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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :    IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                    v.                   :
                                         :
MICHAEL DAVID VELLNER,                   :         No. 1583 MDA 2017
                                         :
                         Appellant       :


               Appeal from the Order Entered September 26, 2017,
            in the Court of Common Pleas of Northumberland County
                Criminal Division at No. CP-49-CR-0000451-2015


BEFORE: LAZARUS, J., KUNSELMAN, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                  FILED APRIL 03, 2018

        Michael David Vellner appeals the September 26, 2017 order of the

Court of Common Pleas of Northumberland County that denied appellant’s

motion to dismiss on double jeopardy grounds.       After careful review, we

affirm.

        The record reflects that appellant was charged with two counts of

aggravated indecent assault and indecent assault.1 The trial court scheduled

a jury trial for March 17, 2016.       At trial, Pennsylvania State Trooper

Kevin Kearney (“Trooper Kearney”) testified that he interviewed appellant

after gathering information that appellant was a suspect in a crime. (Notes

of testimony, 3/17/16 at 11-15.)      The Commonwealth began to play the




1   18 Pa.C.S.A. §§ 3125 and 3126, respectively.
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videotape of the interview. In the taped interview, prior to reading appellant

his Miranda2 rights, Trooper Kearney asked appellant if he remembered

him.       Appellant    responded    that   Trooper    Kearney    looked    familiar.

Trooper Kearney stated, “I was your PO[3] about 20 years ago.” (Id. at 18.)

Shortly thereafter, appellant’s attorney moved for a mistrial.           (Id.)   The

Commonwealth’s         attorney,   Michael P. Toomey,    Esq.    (“ADA     Toomey”),

stated:

              To be honest, your Honor, I did not review that part
              of the video, because if I had, I would have certainly
              not played it. When I was reviewing the case for
              trial[,] I skipped ahead to the actual interview
              because the Miranda wasn’t challenged. So I mean
              it’s the Commonwealth’s position that the Court can
              give cautionary instruction and instruct the jury not
              to consider it. All he said is I was a PO, that was
              20 years ago.

Id. at 20.     The trial court granted the mistrial for the introduction of prior

crimes by the Commonwealth. (Id. at 21.)

        On April 7, 2016, appellant moved to dismiss on the basis of double

jeopardy.     The trial court conducted a hearing on the motion on May 6,

2016.      ADA Toomey testified that he reviewed the videotape with the

exception of the part where Trooper Kearney asked appellant if he

remembered him and recalled that he had been his “P.O.” He explained that

he did not watch that portion of the tape because he thought it would just


2   Miranda v. Arizona, 384 U.S. 436 (1966).

3   A “PO” in this context refers to a parole officer or a probation officer.


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consist of Trooper Kearney reading the Miranda warnings from a prepared

sheet or card. (Notes of testimony, 5/6/16 at 23-24.) ADA Toomey testified

that he reviewed the tape so that he would not play any portion for the jury

that would refer to prior bad acts, crimes, or wrongs.       (Id. at 25.)   He

explained:

             I didn’t want to have a mistrial, Your Honor.    That
             was my purpose.

             I wanted to avoid a mistrial. I wanted to convict
             [appellant]. I felt this was a strong case and we
             were going to win. I did not intentionally try to do
             that to cause a mistrial. I mean, you can see my
             notes. I went through the entire thing with the
             exception of the beginning. Believe me, that will
             never happen again.

Id.

      On May 10, 2016, the trial court denied the motion to dismiss on the

basis that ADA Toomey’s failure to redact the prejudicial comment on the

videotape shown to the jury was not intentional. Appellant appealed to this

court and asserted that the trial court erred when it denied the motion to

dismiss the information.

      This court determined that the trial court did not satisfy the

requirements of Rule 587(B)(3-6) of the Pennsylvania Rules of Criminal

Procedure, vacated the order, and remanded for compliance with the rules.

Commonwealth v. Vellner, No. 944 MDA 2016, unpublished memorandum

(Pa.Super. filed June 22, 2017).




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      On remand, the trial court conducted a hearing on September 26,

2017. The trial court stated that its findings of fact and conclusions of law

were contained in the statement in lieu of formal opinion that was filed on

September 28, 2016, held the motion was not frivolous4, and advised

appellant of his right to appeal immediately the determination as a collateral

order. As the motion is not frivolous, this court has jurisdiction to hear this

appeal.

      On October 12, 2017, appellant filed a notice of appeal.                 On

October 17, 2017, the trial court ordered appellant to file a concise

statement of errors alleged on appeal, pursuant to Rule 1925(b) of the

Pennsylvania Rules of Appellate Procedure. On October 19, 2017, appellant

complied with the order.        On October 20, 2017, the trial court filed a

statement in lieu of opinion.

      Appellant raises the following issue for this court’s review: “Whether

the trial court erred when it denied the appellant’s motion to dismiss charges

on the grounds of double jeopardy because the Commonwealth caused the

mistrial in the first place?” (Appellant’s brief at 6 (capitalization omitted).)

            “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

4 This court would have jurisdiction of an appeal of the collateral order
denying the motion to dismiss if the trial court found that the motion was
not frivolous. If the trial court found that the motion was frivolous, then
appellant could secure review only by first filing a petition for review under
Rule 1573 of the Pennsylvania Rules of Appellate Procedure.


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          law, the appellate standard of review is de novo[.]”
          Commonwealth v. Vargas, 947 A.2d 777, 780
          (Pa.Super. 2008) (internal citations omitted). 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. Wood, 803 A.2d 217, 220
          (Pa.Super. 2002) (quoting Commonwealth v.
          Young, 692 A.2d 1112, 1114-15 (Pa.Super. 1997)).

          ....

          Our Supreme Court has determined that the Double
          Jeopardy Clause of Pennsylvania's constitution
          provides greater protection than its federal
          counterpart:

                 [T]he 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 to
                 the point of the denial of a fair trial.

          Commonwealth v. Smith, 532 Pa. 177, 615 A.2d
          321, 325 (1992).

          As this Court has reflected:



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                  The Smith standard precludes retrial
                  where       the     prosecutor's     conduct
                  evidences intent to so prejudice the
                  defendant as to deny him a fair trial. A
                  fair trial, of course, is not a perfect trial.
                  Errors can and do occur. That is why our
                  judicial system provides for appellate
                  review to rectify such errors. However,
                  where the prosecutor's conduct changes
                  from      mere    error    to   intentionally
                  subverting the court process, then a fair
                  trial is denied.

            Commonwealth v. Chmiel, 777 A.2d 459, 464
            (Pa.Super.2001).

            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   mandate        is  ignored     by     the
            Commonwealth, we cannot simply turn a blind eye
            and give the Commonwealth another opportunity.”
            Chmiel, 777 A.2d at 464 (quoting Commonwealth
            v. Martorano, 559 Pa. 533, 741 A.2d 1221, 1223
            (1999)).

Commonwealth v. Kearns, 70 A.3d 881, 884-885 (Pa.Super. 2013).

(emphasis in original).

      Here, appellant contends that the Commonwealth goaded him into

moving for a mistrial when it played a videotape in which the state trooper


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stated that he had previously been the parole officer of appellant. Appellant

contends that the playing of the videotape compromised his ability to have a

fair trial and that the Commonwealth played the video either deliberately or,

if it never listened to the video, played it at its own peril to appellant’s

detriment.

      The trial court determined that the Commonwealth did not intend to

play the portion of the videotape that referred to appellant’s prior criminal

history.     The trial court, as fact-finder, based this determination on

Attorney Toomey’s testimony.    Based on these factual findings, this court

agrees with the trial court that there was no intent to cause the mistrial or

deny appellant a fair trial.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/3/2018




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