J-A24016-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

RUDY EUGENE E. NORTH

                            Appellant                 No. 1618 EDA 2015


                  Appeal from the Order Entered May 22, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0012176-2007


BEFORE: BOWES, J., OTT, J., and SOLANO, J.

MEMORANDUM BY OTT, J.:                            FILED DECEMBER 16, 2016

       Rudy Eugene E. North (North) appeals from the order entered on May

22, 2015, in the Court of Common Pleas of Philadelphia County, denying his

motion to dismiss criminal charges based on double jeopardy. 1 North’s sole

issue is a claim the trial court erred in determining the Commonwealth’s

conduct that occurred in his first trial was not intentionally undertaken with

the intent of denying him a fair trial.        After a thorough review of the

submissions by the parties, relevant law, and the certified record, we affirm

the trial court’s order denying North’s motion to dismiss criminal charges on

the basis of double jeopardy.
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1
   This matter has returned to us from remand, the trial court having
determined, pursuant to Pa.R.Crim.P. 587(B), that this appeal is not
frivolous. Accordingly, this represents an immediately appealable collateral
order. See Pa.R.A.P. 313.
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      The parties are familiar with the factual and procedural histories of this

matter.   Accordingly, we simply state that North was accused of sexually

abusing his niece.     During the course of the investigation of the alleged

incidents, the Commonwealth came to believe that North’s niece, the

complaining witness (Child), was being improperly influenced by her mother

to deny that anything improper has occurred.       This belief arose from the

Child making accusations and then recanting, and the interaction between

the Assistant District Attorney (ADA) initially assigned to the case, Child and

Child’s mother. At the preliminary hearing, the ADA sought permission from

the court to interview Child outside the presence of her mother, which was

granted, and a child advocate and attorney were appointed to safeguard the

rights of Child.   Thereafter, Child testified to the alleged assaults and the

case was bound over for trial.

      At trial Child recanted her preliminary hearing testimony and the trial

ADA called the initial ADA assigned to the case, Carrie Sarhangi, Esquire

(ADA Sarhangi), to testify regarding her prior interactions with Child and

Child’s mother. In the course of this testimony, without prompting by the

trial ADA, ADA Sarhangi vouched for the credibility of Child regarding Child’s

accusations against North, her uncle.      North was acquitted of rape, but

convicted of child endangerment, indecent assault and corruption of a minor.

On direct appeal, North was granted a new trial because the trial court, over

objection, allowed ADA Sarhangi to give her personal opinion regarding

Child’s credibility.   North now claims retrial is barred by double jeopardy

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considerations. Specifically, he claims that by vouching for the credibility of

Child, the Commonwealth intentionally sought to deprive him of a fair trial:

      During the testimony of the Preliminary Hearing ADA, there were
      multiple instances where ADA Sarhangi impermissibly provided
      opinion evidence both as to Mr. North’s guilt and [Child’s]
      credibility. It is respectfully submitted that this was intentional
      conduct intended to subvert the judicial process and deny a fair
      trial, and this Court should reverse the decision in the Court
      below and order Mr. North discharged.

Appellant’s Brief at 10.

      Our scope and standard of review are as follows:

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

omitted).




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       In denying North’s motion to dismiss, the remand court2 opined while

there had been misconduct, it was not undertaken with the intent of

depriving North of his rights to a fair trial.    See Remand Court Opinion

[RCO] at 3.      The remand court concluded, “Although such testimony was

impermissible, it was not an intentional act by the Commonwealth to

prejudice the defendant from having a fair trial.” RCO at 4. The remand

court determined, “it was merely an ill-advised trial strategy to bolster the

inconsistencies of the victim’s testimony.” Id.    Our independent review of

the certified record leads us to the same conclusion.

       We begin with the salient standards regarding double jeopardy in

Pennsylvania jurisprudence.

       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:
____________________________________________


2
  This case did not return to the same trial court on remand. Accordingly,
we refer to the court that addressed the motion to dismiss as the “remand
court” to make this distinction.



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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, 884-85 (Pa. Super. 2013).3

       First, the prior decision by a panel of our Court determined the trial

court had committed an error of law in allowing improper opinion testimony

by ADA Sarhangi, who, during examination, vouched for the credibility of



____________________________________________


3
  North did not seek a mistrial; accordingly, that aspect of the double
jeopardy analysis is not applicable.



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Child in accusing North of having molested her.4 See Commonwealth v.

North,     2012     WL    10920259,       (Pa.   Super.   5/7/2014)   (unpublished

memorandum).         Indeed, no question posed by the trial ADA during the

relevant portion of ADA Sarhangi’s testimony elicited an objection from the

defense.

       As previously stated, at trial, Child recanted her allegations and

preliminary hearing testimony against her uncle, North. ADA Sarhangi, as

the initially assigned ADA, had been in a position to witness Child interact

with her mother and was thereby able to explain the circumstances of her

inconsistent testimony.        As such, ADA Sarhangi’s testimony during the

Commonwealth’s case-in-chief provided context to Child’s trial testimony

and allowed the jury to fully weigh all the evidence presented. Further, it is

important to note that the prior panel of our Court specifically stated, “Thus,

while the previous prosecutor certainly could testify as to the victim’s

family’s lack of support and its attempts to persuade the victim to recant,

the [trial] court erred in allowing her to opine as to her beliefs on the

credibility of the victim.” Id. at *6. What the prior panel of our Court did
____________________________________________


4
   As more fully discussed below, ADA Sarhangi’s direct examination
consisted mainly of a 13-page narrative of the preliminary hearing process,
and perceived problems attendant thereto, in response to the question, “Do
you remember a case involving [Child]?” N.T. Trial, 7/29/2010, at 159.
Relevant to this appeal, the narrative was interrupted after nine pages of
testimony by defense counsel’s initial objection regarding ADA Sarhangi’s
opinion testimony.




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find improper were two instances where the trial court allowed ADA Sarhangi

to state her personal belief that Child was truthful when she accused North

of having sexually assaulted her. The specifics of this improper testimony

will be discussed infra.

      Next, this matter presents an unusual situation in that it is not the

actions of the trial ADA that are at issue so much as the actions of a witness

who was also prosecutor.       As noted above, there is no suggestion in our

Court’s prior decision, in North’s current brief, or in the certified record that

the trial ADA engaged in misconduct or that he and ADA Sarhangi were

acting in collusion. No instantly relevant question by the trial ADA was the

source of an objection.      Rather, it was the unprovoked answers by the

witness that provide the basis of North’s double jeopardy claim.

      Accordingly, we examine whether that improper testimony was offered

with the intent to deprive North of his right to a fair trial.

      At trial, ADA Sarhangi provided a narrative description of the

observations during the preliminary hearing process. The first substantive

testimony on direct examination by the trial ADA is found in the notes of

testimony of July 29, 2010 at page 159.

      Q: Okay. I want to take you back to – well, do you remember a
      case involving [Child]?

      A: I do. Actually rather vividly comparing how long ago the case
      was.

      Q: Why is it that you remember that particular case?



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      A: I was rather involved in this case. I was the first assistant
      district attorney to handle the case. So what generally happens
      is once a complaint is filed, then the person is arrested and we
      start the preliminary hearing process.

      A preliminary hearing – I’m not sure if someone else testified
      about this yet or not.

      Q: Please do.

N.T. 7/29/2010, at 159.

      After “Please do,” ADA Sarhangi testified uninterrupted by subsequent

questions for nine pages of recorded testimony. See N.T. Trial, 7/29/2010,

pp 159-168. ADA Sarhangi’s testimony from pages 159-168 addressed her

observations of the interaction between Child and Child’s mother, as well as

her own interactions with Child. As such, this testimony evidences an intent

to describe the ways that Child has been emotionally pulled by her mother

and her uncle, North, away from her original accusations. In other words,

the testimony provided a basis to explain to the jury why Child had

recanted.

      It is not until the end of this multi-page narrative that ADA Sarhangi

improperly commented on Child’s credibility.    ADA Sarhangi had described

the manner in which she interviewed Child on the day of the preliminary

hearing. As part of that description, she indicated she changed the focus of

her inquiry from what Child was currently saying (recanting), to Child’s

statements to her school counselor in which she had accused North. At that

point of the conversation between ADA Sarhangi and Child, Child reiterated

her accusations. Specifically, ADA Sarhangi testified:


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     [ADA Sarhangi]: Then when I changed my questioning back to
     [“]Well, so when you were five then, what happened?[”] She
     continued telling the story. That’s kind of how I knew she was
     telling the truth because –

     [Defense Counsel]: I’m going to object to that because it’s an
     opinion and it’s not relevant for these proceedings.

     The Court: All right. Well, it is your opinion. You can express in
     that way at this point.

     [ADA Sarhangi]: Yes, your Honor.

     The Court: So if you wouldn’t mind rephrasing it.

     [ADA Sarhangi]: Of course. At that point I believed [Child] was
     telling the truth because I felt like I had given her an out, a way
     to just open the door and for her to start telling the truth by
     saying, you know, this was my end. [sic]

Id. at 168.

     Later, ADA Sarhangi again vouched for Child’s credibility in accusing

North.

     [Trial ADA]: So what was your motivation in this case for getting
     [Child] to testify [at the preliminary hearing]?

     [ADA Sarhangi]: I believed her. I thought what she was saying
     was the truth.

     [Defense Counsel]: I’m just going to object.     It’s not relevant.
     Her opinion is not relevant.

     The Court: Why isn’t it relevant? I’m overruling the objection.

     [ADA Sarhangi]: I believed [Child]. I think any seven year old in
     a situation where your mom’s telling you don’t say X, doesn’t
     say X. Mom says Y, they say Y.

     The Court: You’re not answering the question.



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      [ADA Sarhangi]: I believed [Child], not her mom. And I felt that
      this was the only way to get her out of the hostile environment
      and I felt that she needed an advocate and support outside of
      her family because I didn’t think her family wasn’t [sic] being
      supportive of her and a seven year old I felt that she was so
      young and impressionable that anyone in her family could force
      her to try and say something that wasn’t true and being a victim
      of sexual assault, the only way you can ever deal with it and get
      it past you is to deal with it and move forward.

      I believed [Child] and I wanted to prosecute the case because I
      felt she was telling the truth and it was the right thing.

Id. at 180-81.

      The trial court’s initial overruling of defense counsel’s objection that

allowed ADA Sarhangi to give her opinion regarding her interaction with the

Child, which was later found to be error by our Court, essentially sanctioned

ADA Sarhangi’s subsequent opinion testimony regarding her belief that

Child’s allegations against her uncle were truthful. Defense counsel’s second

objection was lodged and again overruled, and the trial court even prompted

ADA Sarhangi to clarify her answer.          North has provided no case law

indicating that actions of a witness or trial attorney who is following a

judge’s evidentiary ruling, even one that is later determined to be an error of

law, can be considered evidence of intent to prejudice a defendant.

      Because of the trial court’s rulings, we review ADA Sarhangi’s first

statement, “That’s kind of how I knew she was telling the truth because —”,

N.T. Trial, 7/29/2010 at 168, supra, as to its intent to prejudice the

defendant.    The statement was made during ADA Sarhangi’s lengthy

explanation of the circumstances that led to Child’s preliminary hearing



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testimony and appointment of a child advocate and lawyer to safeguard

Child’s rights. The complained-of testimony followed a narrative to describe

Child’s vacillations of her statements against North. The remand court did

not perceive this testimony as an improper attempt to prejudice North, but

rather as the unfortunate culmination of the attempt to explain Child’s

testimonial inconsistency.

      Our review of the certified record, especially the trial notes of

testimony, combined with the facts that ADA Sarhangi’s comment was not

invited by a question posed by the trial ADA, defense counsel did not seek

either a mistrial or curative instruction, and the prior decision by our Court

was predicated on trial court error, leads us to conclude there was no intent

to deprive North of a fair trial.   Because North has not demonstrated the

requisite intent to deprive him of a fair trial by the Commonwealth, North is

not entitled to invoke the protection against double jeopardy.

      Order affirmed.

      Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/16/2016




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