Com. v. Carbone, C.

J-S02035-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

CHRISTOPHER JAMES CARBONE

Appellant No. 3108 EDA 2014

Appeal from the Order entered October 1, 2014
In the Court of Common Pleas of Montgomery County
Criminal Division at No: CP-46-CR-0008986-2011

BEFORE: SHOGAN, LAZARUS, and STABILE, JJ.

MEMORANDUM BY STABILE, J.: FILED AUGUST 29, 2016

Appellant, Christopher James Carbone, appeals from the order entered

on October 1, 2014 in the Court of Common Pleas of Montgomery County,

denying his motion to bar re-prosecution. In the brief filed by his counsel

pursuant to Anders v. California, 386 U.S. 738 (1969), Appellant contends

his motion was improperly denied because the prosecution purposefully

goaded the defense into moving for a mistrial by eliciting improper

comments from a prosecution witness. Appellant’s counsel concurrently filed

a petition for leave to withdraw. For the reasons that follow, we grant

counsel’s petition for leave to withdraw and affirm the October 1, 2014

order.

The trial court provided the following factual and procedural

background:
J-S02035-16

On November 23, 2011, a West Norriton Township Police Officer
attempted to perform a traffic stop of Appellant’s vehicle after
observing that Appellant was driving on two flat tires. While the
officer was requesting backup, Appellant fled from his vehicle.
The officer chased and subsequently tackled Appellant to the
ground. The officer tasered Appellant in the back but Appellant
rose to his feet and began to flee. The officer again attempted
to tackle Appellant to the ground, but saw a muzzle flash and
[heard] a gunshot ring out. When the officer eventually tackled
Appellant to the ground, a black handgun fell from Appellant’s
person. Appellant attempted to reach for this handgun and the
officer’s weapon while they were engaged in a struggle on the
ground. Other officers eventually arrived to assist and were able
to take Appellant into custody.

Authorities charged Appellant with multiple offenses, including,
inter alia, Aggravated Assault, Assault of a Law Enforcement
Officer, and Possession of a firearm. [18 Pa.C.S.A. §§ 2702,
2702.1 and 6110.2, respectively.]

On July 18, 2012, the Commonwealth filed a Motion in Limine to
Admit Evidence of [Appellant’s] Prior Conviction and Probation
Status. The Commonwealth’s Motion argued that Appellant’s
criminal trespass conviction and subsequent probation status
were admissible as evidence of Appellant’s motive. Specifically,
the Commonwealth claimed that the reason Appellant fled from
the traffic stop and later attempted to shoot the officer was
because he was carrying a gun illegally and faced significant jail
time due to his probationary status stemming from his criminal
trespass conviction. On December 10, 2013, the [c]ourt granted
the Commonwealth’s Motion and reiterated that this evidence
could only be presented for the very limited purpose of
demonstrating Appellant’s intent and motive.

On December 11, 2013, during the second day of trial, the
Commonwealth called Appellant’s probation supervisor as a
witness for the purpose of testifying that Appellant had a
previous criminal trespass conviction. During direct
examination, the probation supervisor testified that she was
supervising Appellant on “three (3) separate cases.” Appellant’s
attorney objected and, following a side-bar conference, the
[c]ourt granted Appellant’s motion for a mistrial due to possible
jury prejudice.

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On September 24, 2014[,] Appellant filed a Motion to Bar Re-
Prosecution Based on Double Jeopardy Grounds, which the
[c]ourt denied immediately preceding the scheduled re-trial on
October 1, 2014. Appellant’s counsel informed the [c]ourt that
his client intended to exercise his immediate appellate rights
with respect to the [c]ourt’s denial of his motion. Consequently,
the [c]ourt adjourned and informed Appellant that he had thirty
(30) days to file his notice of appeal. On October 23, 2014,
Appellant filed a timely notice of appeal.

Trial Court Opinion (“T.C.O.”), 7/17/15, at 1-3.

By Judgment Order entered April 25, 2015, we remanded to the trial

court for preparation of a supplemental Rule 1925(a) opinion reflecting the

trial court’s compliance with Pa.R.Crim.P. 587(B), relating to motions to

dismiss on double jeopardy grounds. In a supplemental opinion filed with

this Court on May 9, 2016, the trial court detailed its compliance with Rule

587(B) and, in particular, noted that it conducted a hearing in open court on

September 29, 2014. The trial court explained:

This [c]ourt, as well as counsel, followed Rule 587 when
disposing [Appellant’s] double jeopardy motion. This [c]ourt
heard argument on the cause for [Appellant’s] mistrial and
respective analyses of double jeopardy law. While [Appellant’s]
request for relief was found legitimate and non-frivolous, this
[c]ourt, in its analysis of relevant case law on double jeopardy,
found [Appellant] did not sufficiently demonstrate the cause for
mistrial was intentional prosecutorial misconduct. Thus,
[Appellant’s] [m]otion was denied and his immediate right to
appeal of said Order was discussed and confirmed on the record.

Trial Court Supplemental Opinion (“Supplemental Opinion”), 5/9/16, at 4

(citations and footnotes omitted). In his statement of errors complained of

filed pursuant to Pa.R.A.P. 1925(b), Appellant raised the same issue he

presents for this Court’s consideration:

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J-S02035-16

Whether the trial court improperly denied Appellant’s Motion to
Bar Retrial under the Double Jeopardy Clause because the
prosecutor purposefully goaded the defense into moving for a
mistrial by intentionally making impermissible and improper
comments thus making a retrial unfair?

Appellant’s Brief, at 4.

With regard to this Court’s jurisdiction over the appeal, the trial court,

while noting that it did not agree with the merits of Appellant’s double

jeopardy claim, conceded it was not frivolous. T.C.O., 7/17/15, at 3;

Supplemental Opinion, 5/9/16, at 1-2, 4 and, 8. Therefore, the order is

final and appealable and the matter is properly before this Court. See

Pa.R.Crim.P. 587(B)(6) (“If the judge denies the [double jeopardy] motion

but does not find it frivolous, . . . the denial is immediately appealable as a

collateral order”), see also Pa.R.A.P. 313, Note.

As an appeal grounded in double jeopardy, Appellant’s claim raises a

question of constitutional law. Therefore, our scope of review is plenary and

our standard of review is de novo. Commonwealth v. Kearns, 70 A.3d

881, 884 (Pa. Super. 2013), appeal denied, 84 A.3d 1063 (Pa. 2014). As we

recognized in Kearns:

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

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J-S02035-16

will not be disturbed on appeal if they are supported by the
record.

Id. (citations omitted).

With respect to prosecutorial conduct, our Supreme Court has

recognized that:

[T]he 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 a denial of a fair trial.

Commonwealth v. Smith, 615 A.2d 321, 325 (Pa. 1992). Further, “[an]

error by a prosecutor does not deprive a defendant of a fair trial, but ‘where

the prosecutor’s conduct changes from mere error to intentionally subverting

the court process, then a fair trial is denied.’” T.C.O., 7/17/15, at 4 (quoting

Commonwealth v. Chimiel, 777 A.2d 459, 464 (Pa. Super. 2001), appeal

denied, 788 A.2d 372 (Pa. 2001), cert denied, 535 U.S. 1059 (2002)).

As noted above, prior to Appellant’s first trial, the Commonwealth filed

a motion in limine seeking admission of Appellant’s prior conviction and

probation status. The trial court granted the motion, permitting the

evidence “for the very limited purpose of demonstrating Appellant’s intent

and motive.” T.C.O., 7/17/15, at 2. At trial, the trial court issued the

following cautionary instruction to the jury before Appellant’s probation

supervisor took the stand:

Members of the jury, concerning this witness, I need to give you
an instruction concerning the testimony you will hear. You will

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J-S02035-16

hear evidence from this witness tending to prove that
[Appellant] was previously convicted of criminal trespass and
was on supervision, meaning probation or parole, at the time of
this event.

Now, this evidence is before you for a very limited purpose, that
is, for the purpose of tending to show the natural development
of the facts here, why the events unfolded in the way that they
did, and as evidence bearing on [Appellant’s] intent and motive.

The criminal trespass conviction evidence is also relevant to the
charge of person not to possess a firearm. This evidence must
not be considered by you in any way other than for the purposes
that I’ve just stated. You must not regard this evidence as
showing [Appellant] is a person of bad character or criminal
tendencies from which you might be inclined to infer guilt.

If you find [Appellant] guilty, it must be because you are
convinced beyond a reasonable doubt that he committed the
crimes for which he is on trial and not because he was on
probation or parole or previously convicted of criminal trespass.

Notes of Testimony (N.T.), Trial, 12/11/13, at 6-8.

During the prosecutor’s direct examination of Appellant’s probation

supervisor, counsel asked a number of questions concerning the supervisor’s

duties and experience. With regard to Appellant, the supervisor testified she

was supervising Appellant in November of 2011. N.T., Trial, 12/11/13, at 8-

9. The prosecutor then asked, “What were you supervising him for?” The

supervisor replied, “At the time of this arrest, I was supervising him on three

separate cases.” Defense counsel immediately objected and moved for a

mistrial. N.T., Trial, 12/11/13, at 10.

Defense counsel reminded the trial court that the prosecution was

instructed not to ask the probation supervisor questions about anything

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J-S02035-16

other than Appellant’s criminal trespass conviction. The trial court

responded, “Well, the prosecutor did not elicit that answer directly. I mean,

he could have asked a more artful question perhaps, but it wasn’t

intentional, it wasn’t misconduct, and it wasn’t designed to cause you to ask

for a mistrial. I will grant the mistrial.” The prosecutor insisted, “Your

Honor, I specifically instructed [the probation supervisor] to only discuss

criminal trespass, no other charges that were pending.” N.T., Trial,

12/11/13, at 12-13.

In its Rule 1925(a) opinion, the trial court explained:

[A]lthough the prosecutor asked too many questions leading into
the statement prompting the mistrial, many of which were
irrelevant, there was no indication of any type of intentional
misconduct committed by the prosecutor. There is absolutely no
evidence that the prosecutor prompted the witness to refer to
Appellant’s other active cases. The only thing this testimony
demonstrates is a mishandling of questions on the part of the
prosecutor and confusion on the part of the witness. Even if this
were to rise to the level of gross negligence, Appellant is not
entitled to relief. See Kearns, supra. Further, the Judge’s
statements . . . also demonstrate that the trial court clearly did
not believe the prosecutor engaged in any intentional
misconduct. Accordingly, Appellant’s retrial is not barred on
double jeopardy grounds.

T.C.O., 7/17/15, at 9.

We may not address the merits of Appellant’s appeal without first

reviewing counsel’s request to withdraw. Commonwealth v. Rojas, 874

A.2d 638, 639 (Pa. Super. 2005). As this Court recognized in

Commonwealth v. Cartrette, 83 A.3d 1030 (Pa. Super. 2013), our

Supreme Court’s decision in Commonwealth v. Santiago, 978 A.2d 349

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(Pa. 2009), did not change the procedural requirements for requesting

withdrawal from representation under Anders. To satisfy those

requirements

Counsel must: 1) petition the court for leave to withdraw stating
that, after making a conscientious examination of the record,
counsel has determined that the appeal would be frivolous;
2) furnish a copy of the brief to the defendant; and 3) advise the
defendant that he or she has the right to retain private counsel
or raise additional arguments that the defendant deems worthy
of the court’s attention.

Cartrette, 83 A.3d at 1032 (citing Commonwealth v. Lilley, 978 A.2d

995, 997 (Pa. Super. 2009)).

Here, Appellant’s counsel filed a petition for leave to withdraw on

December 1, 2015. In the petition, appellate counsel explained that her

exhaustive review of the record and diligent research of the law led to the

conclusion that there were no non-frivolous issues to be raised on

Appellant’s behalf. In addition, counsel furnished a copy of the appellate

brief to Appellant and advised Appellant of his right to retain new counsel or

act on his own behalf to raise additional arguments or points for this Court’s

consideration. Petition for Leave of Court to Withdraw as Appellate Counsel,

12/1/14, at 2-4. We conclude counsel satisfied the procedural requirements

set forth in Anders.

Having determined counsel satisfied the procedural requirements of

Anders, we must ascertain whether the brief satisfied the substantive

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J-S02035-16

mandates prescribed in Anders, as refined in Santiago. In Santiago, our

Supreme Court announced:

[I]n the Anders brief that accompanies court-appointed
counsel's petition to withdraw, counsel must: (1) provide a
summary of the procedural history and facts, with citations to
the record; (2) refer to anything in the record that counsel
believes arguably supports the appeal; (3) set forth counsel's
conclusion that the appeal is frivolous; and (4) state counsel's
reasons for concluding that the appeal is frivolous. Counsel
should articulate the relevant facts of record, controlling case
law, and/or statutes on point that have led to the conclusion that
the appeal is frivolous.

Santiago, 978 A.2d at 361.

In her Anders brief, counsel provided a statement of the case that

includes a procedural history of the case with excerpts from and citations to

the record. Appellant’s Brief at 5-9. Counsel has satisfied the first

requirement under Santiago.

The second required element under Santiago is that the Anders brief

refer to anything in the record that counsel believes arguably supports the

appeal. In the Anders brief, counsel questioned whether the trial court

improperly denied Appellant’s motion to bar retrial on double jeopardy

grounds because the prosecutor purposefully goaded the defense into

moving for a mistrial. Counsel offered an excerpt from the trial transcript,

including the response elicited from Appellant’s probation supervisor that

culminated in the trial court’s grant of Appellant’s motion for mistrial.

Appellant’s Brief at 8. Appellant presented a survey of case law addressing

bar of a retrial on double jeopardy grounds not only when prosecutorial

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J-S02035-16

misconduct is intended to provoke a defendant to move for mistrial but also

when the misconduct is intentionally undertaken to prejudice a defendant.

Appellant’s Brief at 11-14. We conclude that counsel has satisfied the

second Santiago requirement.

Counsel also has satisfied the third element, setting forth her

conclusion that the appeal is frivolous. Appellant’s Brief at 14. Counsel

explained that a retrial is properly barred on double jeopardy grounds in

instances of egregious and continuing forms of prosecutorial misconduct.

She distinguished Appellant’s case, noting it involved a single instance of an

artlessly phrased question that led to an unintentional response and,

ultimately, resulted in a mistrial. She maintained that the prosecutor’s

conduct was neither intended to provoke Appellant into seeking a mistrial

nor intentionally undertaken to prejudice Appellant to the denial of a fair

trial. Id.1 Counsel has satisfied the fourth requirement under Santiago.

____________________________________________

1
We note that the Commonwealth submitted a letter dated November 30,
2015 in lieu of a formal brief. In its letter, the Commonwealth advised this
Court of its agreement with Appellant’s counsel that “there is no basis in
either law or fact to support [Appellant’s] appeal” and asked this Court to
affirm the order of the trial court. Commonwealth Letter in Lieu of Brief,
11/30/15, at 1.

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J-S02035-16

Having determined the procedural and substantive requirements of

Anders and Santiago are satisfied, we must conduct our own independent

review of the record to determine if the issue identified in this appeal is

wholly frivolous or if there are any other meritorious issues present in this

case. Santiago, 978 A.2d at 354 (quoting Anders, 386 U.S. at 744)

(“[T]he court—not counsel—then proceeds, after a full examination of all the

proceedings, to decide whether the case is wholly frivolous. If it so finds, it

may grant counsel’s request to withdraw.”).

Again, Appellant contends the trial court improperly denied Appellant’s

motion to bar retrial because the prosecutor purposefully goaded the

defense into moving for a mistrial. Appellant’s Brief at 4. Our independent

review confirms that the issue identified in this appeal is in fact wholly

frivolous and that there are no other meritorious issues present in this case.

Finding no error in the trial court’s ruling, we grant counsel’s request to

withdraw and affirm the denial of Appellant’s motion to bar retrial.

Counsel’s petition for leave to withdraw is granted. Order affirmed.

Case remanded for further proceedings. Jurisdiction relinquished.

Judge Lazarus joins this memorandum.

Judge Shogan concurs in the result.

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J-S02035-16

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/29/2016

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IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY, PENNSYLVANIA I:?l
CRIMINAL DIVISION t!I

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COMMONWEALTH OF PENNSYLVANIA Common Pleas Court No.: ~ :!1
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CP-46-CR-0008986-2011 ,,;1
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CHRISTOPHER JAMES CARBONE 3108 EDA 2014 c:
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SUPPLEMENTAL OPINION -..
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WEILHEIMER, J. MAY 6/l016

On October 23, 2014, Defendant/Appellant, Christopher James Carbone, appealed from

this Court's October 1, 2014 Order', denying his Motion to Bar Re-Prosecution Based on Double

Jeopardy Grounds ("Defendant's Motion") following a mistrial. For the reasons previously

given in this Court's July 17, 2015 Opinion/ and those that follow in the instant May 6, 2016

Supplemental Opinion, said Order is proper and should be affirmed.

FACTS AND PROCEDURAL HISTORY

On September 24, 2014, Defendant filed a Motion to Bar Re-Prosecution Based on

Double Jeopardy Grounds, which this Court denied on the record, in open court, at the close of

argument on September 29, 2014, immediately preceding the scheduled re-trial on October 1,

2014. Following a sidebar conference among counsel and the Honorable Gail Weilheimer,

Defense counsel informed this Court that Defendant intended to exercise his immediate appellate

rights with respect to this Court's Order denying Defendant's Motion.3 This Court confirmed

Defendant had a legitimate right to an immediate appeal and specifically found such request and

I This Court actually denied Defendant's Motion to Bar Re-Prosecution on September 29, 2014
on the record in open court, as well as entered its Order stating the same; however, said Order
was not officially docketed until October 1, 2014.
2 See Opinion, July 17, 2015 (more extensive factual and procedural history; in-depth discussion

of the relevant case law).
3
Argument Transcript 23: 17-24, September 29, 2014.

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underlying motion were not frivolous.4 On October 23, 2014, Defendant filed a timely Notice of ~:::
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Appeal. Defendant raised the following issue in his Statement of Matters Complained of on :,. ...

Appeal ("Concise Statement") pursuant to Rule 1925:

DID THE TRIAL COURT IMPROPERLY DENY DEFENDANT'S
MOTION TO BAR RETRIAL UNDER THE DOUBLE JEOPARDY
CLAUSE BECAUSE THE PROSECUTOR PURPOSEFULLY GOADED
THE DEFENSE INTO MOVING FOR A MISTRIAL BY
INTENTIONALLY MAKING IMPERMISSIBLE AND IMPROPER
COMMENTS THUS MAKING A RETRIAL UNFAIR?

(Defendant's Concise Statement); see also PA. R.A.P. l 925(b) (2014).

On July 17, 2015, this Court filed its Opinion in support of its October I, 2014 Order,

denying Defendant's Motion to Bar Re-Prosecution.' This ruling was entered in accordance with

Rule 587, as well as Superior and Supreme Court case doctrine on double jeopardy rules and

preserving a defendant's rights.6 See PA. R. CRIM. P. 587(8) (2013). On April 25, 2016, the

Superior Court filed its Non-Precedential Decision, remanding to this Court to file this May 2,

2016 Supplemental Opinion pursuant to Rule 1925. See Pa. R.A.P. 1925(a) (2014).

Specifically, the Superior Court requested this Court to illustrate its adherence to the governing

procedure for disposing of double jeopardy motions pursuant to Rule 587. See PA. R. CRIM. P.

587(8) (2013).

4
Id. at24:8-10, 15-18.
5
See Opinion at 4, July 17, 2015.
6
Argument Transcript 21 :9-16; 22:4-8 (mistrial was not a result of prosecutorial misconduct),
September 29, 2014.

2
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DISCUSSION

I. With respect to appeals based upon double jeopardy grounds, the Superior
., .. ,,
Court applies a de novo standard of review to legal conclusions reached by the ·\,:;

trial courts, and a deferential standard to any factual findings.

This Court, in its initial July 17, 2015 Opinion, previously cited the law respecting the :n

standard of review that is to be applied to its disposition of Defendant's Motion.7 For

convenience purposes, the standard has been reproduced as follows:

An appeal grounded in double jeopardy raises a question of constitutional
law. [The Superior Court'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. Kearns, 70 A.3d 881, 884 (Pa. Super. 2013), appeal denied, 84 A.3d 1063

(Pa. 2014) (internal citations and quotations omitted).

Defendant's instant appeal of this Court's denial of his Motion to Bar Re-Prosecution

clearly implicates constitutional concerns. However, the outcome of Defendant's appeal

depends on the question of whether the mistrial was caused by intentional prosecutorial

misconduct, which is a question of fact. This Court clearly stated on the record during the

September 29, 2014 Argument its finding there was no bad faith intention on behalf of the

prosecution to force mistrial in order to re-prosecute Defendant.8 Rather, it was the parole

officer witness' mistake of revealing inadmissible prior bad acts of the Defendant that resulted in

7
See Opinion at 4, July 17, 2015.
8
Argument Transcript 21 :9-16, September 29, 2014.

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mistrial.9 Therefore, this Court's disposition of Defendant's Motion rests largely upon such

factual findings and the Superior Court precedent indicates greater deference will be afforded to

the same.

II. This Court, after hearing argument on September 29, 2014 denied said on
Defendant's Motion to Bar Re-Prosecution on Double Jeopardy Grounds in
accordance with Rule 587.

This Court, as well as counsel, followed Rule 587 when disposing Defendant's double

jeopardy motion. See PA. R. CRIM. P. 587(B) (2013). This Court heard argument on the cause

for Defendant's mistrial and respective analyses of double jeopardy law.10 While Defendant's

request for relief was found legitimate and non-frivolous, this Court, in its analysis of relevant

case law on double jeopardy, found Defendant did not sufficiently demonstrate the cause for

mistrial was intentional prosecutorial misconduct. 11 See Commonwealth v. Chimiel, 777 A.2d

459, 464 (Pa. Super. 2001), appeal denied, 788 A.2d 372 (Pa. 2001), cert denied, 152 L.Ed.2d

829 (US 2002) (prosecutorial error does not deprive fair trial); Commonwealth v. Kearns, 70

A.3d 881, 884 (Pa. Super. 2013), appeal denied, 84 A.3d 1063 (Pa. 2014) (prosecutorial gross

negligence insufficient to bar retrial). Thus, Defendant's Motion was denied and his immediate

right to appeal of said Order was discussed and confirmed on the record.12

9 Id.
10
Id. at 1-16 (argument by Perry de Marco, Jr., Esq., counsel for defense); 16-19 (argument by
Matthew Quigg, Esq., counsel for the Commonwealth).
11
Id. at 21 :9-16; 22:4-8 (mistrial was not a result of prosecutorial misconduct); 24: 15-18 (finding
Defendant's claim non-frivolous and legitimate).
12
Id at 23: 17-24 (Mr. de Marco stated Defendant's intention of exercising his immediate appeal
rights with respect to this Court's disposition of the Motion to Bar Re-Prosecution); 24:8-10 (this
Court confirming Defendant's right to immediate appeal).

4
 -·. . .-....

"A motion to dismiss on double jeopardy grounds shall state specifically and with
particularity tlte basis for the claim of double jeopardy and the facts that support
them." PA. R. CRIM. P. 587(B)(l).

Defendant's Motion concisely presented the procedural and factual history in the instant

matter that compelled the Honorable William Carpenter to declare the December 11, 2013
,...
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13,
proceeding as a mistrial and used said history in conjunction with the relevant double jeopardy

law14 to support Defendant's request for relief to bar the Commonwealth from re-prosecution.

Defendant's essential argument for barring re-trial is that counsel for the Commonwealth

intentionally elicited inadmissible witness testimony regarding Defendant's prior bad acts.

Specifically, Defendant alleged, "[tjhe Honorable William Carpenter would not allow any other

convictions to be discussed and cautioned the Commonwealth to avoid this issue[,]" yet during

the December jury trial the Commonwealth attorney, "intentionally confused the witness" to

reveal the prohibited testimony.15 Defendant also reserved the opportunity to supplement with

other case law prior to the September 29, 2014 Argument.16

"A hearing on the motion shall be scheduled in accordance with Rule 577 (Procedures
Following Filing of Motion). The hearing shall be conducted on the record in open
court." PA. R. CRIM. P. 587(B)(2).
This Court promptly disposed of Defendant's Motion on the record in open court on

September 29, 2014, consistent with Rules 577 and 587. See PA. R. CRIM. P. 577 (2004); 587(B)

(20 I3). A hearing on a motion to dismiss on double jeopardy grounds is mandatory and must be

conducted on the record in open court. PA. R. CRIM. P. 577(A)(2); 587(8)(2). Accordingly, the

Commonwealth is guaranteed the opportunity to respond to such a motion, either by written or

oral response. PA. R. CRIM. P. 577(A)(l). After hearing arguments by counsel, the judge is

13
Defendant's Motion to Bar Re-Prosecution on Double Jeopardy Grounds 111-5, September
24, 2014.
14
Id at, 6.
15
Id at 113-4.
16 /d. at 17.

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required to promptly dispose of such a motion, which entails, inter alia, findings of fact being

made on the record. Id.

On August 4, 2014, this Court entered an Order following mistrial, scheduling the matter

for a new jury trial on September 29, 201417, which was docketed and served to the parties

pursuant to Rule 114. See PA. R. CRIM. P. 114 (2011). On September 24, 2014, four days before

the scheduled jury trial, Defendant filed his Motion to Bar Re-Prosecution.18 So, instead of

proceeding to trial on September 29, this Court heard argument on Defendant's Motion and gave

each counsel the opportunity, entitled to them by Rules 577 and 587, to carefully present their

line of reasoning for denying or granting the Defendant relief.19 See PA. R. CRIM. P. 577; 587(B).

Subsequently, this Court promptly denied Defendant's Motion on the record in open court'" and

via written order on the docket.21

"At the conclusion of the hearing, the judge shall enter on the record a statement of
findings of fact and conclusions of law and shall issue an order granting or denying
the motion." PA. R. CRIM. P. 587(8)(3).

At the conclusion of the September 29, 2014 Argument, the Honorable Gail Weilheimer

denied Defendant's Motion after explaining the standard necessary for double jeopardy to

attach22; finding no bad faith existed on behalf of the prosecution to cause a mistrial "; and

concluding the relevant legal authority supports such a finding.24 This Court found credible the

Commonwealth's explanation that the prohibited witness testimony was inadvertently elicited

through standard questions about the witness' background as a parole officer, meant only to

17
Order, August 4, 2014 by the Honorable William Carpenter.
18Defendant's Motion to Bar Re-Prosecution Based on Double Jeopardy Grounds, September
24, 2014.
19
Argument Transcript 1-16 (Mr. DeMarco); 16-19 (Mr. Quigg), September 29, 2014.
20
Id. at 21:17~22.
21
Order, October 1, 2014 by the Honorable Gail Weilheimer.
22
Argument Transcript 20, September 29, 2014.
23
Id. at21:9-16.
24
Id. at 21:9-16; 22:4-8.

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assist the jury in both understanding the relevance of her testimony and determining her

credibility.25 The credibility of said explanation was bolstered by the Commonwealth's

concession of Defendant's right to a mistrial, which was consistent between the time of mistrial
,,....
and during the argument on Defendant's Motion.26 Further, this Court found the grant of mistrial

was adequate to protect Defendant's rights.27

"In a case in which the judge denies the motion, the findings of fact shall include a
specificfinding as to frivolousness." PA. R. CRIM. P. 587(8)(4).

This Court explicitly stated upon the record during the September 29, 2015 Argument,

though Defendant's Motion was being denied, his request for relief to bar re-prosecution is not

frivolous.28 Defendant's arguments were reasonable, such that the Honorable William Carpenter

gave clear, pre-cautionary instructions to the Commonwealth's counsel in order to prevent the

jury from hearing inadmissible evidence of Defendant's prior bad acts while questioning the

parole officer witness.29 This Court also agreed with Defendant that the Commonwealth's

attorney could have more artfully crafted his questions so that the improper testimony had not
30
been elicited. However, these arguments do not rise to the level of intentional misconduct

necessary to trigger the double jeopardy rule under the relevant law.31 Compare Commonwealth

v. Smith, 615 A.2d 321, 325 (Pa. 1992) (intended prosecutorial misconduct provoking mistrial

and prejudicing defendant). Defendant's contentions are supportive of his right to have a

mistrial declared, which was already granted in this matter to ensure Defendant indeed has a fair

trial by jury, but the right to bar re-prosecution does not likewise attach. Thus, this Court

25
Id. at 16-19 (Mr. Quigg); 21:9-16; 22:4-8; see also N.T. Trial, December 11, 2013 (line of
questioning by Mr. Quigg to probation officer).
26
Id. at 16-19 (Mr. Quigg).
d at 21:17-22.
27 ta.
28 l.d at24.15-18.
.
29
Id. at 16-19 (Mr. Quigg); 21 :9-16.
30
Id at 21:9-16; see also N.T. Trial, December 11, 2013 (Honorable William Carpenter).
31
/d. at21:9-16.

7
 {,>
('I

..~··'
!i:,

expressed that Defendant's Motion, as well as his intent to immediately appeal the denial thereof,
,..;.;

'•.
is not frivolous.32 ·~ ,,·

"If the judge denies the motion but does not find it frivolous, the judge shall advise the ,.,;:
Defendant 011 the record that the denial is immediately appealable as a collateral ii!.,
order." PA. R. CRIM. P. 587(8)(6). !'.f'i

Following this Court's analysis supporting the denial of Defendant's Motion, the

Honorable Gail Weilheimer noted a jury was ready, as the original scheduling contemplated a

jury trial, making it possible to proceed to trial on the same day Defendant's Motion was

denied.33 At that time, counsel for Defendant requested a sidebar conference, which was then

held to further discuss Defendant's appellate rights and the significance of a frivolity finding

thereon.34 Afterward, counsel for Defendant respectfully informed this Court of Defendant's

intent to file an immediate appeal of the order denying Defendant's Motion.35 The Honorable

Gail Weilheimer confirmed Defendant's right and intent to appeal, specified on the record that

Defendant's claim was not frivolous, and canceled the jury.

32
Id. at 24:15-18.
33
Id at 22:11-12.
34 Id.
35
Id. at 23: 17-24.

8
 CONCLUSION

Wherefore, based upon the foregoing and the legal analysis in this Court's July 17, 2015

Opinion, the decision to deny Defendant's Motion was proper and should be affirmed.
:•"J
.:.:1

BY THE COURT:

GAIL WEILHEIMER, J.

Copies mailed on May q , 2016:
Clerk of Courts
Jessie King, Esquire (District Attorney's Office)
Public Defender's Office
Christopher Carbone (MCCF)

Karen Copestick, Judicial Secretary

9