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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                 :
                                        :
PATRICK EUGENE STOKES,                  :         No. 551 WDA 2017
                                        :
                          Appellant     :


                    Appeal from the Order, March 15, 2017,
               in the Court of Common Pleas of Crawford County
               Criminal Division at No. CP-20-CR-0000828-2016


BEFORE: BOWES, J., SOLANO, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:             FILED OCTOBER 25, 2017

      Patrick Eugene Stokes appeals from the March 15, 2017 order denying

his motion to dismiss based on double jeopardy grounds.          After careful

review, we affirm.

      The trial court summarized the relevant facts and procedural history of

this case as follows.

                  [Appellant] had been charged in three counts
            with making terroristic threats (graded as a first
            degree misdemeanor), harassment, and disorderly
            conduct stemming from an encounter in the
            Courthouse with his son’s mother (hereinafter
            referred to as the “Victim”) on July 28,
            2016.[Footnote 1] They had just attended a custody
            hearing to determine whether he posed a threat to
            the boy and whether counseling was needed, in light
            of his recent conviction for endangering the child’s
            welfare.[Footnote 2]      His trial commenced on
            January 11, 2017,[Footnote 3] and after the
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          Commonwealth rested its case, [appellant] testified
          on his own behalf.

                [Footnote 1] The Information was
                amended      following   trial, in    the
                expectation that [appellant] would enter
                a plea, to substitute for terroristic
                threats, 18 Pa.C.S.A. § 2708(a)(1), [for]
                the third degree misdemeanor offense of
                harassment, id. §§ 2709(a)(4), (c)(2).
                The other two charges were graded as
                summary offenses. Id. §§ 2709(a)(3),
                (c)(1), 5503(a)(3), (b).

                [Footnote 2] Case    No. CR 1224-2015, in
                which [appellant]    had ple[d] guilty on
                June 9, 2016,         and was awaiting
                sentencing. See      23 Pa.C.S.A. § 5329
                (“Consideration of   criminal conviction” in
                custody actions).

                [Footnote 3] Although [appellant] had
                requested      a     bench   trial,  the
                Commonwealth imposed its right to a
                trial by jury on the misdemeanor charge.

                During cross-examination, [appellant] was
          asked [by Assistant District Attorney Andrew Natalo
          (hereinafter “A.D.A. Natalo”)] whether the hearing
          had occurred “out of the blue,” and answered, “No,
          sir. It was a determination to see if I was a danger
          to my child’s life or if I was harmed -- if I could harm
          him, I guess.” The trial was halted and a mistrial
          declared when he was next asked, “I guess what
          would have brought that on?” and his answer was, “I
          had criminal charges . . . .”

                 [Appellant] filed his motion [to dismiss] on
          January 23, 2017, and on January 27, 2017, [the
          trial court] ordered him to file a brief ten business
          days prior to the date on which it was to be argued;
          the Commonwealth was directed to file a reply brief.
          [Appellant’s] counsel apologetically submitted a brief
          on March 3, 2017, the day that the [trial c]ourt


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            heard argument on the motion. The Commonwealth
            had, nevertheless, filed a brief in opposition to the
            motion a week earlier, on February 24, 2017.

Trial court opinion, 3/15/17 at 1-2 (citations to notes of testimony omitted;

internal quotation marks in original).

      Thereafter, on March 15, 2017, the trial court filed an order and

opinion denying appellant’s motion to dismiss.         On March 30, 2017,

appellant filed a timely notice of appeal challenging the trial court’s refusal

to grant his request for dismissal and bar a second trial. The record reflects

that the trial court did not order appellant to file a concise statement of

errors complained of on appeal, in accordance with Pa.R.A.P. 1925(b).

Nonetheless, on April 20, 2017, the trial court filed a Rule 1925(a) opinion,

indicating that it was relying on the reasoning set forth in its March 15, 2017

memorandum.

      Appellant raises the following issue for our review:

            Should the retrial of [appellant] be barred by the
            Fifth Amendment of the United States Constitution
            and Article 1 Section 10 of the Pennsylvania
            Constitution because the Prosecution deliberately
            elicited testimony from [a]ppellant regarding his
            prior conviction after being admonished not to
            proceed with the line of questioning, which resulted
            in a mistrial?

Appellant’s brief at 4.

      We begin by observing that an order denying a motion to dismiss

charges based on double jeopardy is interlocutory but appealable as of right.

Commonwealth v. Barber, 940 A.2d 369, 376 (Pa.Super. 2007) (stating,


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“[i]t is well settled in Pennsylvania that a defendant is entitled to an

immediate interlocutory appeal as of right from an order denying a

non-frivolous motion to dismiss on state or federal double jeopardy

grounds.”),    appeal    denied,   960    A.2d    835   (Pa.    2008);    see    also

Commonwealth v. Orie, 22 A.3d 1021, 1023-1024 (Pa. 2011) (holding

that an appeal from a pre-trial order denying double jeopardy protection is

final and appealable).    “An appeal grounded in double jeopardy raises a

question of constitutional law.” Commonwealth v. Taylor, 120 A.3d 1017,

1020 (Pa.Super. 2015) (citation omitted). “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.” Id.1

      Instantly,   appellant   contends    that    A.D.A.      Natalo    intentionally

cross-examined him with regard to his prior convictions2 and that such

conduct amounted to prosecutorial misconduct.           (Appellant’s brief at 5-6.)

Appellant invokes the protection of both the Double Jeopardy Clause of the

Fifth Amendment to the United States Constitution and Article I, Section 10


1 Clearly, the trial court in this matter denied appellant’s motion to dimiss on
its merits and not as frivolous.

2 Appellant pled guilty to endangering the welfare of children, fleeing or
attempting to elude a police officer, and the summary offense of operating a
vehicle without the required financial responsibility on June 19, 2016. See
18 Pa.C.S.A. § 4304(a), 75 Pa.C.S.A. §§ 3733(a) and 1786, respectively.
These convictions arose out of an incident that occurred on December 11,
2015, when appellant fled from police with his three-year-old child in the
backseat after police attempted to stop him for driving without a valid
inspection sticker.

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of the Pennsylvania Constitution,3 and maintains that the appropriate

remedy is the preclusion of a new trial on double jeopardy grounds. (Id. at

7.) For the following reasons, we disagree.

      In Commonwealth v. Smith, 615 A.2d 321 (Pa. 1992), our supreme

court examined the protection of the Double Jeopardy Clause in a case

involving prosecutorial misconduct pursuant to the standard set forth in

Oregon v. Kennedy, 456 U.S. 667 (1982). In Smith, our supreme court

broadened the double jeopardy protection provided by the federal courts and

United   States   Constitution,   which   requires   the   prosecution   to   have

intentionally caused a mistrial through misconduct. Specifically, the Smith

court stated 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
            to the point of the denial of a fair trial.

Smith, 615 A.2d at 325. Because the court determined that the prosecutor

intended to prejudice the defendant and deprive him of a fair trial, it found




3  The Fifth Amendment of the United States Constitution provides, in
relevant part, that no person shall “be subject for the same offence to be
twice put in jeopardy of life or limb [.]” U.S. Const. Amend. V. Similarly,
Article I, § 10 of the Pennsylvania Constitution provides that “[n]o person
shall, for the same offense, be twice put in jeopardy of life or limb.”
Pa. Const. Art. I, § 10.

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that his double jeopardy rights would be violated if he faced a new trial and

discharged him. (Id.)

      Several years later in Commonwealth v. Martorano, 741 A.2d 1221

(Pa. 1999), the defendants were awarded a new trial based upon

prosecutorial misconduct. On remand, the trial court denied the defendants’

motion to dismiss on double jeopardy grounds, but a panel of this court

reversed.    Relying on Smith, our supreme court held that pervasive

prosecutorial misconduct throughout the proceedings demonstrated the

prosecutor’s intent to deprive the defendants of a fair trial and that double

jeopardy barred their retrial.   In Martorano, our supreme court amplified

the Smith standard and held that double jeopardy barred retrial of the

defendants where the prosecutor:

             acted in bad faith throughout the trial, consistently
             making reference to evidence that the trial court had
             ruled inadmissible, continually def[ied] the trial
             court’s rulings on objections and . . . repeatedly
             insist[ed] that there was fingerprint evidence linking
             [the defendants] to the crime when the prosecutor
             knew for a fact that no such evidence existed.

Martorano, 741 A.2d at 1223.

      More    recently,   in   Commonwealth     v.   Minnis,   83     A.3d   1047

(Pa.Super. 2014), a panel of this court reiterated that Martorano stands for

the proposition that, “where the defendant alleges prosecutorial misconduct

as a basis for double jeopardy protection, the outcome depends on

the nature of the alleged misconduct.” Minnis, 83 A.3d at 1052 (emphasis



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added). For prosecutorial misconduct to prohibit retrial on double jeopardy

grounds, the prosecutor’s conduct must be both egregious and pervasive.

Id. at 1052-1053. The Commonwealth can “therefore engage in misconduct

that warrants a new trial but is not sufficiently egregious to bar mistrial on

double jeopardy grounds.” Id. at 1053 n.5 (internal citation omitted).

      In the instant matter, we find that appellant’s contention that

A.D.A. Natalo intentionally provoked appellant into moving for a mistrial,

such that his retrial should be barred on double jeopardy grounds, is belied

by the record. Similar to Minnis, the trial court concluded that mistrial was

warranted in this case but that it did not believe that A.D.A. Natalo’s conduct

was so egregious as to bar retrying appellant.     Specifically, the trial court

stated as follows:

                    A.D.A. Natalo was advised not to inquire into
            the reason for the custody hearing, and yet
            persisted. [Notes of testimony, 1/11/17 at 43] (“You
            can’t ask about the conviction, but you can address
            why [“Mother/Victim”] was absent from the child’s
            life.”). By pursuing this line of inquiry, he thus
            engaged in deliberate misconduct which caused a
            mistrial. Subjectively, however, it does not appear
            that he intended to provoke [appellant] into moving
            for a mistrial because he based his challenge to the
            motion upon the propriety of his conduct (which he
            continues      to   assert).      [Id.   at    50-52;
            Commonwealth’s brief at] 5-8. His lack of desire to
            obtain a retrial may be inferred on an objective basis
            as well, in that he anticipated that this line of
            questioning would be objectionable and attempted to
            obtain a ruling in advance. [Notes of testimony,
            1/11/17 at 44] (“I don’t want to cause a mistrial
            when I ask him why he was there for a custody
            hearing.”). A prosecutor seeking a mistrial would


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            not disclose that desire with such an expression of
            uncertainty and concern.          The prosecutorial
            misconduct in this case, therefore, does not prohibit
            retrial.

                   A.D.A. Natalo mistook our instruction to be a
            license to proceed in the manner he did unless and
            until defense counsel lodged an objection, which
            came      perhaps      a    bit    belatedly.       See
            [Commonwealth’s brief at] 5 (“The Commonwealth’s
            first argument against dismissal is based [up]on the
            [trial    c]ourt’s      actual    ruling    ...     that
            cross-examination would have to commence in order
            to see what was objectionable and what was not.”)
            His misconduct is thus not of the blatant variety
            justifying the dismissal of charges.                See
            Commonwealth v. Burke, [781 A.2d 1136, 1144-
            1145 (Pa. 2001)] (“Because of the compelling
            societal interest in prosecuting criminal defendants
            to conclusion, . . . dismissal of charges is an extreme
            sanction that should be imposed sparingly and . . .
            only in cases of blatant prosecutorial misconduct.”).

Trial court opinion, 3/15/17 at 5-6 (case citations and citations to notes of

testimony amended; footnotes omitted).

      Based upon our review of the record in this matter, we discern no

error on the part of the trial court in reaching this conclusion. We agree that

A.D.A. Natalo’s conduct, while reckless, did not rise to the level of having

been committed with the intent to provoke appellant into seeking a mistrial.

At most, the record demonstrates that A.D.A. Natalo misapprehended the

trial court’s ruling about appellant’s prior conviction, and the trial court, in

an abundance of caution, granted a mistrial.         This is not the type of

pervasive misconduct that this court found to bar retrial in Smith and

Martorano. See, e.g., Commonwealth v. Basemore, 875 A.2d 350, 356


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(Pa.Super. 2005) (finding no support in either Smith or Martorano “for the

idea that either grossly negligent or reckless conduct by a prosecutor

implicates double jeopardy concerns.”), appeal denied, 895 A.2d 548 (Pa.

2006). Accordingly, appellant’s claim that this case should be dismissed on

double jeopardy grounds must fail.

     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 10/25/2017




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