J-A16030-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DAVID HAROLD WYMARD,
Appellant No. 1297 WDA 2015
Appeal from the Order Entered July 21, 2015
In the Court of Common Pleas of Fayette County
Criminal Division at No(s): CP-26-CR-0000845-2011
BEFORE: SHOGAN, OLSON and STRASSBURGER,* JJ.
MEMORANDUM BY OLSON, J.: FILED NOVEMBER 07, 2016
Appellant, David Harold Wymard, appeals from the order entered on
July 21, 2015, denying Appellant’s motion to dismiss various narcotics and
firearms charges against him based upon double jeopardy. Upon review, we
affirm.
We briefly summarize the facts and procedural history of this case as
follows. In 2010, the Commonwealth charged Appellant with possession of a
controlled substance with the intent to deliver, possession of a controlled
substance by a person not authorized, possession of drug paraphernalia, and
persons not to possess a firearm.1 At the preliminary hearing, the arresting
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1
35 P.S. § 780-113(a)(30), 35 P.S. § 780-113(a)(16), 35 P.S.
§ 780-113(a)(32), and 18 Pa.C.S.A. § 6105, respectively.
*Retired Senior Judge assigned to the Superior Court.
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officer testified that in response to asking Appellant if there was anything
Appellant wanted to say about drugs and ammunition found during a search
of Appellant’s home, Appellant told the officer there was a firearm above his
refrigerator and said, “last time I got busted I didn’t fess up.” On November
3, 2014, the trial court commenced a jury trial. Prior to trial, the parties
agreed that eliciting testimony regarding the above statement would be
prejudicial to Appellant, because it suggested Appellant was involved in prior
criminal behavior. At trial, the officer testified and repeated the statement
at which time Appellant moved for a mistrial. The trial court granted the
motion.
On April 30, 2015, Appellant filed a motion to dismiss the charges
based upon double jeopardy, arguing that the prosecutor’s intentional
misconduct provoked Appellant into moving for a mistrial. Following a
hearing, the trial court denied relief on July 21, 2015 and this timely appeal
resulted.
Before addressing the merits of Appellant’s claim on appeal, a brief
recitation of the ensuing procedural history is necessary. We note that at
the hearing on Appellant’s motion to dismiss, the trial court failed to follow
the dictates of Pa.R.Crim.P. 587(B), established in 2013, which governs
pretrial double jeopardy motions and provides, in pertinent part:
* * *
(3) At the conclusion of the [double jeopardy] hearing, the
judge shall enter on the record a statement of findings of
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fact and conclusions of law and shall issue an order granting
or denying the motion.
(4) In a case in which the judge denies the motion, the
findings of fact shall include a specific finding as to
frivolousness.
(5) If the judge makes a finding that the motion is frivolous,
the judge shall advise the defendant on the record that a
defendant has a right to file a petition for review of that
determination pursuant to Rule of Appellate Procedure 1573
within 30 days of the order denying the motion.
(6) If the judge denies the motion but does not find it
frivolous, the judge shall advise the defendant on the record
that the denial is immediately appealable as a collateral
order.
Pa.R.Crim.P. 587(B).
Here, at the time of its ruling, the trial court made no record finding as
to the frivolousness of Appellant’s motion to dismiss. Instead, at the
conclusion of the hearing on Appellant’s motion to dismiss, the following
exchange occurred:
The [c]ourt: The prosecuting officer while testifying made
a prejudicial statement which caused a mistrial. Said
statement was not a basis for prosecutorial misconduct to
warrant the invocation of double jeopardy. The prosecuting
attorney did not intend to provoke the defendant into
moving for a mistrial nor was a question asked intentionally
undertaken by the prosecutor in bad faith to prejudice the
defendant and deny him a fair trial. The error was rectified
by the granting of a mistrial, and therefore, the Motion is
DENIED.
[The Commonwealth]: Thank you, Your Honor.
[Defense counsel]: According to the Rules, is the [c]ourt
in determining that the motion – is that it was frivolous?
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The [c]ourt: My Order stands as it stands.
* * *
[Defense counsel]: Can you provide my client with his
appellate rights regarding the motion for double jeopardy?
The [c]ourt: You may do that.
[Defense counsel]: Okay. Thank you, Your Honor. Thank
you for your time.
N.T., 7/21/2015, at 63-64.
Rule 587 requires a specific, on-the-record finding as to frivolousness.
Here, the trial court did not do so. Instead, in its written order denying
relief (filed later on the same day as the hearing), the trial court
subsequently concluded, “it is the finding of this [c]ourt that the claim of
[Appellant] was frivolous in the [m]otion to [d]ismiss.” Order, 7/21/2015,
at 1.
Rule 587 also requires an on-the-record explanation of the appeal
process, because Appellant must either file an appellate petition for review
pursuant to Pa.R.A.P. 1573 (which governs frivolous motions to dismiss) or
an appeal under Pa.R.A.P. 313 (which governs collateral orders). Here, after
failing to make a contemporaneous record determination as to frivolousness,
the trial court compounded its error by failing to advise Appellant of his
appellate rights pursuant to Pa.R.Crim.P. 587(B)(5) and (B)(6).
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Appellant filed a timely notice of appeal on August 2, 2015.2 On
August 20, 2015, Appellant subsequently filed a petition for permission to
appeal with the trial court. In his petition for permission to appeal,
Appellant requested that the trial court certify that its order of July 21, 2015
involved a controlling question of law with a substantial difference of opinion
that may be resolved by an immediate appeal. On August 21, 2015, the
trial court entered an order denying relief and stating that Appellant
“improperly filed a [n]otice of [a]ppeal without the permission of [the trial
court] to file an appeal, [therefore, the trial court] is now without jurisdiction
to consider the instant [p]etition for [p]ermission to [a]ppeal.” Order of
Court, 8/21/2015, at 1. On the same day, the trial court also filed an order
directing Appellant to file a concise statement of errors complained of on
appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied timely on
September 11, 2015. On October 7, 2015, the trial court entered a
statement in lieu of an opinion pursuant to Pa.R.A.P. 1925(a). The trial
court relied upon its previous order dated July 21, 2015 finding no
prosecutorial misconduct and determining Appellant’s motion to dismiss was
frivolous. Appellant filed an advocate’s brief with this Court.
Generally, criminal defendants have a right to appeal a trial court's
pre-trial double jeopardy determination, even though the ruling is technically
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2
According to the docket, Appellant received a copy of the written order
with the frivolousness determination before filing his notice of appeal.
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interlocutory. Commonwealth v. Orie, 22 A.3d 1021 (Pa. 2011) (per
curiam) (citation omitted). “[P]retrial orders denying double jeopardy claims
are final orders for purposes of appeal.” Orie, 22 A.3d at 1024. If a court
finds a double jeopardy claim frivolous, a petitioner may then seek review in
the Superior Court by filing a petition for review under Pa.R.A.P. 1501. Id.
at 1027.
Here, the trial court did not find the claim frivolous until it entered its
written order. Nevertheless, Appellant received the written order prior to
taking the appeal. In the interest of justice, however, we believe the
procedural missteps amounted to a breakdown of the court. Thus, we
accept Appellant’s appellate advocate’s brief despite the trial court’s failure
to adhere to Rule 587 and Appellant’s apparent confusion regarding the
proper method of appeal, because we have jurisdiction to examine the
merits of Appellant’s claim. Moreover, we direct the trial court to Rule 587
for future compliance.
We now turn to the merits of Appellant’s appeal. Appellant raises the
following issue for our review:
I. Did the trial court err in failing to grant [] Appellant’s
motion to dismiss on the basis of double jeopardy due
to prosecutorial misconduct which provoked
[Appellant] to move for a mistrial and/or which was
undertaken by the prosecutor in bad faith to prejudice
[Appellant] and/or to deny him a fair trial?
Appellant’s Brief at 4 (complete capitalization omitted).
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Appellant claims the Commonwealth committed prosecutorial
misconduct because it intentionally elicited a prejudicial statement at trial
against Appellant. Corporal Frank Konek testified that, during a search of
Appellant’s residence, Appellant told him that there was a firearm above the
refrigerator and then said, “last time I got busted I didn’t fess up.” Id. at 8.
Corporal Konek testified in the same fashion at Appellant’s preliminary
hearing and during a hearing on Appellant’s omnibus pretrial motion.
Appellant avers, “such a statement at the time of trial [] clearly indicated to
the jury that [Appellant] had been previously arrested and convicted and/or
that he was busted for some other criminal behavior in the past.” Id. Prior
to trial, counsel for Appellant and the Commonwealth agreed that “such a
statement would be prejudicial to Appellant and grounds for a mistrial[.]”
Id. at 21. However, Appellant posits, at the hearing on his motion to
dismiss, the prosecutor “admitted that he only talked in generalities to all of
the intended individuals to be called as witness[es] as to what they were to
avoid” and “did not bring the specific prior testimony to Trooper Konek[’]s
attention[.]” Id. at 25. Thus, Appellant contends Corporal Konek’s
statement resulted from “the deliberate actions and failures” by the
Commonwealth that were “designed to provoke a mistrial and were
undertaken in bad faith to prejudice or harass” Appellant, thereby denying
him his right to a fair trial. Id. at 11. Appellant further maintains “that by
the conclusion of the opening statements by both counsel, [the
Commonwealth] realized that [its] effort to achieve a conviction was already
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on a downward course with the jury appearing wholly unreceptive” to the
Commonwealth’s “case-in-chief.” Id. at 24. Defense counsel also claims
that after the trial court granted a mistrial, impaneled jurors approached him
“indicating that they thought that [the] case being offered against []
Appellant was a stretch” and did not “warrant a conviction.” Id.
We review Appellant’s claim under the following, well-established
standards:
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.
* * *
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
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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.
Thus 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. 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.
[…O]ur first inquiry is whether the prosecutor engaged in
misconduct at all. Prosecutorial misconduct occurs where
the unavoidable effect of the prosecutor's actions is to
prejudice the jury, forming in their minds fixed bias and
hostility towards the accused so as to hinder an objective
weighing of the evidence and impede the rendering of a
true verdict. If prosecutorial misconduct occurred, we then
discern whether that misconduct bars retrial.
Commonwealth v. Graham, 109 A.3d 733, 735–737 (Pa. Super. 2015)
(internal quotations, citations, and original brackets omitted).
Here, following the hearing on Appellant’s motion to dismiss on double
jeopardy grounds, the trial court determined:
The prosecuting officer while testifying made a prejudicial
statement which caused a mistrial. Said statement was not
the basis for prosecutorial misconduct to warrant the
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invocation of double jeopardy. The prosecuting attorney did
not intend to provoke [Appellant] into moving for a mistrial
nor was a question asked intentionally undertaken by the
prosecutor in bad faith to prejudice [Appellant] and deny
him a fair trial. The error was rectified by the granting of a
mistrial, and, therefore the [m]otion [to dismiss] is DENIED.
N.T., 7/21/2015, at 6.
Upon review, we agree. Corporal Konek first testified that he went to
Appellant’s residence to conduct a “knock and talk” with Appellant after
receiving neighborhood complaints about drug trafficking from that location.
N.T., 11/3/2014, at 80-89. Corporal Konek testified that Appellant
consented to a search of his residence. Id. at 92. Police recovered
marijuana, packaging supplies, scales, marijuana pipes, pills, and “some
ammunition.” Id. at 93-98. Corporal Konek stated the police issued
warnings to Appellant pursuant to Miranda v. Arizona, 384 U.S. 436
(1966) and Appellant understood his rights. Id. at 98-99. Immediately
thereafter, the following exchange occurred:
[The Commonwealth]: Now, after [Appellant waived his
Miranda rights,] did [Appellant] say anything else about
the marijuana, pills or ammunition?
[Corporal Konek]: Yes. We continued, again, to find
more ammunition in the basement. I knew that he was a
prohibited person and I asked him about the ammunition
that we had found. I’m sorry, I asked if there were any
guns in the house, and he said, yeah, above my fridge.
I said, where? He said: It’s above my fridge, last time I
got busted I didn’t fess up to it. And I walked upstairs ---
Id. at 99.
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In reviewing the foregoing line of questioning, we do not believe the
Commonwealth intended to provoke Appellant into moving for a mistrial or
intentionally attempted to subvert the court process. The Commonwealth
asked Corporal Konek an open-ended question about the search of
Appellant’s residence and Appellant’s general response to police finding
drugs and ammunition. Corporal Konek answered by testifying about the
recovery of the firearm. However, the Commonwealth did not ask a specific
question about the recovered firearm. We have previously determined that
when the Commonwealth asks a witness an open-ended question or the
witness’ testimony is not responsive to the Commonwealth’s line of
questioning, there is no intentional misconduct. See Graham, 109 A.3d at
739 (the Commonwealth did not engage in prosecutorial misconduct when
an aggravated indecent assault victim testified that she was afraid the
defendant might assault her child or nephew when asked an open-ended
question about why she waited to report the defendant). Likewise, here,
Corporal Konek volunteered the information that led to the mistrial.
Moreover, we note that Corporal Konek was the first witness called at trial.
The line of questioning took place early at trial. Thus, there is simply no
record evidence to support Appellant’s suggestion that the jury was so
unreceptive to the Commonwealth’s presentation of the case that the
Commonwealth intentionally engaged in misconduct to obtain a mistrial in
order to prosecute Appellant again. Finally, we may not consider any
discussions that defense counsel purportedly had with the impaneled jurors
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that were dismissed, as there is no evidentiary support for those factual
allegations in the certified record. “[W]e may not consider matters de hors
the record.” Commonwealth v. Greer, 866 A.2d 433, 435 (Pa. Super.
2005). Accordingly, we conclude the Commonwealth did not engage in
prosecutorial misconduct and Appellant was not entitled to relief based on
double jeopardy. For all of the reasons above, Appellant’s sole issue lacks
merit.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/7/2016
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