Commonwealth v. DiNicola, 866 A.2d 329, 335 (Pa. 2005)); Adams,
supra (holding prosecutor’s remarks about defendant’s pre-arrest silence
were fair response to defense commentary and therefore did not violate right
to silence under Article I Section 9).
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In the case sub judice, both the prosecutor’s question put to Mr. Traver
and his subsequent clarification of Mr. Traver’s confusing, if not misleading,
reply were collectively, in significant part, fair response to the defense tack of
informing the jury both in its opening statement and through its cross-
examination of Trooper Cooney that the investigation’s focus on Mr. Traver
had lasted two and one-half years before he was finally arrested. While asking
Mr. Traver if he ever offered to Trooper Cooney the denial he had just stated
for the jury implicated his pre-arrest silence, the brief reference was part of
an exchange that, taken as a whole, provided an explanation for the
protracted investigative timeline that the defense had called into question.
See DiNicola, supra (reference to a defendant's refusal to speak to trooper
constituted fair response to defense counsel's questioning of the adequacy of
the trooper's investigation).
Therefore, in light of the fact that a purpose other than suggesting guilt
was served by the cross-examination in question, we join in the trial court’s
discernment that nothing in the record evinces the prosecution’s conscious
disregard of justice, or “wanton or heedless indifference to consequences,”
undertaken in the hope of securing a favorable verdict that would warrant the
double jeopardy sanction.
As indicated, the Commonwealth had not referred to Mr. Traver’s pre-
arrest silence in either its opening statement or its case-in-chief, it broached
the topic only after the defense twice referred to the long passage of time
between initial accusations against Mr. Traver and his arrest, and it was the
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trial court’s perception that the question was asked in earnest1 to impeach or
provide fair response to Mr. Traver’s testimony after he had elected to waive
his right to remain silent by taking the witness stand and offering a categorical
denial of having committed the acts with which he was charged.
On this last point, the fact that the question put to Mr. Traver did not
offend his federal constitutional right to silence, and that decisional law on
Article I, Section 9 likewise permits such a question if it impeaches his
credibility on a basis other than silence equating to a tacit admission or if it
constitutes fair response to testimony or defense strategy, are further
indication of the complexities attendant to referencing the pre-arrest silence
of a testifying defendant that work in favor of upholding the trial court’s
assessment here that any error on the Commonwealth’s part in asking its
question was just that, an error, and not “some sort of conscious act or
omission” on which, Johnson observes, the double jeopardy bar must be
based. Id., 231 A.3d at 826.
Therefore, we would concur with the trial court in its determination that
any error committed by the Commonwealth during its cross-examination did
not reach the level of prosecutorial misconduct reflecting a reckless, conscious
disregard for Mr. Traver’s right to receive a fair trial.
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1 We see no reason to disrupt the court's credibility determinations in favor of
the Commonwealth, which are supported by the record. See Graham, supra.
See also Johnson, 231 A.3d at 818 (discussing great deference afforded to
trial courts regarding credibility determinations).
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For the foregoing reasons, the trial court’s denial of Mr. Traver’s motion
to bar retrial on grounds of double jeopardy is affirmed. Case is remanded to
the trial court for a new trial. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 01/06/2022
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