Com. v. Weiss, R. ( 2020 )

J-S30007-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RONALD LEE WEISS :
:
Appellant : No. 1504 WDA 2019
Appeal from the Order Entered August 1, 2019
In the Court of Common Pleas of Indiana County Criminal Division at
No(s): CP-32-CR-0000218-1997
BEFORE: MURRAY, J., McLAUGHLIN, J., and STEVENS, P.J.E.*
MEMORANDUM BY MURRAY, J.: FILED AUGUST 21, 2020
Ronald Lee Weiss (Appellant) appeals from the order denying his motion
to dismiss the charges against him based on double jeopardy (Jeopardy
Motion).1 After careful review, we are compelled to vacate the order and
remand for consideration of the Pennsylvania Supreme Court’s recent decision
in Commonwealth v. Johnson, 2020 Pa. LEXIS 2791, 40 EAP 2018 (May
19, 2020).
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 While an order denying a motion to dismiss on double jeopardy is technically
interlocutory, the order is appealable as of right. See Commonwealth v.
Hallman, 67 A.3d 1256, 1260 n.3 (Pa. Super. 2013); see also
Commonwealth v. Orie, 22 A.3d 1021, 1024 (Pa. 2011). Accordingly, we
have jurisdiction over this appeal.
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The trial court summarized the relevant history of this case as follows:
[Appellant] was convicted of first-degree murder following
a jury trial held in July of 1997.[2] The jury returned a verdict of
death following the penalty phase.
[Appellant] pursued a direct appeal, and in 2001, the
Supreme Court of Pennsylvania affirmed the judgment of
sentence. See Commonwealth v. Weiss, 776 A.2d 958 (Pa.
2001). [Appellant] then pursued collateral relief pursuant to the
Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. § 9541, et seq.,
and in 2007, the PCRA court granted [Appellant] a new trial. The
basis for relief was a finding that the Commonwealth[, acting
through prosecutor J. Scott Robinette, Esquire (hereinafter
“Robinette”),] committed a Brady violation, see Brady v.
Maryland, 373 U.S. 83 (1963). Specifically, the PCRA court
found that [Robinette had] suppressed information regarding two
Commonwealth witnesses, both of whom were incarcerated at the
time of [Appellant’s] jury trial and testified regarding “jail house”
confessions by [Appellant]. The suppressed information related
to efforts made by the Commonwealth to aid the witnesses’
release from incarceration.
Subsequently, the Pennsylvania Supreme Court remanded
the matter to the PCRA court after finding that the PCRA court
failed to engage in part of the Brady analysis, i.e., whether the
suppression of information that served as the basis of the Brady
violation was material to the outcome of the case, i.e., did
[Appellant] receive a fair trial under the circumstances. See
Commonwealth v. Weiss, 986 A.2d 808 (Pa. 2009) (Weiss II).
…
[The PCRA court] issued a decision on the remanded PCRA
matters on March 19, 2012[, where it] agreed … that the
Commonwealth suppressed impeachment evidence in violation of
the duties set forth in Brady. However, [the court] concluded
that [Appellant] was not entitled to a new trial, because the other
evidence presented to the jury was overwhelming, and, therefore,
the jury’s verdict was worthy of every confidence. [] An appeal
____________________________________________
2 Though the facts underlying the conviction are not relevant to this appeal,
briefly, Appellant murdered 16-year-old Barbara Bruzda in 1978 and left her
body in the woods; Appellant evaded prosecution for many years.
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was taken from [this] decision, and on October 31, 2013, the
Pennsylvania Supreme Court affirmed. [See Commonwealth v.
Weiss, 81 A.3d 767 (Pa. 2013) (Weiss III)].
[Appellant] then pursued federal habeas corpus relief
pursuant to 28 U.S.C.A. § 2254. By an Opinion and Order dated
February 14, 2018, the United States District Court granted
[Appellant’s] request for relief. [See Weiss v. Wetzel, 2018 U.S.
Dist. LEXIS 23741, at *44 (W.D. Pa. 2018) (Weiss Fed.).[3] The
grant of the writ was conditional, in that it was stayed to permit
the Commonwealth the opportunity to commence a new trial. [Id.
at *53.] The matter was returned to this state trial court to
conduct the new trial.
Counsel for [Appellant thereafter] filed [the Jeopardy
Motion], and the court scheduled and held a hearing pursuant to
Pa.R.Crim.P. 587[(B) (governing motions to dismiss on double
jeopardy grounds)] on January 15, 2019. The Commonwealth
presented the testimony of [] Robinette …; no other testimony
was presented. …
Facts
The court finds that there is no dispute as to what the
Commonwealth did and failed to do relative to the 1997
prosecution of [Appellant]. … It is undisputed that the
Commonwealth engaged in the following conduct:
[Pennsylvania State] Trooper John Tamewitz (hereinafter
“Tamewitz”) obtained a written statement from Samuel Tribuiani
(hereinafter “Tribuiani”) on April 2, 1996. The written statement
indicated that [Appellant] confessed to the Bruzda murder while
the two individuals were incarcerated together [on crimes
____________________________________________
3 The Court in Weiss Fed. held that Robinette’s misconduct deprived
Appellant of a fair trial, where Robinette suppressed impeachment evidence
regarding the two Commonwealth witnesses discussed above. See id. at *52
(stating that where “prosecutors do secret deals, suppress evidence of them,
stand by silently when the witnesses they determine to be central to their case
lie about those deals, and then cover their tracks with their own false
statements in and to a trial court, all in a way that plainly impacts the course
and outcome of the trial, both those charged with crimes and the public are
deprived of the fair trial that our Constitution commands”).
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unrelated to this case]. The written statement also indicates that
no promises were made in exchange for Tribuiani’s testimony.
The following day, Tribuiani contacted Tamewitz and
requested his assistance in expediting his parole. Tribuiani was
incarcerated at S.C.I. Huntingdon at the time.
Tamewitz contacted … Michael Marino[, Esquire (“DA
Marino”)], the District Attorney of Montgomery County, to inquire
about Tribuiani’s parole and early release status.
***
Robinette [thereafter phoned] the Superintendent at S.C.I.
Huntingdon and inquired if Tribuiani was eligible for parole or pre-
release.
Shortly after, … Robinette authored three letters regarding
Tribuiani[, which he respectively sent to] Tribuiani’s sentencing
judge, the victim-witness coordinator of Montgomery County, and
[DA Marino]. These individuals would have the opportunity to
provide input to the Pennsylvania Board of Probation and Parole
[(“the Board”)] regarding Tribuiani’s release on parole. …
Tribuiani was blind copied on these letters.
Robinette followed his letter … with a phone call to DA
Marino.
***
Kenneth Wright (hereinafter “Wright”) signed a statement
indicating that [Appellant] had confessed to committing the
Bruzda murder while the two were incarcerated together. This
statement was signed in January of 1996.
On December 13, 1996, Robinette wrote a letter to Nicholas
Muller, the Chairman of the [Board]. Robinette stated “This office
has promised nothing to Wright in exchange for his cooperation.
I have explained to him that parole authority in his case rests
exclusively with the Board …. I am writing this letter merely to
inform the Board of Wright’s cooperation in the investigation and
potential prosecution of a very serious crime.” The letter was
carbon copied to Tamewitz and blind copied to Wright.
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***
[Appellant subsequently filed a] motion for disclosure of
impeachment information as to potential Commonwealth
witnesses.” [The trial court granted the motion.] As a result, the
Commonwealth was ordered to notify the defense of “any deals or
understandings made between the Commonwealth and potential
witnesses, Tribuiani and Wright.” In response to a direct inquiry
by the court on this matter, Robinette stated “Deals, we don’t
have any deals with them, Judge.” …
***
Following a pretrial motion hearing, on May 20, 1997,
Robinette authored and presented a letter to [Appellant’s] counsel
stating that the Commonwealth will only report the nature and
extent of the witnesses’ cooperation whenever queried regarding
the same. Robinette obviously had already written multiple letters
on behalf of Tribuiani and Wright at the time this letter was
submitted.
***
At the time of [Appellant’s] trial, the Commonwealth called
Wright as a witness. Robinette specifically asked Wright “Has
anyone made you any promises in exchange for your testimony?”
Wright responded, “No, sir.” On cross-examination, defense
counsel asked Wright[, regarding the prosecution,] “So they did
something in exchange for the statement, didn’t they?” Robinette
immediately objected and the objection was sustained by the
court. Robinette asked Wright if he “ask[ed] for anything in
exchange for that statement.” Wright responded “No, I did not.”
***
The Commonwealth called Tribuiani as a witness at the time
of trial. During his testimony, Tribuiani stated that no one had
made any promises to him in exchange for his testimony. …
Robinette also called Tamewitz as a witness. In response to
questioning by Robinette, Tamewitz stated that nothing was
promised to Tribuiani in exchange for his testimony.
***
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After the conclusion of the trial, Robinette authored a letter
to … [the] Chairman of the [Board]. … Robinette request[ed] that
the “Board consider Mr. Tribuiani’s contribution to this most
unusual prosecution when evaluating the propriety of granting
him parole.”
***
Robinette authored a letter to … the Superintendent of
S.C.I. Graterford. … In this letter, Robinette requests [that the
Superintendent] “consider Mr. Tribuiani’s cooperation with this
office when commenting on the propriety of his parole.”
***
Robinette also wrote a letter to the [Board] on behalf of
Wright after the trial. … Robinette informed the Board of Wright’s
assistance in the conviction of [Appellant], and requested that the
Board “consider Mr. Wright’s contribution … when evaluating the
propriety of granting him parole.”
Trial Court Opinion and Order, 8/1/19, at 3-13 (footnotes and emphasis
added, citations and formatting modified, some capitalization omitted).
By order entered August 1, 2019, the trial court denied Appellant’s
Jeopardy Motion. Appellant then filed a petition for permission to file an
interlocutory appeal, which the trial court granted after finding that the matter
was immediately appealable. Appellant filed this timely appeal, followed by a
court-ordered Pa.R.A.P. 1925(b) concise statement.
Appellant presents one issue for our review:
Should the Commonwealth’s withholding of the existence of
agreements with two material witnesses and knowing
presentation of false testimony in a capital trial bar retrial on
double jeopardy grounds, notwithstanding the trial court’s finding
that the Commonwealth’s misconduct was outrageous but not
intentional as it was born from ignorance and arrogance?
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Appellant’s Brief at 5-6.
We review Appellant’s claim mindful that an appeal based on double
jeopardy presents a question of constitutional law. Commonwealth v. Byrd,
209 A.3d 351, 353 (Pa. Super. 2019). As with all questions of pure law, our
standard of review is de novo and our scope of review is plenary. Id.
In addressing a double jeopardy claim, we consider:
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) (emphasis
added); see also Commonwealth v. Smith, 615 A.2d 321, 325 (Pa. 1992)
(same).
Further, we are mindful that:
under 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.
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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. As this Court has often
repeated, 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.
Commonwealth v. Graham, 109 A.3d 733, 736 (Pa. Super. 2015) (citations
omitted).
Instantly, we are presented with whether the trial court erred in
concluding that Robinette did not act intentionally with regard to his
communications with Wright, Tribuiani and the other state entities. The trial
court opined that Robinette’s explanations for his actions were “extremely
flawed and troubling,” “outrageous,” and the product of “arrogance and
ignorance”; nevertheless, the court found there was not enough to establish
that the misconduct was intentional, instead of potentially “inadvertent.”
See generally Trial Court Opinion and Order, 8/1/19, at 27-31; see also id.
at 27 (stating that the court “finds Robinette’s testimony to be credible in a
critical regard; this court believes that Robinette genuinely thinks that his
actions did not and do not constitute prosecutorial misconduct.”).
However, Appellant, in his reply brief, points to our Supreme Court’s
recent decision in Johnson, supra, which was decided after Appellant filed
the underlying appeal. Appellant’s Reply Brief at 1-2. Appellant argues that
pursuant to Johnson, Robinette’s “reckless participation in prosecutorial
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misconduct established by the record is sufficient to bar retrial on double
jeopardy grounds.” Id. at 1 (emphasis added).
In Johnson, the Supreme Court expanded upon existing case law
concerning prosecutorial misconduct sufficient to bar retrial, stating:
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.
Johnson, 2020 Pa. LEXIS 2791, at *39 (emphasis added). The Court stated
that unlawful prosecutorial overreaching encompasses “governmental errors
that occur absent a specific intent by the prosecutor to deny the defendant his
constitutional rights.” Id. at *36; but see also id. at *40 (explaining that
“we do not suggest that all situations involving serious prosecutorial error
implicate double jeopardy under the state Charter.”).
Here, the trial court, acting as factfinder, found insufficient evidence to
establish that Robinette acted intentionally in failing to disclose his
communications with Wright and Tribuiani. Accord Adams, 177 A.3d at 370
(explaining our deferential review of credibility determinations in the context
of a double jeopardy ruling). However, the court did not consider or address
whether Robinette’s actions constituted reckless behavior, pursuant to the
recent dictates of Johnson.
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Accordingly, we vacate the trial court’s order denying the Jeopardy
Motion and remand for further proceedings as to whether Robinette’s conduct
was undertaken recklessly. See Johnson, 2020 Pa. LEXIS 2791, at *39.
Order vacated. Case remanded for further proceedings. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/21/2020
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