J-A11002-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    HERBERT TRAVER                             :
                                               :
                       Appellant               :   No. 1722 MDA 2019

                Appeal from the Order Entered October 10, 2019
               In the Court of Common Pleas of Wyoming County
              Criminal Division at No(s): CP-66-CR-0000283-2018


BEFORE:      PANELLA, P.J., McLAUGHLIN, J., and STEVENS, P.J.E.*

MEMORANDUM BY PANELLA, P.J.:                              FILED JULY 21, 2020

        Herbert Traver appeals from the order denying his motion to dismiss the

charges against him and bar retrial on double jeopardy grounds.1 After review,

we vacate the order and remand for consideration of the Pennsylvania

Supreme Court’s recent decision in Commonwealth v. Johnson, ___

A.3d.___, 40 EAP 2018 (Pa., filed May 19, 2020) (“Johnson (Pa.)”).

        In June of 2018, a criminal complaint was filed against Traver charging

him with one count of rape, one count of corruption of minors, and two counts

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*   Former Justice specially assigned to the Superior Court.

1 While an order denying a motion to dismiss 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. See Pa.R.Crim.P. 587(B)(6);
Commonwealth v. Barber, 940 A.2d 369, 376 (Pa. Super. 2007). The trial
court found Traver’s motion non-frivolous. See Trial Court Order, 10/10/2019.
Thus, this appeal is properly before us.
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of indecent assault regarding allegations of sexual assault involving D.R., his

step-granddaughter (the “Victim”).

      Following a preliminary hearing, all charges were held over for court. An

Information was filed, and thereafter an amended Information was filed

charging Traver with rape of a child, corruption of minors, and two counts of

indecent assault.

      In May of 2019, a jury trial was held. The Commonwealth witnesses

called to testify were the Victim, age seventeen at the time of trial, her

brother, the principal investigating officer and a psychologist who testified as

an expert witness as to reasons for a delay in reporting complaints of sexual

abuse by child victims. In response, the defense called seven witnesses,

including family members, friends, and Traver’s primary care physician and

optometrist. In addition, Traver testified on his own behalf.

      On cross-examination, the following exchange occurred between

counsel for the Commonwealth and Traver:

      Q. Good afternoon, sir. The things you just testified to, you never
      touched [the Victim’s] breasts, you never touched her vagina, and
      you never had sexual intercourse with her, when you were
      contacted by [the trooper] in February 2016, you never told him
      that, did you?

      A. He never asked me if I ever touched her.

      Q. Because you never called him back, did you?

N.T., 5/22/2019, at 611. Defense counsel objected and requested a sidebar.

The objection was lodged and a motion for mistrial was made. In response,



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counsel for the Commonwealth provided the court with case law to support its

position that when a defendant elects to testify, a prosecutor may make

reference to the defendant’s pre-arrest silence for purposes of impeachment.

See id. at 613-614 (citing to Commonwealth v. Kuder, 62 A.3d 1038 (Pa.

Super. 2013), Commonwealth v. Fischere, 70 A.3d 1270 (Pa. Super. 2013),

Commonwealth          v.   DiNicola,    866   A.2d   329    (Pa.   2005),   and

Commonwealth v. Bolus, 680 A.2d 839 (Pa. 1996)). The trial court granted

the motion and a mistrial was declared. The matter was rescheduled for jury

trial to commence on October 21, 2019. Traver subsequently filed a motion to

dismiss on double jeopardy grounds. The Commonwealth filed a response.

         On October 7, 2019, oral argument was heard on the motion. Counsel

for the Commonwealth denied any intent to cause a mistrial by asking Traver

about his pre-arrest silence. See N.T., 10/7/2019, at 9-10. He stated that his

questioning was a good faith action based on his reading of the law. See id.

at 16.

         On October 10, 2019, the trial court denied Traver’s motion to dismiss.

The trial court found that a mistrial was necessary because the court believed

that the questions posed to Traver on cross-examination may have had the

effect of biasing the jury. See Trial Court Opinion, 10/10/2019, at 6. However,

the trial court concluded that the protection of double jeopardy was not

warranted here, as it found no evidence of intentional prosecutorial

misconduct in the cross-examination questioning. See id. The trial court


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stated its order was immediately appealable. Traver subsequently filed this

timely appeal.

      On appeal, Traver contends the trial court erred in failing to dismiss the

charges against him on double jeopardy grounds.

      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[.]
      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 (1982); see also Commonwealth v. Simons, 522 A.2d 537, 540 (Pa.

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

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       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).

       Further, our Supreme Court has recently held that in addition to the

behavior described in Smith, prosecutorial overreaching2 sufficient to invoke

double jeopardy protections under Article 1, § 10 of the Pennsylvania

Constitution includes reckless misconduct which deprives the defendant of a



____________________________________________

2
  Prior to Kennedy, the limiting principle was expressed in terms of
prosecutorial overreaching – that is, misconduct intended to provoke a
defense motion for a mistrial or actions otherwise taken in bad faith to harass
or unfairly prejudice the defendant. See Lee v. United States, 432 U.S. 23,
34 (1977); see also Commonwealth v. Starks, 416 A.2d 498, 500 (Pa.
1980).

In Kennedy, the United States Supreme Court disapproved further use of the
“overreaching” test, and instead held the Fifth Amendment immunizes the
defendant from retrial only where the government’s actions were “intended to
‘goad’ the defendant into moving for a mistrial.” Id. at 675-676. In Simons,
the Pennsylvania Supreme Court adopted the Kennedy rule, and found
double jeopardy only attached to those mistrials which had been intentionally
caused by prosecutorial misconduct. Simons, 522 A.2d at 540.

Subsequently, in Smith, our Supreme Court construed Pennsylvania’s double-
jeopardy provision as supplying broader protections than its federal
counterpart, and returned to the pre-Kennedy “overreaching” test. Smith
was grounded on the distinction between mere error and overreaching, as set
forth in Starks. See Smith, 615 A.2d at 324. Starks conveyed that, whereas
prosecutorial errors are an “inevitable part of the trial process,” prosecutorial
overreaching is not. Starks, 416 A.2d at 500.

Our Supreme Court has concluded that although it departed from the Fifth
Amendment in the wake of the Kennedy decision, it never disavowed the
“overreaching” prerequisite, which is firmly entrenched in case precedent both
pre- and post-Kennedy. See Johnson (Pa.).

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fair trial. See Johnson (Pa.). Therefore, the type of misconduct which

qualifies   as   overreaching   under   our   state   constitution     encompasses

governmental errors that occur absent a specific intent to deny a defendant

his constitutional rights. See id.

      We can find no error in the trial court’s finding that there is no evidence

that the Commonwealth intentionally asked the cross-examination question

to provoke a mistrial. However, as the trial court did not have the opportunity

to consider whether the prosecutor’s actions constituted reckless behavior,

such as to qualify as overreaching under our state constitution, we

nevertheless vacate the order, and remand for consideration of our Supreme

Court’s decision in Johnson (Pa.).

      Order      vacated.   Case   remanded    with    instructions.    Jurisdiction

relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 07/21/2020




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