J-S29026-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ALFONSO SANCHEZ,                           :
                                               :
                       Appellant               :   No. 3368 EDA 2017

                   Appeal from the Order October 11, 2017
      In the Court of Common Pleas of Bucks County Criminal Division at
                       No(s): CP-09-CR-0001136-2008


BEFORE:      PANELLA, J., MURRAY, J., and STEVENS*, P.J.E.

MEMORANDUM BY MURRAY, J.:                                 FILED JUNE 28, 2018

       Alfonso Sanchez (Appellant) appeals from the trial court’s order denying

his motion to dismiss on double jeopardy grounds.1 After careful review, we

affirm.

       The trial court summarized the genesis of this case as follows:



____________________________________________


1  This interlocutory appeal is properly before us pursuant to Pa.R.Crim.P.
587(B)(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.); see also N.T., 10/11/17, at 228-229 (trial
court stating that the motion is not “well-grounded” or “supported by the
evidence,” but averring that “I can’t say, as a matter of fact, that I find it to
be frivolous”); Trial Court Opinion, 12/20/17, at 6 (“Because this court found
that the Motion to Dismiss on Double Jeopardy grounds was not frivolous on
its face, and was not subject to automatic dismissal, [Appellant] was permitted
to file an interlocutory appeal of our denial of his Double Jeopardy Motion.”).




____________________________________
* Former Justice specially assigned to the Superior Court.
J-S29026-18


             On September 30, 2008, after a seven (7) day jury trial,
      [Appellant] was found guilty of Murder in the First Degree in the
      shooting deaths of Mendez Thomas and Lisa Diaz. [Appellant] was
      also found guilty of fifteen (15) other counts including Burglary,
      Attempted Homicide, Aggravated Assault, Possession of an
      Instrument of Crime, Criminal Conspiracy (Murder, Burglary,
      Aggravated Assault, and Possession of an Instrument of Crime),
      Flight to Avoid Apprehension, and Recklessly Endangering Another
      Person.

             On October 2, 2008, at the conclusion of the penalty hearing
      for First Degree Murder, the jury sentenced [Appellant] to death
      for the willful murder of Lisa Diaz and to life imprisonment for the
      murder of Mendez Thomas.

             On October 22, 2008, this [trial c]ourt, in accordance with
      the verdict of the jury, imposed a sentence of death for the murder
      of Lisa Diaz, and a consecutive sentence of life imprisonment for
      the murder of Mendez Thomas.

Trial Court Opinion, 12/20/17, at 1.

      A protracted procedural history ensued. See id. at 2-5. More than five

years later, on December 17, 2013, the Pennsylvania Supreme Court reviewed

Appellant’s direct appeal nunc pro tunc and affirmed his judgment of sentence.

Commonwealth v. Sanchez, 82 A.3d 943 (Pa. 2013) (rejecting Appellant’s

argument that because there was insufficient evidence to support his burglary

and conspiracy to commit burglary convictions, there was insufficient evidence

to prove that that the killings were committed during the perpetration of

felonies,   and   thus   the   jury   considered   a   non-existing   aggravating

circumstance when it imposed the death sentence).




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     On January 30, 2015, Appellant filed a petition pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. The PCRA court

scheduled a hearing for April 19, 2016. The trial court explained:

           After the April 19, 2016 hearing, this [c]ourt granted
     continuances of the PCRA hearing at the request of [Appellant]
     and his counsel.

           Prior to the conclusion of a further PCRA hearing, held on
     January 26, 2017, the Commonwealth informed this [c]ourt that
     they were in receipt of a DNA lab analysis report from the
     Pennsylvania State Police. The DNA report was dated October
     2[3], 2008[]. The lab report concerned DNA found under Lisa
     Diaz’s fingernail clippings, which matched the DNA of [Appellant’s]
     co-defendant, Steven Miranda, who in a joint trial with
     [Appellant], was found guilty by the same jury, of First Degree
     Murder.

           On January 26, 2017, with the agreement of the
     Commonwealth, this [c]ourt entered an Order vacating the
     judgment of sentence imposed on October 22, 2008 and ordering
     a new trial. This Order granting a new trial was the result of a
     joint motion by the Commonwealth and [Appellant’s] PCRA
     counsel.

           On February 14, 2017, this [c]ourt received a pro se Motion
     to Dismiss on Double Jeopardy grounds from [Appellant]. In the
     Motion, [Appellant] alleged:

                “The Commonwealth intentionally suppressed
         evidence in the form of the DNA report and the evidence
         itself revealed that Steven Miranda’s DNA was under Lisa
         Diaz’s fingernails when she was killed.”

               “The Prosecutor knew or should have known both
         pretrial and during the trial that multiple pieces of physical
         evidence – including the fingernail clippings - had been
         submitted to the State Police Crime Lab for DNA Analysis.”

               “The presence of a defendant’s DNA under the
         fingernails of a murder victim is a powerful piece of
         inculpatory evidence, and here it inculpated Steven

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          Miranda. Where DNA was found under only one hand, as
          here, it suggests that Diaz scratched Miranda to defend
          herself against him as her aggressor.”

            Upon receipt of this pro se Motion to Dismiss for Double
      Jeopardy, this [c]ourt, on March 31, 2017, forwarded a copy to
      both the Bucks County District Attorney’s Office and the Federal
      Community Defender Office.

            Thereafter, new court-appointed counsel was appointed by
      this [c]ourt to represent [Appellant] at a re-trial scheduled for
      October 10, 2017.

            Newly court-appointed counsel for [Appellant] requested
      that this [c]ourt conduct a separate hearing upon the pro se
      Motion to Dismiss on the basis of Double Jeopardy. A hearing was
      held on October 10 and October 11, 2017, and the motion was
      denied.

                                     ***

            On October 13, 2017, [Appellant] filed a Notice of Appeal to
      the Superior Court of Pennsylvania and filed a Concise Statement
      of Matters on November 3, 2017.

            The single issue presented in this appeal is whether this
      [c]ourt “erred in denying [Appellant’s] Motion to Dismiss on
      Double Jeopardy grounds based on a Brady violation and
      prosecutorial misconduct.”

Trial Court Opinion, 12/20/17, at 5-7.

      Likewise, Appellant presents this Court with the same question:

      DID THE TRIAL COURT ERR IN DENYING APPELLANT’S MOTION
      TO DISMISS BASED ON A BRADY VIOLATION AND
      PROSECUTORIAL MISCONDUCT?

Appellant’s Brief at 4.

      We review Appellant’s claim mindful of the following:

      An appeal grounded in double jeopardy raises a question of
      constitutional law. This court’s scope of review in making a

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J-S29026-18


     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.

Commonwealth v. Adams, 177 A.3d 359, 370 (Pa. Super. 2017), citing

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

and citation omitted), appeal denied, 126 A.3d 1282 (Pa. 2015). We have

also explained:

     The double jeopardy clause of the Pennsylvania Constitution
     prohibits retrial of a defendant when the conduct of the prosecutor
     is intentionally undertaken to prejudice the defendant to the point
     of denying him a fair trial. However, because of the compelling
     societal interest in prosecuting criminal defendants to conclusion,
     our Supreme Court has recognized that dismissal of charges is an
     extreme sanction that should be imposed sparingly and only in
     cases of blatant prosecutorial misconduct.

Commonwealth v. Wilson, 147 A.3d 7, 13 (Pa. Super. 2016) (citations

omitted).

     Instantly, Appellant argues that the trial court erred in denying his

motion to dismiss, and alleges that suppression of the DNA evidence and the

prosecution’s “intentional misrepresentations” and “willful misconduct” bar a

re-trial. Appellant’s Brief at 7. Appellant cites Brady v. Maryland, 373 U.S.

83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), where “the United States Supreme


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J-S29026-18


Court held that ‘the suppression by the prosecution of evidence favorable to

an accused upon request violates due process where the evidence is material

either to guilt or to punishment, irrespective of the good faith or bad faith of

the prosecution.’” Commonwealth v. Sullivan, 820 A.2d 795, 802 n.5 (Pa.

Super. 2003).    Appellant claims that prior to and during trial, his counsel

“repeatedly asked the prosecutor for the status of DNA testing on the victim’s

fingernails. At first the prosecutor gave no answer, but eventually said he had

checked and no such testing had been or was being done [when] in fact the

Warminster [Township] police had been notified about pending testing.”

Appellant’s Brief at 7. Appellant concedes that to prevail on his Brady claim,

he must “show that the prosecutor’s misconduct was intended to provoke the

defendant into moving for a mistrial, or that the conduct of the prosecutor was

intentionally undertaken to prejudice the defendant to the point of the denial

of a fair trial.” Id. at 8, citing Commonwealth v. Smith, 615 A.2d 321, 325

(Pa. 1992) (holding 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).

      In support of his allegation of willful misconduct, Appellant references

testimony from his trial counsel, Jack McMahon, Esquire, that Mr. McMahon’s

defense theory was that Appellant’s co-defendant had committed the murder,


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and that Mr. McMahon would have used the exculpatory DNA evidence at

Appellant’s trial.     Appellant’s Brief at 10, citing N.T., 10/11/17, at 132.

Appellant further references Mr. McMahon’s testimony that he repeatedly

asked the district attorney at the time, Thomas Gambardella,2 about the DNA

evidence prior to trial and during jury selection. Appellant’s Brief at 10. Mr.

McMahon testified that Mr. Gambardella told him that no fingernail testing had

occurred and opined that Mr. Gambardella lied to him.         Id., citing N.T.,

10/11/17, at 141.

       Appellant additionally cites the testimony of Detective John Bonargo,

who learned in September 2008 – the month of Appellant’s trial – that the

Pennsylvania State Police (PSP) had completed a preliminary report and would

be sending the fingernail clippings for further testing. Appellant’s Brief at 9.

That report was dated October 23, 2008, and showed an absence of

Appellant’s DNA on the victim’s fingernails. Detective Bonargo testified that

he did not speak to Mr. Gambardella about the report, causing the trial court

to remark that “[s]omeone wasn’t minding the store.”          Id., citing N.T.,

10/11/17, at 226.

       In response, the Commonwealth concedes that its “failure to ensure that

Appellant was advised prior to trial that [DNA] testing was being undertaken

warranted relief by way of a new trial.”         Commonwealth Brief at 29.


____________________________________________


2 Thomas Gambardella is currently a Magisterial District Judge; he worked as
a district attorney in Bucks County until 2010. N.T., 10/10/17, at 85.

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Conversely, though, the Commonwealth states that “there was no intentional

attempt by the prosecution to deprive [Appellant] of a fair trial, [and]

Appellant’s request to prevent a retrial in this capital murder case on double

jeopardy grounds is wholly unjustified.” Id. Specifically, the Commonwealth

argues:

             The record establishes that neither the affiants nor the
      prosecutor in this case believed that evidence had been submitted
      to the laboratory for DNA analysis and proceeded to trial on that
      belief. The fact that this belief proved erroneous was not the
      result of intentional prosecutorial misconduct, but, rather, failure
      to communicate among the officers involved in the investigation
      of the case.

Id. at 29. The essence of the Commonwealth’s argument is that the credible

evidence failed to establish that the erroneous conduct was taken to

intentionally subvert the court process and deny Appellant a fair trial. Id. at

32.   The Commonwealth, referencing hearing testimony, states that the

“failure on the part of the officers and the assigned prosecutor to effectively

communicate with one another regarding this issue resulted in the collective

ignorance of the prosecution team at the time of trial as to the existence of

either the testing or the lab report.”        Id. at 34.     Significantly, the

Commonwealth contends that “[i]n contrast to the compelling and credible

evidence that the prosecution did not intentionally conceal or suppress the

DNA evidence in this case, the only information provided to the trial court to

support Appellant’s claim to the contrary was that imparted by Mr. McMahon.”

Id. at 39.


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J-S29026-18


       We have reviewed the record and specifically the notes of testimony.

The document at issue was formally introduced as the report from the

Pennsylvania State Police Bureau of Forensic Services, DNA Laboratory in

Greensburg, Pennsylvania, dated October 23, 2008. See N.T., 10/10/17, at

79-80. Pertinently, Mr. Gambardella3 testified that he did not “recall directing”

the taking and submission of DNA testing, and it was “something that the

detectives could decide to do on their own.” Id. at 78. Further, it was not

until after trial that Bucks County Detective McDonough told him that the

detective had received “a report, I believe from Warminster [Township],

involving DNA analysis, but that’s my recollection. That was after the verdict,

well after verdict.” Id. at 79. Mr. Gambardella testified that he immediately

forwarded the report to Appellant’s counsel, Mr. McMahon. Id. at 80, 82, 84,

93. Mr. Gambardella stated:

               I didn’t make a judgment at the time. I think it’s for Mr.
       McMahon to do, to make a judgment as to what value the evidence
       might have had, if any, but it was an analysis that came in
       involving the case and involving one of the co-defendants who was
       present at the scene, even though he had a relationship, or that’s
       my recollection, with the victim, but because it was material to
       the facts involving a co-defendant, I immediately turned it over.
       . . . [A]gain, it was something that involved the case. Whether it
       involved [Appellant] or not, [Appellant] or [his co-defendant],
       because it involved one of the defendants, I determined, as I
       would for anything of this nature, that it should be turned over.



____________________________________________


3 As previously noted, Thomas Gambardella is now a Magisterial District Judge.
However, because Judge Gambardella was a district attorney during the
timeframe relevant to our analysis, we refer to him as Mr. Gambardella.

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J-S29026-18


N.T., 10/10/17, at 96.

      When asked whether he had intentionally withheld evidence, Mr.

Gambardella replied, “[n]o, never.” Id. at 97. He also testified that he did

not know of any detectives or police intentionally withholding evidence. Id.

      Warminster Township Police Detective John Bonargo testified to working

with the Bucks County District Attorney’s office and taking the fingernail

evidence to the PSP for analysis in November of 2007. N.T., 10/11/17, at 9,

18. At the time, Detective Bonargo listed his name on the submission form

as the “point of contact.” Id. at 10. However, he stated that he “didn’t have

any personal conversations” with the lead investigator, Detective Harold,

about the evidence, and opined that he “should have.” Id. at 20. It was not

until 2008 when PSP contacted Detective Bonargo about the fingernail

clippings. Id. The detective testified that he received the DNA analysis “post

conviction.” Id. at 22. He did not recall being asked by anyone prior to trial

about the DNA testing occurring. Id. at 23. He explained that when he went

to the lab and retrieved the report he:

      [r]eturned to headquarters, put those items in evidence, and
      placed the serology report on my Sergeant’s desk, which in
      hindsight, I should have notified the affiant [Detective Harold] in
      the case right away so they would know immediately those items
      were back.

N.T., 10/10/17, at 12.

      Appellant’s trial counsel, Mr. McMahon, testified on Appellant’s behalf.

He stated:


                                    - 10 -
J-S29026-18


     I think I asked [the assistant district attorney, Mr. Gambardella,]
     prior to trial. I asked him twice during the trial, or during the jury
     selection process, because just after all my experience trying
     homicide cases, there is no way that the Pennsylvania State Police
     clipped those [finger]nails and then did nothing with them.

N.T., 10/11/17, at 131-132.

     He continued:

     [T]he first time I asked him was on the telephone. He said he
     didn’t know. He did not – he just wasn’t sure, and I said check
     into it. Then he told me that they were – that no testing was
     done. Then when we came back here again I said, look, you got
     to go check again, and he told me that he called the Pennsylvania
     State Police, because I said to him, Gary, come on, man, there’s
     no way, and he said he called the Pennsylvania State Police and
     they said they did not analyze those forensically in any way,
     shape, or form, and I said that’s nonsense. I said to him you’ve
     got to talk to somebody else because that’s just, I don’t know who
     you spoke to, but whoever you spoke to is not giving you the right
     information. He talked to me the next day and said he spoke – I
     said you got to speak to a supervisor or somebody, and he came
     back and said, Jack, they did not test those items, I double
     checked.

Id. at 132-133. Mr. McMahon stated that he had a “hundred percent clear

recollection” that was “crystal clear.”   Id. at 133.     He averred that the

fingernail evidence was “very, very significant” and “key to the defense”

because his theory was that Appellant’s co-defendant, Steven Miranda – not

Appellant – was the shooter and would have left DNA evidence under the

victim’s fingernails. Id. at 137-138. He explained:

     [The evidence] would have demonstrated and assisted me in that
     theory that I tried to, if you read the trial [transcript] you’ll see
     that I tried to present a pretty, vociferously, [sic] that [Steven]
     Miranda was the actor, the major player. He was the one that was
     doing all the things. This [DNA] report here would have been
     extremely helpful and back that up. I should have had it.

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Id. at 142.

      However, on rebuttal, Mr. Gambardella testified to the contrary.      He

stated:

             There were very few conversations either in person or over
      the phone with Mr. McMahon, because largely, because he was so
      hard to get a hold of. I had no conversation with him at the
      preliminary hearing because he failed to appear for the
      preliminary hearing. I had very, what I will call, I would have
      difficulties getting a hold of him. There was, at one point, I know
      of at least one letter that I sent him. I reduced a lot of my
      correspondence to writing to make sure that the messages were
      getting across.

N.T., 10/11/17, at 150-151.

      With regard to the fingernail clippings, Mr. Gambardella stated that he

“did not have a recollection of [Mr. McMahon] ever mentioning fingernail

clippings, ever.” Id. at 159. Further, Mr. Gambardella opined that if he had

such evidence, he would have viewed it as favorable to the Commonwealth

because it corroborated the witnesses who testified that Appellant’s co-

defendant, Steven Miranda, and the victim, Lisa Diaz “had a relationship.” Id.

at 159.   In sum, Mr. Gambardella testified, “I never contacted the police

regarding DNA analysis because I didn’t know there was DNA analysis.” Id.

at 164.

      Warminster Police Detective Sean Harold offered testimony similar to

that of Mr. Gambardella. Detective Harold stated that in October of 2007, he

was the “lead investigator” in the case against Appellant.        Id. at 174.

Detective Harold testified that he was unaware of any evidence taken by

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Detective Bonargo to the PSP lab for testing. Id. at 175. He specifically did

not recall fingernail clippings being recovered from Lisa Diaz.    Id. at 176.

Detective Harold repeatedly testified to his belief that “back in 2008 that no

evidence in this case had been sent for DNA testing.” Id. at 178. He did not

learn about the evidence that had been submitted to the lab until April of

2016, and opined that he “absolutely [did] not” intentionally withhold evidence

in this case. Id. at 178-179. Detective Harold did not know who “took the

initiative” and was responsible for sending the fingernail clippings to the PSP

lab, and in fact was not aware that the clippings had even been taken. Id. at

180-182.

      Similarly, Bucks County Detective Martin McDonough testified to

investigating the case in conjunction with the Warminster Township Police,

and having no knowledge of fingernail clippings taken from Lisa Diaz and sent

to the PSP for DNA analysis. Id. at 185-186. He did not learn about the

evidence until after Appellant’s trial in October of 2008. Id. at 186. Detective

McDonough learned about the evidence from Detective Bonargo. He stated:

      I believe Detective Bonargo faxed [the DNA report] to me. We
      had a phone conversation.        He said, he had – we had a
      conversation, I believe it was over the phone, that he had this
      report from PSP, a DNA report from PSP. And I said, well, send it
      to me so I can give it to [Mr. Gambardella]. The trial is over, so
      we can forward it to Mr. McMahon. When I got my copy I made a
      copy, handed it to Mr. Gambardella in the District Attorney’s
      Office, and I put a copy I had in my file.

Id. at 192. Detective McDonough expressed his surprise at learning about

the evidence. He continued:

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      I said to John [Bonargo], how did it get there? He said he dropped
      them off and they were being worked on. I said, John, we didn’t
      even know they were at the lab. How did this happen? He really
      didn’t have an answer.

Id. at 193.

      After hearing argument from the parties, the trial court denied

Appellant’s motion to dismiss. The trial court verbally detailed the parties’

respective arguments, recounted the testimony, and articulated its rationale

for denying Appellant’s motion. See, N.T., 10/11/17, at 219-228. On this

record, and mindful of applicable legal authority, we discern no error by the

trial court in denying Appellant’s motion to dismiss.    When considering a

Brady violation in the context of double jeopardy, retrial is prohibited “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

(emphasis added). In this case, the trial court expressly determined that “the

Commonwealth did not engage in conduct which was intended to prejudice

[Appellant] and deny him a fair trial.” Trial Court Opinion, 12/20/17, at 8.

Similarly, in Adams, supra, this Court recently determined that a Brady

violation did not warrant dismissal on double jeopardy grounds. We cited our

Supreme Court’s decision in Commonwealth v. Burke, 781 A.2d 1136 (Pa.

2001), and explained:

            Here, the alleged prosecutorial misconduct consisted of a
      Brady violation that was caused by failures on the part of both
      the police and the prosecutor. We have no question that if a
      Brady violation is committed by a prosecutor, it can result in a
      dismissal on double jeopardy grounds if it is shown that the

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J-S29026-18


     prosecutor intended to deprive the defendant of a fair trial.
     Although we have found no instance in which we have held that
     intentional misconduct by the police also should warrant dismissal
     of the charges under a double jeopardy analysis, we see no reason
     to foreclose that possibility. Prosecutors must perform their duties
     under Brady in conjunction with the police, and a Brady violation
     may occur where evidence in the possession of the police is not
     disclosed to the defendant, even if the prosecutor did not know
     about it. . . .

           Even recognizing the important role of the police in
     disclosing Brady material, however, there may be no double-
     jeopardy dismissal if their misconduct is unintentional or if it does
     not lead to intentional misconduct of the prosecutor. A leading
     case is Burke.      During the course of trial, the prosecutor
     discovered evidence in a police file, including a statement made
     by the defendant, and an exculpatory statement made by the
     Commonwealth’s chief witness. The trial court granted the
     defendant’s motion to dismiss based on the discovery violation,
     noting that the prosecutor was “grossly negligent” in not
     uncovering the statements earlier, and that the error which had
     led to their suppression was within the Commonwealth’s control.
     We reversed, and the Supreme Court affirmed our decision. The
     Supreme Court determined that dismissal was inappropriate
     because there was no evidence of deliberate, bad faith
     overreaching by the prosecutor. And the Court described the
     police misconduct in terms equivalent to negligence:

       Rather than prosecutorial misconduct, it appears that this
       case primarily involves miscommunication between the police
       departments involved in the investigation and/or police
       mishandling of the evidence. . . . Whatever may have been
       the reason for the nondisclosure here, it is apparent from the
       record that it did not result from deliberate misconduct by the
       prosecutor designed to compel [the defendant] into moving
       for a mistrial or to deprive [him] of a fair trial.

     Burke, 781 A.2d at 1145–46. There was no allegation in Burke
     that the police intentionally suppressed evidence. See also
     Commonwealth v. Wood, 803 A.2d 217, 222 (Pa. Super. 2002)
     (remanding for evidentiary hearing on whether prosecutor acted
     intentionally when failing to provide exculpatory evidence in the
     possession of the police, without addressing whether police
     intentionally withheld the exculpatory material).

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Commonwealth v. Adams, 177 A.3d 359, 372–374 (Pa. Super. 2017) (some

citations and footnotes omitted).

      Likewise, in this case, we must defer to the trial court’s credibility

determinations, particularly its finding that the prosecutor, Mr. Gambardella,

and the investigating officers, did not intend to deprive Appellant of a fair trial.

See Adams, 177 A.3d at 370 (“[t]o the extent that the factual findings of the

trial court impact its double jeopardy ruling, we apply a more deferential

standard . . . [and w]here 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.”) (emphasis added).             The trial court acknowledged the

unequivocal testimony of Appellant’s trial counsel, Mr. McMahon, which

contrasted with the testimony from the Commonwealth’s witnesses and

particularly Mr. Gambardella. The trial court stated:

            [Mr.] Gambardella denies having those conversations [with
      Mr. McMahon], but it’s not so much an issue of credibility of Jack
      McMahon and Gary Gambardella. This happened nine years ago.
      You know, sometimes memories fade and recollections dim, but
      what is unmistakably clear is that at some point, the
      Commonwealth had an obligation once they learned of this to turn
      it over to the appropriate people.

N.T., 10/11/17, at 224. The trial court continued:




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             So as we learned, nobody seems to know how this evidence
      from Lisa Diaz got to the Pennsylvania State Police. Obviously, it
      didn’t get there by itself. So it’s clear to me, just directly and
      inferentially, that it was Detective John Bonargo who submitted
      this. Now, did he do this ultra vires? Did he do this without any
      approval? No, he probably assumed it was taken from one of the
      victims and it should be analyzed. I can’t speculate or guess why
      it took the Pennsylvania State Police that long to analyze it. It’s
      just unfortunate that the report comes in after the verdict.

             So having said all of that, the defense would have me
      believe that there was a conscious decision, a willful co[ll]usion to
      withhold evidence which was perhaps exculpatory to [Appellant],
      and therefore, consistent with my duties under the Constitution, I
      am to find that he would be, on a retrial, placed in jeopardy twice
      of life and limb. I cannot find that because there is no evidence
      to indicate that.

              My conclusion, based on the evidence I heard, common
      sense, the testimony, having presided over the trial, is simply this.
      Someone wasn’t minding the store, necessarily.             Detective
      Bonargo submitted evidence that perhaps he did on his own
      initiative, but no one, by any stretch, intentionally withheld that
      evidence which would arise to prosecutorial misconduct.

N.T., 10/11/17, at 226-227.

      As indicated above, the trial court determined that “someone wasn’t

minding the store,” i.e., that there was miscommunication between the police,

the prosecutor and the defense.           This Court in Adams stated that

“miscommunication between the police and the prosecutor, alone, cannot be

the basis for misconduct.” 177 A.3d at 374, citing Burke, 781 A.2d at 1145–

46.   We therefore are unpersuaded by Appellant’s claim of intentional

prosecutorial misconduct. In sum, the trial court found that there was no

intent to deprive Appellant of a fair trial, and because that finding is supported




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by the record and our de novo review, we affirm the trial court’s denial of

Appellant’s motion to dismiss on double jeopardy grounds.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/28/18




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