J-A01038-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                IN THE SUPERIOR COURT OF
                                                  PENNSYLVANIA
                       Appellant

                 v.

JAWAYNE K. BROWN

                       Appellee                 No. 3014 EDA 2014


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


COMMONWEALTH OF PENNSYLVANIA                IN THE SUPERIOR COURT OF
                                                  PENNSYLVANIA
                       Appellant

                 v.

RICHARD BROWN

                       Appellee                 No. 3046 EDA 2014


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


COMMONWEALTH OF PENNSYLVANIA                 IN THE SUPERIOR COURT
                                                       OF
                                                  PENNSYLVANIA
                       Appellant

                  v.

AQUIL BOND

                       Appellee                 No. 3054 EDA 2014
J-A01038-16




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

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

DISSENTING MEMORANDUM BY STEVENS, P.J.E.:             FILED JUNE 06, 2016

      In this case involving three torture-murderers, Appellees received a

new trial, which was an appropriate remedy. I respectfully dissent from the

Majority’s decision to bar retrial, and I would not allow Appellees to escape

prosecution.

      The dispositive issue herein 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.

Our Supreme Court has determined the Double Jeopardy Clause of the

Pennsylvania constitution provides a criminal defendant with greater

protection than its federal counterpart in that it prohibits retrial of a

defendant not only when prosecutorial misconduct is intended to provoke

him or her to move 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.” Commonwealth v. Smith, 532 Pa. 177,

615 A.2d 321, 325 (1992). A review of the record discloses the prosecutor’s




*Former Justice specially assigned to the Superior Court.



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conduct herein was not intended to deprive Appellees of their constitutional

right to a fair trial, for it is not clear that the district attorney’s actions

constituted a clear intent to subvert the court process. See Commonwealth

v. Chmiel, 777 A.2d 459, 464 (Pa.Super. 2001). Therefore, the trial court

erred when it found double jeopardy bars the retrial of Appellees.

      The prosecutor posed three questions to ADA McCann regarding the

manner in which he, as Chief of the Homicide Unit, made plea deals with

potential witnesses.   The Commonwealth represents in its brief that the

prosecutor’s queries were in response to the opening statement of counsel

for defendant Jawyne Brown who excoriated the Commonwealth for entering

into a plea agreement with Smithwick and specifically stated the government

bought his story “hook, line and sinker.” Consolidated Brief for Appellant at

11 (citing N.T. 7/14/06, at 74-75).

      While his choice of questions may have been inappropriate in light of

his indication prior to questioning ADA McCann that he would not be eliciting

testimony regarding Smithwick’s credibility, the prosecutor did not continue

to pursue this line of questioning following the objections of defense counsel,

and his three queries remained unanswered. Indeed, the trial court denied

defense counsels’ contemporaneous motion for a mistrial on the basis of

prosecutorial misconduct. In my view, any impropriety that may have

resulted from the prosecutor’s questioning of Smithwick was properly




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remedied by this Court on direct appeal when we granted Appellees a new

trial based upon that prosecutorial misconduct.

      Moreover, the prosecutor clearly misspoke during his closing when he

referenced Smithwick’s involvement in solving five additional murders not in

evidence in addition to the two to which he had pled guilty.        Indeed, his

continuing to reference “multiple” as opposed to “seven” after objection was

improper.     However, such representations were not so intentionally

egregious or pervasive so as to support a conclusion that double jeopardy

bars the retrial of Appellees under Commonwealth v. Smith, 615 A.2d 321

(Pa. 1992) and its progeny.     In this regard, the Commonwealth explained

the statements of defense counsel in their respective closing arguments

questioning   the   veracity   of   Smithwick   and   the   gullibility   of   the

Commonwealth in offering him a pea deal prompted such assertions from

the prosecutor. See Consolidated Brief for Appellant at 13 (citations

omitted). Furthermore, the jury was immediately provided with a curative

instruction that there had been no record evidence Smithwick helped to

solve seven, unresolved murders, and the trial court generally instructed the

jury, inter alia, it is the sole arbiter of the evidence and that arguments of

counsel are not evidence. N.T. trial, 7/14/05, at 108-152.

      Even viewing the prosecutor’s behavior as an intentional attempt to

bolster the credibility of Smithwick, such inappropriate conduct under the

facts herein is not akin to that which has been deemed worthy of depriving


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J-A01038-16


defendants of a fair trial and barring retrial on double jeopardy grounds. In

my view, the prosecutor’s brief questioning of a witness and reference to

additional matters about which Smithwick provided authorities information

during closing argument do not equate to the Commonwealth’s intentionally

failing to disclose evidence material to the defendant’s case in Smith, or the

blatant and disrespectful behavior directed at the trial court and fabrication

of evidence in Commonwealth v. Martorano, 741 A.2d 1221 (Pa. 1999).

      Indeed, as this Court has recognized:

      Prosecutorial misconduct includes actions intentionally designed
      to provoke the defendant into moving for a mistrial or conduct
      by the prosecution intentionally undertaken to prejudice the
      defendant to the point where he has been denied a fair trial. The
      double jeopardy clause of the Pennsylvania Constitution prohibits
      retrial of a defendant subjected to the kind of prosecutorial
      misconduct intended to subvert a defendant's constitutional
      rights. However, 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 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. A fair trial, of course is not
      a perfect trial. Errors can and do occur. That is why our judicial
      system provides for appellate review to rectify such errors.
      However, where the prosecutor's conduct changes from mere
      error to intentionally subverting the court process, then a fair
      trial is denied. A fair trial is not simply a lofty goal, it is a
      constitutional mandate, ... [and w]here that constitutional
      mandate is ignored by the Commonwealth, we cannot simply
      turn a blind eye and give the Commonwealth another
      opportunity.

Commonwealth v. Chmiel, 777 A.2d 459, 463–464 (Pa.Super. 2001)

(citations and quotation marks omitted).


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J-A01038-16


      Upon a review of the record herein, I would not find the prosecutor’s

behavior to rise to the level of misconduct that would bar retrial. As such, I

would reverse the Orders of the trial court and remand for retrial.




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