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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                             Appellee

                        v.

    NELSON RIVERA, JR.

                             Appellant                No. 792 MDA 2017


                       Appeal from the Order May 8, 2017
                 In the Court of Common Pleas of Clinton County
                Criminal Division at No: CP-18-CR-0000513-2016



    COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                             Appellee

                        v.

    NAPHEACE JAMAL COOPER-REID

                             Appellant                No. 793 MDA 2017


                       Appeal from the Order May 8, 2017
                 In the Court of Common Pleas of Clinton County
                Criminal Division at No: CP-18-CR-0000245-2016


BEFORE: STABILE, NICHOLS, AND RANSOM,* JJ.

MEMORANDUM BY STABILE, J.:                             FILED JUNE 13, 2018



____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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       Appellants, Nelson Rivera, Jr. and Napheace Jamal Cooper-Reid, co-

defendants in a drug trafficking case, appeal from an order denying their

motions to bar retrial on double jeopardy grounds following the declaration of

a   mistrial.   Appellants   contend    that   the   Commonwealth   committed

prosecutorial misconduct with the intent to force a mistrial or prejudice

Appellants’ right to a fair trial.   We consolidate these appeals pursuant to

Pa.R.A.P. 513, and we affirm.

       Appellants were charged with twenty counts of possession with intent to

deliver a controlled substance, a general conspiracy to sell a controlled

substance, two counts of corrupt organizations, one count of criminal use of a

communication facility and one count of dealing in proceeds of unlawful

activity. The case was complex because there were nineteen alleged sales of

various controlled substances between July 25, 2014 and April 19, 2015. The

trial court set aside five days for a jury trial, and the Commonwealth provided

a voluminous amount of pretrial discovery to Appellants.

       The Commonwealth committed multiple missteps during trial. First, it

moved to qualify Agent Andrew Sproat, a lead investigator in this case who

posed as a heroin user, as an expert in voice recognition. N.T., 2/27/17, at

45-57, 61-66. The trial court denied the Commonwealth’s motion because it

failed to disclose before trial its intent to qualify Agent Sproat as an expert

witness. Id. at 77-78.




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      Next, the Commonwealth attempted to introduce a PowerPoint

presentation to the jury that summarized evidence it had produced during

pretrial discovery. Appellants objected on the ground that the Commonwealth

had not disclosed the PowerPoint presentation itself before trial.               N.T.,

2/29/17, at 74. The trial court ordered the Commonwealth to provide a copy

of the PowerPoint to Appellants before introducing it into evidence.              The

Commonwealth did so but altered one of the PowerPoint slides without first

advising Appellants. N.T., 3/1/17, at 179-80. The slide originally reflected

that one Draymond Jones made a drug delivery on April 19, 2015, but the

Commonwealth corrected the slide to reflect that Appellant Cooper-Reid made

the   delivery—a   claim   that   was    consistent   with   a   report   that    the

Commonwealth provided Appellants during pretrial discovery. Id. at 179-80.

The trial court permitted the jury to view the corrected slide.

      Third, the Commonwealth destroyed a cell phone that contained text

messages between Agent Sproat and Appellant Rivera. N.T., 3/1/17, at 12.

Agent Sproat testified that in November 2014, he had phone conversations

and text message communications with Rivera concerning heroin purchases.

Id. at 239-45. Rivera objected, claiming the Commonwealth had to provide

the original text messages to him. The prosecutor explained that the text

messages might have been memorialized in investigative reports but that the

original text messages may not be available. Id. at 246. Agent Sproat then

explained that he turned in his prior work phone, which contained the text


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messages in question, in order to receive another work phone, but that he did

not take photographs of text messages with Rivera on the first work phone.

Id. at 248. The Commonwealth then removed the text messages from the

first work phone. Id. at 6-7. When the trial court asked if a phone company

could retrieve the deleted text messages, Agent Sproat conceded the

Commonwealth’s actions rendered the phone permanently unavailable. Id.

at 7-9. He explained that the Commonwealth removed the text messages

because the phone contained confidential information, including information

from other cases, but that he described the text messages verbatim in his

investigative reports.      Id. at 10-12.        The trial court concluded that the

Commonwealth did not act in bad faith by removing the text messages from

the phone, and that Agent Sproat’s testimony concerning text messages was

permissible under Pa.R.E. 1004.1 Id. at 20.

       Finally, the Commonwealth failed to disclose Appellant Rivera’s

inculpatory statement before Agent Sproat’s testimony at trial. Agent Sproat

testified that on April 16, 2015, he had a phone conversation with Rivera in

which Rivera agreed to sell heroin on April 19, 2015. N.T., 3/1/17, at 171-

72. On April 19, 2015, Agent Sproat learned that Appellant Cooper-Reid would

make the sale, not Rivera. Id. at 172-79. Agent Sproat wrote a report that

____________________________________________


1 Pa.R.E. 1004 provides in relevant part: “An original is not required and other
evidence of the content of a writing, recording, or photograph is admissible if
. . . all the originals are lost or destroyed, and not by the proponent acting in
bad faith.” Pa.R.E. 1004(a).

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the controlled purchase on April 19, 2015 was arranged on April 16, 2015, but

the report did not mention that the April 16, 2015 conversation was with

Rivera.     Id. at 188-200.     The trial court concluded the Commonwealth

committed a discovery violation by not informing Appellants prior to trial that

Agent Sproat’s conversation on April 16, 2015 was with Rivera. Id. at 188-

204. Due to this error, the trial court granted a mistrial on the third day of

trial.

         The trial court scheduled a retrial, but Appellants moved to bar retrial

on the basis of double jeopardy. In response, on May 5, 2017, the trial court

convened a hearing in which Agent Sproat testified about the Commonwealth’s

errors during trial.    The theme of his testimony was that he did nothing

intentional to prejudice Appellants during trial.

         Agent Sproat explained that (1) he, the trial prosecutor, and a police

chief corrected the PowerPoint slide to state that Appellant Cooper-Reid made

the drug delivery instead of Jones, (2) the PowerPoint consisted of information

included in reports that Appellants received during discovery, and (3) the

PowerPoint presentation was a work in progress at the time of trial.         The

prosecution showed the corrected PowerPoint slide to the jury instead of the

incorrect slide. Agent Sproat testified that he did not intentionally change

information on the PowerPoint but simply corrected the mistaken reference to

Jones. N.T., 5/5/17, at 3-42.




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        With regard to the text messages deleted from his first work phone after

he turned it in, Agent Sproat explained that he did not photograph the text

messages on this phone because of security issues. Agent Sproat added that

his work phone did not change often, so he believed he would continue to

have access to his text messages. He did not turn in his first work phone

intending for the text messages to be deleted. Id.

        Finally, with regard to his phone call with Rivera on April 16, 2015, Agent

Sproat testified that he could recall this conversation without notes because it

was a significant event in the case, and therefore he did not need to

memorialize it in a report. He testified that he did not intentionally fail to

mention in his April 19, 2015 report that the conversation was with Rivera.

Id.

        After the hearing, the trial court denied Appellants’ motion to bar retrial

on double jeopardy grounds, concluding the Commonwealth’s mistakes did

not amount to deliberate misconduct or a pattern of pervasive misconduct.

The trial court stated its order was immediately appealable. Appellants filed

timely appeals, and both Appellants and the trial court complied with Pa.R.A.P.

1925.

        In his appeal at 792 MDA 2017, Appellant Rivera raises a single issue:

        Whether the [trial] court committed an abuse of discretion/error
        of law in denying Appellant’s Motion to Bar Retrial, despite the
        continuing discovery issues during the trial held February 27, 2017
        through March 1, 2017 and subsequent mistrial as a result
        thereof. Specifically, whether the Honorable Court erred in not
        granting [Appellant’s] Motion to Bar Mistrial when said discovery

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     violations, including the destruction of evidence in the form of text
     messages and notes from police interviews were established at
     the Court’s hearing held May 5, 2017.

Appellant Rivera’s Brief at 4.   Similarly, in his appeal at 793 MDA 2017,

Appellant Cooper-Reid raises a single issue:

     Whether the [trial] court committed an abuse of discretion/error
     of law in denying Appellant’s Motion to Bar Retrial, despite the
     continuing discovery issues during the trial in this matter, to the
     extent that said discovery issues denied [Appellant] a fair trial in
     this matter, as well as overwhelming evidence that the
     Commonwealth, through its agent(s), destroyed evidence,
     including text messages?

Appellant Cooper-Reid’s Brief at 6. We review these arguments together.

     Appellants ask this Court to reverse the trial court’s order denying their

motions to bar retrial 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. Kearns, 70 A.3d 881, 884 (Pa. Super. 2013) (citations

omitted).




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      The Double Jeopardy Clauses of the Fifth Amendment to the United

States Constitution and Article 1, Section 10 of the Pennsylvania Constitution

protect a defendant from repeated criminal prosecutions for the same offense.

Id. Ordinarily, the law permits retrial when the defendant successfully moves

for mistrial.   If, however, the prosecution engages in certain forms of

intentional misconduct, the Double Jeopardy Clause bars retrial. Id. Article

I, Section 10, which our Supreme Court has construed more broadly than its

federal counterpart, bars retrial “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).

      A prosecutor’s error, even an error constituting gross negligence, does

not deprive the defendant of a fair trial. Kearns, 70 A.3d at 886. However,

“where the prosecutor’s conduct changes from mere error to intentionally

subverting the court process, then a fair trial is denied.” Id. at 884.

      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


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      mandate is ignored by the Commonwealth, we cannot simply turn
      a blind eye and give the Commonwealth another opportunity.”

Id. at 884–85 (citations omitted).

      Several   decisions   illuminate   the   difference   between   intentional

misconduct, which triggers double jeopardy protections, and gross negligence,

which does not.      In Smith, the Commonwealth intentionally withheld

information from a capital defendant, including (1) an agreement with its chief

witness pursuant to which he received lenient treatment at sentencing on

unrelated charges in exchange for his testimony, and (2) material, exculpatory

physical evidence that it had discovered during the trial consisting of grains of

sand found between the toes of the murder victim during her autopsy. The

sand was consistent with the defendant’s claim that someone else committed

the crime in Cape May, New Jersey, not him in Pennsylvania. Emphasizing

the egregious nature of the Commonwealth’s misconduct and its resulting

prejudice (the defendant’s conviction and death sentence), the Supreme Court

held 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 and thereby deny him a fair trial.” Id., 615 A.2d at 325. Because

the prosecutor’s conduct “was intended to prejudice the defense and thereby

deny him a fair trial, [the defendant] must be discharged on the grounds that



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his double jeopardy rights, as guaranteed by the Pennsylvania Constitution,

would be violated by conducting a second hearing.” Id.

      In Commonwealth v. Martorano, 741 A.2d 1221 (Pa. 1999), the

prosecutor    committed     misconduct    during    trial   including    “blatantly

disregarding the trial court’s evidentiary rulings, disparaging the integrity of

the trial court in front of the jury, and repeatedly alluding to evidence that the

prosecutor knew did not exist.”      Id. at 1222.     While acknowledging the

misconduct, the Commonwealth argued that double jeopardy principles were

not proper because Smith only applied where the prosecution withheld

exculpatory evidence. The Supreme Court rejected this argument, holding

that double jeopardy barred retrial where the prosecutor's action “evinces the

prosecutor’s intent to deprive [the defendant] of a fair trial; to ignore the

bounds of legitimate advocacy; in short, to win a conviction by any means

necessary.” Martorano, 741 A.2d at 1223.

      Finally, in Commonwealth v. Anderson, 38 A.3d 828 (Pa. Super.

2011) (en banc), the defendant was convicted of sexually assaulting three

mentally retarded children who resided at a state hospital.             This Court

reversed the defendant’s conviction and remanded for a new trial due to the

prosecutor’s misconduct during closing argument. On remand, the trial court

ordered the prosecutor not to meet with any of the complainants unless other

personnel from the hospital were present. The prosecutor violated this order

by meeting alone with one of the complainants for several hours to rehearse


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his testimony and then lied to the trial court that the meeting did not take

place.       This   Court   held   that   the      prosecutor’s   misconduct    violated

Pennsylvania’s Double Jeopardy Clause and affirmed the trial court’s order

granting the defendant’s motion to dismiss. Id. at 840.

         In contrast, Kearns demonstrates that gross negligence by the

Commonwealth does not require dismissal of a criminal case. During a non-

jury trial in an attempted murder case, defense counsel obtained a

continuance when he learned that the Commonwealth failed to produce an

incident report from the West Deer Police Department. When trial reconvened

one week later, the Commonwealth admitted that defense counsel had

requested the entire case file during the continuance period, and that there

were two additional important documents that had not been disclosed to him.

The court granted the defendant’s motion for a mistrial, and the defendant

filed a motion to dismiss alleging a double jeopardy violation.                The court

dismissed all charges and barred a retrial, stating that “[w]hile it did not

appear that the prosecutor intentionally withheld this evidence, it is apparent

. . . that the [p]rosecution was grossly negligent in failing to obtain and

produce the clearly discoverable material.” Kearns, 70 A.3d at 885.

         This Court reversed and remanded for further proceedings, stating:

         We accept the factual determinations of the trial court regarding
         the Commonwealth’s conduct and, further, we accept its legal
         conclusion that the Commonwealth was grossly negligent in
         withholding discoverable evidence from the defense based upon
         those factual determinations. Nevertheless, gross negligence on


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      the part of the Commonwealth is never a sufficient basis upon
      which to bar retrial on double jeopardy grounds.

Id. at 886; see also Commonwealth v. Strong, 825 A.2d 658, 668-70 (Pa.

Super. 2003) (prosecution’s failure to disclose information pursuant to Brady

v. Maryland, 373 U.S. 83 (1963), that key witness was receiving leniency in

exchange for testimony did not warrant dismissal of charges, where there was

no evidence demonstrating specific intent to deny defendant fair trial).

      In the present case, the trial court reasoned that “nothing in the

evidence presented to us, particularly the testimony of [Agent] Sproat, would

suggest that the Commonwealth intended to keep [any] information from

defense counsel.” Order Denying Motion of Defendants to Bar Retrial, 5/8/17,

at 2. The court continued:

      We find that neither the failure to clarify the contact between
      [Agent] Sproat and Rivera on the 16th nor the belated
      modification of a PowerPoint nor any of the other discovery
      violations amounted to a deliberate and intentional tactic to deny
      [Appellants] a fair trial.    Clearly, [the prosecutor] and his
      witnesses should have made a more diligent effort to guarantee
      defense counsel had the information they believe was necessary.
      On the other hand, the sheer complexity of this case and the fact
      that the task force allowed [Appellants] to allegedly engage in
      nineteen (19) separate sales before making an arrest resulted in
      the accumulation of massive amounts of evidence which defense
      counsel understandably had difficulty assimilating. Nonetheless,
      we are not convinced that any alleged omissions or misstatements
      amounted to deliberate misconduct or a pattern of pervasive
      misconduct [that] would justify the dismissal of the charges
      against [Appellants]. The appropriate remedy for the negligence
      of the prosecution is simply a new trial.

Id. at 2-3.



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      We see no reason to overturn this decision. The trial court presides as

factfinder when the defendant moves to bar retrial on the basis of

prosecutorial misconduct. If the court determines that the Commonwealth

committed intentional misconduct to deprive the defendant of a fair trial—

e.g., the prosecutor deliberately concealed exculpatory evidence (Smith),

misled the jury about non-existent evidence (Martorano), or brazenly

violated a court order and then lied to the court that no violation took place

(Alexander)—the trial court should grant the defendant’s motion to bar retrial

under Pennsylvania’s Double Jeopardy Clause.          Conversely, if the court

determines that the Commonwealth was negligent, or even grossly negligent,

such as the prosecutor in Kearns who failed to turn over multiple important

documents during discovery, barring retrial is too harsh a sanction. We cannot

reverse the trial court’s finding of intent or negligence when it is supported by

the record. Kearns, 70 A.3d at 884. Here, the trial court found that the

Commonwealth’s errors were the product of negligence instead of intent to

deprive Appellants of a fair trial. Agent Sproat’s testimony during trial and

the post-trial evidentiary hearing supports this finding.         Agent Sproat

confirmed that the alteration of the PowerPoint slide, deletion of text

messages from his first work phone, and his failure to state in his report that

his conversation on April 16, 2015 was with Appellant Rivera were all errors

but not deliberate acts of misconduct. The proper sanction, therefore, was




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not to dismiss the charges against Appellants but to make the Commonwealth

retry Appellants in a new trial.

      Order affirmed. Case remanded for further proceedings. Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 06/13/2018




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