J-A12001-17

                                  2017 PA Super 413

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA


                       v.

JORDAN TIMOTHY ADAMS

                            Appellant                 No. 813 WDA 2016


                    Appeal from the Order Dated May 5, 2016
                In the Court of Common Pleas of Warren County
              Criminal Division at No(s): CP-62-CR-0000173-2015

BEFORE: OLSON, J., SOLANO, J., and RANSOM, J.

OPINION BY SOLANO, J.:                            FILED DECEMBER 27, 2017

       Appellant Jordan Timothy Adams appeals from the order entered

May 5, 2016, denying his motion to dismiss the charges against him on

double jeopardy grounds. Also before this Court is Appellant’s Motion to

Strike Appendix A of the Commonwealth’s Brief. We affirm the order of the

trial court and deny Appellant’s Motion to Strike.

       On April 15, 2015, Appellant was charged with multiple crimes arising

from the passing of counterfeit fifty-dollar bills at the Warren County Fair in

August 2014.1 Appellant’s co-defendant, Christine Redding, was charged

with similar crimes, including a charge of conspiring with Appellant to

commit forgery. Redding later pleaded guilty to the criminal conspiracy


____________________________________________
1By the time of Appellant’s trial, he faced 21 counts of forgery, 18 Pa.C.S. §
4101(a)(3), 14 counts of theft by deception, 18 Pa.C.S. § 3922(a)(1), 14
counts of retail theft, 18 Pa.C.S. § 3929(a)(1), and 3 counts of criminal
conspiracy, 18 Pa.C.S. § 903(a)(1).
J-A12001-17


charge, with the agreement that she would testify against Appellant.2

Redding was subpoenaed to appear at Appellant’s trial.

        Appellant filed a motion for discovery on November 17, 2015. The

request included, among other things, “[a]ny evidence favorable to the

accused which is material either to guilt or to punishment, and which is in

the possession of the attorney for the Commonwealth,” and “[a]ll written or

recorded statements, and substantially verbatim oral statements, made by

co-defendants      and    by   co-conspirators   or   accomplices,   whether   such

individuals have been charged or not.” Mot., 11/17/15, at ¶ A, K. The motion

specified that the request was in accordance with Pa.R.Crim.P. 573, which

governs discovery in a criminal case.

        Prior to trial, Appellant’s counsel followed-up on the discovery motion

by sending an e-mail to the prosecutor in the case, Warren County First

Assistant District Attorney Caleb Gnage. The e-mail requested “any recorded

statements by [Appellant] or any of the co[-]defendants.” See Appellant’s

Ex. 3 to Hr’g on Appellant’s Mot. to Dismiss. Gnage responded that he would

have a copy of “the DVD” available for Appellant’s counsel to pick up, and

that he would “comb [the] file” for required discovery. Id. Gnage had

previously sent an e-mail to the state police requesting “all the audio/video

recordings admitted into evidence” on Appellant’s case. Commonwealth’s Ex.

1 to Hr’g on Appellant’s Mot. to Dismiss.

____________________________________________
2   The factual basis for Redding’s plea does not appear in the record.

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J-A12001-17


       Appellant’s jury trial began on June 12, 2016. The Commonwealth

presented twelve witnesses who were vendors at the Warren County Fair

and who had received counterfeit fifty-dollar bills on August 4, 2014.3 None

of the vendors were able to positively identify Appellant at trial, and none

testified that they had been able to identify Appellant in a photographic

lineup when interviewed by the police. However, three of the vendors gave

descriptions of a man with characteristics similar to Appellant, and two of

the vendors testified that they received a counterfeit bill from a man with a

neck tattoo. Appellant has such a tattoo. One of those vendors testified that

he received a first counterfeit bill from a young woman, and the second from

a young man who had a neck tattoo and a hat displaying the emblem of a

marijuana leaf.4

       State Trooper Jeffrey Osborne, the lead investigator on the case,

testified that he was contacted by security for the fair and interviewed

several vendors at the fair the next day, August 5, 2014.5 After contacting

other officers who were investigating counterfeit cases, he interviewed

____________________________________________
3 Some vendors testified that they personally received the counterfeit bills;
others testified that they were responsible for a vending booth and
discovered the notes during their accounting that night or the following
morning, or that the notes had been discovered by co-workers.
4 The Commonwealth also presented the testimony of a security worker at
the fair, and introduced into evidence the counterfeit bills recovered by the
police.
5Osborne also testified that in his subsequent interviews with the vendors,
none were able to identify Appellant from a photographic lineup.

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J-A12001-17


several suspects in those cases who had passed counterfeit bills with the

same serial numbers as those recovered at the fair. The information

garnered from those interviews led Osborne to suspect that Appellant and

Redding had conspired to pass bills at the fair.

       Osborne testified that he interviewed Appellant twice. The first

interview took place on April 27, 2015. It was audio recorded, but the

recording was deleted when Osborne attempted to transfer the digital file to

storage that same day. According to Osborne,6 Appellant initially denied any

knowledge of or involvement with the crime, but ultimately confessed to

passing four or five counterfeit bills at the fair, with someone named “Carla,”

and stated that he had purchased a hat with a marijuana leaf emblem.

Appellant also said something to Osborne along the lines of “having a tattoo

on his neck was not a good idea while committing a crime.” N.T., 1/12/16,

at 259.

       During the second interview, on May 6, 2015, Appellant again

confessed to Osborne, this time to passing three counterfeit bills at the fair.

The second interview was also audio recorded, and portions of it were played

at trial.

       Osborne testified that he also interviewed Redding, but only once.

When Appellant’s attorney asked if that interview had been recorded, Gnage

called a sidebar and informed the court that the interview of Redding would
____________________________________________
6  Osborne testified regarding his first interview with Appellant after
refreshing his memory with the police report.

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J-A12001-17


not have been recorded, as it was done during a polygraph examination. The

prosecutor stated “she wouldn’t have been video taped. And it’s not the

habit to video tape someone when they are under polygraph.” N.T., 1/12/16,

at 319. When questioning resumed, Osborne clarified that he interviewed

Redding in jail, and that the interview was not recorded.7 Osborne testified

that Redding was later interviewed by Corporal Brian Zeybel at the police

barracks (referring to the polygraph examination), but that Osborne was not

present during that interview.

       Corporal Zeybel, whose job mainly entails conducting polygraph

examinations, testified that he accompanied Trooper Osborne to the fair and

assisted with interviewing witnesses. He testified that he also interviewed

Redding.8 When asked on cross-examination whether there was a recording

of the interview, Zeybel answered that there was. A sidebar conference was

called, at which Appellant’s counsel complained that she was not given a

copy of the recording of the interview. Appellant’s counsel requested the

opportunity to review the recording of the interview that night. Appellant’s

counsel was given a copy of the video, and court was adjourned.

       When Appellant’s trial resumed the following day, Appellant moved for

a mistrial. Appellant’s counsel informed the court that the video in fact
____________________________________________
7 The interview of Redding took place on May 6, 2015, and was
memorialized in the police report. See Report at 35-36.
8 Because the results of a polygraph examination are generally inadmissible
in court proceedings, Zeybel did not testify before the jury that his interview
of Redding was during a polygraph examination.

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J-A12001-17


shows two interviews: (1) Zeybel’s interview of Redding during the

polygraph examination, and (2) Osborne interviewing Redding immediately

afterwards. Gnage stated that he was unaware that Zeybel’s interview had

been recorded, as it was not indicated in the police report, and was unaware

that Osborne had also interviewed Redding on that date, as this was also left

out of the report.9 Appellant argued that the statements made by Redding

during the interviews were favorable to Appellant and would have altered

the defense strategy at trial. In response, Gnage stated, “I agree that we

have absolutely no argument and this is a Brady10 violation. It’s absolutely

discoverable. It would change the nature of the defense.” N.T., 1/13/16, at

6. The court granted the motion for a mistrial and dismissed the jury.

Notably, Redding did not appear at the courthouse on either day of

Appellant’s trial.11 The Commonwealth did not appeal the mistrial order.

        On April 11, 2016, Appellant filed a motion to dismiss the charges.

Appellant contended that prosecutorial misconduct warranted the dismissal


____________________________________________
9   The fact of the interview was also left out of Osborne’s direct testimony.
10  “In Brady [v. Maryland, 373 U.S. 83 (1963)], the United States
Supreme 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). Brady evidence includes exculpatory
impeachment evidence. Commonwealth v. Lambert, 884 A.2d 848, 854
(Pa. 2005).
11 Redding’s whereabouts were still unknown at the time of the hearing on
the motion to dismiss on May 5, 2016.

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J-A12001-17


because Trooper Osborne and Corporal Zeybel knew of the two recorded

interviews of Redding and failed to provide them to Appellant or include

them in the police report, and Gnage misled the court by stating that no

such video existed. Appellant argued that the Commonwealth should be

precluded from retrying Appellant, as it would violate his double jeopardy

rights under the Fifth Amendment to the United States Constitution, and

Article I, Section 10 of the Constitution of Pennsylvania.

        In its answer, which was filed by Gnage, the Commonwealth asserted

that the videos of Redding’s statements to Osborne and Zeybel were not

subject to mandatory disclosure under Pa.R.Crim.P. 573(B)(1), 12 but instead

were subject to discovery pursuant to a court order under Pa.R.Crim.P.

573(B)(2)(a)(iii),13 and that their discovery had not been ordered by the


____________________________________________
12 This portion of Rule 573 mandates disclosure, in accordance with Brady,
of “Any evidence favorable to the accused that is material either to guilt or
to punishment, and is within the possession or control of the attorney for the
Commonwealth.” Pa.R.Crim.P. 573(B)(1)(a). See Commonwealth v.
Burke, 781 A.2d 1136, 1139 n.4, 1141 (Pa. 2001) (noting that Rule
573(B)(1)(a), formerly Rule 305(B)(1)(a), “was promulgated in response to
the dictates of Brady”).
13   This portion of Rule 573 states:

        (a) In all court cases . . . if the defendant files a motion for
        pretrial discovery, the court may order the Commonwealth to
        allow the defendant’s attorney to inspect and copy or
        photograph any of the following requested items, upon a
        showing that they are material to the preparation of the defense,
        and that the request is reasonable:

        ...
(Footnote Continued Next Page)
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J-A12001-17


court. The Commonwealth also argued that no prosecutorial misconduct had

occurred, as the Commonwealth was not aware of the existence of the

undisclosed recordings of the interviews and did not intentionally withhold

any discoverable evidence from Appellant. According to the Commonwealth,

the police “simply neglected” to communicate the existence of the recordings

to the prosecutor, and did not act with the intention of causing prejudice to

Appellant. See Resp. 5/2/16, at ¶ 9.

      The Commonwealth attached to its answer a copy of the full 44-page

police report authored in alternating portions by Osborne and Zeybel (and

some other officers), which was given to the defense prior to trial. In a

portion authored by Osborne, the report states that on May 12, 2015,

Redding took a polygraph test, and “[a]ccording to Zeybel, Redding failed

the polygraph test. The supplemental report from Cpl. Zeybel will be

attached to this report when received. Reference supplemental report from

Cpl. Zeybel for additional details.” Report at 36 (some capitalization

omitted). The report does not mention Osborne’s interview of Redding that

day, or that either interview was recorded.




(Footnote Continued) _______________________
          (iii) all written and recorded statements, and substantially
          verbatim oral statements, made by co-defendants, and by co-
          conspirators or accomplices, whether such individuals have
          been charged or not;

Pa.R.Crim.P. 573(2)(a)(iii).


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J-A12001-17


       The    supplemental      polygraph       report   (authored   by   Zeybel,   and

incorporated at pages 37 through 39 of the police report) does not state that

the examination was audio- or video-recorded. The supplemental report

states that Redding told Zeybel that she had made plans to accompany

Appellant to the fair in order to pass counterfeit bills, but “just prior to the

scheduled trip[,] the car they were to use got a flat tire and Redding decided

to back out of the planned scam,” and “Redding . . . believes [Appellant] did

in fact come to Warren Co. and pass some fake bills at the Fair as planned.”

Report at 39 (capitalization omitted). The report also conveys the following:

“Redding wanted back out on the street mentioning ankle monitors, doing

sex acts with [another counterfeit suspect] in attempt to gather information

for [the police], wearing a wire, and or anything else to get her out of jail.

Redding was desperate to say the least.” Id. (capitalization omitted).14

       A hearing was held on the motion to dismiss on May 5, 2016. Robert

Greene,      the   District   Attorney    for    Warren    County,   represented    the

Commonwealth. Trooper Osborne testified that he arranged for Zeybel’s

polygraph of Redding, but was not present in the room during the test itself.

Osborne stated that he has no knowledge of the polygraph procedures,

including when Zeybel records polygraph examinations, or when those

recordings are entered into evidence in a case.
____________________________________________
14 The report notes “This examiner believes this desperation being possibly
related to the fresh bruises and needle marks on the interior of [Redding’s]
arm(s) as noted during the connection of the Polygraph equipment.” Report
at 39.

                                           -9-
J-A12001-17


      Osborne testified that he did not remember that he interviewed

Redding after the polygraph exam until the video of the interview came to

light at Appellant’s trial. He had not known at the time of the interview that

the interview was recorded, as it was recorded by Zeybel’s polygraph

equipment and not his own recording equipment, and he had not reported

the interview in the police report. Normally, according to Osborne, if he was

recording an interview, he would start by informing the subject that he or

she was being recorded, and the video of his interview of Redding shows

that was not done. Osborne testified that he never intentionally lied during

Appellant’s trial about not interviewing Redding after the polygraph

examination, and that he never intentionally withheld the video. According

to Osborne, Redding did not disclose any material information during the

interview.

      Osborne testified that the police report also indicates that both

Osborne and Zeybel spoke to Redding again on May 15, 2015, the day after

the polygraph exam. See Report at 39. He said he does not recollect that

conversation. He did not mention that third interview during his direct

testimony at trial.

      Osborne also testified that he did not mention his first interview with

Appellant (the recording of which had been deleted) in the report because it

“wasn’t important enough.” N.T., 5/5/16, at 21. Osborne testified that

Gnage had requested all evidence from the police in preparation for trial, but


                                    - 10 -
J-A12001-17


Osborne could not recall whether Gnage had specifically asked for recorded

or written statements made by co-defendants or other witnesses.

       Corporal Zeybel testified that, while polygraph examiners are not

required to record their examinations, he records 99.9% of his polygraph

examinations, and that this was common knowledge in the Warren barracks.

Zeybel would typically make a copy of the video recording, print the

accompanying test results, and keep them both secured in a closet in his

office. A supplemental report regarding the polygraph would be given to a

supervising officer and attached to the police investigation report, which

would eventually be given to the prosecutor on the case. Zeybel testified

that he would enter a recorded statement into case evidence only if the

statement had “evidentiary value” — that is, when it contained a confession.

N.T., 5/5/16, at 86.

       Appellant introduced a copy of the state police administrative

regulations    governing      polygraph        examinations,   which   state,   “If   the

polygraph examination is A/V recorded, the original copy (CD/DVD) shall be

provided to the investigating officer and shall be handled as evidence in

accordance with AR 3-3, Storage and Security of Property. A copy shall be

retained at the polygraph examiner’s assigned station.” Appellant’s Ex. 1 to

Hr’g on Appellant’s Mot. to Dismiss, at 13.15 Zeybel testified that he was


____________________________________________
15 The provisions of “AR 3-3 Storage and Security” were not made part of
the record; however, Zeybel agreed that this section of the manual “talks
(Footnote Continued Next Page)
                                          - 11 -
J-A12001-17


“mistaken” for failing to comply with the regulation, but that he does not

enter every recorded statement into evidence “only for the sheer fact [the

investigating officers] have to eventually account for this, dispose of it. And,

it becomes a thorn in their side.” N.T., 5/5/16 at 86. Zeybel testified that

since Appellant’s mistrial, he has changed his practice; now, if he records a

polygraph examination, he includes that information in his report. He still

does not put the recording into case evidence unless it includes a confession,

or unless it is specifically requested.16

      Corporal Zeybel testified that because Redding did not confess during

or after the polygraph, and the information provided by Redding during her

polygraph exam “did not implicate” Appellant, a recording was not made

part of the police investigation file. N.T., 5/5/16, at 87. Instead, Zeybel

summarized in the supplemental report the statements made by Redding

during the polygraph examination. Until Appellant’s trial, Corporal Zybel did

not realize that his interview with Redding was considered “part of”

Appellant’s case. Id. at 77.

      Zeybel testified that he did not include in the supplemental polygraph

report that Osborne had also interviewed Redding that day because it was


(Footnote Continued) _______________________
about when you get evidence you give it a number, put it in the evidence
room . . . et cetera.” N.T. 5/5/16, at 57-58.
16 The regulations also state that an investigating officer shall be present
during the polygraph examination. Zeybel testified that, in his view, this is
only so that the investigating officer can help guide the questioning, and as
long as the investigating officer is nearby, the regulations are satisfied.

                                         - 12 -
J-A12001-17


not a part of the polygraph examination. Zeybel believes that Osborne was

aware that the interview was being recorded, because he believes he gave

“a preamble on camera with him present.” N.T., 5/5/16, at 103. Ultimately,

Zeybel testified that he did not intentionally withhold any material evidence.

       First Assistant District Attorney Gnage testified that he recalled

speaking with Osborne and Zeybel about the polygraph examination, but

never asked them whether the polygraph exam was recorded; because a

recording was not indicated in the police report, Gnage was not aware of the

recording until Appellant’s trial. Gnage testified that he believed that

polygraph examinations were never recorded because his office has never

received a recording of such an examination. 17 He did not specifically

request a recording of the polygraph examination, but requested any and all

discovery. Gnage stated that he had no reason not to trust law enforcement

to give him all evidence he requested.

       Gnage testified that his office sometimes has had difficulty obtaining

discovery from law enforcement agencies in Warren County, and that this

issue has been addressed repeatedly at meetings between the District

Attorney’s office and chief law enforcement officers. Gnage knows of only

one discovery violation which led to a mistrial, and other cases in which
____________________________________________
17 Gnage also testified that Appellant’s attorney, who used to work in the
DA’s office with him, wrote in Appellant’s motion to dismiss that polygraph
examinations were “always recorded”; Gnage claims that, as she knew that
a polygraph examination had been done in Appellant’s case (due to the
report), she should therefore have specifically requested the video of it
during discovery. N.T., 5/5/16, at 173.

                                          - 13 -
J-A12001-17


discovery was provided late. Gnage testified that none of the discovery

violations were intentional.

        A copy of the video was played at the hearing.18 In the video, Zeybel is

shown interviewing Redding for approximately two hours, during which he

administers a polygraph examination, which Redding failed. As stated in the

report, Redding told Zeybel that she was supposed to go with Appellant to

the Warren County fair, but ended up not going. After Redding failed the

exam, Zeybel pressed her for information about the origin of the bills, the

destination of the stolen merchandise, and the involvement of other people,

and stated that she could give this information to the police to “help herself

out.” Redding then protested that she had no further knowledge regarding

the crime, but that she would be willing to do “anything” to get out of jail,

including gathering information by wearing a wire and ankle monitor, and

she flippantly offered to perform sex acts with another suspect to get him to

talk. In addition, and not included in the report, Redding told Zeybel that she

hates Appellant and blames him for her charges.

        The video also showed that roughly ten minutes after the conclusion of

the polygraph with Zeybel, and in the same room, Osborne interviewed

Redding for approximately nine minutes. Prior to that interview, Zeybel

stated for the camera that Trooper Osborne was next going to interview

Redding; the recording shows Osborne standing in the hallway and looking

____________________________________________
18   This Court also watched the video, which is part of the certified record.

                                          - 14 -
J-A12001-17


into the room at the beginning of this statement. Zeybel then exited the

room, and Osborne returned with Redding. During the interview with

Osborne, Redding expressed her disappointment and confusion over failing

the polygraph test, and regretted agreeing to take it.

       At the conclusion of the hearing, District Attorney Greene conceded

that the video of Redding’s statements should have been provided to the

defense, and that failure to do so was a Brady violation.19 Greene also

stated that he was not going to argue this point, in part because the trial

court had already ruled that there had been a Brady violation.20 Instead,

Greene argued that there was no prosecutorial misconduct to warrant

dismissal of the charges, as there had been no intentional withholding of

evidence on either the part of the police or the prosecutor. Greene stated

that “mistakes [were] made” when the police did not include in the report

that Osborne had spoken with Redding after the polygraph exam and did not

log the video of the interviews into evidence. N.T., 5/5/16, at 188.21 He also

argued that he was doing everything in his power to ensure that officers in

Warren County adhere to the discovery rules.
____________________________________________
19 Greene simultaneously maintained that the evidence was material but that
its withholding did not prejudice Appellant.
20Greene presumably was referring to the court’s grant of Appellant’s
motion for a mistrial.
21 According to the District Attorney, “When [Gnage] asks law enforcement
. . . for discovery, we expect to get everything. We shouldn’t have to go
through and redo the investigation to make sure we have got every single
piece.” N.T., 5/5/16, at 189.

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J-A12001-17


       Appellant argued that having to know what evidence exists before

asking for it places an undue burden on defendants. According to Appellant,

District Attorney Greene is the chief law enforcement officer in the county,

and, along with First Assistant District Attorney Gnage, he has a duty “to

make sure they have everything when they prosecute . . . . That’s their job

to make sure all of the evidence is obtained.” N.T., 5/5/16, at 194.

       The trial court denied Appellant’s motion to dismiss. As a sanction for

the discovery violation, the court ordered that the Commonwealth “be

precluded from admitting any evidence . . . regarding Miss Redding’s guilty

plea, conviction, or sentence at the time of retrial.” N.T., 5/5/16, at 215. 22

The court noted that unless Redding appeared at the retrial, it was unlikely

that the video recordings of her interviews would be admissible as evidence

at trial. Id.

       In its Pa.R.A.P. 1925(a) opinion, the trial court explained that it found

three instances of prosecutorial misconduct. 23 First, when the prosecutor


____________________________________________
22Appellant requested that the court not exclude Redding as a witness, as
Appellant might wish to use her as a defense witness. N.T., 5/5/16, at 201.
23 The trial court first explained that the Commonwealth’s withholding of the
video violated Brady:

       The prosecutor concealed the existence of the evidence by
       representing that it did not exist to both defense counsel and the
       [c]ourt. The exculpatory impeachment evidence was a video of a
       codefendant’s statements to police in a case involving a
       conspiracy. The video showed Codefendant claiming that she
       was not in Warren County at the time of the Warren County Fair,
       pleading with officers that she would do anything not to go to
(Footnote Continued Next Page)
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J-A12001-17


assumed that there was no recording of the polygraph, and therefore did not

request it from the police, the prosecutor “attempted to discharge the

government’s Brady responsibility almost entirely through his assumptions.”

Trial Ct. Op. at 4 (italicization added). According to the court, the prosecutor

should have put more effort into determining what evidence existed, as he

was on notice of ongoing discovery issues in the area. Id. at 4-5.24 Second,

Gnage misrepresented to the trial court that polygraph examinations are not

recorded. Id. at 5-6.25 Third, in the response to Appellant’s motion to

dismiss, Gnage argued that Appellant’s counsel knew of the existence of the

video (whereas Gnage did not), and that counsel intentionally withheld that

knowledge when requesting discovery. Gnage also argued in the response

(Footnote Continued) _______________________
        jail, and expressing her hatred for Appellant. Under the
        circumstances, the evidence is exculpatory impeachment
        evidence. The concealment was prejudicial because it is critical
        impeachment evidence against a codefendant.

Trial Ct. Op., 7/5/16, at 3. As the Commonwealth did not appeal the grant of
a mistrial in this case, and makes no argument on appeal regarding whether
a Brady violation occurred, we see no reason to disturb this portion of the
trial court’s analysis.
24 The trial court also noted that the procedure whereby the prosecutor
requested discovery material through Osborne rather than directly from
Zeybel was problematic. Trial Ct. Op. at 5.
25   At the hearing, the trial court admonished,

        When an officer of the court makes a representation . . . to me, I
        am operating with the understating that he knows that. He has
        researched that. He has spoken to the individual that could give
        him a definitive answer in that regard, and that’s why I am
        hearing it in the middle of a trial.

(Footnote Continued Next Page)
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that the video did not contain Brady material, even though he had never

watched the video in full. The court found that Gnage’s response was “overly

defensive,    argumentative,      and    [involved]   rehearsed   hindsight-based”

contentions. Id. at 6.

      However, the court found that dismissal was not warranted based on

prosecutorial misconduct because “[a]ll evidence pointed to the prosecutor’s

gross negligence in making assumptions regarding the existence or non-

existence of evidence,” and “the panicked response of an inexperienced

attorney, who was unwilling to accept responsibility for his mistakes.” In the

eyes of the court, this conduct did not amount to deliberate overreaching

warranting discharge. Trial Ct. Op. at 8-9.

      The trial court also reviewed the conduct of the police. On the part of

Zeybel, the trial court found:

      This practice of putting a DVD into the file only when there is
      inculpatory evidence is concerning. The [Pennsylvania State
      Police] regulations require that the original of all recorded
      polygraph interviews by placed in the investigating officer’s case
      file. Zeybel’s contrary practice functionally placed an extra
      hurdle to the disclosure of exculpatory interviews through
      discovery.

Trial Ct. Op. at 7. However, the trial court noted that Zeybel made no effort

to hide the existence of the video at trial, and that “he saw no problem with

his method because the videos are so rarely admissible and prosecutors will

contact him when they need a copy of the video.” Id. The court also took

(Footnote Continued) _______________________
N.T., 5/5/16, at 209.

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J-A12001-17


issue with Osborne’s failure to memorialize his conversation with Redding in

the report, and indicated that Osborne should have been aware that the

interview was recorded. However, the court found that while officers are

generally aware that Zeybel records his polygraph examinations, it appears

that this “is not at the forefront of their minds,” and was likely not at the

forefront of Osborne’s mind. Id. Overall, the trial court found:

       The issues involving police handling of evidence in the case
       appear[s] to be a result of a lack of communication and
       organization. There was no evidence to suggest that there was
       collusion between the prosecutor and the police. Instead, there
       appears to be a serious problem of miscommunication and lack
       of communication between the prosecutor and police.

Id. at 10. The court also noted that it had no precedent on which to base

dismissal of the charges based on police misconduct, rather than actions by

the prosecutor alone. Id.

       Appellant filed a timely appeal,26 stating the following issue: “Did the

[t]rial [c]ourt err by abusing its discretion when it denied Appellant’s Motion

to Dismiss based upon double jeopardy when the actions of the First

Assistant District Attorney combined with that of the Pennsylvania State

Police regarding exculpatory evidence rose to the level of more than gross

negligence?” Appellant’s Brief at 7.

____________________________________________
26 Although it denied Appellant’s motion to dismiss, the court made an
explicit finding on the record that the motion was not frivolous. Therefore,
pursuant to Pa.R.Crim.P. 587(B), the order denying the motion is
immediately appealable as a collateral order. Commonwealth v. Graham,
109 A.3d 733, 735 n.1 (Pa. Super.), appeal denied, 126 A.3d 1282 (Pa.
2015).

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     In Commonwealth v. Graham, 109 A.3d 733 (Pa. Super.), appeal

denied, 126 A.3d 1282 (Pa. 2015), we stated:

     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.

Graham, 109 A.3d at 736 (brackets and citation omitted).

     Appellant argues that dismissal is warranted, as there was misconduct

by both the prosecutor and the police. With regard to the prosecutor,

Appellant points to the same three instances of misconduct found by the trial

court, but argues that the prosecutor acted intentionally in each instance.

First, as to the withholding of evidence, Appellant claims that even though

Gnage knew of the ongoing discovery issues between prosecutors and the

police, he “continued to act in a lackadaisical manner when it came to

making sure discovery was complete and provided to Appellant”; according

to Appellant, this was intentional neglect by the prosecution. Appellant’s

Brief at 14-15. Second, Appellant complains of the misrepresentation Gnage

made to the court at sidebar regarding the recording of polygraph

examinations without having any basis for such a statement. Third,
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J-A12001-17


regarding the Commonwealth’s response to the motion to dismiss, Appellant

complains that notwithstanding Gnage’s admission at trial to a Brady

violation, the Commonwealth nonetheless argued that the videos were

subject to a discretionary discovery rule; this shows “a denial of culpability

which is not a negligent, but intentional act.” Id. at 15. Appellant also

complains that Gnage intentionally argued that there was no Brady violation

when he had not even seen the contents of the video. Id. at 16. Appellant

contends that “[c]ontinued misconduct must reach the point where it can no

longer be deemed grossly negligent.” Id.

      As for police misconduct, Appellant contends that Corporal Zeybel

intentionally withheld evidence. Zeybel, Appellant argues, is “a seasoned,

experienced, and tenured police officer who has made the conscious decision

to withhold evidence that is not incriminating,” and “clearly ignored the

exculpatory and impeachment evidence on the video.” Appellant’s Brief at

17. Appellant points out that Zeybel testified that he intentionally ignores

the police regulation mandating the disclosure of videos so as not to have

them become a “thorn” in the side of the police, and that he puts only

recordings of inculpatory statements into evidence. Id. While Zeybel

summarized the contents of the interview in the police report, Appellant

notes that he did not indicate that the interview was recorded, and did not

mention in the report any of the statements made by Redding against

Appellant. Id. Similarly, Appellant asserts that it is unlikely Trooper Osborne

did not know that his interview of Redding was being recorded; and yet, he
                                   - 21 -
J-A12001-17


failed to memorialize it. Such conduct, Appellant argues, demonstrates a

brazen and blatent disregard for police procedure. Appellant’s Brief at 18.

Despite his discovery requests, Appellant points out that had his counsel not

specifically   asked   whether    a     recording    existed   on     Zeybel’s   cross-

examination, none would have come to light.

      Appellant argues that the misconduct by Osborne and Zeybel should

be imputed to the prosecutor for purposes of a double jeopardy analysis,

since Brady violations apply to exculpatory evidence withheld by police

agencies. Appellant’s Brief at 19 (citing Commonwealth v. Burke, 781

A.2d 1136, 1142 (Pa. 2001)). Appellant also argues that —

      The District Attorney’s Office and the Pennsylvania State Police
      are regularly and collectively known as the Commonwealth. The
      Commonwealth is charged with the duty to uphold the
      Constitution and ensure a fair trial. That includes the police. As
      the District Attorney is the chief law enforcement officer, the
      other law enforcement falls under his direction, thus the District
      Attorney is capable of establishing procedures and regulations to
      ensure that all Constitutional mandates are being followed.

Id. (citation omitted).

      The      Commonwealth      does    not     directly   respond    to   Appellant’s

contentions that police misconduct can be attributed to the prosecutor for

purposes of double jeopardy. Rather, the Commonwealth argues that Gnage

dutifully and conscientiously requested all discovery from the police.

Commonwealth’s Brief at 17-18. The Commonwealth stresses that the police

report summarizes the statements Redding made to Zeybel during the

polygraph examination, and that this shows that neither the police nor the

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J-A12001-17


District Attorney’s office intended to suppress the recording of the

statements. Id. at 19-21.27 The Commonwealth contends that the remedy

fashioned by the trial court is appropriate in this case and will disadvantage

the Commonwealth while still allowing “the victims and society [to] have

their day in court.” Id. at 24-25.

       In assessing a double jeopardy claim, 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.

Graham, 109 A.3d at 736 (quotation marks, brackets, and citations

omitted); see Commonwealth v. Smith, 615 A.2d 321, 325 (Pa. 1992);

Commonwealth v. Clark, 430 A.2d 655, 658-60 (Pa. Super. 1981).

____________________________________________
27  We deny Appellant’s Application to Strike Appendix A of the
Commonwealths’ Brief. Appendix A contains a few pages of the police report,
which Appellant contends were not made part of the certified record.
However, the full report was made part of the record, as it was an exhibit to
the Commonwealth’s response to its motion to dismiss. See Pa.R.A.P. 1921
(stating that the record on appeal will include any papers filed in the lower
court).

                                          - 23 -
J-A12001-17


     Under these authorities, whether a dismissal is warranted turns on

whether the Commonwealth intended to deprive the defendant of a fair trial.

As the Court in Graham explained, dismissal is an appropriate remedy in

such a case because a mistrial would be an inadequate remedy for

systematic intentional prosecutorial misconduct:

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

Graham, 109 A.3d at 736 (quoting Commonwealth v. Kearns, 70 A.3d

881, 884-85 (Pa. Super. 2013), appeal denied, 84 A.3d 1063 (Pa. 2014)).

On the other hand, as our Supreme Court also has stated:

     Dismissal of criminal charges punishes not only the prosecutor
     . . . but also the public at large, since the public has a
     reasonable expectation that those who have been charged with
     crimes will be fairly prosecuted to the full extent of the law.
     Thus, 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.

Burke, 781 A.2d at 1144 (quoting Commonwealth v. Shaffer, 712 A.2d

749, 752 (Pa. 1998)).


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J-A12001-17


       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 prosecutor intended to deprive the defendant of a fair trial.

See, e.g., Kearns, 70 A.3d at 886 (applying double jeopardy analysis to

discovery violation by examining prosecutor’s intent to suppress evidence).28

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. See Burke, 781 A.2d at

1142.29 Thus, the police violate Brady when they destroy or fail to preserve

____________________________________________
28 Conversely, without proof of such intent, “[o]rdinarily, the dismissal of
charges is ‘a penalty far too drastic’ for a prosecutor’s violation of discovery
rules.” Commonwealth v. Anderson, 38 A.3d 828, 840 n.5 (Pa. Super.
2011) (en banc) (quotation marks and citation omitted); see also
Commonwealth v. Moose, 602 A.2d 1265 (Pa. 1992) (holding that
prosecutorial misconduct founded on mere “willful” discovery violation was
insufficient for discharge).
29 Two reasons have been given for applying Brady to files within police
custody: (1) “prosecutors have the authority to determine the procedures
under which police provide them with evidence, so they have the ability to
ensure they are aware of any Brady material and avoid accidental
violations;” and (2) —
(Footnote Continued Next Page)
                                          - 25 -
J-A12001-17


exculpatory evidence, regardless of intention. Commonwealth v. Snyder,

963 A.2d 396, 406 (Pa. 2009).30 Police also violate a defendant’s due

process rights when they destroy “potentially useful” evidence, and do so in

bad faith. Id. Police have an obligation to preserve evidence in “that class of

cases where the interests of justice most clearly require it, i.e., those cases

in which the police themselves by their conduct indicate that the evidence

could form a basis for exonerating the defendant.” Id. at 402 (quoting

Arizona v. Youngblood, 488 U.S. 51, 57 (1988)).

      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
(Footnote Continued) _______________________

      to de facto permit police to decide what material to place within
      the ambit of Brady based on what evidence they choose to turn
      over to prosecutors would “substitute the police for the
      prosecutor, and even for the courts themselves, as the final
      arbiters of the government’s obligation to ensure fair trials.”

Commonwealth v. Simpson, 66 A.3d 253, 267 (Pa. 2013) (quoting
Burke, 781 A.2d at 1142); see also Lambert, 884 A.2d at 854 (“the
prosecution’s Brady obligation extends to exculpatory evidence in the files
of police agencies of the same government bringing the prosecution”;
emphasis added).

30 The federal cases cited by the Court in Snyder generally refer to the
prosecutor and the police together as “the government,” “the prosecution,”
or “the State.”

                                         - 26 -
J-A12001-17


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. The materials were compiled by the
     Ohio Township police. The Allegheny County police, however,
     assumed jurisdiction over the investigation several hours after
     the incident. The prosecutor relied exclusively upon the
     Allegheny County police to supply her with evidence responsive
     to the defense’s discovery requests. The prosecutor suggested
     that there may have been some confusion between the
     departments as to whether the Ohio Township police had, in
     fact, turned over the items in question to the Allegheny County
     police. It was also suggested that [the witness’s] handwritten
     statement may have been misfiled by the Allegheny County
     police in a file on an unrelated matter involving the Mardi Gras
     restaurant. 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

                                   - 27 -
J-A12001-17


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).

      Burke guides our disposition of this case. The trial court found that

the prosecutor was negligent in his understanding of whether polygraph

examinations were recorded, in his request for such a recording from the

police, and in the misrepresentations he made to the trial court regarding

the existence of such a recording. We defer to the trial court’s credibility

determination in concluding that the prosecutor erred, but did not

intentionally subvert the court process. Graham, 109 A.3d at 736. The

record supports the trial court’s determination that the prosecutor did not

act intentionally or otherwise in bad faith. Therefore, the prosecutor’s

misconduct did not rise to the level of a double-jeopardy violation justifying

a dismissal.

      Similarly, although the law enforcement officers in this case made

several errors, the trial court credited their testimony that they did so

unintentionally. Trooper Osborne explained that he accidentally did not

include his post-polygraph interview with Redding in the police report or his

testimony at Appellant’s trial, and that he did not know a recording existed.

The trial court found him to be truthful. Corporal Zeybel testified that he did

not know that Redding was implicated in Appellant’s case, and was forthright

about his polygraph procedures; the trial court found he was not acting in an

effort to sabotage Appellant’s case. In light of these findings, we agree with
                                    - 28 -
J-A12001-17


the trial court that the remedy of dismissal in this case would be overly

harsh and would not promote the goals contemplated by discharge under

double jeopardy, foreclosing systematic maltreatment. Graham, 109 A.3d at

736. Miscommunication between the police and the prosecutor, alone,

cannot be the basis for misconduct. Burke, 781 A.2d at 1145-46.

      Of utmost concern, however, is Corporal Zeybel’s admission that he

enters only those recordings into evidence that include inculpatory, and not

exculpatory, statements; that he does so in order that the multitudinous

recordings will not become a “thorn” in the side of the state police; and that

he does so in open contravention of police regulations. These actions are

intentional. However, absent a showing that Corporal Zeybel intentionally

withheld or destroyed evidence in Appellant’s case in an attempt to deprive

Appellant of a fair trial, we agree with the trial court that dismissal is not the

appropriate remedy. We trust that measures have been taken that will

guarantee that complete discovery is disclosed to criminal defendants in all

future cases, including all exculpatory material pursuant to Brady v.

Maryland.

      Because the trial court found that there was no intentional misconduct

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

supported by the record, we affirm its holding that Appellant is not entitled

to have the charges against him dismissed on double jeopardy grounds.

      Order affirmed. Motion to strike denied.


                                     - 29 -
J-A12001-17


     Judge Olson joins the opinion.

     Judge Ransom files a dissenting opinion.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/27/2017




                                  - 30 -
