J-A23017-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 RICHARD KRISTA                           :
                                          :
                    Appellant             :   No. 43 WDA 2018

                  Appeal from the Order December 8, 2017
   In the Court of Common Pleas of Allegheny County Criminal Division at
                     No(s): CP-02-CR-0007547-2012


BEFORE: BOWES, J., SHOGAN, J., and STABILE, J.

MEMORANDUM BY SHOGAN, J.:                       FILED FEBRUARY 15, 2019

      Appellant, Richard Krista, appeals from the order denying his motion to

bar retrial and dismiss charges. We affirm.

      Appellant was charged with two counts of homicide pertaining to his

involvement in the shooting of two men, which took place on May 11, 2012,

behind a housing project in West Mifflin.       Appellant’s first trial, which

concluded on October 10, 2013, ended in a mistrial due to a hung jury. His

second trial also ended in a mistrial on January 23, 2014, due to a hung jury.

Appellant was tried a third time. However, during defense counsel’s cross-

examination of a police detective, the Commonwealth objected to a series of

questions and suggested that Appellant can take the witness stand and explain

what happened on the night in question. Appellant moved for a mistrial, and

the trial court gave a curative instruction the following day. On June 5, 2014,
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at the conclusion of the trial, Appellant was convicted of two counts of first-

degree murder.      On July 29, 2014, Appellant was sentenced to serve two

consecutive terms of life imprisonment without parole. Appellant then filed a

direct appeal. On August 9, 2016, this Court vacated Appellant’s judgment of

sentence and remanded for a new trial after determining the prosecutor

impermissibly commented on Appellant’s decision not to testify, in violation of

Appellant’s Fifth Amendment rights, and the misconduct was not rendered

harmless by the circumstances under which it was made, or by the trial court’s

delayed curative instruction. Commonwealth v. Krista, 156 A.3d 332, 174

WDA 2015 (Pa. Super. 2016) (unpublished memorandum at 26).

        Upon remand, Appellant filed a motion to bar retrial and dismiss the

charges. The trial court held a hearing and denied the motion on December

8, 2017. Pursuant to Pa.R.Crim.P. 587(b)(4), the trial court stated in its order

that Appellant’s motion was not frivolous. This timely interlocutory appeal

followed.    Both Appellant and the trial court have complied with Pa.R.A.P.

1925.

        Appellant presents the following issues for our review:

        I. Did the Prosecutor Intentionally Engage in Egregious Misconduct
        to Deprive Appellant of his Right to a Fair Trial When, Knowing
        Appellant Was Not Going to Testify in his Defense, the Prosecutor
        Impermissibly Commented on Appellant’s Silence by Challenging
        Him to “Explain” Himself to the Jury on a Critical Point of
        Contention, Such that Double Jeopardy Bars a Fourth Trial in this
        Case?

        II. Whether this Court Should Bar Retrial and Dismiss the Charges
        Based upon Principles of Fundamental Fairness?

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Appellant’s Brief at 5.

       Appellant first argues that principles of double jeopardy bar a fourth trial

in this matter. Appellant’s Brief at 23-40. Appellant asserts the prosecutor

engaged in misconduct in an attempt to strip Appellant of his right to remain

silent and to deprive him of a fair trial, claiming that the comment challenged

the presumption of innocence protected under the Pennsylvania and United

States Constitutions.      Appellant notes that the prosecutor was aware that

Appellant chose to exercise his right to remain silent at his third trial.

Appellant contends that the intentional comment regarding Appellant’s silence

exploited the prosecutor’s knowledge to secure a conviction.

       Appellant’s issue invokes the protections afforded by the Double

Jeopardy Clause of the Fifth Amendment to the United States Constitution as

well as Article I, Section 10 of the Pennsylvania Constitution.1 As such, our

scope and standard of review are as follows:

       An appeal grounded in double jeopardy raises a question of
       constitutional law. This [C]ourt’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.




____________________________________________


1 The Double Jeopardy Clause of the Fifth Amendment provides that no person
shall “be subject for the same offense to be twice put in jeopardy of life or
limb.” Similarly, Article I, Section 10 of the Pennsylvania Constitution states
in relevant part, “No person shall, for the same offense, be twice put in
jeopardy of life or limb[.]”

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

omitted).

     “Double jeopardy, as it relates to prosecutorial misconduct, will attach

where the prosecutorial misconduct is calculated to trigger a mistrial.”

Commonwealth v. Diehl, 615 A.2d 690, 693 (Pa. 1992). We consider the

following in addressing double jeopardy claims:

     The Double Jeopardy Clauses of the Fifth Amendment to the
     United States Constitution[,] and Article 1, § 10 of the
     Pennsylvania Constitution[,] protect a defendant from repeated
     criminal prosecutions for the same offense. Ordinarily, the law
     permits retrial when the defendant successfully moves for mistrial.
     If, however, the prosecution engages in certain forms of
     intentional misconduct, the Double Jeopardy Clause bars retrial.
     Article I, § 10, which our Supreme Court has construed more
     broadly than its federal counterpart, bars retrial not only when
     prosecutorial misconduct is intended to provoke the defendant
     into moving for a mistrial, but also when the conduct of the
     prosecutor is intentionally undertaken to prejudice the defendant
     to the point of the denial of a fair trial. An error by a prosecutor
     does not deprive the defendant of a fair trial. However, where the
     prosecutor’s conduct changes from mere error to intentionally
     subverting the court process, then a fair trial is denied.

Commonwealth v. Graham, 109 A.3d 733, 736 (Pa. Super. 2015)

(quotation marks, brackets, and citations omitted).

     As our Supreme Court expressed in Commonwealth v. Smith, 615

A.2d 321 (Pa. 1980):

     [T]he double jeopardy clause of the Pennsylvania Constitution
     prohibits retrial of a defendant not only when prosecutorial
     misconduct is intended to provoke the defendant into moving for
     a mistrial, but also when the conduct of the prosecutor is
     intentionally undertaken to prejudice the defendant to the point
     of the denial of a fair trial.


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Smith, 615 A.2d at 325 (emphases added). Therefore, “whether a dismissal

is warranted turns on whether the Commonwealth intended to deprive the

defendant of a fair trial.” Commonwealth v. Adams, 177 A.3d 359, 372

(Pa. Super. 2017).

     As the Court in [Commonwealth v.] Graham[, 109 A.3d 733
     (Pa. Super. 2015),] explained, dismissal is an appropriate remedy
     in such a case because a mistrial would be an inadequate remedy
     for systematic intentional prosecutorial misconduct:

           By and large, most forms of undue prejudice caused
           by inadvertent prosecutorial error or misconduct can
           be remedied in individual cases by retrial. Intentional
           prosecutorial misconduct, on the other hand, raises
           systematic concerns beyond a specific individual’s
           right to a fair trial that are left unaddressed by retrial.
           As this Court has often repeated, “a fair trial is not
           simply a lofty goal, it is a constitutional mandate, . . .
           and where that constitutional mandate is ignored by
           the Commonwealth, we cannot simply turn a blind eye
           and give the Commonwealth another opportunity.”

     Graham, 109 A.3d at 736 (quoting Commonwealth v. Kearns,
     70 A.3d 881, 884-85 (Pa. Super. 2013), appeal denied, 84 A.3d
     1063 (Pa. 2014)). On the other hand, as our Supreme Court also
     has stated:

           Dismissal of criminal charges punishes not only the
           prosecutor . . . but also the public at large, since the
           public has a reasonable expectation that those who
           have been charged with crimes will be fairly
           prosecuted to the full extent of the law. Thus, the
           sanction of dismissal of criminal charges should be
           utilized only in the most blatant cases. Given the
           public policy goal of protecting the public from
           criminal conduct, a trial court should consider
           dismissal of charges where the actions of the
           Commonwealth        are     egregious     and     where
           demonstrable prejudice will be suffered by the
           defendant if the charges are not dismissed.


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     [Commonwealth v.] Burke, 781 A.2d [1136,] 1144 [(Pa. 2001)]
     (quoting Commonwealth v. Shaffer, 712 A.2d 749, 752 (Pa.
     1998)).

Adams, 177 A.3d at 372.

     As we explained in Burke:

     An example of egregious prosecutorial misconduct which has been
     deemed sufficient to warrant dismissal may be found in Smith.
     In Smith, the Commonwealth deliberately withheld from a capital
     defendant: (1) the existence of an agreement with its chief
     witness pursuant to which he received lenient treatment at
     sentencing on unrelated charges in exchange for his testimony,
     and (2) material, exculpatory physical evidence that it had
     discovered mid-trial. The physical evidence consisted of grains of
     sand that were found between the toes of the murder victim at
     her autopsy. The sand was consistent with Smith’s defense that
     the crime had been committed in Cape May, New Jersey, by
     others, and not by him in Pennsylvania, as the Commonwealth
     had alleged. At trial, when a Pennsylvania state trooper testified
     on cross-examination that granular particles which looked like
     sand had been removed from the victim’s body, the
     Commonwealth implied that [the trooper] had fabricated his
     testimony and the trial prosecutor recommended to his superior
     that he investigate the feasibility of prosecuting the state trooper
     for perjury. While the trial was still in progress, the state police
     discovered the adhesive “lifters” that had been used to remove
     and retain the sand from the victim’s feet. The Commonwealth,
     however, failed to disclose this evidence and, indeed, continued
     to suppress the evidence for over two years while the case was on
     direct appeal to this Court. In light of this deliberate, bad faith
     failure to disclose potentially exculpatory evidence, this Court
     discharged Smith under the double jeopardy clause of the
     Pennsylvania Constitution, opining that “it would be hard to
     imagine more egregious prosecutorial tactics.” [Smith,] … 615
     A.2d at 323.

           On the other hand, a mere finding of willful prosecutorial
     misconduct will not necessarily warrant dismissal of charges. For
     example, in Commonwealth v. Moose, … 602 A.2d 1265 ([Pa.]
     1992), [the Pennsylvania Supreme] Court found that the
     prosecutor’s failure to inform defense counsel of a witness’s police
     statement which contained incriminating admissions allegedly

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      made by the defendant amounted to a “willful violation of Rule
      305.” Id. at … 1274. The Court held that “the district attorney’s
      conduct raised significant ethical concerns” and referred the
      matter to the Disciplinary Board for its consideration. Id. … at
      1274 n.8 & 1276 n.12. Nonetheless, the Court did not dismiss the
      charges against Moose, but rather remanded the matter for a new
      trial. Id. … at 1276.

Burke, 781 A.2d at 1144-1145.

      The above language from Burke reflects a consistent approach in this

Commonwealth that retrial should be barred when the prosecutor’s

misconduct is an act of deliberate overreaching and not an isolated incident.

See, e.g., Commonwealth v. Martorano, 741 A.2d 1221, 1223 (Pa. 1999)

(retrial was barred where the “prosecutor acted in bad faith throughout the

trial, consistently making reference to evidence that the trial court had ruled

inadmissible, continually defying the trial court’s rulings on objections,” and

repeatedly insisting that there was physical evidence that the prosecutor knew

did not exist); Commonwealth v. Anderson, 38 A.3d 828 (Pa. Super. 2011)

(retrial was barred where prosecutor engaged in a pattern of pervasive

misconduct that culminated in a meeting during which the prosecutor coached

the victim-witness, a pattern that demonstrated the prosecutor intentionally

acted to prejudice the defendant).




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       Our review of the certified record reveals that, at Appellant’s third trial

in this matter, the following transpired during defense counsel’s cross-

examination of Detective Patrick Kinavey:2

       Q. Detective Kinavey, this [crime] happened on May 11, 2012;
       correct?

       A. That is correct.

       Q. And that was a Friday night; correct?

       A. Yes.

       Q. So one day later was Saturday. Sunday, two days. Monday,
       three days. Correct?

       A. That is correct.

       Q. You said it was six days. That’s when you recall me having
       contacted Detective Foley and turned [Appellant] in upon learning
       that there was a warrant for him? You recall that; don’t you?

              [Prosecutor]: Objection, Your Honor.          [Defense
              Counsel] is testifying.

              [Defense Counsel]: I’m asking.

              [Prosecutor]: If [Appellant] wants to take the stand
              and explain what happened, he can.

       [Trial Court]: Gentlemen, approach.

N.T., 5/28/14-6/5/14 (Vol. I), at 312. The record does not indicate that the

comment was directed to the jury, but rather was a statement made to the

trial court following the prosecutor’s objection. Moreover, the record does not


____________________________________________


2 It is undisputed that defense counsel negotiated Appellant’s eventual
surrender to the police. The surrender occurred six days after the murder.

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reflect, and Appellant does not assert, that the prosecutor made any additional

references to Appellant’s silence.

      With regard to Appellant’s double jeopardy claim and whether the

prosecutor’s comment should bar retrial, the trial court specifically stated in

its written opinion: “Following a hearing [to bar retrial], [the trial c]ourt found

no evidence that the prosecutor’s statement, while certainly egregious, was

intended to deny a fair trial.” Trial Court Opinion, 3/6/18, at 5.

      At the completion of the hearing on Appellant’s motion, the trial court

made the following pronouncement:

      With regard to my reading of the case law and the arguments in
      this case, the statement of Judge Williams regarding his
      understanding and the statements made by the Superior Court in
      their opinion, I would deny the motion, and find specifically that
      there is no evidence that the prosecutor’s conduct was
      intended to deny a fair trial.

            And I cite specifically to the guidelines for bad faith that
      have been set forth in some of the case law. The Superior Court
      indicated that while the statement was not a fair response to
      misconduct on the defense counsel’s part, it was a single incident,
      no subsequent attempts by the prosecutor to exploit the
      Appella[nt]’s silence and the comment did arise in the context of
      a discussion with the Judge and opposing counsel, not a direct
      address to the jury, such as during opening or closing arguments.
      That’s contained on Page 19 of the Superior Court’s opinion.

                                      ***

            So those comments, as well as Judge Williams’ comments,
      and my reading of the case law and circumstances in this case,
      the fact that the jury then did convict, and there is nothing to
      indicate that the Commonwealth believed that their case was
      going poorly at that moment, and the fact that the Superior Court
      actually took a good deal of time and consideration in addressing
      whether or not a curative instruction, if issued promptly, may, in

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      fact, have cured the prejudice, but because of the great delay in
      issuing the curative instruction, that did weigh in their
      determination that the curative instruction, under the
      circumstances of this case, was too late to preclude possible
      prejudice.

                                    ***

            I do think that the tensions were high; the parties and
      counsel were, both of them at that point, let’s say, pushing each
      other’s buttons, and while it was not a proper response, it
      was not a response calculated to create a mistrial or deny
      a fair trial, but rather an improper statement made out of
      frustration with defense counsel’s questioning.

            I cannot find, despite the clear violation of
      [Appellant’s] rights, that the prosecutor intentionally
      undertook to make the statement to deny a fair trial in this
      case.

N.T., 12/8/17, at 22-25 (emphases added).

      Likewise, upon review of the certified record, we are constrained to

conclude that there is insufficient evidence to demonstrate that the prosecutor

made the statement with the intention of provoking a mistrial.             The

prosecutor’s conduct in making a single statement does not approach that of

the deliberate, bad faith, prosecutorial misconduct that warrants dismissal of

charges under Smith. There is no evidence of deliberate overreaching by the

Commonwealth.        Although Appellant offers speculation regarding the

prosecutor’s motives in making the statement, there is no evidence supporting

his assertions. Hence, the error in this case does not approach the egregious

and intentional nature of the conduct required to bar a retrial. Accordingly,

Appellant’s claim fails.


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      Appellant also argues that retrial in this matter should be barred in order

to protect and enforce fundamental fairness.       Appellant’s Brief at 40-42.

Appellant contends that, because his first two trials ended in hung juries,

retrial should be prohibited and the charges dismissed. Id. at 42.

      In support of his argument, Appellant cites two federal district court

cases and two decisions issued by supreme courts of two of our sister states.

United States v. Ingram, 412 F.Supp. 384 (D.D.C. 1976), United States

v. Rossoff, 806 F.Supp. 200 (C.D.Ill. 1992), State v. Moriwake, 647 P.2d

705 (Haw. 1982), and State v. Abbati, 493 A.2d 513 (N.J. 1985).              Our

Supreme Court has explained that inferior federal court decisions, issued by

district courts and circuit courts of appeals, are not binding within this

Commonwealth. Stone Crushed Partnership v. Jackson, 908 A.2d 875,

883 n.10 (Pa. 2006). Rather, such decisions are to be treated as persuasive.

Id. Moreover, “[w]hile it is a truism that decisions of sister states are not

binding precedent on this Court, they may be persuasive authority[.]”

Commonwealth v. National Bank & Trust Co, 364 A.2d 1331, 1335 (Pa.

1976) (citations omitted). See also Eckman v. Erie Insurance Exchange,

21 A.3d 1203, 1207 (Pa. Super. 2011) (stating that “this Court is not bound

by the decisions of federal courts, other than the United States Supreme

Court, or the decisions of other states’ courts”). Appellant directs us to no

Pennsylvania authority to support his position that a retrial following two hung

juries should be precluded on the basis of fundamental fairness. However,


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there are multiple instances wherein this Court has permitted fourth jury trials

to commence in criminal matters and also affirmed convictions following fourth

jury trials. See, e.g., Commonwealth v. Tielsch, 934 A.2d 81 (Pa. Super.

2007) (affirming the appellant’s conviction of third-degree murder at fourth

jury trial, following three prior deadlocked jury trials); Commonwealth v.

Perrin, 414 A.2d 650 (Pa. Super. 1979) (concluding that double jeopardy did

not preclude fourth jury trial).

      Upon review of Pennsylvania case law, as well as the non-binding

authority cited by Appellant, we conclude that there is no bright-line rule that

compels us to bar a retrial on the basis of fundamental fairness. Moreover,

we refuse to create such a ruling in this instance.        Hence, we decline

Appellant’s invitation to exercise our discretion to preclude a fourth trial and

dismiss the charges.

      Order affirmed. Case remanded for further proceedings. Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/15/2019




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