J-A08014-18

                                   2018 PA Super 191


    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    WILLIAM J. LYNN                            :
                                               :
                       Appellant               :   No. 1300 EDA 2017

                     Appeal from the Order March 28, 2017
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0003530-2011


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

OPINION BY PANELLA, J.                                    FILED JUNE 28, 2018

        This appeal arises from the grant of a new criminal trial by a panel of

this Court. Monsignor William J. Lynn appeals from the order denying his

motion to dismiss the charges and bar retrial on double jeopardy grounds.1

Lynn argues after-discovered evidence of prosecutorial misconduct implicates

the Double Jeopardy Clause in Article 1, § 10 of the Pennsylvania Constitution

and prohibits the Commonwealth from retrying him. Because we conclude

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*   Retired Senior Judge assigned to the Superior Court.

1 While an order denying a motion to dismiss charges 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) (“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.”) The trial court found
Lynn’s motion non-frivolous. See N.T., Hearing, 3/24/17, at 5; Trial Court
Order, 3/28/17. Thus, this appeal is properly before us.
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Lynn has failed to demonstrate any of the alleged acts of misconduct were

intended to deprive him of a fair trial, we affirm.

      As our Supreme Court has provided a detailed description of the facts

underlying this case in its prior opinion, Commonwealth v. Lynn, 114 A.3d

796, 798-808 (Pa. 2015) (“Lynn II”), we need not recite the entirety of this

case’s history. See also Commonwealth v. Lynn, 83 A.3d 434, 437-445

(Pa. Super. 2013) (“Lynn I”), rev’d Lynn II (providing summary of facts and

procedural history).

      Briefly, from 1992 until 2004, Lynn served as Secretary for Clergy for

the Archdiocese of Philadelphia. As part of his duties as secretary, Lynn was

responsible for receiving and investigating allegations of sexual abuse by

priests within the Archdiocese, as well as suggesting placements for, and

supervising, priests previously accused of abuse.

      In early 2011, following a grand jury investigation into claims of sexual

abuse by priests and concealment of this abuse by the Archdiocese, Lynn was

arrested and charged with two counts of endangering the welfare of children

(“EWOC”), 18 Pa.C.S.A. § 4304, and two counts of conspiracy to commit

EWOC, 18 Pa.C.S.A. § 903. Lynn’s charges arose from claims that he, in his

capacity as secretary, negligently supervised two priests, Reverend Edward V.




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Avery and Reverend James Brennan.2 Due to previous complaints, Lynn knew

that both Avery and Brennan had been accused of sexually abusing juvenile

parishioners. Despite this knowledge, in 1993, Lynn recommended that Avery

live in the rectory at nearby St. Jerome’s Church—a church with a grade school

attached. Several years after Avery was placed at St. Jerome’s rectory, D.G.,

a student at St. Jerome’s grade school, claimed he had been sexually abused

by Avery.3

       Lynn proceeded to trial on March 26, 2012, based in part upon D.G.’s

allegations.4 As part of the Commonwealth’s case in chief, D.G. testified he

first met Avery while participating in the bell crew or choir as a fifth grade

student at St. Jerome’s grade school. Shortly thereafter, D.G. recounted that

Avery took the opportunity to molest him on two separate occasions following

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2 The Commonwealth charged one count each of EWOC and conspiracy to
commit EWOC in relation to Lynn’s supervision of Avery and Brennan,
respectively.

3 In his brief, counsel for Lynn do not refer to D.G. by his initials, but rather
by his full name. D.G. was a minor at the time of the alleged sexual abuse.
The use of his full name is prohibited by statute. See 42 Pa.C.S.A. § 5988(a)
Release of name prohibited. We therefore order counsel to file within seven
days of this decision a substituted brief redacting D.G.’s full name. Our Deputy
Prothonotary has already sealed Lynn’s filed brief.

4 Initially, Lynn was scheduled to be tried along with co-defendants Avery and
Brennan. However, prior to the commencement of trial, Avery pleaded guilty
to one count of involuntary deviate sexual intercourse, 18 Pa.C.S.A. § 3123,
and one count of conspiracy to commit EWOC. Brennan remained Lynn’s co-
defendant until the conclusion of the case.




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early morning mass at St. Jerome’s Church. D.G. claimed he was serving as

an altar boy for the early morning mass, and was left alone with Avery after

the conclusion of mass. Following this experience, D.G. testified he became

withdrawn and began using drugs. This eventually culminated in D.G.’s

development of a heroin addiction at the age of seventeen.

       In addition to D.G.’s testimony, the Commonwealth utilized Detective

Joseph Walsh to introduce “other-acts” evidence of the Archdiocese’s handling

of abuse allegations raised against twenty-one priests other than Avery and

Brennan.5 After two months of testimony, the jury convicted Lynn of one count

of EWOC, relating to his supervision of Avery.6 On July 24, 2012, the trial

court sentenced Lynn to a term of three to six years’ imprisonment.


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5In our review of the record, as well as previous decisions written in this case,
we note that the exact number of priests accused of sexual abuse and
admitted as other-acts evidence varies between twenty and twenty-one.
Compare Lynn I, 83 A.3d at 446 (referencing twenty-one other priests), and
Commonwealth v. Lynn, No. 2171 EDA 2012, at 13, 15, 2015 WL 9320082,
at *6 (Pa. Super., filed 12/22/15) (unpublished memorandum) (“Lynn III”)
(discussing allegations leveled against twenty-one other priests), with Lynn
II, 114 A.3d at 809 (stating trial court permitted Commonwealth to introduce
evidence pertaining to twenty other priests). However, the trial court’s initial
order permitting the introduction of other-acts evidence clearly reveals it
permitted the Commonwealth to introduce evidence relating to twenty-one
other priests against Lynn. See Trial Court Order, 2/6/12. As such, we will
utilize this number in our opinion.

6Following the conclusion of the Commonwealth’s case, the trial court granted
Lynn’s motion for judgment of acquittal for the conspiracy count related to his
supervision of Brennan. Thereafter, in reaching its verdict, the jury acquitted
Lynn of the conspiracy count related to his supervision of Avery and the EWOC
count related to his supervision of Brennan. The jury failed to reach a verdict
on any of the charges against Brennan.

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      Following a series of appeals, a panel of this Court vacated the judgment

of sentence and granted Lynn a new trial upon concluding the trial court

abused its discretion by admitting a “high volume of unfairly prejudicial other-

acts evidence.” Lynn III, No. 2171 EDA 2012, at 1, 2015 WL 9320082, at

*1. However, before the Commonwealth could retry Lynn, he filed a motion

to dismiss his charges.

      In his motion, Lynn claimed to have discovered the Commonwealth had

asked Detective Walsh to investigate the veracity of D.G.’s grand jury

testimony prior to Lynn’s first jury trial. Lynn alleged the Commonwealth had

committed prosecutorial misconduct by failing to inform him of this

investigation, as well as the allegedly damning responses of D.G. and the

Assistant District Attorney (“ADA”) in charge of the case, Mariana Sorensen,

when confronted with inconsistences in D.G.’s story. Lynn contends that

permitting the Commonwealth to proceed with a retrial in the face of their

intentional misconduct would violate his double jeopardy rights under Article

1, § 10 of the Pennsylvania Constitution.

      In response, the Commonwealth conceded hiring Detective Walsh to

investigate D.G.’s claims, but claimed any inconsistencies in D.G.’s testimony

were provided to Lynn before trial. Further, the Commonwealth disputed

Lynn’s conclusion that D.G. had lied on the witness stand. As such, the

Commonwealth alleged that no prosecutorial misconduct had occurred, as the




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Commonwealth did not withhold any discoverable evidence from Lynn and

therefore did not act with intent to cause prejudice to Lynn.

      The trial court scheduled a series of hearings on the matter. At the

hearings, Detective Walsh confirmed the Commonwealth hired him to

investigate the accuracy of D.G.’s grand jury testimony. See N.T., Hearing,

1/13/17 at 8-9. After conducting interviews with members of D.G.’s family

and staff at St. Jerome’s grade school, Detective Walsh determined that

certain details surrounding D.G.’s account of his abuse were inconsistent with

information gathered through the interviews. See id., at 9-10. Specifically,

Detective Walsh received information that appeared to counter D.G.’s claims

that he served early morning mass in fifth grade, was a member of the bell

crew in fifth grade, or ever participated in bell choir. See id., at 29, 31, 33-

34, 36, 41, 58. During a trial preparation session in February 2012, Detective

Walsh confronted D.G. about these inconsistencies, and claimed D.G. either

failed to respond when challenged, or stated he was high when he made his

initial statement to the police. See id., at 60-64.

      Additionally, Detective Walsh testified he informed ADA Sorensen of

these inconsistencies as he discovered them, but that she always confirmed

her belief in D.G.’s story. See id., at 78-79. However, on one occasion in

January 2012, before Detective Walsh’s trial preparation session with D.G.,

Detective Walsh’s report of inconsistencies was met with her telling him

“you’re killing my case.” Id., at 79. Lynn asserts that these inconsistencies


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and ADA Sorensen’s response were proof that D.G.’s story of Avery’s abuse

was untrue, that ADA Sorensen was aware it was untrue, and as such, the

prosecutor’s actions in placing D.G. on the witness stand during trial

constituted prosecutorial misconduct.

         At the conclusion of the hearings, the trial court found that while the

Commonwealth failed to provide Lynn with certain aspects of Detective

Walsh’s investigation, there was no evidence this failure constituted

misconduct severe enough to warrant dismissal of Lynn’s charges. See N.T.,

Hearing, 3/24/17, at 4-5. Instead, the trial court found the proper remedy in

this case would be a new trial. See id., at 4. As Lynn had already been granted

a new trial, albeit on different grounds, the trial court found no further relief

was warranted. See id. This appeal followed.

         On appeal, Lynn maintains the trial court erred in failing to dismiss his

charges on double jeopardy grounds. He rests his argument on two bases.

First,    Lynn    contends    double   jeopardy    should   attach   due    to   the

Commonwealth’s intentional decision to withhold exculpatory information

from him prior to trial. Second, he claims the Commonwealth deprived him of

a fair trial by placing D.G. on the witness stand and suborning perjury.

               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



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      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

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); 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). 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

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       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.

Commonwealth v. Kearns, 70 A.3d 881, 884-885 (Pa. Super. 2013)

(footnote and emphasis omitted).

       Turning to Lynn’s first claim, he asserts the Commonwealth intentionally

committed a Brady7 violation by failing to inform him of Detective Walsh’s

investigation, as well as D.G.’s and ADA Sorensen’s responses thereto.8 As the




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7 Brady v. Maryland, 373 U.S. 83 (1963). In Brady, the United States
Supreme Court held that “the suppression by the prosecution of evidence
favorable to an accused upon request violated due process where the evidence
is material to either guilt or to punishment, irrespective of the good faith or
bad faith of the prosecution.” Id., at 87. The Court extended this rule in
Gigilio v. United States, 405 U.S. 150 (1972), to require production
pursuant to Brady of evidence bearing upon the credibility of a key
prosecution witness.

8 As the Commonwealth notes, Lynn appeared to waver on whether the
Commonwealth’s actions constituted a Brady violation during the evidentiary
hearing. See Commonwealth’s Brief, at 4-5, 11; N.T., Hearing, 1/13/17, at
42 (Lynn’s attorney stating, “never have we said that we were denied Brady”),
but see Appellant’s Brief, at 14-15 (concluding the Commonwealth should be
barred from retrial as they violated Brady). However, in his reply brief, Lynn
clarifies that his counsel’s statements during the evidentiary hearing regarding
the lack of Brady violations was directed only at the written interview
statements compiled by Detective Walsh, and not at the witness preparation
session with D.G. or ADA Sorensen’s comments. See Appellant’s Reply Brief,
at 1.




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trial court concluded, this claim “is the gravamen of the Brady violation.” Trial

Court Rule 1925(a) Opinion, 8/1/17, at 4.9

       A violation of Brady’s dictates can require dismissal on double jeopardy

grounds. See, e.g., Commonwealth v. Adams, 177 A.3d 359, 372 (Pa.

Super. 2017). However, as with other instances of prosecutorial misconduct

sufficient to bar retrial, the defendant must show the prosecutor intentionally

withheld this information in an attempt to deprive the defendant of a fair trial.

See Kearns, 70 A.3d at 884-885. Discovery violations caused by “gross

negligence” or “mere willfulness” are insufficient to invoke a defendant’s

double jeopardy protections. See id., at 886 (holding the trial court’s

conclusion that the prosecution did not intentionally withhold evidence, but

was merely “grossly negligent” in failing to turn over the evidence, could not

meet the requirements for barring retrial under the double jeopardy clause).

       Here, the trial court found the Commonwealth should have provided the

defense with information related to Detective Walsh’s investigation. However,

the court concluded Lynn was not entitled to invoke the protections of the


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9 The Commonwealth appears to contest Lynn’s claim that the trial court found
a Brady violation, and instead asserts the trial court declined to rule on the
issue as it was moot. See Commonwealth’s Brief, at 9, 12. While we agree
the trial court did not explicitly conclude the Commonwealth committed a
Brady violation in its Rule 1925(a) opinion, it clearly found so in its initial
ruling on Lynn’s motion. See N.T., Hearing, 3/24/17, at 4 (“This [c]ourt does
find that … certain information regarding Detective Walsh’s investigation
leading up to the trial should have been provided to the defense, the Brady-
type remedy of a new trial would be the appropriate remedy.”) Thus, this
argument is meritless.

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Double Jeopardy Clause as he failed to adduce evidence of intentional

prosecutorial misconduct in withholding this information. See N.T., Hearing,

3/24/17, at 4-5; see also Trial Court Rule 1925(a) Opinion, 8/1/17, at 5.

After reviewing the record, we agree with the trial court. We are unable to find

a single instance during the multiple hearings held on the matter where Lynn

produced evidence of the Commonwealth’s intent in withholding this

information.

      In fact, in attempting to prove the Brady violation, Lynn adduced

evidence that defeats his claim that the Commonwealth maliciously withheld

this information. It is not clear that the prosecution was even aware of the

content of Detective Walsh’s witness preparation interview. See N.T., Hearing,

1/13/17, at 70 (“I don’t know if I discussed the prep with her after the

meeting, I’m not sure.”) While this does not excuse the Commonwealth from

performing their duties under Brady, it certainly undermines the assertion

that the Commonwealth intentionally withheld the content of the witness

preparation interview. See Commonwealth v. Burke, 781 A.2d 1136, 1142,

1145-1146 (Pa. 2001) (finding that miscommunication between the police and

prosecutor alone, which leads to non-disclosure of information, cannot be the

basis for deliberate misconduct); see also Adams, 177 A.3d at 374 (affirming

trial court’s conclusion that dismissal would be overly harsh where trial court

found no evidence of police or prosecution attempting to sabotage Appellant’s

case).


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       By failing to provide evidence of intent, Lynn has failed to establish the

Commonwealth’s        Brady      violation     constituted   intentional   prosecutorial

misconduct designed to deprive him of a fair trial.10 See Smith, 615 A.2d at

325. Therefore, the proper remedy in this situation is not a complete bar to

prosecution, but a retrial. This, as the trial court aptly notes, has already been

awarded to Lynn. See Trial Court Rule 1925(a) Opinion, 8/1/17, at 5. Thus,

Lynn is entitled to no further relief on this basis.

       Next, Lynn argues retrial should be barred because the Commonwealth

“intentionally and in bad faith ignored the truth and placed a witness on the

stand who it alone knew would lie.” Appellant’s Brief, at 15. Lynn rests this

argument on Detective Walsh’s testimony that he disclosed the inconsistencies

of D.G.’s testimony to the Commonwealth prior to the initial trial, and yet the

Commonwealth still allowed D.G. to testify at trial. As such, Lynn asserts the

Commonwealth’s decision to place D.G. on the stand amounted to




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10 After reviewing the record, we agree with the Commonwealth that all of the
inconsistencies inherent in D.G.’s witness preparation interview with Detective
Walsh were disclosed to Lynn prior to trial. Therefore, while the trial court
found that the failure to disclose the interview constituted a Brady violation,
the only substantive information the Commonwealth failed to provide to Lynn
prior to trial was the fact that Detective Walsh conducted this witness
preparation interview.




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prosecutorial misconduct sufficient to invoke double jeopardy and bar a new

trial.11

       Lynn has failed to prove his entitlement to relief. In support of his

argument, Lynn compares the findings of Detective Walsh’s investigation to

D.G.’s grand jury and trial testimony, finds inconsistencies, and concludes

such inconsistencies prove as a matter of law that D.G.’s testimony was false.

However, inconsistencies in evidence, in and of themselves, do not equate to

the introduction of false evidence. See Commonwealth v. Ali, 10 A.3d 282,

294 (Pa. 2010).

       Importantly, the inconsistencies uncovered by Detective Walsh are not

dispositive on the seminal issue: whether Avery molested D.G. after Lynn

transferred Avery to D.G.’s church. D.G. has never wavered on his claim that

the sexual abuse occurred and Detective Walsh did not find any direct

evidence contradicting this aspect of his claim. Therefore, any of the

inconsistencies Detective Walsh perceived through his investigation into D.G.’s

testimony are solely for the jury to evaluate as to credibility. See

Commonwealth v. Davis, 541 A.2d 315, 317 (Pa. 1988) (“As the



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11 The Commonwealth maintains Lynn waived this argument by failing to
include it in his initial motion to dismiss. However, Lynn included this
argument in his supplemental motion to dismiss and he advanced this
argument before the trial court during the evidentiary hearing. See
Supplemental Motion to Dismiss, 1/11/17; N.T., Hearing, 1/5/17, at 31-32.
Thus, we decline to find waiver.


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phenomenon of lying is within the ordinary capacity of jurors to assess, the

question of a witness’s credibility is reserved exclusively for the jury.”)

      Also,   while       Lynn   focuses   most     of   his   attention   on   perceived

discrepancies in D.G.’s testimony, the record does not support his serious

allegation that the prosecution knowingly presented false evidence. While

Detective Walsh claimed ADA Sorensen informed him that the inconsistencies

he uncovered through his investigation were “killing [her] case,” he also

testified that ADA Sorensen repeatedly told him she believed D.G.’s testimony.

The trial court found this evidence did not support a finding that ADA Sorensen

knowingly presented false evidence. We will not disturb this determination.

Thus, as Lynn once again fails to provide evidence of intentional conduct by

the prosecution, Lynn’s second argument in support of double jeopardy

barring retrial, fails.

      Alternatively, Lynn asks this Court to issue a writ of prohibition barring

the admission of D.G.’s testimony in his retrial. In support of this request, he

asserts the evidence outlined above leads to the “inescapable conclusion” that

D.G. lied under oath, or, at the very least, that the Commonwealth placed him

on the stand believing he would lie under oath. Appellant’s Brief, at 20. And

he argues the introduction of D.G.’s false testimony would violate his

constitutional rights and that we should use our power to preempt this

violation by issuing a writ of prohibition.




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      As discussed, Lynn failed to show the information uncovered by

Detective Walsh’s investigation rendered D.G.’s trial testimony perjurious.

Therefore, his claim that he needs us to protect his constitutional rights from

the introduction of D.G.’s false testimony fails. However, even assuming Lynn

had proven D.G.’s testimony to be false, a writ of prohibition is the incorrect

vehicle to obtain the relief requested.

      [T]he writ of prohibition under Pennsylvania law is an
      extraordinary remedy invoked to restrain courts and quasi-judicial
      bodies from usurping jurisdiction which they do not possess or
      exceeding the established limits in the exercise of their
      jurisdiction. The writ is not one of right but rather rests with the
      sound discretion of the appellate court. A writ will issue only upon
      a showing of extreme necessity and the absence of an available
      remedy at law. Where relief may be sought through ordinary
      avenues of judicial review, the writ will not lie.

Capital Cities Media, Inc. v. Toole, 483 A.2d 1339, 1343 (Pa. 1984).

      Through his request for a writ of prohibition, Lynn is seeking to prohibit

the introduction of D.G.’s testimony. However, the admissibility of evidence,

including testimony proffered by witnesses, is a matter primarily falling within

the discretion of the trial court. See, e.g., Commonwealth v. Taylor, 876

A.2d 916, 929 (Pa. 2005). Because the trial court has the discretion to permit

or prohibit D.G.’s testimony at Lynn’s retrial, this request clearly falls within

the ambit of the trial court’s authority. As such, this request does not meet

the criteria for a writ of prohibition.

      Order affirmed. Counsel for Lynn directed to file substituted brief.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/28/18




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