J-A28017-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ROLAND KITTRELL                            :
                                               :
                       Appellant               :   No. 735 MDA 2018

                 Appeal from the Order Entered April 30, 2018
      In the Court of Common Pleas of Centre County Criminal Division at
                       No(s): CP-14-CR-0001435-2010


BEFORE: LAZARUS, J., OLSON, J., and MUSMANNO, J.

MEMORANDUM BY OLSON, J.:                               FILED AUGUST 16, 2019

       Appellant, Roland Kittrell, appeals from an order entered on April 30,

2018 in the Criminal Division of the Court of Common Pleas of Centre County.

On appeal, Appellant claims that the trial court erred in denying his motion

which asserted double jeopardy as a bar to re-prosecution of assault charges

stemming from an incident that occurred at SCI-Rockview on December 31,

2009.1 For the reasons explained below, we affirm.

       On December 31, 2009, Appellant, then an inmate at SCI-Rockview,

engaged in a violent altercation with three correctional officers, Lucas S.

Nicholas, Timothy Watson, and Rodney Kauffman. As a result of this incident,

the Commonwealth, on July 16, 2010, filed a criminal complaint charging

____________________________________________


1 The parties agreed before the trial court that Appellant’s double jeopardy
motion was not frivolous. Hence, we may exercise jurisdiction over this appeal
from a collateral order. See Pa.R.A.P. 313; Pa.R.Crim.P. 587(B)(6).
J-A28017-18



Appellant with one count of aggravated assault, 18 Pa.C.S.A. § 2702(a)(2),

three counts of aggravated assault, 18 Pa.C.S.A. § 2702(a)(3), and three

counts of simple assault, 18 Pa.C.S.A. § 2701(a)(1).

      Appellant proceeded to trial pro se on January 24, 2011.           At the

conclusion of a one-day trial, a jury convicted Appellant of three counts of

aggravated    assault   and   two   counts   of   simple   assault.   After   the

Commonwealth filed notice of its intent to seek a mandatory minimum

sentence pursuant to 42 Pa.C.S.A. § 9714(a), the court, on March 15, 2011,

sentenced Appellant to an aggregate term of 25 to 50 years’ incarceration.

On November 18, 2011, this Court affirmed Appellant’s judgment of sentence

and our Supreme Court denied Appellant’s petition for allowance of appeal on

March 28, 2012.

      Appellant filed a timely Post-Conviction Relief Act (“PCRA”) petition

pursuant to 42 Pa.C.S.A. §§ 9541-9546 on December 11, 2012. After several

amendments, the PCRA court dismissed the petition. This Court affirmed the

dismissal of Appellant’s PCRA petition on July 24, 2015.

      Thereafter, Appellant filed a petition for writ of habeas corpus pursuant

to 28 U.S.C. § 2254 in the United States District Court for the Middle District

of Pennsylvania. Among other things, Appellant’s petition requested a new

trial on grounds that the trial court’s waiver of counsel colloquy was deficient

and that Appellant did not validly waive his Sixth Amendment rights. The

district court granted Appellant’s petition and vacated his judgment of

sentence on February 20, 2018.

                                      -2-
J-A28017-18



        After the district court granted Appellant’s habeas corpus petition, the

Commonwealth declared its intent to retry the case. Thereafter, counsel for

Appellant was appointed on March 16, 2018, jury selection took place on April

2, 2018, and a new trial was scheduled to commence on May 2, 2018.

        On April 16, 2018, the trial court convened a hearing to consider two

pro se motions filed by Appellant before the appointment of counsel. Among

other    things, the   motions alleged that the       Commonwealth withheld

exculpatory evidence, including disciplinary reports for the corrections officers

involved in the December 31, 2009 incident. At the conclusion of the hearing,

counsel for the Commonwealth agreed to permit Appellant’s counsel to review

the district attorney’s paper file in its entirety on April 18, 2018. On April 20,

2018, following his review, counsel for Appellant filed a motion alleging that

intentional misconduct by the prosecution in violation of the principles of

double jeopardy barred a second trial and compelled the dismissal of all

charges against Appellant.

        On April 26, 2018, the trial court convened a hearing to address the

Commonwealth’s motions in limine and Appellant’s motion to dismiss. At the

hearing, counsel for Appellant introduced several documents that were never

disclosed to Appellant before his first trial, including an exchange of emails

between the prosecutor and lead investigator as well as a handwritten

statement prepared shortly after the December 31, 2009 incident by one of

the corrections officers.      In addition, the state trooper who led the

investigation into the incident testified at the hearing.

                                      -3-
J-A28017-18



       The trial court issued findings of fact, conclusions of law, and an order

disposing of Appellant’s motion on April 30, 2018. Initially, the court found

that the Commonwealth withheld evidence from Appellant prior to trial. In

relevant part, it stated:

       The court does note, however, that the evidence adduced on April
       2[6], 2018 established that, prior to [Appellant’s] criminal trial in
       January 2011, the Centre County District Attorney’s Office was
       aware of the summary harassment charge filed against Sergeant
       Watson, a material witness and alleged victim in the case against
       [Appellant], based on the December 31, 2009 incident underlying
       th[e] criminal action. The evidence further established that
       [Appellant] was not advised of the summary charge (in which
       [Appellant] was the alleged victim) [] prior to his criminal trial in
       the context of pretrial discovery.        In addition, the District
       Attorney’s Office was clearly aware of the fact that Sergeant
       Watson had been the subject of disciplinary proceedings in
       relation to the December 31, 2009 incident. It further appear[ed]
       to the [trial court], based on the evidence adduced at the April 26,
       2018 hearing and fair inferences therefrom the District Attorney’s
       Office had Sergeant Watson’s disciplinary file (or portions thereof,
       including a three page handwritten statement given by Sergeant
       Watson) in its possession prior to the time of trial, or at the very
       least, that it could have procured the file if reasonable efforts had
       been undertaken to do so.

Trial Court Findings of Fact, Conclusions of Law, and Order, 4/30/18, at 3.

Despite these findings, however, the court denied Appellant’s motion because

the concealed evidence did not satisfy the materiality prong under Brady v.

Maryland, 373 U.S. 83 (1963).2 This timely appeal followed.

____________________________________________


2 “[T]o establish a Brady violation, a defendant must demonstrate that: (1)
the evidence was suppressed by the Commonwealth, either willfully or
inadvertently; (2) the evidence was favorable to the defendant; and (3) the



                                           -4-
J-A28017-18


       Appellant raises a single issue for our consideration.

       Whether the trial court erred when it denied Appellant’s motion to
       bar retrial and dismiss all charges for violation of double jeopardy
       due to intentional prosecutorial misconduct on the basis that the
       evidence suppressed by the Commonwealth was not “material”
       pursuant to Brady v. Maryland, 373 U.S. 83 (1963) and its
       progeny where the factual findings of the trial court conclude that
       the prosecution deliberately withheld exculpatory evidence in its
       possession from the defense?

Appellant’s Brief at 8.

       “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[.]” Commonwealth v. Vargas, 947

A.2d 777, 780 (Pa. Super. 2008) (internal citations omitted). If the factual

findings of the trial court impact its double jeopardy ruling, we apply a

deferential standard to review those assessments:

       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. Wood, 803 A.2d 217, 220 (Pa. Super. 2002), quoting

Commonwealth v. Young, 692 A.2d 1112, 1114–1115 (Pa. Super. 1997).


____________________________________________


evidence was material, in that its omission resulted in prejudice to the
defendant.” Commonwealth v. Haskins, 60 A.3d 538, 545 (Pa. Super.
2012), appeal denied, 78 A.3d 1090 (Pa. 2013).


                                           -5-
J-A28017-18


     This Court has previously outlined the double jeopardy principles that

govern the issues presently before us.

     “The Double Jeopardy Clause of the Fifth Amendment protects a
     criminal defendant from repeated prosecutions for the same
     offense.” Oregon v. Kennedy, 456 U.S. 667 (1982). However,
     the “Double Jeopardy Clause is no bar to retrial” when “the
     defendant moves for a mistrial[.]” Id. at 673. The Supreme Court
     of the United States has recognized a limited exception to this
     rule, holding that:

        [T]he circumstances under which ... a defendant may invoke
        the bar of double jeopardy in a second effort to try him are
        limited to those cases in which the conduct giving rise to the
        successful motion for a mistrial was intended to provoke the
        defendant into moving for a mistrial.

     Id.

     Our Supreme Court has determined that the Double Jeopardy
     Clause of Pennsylvania's constitution provides greater protection
     than its federal counterpart:

        [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.

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

     As this Court has reflected:

        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.

                                     -6-
J-A28017-18



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

      Thus, under 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. As this Court has often
      repeated, “[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.”
      Chmiel, 777 A.2d at 464, quoting Commonwealth v.
      Martorano, 741 A.2d 1221, 1223 (Pa. 1999).

      It is now well-settled that when a defendant requests a mistrial,
      the federal Double Jeopardy Clause bars retrial only when “the
      conduct giving rise to the successful motion for a mistrial was
      intended to provoke the defendant into moving for a mistrial.”
      Kennedy, 456 U.S. at 679. The additional protections provided
      under Pennsylvania's Double Jeopardy clause do not extend to
      non-intentional prosecutorial misconduct, but rather only bar
      retrial following a defendant's successful motion for a mistrial
      “when the conduct of the prosecutor [giving rise to the mistrial] is
      intentionally undertaken to prejudice the defendant to the point
      of the denial of a fair trial.” Smith, 615 A.2d at 325.

Commonwealth v. Kearns, 70 A.3d 881 (Pa. Super. 2013), appeal denied,

84 A.3d 1063 (Pa. 2014).

      The trial court in this case determined that, “despite the fact that the

district attorney’s office withheld potentially exculpatory and/or impeachment

evidence, [Appellant] did not demonstrate the existence of a reasonable

probability that the result of the trial would have been different had the


                                     -7-
J-A28017-18


suppressed evidence been disclosed [before trial].”     Trial Court Rule 1925

Opinion, 7/3/18, at 2. In light of this finding, the court declined to determine

whether the Commonwealth’s failure to produce evidence was motivated by

an intent to deprive Appellant of a fair trial. As such, the trial court treated

the Brady criteria as essential prerequisites to finding the type of

prosecutorial misconduct needed to bar a re-trial.

      Appellant challenges this analysis.       He asserts that where the

prosecution   deliberately   withholds   exculpatory   evidence,   the   criteria

announced in Brady – in particular, the materiality prong – play a diminished

role in a court’s analysis and cannot be dispositive. Instead, Appellant argues

that the controlling inquiry in such cases is the willfulness of the

Commonwealth’s subversion of the judicial process, not the prejudice to the

defendant.    See Appellant’s Brief at 28.   According to Appellant, only the

dismissal of charges, not appellate review or retrial, constitutes an adequate

remedy to the systematic concerns that arise from intentional prosecutorial

misconduct undertaken to gain unfair advantage. Id.

      Appellant relies upon our Supreme Court’s decision in Smith, supra to

support his claims. In Smith, the defendant (Smith) was convicted of three

counts of first-degree murder and sentenced to death. On direct appeal, our

Supreme Court, citing an evidentiary error, vacated Smith’s convictions and

remanded for a new trial.




                                     -8-
J-A28017-18


       Before he could be retried, Smith invoked double jeopardy to bar a

second trial based upon newly discovered evidence of prosecutorial

misconduct. Specifically, Smith alleged that the Commonwealth knowingly

denied an agreement with its chief witness to exchange favorable sentencing

treatment for testimony implicating the defendant. This prohibited Smith from

impeaching the witness’ veracity at trial by exposing his motive to testify

falsely.   Smith also alleged that the Commonwealth deliberately concealed

physical evidence pertinent to the location of the scene of the crime. This

evidence was potentially exculpatory and, thus, highly material to the

development of Smith’s defense at trial.3 The trial court denied Smith’s double

jeopardy motion and this Court affirmed. Upon further review, our Supreme

Court concluded that a second trial would violate Smith’s double jeopardy

rights under the Pennsylvania Constitution since “the prosecutor’s conduct []

was intended to prejudice the defendant and thereby deny him a fair trial.”

Smith, 615 A.2d at 325.

       Our Supreme Court did not elaborate upon the rule it announced in

Smith or offer a test to assist future courts in determining, precisely, what

type of prosecutorial nondisclosures qualified as intentionally prejudicial so as


____________________________________________


3 The physical evidence consisted of grains of sand that were discovered
between one of the victim’s toes at her autopsy. Since it was the prosecution’s
theory that the murders occurred in Pennsylvania, whereas the defense
theorized that the murders took place in Cape May, New Jersey, where another
suspect had been but Smith had not, the concealed evidence was potentially
exculpatory to Smith.

                                           -9-
J-A28017-18


to implicate double jeopardy protections. From its discussion, however, we

infer that the Supreme Court contemplated suppression tactics that violated

the principles announced in Brady. See id. at 322 (noting that the tactics

challenged by Smith “were clearly in violation of the rule of [Brady]”) and 324

(observing that “[Commonwealth’s d]eliberate failure to disclose material

exculpatory   physical   evidence   during    a   capital   trial   …   constitute[s]

prosecutorial misconduct such as violates all principles of justice and fairness

embodied in the Pennsylvania Constitution’s double jeopardy clause.”)

(emphasis added). Moreover, throughout its opinion, the Court repeatedly

stressed that neither the physical evidence bearing upon the location of the

crime scene nor the Commonwealth’s agreement with its chief witness were

placed before the factfinder to consider at Smith’s first trial. Taking these

factors into consideration, and bearing in mind the Smith Court’s declaration

that the prosecutor’s intentional misconduct must be “undertaken to prejudice

the defendant to the point of the denial of a fair trial,” Smith, 615 A.2d at

325, we are persuaded that only suppression tactics that undermine

confidence in the outcome of a trial constitute nondisclosure that triggers

double jeopardy protections.

      Based upon our review of the certified record before us, we conclude

that this case is distinguishable from Smith inasmuch as the nondisclosures

alleged here do not fall within the class of nondisclosures identified in Smith

as triggering the protections of the double jeopardy clause of the Pennsylvania


                                     - 10 -
J-A28017-18


Constitution. The trial court in this case concluded that the Commonwealth

intentionally withheld documents from Appellant prior to his trial but that

Appellant was not entitled to relief since the omissions were not prejudicial.

The documents at issue confirm that one of the corrections officers struck

Appellant while he was handcuffed during the December 31, 2009 incident.4

They also reveal that the officer received a summary harassment citation and

was subject to disciplinary procedures as a result of this conduct. As the trial

court and the Commonwealth point out, however, the officer conceded many

times at both the preliminary hearing and before the jury at trial that he struck

Appellant at the conclusion of the altercation and received discipline for his

actions. See N.T. Preliminary Hearing, 7/28/10, at 49-52; see also N.T. Trial,

1/24/11, at 120, 145, and 152. Appellant does not dispute that the jury heard

these multiple concessions by the officer, nor does Appellant challenge the

trial court’s materiality finding. Instead, Appellant simply argues that in view

of the Commonwealth’s deliberate concealment of certain documents, the

materiality of the suppressed items should play a diminished role in our



____________________________________________


4 Unlike the suppressed physical evidence in Smith that related to the location
of the scene of the murders and supported Smith’s defense at trial, the
documents omitted here did not support any defense Appellant advanced at
trial. The evidence showed that the corrections officers handcuffed Appellant
after he was subdued following the altercation and that one of the officers
then struck Appellant to prevent him from spitting in the officer’s face. Since
the undisclosed documents here pertained only to events that occurred after
Appellant’s assaults concluded, they could not have supported a self-defense
claim.

                                          - 11 -
J-A28017-18


analysis.    This position is inconsistent with our reading of Smith and is

foreclosed by the applicable standards for pre-trial disclosure under our rules

of criminal procedure, as we discuss below.

       Our rules of criminal procedure incorporate both Brady’s language and

rationale    (including    its   materiality   requirement)   in   describing   the

Commonwealth’s duty to make disclosure prior to trial. Rule 573(B) states in

pertinent part:

       (B) Disclosure by the Commonwealth.

       (1) Mandatory.       In all court cases, on request by the
       defendant, [5] and subject to any protective order which the
       Commonwealth might obtain under this rule, the Commonwealth
       shall disclose to the defendant's attorney all of the following
       requested items or information, provided they are material to
       the instant case. The Commonwealth shall, when applicable,
       permit the defendant's attorney to inspect and copy or photograph
       such items.

         (a)    Any evidence favorable to the accused that is material
                either to guilt or to punishment, and is within the
                possession or control of the attorney for the
                Commonwealth[.]

Pa.R.Crim.P. 573(B) (emphasis added). Since our discovery rules for criminal

cases provide that only “material” evidence shall be subject to mandatory

disclosure, we shall assume that a showing of materiality is necessary to




____________________________________________


5 On August 25, 2010, trial counsel for Appellant served an informal discovery
request on the Centre County District Attorney’s office pursuant to
Pa.R.Crim.P. 573.

                                          - 12 -
J-A28017-18


demonstrate prosecutorial misconduct in the failure to produce evidence prior

to trial.

       Our prior decision in Haskins summarized the relevant principles that

guide a court in determining whether suppressed evidence is material to the

defense:


       To demonstrate prejudice, “the evidence suppressed must have
       been material to guilt or punishment.” Commonwealth v.
       Gibson, 951 A.2d 1110, 1126 (Pa. 2008). Evidence is material
       under Brady when there is a reasonable probability that, had the
       evidence been disclosed, the result of the trial could have been
       different. Kyles v. Whitley, 514 U.S. 419, 433–434 (1995).
       “The mere possibility that an item of undisclosed information
       might have helped the defense, or might have affected the
       outcome of the trial does not establish materiality in the
       constitutional sense.” Commonwealth v. McGill, 832 A.2d
       1014, 1019 (Pa. 2003), quoting U.S. v. Agurs, 427 U.S. 97
       (1976). The relevant inquiry is “not whether the defendant would
       more likely than not have received a different verdict with the
       evidence, but whether in its absence he received a fair trial,
       understood as a trial resulting in a verdict worthy of confidence.”
       Kyles, 514 U.S. at 434.         To prove materiality where the
       undisclosed evidence affects a witness' credibility, a defendant
       “must demonstrate that the reliability of the witness may well be
       determinative of [the defendant's] guilt or innocence.”
       Commonwealth v. Johnson, 727 A.2d 1089, 1094 (Pa. 1999).

Haskins, 60 A.3d at 547 (parallel citations omitted).

       Reviewing the evidence in its totality, we cannot conclude that the

absence of the suppressed materials resulted in a verdict unworthy of

confidence. The corrections officer to whom the suppressed materials relate

repeatedly admitted at trial that he struck Appellant toward the conclusion of

the altercation and after Appellant was handcuffed. Additionally, the officer



                                     - 13 -
J-A28017-18


admitted that he faced disciplinary action for his conduct. The jury heard this

evidence and, nevertheless, returned a guilty verdict. Appellant forwards no

claim that the reliability of the corrections officer was determinative of guilt,

that prior disclosure of the suppressed documents would have placed the

officer’s credibility beyond rehabilitation, or that pre-trial disclosure would

have altered Appellant’s strategy at trial.        In the absence of such factors,

Appellant has not come forward with meritorious grounds for reversal.

       Although we conclude that the trial court did not err in considering the

materiality of the undisclosed documents and in denying relief, we cannot

overstate our disapproval of the Commonwealth’s conduct in the prosecution

of this case.6 The electronic mail exchanges between the assistant district

attorney’s office and the lead investigator demonstrate that both officials

blithely disregarded the duties of their respective offices.       In short, their

actions displayed contempt for the judicial process they are sworn to uphold.

See Commonwealth v. Starks, 416 A.2d 498, 500 (Pa. 1980) (“In contrast

to prosecutorial error, overreaching is not an inevitable part of the trial process

and cannot be condoned.”) (emphasis added). But for the disclosure of the

substance of the concealed materials at Appellant’s trial and the fact that the

undisclosed materials would not have altered the trials’ outcome, we would



____________________________________________


6 We hasten to note that the current elected District Attorney in Centre County
is not same District Attorney who administered that office at the time
Appellant’s case was prosecuted.

                                          - 14 -
J-A28017-18


not hesitate to conclude that the prosecution in this case purposefully

undertook a course of action intended to prejudice Appellant by denying him

a fair trial.

       Order affirmed. Case remanded for trial. Jurisdiction relinquished.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 08/16/2019




                                    - 15 -
