J-A01038-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
JAWAYNE K. BROWN
Appellee No. 3014 EDA 2014
Appeal from the Order Entered October 9, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0102174-2005
CP-51-CR-0609071-2006
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
RICHARD BROWN
Appellee No. 3046 EDA 2014
Appeal from the Order Entered October 9, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0102173-2005
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellant
v.
AQUIL BOND
Appellee No. 3054 EDA 2014
J-A01038-16
Appeal from the Order Entered October 9, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0102171-2005
BEFORE: LAZARUS, J., OTT, J., and STEVENS, P.J.E.*
DISSENTING MEMORANDUM BY STEVENS, P.J.E.: FILED JUNE 06, 2016
In this case involving three torture-murderers, Appellees received a
new trial, which was an appropriate remedy. I respectfully dissent from the
Majority’s decision to bar retrial, and I would not allow Appellees to escape
prosecution.
The dispositive issue herein invokes the protections afforded by the
Double Jeopardy Clause of the Fifth Amendment to the United States
Constitution as well as Article I, Section 10 of the Pennsylvania Constitution.
Our Supreme Court has determined the Double Jeopardy Clause of the
Pennsylvania constitution provides a criminal defendant with greater
protection than its federal counterpart in that it prohibits retrial of a
defendant not only when prosecutorial misconduct is intended to provoke
him or her to move 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.” Commonwealth v. Smith, 532 Pa. 177,
615 A.2d 321, 325 (1992). A review of the record discloses the prosecutor’s
*Former Justice specially assigned to the Superior Court.
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conduct herein was not intended to deprive Appellees of their constitutional
right to a fair trial, for it is not clear that the district attorney’s actions
constituted a clear intent to subvert the court process. See Commonwealth
v. Chmiel, 777 A.2d 459, 464 (Pa.Super. 2001). Therefore, the trial court
erred when it found double jeopardy bars the retrial of Appellees.
The prosecutor posed three questions to ADA McCann regarding the
manner in which he, as Chief of the Homicide Unit, made plea deals with
potential witnesses. The Commonwealth represents in its brief that the
prosecutor’s queries were in response to the opening statement of counsel
for defendant Jawyne Brown who excoriated the Commonwealth for entering
into a plea agreement with Smithwick and specifically stated the government
bought his story “hook, line and sinker.” Consolidated Brief for Appellant at
11 (citing N.T. 7/14/06, at 74-75).
While his choice of questions may have been inappropriate in light of
his indication prior to questioning ADA McCann that he would not be eliciting
testimony regarding Smithwick’s credibility, the prosecutor did not continue
to pursue this line of questioning following the objections of defense counsel,
and his three queries remained unanswered. Indeed, the trial court denied
defense counsels’ contemporaneous motion for a mistrial on the basis of
prosecutorial misconduct. In my view, any impropriety that may have
resulted from the prosecutor’s questioning of Smithwick was properly
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remedied by this Court on direct appeal when we granted Appellees a new
trial based upon that prosecutorial misconduct.
Moreover, the prosecutor clearly misspoke during his closing when he
referenced Smithwick’s involvement in solving five additional murders not in
evidence in addition to the two to which he had pled guilty. Indeed, his
continuing to reference “multiple” as opposed to “seven” after objection was
improper. However, such representations were not so intentionally
egregious or pervasive so as to support a conclusion that double jeopardy
bars the retrial of Appellees under Commonwealth v. Smith, 615 A.2d 321
(Pa. 1992) and its progeny. In this regard, the Commonwealth explained
the statements of defense counsel in their respective closing arguments
questioning the veracity of Smithwick and the gullibility of the
Commonwealth in offering him a pea deal prompted such assertions from
the prosecutor. See Consolidated Brief for Appellant at 13 (citations
omitted). Furthermore, the jury was immediately provided with a curative
instruction that there had been no record evidence Smithwick helped to
solve seven, unresolved murders, and the trial court generally instructed the
jury, inter alia, it is the sole arbiter of the evidence and that arguments of
counsel are not evidence. N.T. trial, 7/14/05, at 108-152.
Even viewing the prosecutor’s behavior as an intentional attempt to
bolster the credibility of Smithwick, such inappropriate conduct under the
facts herein is not akin to that which has been deemed worthy of depriving
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defendants of a fair trial and barring retrial on double jeopardy grounds. In
my view, the prosecutor’s brief questioning of a witness and reference to
additional matters about which Smithwick provided authorities information
during closing argument do not equate to the Commonwealth’s intentionally
failing to disclose evidence material to the defendant’s case in Smith, or the
blatant and disrespectful behavior directed at the trial court and fabrication
of evidence in Commonwealth v. Martorano, 741 A.2d 1221 (Pa. 1999).
Indeed, as this Court has recognized:
Prosecutorial misconduct includes actions intentionally designed
to provoke the defendant into moving for a mistrial or conduct
by the prosecution intentionally undertaken to prejudice the
defendant to the point where he has been denied a fair trial. The
double jeopardy clause of the Pennsylvania Constitution prohibits
retrial of a defendant subjected to the kind of prosecutorial
misconduct intended to subvert a defendant's constitutional
rights. However, Smith did not create a per se bar to retrial in
all cases of intentional prosecutorial overreaching. Rather, the
Smith Court primarily was concerned with prosecution tactics,
which actually were designed to demean or subvert the truth
seeking process. The Smith standard precludes retrial where the
prosecutor's conduct evidences intent to so prejudice the
defendant as to deny him a fair trial. A fair trial, of course is not
a perfect trial. Errors can and do occur. That is why our judicial
system provides for appellate review to rectify such errors.
However, where the prosecutor's conduct changes from mere
error to intentionally subverting the court process, then a fair
trial is denied. A fair trial is not simply a lofty goal, it is a
constitutional mandate, ... [and w]here that constitutional
mandate is ignored by the Commonwealth, we cannot simply
turn a blind eye and give the Commonwealth another
opportunity.
Commonwealth v. Chmiel, 777 A.2d 459, 463–464 (Pa.Super. 2001)
(citations and quotation marks omitted).
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Upon a review of the record herein, I would not find the prosecutor’s
behavior to rise to the level of misconduct that would bar retrial. As such, I
would reverse the Orders of the trial court and remand for retrial.
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