J-A08044-18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,                :     IN THE SUPERIOR COURT OF
                                             :           PENNSYLVANIA
                   Appellee                  :
                                             :
                      v.                     :
                                             :
KAREEM JOHNSON,                              :
                                             :
                   Appellant                 :     927 EDA 2016

                    Appeal from the Order March 3, 2016
            in the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-1300424-2006

BEFORE:     PANELLA, LAZARUS, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:             FILED JUNE 27, 2018

      Kareem Johnson (Appellant) appeals from the March 3, 2016 order

denying his motion to bar retrial on double jeopardy grounds. Specifically,

Appellant argues that the Commonwealth should be barred from retrying him

for the murder of Walter Smith because the Commonwealth’s deliberate

indifference during trial preparation resulted in a misrepresentation of DNA

evidence at his first trial. After review, we affirm.

      We begin with the factual and procedural history.

            On December 15, 2002, Appellant and at least one other
      person shot Walter Smith to death on the street in front of a bar
      in North Philadelphia. Some three months before his violent death,
      Mr. Smith had told police that an acquaintance of Appellant’s,
      Clinton Robinson, was responsible for the August 2002 murder of
      another person, Margaret Thomas. Appellant was arrested in May
      2006, for the murder of Mr. Smith. The Commonwealth’s theory
      of the case was that Appellant had killed Mr. Smith in order to
      prevent him from testifying against Mr. Robinson. The


*Retired Senior Judge assigned to the Superior Court.
J-A08044-18


     Commonwealth relied upon physical evidence that included the
     following: 1) two different types of ammunition recovered from
     the murder scene as well as from Mr. Smith’s body, showing that
     Appellant had acted in concert with at least one other individual
     in the murder; and 2) a red baseball-type cap found at the scene
     that contained Appellant’s DNA on the sweatband and Mr. Smith’s
     DNA in blood stains on the brim. In addition, the Commonwealth
     presented the testimony of Bryant Younger, who had heard
     Appellant make two statements with which he implicated himself
     in Mr. Smith’s murder. The defense sought to cast doubt upon the
     Commonwealth’s evidence largely by challenging the significance
     of the DNA evidence and by characterizing Mr. Younger as a “rat”
     who would do anything to avoid an impending life sentence for a
     federal drug conviction.

     Appellant was convicted by a jury in June 2007, of first-degree
     murder, criminal conspiracy, and possession of an instrument of
     crime. Appellant was sentenced to death after the jury found that
     any mitigating circumstances were outweighed by the aggravating
     circumstance that Appellant had a significant history of felony
     convictions involving the use of violence to the person.1 42 Pa.C.S.
     § 9711(d)(9). Appellant was also sentenced to a concurrent term
     of 20 to 40 years’ imprisonment on the conspiracy conviction.
     Appellant now appeals his judgment of sentence to this Court and
     raises six guilt phase issues and one penalty phase issue.
           ______
           1 In March 2006, Appellant had been convicted of the first-

           degree murder of a 10–year old child who was shot while on
           his way to school and of aggravated assault upon the
           crossing guard at the school, who was also shot. Neither of
           these individuals was an intended victim of Appellant or the
           group of men of which he was a part. Appellant was
           sentenced to life in prison for the murder and an aggregate
           consecutive term of 23 ½ to 47 years’ imprisonment for the
           aggravated assault and related offenses. That judgment of
           sentence was affirmed by the Superior Court on October 18,
           2007, and th[e Supreme] Court subsequently denied a
           petition for allowance of appeal. Commonwealth v.
           Johnson, 943 A.2d 315 (Pa. Super. 2007) ([t]able), appeal
           denied, [] 952 A.2d 675 ([Pa. ]2008). We note that
           Appellant declined the opportunity to plead guilty to the
           instant charges in return for imposition of a life sentence
           concurrent to the one he was already serving.


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Commonwealth v. Johnson, 985 A.2d 915, 918–19 (Pa. 2009).

      On December 29, 2009, our Supreme Court affirmed Appellant’s

convictions and the judgment of sentence imposing the death penalty. See

id.   Appellant filed a petition for a writ of certiorari to the United States

Supreme Court, which was denied on October 4, 2010.                Johnson v.

Pennsylvania, 562 U.S. 906 (2010).

      On December 16, 2010, Appellant pro se timely filed a petition pursuant

to the Post-Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. The PCRA

court appointed counsel. Appellant subsequently filed a motion for discovery

and an amended PCRA petition and petition for a writ of habeas corpus. The

Commonwealth conceded that Appellant was denied effective assistance of

counsel during his trial for the murder of Walter Smith, and therefore the

parties stipulated that Appellant was entitled to a new trial. The PCRA court

entered an order to that effect on April 22, 2015.

      Appellant thus began the pre-trial process on his second trial for the

murder of Walter Smith.1 On October 9, 2015, Appellant filed a motion for

pre-trial discovery. The trial court held several pre-trial hearings, wherein the

Commonwealth’s handling of the DNA evidence from the first trial was

developed further. Specifically, at his first trial, the Commonwealth presented




1On February 17, 2016, the Commonwealth withdrew its notice of intent to
pursue the death penalty.

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testimony and evidence that both the victim’s DNA in blood stains, and

Appellant’s DNA in sweat stains, were found on the same red cap. This proved

to be erroneous.    The red cap recovered from the crime scene contained

Appellant’s DNA on the sweatband, but did not contain the victim’s DNA. A

second black cap, which the victim had been wearing at the time of the

shooting, had the victim’s DNA in blood stains on it, but did not contain

Appellant’s DNA. Though the scientific reports and property receipts clearly

differentiated between the two caps, it appears that all parties involved in

Appellant’s first trial and appeal assumed that there was only one cap – the

red cap recovered from the scene.      See, e.g., Johnson, 985 A.2d at 918

(stating that the physical evidence included “a red baseball-type cap found at

the scene that contained Appellant’s DNA on the sweatband and [the victim’s]

DNA in blood stains on the brim”). Because the Commonwealth misread the

scientific reports, it conflated the scientific findings and represented at

Appellant’s first trial that both Appellant’s DNA and the victim’s DNA were

found on the same red cap.

      Based on the development of this issue during the pre-trial hearings,

Appellant decided to pursue a motion to bar retrial based on double jeopardy.2

On March 3, 2016, the trial court found the Commonwealth’s mistake in

misrepresenting the DNA evidence at Appellant’s capital trial “intolerable,” but



2 Though Appellant’s counsel stated that he intended to file a written motion
to bar retrial, no such motion appears of record. N.T., 1/27/2016, at 154-55.

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J-A08044-18


ultimately denied the motion because it did not rise to intentional prosecutorial

misconduct. N.T., 3/3/2016, at 36.

            It’s intolerable that under our system of laws, procedure,
      Constitutional rights that this case went through a capital trial and
      verdict under these circumstances.

            It’s absolutely intolerable from the point of view of the
      Commonwealth’s work on the case. It’s absolutely intolerable
      from the point of view of the defense representation in this case.

            And nobody on either side ought to think that any less
      serious a word ought to be applied to what happened here.

            But intolerability is not the standard of law that I am
      required to apply in determining what the remedy is for what
      happened here.

             The remedy of barring further prosecution is consistently
      described in our appellate decisions, even those decisions in which
      retrial is barred as the most extreme of remedies.

            And it is under Pennsylvania law reserved for those cases in
      which the record demonstrates that the Commonwealth, and most
      specifically, the prosecutor has engaged in a pattern of intentional
      misconduct so severe and so sustained that the only conclusion
      that can be drawn from the prosecutor’s action is that the
      prosecutor was either attempting to cause a mistrial or attempting
      intentionally to deny the defendant of a fair trial and to subvert
      the truth-determining process.

                                      ***

             I do not and cannot on the basis of my view of the evidence
      in this case make those kinds of findings in this case.

            I do think, as I’ve said before, that what happened from the
      report and initial testimony of the crime scene investigator … was
      extremely negligent, perhaps even reckless.

            I don’t doubt, based on all the evidence in this case, that
      Officer Trenwith saw something when he looked at that red cap


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J-A08044-18


     that he thought required further investigation and that may have
     been blood.

            I am 100 percent certain, sir, that you did not see, when
     you first looked at that cap, what you really or reasonably thought
     were, quote, fresh drops of blood, unquote, because I know your
     work. And I know that there would have been a lot more evidence
     with regard to that cap and a lot more detail in the property receipt
     if you actually thought at the time that that’s what you had seen.

           But I absolutely do believe that at the time of the
     preliminary hearing, it’s extremely possible that no one, not
     Officer Trenwith, certainly not Assistant District Attorney Barry,
     understood that there were two separate hats.

            The black hat wasn’t recovered at the scene. It was turned
     in, in a very unusual way. It was turned in later to Detective
     Burns.

            The person from the crime lab or the DNA lab who was
     present at the preliminary hearing referred to blood on a hat. And
     I think both Officer Trenwith and Mr. Barry jumped on that at the
     time as evidence that what they thought may be, might possibly
     be the case has turned out to be the case.

          There is somebody’s blood, and it’s the victim’s blood on the
     brim of this hat. And there was the victim’s blood on a hat. It
     was a different hat.

           I think that that, as is often and unfortunately the case in
     our adversary system, led to further exaggeration of the
     testimony presented at trial about what was seen on the red hat.
     And I think it is -- it's more than negligence that by the time the
     case went to trial -- that first of all, in a case like this, a capital
     case, the case went to trial without even awaiting a full
     criminalistics DNA analysis.

                                      ***

            I’ve heard the testimony of all the witnesses, particularly
     Mr. Barry[, the trial prosecutor].         I agree with [the
     Commonwealth’s] position that under Pennsylvania law to turn
     this gross series of almost unimaginable mistakes by experienced


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J-A08044-18


      police officers and an experienced prosecutor into the kind of bad
      faith intentional misconduct that would permit a judge to bar
      further prosecution I would have to disbelieve completely all of
      Mr. Barry’s testimony about what he did, what he didn’t do, why
      he did what he did, why he didn’t do what he didn’t do.

             On the contrary, I find his testimony to have been
      completely credible. I find that an experienced [] prosecutor
      made an almost unimaginable mistake, that it was a mistake
      which dovetailed with other mistakes that had been made by the
      officers and the detective in the case, and it produced a trial that
      was a farce.

            The remedy in Pennsylvania for a trial that was a farce,
      generally, is a new trial. Prosecution, as I said, is barred under
      Pennsylvania law only if there are additional elements of
      intentional misconduct and bad faith on the part of the
      prosecution, which I do not find to have existed here.

N.T., 3/3/2016, at 36-41.

      This timely-filed interlocutory appeal followed.3, 4 On appeal, Appellant

claims that the trial court erred in denying his motion to bar retrial because

prosecutorial misconduct implicated double jeopardy. Appellant’s Brief at 2.

      We begin with our standard of review.




3 Here, the trial court found that the motion to bar retrial was not frivolous.
N.T., 3/3/2016, at 44, 46. “It is well settled in Pennsylvania that a defendant
is entitled to an immediate interlocutory appeal as of right from an order
denying     a     non-frivolous   motion      to    dismiss   on     state   or
federal double jeopardy grounds.” Commonwealth v. Barber, 940 A.2d
369, 376 (Pa. Super. 2007) (citations omitted).

4 “Judge Benjamin Lerner issued the original decision and the ruling that the
issue was non-frivolous. Judge Ransom took over the matter, since Judge
Lerner retired soon after issuing his [o]rder. Judge Ransom then ascended to
the Superior Court; thus no [1925(a)] opinion was written.” Appellant’s
Motion, 11/14/2016, at 3 n.2.

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      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. Adams, 177 A.3d 359, 370 (Pa. Super. 2017) (citations

omitted).

      Article I, § 10 [of the Pennsylvania Constitution], 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.

Id. at 371 (citation omitted). “Because of the compelling societal interest in

prosecuting criminal defendants to conclusion, th[e Supreme] Court has

recognized that dismissal of charges is an extreme sanction that should be

imposed sparingly and, relevant to the question here, only in cases of blatant

prosecutorial misconduct.” Commonwealth v. Burke, 781 A.2d 1136, 1144

(Pa. 2001) (citations omitted).    See also Adams, 177 A.3d at 373 n.28



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(citation and quotation marks omitted) (“Conversely, without proof of such

intent, [o]rdinarily, the dismissal of charges is a penalty far too drastic for a

prosecutor’s violation of discovery rules.”).

      The essence of Appellant’s argument is that

      when an experienced homicide prosecutor and an experienced
      homicide detective both make the same “mistake” of not reading
      the central criminalistics document in a capital case; and an
      experienced crime scene officer lies about what he sees at the
      crime scene; and that lie happens to be consistent with the
      “mistake” made by the prosecutor and the detective; and the
      Commonwealth then systematically hides these lies and
      “mistakes” for years; and this series of lies and “mistakes” puts a
      man on death row for nine years, that is blatant and egregious
      prosecutorial misconduct.

Appellant’s Reply Brief at 4 (emphasis in original). Thus, Appellant challenges

the trial court’s credibility determinations as to whether the Commonwealth

committed prosecutorial misconduct.

      We agree with the trial court that the Commonwealth’s conduct was

without question intolerable. To say that this mistake was egregious is being

generous to the Commonwealth.          The lack of preparation and resultant

misrepresentation about the physical evidence went to the crux of one of the

basic theories underpinning the Commonwealth’s case against Appellant, and

turned a capital trial into what the trial court aptly termed “a farce.” N.T.,

3/3/2016, at 41. However, the Commonwealth’s conduct does not rise to the

level of intentionality required to bar further prosecution. See Adams, 177

A.3d at 371. The trial court’s finding that there was no intentional misconduct



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is supported by the record. Accordingly, we affirm the denial of Appellant’s

motion to bar retrial.

      Appellant also argues that even if the Commonwealth’s conduct was not

intentional, the prosecutor’s conduct “[fell] so far below professional

standards that double jeopardy should be implicated[.]” Appellant’s Brief at

19.   In other words, Appellant urges us to adopt a minimum standard of

accountability for prosecutors, and if they fall below that benchmark, the

Commonwealth should be barred from retrying a defendant. Appellant’s Brief

at 20-25. In support of his argument, Appellant cites several Pennsylvania

and out-of-state cases that he claims all deliver the same message:

“prosecutors cannot set aside fairness in the search for a conviction and then

expect courts to permit a do-over.” Appellant’s Brief at 24.

      Here, the Commonwealth did not set aside fairness in search of a

conviction. Rather, the Commonwealth committed serious mistakes in its trial

preparation, but mistakes, nonetheless. These mistakes did not “change[]

from mere error to intentionally subverting the court process[.]” Adams, 177

A.3d at 371.     While Appellant seeks to hold prosecutors to a minimum

standard of accountability before permitting retrial, that is not the test we

must apply for claims involving double jeopardy. See id. (holding that retrial

will be barred under double jeopardy where “prosecutorial misconduct is

intended to provoke the defendant into moving for a mistrial, [or] when the

conduct of the prosecutor is intentionally undertaken to prejudice the


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J-A08044-18


defendant to the point of the denial of a fair trial”). We cannot ignore existing

precedent and create a new test.

      Accordingly, because the Commonwealth’s deliberate indifference fell

below the requisite level of intentionality, we affirm the trial court’s order

denying Appellant’s motion to bar retrial.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary


Date: 6/27/18




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