J-A22045-18

                                   2018 PA Super 289


    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ANTHONY WASHINGTON                         :
                                               :
                       Appellant               :   No. 1099 EDA 2017

                      Appeal from the Order March 2, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-1210371-1993


BEFORE:      BENDER, P.J.E., NICHOLS, J., and STEVENS*, P.J.E.

OPINION BY STEVENS, P.J.E.:                            FILED OCTOBER 24, 2018

       Appellant Anthony Washington appeals from the Order entered in the

Court of Common Pleas of Philadelphia County on March 2, 2017, denying his

“Motion to Preclude Retrial and Dismiss All Cha[r]ges on the Basis of

Intentional Prosecutorial Misconduct, Pursuant to the Double Jeopardy Clause

of the Pennsylvania Constitution and the Federal Constitution.” After careful

review, we affirm.1
____________________________________________


1 “While an order denying a motion to dismiss charges on double jeopardy
grounds is technically interlocutory, it is appealable as of right as long as the
trial court certifies the motion as non-frivolous.” Commonwealth v. Lynn,
192 A.3d 194, 196 n. 1 (Pa.Super. 2018) (citing Pa.R.Crim.P. 587(B)(6);
Commonwealth v. Barber, 940 A.2d 369, 376 (Pa.Super. 2007) (“It is well
settled in Pennsylvania that a defendant is entitled to an immediate
interlocutory appeal as of right from an order denying a non-frivolous motion
to dismiss on state or federal double jeopardy grounds.”)). In the matter sub
judice, the trial court denied Appellant’s motion to dismiss on its merits and
determined it was non-frivolous. See Trial Court Opinion, filed 7/26/17, at 3.
Thus, under Pa.R.Crim.P. 587 (B)(6), this rendered the denial of Appellant’s


____________________________________
* Former Justice specially assigned to the Superior Court.
J-A22045-18



       The trial court aptly set forth the procedural history and relevant facts

herein as follows:

       PROCEDURAL HISTORY

              The Appellant was found guilty of first degree murder and
       sentenced to death on December 9, 1994. Commonwealth v.
       Washington, 700 A.2d 400 (Pa. 1997). The Supreme Court of
       Pennsylvania affirmed the conviction and death sentence on direct
       appeal. Id. On August 20, 2007, [Appellant] filed a motion to stay
       execution and to appoint counsel to represent him in a to-be-filed
       habeas petition, which was granted on August 23, 2007.
       Washington v. Beard, 2015 WL 234719 at *1 (E.D. Pa. Jan. 16,
       2015).
              [Appellant] filed a federal habeas petition on May 5, 2008.
       Id. On January 16, 2015, after an evidentiary hearing, Judge
       Stengel found that the Commonwealth violated both Brady1 and
       Bruton2, vacated the Appellant's conviction and sentence, and
       remanded the matter for a new trial. Id.
              The Defender Association of Philadelphia was appointed as
       counsel and filed a motion/memorandum titled "Motion to
       Preclude Retrial and Dismiss all Cha[r]ges on the Basis of
       Intentional Prosecutorial Misconduct, Pursuant to the Double
       Jeopardy Clause of the Pennsylvania Constitution and the Federal
       Constitution" on July 13, 2016. The Commonwealth filed
       "Commonwealth's Answer to Defendant's Motion to Preclude
       Retrial and Dismiss All Charges on the Basis of Intentional
       Prosecutorial Misconduct" on August 17, 2016.3
              A hearing on the motion was scheduled for March 2, 2017.
       Appellant's presence was waived by counsel. N.T. 3/2/2017, p.
       3.[2] The Commonwealth and Appellant's counsel stated that both
       sides intended to rely on the pleadings filed in this matter and
       argument. N.T. 3/2/2017, p. 4-5. After consideration of the
       pleadings and arguments of counsel, this [c]ourt denied
       Appellant's motion, but found that the motion was not frivolous

____________________________________________


motion immediately appealable as a collateral order, and the instant appeal is
properly before us. See Lynn, supra.
2 Despite the trial court’s statement to the contrary, the notes of testimony

reveal that Appellant was present, sworn, and testified at the March 2, 2017,
hearing. N.T. Hearing, 3/2/17, at 35.

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     and the denial was automatically appealable as a collateral issue.
     N.T. 3/2/2017, p. 32.
             The Appellant filed a notice of appeal on March 29, 2017.
     On the same day, this [c]ourt ordered the Appellant to file a
     1925(b) statement within twenty-one (21) days of the filing. On
     April 11, 2017, Appellant filed a request for an extension of time
     to file the 1925(b) statement because the notes of testimony were
     unavailable. Appellant requested an extension for the 1925(b)
     statement for twenty-one (21) days after the notes of testimony
     were made available. This [c]ourt granted the extension on April
     13, 2017.
             Notes of testimony were uploaded to the Court Reporting
     System on May 2, 2017. The Appellant filed a "Statement of Errors
     Complained of on Appeal" on June 21, 2017. Counsel for the
     Appellant stated that the notes of testimony were received on
     June 2, 2017. This [c]ourt notes that another copy of the notes of
     testimony was uploaded on June 1, 2017.
             Appellant asserts that this [c]ourt erred in not finding that
     the conduct of the prosecutor was "deliberate, egregious, and was
     intended to prejudice the defendant and deny him a fair trial."
     Appellant's Statement of Errors Complained of on Appeal, page 2.

     STATEMENT OF FACTS

           The following factual statement is incorporated from District
     Judge Stengel's opinion in Washington v. Beard, 2015 WL 234719
     at *1 (E.D. Pa. Jan. 16, 2015). No additional facts were presented
     in the Appellant's or Commonwealth's pleadings.4

          a) Facts of Appellant's Trial

           On January 23, 1993, two men robbed a Save-A-Lot in the
     Kensington Area of Philadelphia. Id. During the course of the
     robbery, the emergency gate to the front of the store started to
     close, causing the robbers to flee. Id. They were pursued by Tracy
     Lawson, an unarmed security guard working at the Save-A-Lot.
     Id. Police Officer Gerald Smith, who was moonlighting as a
     security guard at an adjacent store, joined the pursuit and fired a
     shot at the fleeing men. Id. One of the robbers fired a shot in
     Lawson's direction in response. Id. Lawson was struck in the head
     by the bullet and died of the wound. Id.
           The Appellant and Derrick Teagle were arrested and charged
     with robbery, murder, and related offenses. Id. Teagle gave a
     statement to the police before being arrested. Id. This statement

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J-A22045-18


     outlined his involvement in the robbery and named the Appellant
     as the other robber and as the person who shot Lawson. Id. The
     Appellant's name was replaced with "blank" when the statement
     was read to the jury at trial. Id. Neither Teagle nor the Appellant
     testified at trial. Id.
            The identity of the shooter was a contested issue at trial. Id.
     at *23. Several witnesses identified Teagle and/or the Appellant
     as one of the robbers on the night of the shooting. Id. Two Save-
     A-Lot employees identified Teagle as the only person they saw
     with a gun the night of the robbery. Id. Officer Smith identified
     the Appellant as the robber who shot Lawson, both at a line-up
     and at trial. Id. The Appellant's then former girlfriend and her
     sister both testified that the Appellant admitted to being the
     shooter and the Appellant's brother testified that he saw the
     Appellant and Teagle sitting with piles of money later that night.
     Id.
            During closing arguments, ADA Gilson used Teagle's
     statement in a manner which "broke" the redactions of the
     Appellant's name. Id. After the second break in redaction, defense
     counsel objected and requested a mistrial. Id. The judge
     admonished ADA Gilson, but denied the request for mistrial. Id.
     Instead, the judge gave a cautionary instruction to the jury,
     reminding them that Teagle's statement could not be used in
     determining the guilt of the Appellant and any reference to the
     Appellant while discussing Teagle's statement must be ignored.
     Id. However, ADA Gilson implicated the Appellant while
     referencing Teagle's statement two more times. Id. Defense
     counsel once again objected and requested a mistrial. Id. The
     judge again admonished ADA Gilson and told him he was close to
     having a mistrial, but instead allowed the closing argument to
     continue after giving another cautionary instruction to the jury.
     Id. The jury convicted the Appellant of first degree murder and
     sentenced him to death.5 Id.

          b) Brady and Bruton Violations

          Judge Stengel determined that the Commonwealth violated
     [Brady] by failing to turn over four documents prior to the trial.
     Id. Three documents were separate descriptions of the robbers
     from the Philadelphia Police Department. Id. In each document,
     the robber matching Teagle's description was described as having
     a gun. Id. Further, none of the documents placed a gun in the
     hand of the other robber. Id. The documents were attached to a
     motion to reconsider the Appellant's supplemental PCRA petition

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J-A22045-18


      on July 24, 2001. Id. It is still unclear as to how the Appellant
      found this evidence.
            The fourth document was a police activity sheet dated
      February 25, 1993, showing that three witnesses to the robbery
      were shown a photo array. Id. The photo array included the
      Appellant, but no witness was able to make a positive
      identification. Id. However, two of these witnesses positively
      identified the Appellant at trial. Id. This fourth document was not
      produced until federal discovery was ordered. Id.
            Judge Stengel concluded that the documents in the
      aggregate may have well been material to the Appellant's case
      and that there was a "reasonable probability that the disclosure of
      these descriptions would have changed the outcome of the trial,
      particularly in regard to who the jury found to be the shooter." Id.
      at *25.
            Judge Stengel also found that ADA Gilson violated Bruton
      when he implicated the Appellant using Teagle's statement.6 Id.
      at *14. ADA Gilson "relied on an inference that Washington was
      identified in Teagle's statement as one of the gun-toting robbers."
      Id. at *16. By ignoring the redactions, the prosecutor presented
      to the jury a statement where "Washington [was] featured as the
      other robber and, most likely, the shooter." Id. at *16.
      ____

      1 Brady v. Maryland, 373 U.S. 83 (1963).
      2 Bruton v. United States, 391 U.S. 123 (1968).
      3 ADA Mark Gilson submitted the Commonwealth's answer and

      argued the motion before this [c]ourt. ADA Mark Gilson was also
      the prosecutor who tried the Appellant in 1994.
      4 Counsel for the Appellant incorporated Judge Stengel's opinion

      by reference in his motion/memorandum.
      5 Teagle was convicted of second degree murder and sentenced

      to life imprisonment.
      6 Judge Stengel also found that replacing the Appellant's name

      with "blank" was an improper redaction under Gray v. Maryland,
      118 S.Ct. 1151 (1998). Washington, 2015 WL 234719 at *9.

Trial Court Opinion, filed 7/26/17, at 2-8.

      In his brief, Appellant presents the following Statement of the Question

Involved:




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J-A22045-18


             Did not the court err and abuse its discretion in denying the
      defense motion to preclude retrial and dismiss all charges, where
      the prosecutorial misconduct at issue was deliberate, egregious,
      and was intended to prejudice [Appellant] and deny him a fair
      trial?

Brief for Appellant at 3.   In considering this claim, we are guided by the

following:

            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[.] 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. Graham, 109 A.3d 733, 736 (Pa. Super.
      2015) (citation omitted).
             The Double Jeopardy Clauses of the Fifth Amendment to the
      United States Constitution and Article 1, § 10 of the Pennsylvania
      Constitution prohibit retrial where prosecutorial misconduct during
      trial provokes a criminal defendant into moving for a mistrial. See
      Oregon v. Kennedy, 456 U.S. 667, 679, 102 S.Ct. 2083, 72
      L.Ed.2d 416 (1982); Commonwealth v. Simons, 514 Pa. 10,
      522 A.2d 537, 540 (1987). However, Article 1, § 10 of the
      Pennsylvania Constitution offers broader protection than its
      federal counterpart in that
            the double jeopardy clause of the Pennsylvania
            Constitution prohibits retrial of a defendant not only
            when prosecutorial misconduct is intended to provoke
            the defendant into moving for a mistrial, but also when
            the conduct of the prosecutor is intentionally undertaken
            to prejudice the defendant to the point of the denial of a
            fair trial.


                                     -6-
J-A22045-18


      Commonwealth v. Smith, 532 Pa. 177, 615 A.2d 321, 325
      (1992). Pennsylvania has adopted a strict remedy for intentional
      prosecutorial misconduct:
          [U]nder Pennsylvania jurisprudence, it is the
          intentionality behind the Commonwealth's subversion of
          the court process, not the prejudice caused to the
          defendant, that is inadequately remedied by appellate
          review or retrial. By and large, most forms of undue
          prejudice caused by inadvertent prosecutorial error or
          misconduct can be remedied in individual cases by
          retrial. Intentional prosecutorial misconduct, on the
          other hand, raises systematic concerns beyond a specific
          individual's right to a fair trial that are left unaddressed
          by retrial.
      Commonwealth v. Kearns, 70 A.3d 881, 884–885 (Pa. Super.
      2013) (footnote and emphasis omitted).

Commonwealth v. Lynn, 192 A.3d 194, 199-200 (Pa.Super. 2018).

“[B]ecause of the compelling societal interest in prosecuting criminal

defendants to conclusion, our Supreme Court has recognized that dismissal of

charges is an extreme sanction that should be imposed sparingly and only in

cases of blatant prosecutorial misconduct.” Commonwealth v. Wilson, 147

A.3d 7, 13 (Pa.Super. 2016) (citations omitted).

      Appellant generally asserts that each of the three aspects of impropriety

the District Court identified as having occurred during trial and being sufficient

to grant the writ of habeas corpus was “deliberate, egregious, and was

intended to prejudice [Appellant] and deny him a fair trial.” Brief for Appellant

at 17 (referencing District Judge Stengel’s Opinion in Washington v. Beard,

2015 WL 234719 (E.D. Pa. filed Jan. 16, 2015) (unpublished memorandum)).

Appellant maintains the prosecutor intentionally attempted to violate the




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J-A22045-18


redaction of Teagle’s statement in an effort to use it against Appellant despite

repeated admonishments from the trial court. Id. at 22-23, 25.

      In   addition,   Appellant   contends   the   Commonwealth    suppressed

evidence in the form of the three, contemporaneous witness statements that

identified Teagle as the shooter along with the police activity sheet which

indicated three eyewitnesses were shown photographs of Appellant and could

not identify him as a participant in the robbery. Id. at 23-24. Appellant posits

that the aforementioned is the same type of “prosecutorial overreach” which

led to the Pennsylvania Supreme Court’s barring retrial in Commonwealth

v. Smith, 532 Pa. 177, 615 A.2d 321 (1992) and in Commonwealth v.

Martorano, 559 Pa. 533, 741 A.2d 1221 (1999).

      In Smith, our Supreme Court examined the protection the Double

Jeopardy Clause affords in a case involving prosecutorial misconduct pursuant

to the standard set forth in Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct.

2083, 72 L.Ed.2d 416 (1982).         The Smith Court broadened the double

jeopardy protection provided by the federal courts and United States

Constitution requiring the prosecution to have intentionally caused a mistrial

through misconduct. Specifically, the Smith court held:

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

Smith, 532 Pa. at 186, 615 A.2d at 325.

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J-A22045-18


      Determining that the Commonwealth intentionally had prejudiced the

defendant and deprived him of a fair trial when it failed to disclose material

exculpatory physical evidence, suppressed evidence while arguing in favor of

the death sentence on direct appeal, and attempted to discredit a state trooper

who had testified as to existence of the exculpatory evidence, the Smith Court

held that the defendant’s double jeopardy rights would be violated if he faced

a new trial and discharged him.

      Several years later in Martorano, the defendants were awarded a new

trial based upon prosecutorial misconduct. On remand, the trial court denied

the defendants' motion to dismiss on double jeopardy grounds; however, a

panel of this Court reversed and held that a retrial would constitute double

jeopardy. The Pennsylvania Supreme Court affirmed and in doing so amplified

the Smith standard.       The Supreme Court held that even absent the

concealment of evidence, pervasive prosecutorial misconduct throughout the

trial court proceedings had demonstrated the prosecutor's intent to deprive

the defendants of a fair trial and that double jeopardy barred their retrial

where the prosecutor:

      acted in bad faith throughout the trial, consistently making
      reference to evidence that the trial court had ruled inadmissible,
      continually def[ied] the trial court's rulings on objections and ...
      repeatedly insist[ed] that there was fingerprint evidence linking
      [the defendants] to the crime when the prosecutor knew for a fact
      that no such evidence existed.

Martorano, 559 Pa. at 538, 741 A.2d at 1223.




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J-A22045-18


       In Commonwealth v. Minnis, 83 A.3d 1047 (Pa.Super. 2014) (en

banc), a panel of this Court sitting en banc confirmed that Martorano stands

for the proposition that “where the defendant alleges prosecutorial misconduct

as a basis for double jeopardy protection, the outcome depends on the nature

of the alleged misconduct.” Minnis, 83 A.3d at 1052. For prosecutorial

misconduct to prohibit retrial on double jeopardy grounds, the prosecutor's

conduct must be both egregious and pervasive. Id. at 1052–1053. The

Commonwealth can “therefore engage in misconduct that warrants a new trial

but is not sufficiently egregious to bar mistrial on double jeopardy grounds.”

Id. at 1053 n. 5 (internal citation omitted).

        Herein, the trial court, relying upon Commonwealth v. Moose, 623

A.2d 831 (Pa.Super. 1993), appeal denied, 645 A.2d 1317 (Pa. 1994), cert.

denied, 513 U.S. 1060 (1994) concluded retrial is not barred because

Appellant    has failed to       adduce        evidence   of intentional prosecutorial

misconduct.3 Specifically, the trial court stated:

              Prosecutorial misconduct will only bar retrial when it is
       done intentionally to deny the defendant a fair trial, but not when
       the defendant is denied a fair trial due to gross negligence on the
       part of the prosecution. Commonwealth v. Kearns, 70 A.3d 881
       (Pa.Super. 2013); See also, Commonwealth v. Burke, 781 A.2d


____________________________________________


3 In Moose, the Commonwealth failed to turn over a statement from a
confidential informant until the first day of trial and never informed the
defendant the informant had made a deal in exchange for his testimony. The
defendant was convicted, but in light of the Commonwealth’s admission on
direct appeal that the informant had made an agreement with it, the defendant
was granted a retrial. Id. at 836.

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J-A22045-18


      1136 (Pa. 2001); Commonwealth v. Strong, 825 A.2d 685
      (Pa.Super. 2003).
                Judge Stengel found that Brady was violated when four
      documents were not disclosed to the Appellant before trial. The
      Appellant provided no evidence as to what role, if any, ADA Gilson
      played in withholding these documents. This [c]ourt could not
      find that ADA Gilson intentionally withheld the document to
      deprive the Appellant of a fair trial absent evidence that he was
      aware of the existence of the documents during trial.
              Judge Stengel also found that ADA Gilson violated Bruton
      several times during closing argument, even after being
      admonished by the trial judge. Appellant’s counsel argued during
      the hearing on the motion that the Bruton violations were, in and
      of themselves, sufficient to show that ADA Gilson’s intent was to
      deny the Appellant a fair trial. N.T. 3/2/2017, p. 7,8,24. While
      ADA Gilson obviously said the sentences that broke redaction, it
      is not clear that his intent was to violate Bruton and to deprive the
      Appellant of a fair trial.
              Appellant’s counsel presented no evidence to support the
      assertion that ADA Gilson intentionally acted to prejudice the
      Appellant to the point of denying him a fair trial by violating Brady
      and Bruton. Based on controlling authority, this [c]ourt disagreed
      with the assertion that the egregiousness of the violations alone
      proved the intent needed to bar retrial under the standard of
      Smith. Supra. For these reasons, this [c]ourt denied the motion
      to bar retrial and dismiss the charges against the Appellant.
              Failing to turn over four potentially material documents in
      addition to four separate breaks of redaction of a non-testifying
      co-defendant during closing argument is highly improper and
      cannot be condoned. In order to bar retrial and dismiss the
      charges against him, however, the Appellant was required to
      produce evidence that ADA Gilson intentionally violated Brady and
      Bruton in order to deny [him] a fair trial. No such evidence was
      produced, therefore retrial cannot be barred Moose, supra.
      Therefore, the appropriate remedy is a new trial, which was
      ordered by Judge Stengel. Washington, 2015 WL 234719 at *27.

Trial Court Opinion, field 7/26/17, at 12-14.

      Based upon our review of the entire record in this matter, we discern

no error on the part of the trial court in reaching this conclusion. Appellant’s

assertions in his motion to preclude retrial and his claims in his appellate brief

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J-A22045-18


to the contrary, our review has revealed no instance where Appellant produced

evidence of the Commonwealth’s intent to withhold information or to force a

mistrial.

       In fact, Appellant admits the admission of Teagle’s statement was

“arguably in good faith due to the state of the law at the time.” Brief for

Appellant at 20.4      In addition, despite his claims of intentional misconduct

regarding the admission of evidence, Appellant further admits that “no

explanation has ever been provided or determined for [the] flagrant violation

of the prosecutor’s duty to provide all exculpatory evidence to the accused

. . . .” Id. at 24. Indeed, Appellant offered no evidence at the March 2, 2017,




____________________________________________


4 The Prosecutor’s substituting the term “blank” in place of Appellant’s name
when redacting Teagle’s statement did not violate Appellant’s constitutional
right to confrontation at the time of his trial in 1994. See Commonwealth
v. Rainey, 540 Pa. 220, 232, 656 A.2d 1326, 1333 (1995) (stating trial court’s
instruction to the jury informing it that an individual's name had been replaced
with the letter “X” was in accordance with the law). However, the United
States Supreme Court later held that redactions indicated with an obvious
blank, the word “delete,” symbols, or other markers violate the protective rule
established in Bruton v. United States, 88 S.Ct. 1620 (1968). See Gray v.
Maryland, 118 S.Ct. 1151, 1155 (1998). The Pennsylvania Supreme Court
thereafter determined that substituting the neutral phrase “the guy” or “the
other guy” for the defendant's name is an appropriate redaction.
Commonwealth v. Travers, 564 Pa. 362, 373, 768 A.2d 845, 851 (2001).
Accordingly, as the Commonwealth states in its brief, although Gray was
applicable to Appellant because it had been decided before his direct appeal
was finalized, “Gray does not demonstrate prosecutorial bad faith in the
redaction of co-defendant Teagle’s statement at trial nearly four years earlier.”
Commonwealth’s Brief at 18.



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J-A22045-18


hearing to prove his claim that the prosecutor intentionally withheld the

discovery.

       Finally, while we agree with the trial court’s finding that the

prosecutor’s statements during closing argument were highly improper and

may even be considered to be grossly negligent, the record does not support

Appellant’s instant serious allegations that counsel intended to violate Brady

and Bruton in an effort to deny Appellant a fair trial. Following his objection

to the prosecutor’s closing argument, defense counsel argued Appellant was

entitled to a mistrial in light of the prosecutor’s repeated interweaving of

Appellant’s name with “Blank” to suggest Teagle’s confession implicated

Appellant. In response, the prosecutor expressed his belief that he had used

the neutral term “accomplice,” and the trial court provided a curative

instruction at defense counsel’s request. N.T. Trial, 10/7/94, at 97-98.

       The prosecutor continued his closing argument only to be interrupted

again by defense counsel’s objection and a second request for a mistrial. Id.

at 99. The ensuing discussion evinces the prosecutor’s apparent ignorance

regarding the ramifications of his choice of words and negates Appellant’s

claims his actions had been intentional:

              Mr. Gilson: I identify him as the accomplice, Judge, as
      the accomplice.
              Mr. Myers: You identify him as an accomplice, you’re
      referring to my client. Every time if you into Teagle’s statement
      and want to read Teagle’s statement, I don’t mind, but when you
      start to weaving it in with my client sitting there, you have a choice
      of guns, where did that come from? It only came from Teagle’s
      statement. So what do you mean the accomplice, he’s the

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J-A22045-18


      accomplice here. He’s the one that gave him a choice of guns.
      Wait a minute, that’s exactly wat you’re saying to the Jury. And
      you can’t do that because you can’t infer in any way that’s my
      client.
               Mr. Gilson: That’s absolutely, unequivocally wrong. How
      else am I going to refer to Derrick Teagle’s statement? I have
      that there is [a] conspirator here. I don’t want to call him the
      conspirator. We have been using that term in the courtroom so
      I’m using the—
              THE COURT: Listen, Mr. Gilson, I’m not going to teach
      you how to make a —you’re on the verge of having a mistrial if
      you keep it up. If you want to say that two people cooperate,
      refer to the people identified who were taking up the place
      together, simultaneously, but you can’t use Teagle’s statement or
      anything contained in that statement to infer who that person is.
      If you do, you have violated redaction. I have two choices,
      separate trials or shut up. That’s your—
               Mr. Gilson: I am not. I am not in any way, shape or
      form.
               THE COURT: Yes, you are. If you would only read your
      closing argument when this case is over you would understand
      how you’re violating the rules. Go argue from the evidence or lack
      thereof, but don’t implicate [Appellant] by Teagle’s statement in
      any way. That’s my ruling.

Id. at 100-01.      The prosecutor complied with the trial court’s directive

thereafter.

       Therefore, as the trial court aptly noted, the proper remedy in this

situation is not a complete bar to prosecution, but a retrial, which Appellant

already has been awarded. Trial Court Opinion, filed 7/26/17, at 14; Lynn,

supra at 201.       In light of our conclusion that Appellant has failed to

demonstrate any of the alleged acts of misconduct were intended to deprive

him of a fair trial, we affirm.

       Order affirmed.




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J-A22045-18


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/24/18




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