J-A30005-18

                                   2019 PA Super 137

    COMMONWEALTH OF PENNSYLVANIA                  :     IN THE SUPERIOR COURT OF
                                                  :          PENNSYLVANIA
                       Appellant                  :
                                                  :
                                                  :
                v.                                :
                                                  :
                                                  :
    AL-TARIQ SHARIF ALI BYRD                      :     No. 468 WDA 2017

                      Appeal from the Order March 20, 2017
     In the Court of Common Pleas of Allegheny County Criminal Division at
                        No(s): CP-02-CR-0014138-2016


BEFORE:      SHOGAN, J., KUNSELMAN, J., and STRASSBURGER*, J.

OPINION BY SHOGAN, J.:                                           FILED APRIL 29, 2019

        Appellant, the Commonwealth of Pennsylvania (“the Commonwealth”),

appeals from the order entered on March 20, 2017, granting a mistrial and

dismissing with prejudice the charge of persons not to possess a firearm1 filed

against Al-Tariq Sharif Ali Byrd (“Appellee”). After careful review, we affirm

the trial court’s order.

        The trial court noted that Appellee was originally charged at CP-02-CR-

2875-2015 with multiple drug and firearm-related crimes, and at CP-02-CR-

3369-2016      with   numerous       additional       offenses   including   rape   of   an

unconscious victim.        Trial Court Opinion, 6/29/17, at 1-2.             Appellee filed

motions to suppress at both docket numbers. Id. at 2. The trial court granted

____________________________________________


1   18 Pa.C.S. § 6105(a)(1).



____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-A30005-18


the suppression motions, and the Commonwealth appealed. 2 Id. In light of

the Commonwealth’s appeals, Appellant’s charge of persons not to possess a

firearm at CP-02-CR-2875-2015, which was not impacted by the suppression

motions, was severed. Id. The persons not to possess a firearm charge was

re-captioned at trial court docket number CP-02-CR-14138-2016, which is the

case currently before us. Id. Trial began on November 28, 2016, and while

the trial was proceeding, the trial court noted that the following events

occurred:

              In the early morning hours of December 1, 2016, this Court
       received an email message containing a voice recording from
       Brandy Wilson, who was set to testify as a character witness for
       [Appellee], indicating that she had been threatened by Assistant
       District Attorney Lawrence Sachs, Esquire. After a hearing outside
       the presence of the jury on December 1, 2016, this Court declared
       a mistrial sua sponte on the basis of manifest necessity due to
       ADA Sachs’ prosecutorial misconduct. Following subsequent
       hearings on February 13 and March 20, 2017, which included
       testimony from Ms. Wilson reading ADA Sachs’ threats, this Court
       dismissed the charge with prejudice. This appeal followed.

Id. at 2-3.      Both the trial court and the Commonwealth complied with

Pa.R.A.P. 1925.

       On appeal, the Commonwealth presents the following issue for this

Court’s consideration: “Whether the trial court erred in finding that

prosecutorial misconduct necessitated the granting of a mistrial and in



____________________________________________


2The Commonwealth’s appeals were assigned Superior Court docket numbers
1817 WDA 2016 and 1818 WDA 2016, and they have no bearing on the case
at bar.

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dismissing the charges?” Commonwealth’s Brief at 9. Initially, we point out

that the Commonwealth is not appealing the grant of a mistrial; rather, the

Commonwealth challenges only the finding of prosecutorial misconduct that

resulted in the trial court dismissing the charges and preventing retrial on

double jeopardy grounds. Commonwealth’s Brief at 17-18.

     Our standard of review is well settled.     An appeal based on double

jeopardy grounds presents a question of constitutional law. Commonwealth

v. Vargas, 947 A.2d 777, 780 (Pa. Super. 2008) (citations omitted). As with

all questions of pure law, our standard of review is de novo and our scope of

review is plenary. Id. We must also consider the following:

     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).

“[D]ismissal is an appropriate remedy in such a case because a mistrial would

be   an   inadequate   remedy    for    systematic   intentional   prosecutorial

misconduct[.]” Id.

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           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.
           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.”

Id. (quoting Commonwealth v. Graham, 109 A.3d 733, 736 (Pa. Super.

2015) (additional citations omitted). In sum, conduct that constitutes mere

prosecutorial error does not implicate double jeopardy; it is prosecutorial

overreaching that cannot be condoned. Commonwealth v. Martorano, 741

A.2d 1221, 1222 (Pa. 1999).

     In the instant case, the Commonwealth avers that the trial court failed

to discern the distinction between prosecutorial error and prosecutorial

overreaching. Commonwealth’s Brief at 22. After reviewing the transcript of

the telephone call from Ms. Brandy Wilson, a potential witness, the notes of

testimony, and the trial court’s rationale for dismissing the charge against

Appellee, we disagree with the Commonwealth’s assessment.

     It is undisputed that on the evening of the third day of the trial, Assistant

District Attorney Lawrence Sachs contacted Ms. Wilson, who was a potential

character witness for Appellee. In a voicemail sent to the trial court in the

early morning of December 1, 2016, Ms. Wilson informed the trial court that

Attorney Sachs had contacted her, and she provided detail of this


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conversation.   At a hearing outside the presence of the jury, Ms. Wilson’s

voicemail to the court was played. Ms. Wilson’s voicemail was transcribed at

the December 1, 2016 hearing, and provides, in relevant part, as follows:

     MS. WILSON: This is Brandy Wilson. I am recording this due to
     the fact that I am not willing to participate in the trial of the
     Commonwealth of Pennsylvania versus [Appellee].

                                     ***

           During the phone conversation [with Attorney Sachs] I
     advised him that -- the same information that I was provided.
     That I was contacted, that I didn’t confirm anything yet.

           I’m actually pretty freaked out that he was calling me since
     he was, you know, the ADA. I advised him that because I’m a new
     employee that I couldn’t come in because of the simple fact that
     I was going to get fired. I said that if I needed to come in, in order
     for me to come in that I would need subpoenaed.

            [Attorney Sachs] proceeded to basically scare me to the
     point where I do not want to participate in this trial. I am not sure
     what to believe at this point. I have a bad feeling about the whole
     situation simply because I do not want any type of repercussions
     against me because of my participation in the trial.

            [Attorney Sachs] advised me that he feels – that he feels
     that [Appellee] is the most dangerous man that he has ever met
     or ever seen. He asked me if I knew how or why he was in jail up
     in Ohio. I said that as far as I knew it was drug related, but I said
     that I believe that everybody deserves a second chance.

           [Attorney Sachs] proceeded to tell me that the situation was
     an armed -- an aggravated kidnap and an armed robbery that him
     and other people were involved with, you know. I might not be
     saying this completely accurate.

            As far as I can remember, [Attorney Sachs] went into very
     big details about the cases saying that [Appellee] had duct-taped
     a man up and kidnapped him, and basically interrogated him until
     they got the information that they wanted, and went to another
     location and robbed the place, armed robbery, and then

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     proceeded to tell me that he was also a murderer involved in a
     shooting in Duquesne that led to the death of three people.

           Obviously, not knowing anything about it freaked me out.
     Not knowing who to believe in this case, I advised Mr. Sachs that,
     you know, I wanted our conversation to stay between me and him
     simply because at this point I was really freaked out.

          I advised [Attorney Sachs] that I only knew [Appellee] for a
     few months before he got re-incarcerated. [Attorney Sachs] cut
     me off and was like, yeah, I know a lot about you. [Attorney
     Sachs] talked about the fact of my financial hardship, about a
     break-up, and told me that he knows a lot more about me than
     he should, which really freaks me out because that means I’m
     being watched at this point just for being in contact with
     [Appellee].

                                    ***

           For me I’m just scared of any type of retaliation. I don’t
     want -- you know, corruption can be on all levels. Me not knowing
     the history of ADA Sachs and the fact that I’m being watched and
     my children are being watched really freaks me out.

           You know, [Attorney Sachs] did say to me that, you know,
     he feels that I’m a good person, which I believe I am. I believe I
     am a model citizen. I am 32 years old with three children. I’m a
     single mother. I work hard. I provide for my children. I abide by
     the laws. My record is completely clean. I have traffic violations.
     That is it.

            If anything happened to me, my children would be split into
     different homes, and my well-being and the well-being of my
     children outweighs anybody in my life. Friend, family or foe. I will
     protect me and my children over anybody in this world.

             So me being scared of the situation I don’t want to be part
     of it. You hear about corruption all the time with the DEA’s Office,
     ADA’s Office, police officers.

           You know, I do believe that the majority of people who are
     in power who are public servants are good. But you still have those
     people who are not. You never know.


                                    -6-
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           So I’m just fearful that -- excuse me -- that if I participate
     as a character witness that anything could happen. You know,
     something could be planted on me. I could get pulled over for
     complete bullcrap. That is not something that I’m willing to risk
     for anybody.

           So I wanted to put this on record with Judge [McDaniel or
     her staff]. I want to put this on record simply because if something
     happens to me in the future, I want it to be documented of this
     current situation because at this point I am very fearful for my
     safety, the safety of my children, my family, my friends, all
     because of me being associated with somebody who’s
     incarcerated. It seems like to me the ADA’s Office is desperately
     trying to continue to have [Appellee] incarcerated for life.

           So I just don’t want to take that risk. If there’s anything that
     you need from me as far as verbal communication, like over the
     phone or through emails, I don’t have a problem with that, with it
     being directly with Judge McDaniel[] and [her staff].

            As long as it is documented about the conversation that I
     had today with Mr. Sachs. I feel that that’s wrong. The whole
     situation, calling me, scaring me into not coming. Even if I was
     subpoenaed I wouldn’t want to be there.

            I feel like the information that I was given about [Appellee]
     shouldn’t have been given to me by him. Whether he was trying
     to make it seem like to scare me to, you know, make his character
     – make [Appellee] look threatening towards me, making me feel
     that I can’t trust him or, you know, being fearful of what he could
     do to me or my children. I don’t know if that’s what Mr. Sachs was
     trying to do, but whatever he was trying to do it worked because
     I am not trying to participate whatsoever.

           So if you choose to email me back and let me know that you
     got this recording so then that way I could put this on record for
     my safety and the safety of my children.

            I’m not sure -- if there’s anything else that I forgot to say I
     will do another recording, but I believe I covered everything. Like
     I said, you can respond back to me through the email.

          I appreciate your time and listening to this recording and
     documenting the events that have occurred today.

                                     -7-
J-A30005-18



            Thank you.

N.T., 12/1/16, at 4-12 (internal quotation marks omitted).

      After Ms. Wilson’s voicemail was played for the court, Assistant District

Attorney Streily questioned Attorney Sachs on the record, and Appellee’s

stand-by counsel, Brandon Herring, Esquire, conducted cross-examination.

The notes of testimony provide, in relevant part, as follows:

      [By Attorney Streily] Q. Mr. Sachs, when did you first become
      aware of the existence of [Ms.] Wilson?

      [By Attorney Sachs] A. Some time around February of this year,
      2016. It would have been late February.

      Q. How did you become aware of her existence or relation to Mr.
      Byrd?

      A. There was an inquiry from the Duquesne Police Department
      regarding this case, which caused us to look into [Appellee’s] jail
      telephone calls and visits. As a result of listening to telephone
      calls, I became aware of [Ms.] Wilson.

      Q. During those telephone calls I’m assuming you learned
      information about [Ms.] Wilson?

      A. Yes.

      Q. From the discussions that she had with [Appellee]?

      A. Yes.

      Q. In this trial at some point you became aware that [Appellee]
      wanted to call [Ms.] Wilson as a character witness?

      A. Yesterday during the course of trial. I believe it was before
      lunch yesterday.

      Q. Okay. As a result of learning of that, what did you do?


                                     -8-
J-A30005-18


     A. Once Court had recessed -- well, there was an attempt made,
     apparently, to contact her, but the phone number was no good.
     Eventually another phone number was provided to the Court by
     [Appellee], and through the course of the afternoon apparently
     [Ms. Wilson] was contacted, and the Court staff indicated that she
     would be able -- [Ms.] Wilson would be able to be here this
     morning.

     Q. Okay. Sir, once you learned that did you make a decision as to
     whether to contact [Ms.] Wilson?

     A. Yes. Once Court recessed for the day, some time between four
     and five o’clock, I know it wasn’t as late as five, but I had the
     phone number for her from the most recent jail telephone calls
     that we had which wouldn’t – I don’t think they would have been
     any later than March of this year. So I used that phone number
     that we had to try and contact her.

     Q. Using the phone number that you had obtained you made the
     call to [Ms.] Wilson; correct?

     A. Yes.

     Q. Sir, what was your intent in making that phone call?

     A. My intent was to determine what basis she had to be able to
     testify as a character witness for [Appellee] because I had known
     from all recordings I have listened to she hadn’t known him that
     long. It didn’t appear that she had a lot of contact with anybody
     who would be within his circle other than his mother and perhaps
     his brother.

           I wanted to know if she was aware of what his prior
     convictions were and whether that would change her opinion of
     his reputation. That was the essence of why I was calling her.

           Also, I meant to find out whether she was, in fact, going to
     appear. Almost – the conversation only lasted two or three
     minutes. She indicated in fairly short order that she wasn’t going
     to appear. Then the rest of the conversation was merely to ask
     her these questions and find out what she knew in case she had
     changed her mind or her circumstance had changed.




                                   -9-
J-A30005-18


     Q. Now, you indicated earlier in conversation she said she was not
     going to appear. Did she tell you why she was not going to appear?

     A. She said that she couldn’t get off work, and she couldn’t afford
     to lose her job. It was a new job for her.

     Q. Sir, what was your belief as to the character trait of [Appellee]
     that she was going to testify to?

     A. Honestly, I’m not certain what she was supposed to testify to,
     whether it was for his honesty or his peaceable nature in the
     community. Because this case, although it’s a gun charge, but
     there is a lot of testimony about what generated the police
     response, which was a terroristic threats situation.

          So I wasn’t certain exactly what she would testify to. I
     wanted to find out what her basis was.

     Q. Did you disclose to her during that conversation any
     information about your belief as to past activity of [Appellee] that
     might have been of a criminal or violent nature?

     A. Yes. I asked her if she was aware of the circumstances of his
     Ohio conviction. She told me that he had told her that it was a
     drug-related case, and I explained what the charges were, what
     he was convicted of.

           I explained that he had been convicted of an aggravated
     assault in Duquesne. I think she must have been confused that
     there were three people killed. He did three years is what I told
     her. Somehow that morphed into three people being killed.

     Q. Today, sir, did you tell her that he had murdered three people?

     A. No.

     Q. What was your tone of voice, Mr. Sachs, during this
     conversation?

     A. Conversational. It was conversational. It was pleasant. I
     explained to her who I was as soon as she picked up and went
     from there.




                                    - 10 -
J-A30005-18


     Q. Did her responses to you, did they indicate any apprehension
     on her part in speaking with you?

     A. She had indicated to me very early on -- like I said, the
     conversation only went like two or maybe three minutes. But she
     had indicated to me that she wasn’t coming, that she was getting
     a bad feeling about this, and she wasn’t going to come because of
     her job.

     Q. Mr. Sachs, during that was it ever your intent to intimidate her
     from coming to be a witness for [Appellee] here today?

     A. Not at all.

     Q. Did you raise your voice at all during that conversation?

     A. No.

     Q. Again, you’re telling the Court you made that conversation in
     order to have knowledge as to her ability to be -- actually be a
     proper character witness for [Appellee]?

     A. Yes.

                                   ***

           MR. STREILY: I don’t have any more questions for Mr.Sachs.

          THE COURT: [Appellee], you are representing yourself.
     Would you like to ask Mr. Sachs any questions?

           [Appellee]: Your Honor, at this time I would like to request
     that the Court allow me the opportunity to have [stand-by
     counsel] Mr. Herring represent me with regards to this particular
     hearing and let him ask Mr. Sachs some questions.

           THE COURT: Thank you, [Appellee]. Mr. Herring.

                           CROSS-EXAMINATION

     BY MR. HERRING:

     Q. Mr. Sachs, you were obviously present in the courtroom while
     that recording was played; correct?

                                   - 11 -
J-A30005-18



     A. Yes.

     Q. The witness indicated on that recording that you had informed
     her that [Appellee] was one of the most dangerous people that
     you had ever met or something to that effect. Correct?

     A. Yes.

     Q. Did you, in fact, say that to her?

     A. Yes.

     Q. What was the legitimate purpose of telling her that in relation
     to her coming to Court and being a witness?

     A. We were discussing him, and she had already indicated that
     she wasn’t planning on coming, and we were just having a
     conversation at that point.

     Q. We can agree that you wouldn’t have been permitted to ask
     her a question related to your opinion of [Appellee] during the
     course of the trial; correct?

     A. Absolutely.

     Q. So there was no - -

     A. Yes. I agree.

     Q. So there was no legitimate purpose for editorializing to her your
     opinion of [Appellee] while you were contacting her about being a
     character witness; correct?

     A. I wouldn’t necessarily agree with that, that it was not
     legitimate. It was a conversation about him.

     Q. [Ms. Wilson] also referenced a homicide in Duquesne. Did you
     mention any homicide charges that had been previously brought
     against [Appellee]?

     A. I don’t recall mentioning that. I told her that he did three years
     for a shooting in Duquesne.


                                    - 12 -
J-A30005-18


     Q. It’s your opinion that she had misinterpreted that to be three
     homicides in Duquesne?

     A. Yes. I mean, as far as I know, there are not three homicides in
     Duquesne associated with [Appellee].

     Q. Mr. Sachs, in that recording, [Ms. Wilson], despite having been
     told by you that [Appellee] had all of these convictions, but I
     believe it was your conduct that was going to be directed towards
     her in relation to knowing about her family.

            Did you reference the jail recordings that you had listened
     to in relation to [Appellee’s] case?

     A. I believe I told her that that’s how I -- why I knew about her,
     what I knew about her.

          I mean I never told her that she was under surveillance. She
     wasn’t under surveillance. Everything I know about her is from
     having had to listen to these jail recordings.

     Q. But you had, in fact, told her several things about her family,
     and you told her that you knew more information about her than
     you should? Did you say that to her?

     A. In response to when she was telling me about herself, I said,
     yes, I know about these things. I know about this. I know about
     that. It was all as a result of listening to these recordings. That’s
     why I know more about her than I should.

     Q. You did, in fact, use those words in speaking with the witness?

     A. Yes. I believe I did. Yes.

           MR. HERRING: Your Honor, I have no more questions of the
     witness.

           Thank you.

           THE COURT: You may step down.

          I find [Ms. Wilson], although not cross-examined, to have
     been well spoken and articulate.


                                     - 13 -
J-A30005-18


            I see no legitimate reason Mr. Sachs would tell her about
      the details of the Ohio case. He said that he knew more about her
      than he should.

            I find it hard to believe that she said that she had financial
      problems and a recent break-up. I believe that Mr. Sachs told her
      that.

           I believe that he told her that [Appellee] shot people in
      Duquesne. He said that he was dangerous.

            I believe that it’s the perception of the witness in this case
      that matters, and her perception is that Mr. Sachs and/or the
      D.A.’s Office is corrupt, possibly she was afraid for her life and for
      her children, and the witness has not appeared. For manifest
      necessity I am going to declare a mistrial in this case.

             I have been on the bench for 31 years. In that 31 years I
      have never once banned anyone from my courtroom …. However,
      Mr. Sachs, you are banned from my courtroom. I can no longer
      trust you. I find you to be sneaky. I find you to be able to backdoor
      people, and you’re not allowed in my courtroom.

            Thank you.

N.T., 12/1/16, at 16-26.

      After review, we agree with the trial court that the Commonwealth,

through the actions of Attorney Sachs, intimidated Ms. Wilson to prevent her

from testifying with the intent of depriving Appellee a fair trial. Trial Court

Opinion, 6/29/17, at 11, 12-13.        Attorney Sachs questioned Ms. Wilson

regarding her knowledge of Appellee, informed Ms. Wilson about prior criminal

acts that Appellee allegedly committed, editorialized about Appellee’s

dangerous propensity, and informed Ms. Wilson that he was aware of many

details about her life. Attorney Sachs’s statements placed Ms. Wilson in fear

for her own safety and for that of her family.        We cannot conclude that

                                     - 14 -
J-A30005-18


Attorney Sachs’s actions were mere prosecutorial error; rather, they were

intentional acts of prosecutorial overreaching implicating double jeopardy

protection. Martorano, 741 A.2d at 1222. Because we conclude that the

Commonwealth’s misconduct was intended to deprive Appellee of a fair trial,

we agree that retrial is barred and that the charge against Appellee at trial

court docket number CP-02-CR-0014138-2016 was properly dismissed.

Adams, 177 A.3d at 371. Accordingly, we affirm the March 20, 2017 order

dismissing this case with prejudice.

      Order affirmed.

      Judge Kunselman joins this Opinion.

      Judge Strassburger files a Dissenting Opinion.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/29/2019




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