J-S73019-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA                               :        PENNSYLVANIA
                                               :
                                               :
                v.                             :
                                               :
                                               :
    JESSICA LYNN ALINSKY,                      :
                                               :   No. 676 MDA 2016
                       Appellant

             Appeal from the Judgment of Sentence March 22, 2016
      In the Court of Common Pleas of Luzerne County Criminal Division at
                        No(s): CP-40-CR-0003915-2013


BEFORE:      OLSON, J., DUBOW, J., and STRASSBURGER, J.*

MEMORANDUM BY DUBOW, J.:                                   FILED MAY 25, 2018

        Appellant, Jessica Lynn Alinsky, appeals from the Judgment of Sentence

entered after a jury convicted her of Third-Degree Murder and Tampering

with/Fabricating Physical Evidence. She challenges the denial of her Motion

for a Mistrial that was based on a Brady1 violation. After thorough review,

we conclude that the trial court properly denied Appellant’s Motion for a

Mistrial. Accordingly, we affirm.

Background

        The relevant factual and procedural history, gleaned from our review of

the record and the trial court’s Pa.R.A.P. 1925(a) Opinion, is as follows. On

September 2, 2011, Appellant called 911 to report that her boyfriend had shot
____________________________________________


1   Brady v. Maryland, 373 U.S. 83 (1963).


____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S73019-17



himself in the head.        When police officers arrived, the victim was lying

incapacitated on his back on the floor with a gunshot wound near his left

nostril. A gun was in his left hand with his finger in the trigger well. The couch

near him contained significant amounts of blood, and there was blood

smearing and splatters around and on the victim’s body. Appellant gave the

attending police officers a statement.           The victim died from the gunshot

wound.

        Over the next two years, Appellant gave several statements to police

officers in which she provided differing explanations of the circumstances

surrounding the shooting: she alleged the shooting was the result of mistake

or accident or suicide.2 On November 18, 2013, the Commonwealth charged

Appellant with Criminal Homicide and Tampering with/Fabricating Physical

Evidence.3 The court subsequently allowed the Commonwealth to amend the

information to include a charge of Third-Degree Murder.

         A jury trial commenced on February 1, 2016, with testimony from

numerous individuals. Relevant to this appeal, Pennsylvania State Trooper

____________________________________________


2 Appellant told police the following variations of the events: (1) she and her
boyfriend had had an argument and she was upstairs when he shot himself;
(2) she was in the downstairs bathroom when she heard a gunshot and found
the victim on the floor; (3) she was in the living room and saw him shoot
himself; (4) she was in the living room and tried to get the gun out of his hand
and it went off, while her finger was on the trigger, and that it was their
fighting caused the shooting. Evidence revealed that the victim had been
moved from the couch to the floor after the shooting. Trial Ct. Op., filed
3/31/17, at 2.

3   18 Pa.C.S. § 2501(a); 18 Pa.C.S. § 4910(1).

                                           -2-
J-S73019-17



John Corrigan testified as an expert in forensic crime scene investigation,

blood spatter analysis, and crime scene reconstruction.           In addition to

testifying about photographs he had taken at the crime scene, he also testified

about the November 25, 2013 report he had drafted as an expert for the

Commonwealth. See N.T., 2/3/16, at 462-71.

        On February 10, 2016, defense counsel filed a Motion for a Mistrial

alleging a Brady violation. Appellant’s counsel asserted that Mark Reynolds,

Ph.D., a forensic science expert in the fields of blood pattern analysis and

crime scene reconstruction, had called counsel on the evening of February 5,

2016, from Australia to inform him that Trooper Corrigan had presented his

November 25, 2013 Report during an 80-hour training course at which Dr.

Reynolds had been one of the instructors.4          Dr. Reynolds told Appellant’s

counsel that he had reviewed Corrigan’s report during the training conference,

and had challenged its findings, conclusions, and opinions as flawed, not

supported by scientific principles, and not presented with reasonable

alternative conclusions supported by the evidence. See Motion for Mistrial,

filed 2/10/16, at ¶¶13-26.

        The court held a hearing in chambers on the Motion at which Dr.

Reynolds testified via telephone.         Defense counsel then examined Trooper

Corrigan who testified about his report and the seminar with Dr. Reynolds.

See N.T., 2/10/16, at 1101-11; Trial Ct. Op. at 6-10.

____________________________________________


4   Dr. Reynolds had not been retained by Appellant.

                                           -3-
J-S73019-17



      The court denied the Motion for a Mistrial, “[h]owever, the court pointed

out to [Appellant] that [s]he had the opportunity to recall Trooper Corrigan in

[her] case in chief in order to cross examine him or to call an expert witness

of [her] own.” Id. at 10 (citing N.T., 2/10/16, at 1125-26). The court also

indicated that it would entertain a defense request that Dr. Reynolds be

qualified as an expert. See id. When Appellant’s counsel argued that Dr.

Reynolds would not be in this country until April 4, 2016, and would need an

additional three months to prepare a report, the court stated:

      The [c]ourt’s more than agreeable to make this trial amenable to
      your witness. You already sent him all of the testimony of Trooper
      Corrigan.    You placed that of record.          The stenographer
      transcribed all of his testimony, his testimony that was presented.
      He has the initial report, which he said is identical to this report.
      He has all of the testimony. It has already, as we noted, been
      transcribed and been forwarded to him. That’s in the e-mail and
      through your representation.

      And if you cho[o]se to retain him, that is the Court will allow him
      to proceed as an expert and, in fact, we can proceed tomorrow if
      you finalize your agreement. His e-mail says you need to make a
      formal agreement. He said that today. In fact, he said he would
      make himself available once you have a formal agreement if you
      choose to retain him as your expert.

      We can look to, as I said, forms of Skyping. He needs to be video
      available, whatever means we can accommodate that. And we
      would continue with your case tomorrow . . . for testimony and
      when you’re finished with whatever witnesses you have, we could
      [ ] excuse the jurors until Tuesday, which would give your expert
      Thursday, Friday, Saturday, Sunday and Monday to get it to the
      DA’s Office for testimony on Tuesday[.]

      [Dr. Reynolds] said [ ] when he was here with us, he would make
      himself available once he had a formal agreement. If that’s
      reached, let me know and we’ll move to accommodate. But at
      this point, we’ll convene tomorrow and you can let me know.

                                      -4-
J-S73019-17



N.T., 2/10/16, at1127-28; Trial Ct. Op. at 10-11 (paragraph breaks

added).

        When the trial resumed the next day, the defense did not call Dr.

Reynolds, Trooper Corrigan, or any rebuttal blood expert. See N.T. at 1136.

        On February 12, 2016, the jury found Appellant guilty of Third-Degree

Murder and Tampering with/Fabricating Physical Evidence.              The court

sentenced her on March 22, 2016, to a term of 20 to 40 years’ incarceration

for the Third-Degree Murder conviction, and a consecutive term of 3 to 6

months’ incarceration for the Tampering with/Fabricating Physical Evidence

conviction.5

        Appellant timely appealed. Both Appellant and the trial court complied

with Pa.R.A.P. 1925.

Issues

        In her Brief, Appellant presents the following “Statement of Questions

Involved:”

        (A)    Whether     the    Commonwealth,      either    willfully or
               inadvertently, suppressed and/or failed to disclose evidence
               favorable to the defense, (either because it was exculpatory
               or material and relevant for impeachment purposes), that
               the procedure(s) and testing employed, and the conclusions
               derived therefrom, by its forensic expert Trooper John
               Corrigan (which were also relied upon by other
               Commonwealth witnesses) were disputed by a renown
               forensic expert (Mark Reynolds, PhD.), thus violating Brady
               v. Maryland, and its progeny which was prejudicial to the
____________________________________________


5   The court also ordered a consecutive term of probation and restitution.

                                           -5-
J-S73019-17


              defense and denied the defendant due Process of Law and
              a fair trial?

      (B)     Whether the Trial Court erred and/or abused its discretion
              by denying the defense Motion for Mistrial based upon the
              Brady violation set forth in Paragraph (A) herein as the
              defendant was denied the opportunity to retain expert
              Reynolds in this case prior to trial, and unable at trial to call
              forensic expert Mark Reynolds, PhD., to refute the
              Commonwealth’s case as he was located in Australia and
              unable to examine and review the physical and photographic
              evidence produced by the Commonwealth within the time
              constraints of the ongoing trial, thus causing prejudice to
              the defendant and denying her Due Process of Law and a
              fair trial?

Appellant’s Brief at 4 (verbatim).

Standard of Review

      Appellant argues that the trial court erred in denying her Motion for a

Mistrial. Our standard of review of a court's denial of a motion for mistrial is

as follows:

      A motion for a mistrial is within the discretion of the trial court. A
      mistrial upon motion of one of the parties is required only when
      an incident is of such a nature that its unavoidable effect is to
      deprive the appellant of a fair and impartial trial. It is within the
      trial court's discretion to determine whether a defendant was
      prejudiced by the incident that is the basis of a motion for a
      mistrial. On appeal, our standard of review is whether the trial
      court abused that discretion.

Commonwealth v. Tejeda, 834 A.2d 619, 623 (Pa. Super. 2003) (internal

citations and footnote omitted).




                                        -6-
J-S73019-17


      Brady Violation

      The basis for Appellant’s Motion for a Mistrial was an assertion that the

Commonwealth      committed     a   Brady    violation   because    it   withheld

impeachment evidence, i.e., evidence that its expert’s report had been

criticized by an expert instructor at a training conference. Appellant’s Brief at

9. The following principles guide our review of this issue.

      Brady provides 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.”      373 U.S. at 87.      See also Pa.R.Crim.P.

573(B)(1)(a) (pertaining to the mandatory disclosure of evidence favorable to

the accused which is material to guilt or to punishment of the accused, and

which is within the possession or control of the prosecutor).

      Impeachment evidence falls within the parameters of Brady. United

States v. Bagley, 473 U.S. 667 (1985). As the United States Supreme Court

has stated, “[w]hen the ‘reliability of a given witness may well be

determinative of guilt or innocence,’ nondisclosure of evidence affecting

credibility falls within this general [Brady] rule.” Giglio v. United States,

405 U.S. 150, 154 (1972) (quoting Napue v. Illinois, 360 U.S. 264, 269

(1959)).   “Thus, at the time of [A]ppellant's trial, the Commonwealth was

required to provide [A]ppellant with information in its possession [that]




                                      -7-
J-S73019-17


impacted upon the credibility of its witnesses.”          Commonwealth v.

Galloway, 640 A.2d 454, 457 (Pa. Super. 1994).

      It is without doubt that the information upon which Appellant bases her

Brady violation claim “impacted upon the credibility” of the Commonwealth’s

expert witness. Id. However, to establish a Brady violation, an appellant

must prove three elements: “(1) the evidence at issue is favorable to the

accused, either because it is exculpatory or because it impeaches; (2) the

evidence was suppressed by the prosecution, either willfully or inadvertently;

and (3) prejudice ensued.” Commonwealth v. Weiss, 81 A.3d 767, 783

(Pa. 2013).   In addition, “[t]he withheld evidence must have been in the

exclusive control of the prosecution at the time of trial. No Brady violation

occurs when the defendant knew, or with reasonable diligence, could have

discovered the evidence in question. Similarly, no violation occurs when the

evidence was available to the defense from a non-governmental source.”

Commonwealth v. Haskins, 60 A.3d 538, 547 (Pa. Super. 2012).

      In order to demonstrate prejudice, “the evidence suppressed must have

been material to guilt or punishment.” Commonwealth v. Gibson, 951 A.2d

1110, 1126 (Pa. 2008).

      Evidence is material under Brady when there is a reasonable
      probability that, had the evidence been disclosed, the result of the
      trial could have been different. Kyles v. Whitley, 514 U.S. 419,
      433–34[ ] (1995). “The mere possibility that an item of
      undisclosed information might have helped the defense, or might
      have affected the outcome of the trial does not establish
      materiality in the constitutional sense.” Commonwealth v.
      McGill, [ ] 832 A.2d 1014, 1019 ([Pa.] 2003) (quoting U.S. v.

                                     -8-
J-S73019-17


      Agurs, 427 U.S. 97, 109–10[ ] (1976)). The relevant inquiry is
      “not whether the defendant would more likely than not have
      received a different verdict with the evidence, but whether in its
      absence he received a fair trial, understood as a trial
      resulting in a verdict worthy of confidence.” Kyles, 514 U.S.
      at 434 [ ] [(emphasis added)]. To prove materiality where the
      undisclosed evidence affects a witness' credibility, a defendant
      “must demonstrate that the reliability of the witness may well be
      determinative of the defendant's guilt or innocence.”
      Commonwealth v. Johnson, 556 Pa. 216, 727 A.2d 1089, 1094
      (1999).

Commonwealth v. Haskins, 60 A.3d 538, 547 (Pa. Super. 2012)

(duplicative citations omitted).

      In the instant case, while the evidence at issue was favorable to

Appellant in that it provided a basis to impeach the credibility of the

Commonwealth’s expert witness, we cannot conclude that had the evidence

been disclosed, there is a reasonable probability that “the result of the trial

would have been different.” Kyles, supra at 433 (citation omitted). As the

trial court observed:

      The jury verdict was based on a record replete with a large amount
      of evidence, both direct and circumstantial presented to the jury,
      including multiple statements and various confessions of
      [Appellant]. The multiple and often contradictory statements and
      confessions of [Appellant] affirmed many of the conclusions
      reached by Trooper Corrigan in his expert report. [Appellant]
      confessed that the victim was first face down on the couch and
      then she moved him to the floor and then put his head on the rung
      of the chair. This is consistent with the opinion of Trooper
      Corrigan.




                                     -9-
J-S73019-17


Trial Ct. Op, filed 3/31/17, at 13.6

       Because Appellant cannot show that there is a reasonable probability

the outcome of the trial would have been different or that she received an

unfair trial, her Brady claim fails.

       Mistrial

       Even if there had been a Brady violation, we would conclude that the

trial court properly exercised its discretion in denying Appellant’s Motion for a

Mistrial.

       Our rules provide that a court may declare a mistrial “only for reasons

of manifest necessity.” Pa.R.Crim.P. 605.          Further, with respect to Brady

violations, the Pennsylvania Supreme Court has concluded:

       where there is no evidence of deliberate, bad faith overreaching
       by the prosecutor intended to provoke the defendant into seeking
       a mistrial or to deprive the defendant of a fair trial, the proper
       remedy for the Commonwealth’s failure to disclose exculpatory
       materials should be less severe than dismissal.

Commonwealth v. Burke, 781 A.2d 1136, 1146 (Pa. 2001).



____________________________________________


6 The trial court stated, without citation to the record, that the Commonwealth
“attested that no one in the Luzerne County District Attorney’s Office knew or
should have known that the fact pattern was used in a mock trial by an
investigator at the seminar.” Trial Ct. Op., filed March 31, 2017, at 14. In
Kyles, the United States Supreme Court stated that the “prosecutor has a
duty to learn of any favorable evidence known to the others acting on the
government’s behalf in the case, including the police.” Kyles v. Whitney,
514 U.S. 419, 437 (1995). As such, under Brady, the state is held
accountable for evidence known by the police, even if the information is
unknown by the prosecutor. Id. at 438.


                                          - 10 -
J-S73019-17


      Thus, the trial court “may order [the Commonwealth] to permit

discovery or inspection, may grant a continuance, or may prohibit [the

Commonwealth] from introducing evidence not disclosed, other than

testimony of the defendant, or it may enter such other order as it deems just

under the circumstances.” Pa.R.Crim.P. 573(E).

      In the instant case, the trial court provided Appellant’s counsel with an

opportunity to bring the newly-discovered impeachment evidence to the jury’s

attention. As the court noted:

      [Appellant] had the opportunity to recall Trooper Corrigan in her
      case in chief in order to reexamine him and question him on Dr.
      Reynolds’s concerns with his report. The [c]ourt also gave
      [Appellant] the opportunity to present Dr. Reynolds to be qualified
      as an expert in the matter and present him as a witness.
      [Appellant] was given ample opportunity to retain Dr. Reynolds
      through a formal agreement and present him as a witness. The
      court offered a recess of over five days, including the weekend, to
      prepare the expert. Dr. Reynolds was in the possession of Trooper
      Corrigan’s report, other documents regarding the trial and
      transcribed testimony from the trial at the time of the hearing on
      the mistrial. Dr. Reynolds attested that once he was formally
      retained he would make arrangements.

      [Appellant] chose not to recall Trooper Corrigan or Dr. Reynolds.

      Therefore, in light of the [c]ourt’s analysis of [Appellant’s]
      challenge in conjunction with the [c]ourt providing [Appellant]
      with the opportunity to present Dr. Reynolds as an expert witness,
      the [c]ourt’s denial of the motion for a mistrial must stand.

Trial Ct. Op. at 16.

      We agree with the trial court’s assessment and conclusion. Our review

of the trial transcript, including the Notes of Testimony from the hearing on

Appellant’s Motion for a Mistrial, indicates that the court did not abuse its

                                    - 11 -
J-S73019-17


discretion in declining to declare a mistrial.   Accordingly, we affirm the

Judgment of Sentence.

     Judgment of Sentence affirmed.

     Judge Strassburger joins the memorandum.

     Judge Olson concurs in result.


      Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date:05/25/18




                                   - 12 -
