J-S69017-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    RASHAWN TAHI KNOX                          :
                                               :
                       Appellant               :   No. 498 MDA 2018

              Appeal from the Order Entered February 20, 2018
     In the Court of Common Pleas of Dauphin County Criminal Division at
                       No(s): CP-22-CR-0000772-2014


BEFORE: BENDER, P.J.E., LAZARUS, J., and MURRAY, J.

MEMORANDUM BY LAZARUS, J.:                          FILED FEBRUARY 15, 2019

       Rashawn Tahi Knox appeals from the order, entered in the Court of

Common Pleas of Dauphin County, denying his motion to dismiss on double

jeopardy grounds.1 Upon careful review, we affirm.




____________________________________________


1 An order denying a motion to dismiss charges on double jeopardy grounds
is technically interlocutory. However, such an order is immediately appealable
as a collateral order where the trial court does not make a finding that the
motion was frivolous. See Pa.R.Crim.P. 587(B)(6). Here, the court did not
find that Knox’s motion was frivolous. Thus, the order denying his motion is
immediately appealable as a collateral order. Pa.R.A.P. 313.              See
Commonwealth v. Orie, 22 A.3d 1021 (Pa.2011) (reiterating that direct
appeal from denial of motion to dismiss on double jeopardy grounds is not
permitted where hearing court has considered the motion and made written
findings that motion is frivolous; however, absent such finding, appeal may
be taken from denial of motion). See also Commonwealth v. Brady, 508
A.2d 286, 289–91 (Pa. 1986) (allowing an immediate appeal from denial of
double jeopardy claim under collateral order doctrine where trial court does
not make a finding of frivolousness).
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      On March 11, 2015, a jury convicted Knox of one count of attempted

homicide, two counts of aggravated assault and related weapons charges

arising from the following factual scenario:

      On September 13, 2013, Office [Donald] Bender [of the
      Harrisburg Bureau of Police] was on patrol duty in the city of
      Harrisburg. He was dispatched to the intersection of Crescent and
      Kittatinny Streets for multiple reports of multiple gunshots. He
      arrived at the scene about 4:45 p.m. and began to look for any
      active shooting. Finding none, and finding no immediate danger,
      he began to interview witnesses. He instructed other officers who
      arrived nearly simultaneously to secure the crime scene, which
      they did. Witnesses indicated that the victims had left in a van
      and the officers did not observe anyone who might be a suspect.

      [Jerrell Thompson], a victim, testified [at trial]. [ ] Thompson is
      currently incarcerated in Cumberland County Prison for both a
      parole violation and a theft. About three years prior to the
      incident, [ ] Thompson began using heroin.            By August or
      September of 2013, he was using it on a daily basis. He purchased
      it in Harrisburg from someone named “Tip”, whom he identified
      as [Knox]. He would contact [Knox] by cell phone, both calls and
      texts. They would then meet up somewhere in Harrisburg, often
      in the Hall Manor area.

      Two days prior [to the incident in question], [on] September 11,
      2013, [ ] Thompson had arranged to meet [Knox] to buy heroin.
      They made the trade and as [ ] Thompson walked away, he saw
      a lot of policemen converge on the van that [Knox] was driving.
      He saw [Knox] jump out of the van and start running and then
      [ ] Thompson also ran. As far as [Thompson] could see, [Knox]
      was able to elude the police. [ ] Thompson denied having
      contacted police or having any connection to that raid. He agreed
      that it was suspicious that the police converged upon [Knox] just
      after their deal.

      Usually [ ] Thompson would buy a bundle (about ten bags) for
      himself and other users. On [September 13, 2013], [ ] Thompson
      was planning on buying ten bundles for him and others. [Knox]
      instructed [ ] Thompson to meet him at the dead end of Crescent
      Street.



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      Once [ ] Thompson and his compatriots arrived, they parked and
      waited for [Knox]. [Knox] arrived and [ ] Thompson got out of
      the van to walk with him. The two of them walked around a corner
      and [ ] Thompson saw another man standing there. [ ] Thompson
      and [Knox] were speaking about the incident on September 11
      when the other man pulled out a gun as did [Knox]. Neither
      [Knox] nor the other man with a gun seemed surprised to see
      each other or that they both had guns. [ ] Thompson ran off
      towards the van[.] [H]e ran first to the passenger’s side, but in
      an attempt to avoid getting shot in the back, he then ran to the
      driver’s side. [Knox] ran to the front of the car and started
      shooting. The driver [Starr Shopp] was hit and then [ ] Thompson
      was shot in the back.

      . . . [Detective Richard] Iachini was dispatched to Harrisburg
      Hospital on September 13, 2013, related to a shooting. . . .
      Following [his] investigation, [Detective] Iachini developed a
      suspect and created a photo array. He met with [ ] Thompson on
      September 20, 2013, at the hospital and [ ] Thompson identified
      [Knox] from the photo array.

Commonwealth v. Knox, 142 A.3d 863, 864–65 (Pa. Super. 2016), quoting

Trial Court Opinion, 9/29/15, at 1–3, 7–8 (footnotes, citations and some

brackets omitted).

      Following a two-day trial, Knox was convicted by a jury of the above

charges. On May 12, 2015, the trial court sentenced him to an aggregate

term of 20 to 40 years’ incarceration. Knox appealed and, on June 21, 2016,

this Court vacated his judgment of sentence and awarded him a new trial,

concluding that the trial court committed reversible error when it failed to

determine whether a certified interpreter was available to assist a Spanish-

speaking witness and, instead, allowed the witness’ sister – who was also a

witness at trial – to translate for him.




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       On October 30, 2017, Knox filed a motion to dismiss the charges against

him, arguing that his retrial was barred by prosecutorial misconduct that

allegedly occurred during the course of his first trial. The trial court held a

hearing on February 20, 2018, and denied the motion that same day. Knox

filed a timely notice of appeal followed by a court-ordered statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b). 2 On appeal, Knox

raises the following issue for our review:

       Whether the trial court erred in denying Knox’s motion for
       dismissal following a mistrial where the Commonwealth engaged
       in prosecutorial misconduct by having one prosecution witness
       interpret and assist in the testimony of another prosecution
       witness and by presenting facts not in evidence including
       reference to a gun that was excluded by the [c]ourt’s pretrial
       rulings to the jury in closing?

Brief of Appellant, at 5.

       We begin by noting that “[a]n 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   law,   the   appellate       standard   of   review   is   de   novo[.]”

Commonwealth v. Vargas, 947 A.2d 777, 780 (Pa. Super. 2008) (internal

____________________________________________


2 On November 20, 2018, we issued a judgment order dismissing Knox’s
appeal for failure to order the transcription of the notes of testimony from the
February 20, 2018 hearing on his motion to dismiss. On December 4, 2018,
Knox filed for reconsideration/reargument on the basis that the transcript had,
in fact, been belatedly made part of the certified record on September 10,
2018. By order dated January 10, 2019, we granted reconsideration and
remanded the record to the trial court for the preparation of an opinion
pursuant to Pa.R.A.P. 1925(a). The trial court has complied and the matter is
now ripe for disposition.

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citations omitted). To the extent that the trial court’s factual findings 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).

         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.

Commonwealth v. Smith, 615 A.2d 321 (Pa. 1992). 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. Burke, 781 A.2d 1136, 1144

(Pa. 2001). An error by a prosecutor does not deprive a defendant of a fair

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

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

(where prosecutor’s conduct changes from mere error to intentionally

subverting court process, then fair trial is denied). Even a mere finding of

willful prosecutorial misconduct will not necessarily warrant dismissal of


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charges. Burke, 781 A.2d at 1145; Commonwealth v. Moose, 602 A.2d

1265 (Pa. 1992) (although prosecutor’s failure to inform defense counsel of

witness statement containing incriminating admissions allegedly made by

defendant amounted to willful discovery violation and raised significant ethical

concerns, court did not dismiss charges, but rather remanded for new trial).

      [U]nder 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.

Kearns, 70 A.3d at 884–85.

      Here, Knox bases his claim on two separate incidents that occurred

during his first trial.   The first involved the testimony of Commonwealth

witness Dalvin Rosario, a native Spanish speaker.         During his testimony,

Rosario was asked to refresh his recollection by reading the statement he gave

to police on the day of the incident. The following exchange then transpired:

      Q: Dalvin, just read from here to here by yourself. Okay? Just
      read that to yourself to see if it refreshes your recollection. Okay?

      A: I don’t read English well.

      Q: Okay. Would—having [your sister] in here to help translate,
      would that help?

      A: Yeah.

      MR. JASON: Your Honor, would she be permitted —

      THE COURT: Yes.

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N.T. Trial, 3/11/15, at 153.     The court then swore in Rosario’s sister as a

translator and she proceeded to assist Rosario during his direct examination.

Knox asserts that he was “denied a fair trial not only because of the lack of a

certified interpreter in this case, but more significantly because Attorney Jason

had one Commonwealth witness clandestinely assist another Commonwealth

witness during [his] testimony.” Brief of Appellant, at 16. Knox claims that

“it was the conscious object of [Attorney] Jason[] to call Ms. Marte to assist

Mr. Rosari[o] . . . so that he would testify consistent with what was in the

police report.” Id. at 16, 17.

      The second alleged incident of prosecutorial misconduct occurred during

Attorney Jason’s closing argument. By way of background, prior to Knox’s

2015 trial, the trial court issued an order granting a motion in limine filed by

the Commonwealth, allowing evidence of prior drug dealing incidents involving

Knox and the victims pursuant to Pa.R.E. 404(b)(2), as well as evidence of an

event that occurred on September 11, 2013, two days prior to the incident

forming the basis for the current prosecution, in which Knox had attempted to

sell drugs to the victim, but fled the scene when police approached. During

the September 11 incident, police raided and seized the vehicle in which Knox

had been a passenger and recovered a gun. The Commonwealth sought to

introduce evidence of the September 11 incident to establish an inference that

Knox shot Thompson as a retaliatory measure because he believed Thompson




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had set him up on September 11.3 At trial, evidence of the September 11

incident was admitted through the testimony of one of the victims, Jerrell

Thompson. Later during the course of the trial, the court sustained a defense

objection to the introduction of further testimony regarding the September 11

incident by Detective Richard Iachini.           The parties instead entered into a

stipulation that was communicated to the jury as follows:

       Ladies and gentlemen, the stipulation between the parties is that
       during Detective Iachini’s discussion with the defendant, he
       mentioned the September 11th incident that was testified [to] by
       victim Thompson, and that the defendant did acknowledge the
       sale on that September 11th day.

N.T. Trial, 3/11/15, at 266.

       Subsequently, during closing remarks, the Commonwealth used a

PowerPoint presentation that made two references to the gun discovered in

Knox’s van by police during the September 11 raid, in violation of the court’s

ruling earlier that day that further evidence concerning the September 11 raid

was inadmissible.      Defense counsel moved for a mistrial, which the court

denied. Knox now asserts that Attorney Jason’s inclusion in the PowerPoint

presentation of references to the gun amounted to misconduct intended to

mislead the jury.


____________________________________________


3 The Commonwealth argued that “the fact that [Knox] made a deal with the
victim two days prior, that [Knox] was subsequently—or nearly arrested, he
had to escape from his van and run from police at that point, does provide a
motive to at least believe that the victim was the one who set up that
transaction and set up for the police to come . . . arrest him.” N.T. Trial,
8/10/15, at 12.

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      At the hearing on Knox’s motion to dismiss, Attorney Jason testified

that, although in retrospect it was a mistake to ask Rosario’s sister to translate

for him, he “[d]idn’t intend anything by it.” N.T. Motion Hearing, 2/20/18, at

22. In fact, Attorney Jason testified that, after interviewing Rosario and his

sister prior to trial, he believed that neither of them would require a translator

during their testimony. See id. at 21.

      With regard to his PowerPoint presentation, Attorney Jason testified as

follows:

      Q: Okay. But you still had some stuff in your PowerPoint that
      referenced that evidence that was not in front of the jury, not on
      the record.

      A: Well, let’s be perfectly clear. Just to back up a little bit, before
      we get to the PowerPoint, I had—and I’m sure you have a copy of
      my extensive motion in limine which outlined both—all of the prior
      drug dealing incidents, the prior drug dealing incidents involving
      the defendant and the victims in this case, and the prior occasion
      on September 11th in which guns and drugs were found in a van
      that was raided as a result of probation officers approaching the
      defendant and the victim in Hall Manor.

      I’d outline that all extensively. And during a pretrial ruling, the
      judge at that point, I believe, allowed all of that in. Again, I don’t
      have the transcript right in front of me. But from what I
      remember, “It’s all coming in,” was approximately the language
      that was used at that time.

      Throughout the course of the testimony of the last witness in this
      case, which is Detective Iachini, I believe the judge at that time
      revised that ruling. But this was after approximately two days[’]
      worth of testimony, and the last witness prior to the closings. So
      at that point I had not, I believe, the opportunity to review and
      make the necessary two-word change to the PowerPoint that I
      think resulted in the issue.

                                       ...


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     Q: Okay. And so, if you didn’t have time to take it out, you knew
     it was in there, but you just didn’t—you didn’t have time to take
     it out.

     A: I mean, I think that it’s an unfair distinction, because at the
     time in which all this change had been happening—there are a lot
     of things that go into being in the middle of a serious trial. Not
     having the time, quote/unquote, is that there’s a lot of things
     happening and that it was inadvertent.

     It’s not that I intentionally said, That’s a mistake and I’m leaving
     it in there. Or that it was, I intentionally know that’s there, and I
     physically don’t have the opportunity.

     It’s—there’s a lot going on. There’s a condensed lunch break.
     There’s a lot of—there’s still witness testimony. There’s potential
     defense witness testimony. And there’s a lot happening.

     And so when I say that I may not have had the time or I didn’t
     have the time to take it out, that I didn’t have—there wasn’t, like,
     an evening break that I could have sat back and pored over my
     closing PowerPoint and realized that that subsequently changed
     ruling affected the nature of my PowerPoint. That’s what I mean
     by that.

Id. 25-26, 33-34.

     In its opinion, the trial court concluded as follows:

     In this case, Appellant availed himself of the appellate system
     which rectifies errors and which has granted him a new trial.
     Further, the Superior Court found that the issue related to
     translation was a trial court error and thus we believe it is not
     attributable to the prosecutor for a claim of prosecutorial
     misconduct. The second claim of misconduct relates to the
     PowerPoint presentation during closing arguments.

                                     ...

     We do not find that the prosecutor intentionally left the slides in
     the presentation. We did rule that there should be no mention of
     the gun or heroin about two hours prior to closing and we can
     accept that the prosecutor was unable to adjust his presentation
     in time. However, it does not appear to have prejudiced the jury
     in any way. The jury did come back with questions during
     deliberations, but the issue of the slides was never raised by the

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      jury. The record indicates that the jury took their duty seriously
      and considered their verdict carefully. The prosecutor did not
      barrage the jury with inadmissible information, he did not appeal
      to emotions rather than reason.

Trial Court Opinion, 1/22/19, at 4-6.

      Upon review, we can discern no error of law or abuse of discretion on

the part of the trial court in concluding that Attorney Jason did not act

intentionally “to prejudice the defendant to the point of denying him a fair

trial.” Smith, supra. With regard to the use of witness Rosario’s sister as a

translator, there is no evidence to support Knox’s claims that “the

Commonwealth failed to adequately prepare for trial and to request an

interpreter” or that Attorney Jason’s intent was to have one Commonwealth

witness “clandestinely assist another Commonwealth witness during their

testimony.” Brief of Appellant, at 15-16. Rather, the evidence demonstrates

that, based on his pre-trial conversations with Rosario, Attorney Jason did not

believe that Rosario would require an interpreter at trial and it was only when

Rosario became “somewhat uncooperative” that Attorney Jason concluded an

interpreter might be of assistance.     N.T. Motion Hearing, 2/20/18, at 22.

Indeed, the majority of Rosario’s testimony was given in English, in response

to English, without his sister’s translation assistance. The record is devoid of

any evidence that Rosario was “clandestinely” assisted by his sister to benefit

the Commonwealth’s case.

      As to the PowerPoint presentation, the court credited Attorney Jason’s

testimony and concluded that, while he “made a mistake by not removing the

slide,” there was no “overt, intentional conduct.” Id. at 49. This conclusion

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is supported by the record.     At trial, the court revised its earlier ruling

approximately two hours before closing statements. Attorney Jason, in the

midst of a felony trial and with only a very short break between the conclusion

of testimony and the commencement of closing arguments, simply did not

think to remove the offending slide, which contained information that would

have been admissible only two hours before, and which he turned off as soon

as defense counsel noted the objectionable content. There was no evidence

that Attorney Jason’s use of the slides was anything but an unfortunate

oversight.   Accordingly, the trial court properly denied Knox’s motion to

dismiss.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 02/15/2019




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