J-S70026-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 JEWEL DEVEREAUX                          :
                                          :
                    Appellant             :   No. 4062 EDA 2017

            Appeal from the Order Entered November 30, 2017
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0010580-2016


BEFORE: GANTMAN, P.J., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY McLAUGHLIN, J.:                     FILED FEBRUARY 22, 2019

      Jewel Devereaux appeals from the order denying his “Petition to Bar

Prosecution as a Violation of Double Jeopardy Clause” (“Petition”). Devereaux

maintains that the trial court erred in denying the petition and denying an

evidentiary hearing on the petition. We affirm.

      The trial court aptly summarized the relevant procedural history and

facts of this case as follows:

            According to the docket entries for the Municipal Court case,
      on May 18, 2016[,] the Honorable Karen Simmons denied
      [Deveraux’s] Motion to Suppress with respect to the stop and
      search, but granted it with respect to [Deveraux’s] statements.

              Mr. Deveraux was found guilty of simple possession of a
      controlled substance and the possession of marijuana in a
      Municipal Court bench trial before the Honorable Wendy Pew on
      November 16, 2016 and sentenced that same day. [Another] ADA
      . . . tried the case for the Commonwealth. [Deveraux] filed, also
      on November 16, 2016, a timely appeal to the Court of Common
      Pleas for a trial de novo.
J-S70026-18


          This matter was first listed for trial de novo before the Court
     of Common Pleas on January 9, 2017, but was continued by
     [Deveraux’s] request to obtain the notes of testimony from the
     Municipal Court trial. The trial was continued again on March 15,
     2017, again at the request of the defense.

           The trial de novo was held on May 4, 2017 before the
     undersigned. . . . After this [c]ourt confirmed in a colloquy with
     Mr. Deveraux that his waiver of his right to a jury trial was
     knowing, intelligent, and voluntary, the bench trial commenced.
     The Commonwealth called police officer Benjamin Klock as its first
     witness.

           [The] ADA . . . asked Officer Klock several background
     questions and questions to establish date, time, and location
     where the offenses were alleged to have occurred. After
     establishing that Officer Klock encountered Defendant Deveraux,
     [the] ADA . . . then proceeded with the following question:

           [ADA]: Did you notice anything else about the car or
           about the surrounding area?

           Officer [K]lock: Yes. There [were] two passengers,
           one in the front and one in the back behind the driver
           seat. I detected a strong odor of fresh marijuana
           coming from inside of the vehicle. I asked the
           defendant if any marijuana was in the vehicle to which
           he replied “yes.”

            [Defense counsel] then objected and moved for a mistrial
     on the grounds that a motion to suppress that had been previously
     been [sic] granted in this case. [The] ADA . . . looked at his case
     file and asked [defense counsel] when the motion was granted.
     [The ADA] then argued that a mistrial was not an appropriate
     remedy and that the trial could proceed after striking the
     suppressed testimony from the record. After a brief recess, this
     [c]ourt granted the request for a mistrial.

           Shortly thereafter, [defense counsel] and [the ADA] asked
     the [c]ourt for a decision whether the basis for the mistrial was
     “manifest necessity” or “prosecutorial misconduct.” After
     considering [the ADA’s] demeanor, his apologetic manner, the
     broad nature of the question that was asked, the fact that the trial
     had just commenced, and our knowledge of [the ADA’s]

                                    -2-
J-S70026-18


       reputation for honesty and good character, we advised the parties
       that we determined that the mistrial was required due to manifest
       necessity, and not prosecutorial misconduct. This request and our
       ruling, however, do not appear in the notes of testimony.1

              After several status listings, on September 1, 2017,
       [Deveraux] filed Petition to Bar Prosecution as a Violation of
       Double Jeopardy Clause. We heard argument on [Deveraux’s]
       Petition on November 30, 2017, concluded that the record was
       sufficient to render a decision based on the applicable law, and
       denied the motion without an evidentiary hearing.

Trial Court Opinion (“TCO”), filed December 7, 2017, at 1-3 (citations to record

and footnotes omitted). This timely appeal followed.

       Devereaux raises one issue on appeal:

       Did the [trial] court doubly err by not allowing defense counsel to
       call witnesses to demonstrate that it would violate double
       jeopardy to permit the prosecution to go forward following a
       mistrial granted because of the prosecution’s introduction of a
       suppressed statement and then by denying the motion to bar
       prosecution?

Devereaux’s Br. at 3.

       “An appeal grounded in double jeopardy raises a question of

constitutional law.” Commonwealth v. Vargas, 947 A.2d 777, 780

(Pa.Super. 2008) (citation omitted). As such, our standard of review is de

novo and our scope of review is plenary. Id.

       “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.”


____________________________________________


1 Although this information is not in the certified record, the parties do not
dispute the trial court’s recitation on the procedural history of the case.

                                           -3-
J-S70026-18



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

Prosecutorial misconduct bars a retrial for the same offense in two

circumstances: “when [it] is intended to provoke the defendant into moving

for a mistrial, [or] 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, 615 A.2d 321, 325 (Pa. 1992).

      Prosecutorial misconduct is present where “the ‘unavoidable effect’ of

the prosecutor’s actions is to ‘prejudice the jury, forming in their minds fixed

bias and hostility towards the accused so as to hinder an objective weighing

of the evidence and impede the rendering of a true verdict.’” Graham, 109

A.3d at 736 (quoting Commonwealth v. Chmiel, 777 A.2d 459, 464

(Pa.Super. 2001)). Where the conduct is merely an error, the defendant is not

deprived of a fair trial and therefore a retrial of the defendant is not barred

under the Double Jeopardy Clause. Id. When an appellant raises a claim that

the misconduct of a prosecutor bars retrial, our first inquiry must be whether

there was prosecutorial misconduct. Id. at 737.

      Devereaux maintains that “the prosecutor’s actions demonstrate that he

simply did not care about Mr. Devereaux’[s] right to a fair trial and he directly

took actions that deprived Mr. Deveraux of that right.” Deveraux’s Br. at 19.

The trial court however did not find the conduct of the prosecutor to rise to

the level of prosecutorial misconduct:

      [The ADA] happened to ask an open-ended question at the outset
      of the trial about the car and the surrounding area during Officer
      Klock’s investigation of [Deveraux]. The question did not

                                      -4-
J-S70026-18


      specifically concern any statements [Deveraux] may or may not
      have made, nor did it in any way allude to any such statements.
      Further, once [the ADA] became aware of the error, he was
      apologetic and visibly concerned about what transpired. Even Mr.
      Deveraux’s counsel recalled that [the ADA] “seemed surprised,”
      Petition at 2, and characterized [the ADA’s] conduct in terms of
      “gross negligence” or “ineffective assistance of counsel” at
      argument and “failure to act with reasonable diligence,” Petition
      at 4, nothing that truly rises to the level of intentional misconduct.

TCO at 6 (citations to notes of testimony omitted). We agree.

      The facts here support the trial court’s determination that the prosecutor

did not “engage in intentional misconduct barring retrial.” Graham, 109 A.3d

at 738. Similar to the facts of this case, in Graham we concluded that the

prosecutor did not engage in misconduct. In Graham, the defendant was

charged with multiple sexual assault crimes against his daughter. However,

at trial the victim’s mother testified about Graham’s unrelated sexual abuse

against their son. Graham moved for a mistrial and the trial court granted the

motion. When the Commonwealth moved to relist his trial for jury selection,

Graham argued that it was barred by the Double Jeopardy Clause. On appeal,

this Court observed that “the prosecutor never asked [the victim’s mother] a

question about her son, nor did he ask any questions that prompted [victim’s

mother] to testify about more than one victim.” Id. at 737. We also concluded

that the Commonwealth was not barred from retrying Graham because there

was no intentional misconduct on the part of the prosecutor for the unsolicited

testimony of the witness regarding the unrelated sexual abuse of her son. Id.

at 737-38.




                                      -5-
J-S70026-18



      Here, Officer Klock’s unsolicited response that Deveraux admitted to

having marijuana in the car was not a result of any form of prosecutorial

misconduct. The ADA did not ask Officer Klock about any statements made by

Deveraux. His question was limited to whether Officer Klock noticed anything

about the car or the surrounding area. Thus, we agree with the trial court’s

conclusion that no part of the ADA’s conduct “[rose] to the level of intentional

misconduct.” Therefore, no relief is due because Deveraux has failed to

establish that the ADA engaged in intentional misconduct.

      Deveraux also maintains that the trial court erred in failing to hold an

evidentiary hearing. He argues that he “intended to call the three trial

prosecutors and the police officer to testify as to what they understood would

be permitted at trial after the incriminating statement had been suppressed.”

Deveraux’s Br. at 13. Deveraux relies on Commonwealth v. Rios, 371 A.2d

937 (Pa.Super. 1997) (en banc), in support of his argument that the trial court

should have held an evidentiary hearing in order to obtain this information.

However, Rios does not warrant Deveraux relief.

      In Rios, the trial court granted a motion to suppress any statements

from Rios. 371 A.2d at 939. During trial, the prosecutor questioned the

assigned detective about the suppressed statements. Id. Rios moved for a

mistrial and the trial court granted the motion. Id. Rios then filed a motion to

bar a retrial arguing that it would be a violation of double jeopardy. Id. The

trial court held an evidentiary hearing where Rios’ counsel and the prosecutor

who handled the trial testified. Id. Following the hearing, the trial court denied

                                      -6-
J-S70026-18



the motion, concluding that “the Assistant District Attorney who tried the case

was negligent, but not guilty of a bad faith effort to abort the trial.” Id. On

appeal, this Court concluded that the trial court properly denied Rios’ motion

to bar retrial because “[t]here [was] absolutely no evidence which points to

the conclusion that the Assistant District Attorney deliberately set out to abort

the first trial in order to bolster his case or to secure a move favorable jury

panel.” Id. at 940. Notably, we did not hold that the trial court was required

to hold an evidentiary hearing regarding the actions of the prosecutor.

      Here, as in Rios, there is no evidence that the prosecutor “deliberately

set out to abort the first trial in order to bolster his case.” Id. The unsolicited

testimony of Officer Klock was not the result of any action by the prosecutor

as his question to Officer Klock was simply whether he noticed anything about

the vehicle. Sitting as fact finder, the trial judge determined that there was

enough evidence before it to determine “that a mistake had been made and

that the officer’s testimony was not the product of intentional prosecutorial

misconduct,”    without   conducting   an    evidentiary   hearing.   TCO   at   7.

Additionally, as the fact finder the trial court was in the best position to

determine whether it was prejudiced by the prosecutor’s action, which in this

case it concluded that it was not. The trial court did not err or abuse its

discretion in coming to this conclusion and therefore we affirm the trial court’s

order.

      Order affirmed.




                                       -7-
J-S70026-18


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/22/19




                          -8-
