J-A01038-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                IN THE SUPERIOR COURT OF
                                                  PENNSYLVANIA
                      Appellant

                 v.

JAWAYNE K. BROWN

                      Appellee                  No. 3014 EDA 2014


             Appeal from the Order Entered October 9, 2014
          In the Court of Common Pleas of Philadelphia County
          Criminal Division at No(s): CP-51-CR-0102174-2005,
                        CP-51-CR-0609071-2006


                                  *****

COMMONWEALTH OF PENNSYLVANIA                IN THE SUPERIOR COURT OF
                                                  PENNSYLVANIA
                      Appellant

                 v.

RICHARD BROWN

                      Appellee                  No. 3046 EDA 2014


             Appeal from the Order Entered October 9, 2014
          In the Court of Common Pleas of Philadelphia County
          Criminal Division at No(s): CP-51-CR-0102173-2005

                                  *****

COMMONWEALTH OF PENNSYLVANIA                IN THE SUPERIOR COURT OF
                                                  PENNSYLVANIA
                      Appellant

                 v.

AQUIL BOND

                      Appellee                  No. 3054 EDA 2014
J-A01038-16



                 Appeal from the Order Entered October 9, 2014
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0102171-2005


BEFORE: LAZARUS, J., OTT, J., and STEVENS, P.J.E.*

MEMORANDUM BY LAZARUS, J.:                              FILED JUNE 06, 2016

        The Commonwealth of Pennsylvania appeals from the order of the

Court of Common Pleas of Philadelphia County that granted the motions to

bar retrial filed by Jawayne K. Brown, Richard Brown and Aquil Bond

(collectively, “Appellees”). After careful review, we affirm.

        The underlying facts of this case have been previously set forth by this

Court as follows:

        At approximately 4:20 a.m. on the morning of November 21,
        2002, Rohan Haughton (“Haughton”) called his fiancée Nicole
        Islam to tell her that Hadith Goodman (“Goodman”) had asked
        him to take money to Chante Baker (“Baker”) and drive her to
        the airport.      Airline records showed that Goodman had
        purchased tickets for himself and Baker on two flights to
        California, but that neither showed up or boarded a plane. Just
        before midnight of the next day, the Philadelphia police found
        Haughton’s body in a parked Chevrolet Tahoe. He had been
        bound and gagged with duct tape and had died of a gunshot
        wound to the head.

        In late November 2002, police arrested Vincent Smithwick
        (“Smithwick”) on drug charges and soon referred him to federal
        law enforcement authorities for prosecution on federal crimes.
        Smithwick learned that another inmate, Christopher Smith,
        (“Smith”), intended to cooperate with Pennsylvania state
        authorities  and   offer  testimony    regarding  Smithwick’s
        involvement in Haughton’s murder.       Smithwick thus came
____________________________________________


*
    Former Justice specially assigned to the Superior Court.


                                           -2-
J-A01038-16


     forward and entered into two plea agreements, one state and
     one federal, pursuant to which he implicated himself in various
     crimes, including the murders of Haughton and another man. In
     return for his testimony, state and federal authorities agreed to
     a maximum term of incarceration for Smithwick of 20 – 40 years
     of concurrent time for all state and federal charges. In addition
     to himself, Smithwick also identified Jawayne Brown, Baker,
     Smith, Richard Brown and Aquil Bond (“Bond”) as individuals
     responsible for Haughton’s murder.

     Baker subsequently also entered into a plea bargain agreement,
     pursuant to which she agreed to testify about her role in
     Haughton’s death in exchange for the Commonwealth’s
     agreement to drop all murder, kidnapping, and weapons
     offenses against her. She pled guilty to robbery and conspiracy
     charges, and the Commonwealth agreed not to seek the
     mandatory minimum five to ten years of incarceration for those
     crimes.

     The trial of Jawayne Brown, Smith, Richard Brown, and Bond for
     Haughton’s murder commenced on July 14, 2006, with Baker
     and Smithwick as the principal witnesses for the Commonwealth.
     Baker testified that on several prior occasions she had traveled
     to California with Goodman to take large amounts of cash (taped
     to her body) for him. According to Baker, on November 20,
     2002, Goodman had advised her that they would be taking
     another such trip together; early the next morning, however, he
     came by her house to tell her that he would be taking a later
     flight, and that instead Haughton would bring the money to her
     in advance and accompany her on her flight. Baker testified that
     Richard Brown saw Goodman leaving her house and questioned
     her about his visit. Baker told him that Haughton would be
     arriving with a large sum of money. According to Baker, Richard
     Brown told her that he was surprised she had not confided in
     him about this operation previously, since “that is what he did,
     he robbed people.”

     Baker testified that a few hours later, in the early morning of
     November 21, Richard Brown brought Haughton into her house
     at gunpoint. She testified that with Richard Brown and Smith in
     attendance, Jawayne Brown and Bond beat and tortured
     Haughton, demanding that he give them the money that Baker
     was supposed to take to California for Goodman. According to
     Baker, Smithwick then arrived and Jawayne Brown, Smith, Bond
     and Smithwick took Haughton out the back door of the house.


                                   -3-
J-A01038-16


     Smithwick testified that Bond called him in the early morning
     hours of November 21 and told him to come to Baker’s house.
     Upon his arrival, he saw Haughton tied up and gagged in the
     kitchen, being questioned about the money while Bond prodded
     him with a steak knife. According to Smithwick, Richard Brown
     then ordered Bond to put Haughton “to sleep,” at which time
     Smithwick, along with Jawayne Brown, Bond, and Smith, forced
     Haughton out the back door, over a fence, and into Haughton’s
     Chevrolet Tahoe. While Smith followed in a separate vehicle,
     Jawayne Brown drove the Tahoe. In the backseat of the Tahoe,
     Bond and Smithwick continued to attempt to force Haughton to
     disclose the location of the money. When Haughton failed to
     disclose any additional information, Smithwick testified that
     Bond shot him in the head.         Jawayne Brown, Bond and
     Smithwick then abandoned the Tahoe and joined Smith in his
     vehicle. Smith drove them all to a hotel. Smithwick testified
     that Bond then gave him $5,000 for his efforts.

Commonwealth v. Brown, J. et al., No. 3282 EDA 2006, unpublished

memorandum at 2-5 (Pa. Super. filed February 17, 2012) (citations

omitted).

     Following a jury trial before the Honorable Sheila Woods-Skipper,

Appellees were convicted of second-degree murder and other offenses on

July 31, 2006. Following separate hearings held on different days in October

2006, the court sentenced Appellees to life imprisonment without parole plus

additional sentences for other crimes.

     On direct appeal, this Court reversed the judgments of sentence and

granted Appellees a new trial based on prosecutorial misconduct.        See

Brown, J., supra; Commonwealth v. Brown, R., No. 3055 EDA 2006,

unpublished memorandum (Pa. Super. filed February 17, 2012). This Court

noted:

     We . . . direct our focus herein on two specific instances of
     prosecutorial misconduct . . . namely the prosecutor’s improper

                                    -4-
J-A01038-16


      attempts to bolster the credibility of a key government witness
      (Smithwick). These two instances of prosecutorial misconduct
      were highly prejudicial . . . and, when considered in the context
      of the atmosphere of the trial as a whole, constituted deliberate
      attempts to destroy the objectivity of the jury and prevent the
      jury from rendering a true verdict.

Commonwealth v. Brown, J., supra at 9.

      The Commonwealth sought en banc reargument, which this Court

denied on April 18, 2012.      The Commonwealth then filed petitions for

allowance of appeal from this Court’s orders, which our Supreme Court

denied on September 18, 2013.

      On remand, this case was assigned to the Honorable Benjamin Lerner.

Appellees each filed a motion to dismiss, and argument was held on August

13, 2014. On October 9, 2014, Judge Lerner granted the motions on double

jeopardy grounds.

      The Commonwealth filed a timely appeal in which it raises the

following issues for our review:

      1. Did the lower court err in barring retrial under
         Commonwealth v. Smith[, 615 A.2d 321 (Pa. 1992)]?

      2. Did the lower court err in concluding that it was required to
         bar retrial due to statements in this Court’s prior panel
         opinion?

      3. Did the lower court err in refusing to transfer these cases to
         the trial judge, where the prosecutor’s intent was in issue?

      4. Did the trial judge abuse her discretion in finding that the
         Commonwealth did not unavoidably prejudice the jury, where
         the Commonwealth fairly responded to defense arguments
         that the prosecution irresponsibly made a “knee jerk” plea
         deal with a witness?

Appellant’s Brief, at 4.


                                    -5-
J-A01038-16


      Because this Court’s memorandum in support of reversing the

judgment of sentence and granting a new trial is inextricably linked to the

matter before us, we cite significant portions therefrom.

      After   discussing   the   prohibition   against   improper   bolstering   or

vouching for a government witness, this Court noted:

      In the present case, during Smithwick’s testimony (both direct
      and cross-examinations) the terms of the written plea
      agreement with the Commonwealth were described and
      discussed at length. After Smithwick concluded his testimony,
      counsel for the Commonwealth then advised the Court that it
      intended to call as its next witness Edward McCann (“McCann”),
      an Assistant District Attorney and chief of the homicide unit of
      the Philadelphia District Attorney’s Office.     McCann signed
      Smithwick’s plea bargain agreement on behalf of the
      Commonwealth.        Because McCann had not been on the
      Commonwealth’s witness list, defense counsel . . . objected and
      demanded an offer of proof, at which time counsel for the
      Commonwealth provided the following:

         MR. CAMERON:         Sure. He is simply going to say, as
         counsel well knows, that in conjunction with [the federal
         prosecutor] he spoke to [Smithwick]. Thereafter a plea
         agreement was drafted. Thereafter a written statement
         was given. Thereafter pursuant to the agreement he was
         arrested on third-degree murder. Thereafter he pled guilty
         to those charges. Thereafter he’s filling his agreement
         under the agreement. And that’s it.

      In response, defense counsel . . . renewed their objections on
      the grounds that the information contained in this offer of proof
      had already been provided to the jury during Smithwick’s
      testimony – and that the actual purpose of McCann’s testimony
      was to bolster Smithwick’s credibility.       Counsel for the
      Commonwealth then twice represented to the court that there
      would be no attempts to bolster Smithwick’s credibility:

         [COUNSEL FOR BOND]:       Yeah. I object to Mr. McCann
         saying anything about the [plea bargain] agreement. The
         agreement is in black and white. The agreement is what it
         is.  What counsel is trying to do now is bolster the

                                       -6-
J-A01038-16


       credibility of the witness saying, Oh, yeah, I heard his
       story. I believe him.

       [PROSECUTOR]:          He is not going to say that.

       [COUNSEL FOR BOND]         But that is the implication,
       Judge. The agreement is in black and white. It was
       explained to you by Mr. Smithwick. There is nothing Mr.
       McCann can add in addition to what has been already
       testified to. The only reason he is putting Mr. McCann on
       is to somehow give this an aura of credibility that I would
       object to.

       [PROSECUTOR]       He is not going to say anything
       about credibility.

     Based upon these representations, the trial court allowed
     McCann to testify.

     On the stand, after asking McCann relatively perfunctory
     questions about the terms of the plea bargain with Smithwick,
     counsel for the Commonwealth then asked a series of questions
     in direct contradiction to his prior representations to the trial
     court regarding the credibility of Smithwick:

       Q:         And the various things – and you’ve spoken with
            him, correct?

       A:          I have spoken to him on more than one occasion,
            yes.

       Q:        And has [sic] been corroborated in the
            things that he told you?

            [COUNSEL FOR JAWAYNE BROWN]:            Objection.

            THE COURT:        Sustained.

            BY THE PROSECUTOR:

       Q:        Do you make these kinds of deals out of the
            blue without corroboration?

            [COUNSEL FOR JAWAYNE BROWN]:            Objection.

            THE COURT:        Sustained.

            [COUNSEL FOR SMITH]:           We have a motion, Your
            Honor.

                                    -7-
J-A01038-16


                THE COURT:     Overruled for now. Go ahead.

          BY THE PROSECUTOR:

          Q:         Is this a common practice for you as chief of
                the homicide unit to make these kind of deals?

                [COUNSEL FOR JAWAYNE BROWN]              Objection.

                [COUNSEL FOR SMITH]         Objection.

                THE COURT:     Sustained.

                [PROSECUTOR]   I’ll handle it in my argument.

                [COUNSEL FOR SMITH]         Objection to comments.

                THE COURT:     That is sustained as well.       That is
                striken.

      The trial court then denied a motion for mistrial for prosecutorial
      misconduct asserted by defense counsel.

Commonwealth v. Brown, J., supra at 13-16 (citations omitted, emphasis

in original).

      With respect to this exchange, this Court noted:

      This questioning regarding corroboration constituted plainly
      improper and willful attempts by the prosecutor to bolster
      Smithwick’s credibility, despite his unambiguous representations
      to the trial court (in response to objections by defense counsel
      on this issue) in advance of McCann’s testimony to the contrary.
      As in [Commonwealth v.] Reed, [446 A.2d 311 (Pa. Super.
      1982)], the prosecutor’s inflammatory questions here insinuated
      the existence of facts in the prosecutor’s personal knowledge but
      not a part of the trial record (i.e., the results of a prior
      undisclosed investigation into Smithwick’s credibility).     The
      prosecutor’s clear intention here was to leave the jury with the
      strong impression that Smithwick, as a result of a prior
      investigation by McCann and/or the District Attorney’s Office,
      had the support of prosecuting authorities as a credible witness.
      There is no other reasonable inference to be drawn.

      That the trial court sustained the objections to the questions and
      thus precluded McCann from answering them is irrelevant.
      Improper questioning may form the basis of a claim of

                                      -8-
J-A01038-16


     prosecutorial misconduct, even where objections are sustained
     and thus the questions go unanswered. In Commonwealth v.
     Hoskins, 403 A.2d 521 (Pa. 1979), for instance, our Supreme
     Court granted a new trial because the prosecutor asked a
     question during cross-examination of the defendant implying
     that an important defense witness was involved in drug
     trafficking and the Muslim religion, even though these issues
     were not relevant to the case. Id. at 528. Although the
     objection to the question was sustained, our Supreme Court
     ruled that the trial court erred in not granting a mistrial, noting
     that “[s]uch inferences are clearly improper and inflammatory.”
     Id. Likewise, in Commonwealth v. Percell, 454 A.2d 542 (Pa.
     1982), our Supreme Court reached a similar decision when the
     prosecutor asked a defense witness several questions about
     witness tampering charges in an unrelated case, even though
     the trial court had ruled this evidence inadmissible.

                                     ...

     Not every instance of prosecutorial misconduct mandates the
     granting of a new trial. Commonwealth v. Montalvo, 986
     A.2d 84, 108 (Pa. 2009) cert. denied, 131 S.Ct. 127 (2010)
     (quoting Commonwealth v. Cooper, 941 A.2d 655, 668 (Pa.
     2007). Reversible error occurs when the unavoidable effect of
     the challenged comments would prejudice the jurors and form in
     their minds a fixed bias and hostility toward the defendant such
     that the jurors could not weigh the evidence and render a true
     verdict. Commonwealth v. Miller, 819 A.2d 504, 515 (Pa.
     2002), cert. denied, 540 U.S. 827 (2003) (quoting
     Commonwealth v. Simmons, 662 A.2d 621, 638-39 (Pa.
     1995), cert. denied, 516 U.S. 1128 (1996)).

                                   . . . ..

     In the present case, we must conclude that the prosecutor’s
     misconduct had serious consequences in unfairly influencing the
     jury and thus depriving Jawayne Brown and Bond of a fair trial.
     In particular, the Commonwealth’s case against Jawayne Brown
     and Bond depended heavily, and in certain respects solely, on
     the credibility of Smithwick’s testimony.       While Baker’s
     testimony provided evidence of the events occurring in her
     house on the morning of July 21, 2002, she was not in the Tahoe
     when Haughton was killed and thus she could not testify
     regarding the final sequence of events that resulted in

                                    -9-
J-A01038-16


     Haughton’s murder. In addition, the Commonwealth did not
     produce any forensic evidence placing Jawayne Brown, Bond or
     other co-defendants in the Tahoe, as none of the fingerprints
     inside matched the accused and no other trace evidence (e.g.,
     hair follicles, body fluids) was taken from the vehicle for
     analysis.

     In view of this evidence, Smithwick was a key witness for the
     Commonwealth, as his testimony provided the jury with a
     detailed explanation of the events taking place after Haughton
     was taken from Baker’s house, including what happened in the
     Tahoe. The Commonwealth’s case thus depended in substantial
     part on the credibility of Smithwick’s testimony.        When
     determining the extent of prejudicial effect on a jury, our
     Supreme Court has advised as follows:

        An accepted guide in determining prejudicial effect is that,
        if the remark may be said with fair assurance to have had
        but a slight effect upon the jury, if any at all, and one is
        not left in doubt that it had no substantial influence in the
        case, it will not vitiate the otherwise fair trial.

     Commonwealth v. Davis, 440 A.2d 1185, 1188 (Pa. 1981)
     (quoting Commonwealth v. Phillips, 132 A.2d 733, 736 (Pa.
     Super. 1957)). Given the importance of Smithwick’s credibility
     to the Commonwealth’s case, the prosecutor’s improper
     bolstering – by implying to the jury that an investigation by
     McCann (or other members of the Philadelphia District Attorney’s
     Office) had corroborated the veracity of Smithwick’s testimony –
     was prejudicial to the rights of [Appellees] to a fair trial. Put
     another way, under the Davis standard, on the facts presented
     in this case, we cannot conclude that the prosecutor’s conduct
     “had no substantial influence in the case.” Reed, 446 A.2d at
     316 (citing Davis 440 A.2d at 1188)).

Commonwealth v. Brown, J., supra, at 18-22.

     Accordingly, this Court found prosecutorial misconduct with respect to

bolstering the credibility of a Commonwealth witness.

     This Court then considered whether the Commonwealth engaged in

prosecutorial misconduct during closing argument.



                                   - 10 -
J-A01038-16


     At trial it was agreed that Smithwick would only testify to the murders

to which he pled guilty, namely those of Haughton and Anthony Harris. The

Commonwealth kept to this agreement during trial.

     During his closing argument, however, the prosecutor referenced
     Smithwick’s involvement in five additional murders.

        [PROSECUTOR]:        It’s not just about this case. They
           tried to say what is the point of Mr. McCann. Well, the
           point of Mr. McCann was he just didn’t give up this
           case. He helped solve seven murders that there was no
           evidence on. Seven murders. So I’ll give him that deal
           in a heartbeat. Particularly in this. If we can get those
           kinds of guys that did what they did to Rohan
           Haughton, and the way they tortured him.

     Defense counsel then moved for a mistrial. After an extended
     discussion at sidebar, the trial court denied the motion for a
     mistrial, at which time the following exchange occurred in the
     presence of the jury.

        THE COURT: Jurors, I am sustaining defense’s objections
          regarding that. There is no evidence on the record that
          indicates that Mr. Smithwick helped to solve seven
          unsolved murders. My recollection is that the testimony
          was that he did participate in the involvement of
          multiple other cases.      But there is no specific
          information regarding seven unsolved murders.

        [Prosecutor]: Multiple     as   opposed     to   seven.   My
           apologies.

           What did he gain by –

        [Counsel for Jawayne Brown]:         I would object.

        THE COURT: Let me just clarify. The evidence on the
          record does not indicate Mr. Smithwick’s involvement in
          the solving of seven unsolved murders. There is no
          evidence that says that.

        [Prosecutor]: As I said, I’ll withdraw the seven. He has
           helped with multiple cases was the word you heard
           from the judge.


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J-A01038-16


     The prosecutor’s conduct here was clearly improper, for at least
     two reasons. First, he argued facts dehors the trial record.
     While a prosecutor may comment on the credibility of a
     Commonwealth witness during a closing argument, he must base
     his arguments on evidence presented at trial or on inferences
     that reasonably derive from evidence presented at trial.
     Commonwealth v. Miller, 819 A.2d 504, 516 (Pa. 2002), cert.
     denied, 540 U.S. 827; Commonwealth v. Robinson, 864 A.2d
     460, 526 (Pa. 2004) (citing Commonwealth v. Miles, 681 A.2d
     1295, 1301 (Pa. 1996), cert. denied, 520 U.S. 1187 (1997)). In
     this case, the only evidence in the record regarding Smithwick
     playing any role in connection with cases other than the murders
     of Haughton and Anthony Harris was from ADA McCann, who
     testified that arrests were made in other cases as a result of
     information provided by Smithwick, and from Smithwick and
     Detective Bamberski, both of whom testified generally that the
     statement Smithwick provided subsequent to the signing of the
     plea agreement covered matters other than the Haughton
     murder. No evidence was presented at trial that (1) information
     provided by Smithwick had solved any murder case, and/or (2)
     that Smithwick had provided information in exactly seven cases
     (or in any other murder cases). The lack of evidence in this
     regard was largely the result of the trial court’s ruling (described
     above) precluding Smithwick from testifying about any cases
     other than the murders of Haughton and Anthony Harris – and
     for this reason should have been well known to the prosecutor.

     Second, the prosecutor’s assertion that the information provided
     by Smithwick helped to solve seven other murder cases
     constituted an obvious effort by the prosecutor to bolster
     Smithwick’s credibility.    From the prosecutor’s reference to
     “solving murder cases,” the jury could have reasonably inferred
     that the information provided by Smithwick had led not just to
     arrests, but also successful prosecutions resulting in convictions.
     Such an inference provides a strong implication that Smithwick’s
     testimony in murder cases is accurate and truthful, and that
     prior juries must have found him to be credible and believable.
     The record in this case, however, contains no evidence regarding
     the outcomes of any of Smithwick’s testimony in other cases
     (including whether or not anyone had been convicted based on
     his testimony). As a result, the prosecutor’s representation to
     the jury in this case that Smithwick helped to solve other murder
     cases constituted an effort to bolster Smithwick’s credibility
     without any basis in the record for doing so.


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J-A01038-16


Commonwealth v. Brown, J., supra, at 23-27.

     The Commonwealth’s first issue on appeal is whether the trial court

erred by barring retrial under Commonwealth v. Smith, 615 A.2d 321 (Pa.

1992). In Smith, the defendant was found guilty of three counts of first-

degree murder and was sentenced to death. On direct appeal, the Supreme

Court ordered a new trial due to the admission of impermissible hearsay by

associates of an alleged co-conspirator. Before retrial, Smith filed a motion

to preclude a new trial based on double jeopardy because he discovered that

the prosecution’s chief witness, who denied the existence of an agreement in

exchange for his testimony, did indeed receive favorable treatment from the

Commonwealth at sentencing. Smith also learned that the Commonwealth

intentionally failed to disclose evidence material to the defense’s case. The

trial court denied relief, and this Court affirmed on direct appeal.     Our

Supreme Court granted allowance of appeal, and reversed.          The Court

explained:

     Such misconduct, standing alone, would suffice to implicate the
     protection of the double jeopardy clause.           But further
     examination of the record established the bad faith of the
     prosecution beyond any possibility of doubt: Indeed, it would be
     hard to imagine more egregious prosecutorial tactics.

Id. at 323.   In setting forth the holding of the case, the Supreme Court

stated:

     We now hold 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.
                                   - 13 -
J-A01038-16


Id. at 325. Based on the Smith court’s reference to the egregiousness of

the prosecution’s misconduct, the Commonwealth argues that under Smith,

dismissal     on   double   jeopardy   grounds   is   only   required   where   the

Commonwealth intends to cause a mistrial or acts egregiously.                   The

Commonwealth asserts that in the instant matter, the prosecution did not

act egregiously, and, therefore the prohibition against double jeopardy is not

implicated.

      It is clear from the holding of Smith that egregiousness on the part of

the prosecution is not a requirement for the bar against retrial.                In

Commonwealth v. Martorano, 741 A.2d 1221 (Pa. 1999), the Superior

Court reversed both appellants’ convictions for first-degree murder due to

“pervasive prosecutorial misconduct, including blatantly disregarding the

trial court’s evidentiary rulings, disparaging the integrity of the trial court in

front of the jury, and repeatedly alluding to evidence that the prosecutor

knew did not exist.” Id. at 1222.

      On remand, Martorano and his co-defendant moved to dismiss based

on double jeopardy. The trial court denied the motion, but on appeal, this

Court reversed.       The Supreme Court granted allowance of appeal and

affirmed the dismissal, noting:

      While [the prosecution’s] misconduct does not involve
      concealment of evidence as in Smith, it nonetheless evinces the
      prosecutor’s intent to deprive Appellees of a fair trial; to ignore
      the bounds of legitimate advocacy; in short, to win a conviction
      by any means necessary.         This is precisely the kind of
      prosecutorial overreaching to which double jeopardy protection
      applies.

                                       - 14 -
J-A01038-16


Martorano, supra at 1223.

      Viewed together, Smith and Martorano stand for the proposition that

where the prosecution intentionally engages in misconduct to deprive a

defendant of a fair trial, double jeopardy attaches.

      The Commonwealth relies on several cases in which the appellate

courts have held that prosecutorial misconduct does not bar retrial.

However, these cases do not require us to reverse the trial court because

they do not involve the intentional misconduct that our Supreme Court

identified in Smith and Martorano.

      For example, the Commonwealth cites Commonwealth v. Burke,

781 A.2d 1136 (Pa. 2001), where the Supreme Court held that dismissal of

charges was not appropriate where the Commonwealth’s failure to provide

discovery materials to the defendant was not “prosecutorial misconduct” but

instead   “primarily    involve[d]      miscommunication     between    the   police

departments involved in the investigation and/or police mishandling of the

evidence.”   Id. at 1145.       Because there was no intentional misconduct in

Burke, the double jeopardy concerns in Smith were not present.

      Similarly, the Commonwealth points to Commonwealth v. Kearns,

70 A.3d 881 (Pa. Super. 2013), where this Court reversed the grant of

double jeopardy relief based on the prosecution withholding important

documents     that     should    have    been     provided   to   defense   counsel.

Significantly, this Court found that although the prosecution acted in a

grossly negligent manner, it did not act intentionally.


                                         - 15 -
J-A01038-16


      The Commonwealth’s reliance on Commonwealth v. Chmiel, 777

A.2d 459 (Pa. Super. 2001), is also misplaced. Although this Court noted

that the prosecutor engaged in misconduct, it found that “Chmiel failed to

establish the higher standard of intentional prosecutorial misconduct

designed to deprive Chmiel of a fair trial or to subvert the truth determining

process in order for the double jeopardy clause to be implicated and retrial

barred.” Id. at 466.

      Likewise, in Commonwealth v. Moose, 623 A.2d 831 (Pa. Super.

1993), this Court affirmed the denial of a motion for dismissal where the

prosecutor committed misconduct by refusing to            provide a witness’

statement to the defense until the first day of trial. Nevertheless, this Court

found “this was not a case where the evidence and misconduct at trial show

a clear, calculated orchestration by the prosecution to deny Moose a fair

trial.” Id. at 837.

      The issue before the trial court in the instant matter was not whether

the actions of the Commonwealth prejudiced Appellees. That question was

squarely answered in the affirmative by this Court when it reversed the

judgments of sentence and remanded for a new trial. Rather, the relevant

inquiry is whether the Commonwealth intentionally prejudiced Appellees to

the point of denying them a fair trial. Smith, supra.

      In support of its claim that the questioning of ADA McCann was not

undertaken to deprive Appellees of a fair trial, the Commonwealth asserts

that it was “intended to respond to Jawayne’s erroneous and misleading


                                    - 16 -
J-A01038-16


arguments in his opening statement that the Commonwealth gullibly

believed    Smithwick   without    independently   investigating    his    claims.”

Commonwealth’s Brief, at 22. At no point during the offer of proof before

McCann’s testimony did the Commonwealth state that it was going to ask

McCann whether he had corroborated Smithwick’s testimony. Nevertheless,

the Commonwealth asked the following questions: “Has [Smithwick] been

corroborated in the things that he told you?” N.T. 7/18/06, at 139. “Do you

make these kind of deals out of the blue without corroboration?”           Id. “Is

this a common practice for you as chief of the homicide unit to make these

kinds of deals?” Id. The court sustained objections to the three questions.

         If the Commonwealth had corroborating evidence, it could have

presented it to the jury.   Instead, through its questioning of McCann, the

Commonwealth      suggested   to   the   jury   that   evidence    not    before   it

corroborated Smithwick’s testimony.      This constituted improper bolstering.

See Commonwealth v. Reed, 311 A.2d 314 (Pa. Super. 1982) (“vouching

[occurs] when the prosecution indicates that information that is not before

the jury supports the witness’s testimony.”). As noted by Appellee Jawayne

Brown, “[b]y intentionally seeking to introduce information that had not

been presented to the jury through admissible evidence, the prosecutor

sought to circumvent the trial process and prejudice the Appellee in the eyes

of the jury, to the point of denying him a fair trial.” Brief of Jawayne Brown,

at 20.




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      On direct appeal, this Court also granted a new trial based on the

following remark during the Commonwealth’s closing argument:

          [PROSECUTOR]:        It’s not just about this case. They
             tried to say what is the point of Mr. McCann. Well, the
             point of Mr. McCann was he just didn’t give up this
             case. He helped solve seven murders that there was no
             evidence on. Seven murders. So I’ll give him that deal
             in a heartbeat. Particularly in this. If we can get those
             kinds of guys that did what they did to Rohan
             Haughton, and the way they tortured him.

N.T. Trial, 7/25/06, at 62.

      The Commonwealth argues that this remark “failed to cause improper

prejudice,” Commonwealth’s Brief, at 27, and that “the prosecutor’s intent

was to correct defense misrepresentations about the Commonwealth’s case,

not undermine defendants’ right to a fair trial.” Id. at 23. The record belies

these assertions.

      Prior to Smithwick’s testimony, the prosecutor understood that he was

to limit the testimony to the two murders to which Smithwick had pled

guilty.   N.T. Trial, 7/18/06, at 22-23.      Accordingly, when the prosecutor

made his closing statement, he was aware that the five additional murders

were outside the scope of the evidence.

      Furthermore, although McCann testified that Smithwick “provided

information” and “testified in other cases,” id. at 138-39, the prosecutor

argued that Smithwick “helped solve” seven murders. On direct appeal, this

Court found this statement “an obvious effort by the prosecutor to bolster

Smithwick’s credibility.” Commonwealth v. Brown, J., supra at 26.



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      When the trial court first admonished the prosecutor for trying to use

ADA McCann to bolster Smithwick’s credibility, the prosecutor responded.

“I’ll handle it in my argument.” N.T. Trial, 7/18/06, at 140. We agree with

Judge Lerner, who noted “[the prosecutor] tried to make good on that

promise despite knowing that what he was doing was improper and despite

having already been warned by the trial judge about improper attempts to

bolster his witness’s credibility.” Trial Court Opinion, 2/6/15, at 18.

      The trial court properly applied the standard set forth in Smith and

Martorano when it concluded that the Commonwealth’s attempt to “pollute

the jury with inadmissible, prejudicial statements . . . demonstrates a

willingness to deny the defendants their fundamental right to have their

cases decided solely on the basis of the evidence presented and the

applicable law.” Id.

      Accordingly, we conclude that the trial court did not err in finding that

the Commonwealth intentionally prejudiced Appellees to the point of denying

them a fair trial, thus precluding retrial under Smith and Martorano.

      The Commonwealth next argues that the trial court erred in concluding

that it was required to bar retrial due to statements in this Court’s prior

panel opinion.   We disagree.     The Commonwealth notes that in its Rule

1925(a) opinion, the trial court stated:

      Unfortunately, the Superior Court, on direct review of the
      convictions in these cases, has already determined that the
      prosecutorial misconduct which polluted this trial did, in fact,
      sink to the Smith and Martorano levels, a conclusion with
      which this court, after reviewing the trial court record, is
      compelled to agree.
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Trial Court Opinion, 2/6/15, at 13.

      We note that the trial court specifically stated that it conducted its own

review of the record when determining whether the prosecutorial misconduct

in this case barred retrial under Smith and Martorano.                See also Trial

Court Opinion, 2/6/15/ at 3 (“On October 8, 2014, after reviewing the trial

record and considering the arguments and pleadings of all counsel, this court

granted [A]ppellees’ Motions to Bar Retrial.”) (emphasis added).             The trial

court would not have engaged in an independent analysis if it had believed

that this Court’s prior decision required it to bar retrial.

      The   Commonwealth       also   draws    our   attention   to    the   following

statement from the trial court opinion:

      The Superior Court ultimately went on to find that the
      prosecutorial misconduct “was highly prejudicial” to the
      defendants and “when considered in the context of the
      atmosphere of the trial as a whole, constituted deliberate
      attempts to destroy the objectivity of the jury and prevent the
      jury from rendering a true verdict.” Superior Court Opinion, p.
      29. (emphasis added).      This finding as to the prosecutor’s
      motive and intent – twice repeated in the Opinion at pp. 9 and
      29 – clearly brings this case within the Smith-Martorano
      double jeopardy boundaries and distinguishes it from those
      cases in which even intentional prosecutorial misconduct was not
      deemed sufficiently egregious to bar a retrial.

Trial Court Opinion, 2/6/15, at 18.

      Here, the trial court merely sets forth the earlier findings of this Court

that the Commonwealth engaged in acts that prejudiced Appellees. It was

the trial court alone that reached the independent conclusion that these acts

met the requirements for dismissal under Smith and Martorano.




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      This position is supported by the following exchange between the

prosecutor and the court at the hearing on the motions to bar retrial:

      Commonwealth: I am saying that the claim, as I understand it
      here, is that everything that’s in the Superior Court decision
      somehow mirrors Jay Smith and that the Court is bound by that
      –

      The Court:        No, it doesn’t.

      Commonwealth: -- and that somehow that is what is barring
      retrial.

      The Court:         I am not saying it bars retrial. What I am
      saying is, the opinion conclusively finds, makes a finding about
      what the Commonwealth’s attorney was doing in this case when
      he engaged in the misconduct which the Superior Court said was
      sufficient to grant a new trial. Of course, the Superior Court
      wasn’t commenting in its opinion on the issue of retrial that
      wasn’t before them. The double jeopardy motion wouldn’t be
      filed until the case came back here and the Commonwealth was
      seeking to retry the defendants.

N.T. Oral Argument, 10/9/14, at 11-12.

      Based on our review of the record, we conclude that the trial court

independently decided the      double     jeopardy issue.   Accordingly,   the

Commonwealth is not entitled to relief on this issue.

      The Commonwealth next argues that the trial court erred by not

transferring this matter to the judge who presided over Appellees’ trial. In

Commonwealth v. Buffington, 44 A.2d 1194 (Pa. Super. 1982), this Court

noted that when determining the motives of the prosecutor, the trial judge is

in a better position to decide the question than a court examining a dry

record.   See also Commonwealth v. Wright, 255 A.2d 651 (Pa. 1970).




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However, there are significant procedural differences between Buffington,

Wright and the instant matter.

        In Buffington and Wright, the trial court granted the defendants’

motions for mistrial. Then, prior to appellate review, the same court denied

the motions to bar retrial based on double jeopardy.         In neither case had

there    been    an   intervening   appellate   decision     holding   that   the

Commonwealth’s actions “constituted deliberate attempts to destroy the

objectivity of the jury and prevent the jury from rendering a true verdict.”

Commonwealth v. Brown, J. et al, supra at 9. Moreover, both Wright

and Buffington provide that a transfer is not necessary when the

prosecutor’s intent is clear from the record. Here, Judge Lerner found that

the prosecutor intentionally had undertaken to prejudice the defendant to

the point of the denial of a fair trial. See Smith, supra.

        Furthermore, Local Rule 605 of the Criminal Division of the Court of

Common Pleas of Philadelphia County provides in relevant part, “All Pretrial

Motions applicable to cases in the . . . Homicide Program will be scheduled

by the applicable Calendar Judge and heard by the Motions Court Judge

assigned to that Program.” Phila. Co. Crim. Div. Rule 605. Because Judge

Lerner was the assigned Judge, transferring the matter to the judge who

presided over the trial would have been a violation of Local Rule 605.

        Accordingly, there is no merit to the Commonwealth’s position that

Judge Lerner erred by not transferring the matter to Judge Woods-Skipper.




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      In its final issue, the Commonwealth seeks to relitigate whether the

prosecutor committed misconduct.

      This Court already decided the issue on direct appeal from the

judgments of sentence. The Commonwealth then sought reargument in this

Court and allowance of appeal in our Supreme Court, both of which were

denied.

      The law of the case doctrine provides, in pertinent part, that
      “upon a second appeal, an appellate court may not alter the
      resolution of a legal question previously decided by the same
      appellate court. . . .” Commonwealth v. Starr, 664 A.2d 1236,
      1331 (Pa. 1995). We may not depart from the law of the case
      doctrine unless confronted with exceptional circumstances, such
      as “where the prior holding was clearly erroneous and would
      create a manifest injustice if followed.” Id. at 1332.

      Commonwealth v. Yarris, 731 A.2d 581, 586 (Pa. 1999). In light of

the thorough analysis of the prior panel of this Court with respect to

prosecutorial misconduct, see Brown, J., supra; Commonwealth v.

Brown, R., supra, the Commonwealth has failed to establish that it is

entitled to the exceptional remedy of a departure from the law of the case

doctrine.

      For all of these reasons, we conclude that the trial court did not err

when it concluded that double jeopardy bars the retrial of Appellees.

      Orders affirmed.

      OTT, J., joins the memorandum.

      STEVENS, P.J.E., files a dissenting memorandum.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/6/2016




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