J-S63020-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 YARED ABDIEL PEREZ                       :
                                          :
                    Appellant             :   No. 259 WDA 2018

                  Appeal from the Order January 23, 2018
  In the Court of Common Pleas of Erie County Criminal Division at No(s):
                         CP-25-CR-0001535-2017

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

MEMORANDUM BY MURRAY, J.:                        FILED OCTOBER 25, 2018

      Yared Abdiel Perez (Appellant) appeals from the order denying his

motion to dismiss charges based on double jeopardy. We affirm.

      The trial court detailed the facts and procedural history of this case as

follows:

         On July 17, 2017, an Information was filed against Appellant
      on six criminal counts, including: (1) Violation of the Controlled
      Substance, Drug, Device and Cosmetic Act, Possession with Intent
      to Deliver; (2) Liquefied Ammonia Gas, Precursors and Chemicals;
      (3) Operating A Methamphetamine Laboratory; (4) Violation of
      the Controlled Substance, Drug, Device and Cosmetic Act,
      Possession of Drug Paraphernalia; (5) Recklessly Endangering
      Another Person; and (6) Endangering Welfare of Children.

          A jury trial was held for the above-captioned matter before the
      [trial court] on December 12th and 13th, 2017. Appellant was the
      last witness to testify in the jury trial on December 13th, 2017.
      Assistant District Attorney Jared M. Trent, while cross-examining
      Appellant, inquired as to how Appellant learned of the charges
      against [him] in the instant matter. In response to this particular
      line of questioning, Appellant answered he learned of the charges


____________________________________
* Former Justice specially assigned to the Superior Court.
J-S63020-18


     from his “parole agent.” Specifically, the exchange between ADA
     Trent and Appellant proceeded, in pertinent part, as follows:

        Q: If you had been charged, would you have known about
        this?

        A: What?

        Q: If you were charged in this case?

        A: I was charged in this case.

        Q: How did you find out about that?

        A: When they arrested me. I got a call from my – I got a
        call from my parole agent, he told me to come in. It was
        weird because – it was weird because he never calls me,
        never. So when he called me, he told me to come there and
        that's how I found out about it.

     (See Notes of Testimony, Jury Trial, Day 2, Dec. 13, 2017, pg.
     168:14-24).

        Upon eliciting this response from Appellant, ADA Trent ceased
     cross-examining Appellant and expressed his concern with this
     [t]rial [c]ourt.    (Id. at 168:20-169:1).      Appellant, through
     Attorney Clelland, orally moved for a mistrial. (Id. at 171:11-19).
     This [t]rial [c]ourt granted Appellant’s request for a mistrial, and
     the jury was discharged. (Id. at 171:21-22).

        On January 10, 2018, Appellant filed, through Attorney
     Clelland, the present “Motion to Dismiss Information – Double
     Jeopardy” (hereinafter “Motion to Dismiss”). By Order dated
     January 11th, 2018, a hearing was scheduled on January 17 th,
     2018 for Appellant’s Motion to Dismiss. On January 17th, 2018,
     said hearing was held, and this [c]ourt heard testimony and oral
     arguments from both counsel. At said hearing, ADA Trent stated
     he did not know the answer to the particular question he asked
     Appellant during trial, i.e., that Appellant learned of the charges
     against him in the instant matter through his parole agent. (See
     Motion to Dismiss Transcript, Jan. 17, 2018, at pg. 11:11-13;
     14:9-12). Attorney Trent also indicated he did not intentionally
     provoke Appellant to elicit this particular response and argued
     such an inquiry does not “constitute either gross negligence or

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      intentional misconduct.” (Id. at 15:9). ADA Trent additionally
      conceded the line questioning of Appellant at issue constituted an
      “inartful” inquiry. (Id. at 14).

          By Opinion and Order January 22nd, 2018, this [t]rial [c]ourt
      denied Appellant’s “Motion to Dismiss Information – Double
      Jeopardy.” Therein, pursuant to Pennsylvania Rule of Criminal
      Procedure 587(B)(4) and (6), this [t]rial [c]ourt also found
      Appellant’s Motion to Dismiss on double jeopardy grounds was not
      frivolous. Thus, this [t]rial [c]ourt advised Appellant that said
      Order was “immediately appealable as a collateral order pursuant
      to Pa.R.Crim.P. 587(B)(6).” Pa.R.Crim.P. 587(B)(4) & (6). Thus,
      on February 16th, 2018, Appellant filed his interlocutory Notice of
      Appeal wherein Appellant appealed this [t]rial [c]ourt’s Order
      dated January 22, 2018. By Order dated the same day, on
      February 16th, 2018, this [t]rial [c]ourt directed Appellant to file
      his concise statement of matters complained of on appeal within
      twenty-one days of the entry of said Order. On March 6th, 2018,
      Appellant filed his Concise Statement of Matters Complain[ed] of
      on Appeal.

          On March 16th, 2018, the Superior Court of Pennsylvania issued
      a Per Curiam Order directing Attorney Clelland to show cause in
      the form of a letter why Appellant’s appeal at Docket Number 259
      WDA 2018 should not be quashed as a premature appeal from this
      [t]rial [c]ourt’s interlocutory Order dated January 22, 2018. By
      letter dated March 20th, 2018, Attorney Clelland responded to the
      Pennsylvania Superior Court’s Order. Therein, Attorney Clelland
      noted he was enclosing a copy of this [t]rial [c]ourt’s Order dated
      January 22nd, 2018, wherein this [t]rial [c]ourt advised Appellant
      of his right to appeal pursuant to Pennsylvania Rule of Criminal
      Procedure 587(B)(6).

Trial Court Opinion, 3/29/18, at 1-3.

      On appeal, Appellant presents a single issue for review:

      WHETHER THE TRIAL COURT COMMITTED AN ABUSE OF
      DISCRETION AND/OR ERROR OF LAW WHEN IT DENIED
      APPELLANT’S MOTION TO DISMISS CRIMINAL INFORMATION
      BASED ON THE FACT THAT DOUBLE JEOPARDY HAD ATTACHED?

Appellant’s Brief at 3.


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      With respect to Appellant’s double jeopardy claim, our scope and

standard of review is as follows:

      An appeal grounded in double jeopardy raises a question of
      constitutional law. This [C]ourt’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.

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

omitted).

      The prohibition against double jeopardy was designed to protect

individuals from being tried or punished more than once for the same

allegation or offense.   Commonwealth v. Ball, 146 A.3d 755, 759 (Pa.

2016). The Fifth Amendment of the United States Constitution provides, in

relevant part, that no person shall “be subject for the same offence to be twice

put in jeopardy of life or limb[.]” U.S. Const. amend. V. Likewise, Article I, §

10 of the Pennsylvania Constitution provides that “No person shall, for the

same offense, be twice put in jeopardy of life or limb.” Pa. Const. art. I, § 10;

see also Commonwealth v. Minnis, 83 A.3d 1047, 1049 n.1 (Pa. Super.

2014) (en banc).




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      In assessing a double jeopardy claim grounded in prosecutorial

misconduct, 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.

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

omitted).     “[W]hether a dismissal is warranted turns on whether the

Commonwealth intended to deprive the defendant of a fair trial. As [we have]

explained, dismissal is an appropriate remedy in such a case because a

mistrial    would   be   an   inadequate   remedy   for   systematic   intentional

prosecutorial misconduct[.]” Id. at 372.

      Additionally:

      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


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        and where demonstrable prejudice will be suffered by the
        defendant if the charges are not dismissed.

Id. (citations omitted).

        Appellant argues that the trial court erred in dismissing his double

jeopardy claim because the Commonwealth’s questioning of Appellant during

his first trial amounted to gross negligence, which he asserts is a sufficient

level of prosecutorial misconduct to bar retrial on double jeopardy grounds.

Appellant contends that “intent is of no concern when determining whether

negligent or grossly negligent behavior occurred.”                Appellant’s Brief at 8

(emphasis in original).

        Appellant’s argument is not consistent with our jurisprudence relating

to double jeopardy claims based on prosecutorial misconduct. We have stated

that “gross negligence on the part of the Commonwealth is never a sufficient

basis    upon    which     to   bar       retrial   on   double    jeopardy   grounds.”

Commonwealth v. Kearns, 70 A.3d 881, 886 (Pa. Super. 2013) (emphasis

in original). As we further explained:

        [U]nder 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.           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.

                                      *        *     *




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      The additional protections provided under Pennsylvania’s Double
      Jeopardy clause do not extend to non-intentional prosecutorial
      misconduct, but rather only bar retrial following a defendant’s
      successful motion for a mistrial when the conduct of the
      prosecutor [giving rise to the mistrial] is intentionally undertaken
      to prejudice the defendant to the point of the denial of a fair trial.

Id. at 884-86 (quotations, citations, and footnotes omitted).

      In this case, ADA Trent’s prosecutorial misconduct was not intentional.

Notably, the record reflects that immediately upon eliciting the prejudicial

response from Appellant set forth above, ADA Trent ceased questioning

Appellant and brought the issue to the attention of the trial court.           N.T.,

12/13/17, at 168-69. Thus, the trial court appropriately rejected Appellant’s

double jeopardy claim, stating:

         In the instant case, ADA Trent represented to this [t]rial [c]ourt
      that he did not know the answer to the prejudicial question which
      caused Appellant to move for a mistrial. In addition, ADA Trent
      conceded his line of questioning during Appellant’s cross-
      examination eliciting the prejudicial response was “inartful.”
      Moreover, immediately upon eliciting the prejudicial statement
      from Appellant, ADA Trent ceased his cross-examination of
      Appellant and later expressed his concern to Attorney Clelland and
      the [c]ourt outside the presence of the jury. ADA Trent stated his
      “intention was to explore the conversations with [Appellant’s]
      sister.” (See Notes of Testimony, Jury Trial, Day 2, Dec. 13, 2017,
      pg. 169:24-25). ADA Trent also admitted he did not anticipate
      Appellant’s answer. (Id. at 170:3-4). As such, this [t]rial [c]ourt
      finds and concludes no prosecutorial misconduct occurred because
      ADA Trent did not intentionally provoke Appellant to elicit this
      particular response, nor was he motivated by bad faith to harass
      or prejudice Appellant. Accordingly, this [t]rial [c]ourt properly
      concluded Double Jeopardy does not preclude the Commonwealth
      from trying Appellant for a second time and properly denied
      Appellant’s Motion to Dismiss.

Trial Court Opinion, 3/29/18, at 4-5.


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         Based on our review of the certified record, we agree with the trial

court’s conclusion that ADA Trent did not intentionally commit prosecutorial

misconduct in order to prejudice Appellant to the point of denying him a fair

trial.    See Kearns, 70 A.3d at 884-86.       Although ADA Trent’s line of

questioning was “inartful,” the record is replete with evidence that it was not

ADA Trent’s intention to prejudice Appellant and deny him a fair trial.

Accordingly, we conclude that the trial court did not abuse its discretion in

denying Appellant’s motion to dismiss the charges against him on grounds of

double jeopardy.

         Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/25/2018




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