J-A11002-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. 1722 MDA 2019

                Appeal from the Order Entered October 10, 2019
               In the Court of Common Pleas of Wyoming County
              Criminal Division at No(s): CP-66-CR-0000283-2018


BEFORE:      PANELLA, P.J., McLAUGHLIN, J., and STEVENS, P.J.E.*

MEMORANDUM BY PANELLA, P.J.:                   FILED: MAY 20, 2020

        Herbert Traver appeals from the October 10, 2019 order denying his

motion to dismiss the charges against him and bar retrial on double jeopardy

grounds.1 Traver contends the Commonwealth committed prosecutorial

misconduct with the intent to force a mistrial or prejudice his right to a fair

trial. After review, we affirm.




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*   Former Justice specially assigned to the Superior Court.

1 While an order denying a motion to dismiss on double jeopardy grounds is
technically interlocutory, it is appealable as of right as long as the trial court
certifies the motion as non-frivolous. See Pa.R.Crim.P. 587(B)(6);
Commonwealth v. Barber, 940 A.2d 369, 376 (Pa. Super. 2007). The trial
court found Traver’s motion non-frivolous. See Trial Court Order, 10/10/2019.
Thus, this appeal is properly before us.
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      The facts underlying Traver’s conviction are not germane to the

disposition of the instant appeal, however a brief summary of the facts and

procedural history follows in order to provide context to the prosecutorial

misconduct claims.

      In June of 2018, a criminal complaint was filed against Traver charging

him with one count of rape, one count of corruption of minors, and two counts

of indecent assault regarding allegations of sexual assault involving D.R., his

step-granddaughter (the “Victim”).

      Following a preliminary hearing, all charges were held over for court. An

Information was filed, and thereafter an amended Information was filed

charging Traver with rape of a child, corruption of minors, and two counts of

indecent assault.

      On May 20, 21, and 22, 2019, a jury trial was held. The Commonwealth

witnesses called to testify were the Victim, age seventeen at the time of trial,

her brother, the principal investigating officer and a psychologist who testified

as an expert witness as to reasons for a delay in reporting complaints of sexual

abuse by child victims. In response, the defense called seven witnesses,

including family members, friends, and Traver’s primary care physician and

optometrist. In addition, Traver testified on his own behalf.

      On cross-examination, the following exchange occurred between

counsel for the Commonwealth and Traver:

      Q. Good afternoon, sir. The things you just testified to, you never
      touched [the Victim’s] breasts, you never touched her vagina, and

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         you never had sexual intercourse with her, when you were
         contacted by [the trooper] in February 2016, you never told him
         that, did you?

         A. He never asked me if I ever touched her.

         Q. Because you never called him back, did you?

N.T., 5/22/2019, at 611. Defense counsel objected and requested a sidebar.

The objection was lodged and a motion for mistrial was made. In response,

counsel for the Commonwealth provided the court with case law to support its

position that when a defendant elects to testify, a prosecutor may make

reference to the defendant’s pre-arrest silence for purposes of impeachment.

See id. at 613-614 (citing to Commonwealth v. Kuder, 62 A.3d 1038 (Pa.

Super. 2013), Commonwealth v. Fischere, 70 A.3d 1270 (Pa. Super. 2013),

Commonwealth          v.   DiNicola,   866    A.2d     329   (Pa.   2005),   and

Commonwealth v. Bolus, 680 A.2d 839 (Pa. 1996)). The trial court granted

the motion and a mistrial was declared. The matter was rescheduled for jury

trial to commence on October 21, 2019. Traver subsequently filed a motion to

dismiss on double jeopardy grounds. The Commonwealth filed a response.

         On October 7, 2019, oral argument was heard on the motion. Counsel

for the Commonwealth denied any intent to cause a mistrial by asking Traver

about his pre-arrest silence. See N.T., 10/7/2019, at 9-10. He stated that his

questioning was a good faith action based on his reading of the law. See id.

at 16.




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      On October 10, 2019, the trial court denied Traver’s motion to dismiss.

The trial court found that a mistrial was necessary because the court believed

that the questions posed to Traver on cross-examination may have had the

effect of biasing the jury. See Trial Court Opinion, 10/10/2019, at 6. However,

the trial court concluded that the protection of double jeopardy was not

warranted here, as it found no evidence of intentional prosecutorial

misconduct in the cross-examination questioning. See id. The trial court

stated its order was immediately appealable. Traver subsequently filed this

timely appeal.

      On appeal, Traver contends the trial court erred in failing to dismiss the

charges against him on double jeopardy grounds.

      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
      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 Double Jeopardy Clauses of the Fifth Amendment to the United

States Constitution and Article 1, § 10 of the Pennsylvania Constitution

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prohibit retrial where prosecutorial misconduct during trial provokes a criminal

defendant into moving for a mistrial. See Oregon v. Kennedy, 456 U.S. 667,

679 (1982); see also Commonwealth v. Simons, 522 A.2d 537, 540 (Pa.

1987). However, Article 1, § 10 of the Pennsylvania Constitution offers

broader protection than its federal counterpart in that

      the double jeopardy clause of the Pennsylvania Constitution
      prohibits retrial of a defendant 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.

Commonwealth v. Smith, 615 A.2d 321, 325 (Pa. 1992). “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.” Graham, 109 A.3d at 736.

      Pennsylvania has adopted a strict remedy for intentional prosecutorial

misconduct:

      [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.

Id. (citation omitted).

      Traver asserts the Commonwealth’s conduct was calculated to provoke

him into moving for a mistrial, and to deny him a fair trial by prejudicing the

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jury. Our review of Traver’s assertions in his motion to dismiss and his claims

in his appellate brief has revealed no instance where Traver produced actual

evidence of either assertion. Instead, he mischaracterizes the prosecutor’s use

of case law to support his position as an attempt to subvert the court process.

Specifically, he argues that the fact the prosecutor had case law immediately

available for the judge at the side bar conference to address the motion for

mistrial was not mere error, but rather showed an intentional attempt to cause

a mistrial and deny him a fair trial by prejudicing the jury. We disagree. Having

relevant case law available is not an intentional attempt to subvert the court

process. Rather, it is counsel’s job to be prepared for court and to anticipate

potential adverse arguments, and be prepared to argue against them.

       Aside from his focus on the prosecutor’s preparation for the argument,

Traver provides no proof that the Commonwealth gained an advantage by

questioning Traver about not calling the officer back.2 Indeed, as punishment

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2 In his appellate brief, Traver additionally contends the Commonwealth was
clearly attempting to mislead the jury with a known falsehood because at the
time of the cross-examination the Commonwealth was fully aware that the
Trooper’s call had been returned by Traver’s counsel. To support this
contention, Traver references discovery provided to the Commonwealth
regarding communication between the Trooper and Traver’s public defender.
However, Traver fails to cite to the record for this contention and our review
of the record does not reveal any evidence supporting this allegation. It is an
appellant’s responsibility to ensure that the certified record contains all the
items necessary to review his claims. See Commonwealth v. B.D.G., 959
A.2d 362, 372 (Pa. Super. 2008) (en banc). “When a claim is dependent on
materials not provided in the certified record, that claim is considered waived.”
Commonwealth v. Petroll, 696 A.2d 817, 836 (Pa. Super. 1997) (citation



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for doing so, the Commonwealth must retry the case. Unless the record itself

indicates a relevant motive, we will affirm the action of the trial judge absent

an abuse of discretion. While Traver is entitled to speculate that the prosecutor

offered his questions to cause a mistrial or prejudice the jury, the record gives

no firm support to this or any other theory. In the absence of any evidence

that the Commonwealth intentionally asked the cross-examination question

to provoke a mistrial, we must affirm the trial court’s order denying Traver’s

motion for a dismissal.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 05/20/2020




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omitted). As a result, Traver has waived             the   argument    that   the
Commonwealth intentionally misled the jury.


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