J-S32002-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                            :        PENNSYLVANIA
                                            :
              v.                            :
                                            :
                                            :
 PHILLIP G. MOELLER, JR.                    :
                                            :
                     Appellant              :   No. 1580 MDA 2017

            Appeal from the Order Entered September 25, 2017
             In the Court of Common Pleas of Schuylkill County
            Criminal Division at No(s): CP-54-CR-0001646-2015


BEFORE:    PANELLA, J., NICHOLS, J., and PLATT*, J.

MEMORANDUM BY PANELLA, J.                          FILED SEPTEMBER 14, 2018

      Appellant, Phillip G. Moeller, Jr., challenges the order entered in the

Schuylkill County Court of Common Pleas, denying his motion for dismissal

based on double jeopardy grounds. We affirm.

      The relevant facts and procedural history of this case are as follows.

Appellant called 911 after his girlfriend’s grandson, T.G., whom he had been

babysitting, was unresponsive. A responding officer noted the boy’s stomach

was distended, and his breathing was shallow and irregular. Emergency

medical workers airlifted T.G. to the pediatric intensive care unit at an area

hospital, where he later died from his injuries.

      Appellant entered a no-contest plea to involuntary manslaughter, which

the court later permitted him to withdraw. He proceeded to a jury trial. At

trial, the responding officer testified Appellant told him at the scene that T.G.’s

injuries were the result of a fall from his bed. See N.T. Trial, 6/6/17, at 24.

____________________________________
* Retired Senior Judge assigned to the Superior Court.
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The officer stated that hospital staff informed him the magnitude of T.G.’s

injuries was inconsistent with a fall. See id., at 26. When confronted with that

information, Appellant told police he had been playing with the boy when the

injuries occurred. See id., at 32.

      Ms. Stone testified Appellant had also given her inconsistent statements

about how her grandson was injured. She stated Appellant had asked one of

the attending nurses whether T.G. would “remember anything or be able to

talk” if he woke up again. Id., at 70. Ms. Stone related that, when she

mentioned the large bruises on T.G.’s neck, Appellant spontaneously insisted

they were “not thumbprints.” Id. at 72.

      After the second statement, defense counsel moved at sidebar for a

mistrial, on the basis that, despite counsel’s request, the Commonwealth

failed to provide these incriminating statements during discovery. The court

granted a mistrial. Defense counsel then filed a motion to dismiss the case

with prejudice. The court held a hearing.

      Counsel for the Commonwealth denied any intent to conceal the

testimony. Counsel stated a document containing part of Ms. Stone’s previous

interview with police about those statements was simply misplaced due to an

oversight. He also attested he did not intend to elicit that testimony from Ms.




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Stone during trial. The court ultimately denied the motion to dismiss.1 This

appeal is now properly before us.

       Appellant contests a single issue on appeal: whether the trial court erred

in denying his motion for dismissal, based on his allegation that counsel for

the Commonwealth withheld information about Ms. Stone’s testimony.

       An appeal grounded in double jeopardy raises a question of
       constitutional law. This court’s scope of review in making a
       determination on a question of law is, as always, plenary. As with
       all questions of law, the appellate standard of review is de novo[.]
       To the extent that the factual findings of the trial court impact its
       double jeopardy ruling, we apply a more deferential standard of
       review to those findings:

       Where issues of credibility and weight of the evidence are
       concerned, it is not the function of the appellate court to substitute
       its judgment based on a cold record for that of the trial court. The
       weight to be accorded conflicting evidence is exclusively for the
       fact finder, whose findings will not be disturbed on appeal if they
       are supported by the record.

Commonwealth v. Lynn, ___ A.3d ___, ___, 2018 WL 3153694, *3-4 (Pa.

Super., filed June 28, 2018) (citation omitted; brackets in original).

       “Ordinarily, the law permits retrial when the defendant successfully

moves for mistrial.” Commonwealth v. Adams, 177 A.3d 359, 371 (Pa.

Super. 2017) (citations omitted). “If, however, the prosecution engages in

certain forms of intentional misconduct, the Double Jeopardy Clause bars

retrial.” Id. (citations omitted). A prosecutor’s misconduct bars retrial where


____________________________________________


1The court specifically found the motion for dismissal was not frivolous. Thus,
under Pa.R.Crim.P. 587(B)(6), this rendered the denial of Appellant’s motion
immediately appealable as a collateral order.

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he either intends to provoke the defendant into moving for a mistrial, or where

his actions are intentionally undertaken to so prejudice the defendant that he

is denied a fair trial. See Commonwealth v. Graham, 109 A.3d 733, 736

(Pa. Super. 2015). Mere prosecutorial error does not deprive a defendant of a

fair trial. See id.

      Here, the trial court made numerous findings of fact about the

Commonwealth’s discovery omission. The court found defense counsel

requested information about the substance of any inculpatory statements, and

that the Commonwealth failed to inform counsel of the statements Ms. Stone

alleged     that   Appellant    made.   The    court   also   determined    that   the

Commonwealth appreciated the significance of Ms. Stone’s statements, and

intended to elicit these during direct examination. However, the court deemed

the withheld statements inculpatory, and found the Commonwealth’s lapse to

be negligent and inattentive rather than intentional.

      Appellant asserts the Commonwealth’s conduct was calculated to

provoke him into moving for a mistrial, and to deny him a fair trial. But he

fails to provide evidence to prove either assertion. Instead, he merely

mischaracterizes the statement about the thumbprints on T.G.’s neck as

exculpatory, because a nurse who was present told the Commonwealth she

did   not    recall   hearing   it.   Testimony   from   the   hearing     about   the

Commonwealth’s trial prep only showed the nurse, when interviewed, could

not recall any information about T.G.’s case. Far from establishing a specific




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recollection that Appellant had not mentioned thumbprints, the notes show

only that the nurse was unable to remember the case entirely.

     Aside from the erroneous depiction of this evidence as exculpatory,

Appellant provides no proof that the Commonwealth gained an advantage by

failing to disclose it. Indeed, as punishment for doing so, the Commonwealth

must retry the case. In the absence of any evidence that the Commonwealth

intentionally withheld the statements, we must affirm the trial court’s order

denying Appellant’s motion for a dismissal.

     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 09/14/2018




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