J-S51039-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    EVAN DAVIS                                 :
                                               :
                      Appellant                :   No. 2795 EDA 2016

              Appeal from the Judgment of Sentence July 25, 2016
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0005486-2013


BEFORE:      BOWES, SHOGAN, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                      FILED SEPTEMBER 07, 2017

        Appellant Evan Davis appeals from the judgment of sentence entered

in Philadelphia County after a jury convicted Appellant of third-degree

murder, criminal conspiracy, and related weapons charges. Appellant claims

the trial court erred in denying as frivolous his pretrial motion to bar a retrial

on double jeopardy grounds. After careful review, we affirm.

        Appellant was charged with the aforementioned offenses in connection

with the February 6, 2013 shooting death of Kiree Harris (“the victim”). On

that night, Appellant and his brother, Edwin Davis were contacted by

Michelle White, who was romantically involved with Ernest Davis, the brother

of Appellant and Edwin Davis. White told Appellant and Edwin Davis that her


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*
    Former Justice specially assigned to the Superior Court.
J-S51039-17



father, Paul White had been in a physical altercation with a man named

Omar Simmons. The Davis brothers agreed to come and fight Simmons.

      Shortly thereafter, Appellant and his friend “Hasan” arrived at White’s

home and began cleaning two semi-automatic pistols, using rubber gloves

and towels.     Edwin Davis and another unidentified individual arrived

approximately twenty minutes later. Michelle White told the Davis brothers

to “take care of some business” and directed them to the apartment complex

where Simmons lived. N.T. 12/23/13, at 14-15.

      The Davis brothers asked Richard Boyle to accompany them to

Simmons’ apartment. Boyle knocked on Simmons’ door as Simmons would

not have recognized him.      When no one answered the door, the Davis

brothers fired multiple gunshots through the door, striking the sleeping

victim, who had no involvement in the fight between Paul White and

Simmons. The victim died as a result of two gunshot wounds to the torso.

      Officers responded to reports of the shooting and investigated the

scene of the crime. The next day, Appellant was implicated in the victim’s

death as Michelle White and Richard Boyle gave statements to the police

identifying the Davis brothers as the shooters.      As a result of White’s

statement, police then investigated White’s home where they recovered four

latex gloves from a wastebasket.        The gloves were submitted to the

Criminalistics Laboratory for DNA testing.

      After Appellant, Edwin Davis, Paul White, and Michelle White were

charged in connection with the victim’s murder, Michelle White pled guilty to

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third-degree murder and conspiracy on December 23, 2013.          As a part of

this agreement, Michelle White agreed to testify against Appellant and his

co-conspirators at a joint trial.   While the trial was originally scheduled to

commence in September 2014, the case was continued twice: first, by

Appellant, on September 8, 2014, and then by Edwin Davis on June 29,

2015. The trial was then rescheduled for June 29, 2015.

      Eleven days before trial was set to begin, on June 18, 2015, the

prosecutor learned that police had recovered the latex gloves from Michelle

White’s apartment that were believed to be used by Appellant and his cohort

to clean the guns and bullets used to commit the victim’s murder.          The

prosecutor was unaware that the gloves had been recovered as this evidence

was not documented in the investigation of the murder scene by the

assigned detective, but were recorded by a different officer in a separate

crime scene report.

      The prosecutor immediately notified defense counsel of this finding

and sent her the property receipt and photographs of the gloves. On June

19, 2015, the prosecutor obtained a court order for a sample of Appellant’s

DNA to determine if the DNA testing of the gloves matched Appellant’s

sample. Three days before trial was scheduled to begin, on June 26, 2015,

the prosecutor received the laboratory report which revealed that there was

substantial likelihood that Appellant’s DNA was on the gloves.

      On June 27, 2015, Appellant filed a motion to exclude the DNA

evidence or to grant a continuance.       The trial court denied this motion,

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declining to exclude the evidence as it found the prosecutor had not

deliberately withheld the evidence. In addition, the trial court was reluctant

to grant a continuance, which would require a severance of Appellant’s case

from his co-conspirators’ trial. The prosecution opposed Appellant’s request

for a continuance as the trial court’s refusal to continue the entire joint trial

would force the Commonwealth to prosecute Appellant and his co-

defendants in separate trials.

         The trial court denied the motion for a continuance and provided

Appellant funding to obtain his own DNA expert. The trial court noted that

the Commonwealth faced the risk of having to retry Appellant a second time

if the defense expert disagreed with the DNA analysis.          Further, the trial

court indicated that if Appellant were convicted and subsequently received a

contradictory opinion from his DNA expert, he could file a motion for a new

trial.   The prosecutor agreed with this remedy, asserting that the expert

report he received was “such a conservative estimate that [he] would be

shocked if another DNA lab disagrees.” N.T. 6/29/15, at 14.

         On June 29, 2015, Appellant proceeded to a jury trial, at which the

Commonwealth presented the testimony of Boyle and Michelle White, who

admitted they witnessed Appellant and Edwin Davis commit the murder.

Marlietta Cowan also testified for the prosecution, indicating that she saw

Appellant and a cohort clean their guns and bullets while wearing latex

gloves     at   Michelle   White’s   home.    The   trial   court   permitted   the

Commonwealth to admit the DNA evidence from the latex gloves.               Bryne

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Strother, an expert in DNA analysis, had concluded that Appellant’s DNA was

found on three of the eight samples tested. At the conclusion of the trial,

the jury convicted Appellant of third-degree murder, conspiracy, and related

firearms charges.

     On August 7, 2015, Appellant filed a motion for a new trial based on

the assessment of defense DNA expert, Arthur W. Young.         After the trial

court requested and received an additional report from Young, who opined

that the DNA results were inconclusive, the trial court granted Appellant a

new trial in an order dated January 4, 2016.

     On February 18, 2016, Appellant filed a motion to dismiss the charges

and bar retrial based on double jeopardy principles. The trial court held a

hearing, at which the prosecutor testified that he was not aware that police

had recovered the gloves until June 2015, when he was preparing for trial.

He immediately informed defense counsel of this discovery, was able to

expedite the DNA testing, and sent the laboratory report to defense counsel

when it became available.

     After consideration of this testimony, the trial court denied Appellant’s

motion to dismiss as it found that the delay in obtaining the DNA testing was

attributable to human error and further noted that the prosecutor made a

good faith effort to rectify the situation once the error was discovered. As

the trial court found that the prosecutor did not attempt to deny Appellant a

fair trial, it reasoned that Appellant’s motion was frivolous.      Notes of

Testimony (N.T.), 7/18/16, at 163. Appellant did not appeal this finding of

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frivolousness by filing a Petition for Review in this Court along with a request

for a stay. See Commonwealth v. Orie, 610 Pa. 552, 22 A.3d 1021, 1027

(2011) (providing that a defendant may obtain preliminary appellate review

of a trial court’s finding that the defendant’s pretrial double jeopardy claim is

frivolous by filing a petition for review in the Superior Court along with a

request for a stay).

       Instead of seeking preliminary appellate review of the denial of his

motion to bar retrial, Appellant proceeded to trial at which a jury again

convicted Appellant of third-degree murder, conspiracy, and related weapons

charges. On the same day, the trial court sentenced Appellant to twenty to

forty years’ incarceration on the murder charges and concurrent sentences

on the remaining charges.          Both parties filed motions for reconsideration,

which the trial court denied. This timely appeal followed.

       Appellant’s sole claim on appeal is whether the trial court erred in

denying his pretrial motion to bar a retrial on double jeopardy grounds.1

Appellant invokes the protection of both the Double Jeopardy Clause of the

Fifth Amendment to the United States Constitution and Article I, Section 10


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1
  Although Appellant did not seek preliminary appellate review of the trial
court’s finding that his motion to bar a retrial on double jeopardy grounds
was frivolous, he is entitled to appellate review on the merits of his claim on
direct appeal following retrial. Commonwealth v. Brady, 510 Pa. 336,
345, 508 A.2d 286, 291 (1986), holding modified by Orie, 610 Pa. 552, 22
A.3d at 1025.




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of the Pennsylvania Constitution, which apply to bar a mistrial where the

“prosecution engages in conduct intended to provoke the defendant’s motion

for mistrial.” Commonwealth v. Minnis, 83 A.3d 1047, 1051 (Pa.Super.

2014) (citing Commonwealth v. Starks, 490 Pa. 336, 341, 416 A.2d 498,

500 (1980)).

      In addition, our Supreme Court has held the double jeopardy clause in

Article I, Section 10 of the Pennsylvania Constitution provides greater

protection than its federal counterpart, finding

      the double jeopardy clause of the Pennsylvania Constitution
      prohibits retrial of a defendant not only when prosecutorial
      misconduct is intended to provoke the defendant into moving for
      a mistrial, but also when the conduct of the prosecutor is
      intentionally undertaken to prejudice the defendant to the point
      of the denial of a fair trial.

Minnis, 83 A.3d at 1052 (quoting Commonwealth v. Martorano, 559 Pa.

533, 537, 741 A.2d 1221, 1222 (1999)).

      Appellant concedes that the trial court was correct in finding that the

prosecution did not intentionally withhold the DNA evidence and the delay in

obtaining the DNA testing was attributable to human error.       He does not

contest the trial court’s finding that the prosecution acted in good faith in

trying to rectify the situation with prompt DNA testing of the evidence.

Nevertheless, Appellant claims that it was “blatantly intentional” for the

prosecutor to contest his motion for continuance to review the DNA

evidence, “knowing full well that forcing Appellant to trial without affording

him the opportunity to consult with his own expert, was blatant error.”


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Appellant’s Brief, at 11. Moreover, Appellant claims that the Commonwealth

should not have objected to his motion for a new trial and demanded a

hearing, asserting that the jury should have been the arbiter of the

credibility of his defense expert.

      However, we do not see how the prosecutor’s disagreement with

Appellant’s legal arguments constitutes misconduct that would warrant

dismissal of the charges against Appellant.        Our Supreme Court has

emphasized that “dismissal of charges is an extreme sanction that should be

imposed sparingly… only in cases of blatant prosecutorial misconduct.”

Commonwealth v. Burke, 566 Pa. 402, 416, 781 A.2d 1136, 1144 (2001).

Further, the Supreme Court provided that:

      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.

Id. (citation omitted).

      In this case, the prosecution did not engage in misconduct but merely

contested Appellant’s legal arguments.        The prosecution objected to

Appellant’s motion for continuance as this was the third continuance request

from the defense in a joint murder trial with three defendants. As the trial



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court would not continue the cases of Appellant’s co-defendants, any

continuance would require the severance of Appellant’s case and necessitate

multiple trials.   Moreover, the prosecutor expressed his belief that it was

unlikely that another DNA expert would reach a different result than the

laboratory’s conservative analysis.

      Thus, in contesting the motion for continuance, the prosecutor chose

to proceed with the risk of having to try Appellant twice over severing

Appellant’s case from his co-defendants, which would guarantee multiple

trials. The trial court agreed with the Commonwealth and denied Appellant’s

request for a continuance, which it found unnecessary to assure that

Appellant received a fair trial. The trial court provided Appellant funding for

a defense expert to review the DNA evidence and assured Appellant he could

move for a mistrial if the retained expert reached an opinion contradicting

the laboratory report identifying Appellant’s DNA on the gloves.

      Similarly,   while   Appellant   contends     that   the   Commonwealth

“demanded” a hearing on his motion for a new trial, it was necessary for the

trial court to schedule a hearing to require Appellant to prove he was entitled

to this remedy. As the trial court found that the initial report of Appellant’s

DNA expert did not provide sufficient information to allow the trial court to

decide the motion at the hearing, the trial court ordered Appellant’s expert

to provide a supplemental report.      After reviewing this document in which

the defense expert opined that the DNA testing was “inconclusive,” the trial

court granted Appellant’s motion for a new trial.

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      Viewing the record, we reject Appellant’s claim that the prosecution

engaged in misconduct intentionally undertaken to prejudice the defendant

to the point of the denial of a fair trial. Accordingly, we conclude that the

trial court did not err in denying Appellant’s motion to bar retrial on double

jeopardy grounds.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/7/2017




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