J-S31004-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 VANCE LEON HASKELL                       :
                                          :
                    Appellant             :   No. 952 WDA 2018

               Appeal from the Order Entered June 21, 2018
  In the Court of Common Pleas of Erie County Criminal Division at No(s):
                         CP-25-CR-0000731-1998


BEFORE: OLSON, J., STABILE, J., and McLAUGHLIN, J.

MEMORANDUM BY OLSON, J.:                       FILED SEPTEMBER 13, 2019

      Appellant, Vance Leon Haskell, appeals from the order entered on June

21, 2018, which denied his Motion to Dismiss Prosecution on Grounds of

Double Jeopardy. We affirm.

      In 1998, Appellant was convicted in the Erie County Court of Common

Pleas of a number of crimes, including first-degree murder; he was sentenced

to serve a term of life in prison. On August 1, 2017, the United States Court

of Appeals for the Third Circuit granted Appellant’s habeas corpus petition,

thus resulting in the vacation of Appellant’s judgment of sentence.      See

Haskell v. Superintendent Greene SCI, 866 F.3d 139 (3rd Cir. 2017). In

granting Appellant’s habeas petition, the Third Circuit ruled:

        [During Appellant’s trial, an eyewitness named Antoinette
        Blue (hereinafter “Blue”)] [] provide[d] consistent testimony
        claiming she could identify [Appellant as the] shooter. What's
        more, she claimed to expect nothing in return from the
J-S31004-19


         Commonwealth in exchange for her testimony. But this last
         claim was untrue. Both Blue and the prosecutor knew that
         she expected to receive help in her own pending criminal
         matters in exchange for her testimony. The prosecutor failed
         to correct Blue's statement; he even went on to rely on it and
         vouch for Blue in his closing argument.

Id. at 140.

       The Third Circuit held that the prosecutor committed misconduct and

that Appellant was entitled to habeas relief because the prosecutor “knew

Blue’s testimony was false and failed to correct it” and there was “a reasonable

likelihood that Blue’s false testimony could have affected the judgment of the

jury.” Id. at 146 and 152.

       The Commonwealth elected to retry Appellant and the trial court initially

scheduled jury selection for March 16, 2018. See Trial Court Order, 2/14/18,

at 1. Prior to trial, however, Appellant filed a Motion to Dismiss Prosecution

on Grounds of Double Jeopardy (hereinafter “Double Jeopardy Motion”), where

Appellant claimed that the trial court should dismiss all charges against him,

as the double jeopardy clauses of the United States and Pennsylvania

Constitutions prevent the Commonwealth from retrying him on the charges.

See Appellant’s Double Jeopardy Motion, 3/12/18, at ¶¶ 1-31.

       On May 25, 2018, the trial court heard argument on Appellant’s Double

Jeopardy Motion and, on June 21, 2018, the trial court denied the motion.1
____________________________________________


1The trial court expressly concluded that Appellant’s Double Jeopardy Motion
was not frivolous.     Trial Court Supplemental Opinion, 7/18/19, at 7.
Therefore, the trial court’s June 21, 2018 order, which denied Appellant’s
motion to dismiss on double jeopardy grounds, is appealable as a collateral



                                           -2-
J-S31004-19



Trial Court Order, 6/21/18, at 1-2.                 As the trial court explained, it denied

Appellant’s motion because it found, as a fact, that the prosecutor did not

“engage[] in pervasive, incessant, or outrageous conduct [and he did not]

intentionally undert[ake] to prejudice [Appellant] to the point of denying him

a     fair   trial.”2         Trial   Court   Opinion,   8/30/18,    at   27-28;     see    also

Commonwealth v. Smith, 615 A.2d 321, 325 (Pa. 1992) (holding that the

double jeopardy clause of the Pennsylvania Constitution “prohibits retrial of a

defendant . . . when the conduct of the prosecutor is intentionally undertaken

to     prejudice        the     defendant     and   thereby   deny    him    a     fair   trial”);

Commonwealth v. Chmiel, 777 A.2d 459, 464 (Pa. Super. 2001) (“Smith

did not create a per se bar to retrial in all cases of intentional prosecutorial

overreaching.            Rather, the Smith Court primarily was concerned with
____________________________________________


order. Pa.R.A.P. 313; Pa.R.A.P. 313 note (“[e]xamples of collateral orders
include orders denying pre-trial motions to dismiss based on double jeopardy
in which the court does not find the motion frivolous”); Pa.R.Crim.P. 587(B).

2 As the trial court explained, during discovery, the prosecutor “fully disclosed
to defense counsel [] the exact parameters of the Commonwealth’s effort to
effect leniency for [Blue on her pending criminal charges and] . . . Blue’s
criminal history.” Trial Court Opinion, 8/30/18, at 27. Thus, the trial court
held:

             The failure to correct Blue’s inaccurate testimony about
             expectations for leniency in [her pending criminal charges] .
             . . while certainly of significant concern, does not, in the
             absence of other evidence, rise to the level of the kind of
             pervasive intentional misconduct from which an intention to
             deprive [Appellant] of his right to a fair trial can be [found].

Id.


                                                 -3-
J-S31004-19



prosecution tactics, which actually were designed to demean or subvert the

truth seeking process.    The Smith standard precludes retrial where the

prosecutor’s conduct evidences intent to so prejudice the defendant as to deny

him a fair trial”) (quotations and citations omitted); Commonwealth v.

Basemore, 875 A.2d 350, 356 (Pa. Super. 2005) (holding that “grossly

negligent or reckless conduct by a prosecutor” does not implicate double

jeopardy concerns).

      On July 2, 2018, Appellant filed a notice of appeal from the June 21,

2018 order. Appellant raises one claim on appeal:

        Whether the trial court erred in denying [Appellant’s] motion
        to dismiss based upon grounds of double jeopardy, when
        [Appellant’s] conviction was vacated when the Third Circuit
        Court of Appeals granted [Appellant’s] habeas petition on the
        grounds of intentional prosecutorial misconduct, and the
        prosecution knowingly used perjured testimony at trial[?]

Appellant’s Brief at 4.

      We have reviewed the briefs of the parties, the relevant law, the certified

record, the notes of testimony, and the opinions of the able trial court judge,

the Honorable John A. Bozza. We conclude that Appellant is not entitled to

relief in this case and that Judge Bozza’s August 30, 2018 and July 18, 2019

opinions meticulously and accurately dispose of Appellant’s issues on appeal.

Therefore, we affirm on the basis of Judge Bozza’s thorough opinions and

adopt them as our own.      In any future filing with this or any other court

addressing this ruling, the filing party shall attach a copy of Judge Bozza’s

August 30, 2018 and July 18, 2019 opinions.


                                      -4-
J-S31004-19



     Order affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/13/2019




                                   -5-
                                                                                                                                           Circulated 08/21/2019 02:51 PM




                                  COMMONWEAL
                                     .  . . . . TH
                                                 .
                                                 . OF PENNSYLVANIA
                                                       . . .. . .·                     :';
                                                                                                                       IN THE COURT OF COMMON PLEAS
                                                                                                   e .:
                                                                                                 ,:..:,.l·�   l   L:: ·l,.., t OF ERlBCOUNTY
                                                                                                                                    · ·. ··  ' .PENNSYLVANIA
                                                                                                                                                  · ·· · · · · ·
                                                                   v,                                                  CRIMINAL DIVISION


                                  V ANCEllASKELL,                                                                      NO. 731-1998
                                                     Defendant



                                                                         SUPPLEMENTAL 1925 (a) OPINION

                                  Bozza,
                                   .     John A.,. S.J.,.

                                                     Pursuant to the Superior Court's directive and. in compliance with the requirements of
                                  Pennsylvania Rufo ofCriminalProcedure 58.7(8), this. Courtsets forth beiowFindings ofFact.
                                  and Conclusions of Law regarding its denialof the Defendant's Motion to DismissProsecution
                                  Oi1    Grounds of Double Jeopardy and specifically finds that the Motion was not frivolous.

                                  Findings of Fact

                                                1. At approximately 1 :27 a.m. on December I 0, 1.994, Darrell Cooley was shot nine to
                                                    eleven times by an. Uzi-type .gun at close range at an eastside Erie bar, Jethroe's
                                                    Steakhouse. Cooley died ofhis wounds.
                                                2. Although the bar held over 100 patrons, few-witnesses came forth to identify the·
                                                    shooter:
                                                " After a lengthy investigation, Vance.Haskellwascharged with.murder of Darrell
                                                .).

                                                     Cooley.
                                                                                                                                  of
                                             4. At the conclusion of the trial, Vance Haskell was fourid guilty first-degreemurder,
                                                 possessing instrument ofcrime, aggravated assault, arid reckless endangerment.
                                             5. On November lO, 1998, he was sentenced to a term of fife imprisonment., He took a
                                                 direct appeal.
                                             6. .The Pennsylvania Superior Court affirmed his judgment of sentence on August 23,
                                                  1999.               .
                                            ·1. The Defendant filed several PORA petitions; all of which were denied at the trial level
                                                 and on appeal. Haskell's third PCRA Petition, filed on April 30, 2()12, raised the same
                                                 issue ofprosecutorial misconduct that is nowbefore.the court.
                                             8. On May 1. 20.12., the trial court denied .PCRA relief since the petition was untimely.




                                                                                             1




....................-   .....,,             .... -.. -·-·-·--·-·----·-·----·-.. ·---·-----·----
                                        ,_,,,
       9.. Haskell then filed a petition for habeas corpus relief with the United States District
            Court forthe · Western District of Pennsylvania. United States Magistrate Judge; Susan
            Paradise Baxter) denied Haskell's habeas petition.
       10. The Third Circuit Court of Appeals reversed the Western District Cot111 and granted
            Haskell's habeas petition.
       1 l. The Third Circuit found that witness Antoinette Blue provided perjured testimony which
            the District Attorney failed to correct, and also found that her testimony couldhave
            affected the judgment.ofthejury. Haskell, 866 F.3d 139, 150� 152.
       12. Specifically, the Third Circuit found that: (1) Blue lied about her criminalrecord and
            about whether she hoped to. benefit in her own pending criminal proceedings in
             exchange for testifying, and (2) DistrictAttorney Hayes failed to correct that lie and, in
             fact, bolstered
                     .
                              it in. his dosing statement.
       13. Haskell is currently awaiting re-trial before the Erie County Court of Common Pleas.
       i4. On March 12, 2018, he filed.a Motion to Dismiss Prosecution on GroundsofDouble
             Jeopardy based on the Third Circuit's finding of prosecutorial misconduct during his
             jury trial.                 .
       15; This Court denied Haskell's motion because of the legal standards that: (1) neither
             negligent nor reckless prosecutorial misconduct, by themselves, implicate. double
            jeopardy concerns, Commonwealth ,;: Basemore, 875 A.2d '.350, 356 (Pa. super. 2005)
             and (2) the record did not support a finding of pervasive; incessant, or outrageous
             conduct on the part of the.prosecution-as per Basemore (Id. p. 354,ieealso Statev.
             Breit, 9.30 P.2d 792,. 804 (NMSC 1996);.
       16. The trial court record has not been supplemented by additional testimony or other
             evidence concerning the conduct of the prosecution during the course of the criminal
             proceedings.
       17. At trial the prosecution presented four witnesses that, to varying degrees) identified.
             Haskell as the. perpetrator and two mote that placed Haskell with the same type of
             murder weapon atdifferenttimes prior to the shooting.
       18. Roseanna Wayne, testified She was in the bar approximately ten feet away from the
             shooter. She identified Haskeli in court as someone .who "look] ed] like;' the shooter.
             However, she also testified thatshe was not sure she could make a: valid identification.
             (Trial Transcript; September 28, 1998, Day 2, pp, 58-59,)
       19 .. Dort heel Roberts was also a patron of the bar that day. She testified at trial that she was
             within feet of the shooter. (Tr. Day 2, p. I 7.8). $he recalled hearing approximately 12
             shots; (Tr., Day 2, p. 183) .. In the courtroom, Roberts identified V ance Haskell as the
             shooter. (Tr,,. Day2, p. 184}.
       20.. Robert's credibility was challenged on cross examination when it was shown that she
             told police shortly afterthe shooting that she did not know who the shooter was. (Tr.,
             Day 21 p. 189�190). She also admittedthat she was in jailawaiting trial on simple assault
             charges, (Tr., Day 2, p, 193).

                                                    .2




· --··-- ---·-----------------------------------------
                                     ·-----·--·--w-·•--------·--·-. -··-·--··--•·--·-·---------·-·
21. Curtis Mathis provided a video-taped statement to police on March 7; 1997 i identifying
    Haskell. as the· shooter.
22; Mathis had smoked marijuana in Jethroe's parking lot with Haskell and witness,
    Antoinette Blue.ishortly before the shooting. (Tr: Day 3, p. 93--107).
23. Although.attriaf Mathis recanted his prior identification of Haskell, the prosecution was
    able to play his video-taped statement for the jury, (Tr. DaY. 3, p.94).
24. Another witness, Darrell Gamble; testified that he saw Haskell.and Mathis run out the
    back or the bar after the shooting. (Tr. Day 3, p. 125). However, his credibilitywas
    compronriscd during cross examination when he admitted he had formerly identified
    another person as having run out the.back door.rather than Haskell. (Tr. Day\ p.134).
 25. Nicole Thompson testified that she had seen. Haskel] at a residence four days before the
     shooting at Jethroe.s. Haskell had had a gun similar to the weapon proffered attrial as
     the murder weapon. (Tr. Day 3, p. 155.:157). Kenneth Henderson also testified that he
     had seen Haskell with the subject firearm on several occasions prior to the shooting. (1\.
     Day 4, PP: 20-25).
 26: Antoinette Blue was also a key witness. It is her.testimony that was the primary focus of
     the habeas claim and the central issue here.
 27. She testified that she had. metHaskell approximately two weeks before the shooting. (Tr;
     Day 2� p. 216.). 011 the night of the incident, she was smoking a marijuana "blunt" with
     him and others in the bar parking lot (Tr. Day 2, p. 215.:2} 6). She testified that Haskell
     came into the bar sometime after she did. H¢ then pulled 01,.1.t a gun and started shooting.
     (Tr. Day 2, p. 205):
 28. Blue did not identify Haskell as the shooter until three yews later when she was in Erie
     Co1111ty jail. .(Tr. Day 2, p. 227) .
.29. At trial, John Moore, the Defendant's attorney attempted to challenge Blue's credibility
     on the. basis of her prior then 'convictions and her interest In receiving favorable
     treatment from the prosecution 'in exchange for her cooperation,
30. At the time of trial, Blue had been convicted of one tlieft related. offense, a Criminal
     Attempt charge from 1997. Her thirty month.probation sentence on that.charge had not
     begun to nin. She also had an ARD disposition for Retail theft in 1994, for which.she
     appears to have completed a probationary period in 1995;
 3 L. According to court documents.jn the time of trial she was on parole for disorderly
     conduot and resisting arrestto be.followed by a probation sentence for the criminal
     attempt conviction.
 32. ht addition she had pending retail theft and related charges in Mercer County from
     which. she was released on bail posted by a professional bondsman.
 33. She testified that she .got.in contact with an Eric County detective earlier that year when
     she. was in jail.ondisorderly conduct charges and offered to help in their investigation of
     Defendant. Gross examination revealed that Blue was sent from the Erie County Prison



                                             3




                                ·---·--·-----------·--·-·-···-----·
                                                                                      :�
                                                                                         •,




                         to a rehabilitation program and then was paroled several months before the Haskell trial.
                       She rioted that she had been.injail before.
                   34. Her testimony did not provide a complete picture of either her prior criminal history or
                       herinterestin receiving favorable treatment on pending charges as a result ofher
                       cooperation with the prosecution. She testifiedthat she was on probation and had
                       previously been convicted oftheft a long time ago and was on probation for retail theft
                       '\ .. back in.the day". (Trial Tr. Day 2> p. 226).
                   35. She did not mention that she had been injail in Erie County on a detainer warrant for a
                       parole violation and a bench warrant for failure to appear at sentencing in another case in
                       Erie County.
                   36. Blue, adamantly denied expecting to get out of jail or expecting. to "get something" out
                       of testifying; (Tr. Day 2, p. 227, 23 l) ..
                   37. It Ts apparent from the record of the trial that the relevant examination of Ms. Blue" s
                       testimony was not presented 'in a methodical and coherent manner.
                   38. Ms. Blue's answers were often not cleat and precise.
                   39. The factual setting regarding Blue's prior record, her expectation ofleniency and
                       the. prosecutor' s response· are as follows:

                         a, January 10, 19.94 Blue Sentenced on Retail Theft (Ede County Docket s 1510-
                            1993)
                               • Blue is accepted into the. ARD program (no guilty plea).
                               " Probation for 12 months ..

                         b; November 15, 1996 Sentenced on Disorderly Conduct.and ResistingArrest (Erie
                             County Docket #733,.1996)                                           ·
                            •   Disorderly Conduct Sentence: 1 to 11 months' incarceration.
                            •   Resisting Arrest Sentence: 2 years' probation, consecutive to above.

                         c. July 3, 1996. Charged with   Fout Theft Related Counts (#1514-1996}.
                         d, December 9., 199.6 Paroled on disorderly conduct charge (#733-1996).

                         e.. January 8, 1997 Enters a Negotiated Guilty Plea toCount I (out of four counts),
                             Criminal Attempt (theft)(#l514-1996).

                         f. February 18� i997Blue Fails to Appear for Sentencing (#1514-1996).

                         g. February 21, 1997 Bench Warrant Issued for Failure to Appearat Sentencing
                            (#15l4-1996) .

                         .h. March 7, l 997Non-Omitfas (Probation/Parole Absconder) Warrant Issued (#733- ·
                             ]'996).
                          1. February 9, 1.998 Blue Arrestedin Mercer County on Retail Theft based charges
                                  a
                             after shoplifting spree (Mercer County Docket #334-1998).

                                                                 4




    ---···--·----------------------------'"'-----------..:.---
_    _   -   .-,   - -·---..----·----·-···-·-····--·-----..------------------··---
                    ..                                                                                            ·--·--   ,   _......   ...
                      j.        February 19, 1998 Bond posted, by Professional Bondsman on MercerCounty
                                charges.

                      k. February_, 1998BlueTransported to-Eric County Jail Per Outstanding. Bench
                                Warrant (#1514..:J 996) and Non-Omittas Warrant for violation of her parole and
                                probation for disorderly conduct and resisting. arrest (#733-1996)

                      I.        February - March 1998 While in Erie County Jail on Erie Warrants; Blue contacts
                                Erie Police Departmentto let them know she could identify person who shot Cooley

                      rn. March 18;. 1998 Blue testifies against Haskell at Preliminary Hearing. Cross
                          examined by Haskell's attorney for the first time.                   ·

                      n. March. 20� 1998 Blue's paroleand probation at #733-1996 Revoked (Disorderly
                         Conduct and Resisting An-est),                                             ,
                            • Resentenced on Disorderly Conduct: l-Ll months' incarceration
                            • Resentenced on Resisting Arrest: 3-12 months' Erie County Jail, concurrent.

                      o. March 20� 1998 Sentenced oh Criminal Attempt(theft) # 1514-1996 (based on plea
                                one year ago prior to absconding) to JO months' probation, consecutive to #733-
                                1996.                 .                           .

                      p. March _, 1998 - June 15, 1998 Blue Sent to White Deer Run Rehabilitation
                                Program (#713-199t5).             ·

                      q. March 31, 1998 Attorney lYlcCon.nell assigned as Blue's counsel in Mercer County.

                      r .. April 22, 1998 Blue;s Meteer counsel..Attorney.Mctlonnell, sendsnoteto Mercer
                                County D.J\. JimEpstein, Esq., notingthat Detective Skindcll had reported to
                                Mercer County b.A,s office that Blue was.helping them in the Haskell prosecution.
                                Complains that Mercer County ADA Farrone "is not wiUjng. to offer her [Blue]
                                anything less than pleas to single counts of retail theft, unsworn falsification and.I
                                believe receiving stolen property." He notes this was the same plea offered Blue at
                                Blue's Preliminary Hearing, prior to her testimony in the Haskell case;

                      s,        April 30, 1998 Hayes sends Discovery Letter Sentto Attorney Moore (Haskell's
                                Attorney) describing Blue's Meteer charges and the prosecution's efforts to assist
                                Blue .in Mercer by making. the Mercer sentencing judge aware ofher cooperation.
                                Also provided copy of'Blue's criminal. record.

                      t.        May 27, 1998 Suppression Hearing.

                      u .. June 15, 1998 Order ofParole (Erie County #733-1996, Disorderly Conduct).

                       v. September 1998 Blue Testifies for Prosecution in Haskell Trial.

                                                                          5



 .....   ·--·----------------------------------
-···---·--   ,   _,
                 ,.    .. ..•. _ _, ..
                           ,,     ,   ,   ,,   , -,       ,   ,       ,   _
         w. November 3, 1998 Blue Enters.Guilty Plea to Two of Mercer County Charges
             (Mercer #334-199.8):
                 •   Retail Theft.
                 •   Unsworn Falsification.

          x. December 9; 1998 Erie County D.A Hayes writes to Mercer County and.advises
             sentencing Judge of Blue's cooperation. Also notes he did not previously promise
             .13.Iue any assistance, except to write this letter. Unknown when Hayes told Blue he
             would writethe letter.

          y. December 9, 1998 Blue Sentenced to Retail Theft andUnsworn Falsification.T-a
             years' incarceration, sentence suspended. Probation for 18 months, consecutive to
              existing sentences, plus costs.    ·

         Conclusions of Law

      4Q: The double jeopardy clause ofthe Pennsylvania Constitution prohibits re-trial of a
          defendant when the conduct of'rhe 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).
      41. Negligent orreckless prosecutorial misconduct does not implicate double jeopardy
          concerns. 'Commonweahlt i1. Basemore, 875 A.2d 350., 356(Pa. super. 2005).
      42, Doublejeopardy hats retrial of the defendant where the prosecutor engagesin.
          "pervasive, incessant, and outrageous" conduct. Basemore, 875 A;2d afJ54. See State
          v, Breit, 930 P .2d 792, 804 (NMSC 1996).
      43. In order to. raise double jeopardyimplications, prosecutorial misconduct must he
         deliberate, undertaken in: bad faith, and with a specific intent to deny the. defendant a fair
          trial.
      44. The remedy of discharge Without a fair and complete fact-finding procedure . "is extreme
          and will norbeinvoked absent deliberate bad faith prosecutorial
          misconduct." Cotnmonwealih v. Santiago, 654 A.2d 1062, 1085 (Pa. Super. 1994).
      45.. The applicable 'standard for the grant of a federal habeas corpus petition, as found by
            the Third Circuit in Haskell, is a determination that the state hadknowingly presented or
           knowingly failed tocorrect perjured testimony which results in a reasonable. likelihood
           that the perjured. testimony affected the judgment of the. jury .. Haskell; 866 F.3d at 152.
      46;. This. standard differs from the. standard for the grant of.a double jeopardy petition, which
            requires a determination not orily thatthere was perjured testimony which may have
            affected the jury, but also that the prosecutorial misconduct was deliberate, undertaken
           .in bad faith and with. a specific intent to deny the defendant.a fair trial, Strong, 825 A2d
           at..669-670 .. The conduct ofprosecution must also be pervasive, incessant, or outrageous
            (see above). Thus, there is a significantly higher bar for the grant of a double jeopardy
            motion.




-··-··-··-----------------------------,----------------
    47. Upon a review of the. facts, we do not find that prosecutor Hayes engaged in pervasive,
        incessant, or outrageous conduct, nor do. we find that .he. intentionally undertook to.
        prejudice the defendant to the point ofdenying him a fair trial.
    48. However, this Court does not. consider the Motion of the Defendant to Dismiss
        Prosecution.on Grounds of Double Jeopardy to have been frivolous, as the prosecution
        should have corrected the false testimony of Prosecution witness Antoinette Blue.

      This Court's legal analysis and conclusions are more fully set forth in its original l92S(a)
    Opinion.




                                                           BY THE COURT:

                                                       � 11                   13�
                                                    (J SENIORJ�DGE.             (J •

                                                           JohnA. Bozza, Senior Judge


July-1.2+
         2019

cc: District Attorney's Office

   Alison M. Scarpitti, Esq .
   . l50E 8TH St Ste C
    Erie, PA 16501'-1270




                                                7




                                                                               ---·-·-··--·--·-·---···--
                                                                                             Circulated 08/21/2019 02:51 PM




COMMON\VEALTH OF PENNSYLVANIA                                                lN T.HECOURT OF COMMONPl.,EAS
                                                                             or ERIE.COUNtY, .PENNSYLVANIA
                           v.                                                CRIMJNAL DIVISION              .

VANCE HASKELL;                                                               .NO. 731�1998
    Defendant


                                  ....-.   .·""1
Bozza, John A.) SJ.� Augttst:) l./ 2018
                                                   1




                                                       .19.25 fa} OJ>JNION

            Appellantfiled a Notice of Appeal.as of right, from thisCourt'sJune 21, 20lS Order

    denying his Motion to Dismiss Prosecution on Grounds ofDouble Jeopardy, I 111 199&., Vance

Haskell was convicted offirst-degree murder and other charges related to thekilling of Danell

    Cooley.in f.994. After filing a direct appeal and several post-conviction collateral reliefpetitions.

Hasl�ell filed a petition for habeas corpusrelief in federal court On August 1, 2017, the Third

Circuit United States Court of Appeals granted Haskell's habeas petition 01) the .basis of

prosecutorial misconduct: arid overturned .Haskell's. 1998 conviction for first-degree murder.

Haskell 11: Superintendent Greene SCI, 866 F.3d 139.(2017}. This case is now poised for re-trial,

pending
  .   . appellate
         .        re-view of this. Court's denial of Appellant's Motion
                                                                    .   �6 Dismiss,
                                                                              .




       l.      BACKGROUND
       At approximately 1 :27 a.m. on December JO; 1994; Danell Cooley was shot nineto eleven

times by a11 Uzi-type gm'.l at close 'range at a:11 eastside Erie bar, Jethroe' s Steakhouse. Cooley


  \Ve note that Appellanthasthe right to file an interlocutory appeal from a trial court's pre-trial double
1

jeopardy determination. Camnumwealih:v. Bolden, 173 A.2d 90.(Pa: l977)(p]uraJity opinion);
Commonwealth 1;: Ha.e,ffrer; 373 A.2.d.1094,1095 (Pa. 1977)(pei· cw'iam)(''pre-trfaLorders denyingdouble
jeopardy claims are final orders for purposes of appeal").                ·

                                                               1




                                           ------------------------------·---
 died of'hiswounds. Although the bar heJd over 100 patrons, few witnesses canie.forth to identify.

 the shooter. Aftera lci1gtby investigation, four years laterthe prnsecutionpresented four

 witnesses at trial thatre varying degrees identified Haskell as the perpetrator and two more that

 placed B askell · with the same type of murder weapon at cl ifferent tithes pi:iot to the shooting;     At

 trial, Roseanna Wayne, testified she was in the bar approximately ten feet          away from the sheeter.
 She identified.Haskelt i1;1 court as someone who "fook[ed] like" the shooter. However, she also

 testified that she was not sure she could make a valid identification, (1\follranscript, September

 "-'S, 1 99
         : ·S,                ,_ ' "9 " .
"'i )·
               .Cay -';-,
            1 .)       1 ..
                          pp. )8-.:::,_ J

         Dorthea Roberts was also a patron of the bar. She testified at.trial thatshe was also within

feet of the shooter. (fL Day 2; p: 178). She heard approximately l2 shots. (Tr., Day 2, p. 183). Iii

the courtroom, Roberts identified Vance        HaskeH.as the shooter.   (Tr.,   Pay Z, p;   184). Robert's

credibility. was challenged mt cross exainination
                                          .       when it was
                                                          .   shown
                                                                 .              . police shortly
                                                                    that she told

after the shooting that she did not know who the shooter was. (TJ"., Day2, p . .I 89-190). She also

admittedthat she wasin jail awaiting.trial on. simple assault     charges. (Tr., Day 2, p. 193).

         .Cunis Mathis provided a video-taped statement to police on March 7, 1997, identifying

Haskell as the shooter. Mathis had smoked marijuana i11 Jethroe' sparking lot with Haskell and

witness, Antoinette Blue, shortly before the shooting. (Tr. Day 3i p. 93-107). Althoughat trial

Mathis recanted his prior identification of Haskell, the prosecution was able to play his video-

taped statement for.ihejury. (Tr. Day 3, p . .94).

         Another witness, Darrell Gamble, testified that he saw Haskell and Mathis. run qut the back

of thebar after the shooting. (Tr. Day 3� p, 125). However, his credibility was compromised

during cross examination when he admitted he had formerly identified. another person .as having

run out the back door, rather than Haskell. (Tr, Day 3, p. 134).



                                                     ,2
                    Nicole Thompson testified that she had seen Haskel! at a residence four days: before the

                shootiljg at Jethroe' s. Haskell ,had a gun similarto the weapon proffered at trial as 1he murder

                weapo». (Tr. Day 3, p. 155-15 7). Kenneth Henderson also testified he had seen.Haskell with the

                subject firearm on several occasions before the shooting. (TL Day 4,. pp. 20-:25.).

                    Antoinette Blue was a key witness" his hertestimonythat was the primary focus ofthe

               habeas claim and the central. issue here. She testified that she bad met Haskell approximately

               two weeks before the shooting. (tr .. Day 2, p, 216'). 'On the. niglrt of the incident, she was

               smoking. a marijuana
                             .      "blunt"
                                        .   witb
                                              .  him and others.in {he bar parkinglot;
                                                                                  .    (Tr. Day 2� p. 2.15-216).

               She testified that Haskell came ,inlQ the, bar sometime after she dkL He. then pulled om a gun and

               started shooting. (Tr. Day 2, p. 205). Blue did not identify Haskell as the shooter until three years

               later when she was in Erie County-jail. (Tr. Day 2, p .. 227).

                   At. tria], John Moore.the Defendant's attorney attempted to challenge Blue; s credibility              op
              the basis of'her prior theft convictions and her interest       in receiving favorable treatment from. the.
              prosecution ii1 exchange for her cooperation. At the time of trial she had been convicted ofone

               theft related offense, a Criminal Attempt charge      111   1997 but. her thirty month probation sentence

               en that    charge had mil begun to run.   She also had an ARD disposition for Retail theft iii I 994

              for' which she appears    to 'have completed a p;robationary p�riod i11 199.:S.    Acco�·dirJ.g to co urt

              documents, at the time of trial she was on parole for disorderly conduct and resisting arrest to be

              followed by a probation sentence. for the criminal attempt conviction. fo addition she had

              pending retail theft and related charges 'iu Mercer County fromwhich she was released onbail

             . posted by aprofessional bondsman.



              a \Ve note that Blue.was. on SSX for nrenta! acuity .difficulties cir slow learning. ( Commonwealth v. Blue,
              733• 1996, Sentencing Transcript, 11/15/1996, p. 9).




·--·-..--.. ----...._..   __..              _
                   She testif ed that she got in contactwith anErie County detective earlier that year when she.

               was in jail on disorderly conduct charges and offered to help in their investigation ofDefendant.

               Cross examination revealed that Blue was .sent from the.. Eri e County Prison to a 'rehabilitation

               program and then she was paroled several months before the Haskell trial. SJ1e noted that she

               had been 111 jail before. Her testimony did not provide a complete picture of either her .prior

               criminal history-or her interest i11 receiving favorable treatment on pending charges as a result of

               her-cooperation with the prcseeution. She testified that she was on probation and had previously

               been convicted. of iheft �i ioi1g time ago and \,1�1s on probation for retail thefi '' ... back in the clay".

               (Trial Tr. Day 2, JL 226). She did not mentionthat she had been in jailin Erie County on. a

              detainer warrant for a parole violation.and a bench warrantfor failure to appear at a semencing in

              another case in Erie County. Blue adamantly denied expectii'1� to get 0(1t of jail or expecth1gto
              "get something" out of testifying.        (Tr. Day 2, p, 227, 231 ). ·

                  At the conclusion of'the trial, Vance Haskell was found guilt)' of first-degree murder,

              possessing instruinent of crime, aggravated assault, and.reckless endangerment.            On November
              10, 1998, he was .sentenced to a term .oflife imprisonment, He took a direct appeal. The

          .Pennsylvania Superior Court affirmed his judgment of'sentence on August 23, J.999. The

              Defendant filed several PCRA petitions, all of which were denied at the 1r1al level and           orr.appeal.

          Haskell 's third PCRA Petition, filed on:.April 30, 2012� raisedthe.same issue of prosecutorial

          misconduct at issue here. On May l , 2012, the trial courrdenied PCR.A relief since the petition

          was, untimely?




          3
            The PCRA court opinion did not ackricl\vfodge H�skell's claim based 01) the "gevermnental
          interference" and/or "newly discovered evidence" exceptions to the one fear filing limitation. 42 P.a.
          CS.A. §9454(b)( I )(i);(ii).                         ...                       . .


                                                                   4




--·--··----··-·-----··---
                      l::IaskeUthc11 filed a.petition.for habeas corpus relief \·Vith the United States. District Court for

                  the Western District of Pennsylvania. United States Magistrale Judge> Susan Paradise Baxter

                  denied Haskell's habeas petiti011.4 The Third.Circuit Court of Appeals reversed the Western

                  DistrictCourt and granted Haskell's ha beas petition. The Third .Circuit found that witness

                  Antoinette Blue. proffered perjured testimony which the District Attorney failed to correct and

                 that her testimony could ha ve affected thejudgment ofthe.jury. Haske ll, 8.66 F.3o 139, J 50,.152.

                 Speci11call y, 1)1e Third Circuit.found that: (J) Blue lied about 'her criminal .record and about

                 whethershe hoped to receive- some benefit in her own pending criminal proceedings in exchange

                 fot testiJyiilg against Haskell, and (2) District Attorney Hayes failed to correct that lie and, .i11

                 fact, bolstered it jn his closing statement.

                     Haskell is currently awaiting re-trial' before the Erie County 'Court ofCommonPleas. 011

                 .March. 12, 2018, he filed a Motion to Dismiss Prosecution on Grounds of Double Jeopardy based

                 on a finding of prosecutorial misconduct during Haskell's jury trial, as found by the Third

                 Circuit. \Ve denied Haskell's motion based on thefactthat neither negligent.nor reckless

                 prosecutorial misconduct implicate double jeopardy concerns. Commonwealth. v. Basemore, 875

             A.2d 350, 356 (Pa. super. 2005). Furthermore, this Court concluded that the. record (lid not

                 support a finding of incessant   OT   outrageous conduct on the part of the.prosecution.

                     The trial courtrecord   has not been supplemented by additional testimony or other evidence
             concerning the conduct of the prosecution during the course, of'the criminal proceedings,

                    H.      DISCtJSSION

                         The. double jeopardy clause. of the Pennsylvania Constitution prohibits re-trial of a

            defend ant when the. cond uct of the prosecutor 'is intentionally undertaken to prejudice the
             4
            · According to the Third ·circuit, theCommonwealth.did not object to the District Court's 'on-the-merits
            review of Haskell 's perjured testimony claim, since the· state .PCRA court dismissed Haskell's -state claim
            as time barred withoutreviewing the merits, Haskell, 896. F.3d at !AS.             . .

                                                                     s


--·---·-·-,,--,-·-··.. ··--··-·-··-·---------------
                 defendantto the point 9f the denial of a fair trial, Commonwealth v. Smith, 6iS A. 2d :321, 325

                 (Pa. 1992}. Negligent or reckless prosecutorial misconduct do l10t implicatedcublejeopardy

                 concerns. Commonwealth \i.. Basemore, 875 A:2d 3501 J56 (Pa. super. 2005).1).ouble jeopardy

                 bars retrial of'the defertdant wherethe prosecutor engages in "pervasive, incessant, and

                 outrageous" conduct.       Basemore,     875 A.2d at.354. In order toraise.double.jeopardy implications.

                 prosecutorial misconduct must be deliberate.undertaken in bad faith.and with a specific intent to

                 deny the defendant a foir trial. The remedy of discharge wilhou! a fqir and complete fact-finding

                 procedure "is extreme and willnot be invoked absent deliberate l?m:l Iaithprosecutorial

                 mi sconduct." Commonweult h v, Santiago, 654 A.2d 1062, i 085 (Pa. Super. 1994}; citing

                 Commonwealth v. ,WcElfigor.t, 432 A.2d 587,5,90 (Pa. 1981}

                               A. Haheas CorpusStandanl vs: Double Jeopardi' Standard

                          The applicable standard for the grant of a federal habeas corpus petition, as found by the

                 Third Circuit in Haskell, is a determination that the state had knowingly presented or knowingly

                 failed to correct perjured testimony which results in a reasonable likelihood that the perjured

                 .testimony could have affected thejudgment of the jury. 5 The. Court.also observed that it was

                 rejecting the "actual prejudice" tests in habeas cases. Critically.fhis standard differs.

                 significantly from the. standard for the grant of a double jeopardy petition, which requires a

                 determination pot only that there was. perjured testimony which.may have affected the jury, but

                 also that.the prosecutorial misconduct was deliberate, undertaken in bad faith and with a specific

                 intent to deny the- defendant a fair trial. Strong, 825 A.2d at 669-679. I tis particularly

                 noteworthy that the. Third Circuit seemed to take the position that in habeas cases involving

                 prosecutorial conduct of the kind it found here that it didn't matter if it was the. result of


                1Ha.ske.ll, 866i3d at 147, citing United States v'. Agurs; 427 U.S. 97 (l976),hcildii.1g.m0dified by United
                 States v.Bagley, 473 US. 667 (1985).                  ..

                                                                        6




····--··-----·-···----·--·-····-·-··- ··-··-------·-··----·---
                 negligence: "Whether the nondisclosurewas a result ofnegligence or design, rtis the

                 responsibility ofthe prosecutor." Haskell, citii1g Giglio v. U.S:,, 405 U.S. 15Q) 154 {1972).

                 Thus, thereis   a significantly higher bar for the granting of a dou ble jeopardy motion..
                     \'Ve must view the facts as the)r
                                                    . exist in the.record tc:i determine
                                                                               .         if the double Jeopardy

                 standard .has beenmet. Theparties. have stipulated to the factual record as developed by the

                 Third Circuit in its review' of.Defendant's habeas claim and .no evidentiary hearing was requested

                 by eithe..r party. As ti result, a determination
                                                         .        ofthe double
                                                                         . .   jeopardy
                                                                                . .     claim, which requires a

                 J3nding that theprosecution acted    ,,,itb the s.petifrc. intentto de1jy Haskel] a: fair trial and in
                 general a more searching legal analysis; is    111Q11e   challenging, requiting a close review ofthe

                 entire trial court record,

                    In his Motion fo Dismiss Prosecution on Grounds of Double Jeopardy the defendant focuses.

                 Oil the pfosecl.itpi· Mathew Hayes' failure to correct Ms. Blue' s false testimony concerning per

              expectation andreceipi offavorable treatment in exchange for her ccoperation/' Hertestimorry

             of course occurred within the broader context of the case and a thorough review of the factual
              setting is necessary.

                            B. The .Factual Setting: .Blue's Prior Record, Hei· Expectation of
                               Leniency .and ihe Prcsecutor-'s Response                  ··

                     It.is essential to have a11 accurate understanding ofbothBlue's actual criminal record, as it

             existed at the time of trial, as well     as a time-line ofsignifieaut events:
                    a. January 10;)994 Blue Sentenced onRetail Theft (Erie County Docket #15JO-l993)
                          s  Btueis accepted into the ARD program (no guilty plea).
                          e  Probation for 1'2 months

                    b. November 15, 1996 Sentenced. on Disorderly Conduct and Resisting Arrest (Erie County
                       Docket #733-1996)
                          e Disorderly Conduct Sentence: l to l I: months' incarceration



             &   This was also the.focus of the federal appeals court in gi"antin'g Mr. Haskell a new trial.
                                                                      7




·-·----·--..---·---·..   ·---------·-·-----------------------------
            e    Resisting Arrest Sentence:   1 years' probation; consecutive to above

 c, July 3, 1996 Charged withFour Theft Related Counts (#1514-199.6)

 d. December 9, J.996 Paroled          on disorderly conduct charge:{ #7J3-199.6)
 e. January      8, 1997 Enters a Negotiated Guilty Plea to Count T (ou: of fom; counts),
        Criminal Attempt (theft)(# 1514-1996).

 f.     February 18, 1997 Blue Fails. to Appear for Sentencing (#l 514-1996)

 g. Febi'.uaty 21� 1997 Bench Warrant Issued for Failure to Appear. at Sentencing (#1514-
        J 996)
 h. T,fan::.h 71 J9.97 Non-Omitras (Pro bation/Parole A bscondenw arrant J ssued (#733- t 996)

 1..   February 9'; 1998 Blue Arrested inMercer County.onRetail Theft based charges .after �:i
       shoplifting spree (Mercer County Docket #334.,.J 998)

J.     February 19sl998 Bond Posted biProfessionaJ Bondsman on.Mercer County Charges

 k. .February_, 1998 Blue Transported to Ede County Jail Pet Outstanding Bench Warta11t
     (#1514-1996) and Non-Omittas Warrant forviolation ofhe; parole and. probation fur
       disorderly conduct andresisting arrest (#733-1996}               ·

J.     February - March 1998 While in Erie County Jail on Ede Warrants, Blue contacts Erie
       Police Department-to Jet them know she could identify person whc shot Cooley

m, March 18, 1998 Blue testifies against Haskell at Preliminary.Hearing. Cross examined
   by Haskell's attorney for the first time,

n. lvfarch29� 1.998 Blue's parole and probation at#733-1996 Revoked (Disorderly Conduct
   and Resisting Arrest).             ·
        e  Resentenced on Disorderly Conduct: 1-11 months' incarceration
       •c- Resentenced on Resisting Arrest: 3-12 months' Erie CountyJail, concurrent

a. Match 20, 1996 ·sentenced On Criminal Attempt (theft)# }5 l 4"'.1996 (based. on plea.one
   y�ar ago prior to absconding) to 30 111d11ths' probation; consecutive to #733-1996

p. I�arch _, 1998 - June lS, J9.98 Blue Sent to White Deer Run Rehabilitation Program
       (#733-] 996)               ..

q. March 31, 1998 Attorney McCmu1eH assigned as .B]\1e's counselin Mercer County

r, April 22, 1998 Blue's Mercer counsel, Attorney M.cCon,nell, sends.note 10 Mercer
   County D:A. Jim Epstein, Esq., noting that Detective SkindeU had reported to Mercer
                     County D.A.s office that Blue was helping 111 them in th¢ HaskeH prosecution. Complains
                     that Meteer County ADA Farrone "ls 1101 willing to offer her [Blue] anything less than
                     pleas to single counts of retail theft, ut1s\voJ11 falsificati on and I believe receiving stolen
                     property." He notes this was the same plea offered Blue at Blue's Preliminary Hearing,
                     prior to her testimony in the Haskell case.

                s.   April30; 199.8 Hayes sends Discovery Letter Sent. to Attorney Moore (Haskell's
                     Attorney) describing. Blue 's Mercer charges and prosecuti oil 's efforts to assi st Blue in
                     Mercer by making Mercer sentencing judge         aware ofher cooperation. Also provided
                     copy of Blue's criminal record.

                t. J\fay.2\ 1998 Suppression Hearing

                u, .June 15, 19,;98 Order of Parole.rlirie County #733:· 19.96, Disorderly Conduct}

                ,!: September' 19'98 13.Jue Testifies for Prosecution in Haskell Trial

                w. November 3, 1�98 Blue Enters Guilty Plea .10 Two ofMercer Counry Charges (Mercer
                     #334-1998)
                        ti Retail Theft
                         e    Unsworn F alsification.

                x, December 9, 1998 Ede County D.A. Hayes writes to Mercer County arid advises
                   sentencing Iudge of Blue 's cooperation. Also notes he .did not previously promise Blue
                   any assistance; except to write this letter. Unknown when Hayes told Blue he would write
                     the letter.

               Y: December 9, 1998 Blue Sentenced to Retail Theft and Unsworn Falsification, I to 4
                  years' incarceration, sentence suspended, Probation for 18 months, consecutive to
                  existing sentences, plus costs;


                     J.. The Prelirnirra ry Hearing

               At the preliminary hearingin this case, Blue was called to testify tliatHaskell was the

           shooter: She stated that at that time she was not in. the Erie; County .1 ail but living on East 7'h

           Street '(Preliminary Hearing Tr., p. 18). Mr. Moore also asked he.r if she had any other charges

           pending and she falsely testified that she ol"ffy bad a probation violation forDisorderly Conduct.

           Later she was asked on cross examiaationabout w.h)' she was in the Erie County .Tail at the time

           1
             It is not.clear how this would have been accurate but.if it was .she obviouslydidn't need to be released
           right after the preliminary hearing.
                                                                9




--·--·-··-·-·--·--·----··----       -·---·------------------ -----
thatshe was talking with another person about going to the police. Blue testified that she was in

jail at that time on a violationofher disorderly conduct probation (Ede County #733-1996). It

would appear that that ,:.. 01,iJd have been after being transported to the Eriejail fro in Mercer
                          1




County. Ifso, a more complete answer would have included the fact.thatshe was in jail.not only

for violating her parole (rather thau probation) at Erie County Docket number 733 ... 1996,. but also

because she failed to appear for her sentencing at Erie County Docket. number 1514-1996. R

    Blue �lso testified that she was in contact ,i. ith Eri� Police Detective Skindell and gave. a
                                                   1




videotaped statement concerning the murder. She wasnever asked whether she. was promised

anything by the detective or about.any expectation of favorable treatment in return for her

cooperation . She was only asked if she had ever talked to this other woman about whether

cooperating would help her get out of jail. She said she had not talked to thatwoman about ii.

(PH Tr., p. 49). Blue also said that it never occurred to her to talk to this other woman about h,

She was not asked about talking to Mr. Hayes, the prosecutor assignedto her case and there is

notbing in the record to indicate that she talkedto any other representative of the government

except SkindeJL

    Following the preliminary hearing Attorney Hayes.responded to the defendant's discovery

request, On April 30, l 998, Hayes sent Haskell's trial counsel Hayes' entire file in response to.

the defenseAttorney Moore's Motion for Discovery. Although the contents. of that disclosure

are not entirely a part of the record, the prosecutor' s letter to defense counsel notes that he has

'ptovirled a complete copy of Blue's prior record and an explicit reference to Blue' s pending




8
 \VhileBlu� had acquired retail .theft-based chargesin Mercer County, as.of the time of her. testimony at
the preliminary hearing; she hadposted bond in Mercer and therefore, she was not in jail for the Mercer
charges,

                                                       .10
  charges in: Mercer Count)':9 In the enclosure letter.Attorney Bayes states, inrelevant part) as

 folio ws:

                 _As to. Antoinette Blue, I will check with Detective Skindell to make. sure I
         have.ail information regarding any statements made. I have enclosed Antoinette
         Blue's. priorrecord, Also 1 am aware that. Ms .. Blue.faces a misdemeanor retail
         theft charge in Mercer County,.. I spoke with the prosecutor in that case and he
         explained he had already arrived at Plea Agreement in hercase. Thatplea
         arrangement was reached prior to. his knowledge of Ms. Blue's involvement i11 the
         present homicide. I also explainedthat Ms; Blue was assisting in .this prosecution.
         He indicated to me that this assistance would 1101 alter his approach to his.
         prosecution. He iudicated.bewould makethe assistance known at the time of ber
         sentencing in Mercer County. ..
                Finally, Detective Skindell spokewith the proset1itor .in.Mercer County
         regarding Antoinette Blue. Ess<=Jitially,the prosecutor.told me that Detective
         Skindellrelayed the same information. as I'had; aud the 'prosecutor's response 'was
         the same. The only understanding I am aware o.f is for Ms. Blue 'scooperation,
         \Ve would make the sentencing.Judge aware ofthis cooperation.

 (April 30, 1998, letter from J\fatthew R. Hayes, First Assistance District Attorney to John

 H..:Moor.e, Esq., p. 2).

         111us, .even if Blue lied about her pending charges atthe preliminary hearing, Attorney

 Hayes took appropriate steps .to correct her testimony by providing a complete copy of Bl1Je' s

priorrecord and notice of her pending.Mercer County charges. Inthis same letter, Hayes also.

rnade Moore aware ofthe fact that the Mercer County DA had already made aplea agreement

\.vith her without.any knowledge cfher involvement i11 the homicide prosecution in Erie and the

only thing he would do is make her cooperati onknown to the sentencingjudge. This notion is

essentially co1tfirmed by Mr. J\·foC01mcU, Blue's appointed counsel in his note to the.Mercer

CountyDz'; on Apri! 22, 1998. :rvf.r. Hayesfurther pointed 01.1t to Mr. Moore that the 011ly thing

that he. would do for Ms. B lue was to Jet the Mercer County sentencing Judge about her

cooperation,
   .                .· -
             There. lsi16thin2-in the
                                   .  record from. which
                                                      . . to. .conclude thatthere
                                                                             ..   was other action


'}le also notes that all statements of which he is aviare are in Mr. Moore' s.possessionand presumably
this would include. 1'�1s. Blue'staped statement to Deiecnve.Skinden but this isnot clear.
                                                   11
taken by the. prosecution· on her behalf This letter provided full disclosure or Blue; s criminal

history, both past and pending,   as well as notice of the prosecutor's attempt to obtain favorable
treatment for Blue ..

        2. The Tr;ial Testimony

        The key questions are whether Blue lied at trial about her criminal history and perhaps

more importantly about whether she expected and received lenient treatment as a result of her

cooperation. Altho'ugh the. focus of the Third Circuit's determination, as.well as the.Defendant's
present Motion for Dismissal, is.Blue's responses to questions about her expectation of leniency,

the searching.inquiry required of a double-jeopardy analysis requires a contextual examination of

the trial testim ony of this 'important witness,

        \Ne begin by noting that, as of the time of trial counsel.for Mr. Haskell and implicitly the

Defendant himself, were. aware of the nature of Blue's testimony, the fact that she had been in

ja.il in both Mercer and ErieCounty, 'that. she bad been. resentenced in Erie County, her prior

criminal history and the factthat the prosecutor committed to telling the sentencing judge in

Mercer abouther cooperation in the Haskell case.

       The issue arose at trial as: to Blue's jail status after she testified favorably for the

prosecution at the preliti1iila.l)' hearing, She testified at the fria.l in September of 1998, on cross

examination that she was. in jail. after the preliminary hearing until she wasreleased to a "rehab"

program. (Trial Tr. Day 2; pp: 230-231). Her testimony in that regard appears correct, Two clays

after the preliminary hearing; Blue had a revocation and resentencing .hearing      onMarch .20,
1998, at #733-1996 (disorderly conductand.resisting arrest). Her parole.ar Count -l (disorderly

conduct) was revoked her probation at Count 2 (resisting arrest) was revoked and..a new

sentence imposed of 3 to' 12 months .in the Erie. County Prison, to be served concurrent. to Count.



                                                   12
       L   Blue may have servedsome ofherincarceration time              at the White Deer Run rehabilitation
       facility but she was not paroled until.June 15, 1998. Her testimony that she was not released

      'immediately after h�.J' preliminary hearing testimony in March of .1998,was correct, ,.o

       Accordingly, there. was nothing in that regard for Hayes tocorrect.

               ln adeli tiorr al the same ti.me of her fl:;·\(Oc.ation sentence forS, Bl Lie \:V�lS sentenced   to a
       consecutive sentenceof 30 months on the Criminal Attempt thar�e· shehadpled to the previous

       year, -l_t should be noted.tha! withregard to-the nc.,\� senteaeeimposedon the Criminal Attempt



       sentencing guidelines andher prior record        score wouldhave pnly reflected the misdemeanor
       convictions for Disorderly Conduct arid Resisting Arrest

                On further cross examination.Blue was asked about being injail at the time she

      contacted Skindell:

               Q: Whereabouts were you injail?

               A '\Vel°l,I -vwhere was l:injaiJ at?

              ·Q. Whichjail were you in?

      10
           TheThird Qircu1t seems to have· conc.lu�.e'd that Ms. Blue wasreleased froll)jail almost immediately
       following her. preliminary hearing testimony after a parole revocation proceeding, On {he face of the
       record this i's-not truevBoth li,�r·parol.e and probaflon sentence; were re:vo.ked,an�rs.11� wasre-sentenced to.
       a· pe\'\1 combined sentence of three tt5 twelvemonths.in the Erie County. prison followed by -a .consecutive
       �)CW sentence 011 the Criminal Attempt conviction of30 months on probation. 'Her aggregated combined
       sentence WaS. 3-.12·i1io.nths fotlowed by 30 months probation. A_pac:ole order. was not signeduntil June
       .J.5, .1998 and only aftor she completed an inpatient drug rehabiliiation program. For' reasons not apparent
      .from thc'record, lhe federal appeals -court seemed to conclude that the. outcome . of.the parole.and
       probation revocation and the separate sentencing proceeding was the result of leniency granted at. the
       requestofthe prosecutor and'thatthis is whatMs, Blue soughtand anticipated. Haskell, 866· F:3.d ·at l 43:
      'There is nothing; in the record. to even-suggest that theEnie CountyDistrict Attorney's Office did anythi1�g
       to bring her cooperation tothe attention of. the sentencing judge: in those cases. Blue' 15· Criminal Attempt
       sentence was, in fact, within t{1e standard .range.of.the Pd\j1sy1vartia Sentencing · Guidelines, 'whiclr called
       for aminimum sentence ofprobation or' some other form of community basedsupervision .. Judge·
       Connelly.accordingly sentenced Blue to "restorative sanctions 3.0 months,' probation." (March :20; 19:9&
       Sentencing Order, Cob). Y. Antofoett.e Blue, -�r're County Criminal Docket Number l, s'i 4-1996).              .


                                                              13




,.,---·-------·· --,.-·------··-----------------------------------
        Q. Eric County Jail?

        A. Yeah.

        Q. Was that the first time vou' d ever been in jail?
                                   .   !'                       ..




        A.No_

        Q. What charges were you in jail for?

        A .. Disorderly conduet.

(Trial Tr. D�1y 2, p. 22 6).. Moore asks Blue if her [March of J 998] time ii1 the Erie County Jail

was the first .time she had been in jail. She says no. Ifwe read Moore's J.()Jlo,:1,' up question,

 What charges \.\lete you in jail for?" as asking about what Blue: had been in jai 1 for before
'1




February of 1998, lier last statement is true. She had 1101 been in jail for retail theft #J 510-1993

(ARD) and she had'not been jailed for Resisting Arrest Count 2 at #.733� 1996 (probation only}.

She had only been given jail time           011   the Disorderly Conduct Coun] l ar #}3 3-1996 (November

IS,, 1996 Order sentenced herto 1 to 11 months), after which she was paroled on December 9,

1996.

        However, if we read Moore's question: as asking what charges Bh1e was in the. Erie

County 'Jail for aithe time she contacted Skindell in March of 1998, her answer is definitely

incomplete, She fails to raise the fact that.in addition to a warrant.for her probation violation .at

#733-1996, she was also detained on a bench warrant for her failure to appear for her sentencing

at 1514�1996   011 the   Criminal Attempt conviction. Ostensibly since Mr .. Moore had been

provided withher criminalhistoryhe would have been aware of this.               He chose norto pursue it
as.he continued his examination of the witness. 1V1r. Hayes did not correct her testimony in.his




                                                           14
                     re-direct of Ms. Blue .. Since there was .no-evidentiary hearing concerning the conduct ofeither

                     lawyer their rationalefor their approach is notknown,

                              Blue's testimony continues:

                              Q. \Vas that a violation of your parole?

                              A What?

                              Q. Were you on parole at the timev'[When she was in Erie County Jail]

                             A. Yeah, I'was         011   probation. I still ison probation. (sic)

                              Q. What were ibu 011 probation for, what crimes?

                             A. I just rold you, disord er] y con Cl uct. n

                             Q. Have. you ever pled guilty to a theft charge?

                             A. Yeah, I did my time for that

                             Q. How long ago?

                             A. A Jong time ago.

                            Q. ls thctt what you were on probation for?

                            .A.   N.o, I just said I was on pro bationfbr disordei1y conduct.
                            Q. \Veret1 't you on probation for retail theft?
                            A. That was back in a day.

                (Trial Tr.Day 2� p. 226). Blues testimony regarding the retail theft charge is true. While

               perhaps Attorney Moore is attempting to .get Blue Ioadmit to her January                  8, 1997 Guilty
               Plea and the March 20) 1998 probationary sentence for Criminal Attempt at #1518.:.1996

               (Theft by Unlawful Taking; Receiving.Stele» Property, andCriminal Conspiracy had been

               no!le prossedy; Moore does not ask Blue. about that. He asks her if she was ever. on


                 ii Blue. was   actually   011   probation for resisting arrest and on parole for disorderly conduct.Both
                 convictions stemmed from her#733.-'1996 case.
                                                                              15




-·--··· .. ·-·-·-..--·--·-·····--·-..·-·--···...   -- ·--------------                                                       _______________   ..
probation for retailtheft. Blue. was o.qly on probation for retail theft following her 1994

conviction.at Docket Number 1510-1993 . As of the time of her testimony at the Haskell

trial hi Septemberof 1998, Bl1.1.e had long completed-serving-her sentence (l2monJhs.()f

ARD di\lersionai:y pro bation) for Retail · Theft; hence. herreply, "Back in a day:'; Blue is.

correct in saying that at the time- of frfaJ she was 1101 o.n probation forretail theft...

      Thus.Blue'stestiuronial shortcbmings are Iimited to the fact that.Tl) she did riot folly

testify that she was in.the Erie County Prison not only for a viulation of her probation for

resisting arrest, Coum? at #733-: 1996 (which.she refers to as d.isoroerly conduct, which

was Count J. .at that same docker), but also for foiling to appear for sentencing at #]514-

199612.; and (2) she denied having personal expectations ofassistance for her Mercer

County · charges in exchange for bet cooperation. Ameliorating these shortcomings, we

find- that; (J) Hayes   fully disclosed Blue's Erie County criminal record .as wen Blue's

pending charges in Mercer County iii his April30,. I 998 letter to the defense .prier.to trial;

and (2) there is no evidence that Hayes, Skindell or anyone else connected with the Haskell

prosecution gave Blue any promise ofreceiving a rnore lenient sentence. On the contrary,

Hayes explicitly told Blue he could not help her.

       The next questionis whether Blue committed perjury by denying that she had ever asked.

 for, been promised, or actually received favorable treatment in exchange for her testimony

 against Haskell. 'Phroughouther testimony Blue denied hoping for or being promised favorable

 treatment _in her own criminal cases, The record reveals a telling. letter from 1::layes to the Mercer

 County Court, written after the Haskell trial.    In the letter, Hayes is, hi fact, suggesting asking for


 12
    Blue also failed to discuss her pending charges in Meicer County, put we find that she was not
 G:x-pHcitly asked aboutthose,                  .     .             .        ..
                                                      16.
 leniency 111 Blue's Meteer Sentencing. However, Hayes emphasizes that he had explicitly told

 Blu« that he would be unable to helpher in her Mercer County charges;

                In September, 1998, l prosecuted mi individual by the nameof Vance
         Haskell for homicide and related charges. 01i Octaher 1; 1998, be was found
         guilty of 1st degree murder and all .other charges .... Ms. Blue was one of the 2
         eyewitnesses that could identi[:f]y the defendant as the sbcoter. Consequently,                                   Ms,
         Blue's testimony was very important, .. .Throughout, Ms. Blue has indicated to me
         fhat her motivation for testifying was that amurderer shot\ld not go free. Overall,
         l was impressed �ijth her attitude.and cooperation.
             Finally. I made Ms. Blue aware oh.be fact that 1 could not and would not alter
                    ..   J
                                   •   •            •   •        •      •   •          •   •   •   •   •   •   •   •   •     ••




         the outcome ofher charges in Mercer County. She understood this and has not
         asked for assistance in thatregard, exceptthat I write this letter:

 (Letter fror» D.A. Hayes to Court of Common Pleas of.Mercer County, i.2/9/J 998).

     .At trial, Bluetestified:

                  Q: And did you contact the District Attorney's Office because you.wanted
                  some help to get out of'jail?

                  A. Get out for what? I wasn't facing               a lot of time,   wliat did lneed help
                  fu�                                .                           .


                 Q, So you didn't=this never came into.yourmind that you wanted to get
                 help to get outof jail?

                  A. No.. Get out for what?

                 Q. Then what was it that caused you to get In touch with the police arid tell
                 them that you knew about this shooting?

                  A. Because it was still going on, and I didn't know that he was in jail,
                  When he was out, I didn't say.nothing because Twas scared.

 (Trial Tr. D3)' 2, p. 227). She in fact made contact with the Erie police detective .. Ms. Blue's

 testimony about "not. facing a.lol of time"     is certainly an optimistic assessment. 13 Whether it


  JJ We not�that Blue was sentenced on March 20; J 998 in connection with her 1514-1996 Criminal
  A tiempt plea. (entered 'on January 8, 199 7 before:J3 lu e ab�con de d). In 1997, long before Blue 's contact
  withthe.Haskell prosecution, Blue entered a plea to Count 4: Criminal Attempt, with thethree remaining
  counts of Theft; Receiving Stolen Property and Criminal Conspiracy nolle pNJssed.and on March 20;
. 199.8,.Blue.\.vas sentencedto 30 rnomhs of.probation and community service. Bluewas also sentenced to
  l to. u months' incarceration, concurrent with 3 to I 2 months' incarceration, at her-revocation and
                                                            17
                        ever "occurred to" Blue that her testimony might help her "get out of'jail" is also a nebulous

                        matter, as _it pertains to her own· thoughts.

                                    On re-direct, ProsecutorHayes asks Blue:

                                                    Q.... Have yon been promised a:nythi1ig by us to. come inhere and. explain
                                                    what you just explained?

                                                    A. .No.

                                                    Q: Do you anticipate.receiving any consideration for ii?

                                                   A.    no I what?
                                                    Q.   Do you expect to gei somethingoutof r�shfyi:ng?
                                                   A.    No,. sir.

                       (Trial Tr: Day 2, p. 231).

                             On re-cross, Blue was consistent in her. position that she would receive no .benefitfor

                       her testimony:

                                                   Q. You didn't ask anybody to takejyour testimony] into consideration?

                                                   A. No, sir:

                                                   Q. You don't think at1ybody was aware of that?

                                               .   A . . "·No:, sir...:

                      (Trial Tr, Day 2. p. 232). Haskell's counsel, who was fully aware thatthe                prosecutor intended to
                      inform the MercerCourt about Blue's cooperation, asks nothing in response to what is without

                      doubt; at a.minimum.ia.misleading answer. Moore never asks Blue about whether Hayeshad

                      promised. Blue to contact Blue' s Mercer County sentencingjudge 011 Blue's 'behalf, despite the

                      fact.that Hayes explicitly told Moore about his plan to help Blue in.Hayes' April 30, 1998 letter

                      to Moore,        For reasons thatthat are not at all apparent never directly addresses the issue.

                      resenteneing-at #733-1996 (disorderly conduct.resisting arrest). In addition, she was facing pending
                      charges. in Mercer County on . retail theft related charges,                                  ··

                                                                                    1.8




---··-····----···-······-····--···-----·--··········· -····----- ....,                                                                  _
                  0Ji the oilier hand Ha yes clcarl y knows that. B1 ue's testimony .thM she doesn 't expect or·

          at least hope to get anything out of tes1ff��l11s attrial is uiilikdy to be. true. He knows that he has

          told.Blue.that although "he    could.not and would nor .altcrtbe outcome ofher charges in Mercer
          County:" (December .9, 1998 letter frol1i: Hayes to-Mercer Couniy). Healso told hel"that he.

          would ·vJ.1'ite .a letter' 011 her behalf al the time of'her sentencing.

                  So even whi le counsel for th.e. defendant chose notto.pursue it orbring Ms -, Blues



         .introducing the prosecptors discovery Jetter) Hayes was required 10 somehow bring up the.

         .matter soihat the jury would .be nilly advised.of Ms. Blue's arrangement, such as.it was. ln Jig.ht

         .ofdefense counsel' s approach, how thiswas to be.done is riot clear but · it something needed to be

         done. Since neither J\ilr. Moore nor J\1h. Hayes providedfarthertestimony onthis point in a

         separate evidentiary heating we. are left with conjecture. Nonetheless-the prosecutor cannot Iet

         stand the erroneous impression that there was no favorable treatment' being afforded to the

         witness. This is so even though given MF. Moore's reticence in addressing-the issue 'directly.

         ·makes itlessclear how it wasto be accomplished. A..prosecutor's Jong recognized dutyto insure

         fundamental fairness must prevail.



                 Ii1 bis closing argument to the jury Moore-predictably ..challengesthe credibly of Ms.

         Blue's testimony:

                          .. .If Ms. Blue ·is telling you, whatevershe thinks she needs 10 say to get
                 what she wants Out of the district'attomeycr the police ortoget out of jail orto
                 _st�y oui of jail then you have to consider whether or not her. testimonyhas
                 anythii1g\1v.iJatsoever to do withtbe truth or thereality· of'what happened .111
                 December at Jethroes. (Trial Tr:,D.ay 51 p: 15)

                                                             "**

                                                                19




·-·, ..-.-.-....·------··..----------···---------                     ·-------------------
                                                      I'd askyou to consider how rnacy of the Co1nn1omvealth's\:vitncsses have
                                               something to gain Jira reason to help themselves or a i·d1s011 to help themselves or
                                               a reason to tell ML 'Hayes what they thinkhe wants them to say? How m.apy ate
                                               looking to get out, like Antoinette Blue did into a drug program and out of jail?
                                               (Trial       r-,
                                                          Day 5, p.29)


                                               In his. closing argument, Prosecutor Hayes addressed Blue's credibillty and asserts
                            that she honestly ineriminated herself by admitting to smokingmarijuaiiathe..night of the.

                            murder:

                                                Antoinette. s�1ys that she sees lfaskell over at the [sic JFeU.c.ia Clad('� place: She
                                                also sees him out in. the parking 101,.ancl here she is the one that is trying ta get
                                               .all this benefit from this=-this valuable testrmony. And what she says she's
                                                doing out there, she's committing a crime. She's smoking marijuana. That
                                                should help her pretty well.        ·

                             (friar Tr., Day 5, pp. 54-55). Hayes admits that Blue may have a motive for

                             h1ing but arzues that she is not lvinz:
                              -        .....        L.,;,           •          ...   '-•




                                               So; yes, -she gives her statement four years later; yes, it's during the time she's
                                               in prison. Is .it a lie? Of course not ltls not a He. Everything else that she says
                                               is consistent, Everything she does in terms of placing herself where she is
                                               consistent.        Yes, shebas a motive for lying; but again: is the information that
                                               she gives accurate or not based 011 eve1y1hing else you heard? Of course it is,
                                               She's not.a liar.rat least not about what. happened here. And.Ifshe's not aliar
                                               and if her information is good) here's your 111an ..

                             (TrialTr.,;O�tober.J, l998, 1:ip. 57).

                                               The. federal.appeals.court seemed.to conclude that Mr. Hayes' comments constituted

                              improper vouchi ng for he!' credi bilit).; and bolstering her perjured testimony. In Pennsy lvania

                              a prosecutor's argument on witness credibility constitutes .impennissihle "vouching" and

                              therefore prosecutorial misconduct in specific circumstances. The well established standard

                             was recently discussed by the Superior Court in Conunonweolth v. Lawre11ce, 165                       A.3d 34



                                                                                              20




.....--.---·····-....··-··-··-·-··..   ·---···-----------·--------------------------
                      (Pa. Super20.l 7). Qupiingfi-0111 'Connnonwealih v. .ludj,, 978A. 2d 1015 (Pa. Supel'2009),




                                     It is settled.that it is improper for a prosecutor 10 express a personal.
                             belief as to the: ..credibility of the defendant or other witnesses. Hov..-ever the
                             prosecutor may cornmem on the credibility ofwitnesses. Further a.prosecutor
                             is allowedto respond to defense arguments with logical force and vigor. If
                             defense counsel has attacked the credibility ofwitnesses jn closing, the
                             prosecutor may present argument addressing the witnesses' credibility.

                      Lawrence, 16.5 A:2d at 43. Specifically the Court reiterated the standard reiterated by our
                      Supreme Court i11 'Commonwealth v. 'Chiiniel, 30 A:3d ll 11 (Pa. 20J 1 ):

                                     Improper bolstering or vouching for a government witness occurs.
                             where the prosecutor assures thejiirythat the witness is credible, arid such
                             assurance is based.on either the prosecutor's personal knowledge or other
                             Information not contained in the.record.      .               .

                      Lawrence; at 42-.:43.

                             Here it is clear that Mr. Hayes was responding to defense counsel' s closing argument

                      challenging Ms. Blue's credibility, He did not.allude to any information not in the record or

                      anything abouthis own personal knowledge of the witness. H.e argued that Ms. Blue was not

                      a liar and pointedto evidence in therecordto support that conclusion. This included noting

                      her consistency with other witnesses, her fear   of the shooter and the fact that two.other

                      witnesses placed her at the scene of the crime in a pcsition to see the shooting. Indeed he

                      noted that she has a motive for lying.

                             4. Conclusions

                         h1 light ofthe record, we find the following: (I) Attorney Hayes and Detective Skindell 'did

                      take measures to discuss Blue's cooperation with the. Mercer County-prosecutor; (2) Attorney

                      Hayes explidt1y told Blue that he would-not be able to help her with her charges in Mercer

                      County; (J) Mr. Hayes either directly or through Detective Skindell told Blue that the sentencing

                                                                       �1




---..·---·--··-   _     ,----··----·----
  judge .in Meteer County 1,�101.ffd be notified about her cooperation in the Haskell case;(4) the

 . prosecutor did send                a: letter to the sentencing judge advising him of her cooperation; (5) As apart
  of a plea agreement the Mercer County prosecutor agreedto recommend (and Blue received) a

  sentence of probatlon on her Mercer County charges." (5) Attorney Hayes explicitly informed

  Attorney         Moore that he and Skindef were trying to get 'lenient treatment for Blue at the time of

  her sentencing in Mercer Comity; (6)there is nothing inthe record to demonstrate that Blue.

 received favorable treatment in any of her Erie. county criminal matters as a result of her

 cooperation; and (6) prior to iri,d; Hayes provided Moore :with Blue' s pd or record and informed

 him ofBltie'� pending charges in }.,1erce.r County;(7) AJtomey Hayes' .cornrrients in                          closing
 argument regarding Ms. Blue's credibility do not constitute impermissible "vouching"; and (8)

 Hayes' failure-to reveal to.the Haskell Court andjury Hayes' promise to Blue tell Blue's Mercer

 County sentencingjudge of Blue's cooperation, was error,

                    C. Double Jeopai·dv

       While the Third Circuit determined that Mt. Hayes' overall conduct in failing to correct

 Blue's perjured.testimony about her pending charges and her hopefor lenient treatment was

sufficientto grant.habeas relief, this Court needs to determine whether that conduct was such

that
 .   . J\1r.
         .   Haskell
               . . . . should
                         . . . 'be
                                 . . . .. from
                                   barred  . ... being re-tried.           A!. llOter,l   above,   in 9.rder   to stapp-ort
                                                                                                                     : .
                                                                                                                              a


double-jeopardy claim; prosecutorial misconduct must be. deliberate, undertaken.in bad faith and

with a specific inten! 1.0 de11y the defendant a fair trial. Commonwealth ;:.-.1J.ase1i201°e, 875.A;2d

" ·-· oj ,j"'5 ·6.· (P
.,:,                    . super.
                     , .a: ·     ;,_?OO. .:>') •

            TJ1e DoubleJeopardy Clauses of the fifth Amendment tothe United States
            Constitution and Article 1, § l O of the Pennsylvania Constitution protect a.
            defendant from repeated criminal prosecutions for the same offense,

,� Although the Court imposed a "suspended sentence" of' one to· four years, Pennsylvania does not ·
recognize suspended sentences perse,                   ·
       Ordii1arily,1he law permits retrial when the defendant successfully moves for
       mistrial. lf.Jiowever, the prosecution engages in certain forms of intentional
       misconduct, the Double Jeopardy Clause bars retrial. Article I, §J 0, which 6(1:r
       Supreme Court. has construed more broadly than its federal. oounterpart, bars
       retrial not only when prosecutorial misconduct is .intended fo 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 aprosecuto» does.not deprive
       the defendant of a fair trial. However, where the prosecutor's conduct changes
       from mere errorto intentionally subverting the court process, then a fair trial is
       denied.

Commonwealth .v, Adams, 177 A. 3d 359, 371 (Pa. Super, 2017). Intentionalproseeutorial:

misconduct "raises systematic concerns.beyond a specific individual' s l'ight to a fair trial that

are Ieft unaddressed by retrial." Graham, 109 A.3d al 736. 011 the other hand, dismissal of

criminal.chargesvshould be utilized only in themost blatant cases." Commonwealth v.

Burke, 781 A.2d 1136 (Pa. 200]).
       We must address the question of whether Attorney Hayes intended to deprive Haskell

of a fair trial. A comparative examination of the relevant case.law is instructive. The seminal

prosecutorial.misconduct ldoublejeopardy caseis Commonwealthv. Smith, 615 A.2d32.I

(Pa. 1992). In Snt.ith the prosecution intentionally withheld key physical evidence .at trial,

suppressed evidence.while arguing forthedeath penalty on appeal, and attempted to discredit

a truthful.state trooper Who hadconducted the murder investigation. In addition, Smith

claimed that.the Commonwealth ki.16W.ingly
                                        .  denied. the existence of an agreement.
                                                                         .        providing

favorable sentencing treatment in exchange for his testimony against Smith. Id. at 180.

The Pennsylvania Supreme Courtstated:

       Deliberate failure to disclose material exculpatory physical evidence <luting a
       capital trial, intentional, suppression of the evidence while arguing in favor of the.
       death sentence 011 direct appeal, andthe investigation of'Corporal.Balshy's.role.in
       the production of the evidence rather than its own role in the suppression .of
       evidence constitute. prosecutorial misconduct such as violates all principles of

                                                 23
                              justice and fairness embodied in the-Pennsylvania Constitution's.double jeo�ardy
                              clause.

                       Id-. ar 183. On the basis of these facts; the Smith court held:

                              Wenowhold that the double jeopardy clause of the Pennsylvania Constitution
                              prohibitsretrial ofa defendant notonly when prosecutorial misconductis
                              intended to provoke the defendantinto moving for a mistrial, but also when
                              the conduct of the prosecutor is intentionally undertaken to prej udice the
                              defendant to the point of the de11 ial of a fair trial.

                       )d. at 186.

                              Similarly, in Com1nomreaM1 v.. Manorano; 74.1 A.. 2d l 221 (Pf!.. 1999), the Pennsylvania

                       Supreme Court found that the prosecutor acted in bad faith throughout the trial, consistently

                       making.reference to evidence.that was ruJcd inadmissible, defying the court's rulings on

                       objections, and in a "Machiavellian" tactic, repeatedly insisting that there was fingerprint

                       evidence 'linking defendants. to the crime. when he knew for a fact that no such evidence existed.

                       The.. Supreme Court held that while these tactics do not constitute the concealmentofevrdenceas

                       in Smith, it. deprived
                                        .     defendant.of a fair trial, This is the kind of .prosecutorial overreaching to

                       which doublejeopardy protection applies.

                              Both Smith and Martorano require intentional misconduct. Where thereis 110 such

                   . intentional misconduct, Pennsylvania Courts have not found a bar. to retrial. In Commonwealth v,

                       Burke, 781 A.2d 1136 (Pa, 2001) the SupremeCourt held that dismissal.ofcharges was not

                       appropriate where the Commonwealth's failure to provide discovery materials stemmed from

                   .misconummicaiien between the.police departments and/or police. mishandling of the evidence.

                       Because there was no intentionalmisconduct, as in Smithidoubleje.op�rdy protections were not

                       implicated. Id. at 1145.

                              Similarly, in Commonwealth i1.. Moose, 623 A .. 2d 831 (Pa. Super. 19�3 ), a proseoutor

                   failed
                    ·.  . to infonn1he
                                  ..   defense
                                         .     until
                                               ..    the
                                                      . . first
                                                          ...   dav
                                                                .   of.trial
                                                                      _. .   . ofits
                                                                                   . intent
                                                                                      . . . to tall
                                                                                               . .. . a witness
                                                                                                         .      who would
                                                                                                                     .




--·-·--- . ·-·-   ,-            _
testify that the defendant had .admitted to him while they were in.jail together that the defendant

hadraped the victim and hit her in the head with a tock, 11,e Superior Court found this case

distinguishablefrom Smith .since the Moose prosecution did inform the court and defense counsel

of the witness's statement, albeit ar the    last minute. "There is no evidence, as there was in Sniith
that
  . . the Commonweairh
            .  .. · .  intended
                          ·..   .· forever
                                10  .    .. conceal
                                         :     . . the witness
                                                       .       statement.
                                                               . ... ·
                                                                 .        ,. id. at 83 7.
                                                                             .....


Moreover, this did not. involve the withholding ofa "crucial piece of-physical evidence" that

clearly exculpated the defendant. There.. was no "clear, .calculated orchestratiorr by the:

prosecntion to deny [the de fondant J a fair trial." Id.

        In Commonwealth v; Kem·1.1s1 70 A. .3dR8l (Pa. Sttper.2013)� the Pennsylvania Superior

Court reversed the gram of double jeopardy reliefafter the prosecution failed to turn.over police

·repo1·1s arid witnessstatements to defense counsel. The Superior Court found that although the

prosecution acted in a grossly negligent manner, it did not act Interrtionally, "Nevertheless, gross

negligence on the part of the Commonwealth is never a sufficient basis upon which to bar retrial

ondouble jeopardy grounds;" Id at 886.

       Even where the prosecutorial misconduct is-intentional, it must rise beyond the level of

negligence, gross negligence: or even reckless conduct. In.Cm1iJizo11wealth 11. Basemore, 875 A.

2d 350 (Pa. Super. 2005).. the Pennsylvania Superior Court found that a Batson violation did not

constitute prosecutorial misconduct to sucha degree that.it triggered double.jeopardy protection,

despite the fact that the prosecutor acted intentionally. The-record indicated a. conscious strategy

to exclude Africari-American jurors inan improper use of-peremptory challenges during vair

dire. Nonetheless, the Superior Court concluded:

       It is well-settled that eBatson violationconstitures intentional misconduct by.a
       prosecutor and.a violation ofthe defendant'sconstitutional rights. However,
       Appellant-has provided no persuasive. legalsupport for his claim that a Batson



                                                    25




                      ...    ,.,   ,     ,                                                                w   _
                  violation, .. constitutes the type ofprosecutorial misoonduct that Smith,
                  Martorano, Breit, and Rogan were designed: to.remedy.
                     15
 Idr- ·l::L·t
il              355
                 --•


                  In Commonwealth v Adams, 177 A.3d 359, 371(])�1. Super. 2017), the Pennsylvania

Superior Court found that the police and prosecutor' s failure to turn over a video recording of a

witnesses interview, even though intentional, was not a.result of intentional bad. faith. The Adams

courtnoted:

                           Ofutmost concern, however, is Corporal Zeybel's.admission that-he enters
                   011ly those [ videotaped witness statement] recordings-into evidence .that include
                 • inculpatoty, and J101 exculpatory, statement; 1hat he does so in order that the
                   multitudinous recordings \\·:ill not become a "thorn" in the. side of the state police;
                   and thathe does so .in open contravention of police regulations. These actions ate
                   intentional. However, absent a showing that Corporal Zeybel intentionally
                   with.held or destroyed evidence in Appellant' s case in an attempt to deprive
                  Appellant of a fair trial, we agree withthe trial.court that dismissal is not the
                 appropriate remedy ..

Adams;            at 374. (emphasis added).
                 Finally, in the case. most similar to ours, the Pennsylvania Superior Court in

Commonwealth v. Strong, 825 A.2d 658; 669-670 (Pa. Super. 2003t he1d thatthere was .110

violation of the double jeopardy clause where a key witness fri a murder trial lied on the stand

denying his explicit deal with the prosecution for leniency with respect to his.own criminal

charges in. exchange for his testimony against' his. co-defendant .. Strong's co-defendant, who was

pres�nt. the night.of the murder, testified in .a.later proceeding that he lied -during Stron:�' s trial.

H�      \\'.�S    asked whether he, had an agreement with the Coinmonwealth regarding his own charges

and he had denied ail"}<quid pro quo. In fact, the witness did have an understanding with the

Commonwealth thal ifbe' testified against Strong he would receive aminimum sentence inhis

own case. The prosecutor told hint not to say anything about the deal they had. While the

15
     Staie of New Mexico v. Breit, 1}2 NJvl. 655 {19.96); State of Hawai 'i,,. Rogan. 91 Hawai': 405 (19:99),
                                                            2.6
                                     Superior Court held thatthe prosecution had committed a clear Brady violation, the Sh·ong�ourt

                                     concluded that, "the evidence did not support a finding that the. Commonwealtlrspecifieally

                                     intended to deJ)l'J've defendant of a fair trial." Strong, 825 A; 2d at 670. The court found that

                                     "Although, 'as in Moose, the district attorney' s behavior 'represented a breakdown in our

                                     adstinistration of justice,' the. evidence does.not. stiJ:>l)Ofl 8 finding that the.Commonwealth

                                     specifically intended to deprive Strong of a fair triaL'']cl. "The proseciuors conduct, while

                                     egregious, does not rise to the ]evd oJ subversive tactics present.in Shiith. '' Id.

                                                Here, there is not even the suggestion of an explicit agreement to keep a. cooperation

                                     agreement for .Iavorable treatment from thejury or the Court, Hayes fully disclosed to defense

                                     counsel not only the exact parameters ofthe.Commonwealth's effort to effectleniency for her at

                                 thetime of-sentencing .but as required Blue's criminal history. Thefailure to correctBlue's

                                     inaccurate testim6l1Y about expectations for leniency in the Mercer County matters arid

                                 specificallythe. prosecutor's promise. to tell the sentencing judge aboutheroooperation .in the

                                 case; while certainly ofsignificant concern, does not in the absence of other evidence, rise to the

                                 level of.the kind ofpervasive intentional misconduct from whieh an intention to.deprive Mr.

                                 Haskell of his right to a fair trial.can be.implied. Mr. Hayes' error arose in circumstances where

                                 defense counsel had be.en advised         i11.   writing of the contours of the pro'secrrtor+s commitment to

                                 Ms. Blue and chosenot to bring.it.directlyto the attention of the jury.



                                           Ht      CONCLUSION

                                                Upon .a review of the facts; we do nor find that.prosecutor Hayes engaged .in pervasive,

                                 .incessant, or outrageous conduct, nor do we find that he intentionally undertook to prejudice the




                                                                                            27




.............   ,.   ,_,,   -,   ,   ..   ,---·--·----·-·------------------------------
 defendant to the. point of denxing him a fair trial According] y) this Court. entered its .Order of

 June.Zl, 2.018 denying Mr. Haskell's Motion to Dismiss,




cc:   District Atto:ri1ey'sOffic�
      Alison M. Scarpitti, Esq.




                                             2.8
