J-S18020-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    SHAWN MICHAEL BOOK,                        :
                                               :
                       Appellant               :      No. 1126 WDA 2017

                      Appeal from the Order July 20, 2017
                in the Court of Common Pleas of Butler County,
             Criminal Division at No(s): CP-10-CR-0000630-2016,
                            CP-10-CR-0001483-2015

BEFORE: STABILE, J., MUSMANNO, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY MUSMANNO, J.:                               FILED JUNE 27, 2018

       Shawn Michael Book (“Book”) appeals from the Order denying his Motion

to bar a retrial, following the declaration of a mistrial in Book’s second jury

trial.1 We affirm.

       In its Opinion, the trial court described the history underlying the instant

appeal, which we adopt as though fully restated herein.          See Trial Court

Opinion, 7/20/17, at 1-15.




____________________________________________


1  This is an interlocutory appeal as of right. See Commonwealth v.
Hallman, 67 A.3d 1256, 1260 (Pa. Super. 2013) (recognizing that “a
defendant can immediately appeal as of right an order that denies a non-
frivolous motion to dismiss on state or federal double jeopardy grounds.”).
J-S18020-18


       Book’s first jury trial, on the charges of burglary2 and related crimes,

ended in a mistrial.3 During his second jury trial, three incidents took place,

culminating in the trial court’s declaration of a mistrial, sua sponte.      First,

Commonwealth witness Toni Arnold (“Arnold”) improperly referred to Book’s

prior incarceration, after which the trial court denied Book’s Motion for a

mistrial. See N.T., 4/17/17, at 226-27. Second, Book’s wife, Michelle Book

(“Michelle”), another Commonwealth witness, testified regarding privileged

communications between her and Book.             See N.T., 4/18/17, at 56-58.

Counsel for Book objected to the testimony. Id. at 57-58. The trial court did

not rule on the objection, but no further testimony regarding the discussion

took place.4    Third, it was discovered that discovery materials, including a

possible recording related to interviews conducted by Master Trooper Dominic

Caimona (“Master Trooper Caimona”) and Corporal Randolph Guy, were not

provided to defense counsel. See N.T., 4/18/17, at 189-91 (wherein Michelle

testified regarding interviews conducted by the officers, and a subsequent


____________________________________________


2   See 18 Pa.C.S.A. § 3502.

3 During the first trial, a police officer improperly had testified regarding facts
from which it could be inferred that Book had a criminal record.

4 The trial court requested that the prosecutor provide additional foundation
to establish that the conversation was not privileged, i.e., that a third person
was present during the conversation. Id. at 58. The prosecutor was unable
to provide the necessary foundation. Id. at 58-59.




                                           -2-
J-S18020-18


sidebar discussion regarding the possibility of a Brady5 violation). This came

to light during the testimony of Master Trooper Caimona, who had been called

as a witness by Book. Following the third event, the trial court, sua sponte,

declared a mistrial, providing the following rationale for its decision:

       [N]umber one, we have the inadvertent[,] but certainly
       prejudicial[,] blurt out by [] Arnold concerning the fact that [Book]
       was in prison. Then we have Michelle[’s] [] testimony in violation
       of the spousal privilege[,] and then we have this issue[,] which[,]
       I think[,] is cumulatively going to make me declare a mistrial at
       this point.

Id. at 226-27.

       Book subsequently filed the instant Motion to Dismiss With Prejudice

seeking to bar a third trial.        In support, Book claimed that prosecutorial

misconduct caused the prior mistrials, and consequently, a retrial would

violate his constitutional protection against double jeopardy.         Motion to

Dismiss With Prejudice, 6/6/17, at 1; Brief in Support of Motion, 6/6/17, at 3

(unnumbered). In an Opinion and Order entered on July 20, 2017, the trial

court denied Book’s Motion to Dismiss With Prejudice. Thereafter, Book filed

the instant timely appeal, followed by a court-ordered Pa.R.A.P. 1925(b)

Concise Statement of matters complained of on appeal.

       Book presents the following claims for our review:




____________________________________________


5  See Brady v. Maryland, 373 U.S. 83, 87 (1963) (holding that the
prosecution must disclose evidence favorable to the accused that is material
either to guilt or to punishment).

                                           -3-
J-S18020-18


      A. Whether the [trial] [c]ourt committed an error of law and/or
         abuse of discretion in denying [Book’s] “Motion to Dismiss With
         Prejudice”?

      B. Whether the [p]rosecutor and/or other agents of the
         Commonwealth           engaged          in       prosecutorial
         misconduct/overreach in the instant case[,] aimed at either
         forcing [Book] to request a mistrial and/or deny [Book] a fair
         trial?

      C. Whether the conduct of the agents of the Commonwealth,
         namely members of the [Pennsylvania] State Police, should be
         imputed to the Commonwealth as misconduct barring retrial of
         [Book]?

      D. Whether the overreach/prosecutorial misconduct by the
         Commonwealth/its agents prohibits retrial of [Book] via Pa.
         Const., art. I, § 10 and U.S. Const., amend. V.[?]

Brief for Appellant at 9 (emphasis omitted, issues renumbered for clarity).

      In the Argument section of his brief, Book reduces his claims to the

following three issues:    (1) whether prosecutorial misconduct, as defined

under Commonwealth v. Smith, 615 A.2d 321 (Pa. 1980), occurred in the

instant case, thereby creating a double jeopardy prohibition of retrial, see

Brief for Appellant at 19; (2) whether the weight of the evidence in this case

indicates that the Commonwealth actors engaged in the prosecutorial

overreach proscribed under the Smith test and, therefore, the double

jeopardy prohibition of retrial is triggered, see id. at 39; and (3) whether the

trial court should impute prosecutorial misconduct on the part of Pennsylvania

State Police personnel to the prosecutor for purposes of double jeopardy

analysis, see id. at 61.




                                     -4-
J-S18020-18


       In assessing a double jeopardy claim,6 we are guided by the following:

       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.

Commonwealth v. Graham, 109 A.3d 733, 736 (Pa. Super. 2015)

(quotation marks, brackets, and citations omitted).

       Thus, whether a dismissal is warranted turns on whether the

Commonwealth        intended     to   deprive    the   defendant   of   a   fair   trial.

Commonwealth v. Adams, 177 A.3d 359, 372 (Pa. Super. 2017).

       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
____________________________________________


6 Book does not challenge the trial court’s sua sponte declaration of a mistrial.
Rather, Book challenges the denial of his Motion to Dismiss With Prejudice,
based upon a claim of prosecutorial misconduct. “Double jeopardy, as it
relates to prosecutorial misconduct, will attach where the prosecutorial
misconduct is calculated to trigger a mistrial.” Commonwealth v. Diehl,
615 A.2d 690, 693 (Pa. 1992).

                                           -5-
J-S18020-18


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

Id. (citations and internal quotation marks omitted). However,

      the sanction of dismissal of criminal charges should be utilized
      only in the most blatant cases. Given the public policy goal of
      protecting the public from criminal conduct, a trial court should
      consider dismissal of charges where the actions of the
      Commonwealth are egregious and where demonstrable prejudice
      will be suffered by the defendant if the charges are not dismissed.

Id. (citations omitted).

      In his first issue, Book argues that, where manifest necessity is the

result of prosecutorial misconduct, the “Smith test” should be applied, and

retrial should be barred.   Brief for Appellant at 19.   Book asserts that the

prosecutorial overreach in this case is similar to the misconduct that occurred

in Smith. Id. at 25. According to Book, the Commonwealth’s case was not

proceeding as planned, and a representative from the Pennsylvania State

Police, seated at the prosecutor’s table, was aware of this. Id. Book posits

that this created a motive for the Pennsylvania State Police and/or the

prosecutor to intentionally inject error into the case, to force Book to choose

between opting for a mistrial or obtaining a verdict. Id. According to Book,

the mistrial was declared during the testimony of Master Trooper Caimona,

who had over two hours to prepare for his “eventually-fatal testimony[,]

during which he was, by all accounts, in almost constant contact with the

officers [and] well aware of the issues which had arisen during the rest of the

trial.” Id. at 26. Book asserts that the purpose of Master Trooper Caimona’s

                                     -6-
J-S18020-18


testimony was to create the type of error that would meet the “Smith test.”

Id.

      In his second issue, Book argues that the “weight of the evidence”

indicates that the “Commonwealth actors engaged in the prosecutorial

‘overreach’ proscribed by the Smith Rule,” thereby triggering Book’s double

jeopardy protections.        Id. at 39 (internal quotation marks and some

capitalization   omitted).     In   support,   Book   directs   our   attention   to

inconsistencies in the testimony of other witnesses, which, he claims,

established the motive for the Commonwealth to inject error into the case.

See id. at 26-45. Book contends that it would be “ludicrous” to presume that

the prosecutor did not make known, to the police witnesses, the negative

implications of the “egregiously-lacking investigation,” and the “fatal nature”

of exposing the shortfalls, inconsistencies, “and outright lies” to the jury. Id.

at 39-40. Book contends that the Pennsylvania State Police witnesses and the

prosecutor then acted upon their “perceived need” to inject error into the case.

Id. Book asserts that fatal errors in both trials “have been the direct result of

a concerted effort by [Pennsylvania State Police] personnel, and/or the

[p]rosecutor, which mirror, in both form and function, the alternative prongs

of the ‘Smith test’ ….” Id. at 46.

      In its Opinion, the trial court set forth the appropriate law, addressed

Book’s first two challenges to the denial of his Motion to Dismiss With

Prejudice, and concluded that they lack merit.         See Trial Court Opinion,


                                       -7-
J-S18020-18


7/20/17, at 16-18. We agree with the sound reasoning of the trial court, as

set forth in its Opinion, and affirm on this basis as to Book’s claims, with the

following addendum.

      As our Supreme Court announced in Smith, “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.

      An example of egregious prosecutorial misconduct which has been
      deemed sufficient to warrant dismissal may be found in Smith.
      In Smith, the Commonwealth deliberately withheld from a capital
      defendant: (1) the existence of 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 mid-trial. The physical evidence consisted of grains of
      sand that were found between the toes of the murder victim at
      her autopsy. The sand was consistent with Smith’s defense that
      the crime had been committed in Cape May, New Jersey, by
      others, and not by him in Pennsylvania, as the Commonwealth
      had alleged. At trial, when a Pennsylvania state trooper testified
      on cross-examination that granular particles which looked like
      sand had been removed from the victim’s body, the
      Commonwealth implied that [the trooper] had fabricated his
      testimony and the trial prosecutor recommended to his superior
      that he investigate the feasibility of prosecuting the state trooper
      for perjury. While the trial was still in progress, the state police
      discovered the adhesive “lifters” that had been used to remove
      and retain the sand from the victim’s feet. The Commonwealth,
      however, failed to disclose this evidence and, indeed, continued
      to suppress the evidence for over two years while the case was on
      direct appeal to this Court. In light of this deliberate, bad faith
      failure to disclose potentially exculpatory evidence, this Court
      discharged Smith under the double jeopardy clause of the

                                      -8-
J-S18020-18


      Pennsylvania Constitution, opining that “it would be hard to
      imagine more egregious prosecutorial tactics.” [Smith,] … 615
      A.2d at 323.

            On the other hand, a mere finding of willful prosecutorial
      misconduct will not necessarily warrant dismissal of charges. For
      example, in Commonwealth v. Moose, … 602 A.2d 1265 ([Pa.]
      1992), [the Pennsylvania Supreme] Court found that the
      prosecutor’s failure to inform defense counsel of a witness’s police
      statement[,] which contained incriminating admissions allegedly
      made by the defendant[,] amounted to a “willful violation of Rule
      305.” Id. at … 1274. The [Supreme] Court held that “the district
      attorney’s conduct raised significant ethical concerns” and
      referred the matter to the Disciplinary Board for its consideration.
      Id. … at 1274 n.8 & 1276 n.12. Nonetheless, the [Supreme] Court
      did not dismiss the charges against Moose, but rather remanded
      the matter for a new trial. Id. … at 1276.

Commonwealth v. Burke, 781 A.2d 1136, 1144-45 (Pa. 2001).

      In the instant case, the prosecutor’s conduct does not approach that of

the deliberate, bad faith, prosecutorial misconduct that warranted the

dismissal in Smith. Further, the prosecutor’s conduct does not even approach

the conduct of the prosecutor in Moose.        There is no evidence here of

deliberate overreaching by the Commonwealth or its witnesses.         Although

Book offers speculation regarding the motives of the Commonwealth’s

witnesses, there is no evidence supporting his assertions. Simply put, the

errors in this case in no way approach the egregious and intentional nature of

the conduct addressed in Smith. Accordingly, we cannot grant Book relief on

his first two issues.

      In his third issue, Book claims that the conduct and motives of the

Pennsylvania State Police witnesses should be imputed to the prosecutor, for


                                     -9-
J-S18020-18


the purpose of applying the Smith test.         Brief for Appellant at 61.   Book

contends that the prosecutor should “feel adverse effects from the intentional

acts of her fellow Commonwealth Agents in the prosecution of [Book] in now[]

two (2) trials.” Id. at 65.

      In Adams, this Court recognized the important role that police have in

disclosing potentially exculpatory material.        Adams, 177 A.3d at 373.

However, our Court concluded that “there may be no double-jeopardy

dismissal if [police] misconduct is unintentional[,] or if it does not lead to

intentional misconduct of the prosecutor.” Id.

      Here, the trial court found no evidence that the Pennsylvania State

Police witnesses intentionally acted to provoke a mistrial. Trial Court Opinion,

7/20/17, at 17. Further, the trial court found no evidence that would support

a finding that Master Trooper Caimona purposefully injected error into the

proceedings, based upon an awareness that the Commonwealth’s case was

not proceeding “as planned.”     Id.    Finally, as observed by the trial court,

Master Trooper Caimona was called upon to testify by Book, and not the

prosecutor. Id.

      Because the trial court found that there was no intentional misconduct

or intent to deprive Book of a fair trial, and because those findings are

supported by the record, we affirm the trial court’s conclusion that Book is not

entitled to have the charges against him dismissed on double jeopardy




                                       - 10 -
J-S18020-18


grounds. We therefore affirm the Order of the trial court, which denied Book’s

Motion to Dismiss With Prejudice.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/27/2018




                                    - 11 -
