J-A16030-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                        IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellee

                       v.

DAVID HAROLD WYMARD,

                            Appellant                     No. 1297 WDA 2015


                  Appeal from the Order Entered July 21, 2015
                In the Court of Common Pleas of Fayette County
              Criminal Division at No(s): CP-26-CR-0000845-2011


BEFORE: SHOGAN, OLSON and STRASSBURGER,* JJ.

MEMORANDUM BY OLSON, J.:                             FILED NOVEMBER 07, 2016

       Appellant, David Harold Wymard, appeals from the order entered on

July 21, 2015, denying Appellant’s motion to dismiss various narcotics and

firearms charges against him based upon double jeopardy. Upon review, we

affirm.

       We briefly summarize the facts and procedural history of this case as

follows. In 2010, the Commonwealth charged Appellant with possession of a

controlled substance with the intent to deliver, possession of a controlled

substance by a person not authorized, possession of drug paraphernalia, and

persons not to possess a firearm.1         At the preliminary hearing, the arresting

____________________________________________


1
    35 P.S. § 780-113(a)(30), 35 P.S. § 780-113(a)(16), 35 P.S.
§ 780-113(a)(32), and 18 Pa.C.S.A. § 6105, respectively.



*Retired Senior Judge assigned to the Superior Court.
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officer testified that in response to asking Appellant if there was anything

Appellant wanted to say about drugs and ammunition found during a search

of Appellant’s home, Appellant told the officer there was a firearm above his

refrigerator and said, “last time I got busted I didn’t fess up.” On November

3, 2014, the trial court commenced a jury trial.    Prior to trial, the parties

agreed that eliciting testimony regarding the above statement would be

prejudicial to Appellant, because it suggested Appellant was involved in prior

criminal behavior. At trial, the officer testified and repeated the statement

at which time Appellant moved for a mistrial.     The trial court granted the

motion.

      On April 30, 2015, Appellant filed a motion to dismiss the charges

based upon double jeopardy, arguing that the prosecutor’s intentional

misconduct provoked Appellant into moving for a mistrial.           Following a

hearing, the trial court denied relief on July 21, 2015 and this timely appeal

resulted.

      Before addressing the merits of Appellant’s claim on appeal, a brief

recitation of the ensuing procedural history is necessary.   We note that at

the hearing on Appellant’s motion to dismiss, the trial court failed to follow

the dictates of Pa.R.Crim.P. 587(B), established in 2013, which governs

pretrial double jeopardy motions and provides, in pertinent part:


                             *        *           *
          (3) At the conclusion of the [double jeopardy] hearing, the
          judge shall enter on the record a statement of findings of

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       fact and conclusions of law and shall issue an order granting
       or denying the motion.

       (4) In a case in which the judge denies the motion, the
       findings of fact shall include a specific finding as to
       frivolousness.

       (5) If the judge makes a finding that the motion is frivolous,
       the judge shall advise the defendant on the record that a
       defendant has a right to file a petition for review of that
       determination pursuant to Rule of Appellate Procedure 1573
       within 30 days of the order denying the motion.

       (6) If the judge denies the motion but does not find it
       frivolous, the judge shall advise the defendant on the record
       that the denial is immediately appealable as a collateral
       order.

Pa.R.Crim.P. 587(B).

     Here, at the time of its ruling, the trial court made no record finding as

to the frivolousness of Appellant’s motion to dismiss.        Instead, at the

conclusion of the hearing on Appellant’s motion to dismiss, the following

exchange occurred:

       The [c]ourt:   The prosecuting officer while testifying made
       a prejudicial statement which caused a mistrial.         Said
       statement was not a basis for prosecutorial misconduct to
       warrant the invocation of double jeopardy. The prosecuting
       attorney did not intend to provoke the defendant into
       moving for a mistrial nor was a question asked intentionally
       undertaken by the prosecutor in bad faith to prejudice the
       defendant and deny him a fair trial. The error was rectified
       by the granting of a mistrial, and therefore, the Motion is
       DENIED.

       [The Commonwealth]:         Thank you, Your Honor.

       [Defense counsel]: According to the Rules, is the [c]ourt
       in determining that the motion – is that it was frivolous?


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          The [c]ourt:    My Order stands as it stands.

                               *         *            *

          [Defense counsel]: Can you provide my client with his
          appellate rights regarding the motion for double jeopardy?

          The [c]ourt:    You may do that.

          [Defense counsel]:       Okay. Thank you, Your Honor. Thank
          you for your time.

N.T., 7/21/2015, at 63-64.

        Rule 587 requires a specific, on-the-record finding as to frivolousness.

Here, the trial court did not do so.         Instead, in its written order denying

relief (filed later on the same day as the hearing), the trial court

subsequently concluded, “it is the finding of this [c]ourt that the claim of

[Appellant] was frivolous in the [m]otion to [d]ismiss.” Order, 7/21/2015,

at 1.

        Rule 587 also requires an on-the-record explanation of the appeal

process, because Appellant must either file an appellate petition for review

pursuant to Pa.R.A.P. 1573 (which governs frivolous motions to dismiss) or

an appeal under Pa.R.A.P. 313 (which governs collateral orders). Here, after

failing to make a contemporaneous record determination as to frivolousness,

the trial court compounded its error by failing to advise Appellant of his

appellate rights pursuant to Pa.R.Crim.P. 587(B)(5) and (B)(6).




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       Appellant filed a timely notice of appeal on August 2, 2015.2           On

August 20, 2015, Appellant subsequently filed a petition for permission to

appeal with the trial court.           In his petition for permission to appeal,

Appellant requested that the trial court certify that its order of July 21, 2015

involved a controlling question of law with a substantial difference of opinion

that may be resolved by an immediate appeal.           On August 21, 2015, the

trial court entered an order denying relief and stating that Appellant

“improperly filed a [n]otice of [a]ppeal without the permission of [the trial

court] to file an appeal, [therefore, the trial court] is now without jurisdiction

to consider the instant [p]etition for [p]ermission to [a]ppeal.”       Order of

Court, 8/21/2015, at 1. On the same day, the trial court also filed an order

directing Appellant to file a concise statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(b).             Appellant complied timely on

September 11, 2015.           On October 7, 2015, the trial court entered a

statement in lieu of an opinion pursuant to Pa.R.A.P. 1925(a).          The trial

court relied upon its previous order dated July 21, 2015 finding no

prosecutorial misconduct and determining Appellant’s motion to dismiss was

frivolous. Appellant filed an advocate’s brief with this Court.

       Generally, criminal defendants have a right to appeal a trial court's

pre-trial double jeopardy determination, even though the ruling is technically
____________________________________________


2
  According to the docket, Appellant received a copy of the written order
with the frivolousness determination before filing his notice of appeal.



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interlocutory. Commonwealth v. Orie, 22 A.3d 1021 (Pa. 2011) (per

curiam) (citation omitted). “[P]retrial orders denying double jeopardy claims

are final orders for purposes of appeal.” Orie, 22 A.3d at 1024. If a court

finds a double jeopardy claim frivolous, a petitioner may then seek review in

the Superior Court by filing a petition for review under Pa.R.A.P. 1501. Id.

at 1027.

      Here, the trial court did not find the claim frivolous until it entered its

written order.     Nevertheless, Appellant received the written order prior to

taking the appeal.       In the interest of justice, however, we believe the

procedural missteps amounted to a breakdown of the court.                Thus, we

accept Appellant’s appellate advocate’s brief despite the trial court’s failure

to adhere to Rule 587 and Appellant’s apparent confusion regarding the

proper method of appeal, because we have jurisdiction to examine the

merits of Appellant’s claim. Moreover, we direct the trial court to Rule 587

for future compliance.

      We now turn to the merits of Appellant’s appeal. Appellant raises the

following issue for our review:

        I.       Did the trial court err in failing to grant [] Appellant’s
                 motion to dismiss on the basis of double jeopardy due
                 to   prosecutorial     misconduct      which    provoked
                 [Appellant] to move for a mistrial and/or which was
                 undertaken by the prosecutor in bad faith to prejudice
                 [Appellant] and/or to deny him a fair trial?

Appellant’s Brief at 4 (complete capitalization omitted).




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      Appellant    claims      the   Commonwealth      committed    prosecutorial

misconduct because it intentionally elicited a prejudicial statement at trial

against Appellant.      Corporal Frank Konek testified that, during a search of

Appellant’s residence, Appellant told him that there was a firearm above the

refrigerator and then said, “last time I got busted I didn’t fess up.” Id. at 8.

Corporal Konek testified in the same fashion at Appellant’s preliminary

hearing and during a hearing on Appellant’s omnibus pretrial motion.

Appellant avers, “such a statement at the time of trial [] clearly indicated to

the jury that [Appellant] had been previously arrested and convicted and/or

that he was busted for some other criminal behavior in the past.” Id. Prior

to trial, counsel for Appellant and the Commonwealth agreed that “such a

statement would be prejudicial to Appellant and grounds for a mistrial[.]”

Id. at 21.      However, Appellant posits, at the hearing on his motion to

dismiss, the prosecutor “admitted that he only talked in generalities to all of

the intended individuals to be called as witness[es] as to what they were to

avoid” and “did not bring the specific prior testimony to Trooper Konek[’]s

attention[.]”   Id. at 25.           Thus, Appellant contends Corporal Konek’s

statement resulted from “the deliberate actions and failures” by the

Commonwealth that were “designed to provoke a mistrial and were

undertaken in bad faith to prejudice or harass” Appellant, thereby denying

him his right to a fair trial. Id. at 11. Appellant further maintains “that by

the   conclusion   of    the   opening    statements   by   both   counsel,   [the

Commonwealth] realized that [its] effort to achieve a conviction was already

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on a downward course with the jury appearing wholly unreceptive” to the

Commonwealth’s “case-in-chief.”     Id. at 24.   Defense counsel also claims

that after the trial court granted a mistrial, impaneled jurors approached him

“indicating that they thought that [the] case being offered against []

Appellant was a stretch” and did not “warrant a conviction.” Id.

      We review Appellant’s claim under the following, well-established

standards:

        An appeal grounded in double jeopardy raises a question of
        constitutional law. This [C]ourt'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.

                            *         *           *

        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


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        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.

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

        […O]ur first inquiry is whether the prosecutor engaged in
        misconduct at all. Prosecutorial misconduct occurs where
        the unavoidable effect of the prosecutor's actions is to
        prejudice the jury, forming in their minds fixed bias and
        hostility towards the accused so as to hinder an objective
        weighing of the evidence and impede the rendering of a
        true verdict. If prosecutorial misconduct occurred, we then
        discern whether that misconduct bars retrial.

Commonwealth v. Graham, 109 A.3d 733, 735–737 (Pa. Super. 2015)

(internal quotations, citations, and original brackets omitted).

      Here, following the hearing on Appellant’s motion to dismiss on double

jeopardy grounds, the trial court determined:

        The prosecuting officer while testifying made a prejudicial
        statement which caused a mistrial. Said statement was not
        the basis for prosecutorial misconduct to warrant the


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        invocation of double jeopardy. The prosecuting attorney did
        not intend to provoke [Appellant] into moving for a mistrial
        nor was a question asked intentionally undertaken by the
        prosecutor in bad faith to prejudice [Appellant] and deny
        him a fair trial. The error was rectified by the granting of a
        mistrial, and, therefore the [m]otion [to dismiss] is DENIED.

N.T., 7/21/2015, at 6.

      Upon review, we agree. Corporal Konek first testified that he went to

Appellant’s residence to conduct a “knock and talk” with Appellant after

receiving neighborhood complaints about drug trafficking from that location.

N.T., 11/3/2014, at 80-89.        Corporal Konek testified that Appellant

consented to a search of his residence.        Id. at 92.    Police recovered

marijuana, packaging supplies, scales, marijuana pipes, pills, and “some

ammunition.”    Id. at 93-98.     Corporal Konek stated the police issued

warnings to Appellant pursuant to Miranda v. Arizona, 384 U.S. 436

(1966) and Appellant understood his rights. Id. at 98-99.        Immediately

thereafter, the following exchange occurred:

        [The Commonwealth]:        Now, after [Appellant waived his
        Miranda rights,] did [Appellant] say anything else about
        the marijuana, pills or ammunition?

        [Corporal Konek]:    Yes.   We continued, again, to find
        more ammunition in the basement. I knew that he was a
        prohibited person and I asked him about the ammunition
        that we had found. I’m sorry, I asked if there were any
        guns in the house, and he said, yeah, above my fridge.

        I said, where? He said: It’s above my fridge, last time I
        got busted I didn’t fess up to it. And I walked upstairs ---

Id. at 99.




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     In reviewing the foregoing line of questioning, we do not believe the

Commonwealth intended to provoke Appellant into moving for a mistrial or

intentionally attempted to subvert the court process.    The Commonwealth

asked Corporal Konek an open-ended question about the search of

Appellant’s residence and Appellant’s general response to police finding

drugs and ammunition.     Corporal Konek answered by testifying about the

recovery of the firearm. However, the Commonwealth did not ask a specific

question about the recovered firearm. We have previously determined that

when the Commonwealth asks a witness an open-ended question or the

witness’ testimony is not responsive to the Commonwealth’s line of

questioning, there is no intentional misconduct. See Graham, 109 A.3d at

739 (the Commonwealth did not engage in prosecutorial misconduct when

an aggravated indecent assault victim testified that she was afraid the

defendant might assault her child or nephew when asked an open-ended

question about why she waited to report the defendant).       Likewise, here,

Corporal Konek volunteered the information that led to the mistrial.

Moreover, we note that Corporal Konek was the first witness called at trial.

The line of questioning took place early at trial.   Thus, there is simply no

record evidence to support Appellant’s suggestion that the jury was so

unreceptive to the Commonwealth’s presentation of the case that the

Commonwealth intentionally engaged in misconduct to obtain a mistrial in

order to prosecute Appellant again.     Finally, we may not consider any

discussions that defense counsel purportedly had with the impaneled jurors

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that were dismissed, as there is no evidentiary support for those factual

allegations in the certified record. “[W]e may not consider matters de hors

the record.”   Commonwealth v. Greer, 866 A.2d 433, 435 (Pa. Super.

2005).   Accordingly, we conclude the Commonwealth did not engage in

prosecutorial misconduct and Appellant was not entitled to relief based on

double jeopardy. For all of the reasons above, Appellant’s sole issue lacks

merit.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/7/2016




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