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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RICHARD KRISTA :
:
Appellant : No. 43 WDA 2018
Appeal from the Order December 8, 2017
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0007547-2012
BEFORE: BOWES, J., SHOGAN, J., and STABILE, J.
MEMORANDUM BY SHOGAN, J.: FILED FEBRUARY 15, 2019
Appellant, Richard Krista, appeals from the order denying his motion to
bar retrial and dismiss charges. We affirm.
Appellant was charged with two counts of homicide pertaining to his
involvement in the shooting of two men, which took place on May 11, 2012,
behind a housing project in West Mifflin. Appellant’s first trial, which
concluded on October 10, 2013, ended in a mistrial due to a hung jury. His
second trial also ended in a mistrial on January 23, 2014, due to a hung jury.
Appellant was tried a third time. However, during defense counsel’s cross-
examination of a police detective, the Commonwealth objected to a series of
questions and suggested that Appellant can take the witness stand and explain
what happened on the night in question. Appellant moved for a mistrial, and
the trial court gave a curative instruction the following day. On June 5, 2014,
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at the conclusion of the trial, Appellant was convicted of two counts of first-
degree murder. On July 29, 2014, Appellant was sentenced to serve two
consecutive terms of life imprisonment without parole. Appellant then filed a
direct appeal. On August 9, 2016, this Court vacated Appellant’s judgment of
sentence and remanded for a new trial after determining the prosecutor
impermissibly commented on Appellant’s decision not to testify, in violation of
Appellant’s Fifth Amendment rights, and the misconduct was not rendered
harmless by the circumstances under which it was made, or by the trial court’s
delayed curative instruction. Commonwealth v. Krista, 156 A.3d 332, 174
WDA 2015 (Pa. Super. 2016) (unpublished memorandum at 26).
Upon remand, Appellant filed a motion to bar retrial and dismiss the
charges. The trial court held a hearing and denied the motion on December
8, 2017. Pursuant to Pa.R.Crim.P. 587(b)(4), the trial court stated in its order
that Appellant’s motion was not frivolous. This timely interlocutory appeal
followed. Both Appellant and the trial court have complied with Pa.R.A.P.
1925.
Appellant presents the following issues for our review:
I. Did the Prosecutor Intentionally Engage in Egregious Misconduct
to Deprive Appellant of his Right to a Fair Trial When, Knowing
Appellant Was Not Going to Testify in his Defense, the Prosecutor
Impermissibly Commented on Appellant’s Silence by Challenging
Him to “Explain” Himself to the Jury on a Critical Point of
Contention, Such that Double Jeopardy Bars a Fourth Trial in this
Case?
II. Whether this Court Should Bar Retrial and Dismiss the Charges
Based upon Principles of Fundamental Fairness?
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Appellant’s Brief at 5.
Appellant first argues that principles of double jeopardy bar a fourth trial
in this matter. Appellant’s Brief at 23-40. Appellant asserts the prosecutor
engaged in misconduct in an attempt to strip Appellant of his right to remain
silent and to deprive him of a fair trial, claiming that the comment challenged
the presumption of innocence protected under the Pennsylvania and United
States Constitutions. Appellant notes that the prosecutor was aware that
Appellant chose to exercise his right to remain silent at his third trial.
Appellant contends that the intentional comment regarding Appellant’s silence
exploited the prosecutor’s knowledge to secure a conviction.
Appellant’s issue 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.1 As such, our
scope and standard of review are 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.
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1 The Double Jeopardy Clause of the Fifth Amendment provides that no person
shall “be subject for the same offense to be twice put in jeopardy of life or
limb.” Similarly, Article I, Section 10 of the Pennsylvania Constitution states
in relevant part, “No person shall, for the same offense, be twice put in
jeopardy of life or limb[.]”
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Commonwealth v. Vargas, 947 A.2d 777, 780 (Pa. Super. 2008) (citations
omitted).
“Double jeopardy, as it relates to prosecutorial misconduct, will attach
where the prosecutorial misconduct is calculated to trigger a mistrial.”
Commonwealth v. Diehl, 615 A.2d 690, 693 (Pa. 1992). We consider the
following in addressing double jeopardy claims:
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. Graham, 109 A.3d 733, 736 (Pa. Super. 2015)
(quotation marks, brackets, and citations omitted).
As our Supreme Court expressed in Commonwealth v. Smith, 615
A.2d 321 (Pa. 1980):
[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 the denial of a fair trial.
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Smith, 615 A.2d at 325 (emphases added). Therefore, “whether a dismissal
is warranted turns on whether the Commonwealth intended to deprive the
defendant of a fair trial.” Commonwealth v. Adams, 177 A.3d 359, 372
(Pa. Super. 2017).
As the Court in [Commonwealth v.] Graham[, 109 A.3d 733
(Pa. Super. 2015),] explained, dismissal is an appropriate remedy
in such a case because a mistrial would be an inadequate remedy
for systematic intentional prosecutorial misconduct:
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.”
Graham, 109 A.3d at 736 (quoting Commonwealth v. Kearns,
70 A.3d 881, 884-85 (Pa. Super. 2013), appeal denied, 84 A.3d
1063 (Pa. 2014)). On the other hand, as our Supreme Court also
has stated:
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.
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[Commonwealth v.] Burke, 781 A.2d [1136,] 1144 [(Pa. 2001)]
(quoting Commonwealth v. Shaffer, 712 A.2d 749, 752 (Pa.
1998)).
Adams, 177 A.3d at 372.
As we explained in Burke:
An example of egregious prosecutorial misconduct which has been
deemed sufficient to warrant dismissal may be found in Smith.
In Smith, the Commonwealth deliberately withheld from a capital
defendant: (1) the existence of an agreement with its chief
witness pursuant to which he received lenient treatment at
sentencing on unrelated charges in exchange for his testimony,
and (2) material, exculpatory physical evidence that it had
discovered mid-trial. The physical evidence consisted of grains of
sand that were found between the toes of the murder victim at
her autopsy. The sand was consistent with Smith’s defense that
the crime had been committed in Cape May, New Jersey, by
others, and not by him in Pennsylvania, as the Commonwealth
had alleged. At trial, when a Pennsylvania state trooper testified
on cross-examination that granular particles which looked like
sand had been removed from the victim’s body, the
Commonwealth implied that [the trooper] had fabricated his
testimony and the trial prosecutor recommended to his superior
that he investigate the feasibility of prosecuting the state trooper
for perjury. While the trial was still in progress, the state police
discovered the adhesive “lifters” that had been used to remove
and retain the sand from the victim’s feet. The Commonwealth,
however, failed to disclose this evidence and, indeed, continued
to suppress the evidence for over two years while the case was on
direct appeal to this Court. In light of this deliberate, bad faith
failure to disclose potentially exculpatory evidence, this Court
discharged Smith under the double jeopardy clause of the
Pennsylvania Constitution, opining that “it would be hard to
imagine more egregious prosecutorial tactics.” [Smith,] … 615
A.2d at 323.
On the other hand, a mere finding of willful prosecutorial
misconduct will not necessarily warrant dismissal of charges. For
example, in Commonwealth v. Moose, … 602 A.2d 1265 ([Pa.]
1992), [the Pennsylvania Supreme] Court found that the
prosecutor’s failure to inform defense counsel of a witness’s police
statement which contained incriminating admissions allegedly
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made by the defendant amounted to a “willful violation of Rule
305.” Id. at … 1274. The Court held that “the district attorney’s
conduct raised significant ethical concerns” and referred the
matter to the Disciplinary Board for its consideration. Id. … at
1274 n.8 & 1276 n.12. Nonetheless, the Court did not dismiss the
charges against Moose, but rather remanded the matter for a new
trial. Id. … at 1276.
Burke, 781 A.2d at 1144-1145.
The above language from Burke reflects a consistent approach in this
Commonwealth that retrial should be barred when the prosecutor’s
misconduct is an act of deliberate overreaching and not an isolated incident.
See, e.g., Commonwealth v. Martorano, 741 A.2d 1221, 1223 (Pa. 1999)
(retrial was barred where the “prosecutor acted in bad faith throughout the
trial, consistently making reference to evidence that the trial court had ruled
inadmissible, continually defying the trial court’s rulings on objections,” and
repeatedly insisting that there was physical evidence that the prosecutor knew
did not exist); Commonwealth v. Anderson, 38 A.3d 828 (Pa. Super. 2011)
(retrial was barred where prosecutor engaged in a pattern of pervasive
misconduct that culminated in a meeting during which the prosecutor coached
the victim-witness, a pattern that demonstrated the prosecutor intentionally
acted to prejudice the defendant).
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Our review of the certified record reveals that, at Appellant’s third trial
in this matter, the following transpired during defense counsel’s cross-
examination of Detective Patrick Kinavey:2
Q. Detective Kinavey, this [crime] happened on May 11, 2012;
correct?
A. That is correct.
Q. And that was a Friday night; correct?
A. Yes.
Q. So one day later was Saturday. Sunday, two days. Monday,
three days. Correct?
A. That is correct.
Q. You said it was six days. That’s when you recall me having
contacted Detective Foley and turned [Appellant] in upon learning
that there was a warrant for him? You recall that; don’t you?
[Prosecutor]: Objection, Your Honor. [Defense
Counsel] is testifying.
[Defense Counsel]: I’m asking.
[Prosecutor]: If [Appellant] wants to take the stand
and explain what happened, he can.
[Trial Court]: Gentlemen, approach.
N.T., 5/28/14-6/5/14 (Vol. I), at 312. The record does not indicate that the
comment was directed to the jury, but rather was a statement made to the
trial court following the prosecutor’s objection. Moreover, the record does not
____________________________________________
2 It is undisputed that defense counsel negotiated Appellant’s eventual
surrender to the police. The surrender occurred six days after the murder.
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reflect, and Appellant does not assert, that the prosecutor made any additional
references to Appellant’s silence.
With regard to Appellant’s double jeopardy claim and whether the
prosecutor’s comment should bar retrial, the trial court specifically stated in
its written opinion: “Following a hearing [to bar retrial], [the trial c]ourt found
no evidence that the prosecutor’s statement, while certainly egregious, was
intended to deny a fair trial.” Trial Court Opinion, 3/6/18, at 5.
At the completion of the hearing on Appellant’s motion, the trial court
made the following pronouncement:
With regard to my reading of the case law and the arguments in
this case, the statement of Judge Williams regarding his
understanding and the statements made by the Superior Court in
their opinion, I would deny the motion, and find specifically that
there is no evidence that the prosecutor’s conduct was
intended to deny a fair trial.
And I cite specifically to the guidelines for bad faith that
have been set forth in some of the case law. The Superior Court
indicated that while the statement was not a fair response to
misconduct on the defense counsel’s part, it was a single incident,
no subsequent attempts by the prosecutor to exploit the
Appella[nt]’s silence and the comment did arise in the context of
a discussion with the Judge and opposing counsel, not a direct
address to the jury, such as during opening or closing arguments.
That’s contained on Page 19 of the Superior Court’s opinion.
***
So those comments, as well as Judge Williams’ comments,
and my reading of the case law and circumstances in this case,
the fact that the jury then did convict, and there is nothing to
indicate that the Commonwealth believed that their case was
going poorly at that moment, and the fact that the Superior Court
actually took a good deal of time and consideration in addressing
whether or not a curative instruction, if issued promptly, may, in
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fact, have cured the prejudice, but because of the great delay in
issuing the curative instruction, that did weigh in their
determination that the curative instruction, under the
circumstances of this case, was too late to preclude possible
prejudice.
***
I do think that the tensions were high; the parties and
counsel were, both of them at that point, let’s say, pushing each
other’s buttons, and while it was not a proper response, it
was not a response calculated to create a mistrial or deny
a fair trial, but rather an improper statement made out of
frustration with defense counsel’s questioning.
I cannot find, despite the clear violation of
[Appellant’s] rights, that the prosecutor intentionally
undertook to make the statement to deny a fair trial in this
case.
N.T., 12/8/17, at 22-25 (emphases added).
Likewise, upon review of the certified record, we are constrained to
conclude that there is insufficient evidence to demonstrate that the prosecutor
made the statement with the intention of provoking a mistrial. The
prosecutor’s conduct in making a single statement does not approach that of
the deliberate, bad faith, prosecutorial misconduct that warrants dismissal of
charges under Smith. There is no evidence of deliberate overreaching by the
Commonwealth. Although Appellant offers speculation regarding the
prosecutor’s motives in making the statement, there is no evidence supporting
his assertions. Hence, the error in this case does not approach the egregious
and intentional nature of the conduct required to bar a retrial. Accordingly,
Appellant’s claim fails.
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Appellant also argues that retrial in this matter should be barred in order
to protect and enforce fundamental fairness. Appellant’s Brief at 40-42.
Appellant contends that, because his first two trials ended in hung juries,
retrial should be prohibited and the charges dismissed. Id. at 42.
In support of his argument, Appellant cites two federal district court
cases and two decisions issued by supreme courts of two of our sister states.
United States v. Ingram, 412 F.Supp. 384 (D.D.C. 1976), United States
v. Rossoff, 806 F.Supp. 200 (C.D.Ill. 1992), State v. Moriwake, 647 P.2d
705 (Haw. 1982), and State v. Abbati, 493 A.2d 513 (N.J. 1985). Our
Supreme Court has explained that inferior federal court decisions, issued by
district courts and circuit courts of appeals, are not binding within this
Commonwealth. Stone Crushed Partnership v. Jackson, 908 A.2d 875,
883 n.10 (Pa. 2006). Rather, such decisions are to be treated as persuasive.
Id. Moreover, “[w]hile it is a truism that decisions of sister states are not
binding precedent on this Court, they may be persuasive authority[.]”
Commonwealth v. National Bank & Trust Co, 364 A.2d 1331, 1335 (Pa.
1976) (citations omitted). See also Eckman v. Erie Insurance Exchange,
21 A.3d 1203, 1207 (Pa. Super. 2011) (stating that “this Court is not bound
by the decisions of federal courts, other than the United States Supreme
Court, or the decisions of other states’ courts”). Appellant directs us to no
Pennsylvania authority to support his position that a retrial following two hung
juries should be precluded on the basis of fundamental fairness. However,
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there are multiple instances wherein this Court has permitted fourth jury trials
to commence in criminal matters and also affirmed convictions following fourth
jury trials. See, e.g., Commonwealth v. Tielsch, 934 A.2d 81 (Pa. Super.
2007) (affirming the appellant’s conviction of third-degree murder at fourth
jury trial, following three prior deadlocked jury trials); Commonwealth v.
Perrin, 414 A.2d 650 (Pa. Super. 1979) (concluding that double jeopardy did
not preclude fourth jury trial).
Upon review of Pennsylvania case law, as well as the non-binding
authority cited by Appellant, we conclude that there is no bright-line rule that
compels us to bar a retrial on the basis of fundamental fairness. Moreover,
we refuse to create such a ruling in this instance. Hence, we decline
Appellant’s invitation to exercise our discretion to preclude a fourth trial and
dismiss the charges.
Order affirmed. Case remanded for further proceedings. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/15/2019
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Com. v. Krista, R.
Combined Opinion