J-A12001-17

                              2017 PA Super 413

 COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA


                     v.

JORDAN TIMOTHY ADAMS

                          Appellant                  No. 813 WDA 2016


                   Appeal from the Order Dated May 5, 2016
               In the Court of Common Pleas of Warren County
              Criminal Division at No(s): CP-62-CR-000173-2015


BEFORE: OLSON, J., SOLANO, J., and RANSOM, J.

DISSENTING OPINION BY RANSOM, J.:               FILED DECEMBER 27, 2017

      I respectfully dissent.    In my view, the Majority opinion places

insufficient weight on the police officer’s admitted practice of entering video

recordings into evidence only if they include inculpatory statements.

      This is an appeal from an order denying Appellant’s motion to dismiss

all charges on double jeopardy grounds.        Appellant’s initial prosecution

resulted in a mistrial after it was revealed that the Commonwealth had failed

to disclose exculpatory videotaped interviews with Appellant’s co-conspirator.

Although the trial court found three instances of prosecutorial conduct related

to the withholding of said tapes, it nevertheless determined that Appellant was

not entitled to dismissal of his charges.

      With regard to the examination of double jeopardy claims, the Majority

recognizes that:
J-A12001-17


        The Double Jeopardy Clauses of the Fifth Amendment to the
        United States Constitution and Article 1, § 10 of the Pennsylvania
        Constitution protect a defendant from repeated criminal
        prosecutions for the same offense. 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. Article I, §
        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. An error by a prosecutor does not
        deprive the defendant of a fair trial.       However, where the
        prosecutor’s conduct changes from mere error to intentionally
        subverting the court process, then a fair trial is denied.

Graham, 109 A.3d at 736 (internal citations and quotations omitted). Thus,

the operative determination is whether the Commonwealth intended to

deprive the defendant of a fair trial.

        Here, the trial court found three instances of prosecutorial misconduct

in the form of Brady1 violations but determined that the prosecutor had not

intentionally committed misconduct. Rather, the court found the prosecutor

grossly negligent in his assumptions and unwilling to accept responsibility for

his mistakes. See Trial Court Opinion (TCO), 7/5/16, at 4-9. The trial court

also examined the conduct of the police. In so doing, the trial court found:

        This practice of putting a DVD into the file only when there is
        inculpatory evidence is concerning. The [Pennsylvania State
        Police] regulations require that the original of all recorded
        polygraph interviews by placed in the investigating officer’s case
        file. Zeybel’s contrary practice functionally placed an extra hurdle
        to the disclosure of exculpatory interviews through discovery.

____________________________________________


1   Brady v. Maryland, 83 S. Ct. 1194 (1963).

                                           -2-
J-A12001-17



TCO at 7.

      Pennsylvania courts have previously held that the Commonwealth’s

Brady obligation extends to exculpatory evidence in the files of police

agencies    of   the   same   government    bringing   the   prosecution.    See

Commonwealth v. Burke, 781 A.2d 1136, 1142 (Pa. 2001); see also

Commonwealth v. Sullivan, 820 A.2d 795, 802 (Pa. Super. 2003) (noting

that the prosecution’s duty to disclose favorable evidence extends to others

acting on the government’s behalf, including the police).

      Indeed, the Majority recognizes as much.         See Maj. Op. at 25-26

(finding no reason to foreclose the possibility that intentional misconduct by

the police should also warrant dismissal under a double jeopardy analysis).

The Majority recognizes that police violate a defendant’s due process rights

where they destroy exculpatory evidence regardless of intention or when they

destroy potentially useful evidence in bad faith.      See Commonwealth v.

Snyder, 963 A.2d 396, 406 (Pa. 2009). Nevertheless, the Majority accepts

the trial court’s finding that the officers acted unintentionally in not including

the video of Redding and notes that miscommunication between the police

and prosecutor alone cannot be the basis for misconduct. See Maj. Op. at

28-29 (citing Burke, 781 A.2d at 1145-46).

      However, I cannot agree with the weight the Majority places upon

Corporal Zeybel’s admission that it is his longstanding practice to act in open

contravention of police regulations. Here, Corporal Zeybel testified that he

only entered a recorded statement into case evidence if it had “evidentiary

                                      -3-
J-A12001-17



value.”   Corporal Zeybel assigned “value” only to those recordings that

contained an inculpatory statement, i.e., a confession.          See Notes of

Testimony (N.T.), 5/5/16, at 86-87. Corporal Zeybel also admitted he was

mistaken for failing to comply with police regulations requiring him to do so.

Since Appellant’s mistrial, Corporal Zeybel has begun to include information

regarding recordings in his report, but persists in omitting recordings from

case evidence unless they include a confession or are specifically requested,

despite Pennsylvania State Police regulations requiring all recorded polygraph

interviews to be put in the officer’s case file. See N.T., 5/5/16, at 86-87, 101;

Maj. Op. at 12; Appellant’s Ex. 1 to Hr’g on Appellant’s Mot. to Dismiss, at 13.

      Despite the mistrial, Corporal Zeybel does not proffer potentially

exculpatory evidence obtained from polygraphs, and it is unclear whether he

understands the definition of exculpatory evidence.       Id. at 87, 101.    For

example, he also testified that until the trial he did not realize his interview

with Appellant’s co-defendant was considered “part of” Appellant’s case. See

N.T., 5/5/16, at 77.

      While the Majority notes concern with Corporal Zeybel’s admitted

practice that he only enters inculpatory and not exculpatory statements into

evidence, it accepts at face value that he does so in order that the recordings

will not become a “thorn” in the side of police and not to deprive defendants

of a fair trial. See Maj. Op. at 29. I cannot see any way in which this practice,

in contravention of Brady and the regulations of the State Police themselves,

does not intentionally deprive a defendant from receiving a fair trial.

                                      -4-
J-A12001-17



      We have previously noted that

      [i]ntentional prosecutorial misconduct . . . 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.

Commonwealth v. Kearns, 70 A.3d 881, 884–85 (Pa. Super. 2013) (internal

citations and quotations omitted). I cannot agree with the Majority’s trust

that “measures have been taken” to guarantee that complete discovery is

disclosed to criminal defendants in all future cases, as the conduct testified to

here raises systematic concerns beyond merely Appellant’s right to a fair trial,

and testimony indicates that the concerns may be ongoing.

      Accordingly, I would find that the police in the instant matter

intentionally subverted the court process, and would reverse the trial court.

See Graham, 109 A.3d at 736.




                                       -5-
