J-S30007-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    RONALD LEE WEISS                           :
                                               :
                       Appellant               :   No. 1504 WDA 2019

                 Appeal from the Order Entered August 1, 2019
      In the Court of Common Pleas of Indiana County Criminal Division at
                        No(s): CP-32-CR-0000218-1997


BEFORE:      MURRAY, J., McLAUGHLIN, J., and STEVENS, P.J.E.*

MEMORANDUM BY MURRAY, J.:                              FILED AUGUST 21, 2020

        Ronald Lee Weiss (Appellant) appeals from the order denying his motion

to dismiss the charges against him based on double jeopardy (Jeopardy

Motion).1    After careful review, we are compelled to vacate the order and

remand for consideration of the Pennsylvania Supreme Court’s recent decision

in Commonwealth v. Johnson, 2020 Pa. LEXIS 2791, 40 EAP 2018 (May

19, 2020).



____________________________________________


*   Former Justice specially assigned to the Superior Court.

1 While an order denying a motion to dismiss on double jeopardy is technically
interlocutory, the order is appealable as of right. See Commonwealth v.
Hallman, 67 A.3d 1256, 1260 n.3 (Pa. Super. 2013); see also
Commonwealth v. Orie, 22 A.3d 1021, 1024 (Pa. 2011). Accordingly, we
have jurisdiction over this appeal.
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       The trial court summarized the relevant history of this case as follows:

             [Appellant] was convicted of first-degree murder following
       a jury trial held in July of 1997.[2] The jury returned a verdict of
       death following the penalty phase.

             [Appellant] pursued a direct appeal, and in 2001, the
       Supreme Court of Pennsylvania affirmed the judgment of
       sentence. See Commonwealth v. Weiss, 776 A.2d 958 (Pa.
       2001). [Appellant] then pursued collateral relief pursuant to the
       Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. § 9541, et seq.,
       and in 2007, the PCRA court granted [Appellant] a new trial. The
       basis for relief was a finding that the Commonwealth[, acting
       through prosecutor J. Scott Robinette, Esquire (hereinafter
       “Robinette”),] committed a Brady violation, see Brady v.
       Maryland, 373 U.S. 83 (1963). Specifically, the PCRA court
       found that [Robinette had] suppressed information regarding two
       Commonwealth witnesses, both of whom were incarcerated at the
       time of [Appellant’s] jury trial and testified regarding “jail house”
       confessions by [Appellant]. The suppressed information related
       to efforts made by the Commonwealth to aid the witnesses’
       release from incarceration.

              Subsequently, the Pennsylvania Supreme Court remanded
       the matter to the PCRA court after finding that the PCRA court
       failed to engage in part of the Brady analysis, i.e., whether the
       suppression of information that served as the basis of the Brady
       violation was material to the outcome of the case, i.e., did
       [Appellant] receive a fair trial under the circumstances. See
       Commonwealth v. Weiss, 986 A.2d 808 (Pa. 2009) (Weiss II).
       …

             [The PCRA court] issued a decision on the remanded PCRA
       matters on March 19, 2012[, where it] agreed … that the
       Commonwealth suppressed impeachment evidence in violation of
       the duties set forth in Brady. However, [the court] concluded
       that [Appellant] was not entitled to a new trial, because the other
       evidence presented to the jury was overwhelming, and, therefore,
       the jury’s verdict was worthy of every confidence. [] An appeal
____________________________________________


2 Though the facts underlying the conviction are not relevant to this appeal,
briefly, Appellant murdered 16-year-old Barbara Bruzda in 1978 and left her
body in the woods; Appellant evaded prosecution for many years.

                                           -2-
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       was taken from [this] decision, and on October 31, 2013, the
       Pennsylvania Supreme Court affirmed. [See Commonwealth v.
       Weiss, 81 A.3d 767 (Pa. 2013) (Weiss III)].

              [Appellant] then pursued federal habeas corpus relief
       pursuant to 28 U.S.C.A. § 2254. By an Opinion and Order dated
       February 14, 2018, the United States District Court granted
       [Appellant’s] request for relief. [See Weiss v. Wetzel, 2018 U.S.
       Dist. LEXIS 23741, at *44 (W.D. Pa. 2018) (Weiss Fed.).[3] The
       grant of the writ was conditional, in that it was stayed to permit
       the Commonwealth the opportunity to commence a new trial. [Id.
       at *53.] The matter was returned to this state trial court to
       conduct the new trial.

             Counsel for [Appellant thereafter] filed [the Jeopardy
       Motion], and the court scheduled and held a hearing pursuant to
       Pa.R.Crim.P. 587[(B) (governing motions to dismiss on double
       jeopardy grounds)] on January 15, 2019. The Commonwealth
       presented the testimony of [] Robinette …; no other testimony
       was presented. …

                                          Facts

            The court finds that there is no dispute as to what the
       Commonwealth did and failed to do relative to the 1997
       prosecution of [Appellant]. … It is undisputed that the
       Commonwealth engaged in the following conduct:

             [Pennsylvania State] Trooper John Tamewitz (hereinafter
       “Tamewitz”) obtained a written statement from Samuel Tribuiani
       (hereinafter “Tribuiani”) on April 2, 1996. The written statement
       indicated that [Appellant] confessed to the Bruzda murder while
       the two individuals were incarcerated together [on crimes
____________________________________________


3  The Court in Weiss Fed. held that Robinette’s misconduct deprived
Appellant of a fair trial, where Robinette suppressed impeachment evidence
regarding the two Commonwealth witnesses discussed above. See id. at *52
(stating that where “prosecutors do secret deals, suppress evidence of them,
stand by silently when the witnesses they determine to be central to their case
lie about those deals, and then cover their tracks with their own false
statements in and to a trial court, all in a way that plainly impacts the course
and outcome of the trial, both those charged with crimes and the public are
deprived of the fair trial that our Constitution commands”).

                                           -3-
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     unrelated to this case]. The written statement also indicates that
     no promises were made in exchange for Tribuiani’s testimony.

           The following day, Tribuiani contacted Tamewitz and
     requested his assistance in expediting his parole. Tribuiani was
     incarcerated at S.C.I. Huntingdon at the time.

          Tamewitz contacted … Michael Marino[, Esquire (“DA
     Marino”)], the District Attorney of Montgomery County, to inquire
     about Tribuiani’s parole and early release status.

                                ***

           Robinette [thereafter phoned] the Superintendent at S.C.I.
     Huntingdon and inquired if Tribuiani was eligible for parole or pre-
     release.

           Shortly after, … Robinette authored three letters regarding
     Tribuiani[, which he respectively sent to] Tribuiani’s sentencing
     judge, the victim-witness coordinator of Montgomery County, and
     [DA Marino]. These individuals would have the opportunity to
     provide input to the Pennsylvania Board of Probation and Parole
     [(“the Board”)] regarding Tribuiani’s release on parole.        …
     Tribuiani was blind copied on these letters.

          Robinette followed his letter … with a phone call to DA
     Marino.

                                 ***

           Kenneth Wright (hereinafter “Wright”) signed a statement
     indicating that [Appellant] had confessed to committing the
     Bruzda murder while the two were incarcerated together. This
     statement was signed in January of 1996.

           On December 13, 1996, Robinette wrote a letter to Nicholas
     Muller, the Chairman of the [Board]. Robinette stated “This office
     has promised nothing to Wright in exchange for his cooperation.
     I have explained to him that parole authority in his case rests
     exclusively with the Board …. I am writing this letter merely to
     inform the Board of Wright’s cooperation in the investigation and
     potential prosecution of a very serious crime.” The letter was
     carbon copied to Tamewitz and blind copied to Wright.


                                    -4-
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                                ***

           [Appellant subsequently filed a] motion for disclosure of
     impeachment information as to potential Commonwealth
     witnesses.” [The trial court granted the motion.] As a result, the
     Commonwealth was ordered to notify the defense of “any deals or
     understandings made between the Commonwealth and potential
     witnesses, Tribuiani and Wright.” In response to a direct inquiry
     by the court on this matter, Robinette stated “Deals, we don’t
     have any deals with them, Judge.” …

                                ***

           Following a pretrial motion hearing, on May 20, 1997,
     Robinette authored and presented a letter to [Appellant’s] counsel
     stating that the Commonwealth will only report the nature and
     extent of the witnesses’ cooperation whenever queried regarding
     the same. Robinette obviously had already written multiple letters
     on behalf of Tribuiani and Wright at the time this letter was
     submitted.

                                ***

           At the time of [Appellant’s] trial, the Commonwealth called
     Wright as a witness. Robinette specifically asked Wright “Has
     anyone made you any promises in exchange for your testimony?”
     Wright responded, “No, sir.” On cross-examination, defense
     counsel asked Wright[, regarding the prosecution,] “So they did
     something in exchange for the statement, didn’t they?” Robinette
     immediately objected and the objection was sustained by the
     court. Robinette asked Wright if he “ask[ed] for anything in
     exchange for that statement.” Wright responded “No, I did not.”

                                ***

            The Commonwealth called Tribuiani as a witness at the time
     of trial. During his testimony, Tribuiani stated that no one had
     made any promises to him in exchange for his testimony. …

           Robinette also called Tamewitz as a witness. In response to
     questioning by Robinette, Tamewitz stated that nothing was
     promised to Tribuiani in exchange for his testimony.

                                ***

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            After the conclusion of the trial, Robinette authored a letter
      to … [the] Chairman of the [Board]. … Robinette request[ed] that
      the “Board consider Mr. Tribuiani’s contribution to this most
      unusual prosecution when evaluating the propriety of granting
      him parole.”

                                  ***

             Robinette authored a letter to … the Superintendent of
      S.C.I. Graterford. … In this letter, Robinette requests [that the
      Superintendent] “consider Mr. Tribuiani’s cooperation with this
      office when commenting on the propriety of his parole.”

                                  ***

            Robinette also wrote a letter to the [Board] on behalf of
      Wright after the trial. … Robinette informed the Board of Wright’s
      assistance in the conviction of [Appellant], and requested that the
      Board “consider Mr. Wright’s contribution … when evaluating the
      propriety of granting him parole.”

Trial Court Opinion and Order, 8/1/19, at 3-13 (footnotes and emphasis

added, citations and formatting modified, some capitalization omitted).

      By order entered August 1, 2019, the trial court denied Appellant’s

Jeopardy Motion.    Appellant then filed a petition for permission to file an

interlocutory appeal, which the trial court granted after finding that the matter

was immediately appealable. Appellant filed this timely appeal, followed by a

court-ordered Pa.R.A.P. 1925(b) concise statement.

      Appellant presents one issue for our review:

      Should the Commonwealth’s withholding of the existence of
      agreements with two material witnesses and knowing
      presentation of false testimony in a capital trial bar retrial on
      double jeopardy grounds, notwithstanding the trial court’s finding
      that the Commonwealth’s misconduct was outrageous but not
      intentional as it was born from ignorance and arrogance?

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Appellant’s Brief at 5-6.

      We review Appellant’s claim mindful that an appeal based on double

jeopardy presents a question of constitutional law. Commonwealth v. Byrd,

209 A.3d 351, 353 (Pa. Super. 2019). As with all questions of pure law, our

standard of review is de novo and our scope of review is plenary. Id.

      In addressing a double jeopardy claim, we consider:

      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.

Commonwealth v. Adams, 177 A.3d 359, 371 (Pa. Super. 2017) (emphasis

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

(same).

      Further, we are mindful that:

      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.

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      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.

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

omitted).

      Instantly, we are presented with whether the trial court erred in

concluding that Robinette did not act intentionally with regard to his

communications with Wright, Tribuiani and the other state entities. The trial

court opined that Robinette’s explanations for his actions were “extremely

flawed and troubling,” “outrageous,” and the product of “arrogance and

ignorance”; nevertheless, the court found there was not enough to establish

that the misconduct was intentional, instead of potentially “inadvertent.”

See generally Trial Court Opinion and Order, 8/1/19, at 27-31; see also id.

at 27 (stating that the court “finds Robinette’s testimony to be credible in a

critical regard; this court believes that Robinette genuinely thinks that his

actions did not and do not constitute prosecutorial misconduct.”).

      However, Appellant, in his reply brief, points to our Supreme Court’s

recent decision in Johnson, supra, which was decided after Appellant filed

the underlying appeal. Appellant’s Reply Brief at 1-2. Appellant argues that

pursuant to Johnson, Robinette’s “reckless participation in prosecutorial




                                       -8-
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misconduct established by the record is sufficient to bar retrial on double

jeopardy grounds.” Id. at 1 (emphasis added).

      In Johnson, the Supreme Court expanded upon existing case law

concerning prosecutorial misconduct sufficient to bar retrial, stating:

      Under Article I, Section 10 of the Pennsylvania Constitution,
      prosecutorial overreaching sufficient to invoke double jeopardy
      protections includes misconduct which not only deprives the
      defendant of his right to a fair trial, but is undertaken recklessly,
      that is, with a conscious disregard for a substantial risk that such
      will be the result.

Johnson, 2020 Pa. LEXIS 2791, at *39 (emphasis added). The Court stated

that unlawful prosecutorial overreaching encompasses “governmental errors

that occur absent a specific intent by the prosecutor to deny the defendant his

constitutional rights.” Id. at *36; but see also id. at *40 (explaining that

“we do not suggest that all situations involving serious prosecutorial error

implicate double jeopardy under the state Charter.”).

      Here, the trial court, acting as factfinder, found insufficient evidence to

establish that Robinette acted intentionally in failing to disclose his

communications with Wright and Tribuiani. Accord Adams, 177 A.3d at 370

(explaining our deferential review of credibility determinations in the context

of a double jeopardy ruling). However, the court did not consider or address

whether Robinette’s actions constituted reckless behavior, pursuant to the

recent dictates of Johnson.




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      Accordingly, we vacate the trial court’s order denying the Jeopardy

Motion and remand for further proceedings as to whether Robinette’s conduct

was undertaken recklessly. See Johnson, 2020 Pa. LEXIS 2791, at *39.

      Order vacated.   Case remanded for further proceedings.   Jurisdiction

relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/21/2020




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