J-A30005-18

                               2019 PA Super 137

    COMMONWEALTH OF PENNSYLVANIA           :    IN THE SUPERIOR COURT OF
                                           :         PENNSYLVANIA
                           Appellant       :
                                           :
                   v.                      :
                                           :
    AL-TARIQ SHARIF ALI BYRD               :
                                           :
                          Appellee         :    No. 468 WDA 2017

                     Appeal from the Order March 20, 2017
               in the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0014138-2016

BEFORE:       SHOGAN, J., KUNSELMAN, J. and STRASSBURGER, J.*

DISSENTING OPINION BY STRASSBURGER, J.:

FILED: April 29, 2019

        I respectfully dissent.   I do not believe the record supports the

conclusion that the assistant district attorney, Larry Sachs, engaged in

intentional prosecutorial misconduct such that he intended to prejudice Al-

Tariq Sharif Ali Byrd (Byrd) to the point of a denial of a fair trial.

        The learned Majority aptly covers the procedural history of this case. I

add only that upon the trial court’s original declaration of a mistrial, the trial

court specifically declined to designate the conduct at issue as prosecutorial

misconduct.1 See N.T., 12/1/2016, at 26-27 (declaring a mistrial and denying



1
 Moments earlier, the trial judge indicated her intent to report Attorney Sachs
to the disciplinary board, stating, “I can no longer trust you. I find you to
be sneaky. I find you to be able to backdoor people, and you’re not
allowed in my courtroom.” Id. (emphasis added). Even assuming arguendo
that Attorney Sachs had engaged in conduct that violated the Rules of

*Retired Senior Judge assigned to the Superior Court.
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request of Byrd’s standby defense counsel to “attach prejudice to its mistrial

declaration”). Id. at 27. On the date scheduled for the new trial, however,

the trial court began the case by expressing “[its] belief [that] upon reviewing

the case law [the case] cannot be retried….” N.T., 2/13/2017, at 2. At the

Commonwealth’s request, the trial court agreed to review transcripts of three

calls between Byrd and Ms. Wilson introduced by the Commonwealth, and

continued the hearing for another date in order to receive testimony from Ms.

Wilson. Id. at 3-7. At the March 20, 2017 hearing, Ms. Wilson finally testified

under oath, and the trial court changed its ruling to a dismissal with prejudice.

      It is that ruling that the Commonwealth asks us to review. “Article I,

§ 10 … bars retrial … 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.   Adams,    177    A.3d   359,   371(Pa.   Super.   2017)

(distinguishing between prosecutorial error that could be corrected in a future

trial versus intentional subversion of the court process, which bars retrial).

      Ms. Wilson was a potential character witness for Byrd, identified by Byrd

mid-trial when Byrd, operating pro se, asked for the court’s assistance in

contacting Ms. Wilson to testify as a character witness on his behalf. N.T.,



Professional Conduct, I find it troubling that the trial judge opted to voice her
personal feelings about Attorney Sachs on the record. This particularly
concerns me since this Court twice has had to take the extraordinary step of
ordering the recusal of this particular jurist due to the personal animus she
has demonstrated towards the attorneys appearing before her.                 See
Commonwealth v. Bernal, 200 A.3d 995, 1001-03 (Pa. Super. 2018);
Commonwealth v. McCauley, 199 A.3d 947, 952-954 (Pa. Super. 2018).

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11/28/2016 – 11/30/2016, at 166-171. Despite the overall tenor of the trial

court’s commentary regarding Attorney Sachs’s actions, I note that the

Commonwealth is not prohibited from contacting and interviewing an

unrepresented third party, even if the third party is a possible defense witness.

      For purposes of double jeopardy, the proper focus is on Attorney Sachs’s

intent, not the effect of his words on Ms. Wilson. See Commonwealth v.

Smith, 615 A.2d 321, 324 (Pa. 1992) (holding that the double jeopardy clause

of the Pennsylvania Constitution prohibits retrial “when prosecutorial

misconduct is intended to provoke the defendant into moving for a mistrial”

or “when the conduct of the prosecutor is intentionally undertaken to

prejudice the defendant to the point of the denial of a fair trial”) (emphasis

added); Adams, 177 A.3d at 372 (holding that “whether a dismissal is

warranted turns on whether the Commonwealth intended to deprive the

defendant of a fair trial”).

      It is unclear whether the trial court appreciated that the focus should

properly be on the prosecutor’s intent, not the victim’s reaction. Although the

trial court found Attorney Sachs’s actions to be “knowing and deliberate and

[] intended to deprive [Appellant] of a fair trial,” in doing so, the trial court

judged his words by Ms. Wilson’s reaction. See Trial Court Opinion, at 13

(focusing on how Attorney Sachs’s actions “left [Ms. Wilson] scared, feeling

threatened[,] and afraid of retaliation against herself and her family by

[Attorney] Sachs”). In fact, at the time it declared a mistrial, the trial court



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candidly stated that it believed “that [it was] the perception of the

witness in this case that matter[ed], and her perception is that [Attorney]

Sachs and/or the [district attorneys’ office] is corrupt, possibly she was afraid

for her life and for her children, and the witness has not appeared.” N.T.,

12/1/2016, at 26 (emphasis added). Yet the trial court does not appear to

consider that Ms. Wilson could have perceived Attorney Sachs’s comments

differently than he intended them. See Commonwealth v. Lafferty, 461

A.2d 1261, 1263 (Pa. Super. 1983) (“Although the effect of the improper

statements was prejudicial, it cannot automatically be concluded that they

were made with that intent, particularly in light of the strength of the

prosecution’s case at the outset.”). The standard requires consideration of

the prosecuting attorney’s intent in making the comments, not simply whether

the receiving person subjectively or even objectively felt threatened by the

comments.

      The Majority and the trial court take specific issue with Attorney Sachs’s

questioning of Ms. Wilson “regarding her knowledge of [Byrd]” and his prior

criminal acts, Majority at 14, but I do not think it is unreasonable for the

prosecuting attorney to probe the foundation upon which a character witness’s

intended testimony would be built. They also take issue with Attorney Sachs’s

informing Ms. Wilson of Attorney Sachs’s perception of Byrd’s dangerousness.

However, it stands to reason that the average person would not be surprised

to learn that the prosecuting attorney believed Byrd to be dangerous;



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otherwise, the Commonwealth would not be prosecuting him for firearm-

related crimes and rape.2 Furthermore, Attorney Sachs based his comment

upon Byrd’s prior criminal history.

      The Majority and trial court also emphasize Attorney Sachs’s statement

that he knew more about Ms. Wilson than he should.                  While it is

understandable why Ms. Wilson may have felt alarmed by this statement, this

does not mean automatically that Attorney Sachs delivered the statement with

the intent to threaten Ms. Wilson.      In fact, the record is clear that the

statement referenced knowledge Attorney Sachs gained about Ms. Wilson

from recordings of telephone calls between her and Byrd at the jail.

      In her voicemail to the trial court, Ms. Wilson said this of Attorney

Sachs’s statement:

      I advised him that I only knew Mr. Byrd for a few months before
      he got re-incarcerated. He cut me off and was like, yeah, I know
      a lot about you. He talked about the fact of my financial hardship,
      about a break-up, and told me that he knows a lot more about me
      than he should, which really freaks me out because that means

2  In addition to the persons not to possess charge in this case, the
Commonwealth was in the midst of prosecuting Byrd for a multitude of other
charges. At docket number CP-02-CR-2875-2015, the Commonwealth had
charged Byrd with persons not to possess firearms, carrying a firearm without
a license, three counts of possession with intent to deliver, and three counts
of possession of controlled substance. At docket number CP-02-CR-3369-
2016, the Commonwealth had charged Byrd with rape (unconscious victim),
two counts of involuntary deviate sexual intercourse (unconscious victim), two
counts of aggravated indecent assault (unconscious victim), two counts of
terroristic threats, stalking, indecent assault (unconscious victim), invasion of
privacy, and persons not to possess firearms. As the Majority explains, the
persons not to possess firearms charge originally listed at docket number
2875-2015 was severed from the rest of the case and re-captioned at docket
number 14138-2016.

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     I’m being watched at this point just for being in contact with Mr.
     Byrd.

N.T. 12/1/2016, at 8.

     During her testimony before the trial court, Ms. Wilson again mentioned

Attorney Sachs’s statement. When asked if Attorney Sachs had threatened

her during the call, Ms. Wilson responded as follows.

     It was more indirect. He stated things like: Yeah. I know a lot
     more about you than I should. Kind of like a chuckle. He hinted
     on knowing my situation with a case that I had against my ex. He
     stated about my financial situation. So I didn’t put two and two
     together that he got it from [the] phone calls [between Byrd and
     me at the jail]. I immediately went into: Oh, my God. I am being
     watched. What does he know about me? I tried to play kind of
     coy with him, like I was on his side to try and find out what he
     knew about me. So he asked where I worked, and I told him,
     because it’s public knowledge where I work. But he just continued
     to be like: Oh, yeah. Like he said two or three times: I know more
     about you than I probably should, and he chuckled.

N.T., 3/20/2017, at 5-6.

     Attorney Sachs does not deny that he made the statement about

knowing too much about Ms. Wilson.       During his testimony, the following

exchange occurred.

     [Byrd’s standby counsel:] [Attorney] Sachs, in that recording, … I
     believe it was your conduct that was going to be directed towards
     her in relation to knowing about her family. Did you reference the
     jail recordings that you had listened to in relation to [] Byrd’s
     case?

     [Attorney Sachs:] I believe I told her that that’s how I -- why I
     knew about her, what I knew about her. I mean I never told her
     that she was under surveillance. She wasn’t under surveillance.
     Everything I know about her is from having had to listen to these
     jail recordings [between her and Byrd].



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      [Byrd’s standby counsel:] But you had, in fact, told her several
      things about her family, and you told her that you knew more
      information about her than you should? Did you say that to her?

      [Attorney Sachs:] In response to when she was telling me about
      herself, I said, yes, I know about these things. I know about this.
      I know about that. It was all as a result of listening to these
      recordings. That’s why I know more about her than I should.

      [Byrd’s standby counsel:] You did, in fact, use those words in
      speaking with the witness?

      [Attorney Sachs:] Yes. I believe I did. Yes.

N.T., 12/1/2016, at 24-25.

      Even if Attorney Sachs went too far in editorializing about Byrd’s alleged

dangerousness, or in flippantly remarking to Ms. Wilson that he knew more

about her than he should, I do not believe that his statements were made with

intent to subvert the court process and to prejudice Byrd to the point of a

denial of a fair trial. The Majority and trial court conclude Attorney Sachs

intended to scare Ms. Wilson from testifying as a character witness for Byrd.

I disagree. What would be the point?       Attorney Sachs already knew from

listening to the jail calls between Ms. Wilson and Byrd that Ms. Wilson did not

know Byrd very long.     It would be easy enough on cross-examination to

challenge her testimony regarding his law-abiding or peaceful reputation with

questions   regarding   her   knowledge    of   his   prior   convictions.   See

Commonwealth v. Buterbaugh, 91 A.3d 1247, 1263 (Pa. Super. 2014)

(stating that prior criminal convictions are admissible as rebuttal evidence of

good character).



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      Furthermore, this was not a complicated case. Although it is possible

evidence of Byrd’s good character could engender reasonable doubt in the

mind of the jury regarding the charge of person not to possess a firearm,

multiple police officers identified Byrd on the stand and testified that they

found Byrd with a gun on the front seat of his car, which was prohibited by

his prior conviction for aggravated assault.

      Moreover, the record is clear that because Ms. Wilson believed she could

lose her job if she missed work, she was not planning to testify, except

possibly if forced to do so by subpoena. Ms. Wilson told Attorney Sachs this

at the outset of the conversation. See N.T., 12/1/2016, at 5-6 (Ms. Wilson’s

voicemail message to trial court stating she told Attorney Sachs that “because

[she was] a new employee that [she] couldn’t come in because of the simple

fact that [she] was going to get fired” and she would need a subpoena); id.

at 18-19 (testimony of Sachs that Ms. Wilson “said that she couldn’t get off

work, and she couldn’t afford to lose her [new] job”); Commonwealth Exhibit

3 (N.T., 11/30/2016, at 15) (jail call between Byrd and Ms. Wilson, where Ms.

Wilson told Byrd that she had told Attorney Sachs that she “can’t come”

because her “supervisor [had told her] no,” she did not have a subpoena, and

it was “too short of a notice”); id. at 14-15 (jail call between Byrd and Ms.

Wilson, where Byrd suggested that she would have tried harder to come to

testify if it were not for Attorney Sachs’s call, and Ms. Wilson responded, “No,




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there’s the thing. Like [Attorney Sachs] asked me if I was coming, and I was

like … I can’t because of my job”).3

      Because Ms. Wilson was not planning to attend even before Attorney

Sachs called her, I am not convinced that Byrd was prejudiced to the point of

an unfair trial. In addition to Ms. Wilson’s clear statements about her desire

not to attend trial made to Attorney Sachs and court staff, the transcript of

the jail calls between Byrd and Ms. Wilson introduced by the Commonwealth

is revealing.

      MS. WILSON: But like I … tried to tell that … lady, I was like, … I
      will ask and I will find out. … But most likely …, unless I have
      a doctor’s excuse or, like, a subpoena, I was like, I'm not
      going to be able to miss work because I'm still in my first
      90 days. And I said, [s]end me all the information to my e-mail
      address. I gave her my e-mail address. And I told her, I said, on
      my next break, … I’ll be able to call you and let you know. I said,
      I don’t go on break until probably like 4:00. So I go on break to
      call her to tell her what my supervisor said, and nobody answered.
      So I go back to my desk, and I was going to e-mail her, and as
      soon as I sat down back at my desk, … Larry Sachs called me.
      And I was like … [w]hy are you calling me? And he was like, Oh,
      well, you know, it’s been addressed that you’re going to be
      appearing for -- for -- to be a -- oh, my God, I can’t even recall
      now.

      MR. BYRD: A character witness.

3 Ms. Wilson’s statements to Attorney Sachs are consistent with Ms. Wilson’s
statements to court staff. See N.T., 12/1/2016, at 5 (Ms. Wilson’s voicemail
message to trial court stating she had told the court’s staff that she “wasn’t
sure if [she] was able to make it simply because [she’s] a new employee at
her job”); Commonwealth Exhibit 3 (N.T., 11/30/2016, at 11-15) (jail call
between Byrd and Ms. Wilson, where Ms. Wilson told Byrd that she had told
court staff that she would not miss work to testify without a subpoena); N.T.,
3/20/2017, at 4 (testimony of Ms. Wilson that she had told the trial court’s
staff that she “wasn’t sure [if she could testify], because [she had] just started
[her] job and [she] didn’t know if they were going to give [her] the time off”).

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     MS. WILSON: Okay, yeah, a character -- … I told the lady that I
     would let her know. I was like … I can’t come. My supervisor
     told me no but it’s -- like I don’t have a subpoena. I was
     like -- and I told him, I said, it’s too short of a notice. I have
     to have all my days requested in before I started my first day of
     work. I had to have everything approved. And he was like, Oh.
     And then proceeds to tell me about all this stuff about, oh, yeah,
     I’m glad you found a job. I know you’ve been having financial
     hardship. I was like, Excuse me?

     MR. BYRD: Mm-hmm. Go ahead. I’m listening.

     MS. WILSON: Yeah. I was just like, Are you -- like he -- he knows
     everything about me, which makes me, like … why are you
     watching me? And he was like, you know, you seem like you’re a
     really good person, and he was like, so, you know, you just --
     basically, like – it’s just a bunch of BS, but I -- I don't know. But
     I told your mom because I wanted your mom to tell you because
     I didn’t think you had any phone time to call me.

     MR. BYRD: Yeah, well, you can tell me, because the phone is
     recorded, and if I need to subpoena it, then that’s what I'll do.

     MS. WILSON: There's not enough time now.

     MR. BYRD: Yes, it is. Just keep talking.

     MS. WILSON: Oh, well -- I don’t know. I was just saying because
     -- I was just like basically letting him know that I couldn’t make
     it. You know, and what makes me mad is that why would she --
     like, why would that lady go (indiscernible)? (Indiscernible) if I
     didn’t tell her (indiscernible).

     MR. BYRD: That lady -- that lady didn’t do that. That lady didn’t
     do that. Listen, let me explain to you something. First and
     foremost, you're not obligated to Larry Sachs. Larry Sachs is a
     district attorney. He’s the opposition in an adversarial process
     where they’re trying to prosecute one of your people. You are a
     character witness on my behalf because he’s in the courtroom
     trying to make it seem like I’m just a devil, a monster or
     something in an indirect way, and I wanted to paint a different
     picture for the jury ….



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                                     ***

     If I win this case, I’m going to be all over the news and be famous.
     Just watch. You don’t have to come. I’m not mad if you don’t
     come or none of that, baby. I’m not trippin’ at all, because I’m
     going to beat them with or without you, but I just was giving you
     an opportunity to be a part of it because I love you and it would
     have helped me close them out real good. At the end of the day,
     I don’t have to have that, though. It helps me for the simple
     fact that he reached out and tried to scare you up and tell
     you all type of derogatory things about me that he can’t
     prove and that are not true. Since he did that, it let me know
     that he’s in panic mode, and he knows he lost the case for real for
     real. That's what it let me know.

     MS. WILSON: Well, the only thing is, I can’t -- I can’t come
     is simply because I can’t lose my job.

     MR. BYRD: Right.

     MS. WILSON: You know, that’s the whole thing. Like I can’t lose
     my -- I can’t lose my job.

     MR. BYRD: No. You’re not --

     MS. WILSON: And, like, she straight up told me. She was like --

     MR. BYRD: -- not saying. You’re not --

     MS. WILSON: I understand. I’m just letting you know. Just letting
     you know.

     MR. BYRD: No, no, no. I’m saying – let me let you know. Let
     me be in control of the conversations for this time right
     here. You’re not coming to the thing, and I know that he
     scare you, Brandi. I know that he spooked you with that
     bullshit.

     MS. WILSON: That’s not why, though.

     MR. BYRD: It’s --

     MS. WILSON: I support --



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     MR. BYRD: Why don’t you just listen sometime, baby. You
     don't have to chime in every time, if you just listen to me,
     you read between the lines and understand.

     MS. WILSON: Yeah.

     MR. BYRD: If you let these people know -- if you even called
     the lady back that called you and tell them that he called
     you and said all those derogatory things and he threatened
     you and he scared you and that’s why you’re not coming, it
     helps me. Are you not –

     MS. WILSON: Yeah, I know.

     MR. BYRD: So why would you say it’s because you can’t
     come to work?

     MS. WILSON: Because I – everybody already know. Like I left a
     message for that lady letting her know, like, I can’t come in
     because –

     MR. BYRD: But if dude would have never would have called you, I
     think you would have made a bigger and a better effort to make
     sure you could try to get there. Being that he did that and said I
     was -- what all did he say? Put it on the record so I can use this
     call. Put it on the record.

     MS. WILSON: No, there’s the thing. Like he asked me if I was
     coming, and I was like, well … I can’t because of my job. And he
     was like, Oh, well such-and-such said that you said that you were
     going to be there. And I was like, I tried to call her back. I said,
     I called the number to try to call her back to let her know
     that I wasn’t coming. And he’s just like, oh, (indiscernible).

Commonwealth Exhibit 3 (N.T., 11/30/2016, at 11-15) (emphasis added).

     The conversation between Byrd and Ms. Wilson leaves one with the

inescapable conclusion that Byrd was capitalizing upon Ms. Wilson’s general

uneasiness over her conversation with Attorney Sachs. Byrd evinces a clear

intent to convince Ms. Wilson that not only did Attorney Sachs threaten her,



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but that she should report it to the trial court so that he could use the

information to his advantage. He is the first one to use the word “threatened.”

He is the one who suggested to Ms. Wilson that she say she was not coming

because of Attorney Sachs, not because her supervisor told her she could not

miss work to testify without a subpoena.

      Moreover, the conversation underscores that Ms. Wilson was not

planning to attend the trial without a subpoena before Attorney Sachs even

called her. Since Ms. Wilson told Attorney Sachs this at the outset of their

call, I am not convinced that he would intentionally subvert the court process

over a character witness who was not planning to attend.            Simply put,

Attorney Sachs had little to gain by engaging in nefarious conduct.

      In my view, the evidence falls short of supporting a finding of intentional

subversion of the court process and instead looks like the mishandling of a

witness interview with poor people skills. Attorney Sachs was forthcoming

regarding his conversation with the witness, and there is little dispute

regarding the contents of the conversation. His conduct here simply is not

comparable to the type of conduct at issue in other cases involving interviews

of witnesses where double jeopardy attached. See, e.g., Commonwealth

v. Anderson, 38 A.3d 828, 839 (Pa. Super. 2011) (en banc) (holding double

jeopardy barred retrial based upon prosecutor’s intent to taint a child witness

subversively; prosecutor met with a child witness without a third party present

in violation of a prior court order, spent hours with the child in advance of a



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competency hearing, told the child both the questions he would be asked and

the answers the child should provide, asked those questions at the

competency hearing, and lied about his meeting with the child).

      Without the requisite intent by Attorney Sachs, double jeopardy does

not attach. See Commonwealth v. Rightley, 617 A.2d 1289, 1294 (Pa.

Super. 1992) (“Unless the conduct, while perhaps reprehensible, is actually

designed to demean or subvert the truth seeking process, Smith will not apply

to bar a retrial.”). Therefore, I would reverse the trial court’s ruling and permit

the Commonwealth to re-try Byrd.




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