Com. v. Harris, C.

J-A18001-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CARLOS HARRIS :
:
Appellant : No. 481 WDA 2019

Appeal from the Judgment of Sentence Entered August 7, 2018
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0011917-2015

BEFORE: BENDER, P.J.E., DUBOW, J., and NICHOLS, J.

MEMORANDUM BY BENDER, P.J.E.: FILED OCTOBER 1, 2020

Appellant, Carlos Harris, appeals nunc pro tunc from the judgment of

sentence of an aggregate term of 17–34 years’ incarceration, imposed

following his conviction, after a second trial, for one count of third-degree

murder, two counts of attempted murder, and related offenses. Appellant

challenges the sufficiency of the evidence as it pertains to his identity as the

perpetrator of the shooting. Additionally, Appellant alleges that his second

trial should have been barred on double-jeopardy grounds due to prosecutorial

misconduct during the first trial. After careful review, we affirm with respect

to Appellant’s sufficiency claim. However, we vacate his judgment of sentence

and remand for a double-jeopardy hearing.

The facts adduced at Appellant’s second, non-jury trial were as follows:

[O]n August 24, 2015[,] at approximately 11:24 a.m., Michael
Shipp (“Shipp”) and Jaron Satterwhite (“Satterwhite”) were
walking on East 12th Street in Homestead, Pennsylvania. Daren
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Scott (“Scott”) drove up to the men, and they began to talk. Shipp
entered Scott’s vehicle on the front passenger side, and
Satterwhite entered in the back passenger side. They drove down
the street, and Scott pulled the vehicle over to the side to allow
Shipp and Satterwhite to exit. As they were sitting in the vehicle,
shots rang out. All told, 19 shots were fired at the vehicle and the
individuals occupying it. When the shooting began, Shipp and
Scott ran from the vehicle, and Satterwhite ducked. Satterwhite
was unable to exit the vehicle due to child safety locks. Once the
shots stopped, Satterwhite reached his arm out of the vehicle,
opened the door and ran. While Scott was running away from the
vehicle, one of the shots hit him. He died at the scene.

Dr. Abdulrezak Shakir, the Deputy Medical Examiner for the
Allegheny County Medical Examiner’s Office, testified that Scott
died from a gunshot wound to the trunk that entered in his left
lower back and exited from the middle of his chest. This gunshot
wound was fatal, as it went through several vital organs, including
his heart.

Allegheny County Homicide Detectives arrived at the scene
approximately two (2) hours after the shooting. Detective
Stephen Hitchings testified that bullet casings were located in
front of 339 E. 12th Street, Homestead. By looking at the
characteristics of the firing pin impressions on the bullet casings,
Detective Hitchings knew that the firearm that discharged the
bullets was a Glock. Based upon the location of the casings, it
was likely that the “shooter [was] standing somewhere in the
general area of the right corner of 339 E. 12th Street shooting at
[Scott’s] vehicle.” Detective Hitchings obtained consent from the
lessor/owner of the apartment building located at 339 E. 12th
Street and entered the building. Specifically, Apartment 2,
owned/leased by Sharon Fisher, was of interest to him due to its
location. When he entered Apartment 2, 339 E. 12th Street, he
saw a firearm spring sitting on the floor towards the living room
area. Based upon his knowledge and experience, Detective
Hitchings knew that this spring came from a Glock pistol.
Detective Hitchings began to search the apartment for the rest of
the firearm. He looked in a closet and pulled out a towel that was
stuffed into it. As he pulled out the towel, it unrolled and the lower
receiver of a Glock pistol fell out. Detective Hitchings then noticed
that the bottom of a chair in the living room was ripped out. He
reached into the chair, and found a t-shirt. Inside the t-shirt were
the other missing pieces of the Glock: the upper receiver and the
barrel. At this time, Detective Hitchings had recovered all of the

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pieces necessary to assemble the Glock. William Best, an expert
in firearms and ballistics, assembled the recovered Glock and
tested it. It was found to be operable. There were no fingerprints
of any value found on this firearm.

The Allegheny County Detectives and the Mobile Crime Unit
recovered nine (9) bullet casings on August 24, 2015[,] mostly
from the area in between 337 E. 12th Street and 339 E. 12th Street.
After a civilian provided an audio recording of the shooting,
Allegheny County Detectives determined that there were a total
of 19 shots fired. As such, on August 25, 2019, Detectives
returned to the scene and located the remaining ten (10) casings.
All 19 bullet casings were analyzed and found to match the Glock
found in Apartment 2, 339 E. 12th Street by Detective Hitchings.

While the Mobile Crime Unit was processing the scene, Allegheny
County Detectives and [p]olice [o]fficers from Homestead and
Munhall were stationed at the front and back entrances to 339 E.
12th Street. At approximately 1:30 p.m., a young man, later
identified as Carlos Harris (“[Appellant]”), exited the front door
and ran into Allegheny County Homicide Detective Thomas Foley.
Detective Foley testified that [Appellant] stated that he was
coming out of Sharon Fisher’s apartment and appeared to be
nervous. [Appellant] admitted to being in possession of
marijuana, and was placed under arrest. [Appellant]’s hands were
tested for gun[]shot residue (“GSR”). According to Daniel Wolfe,
an expert from the Allegheny County Medical Examiner’s Office,
the GSR test from the sample taken from the back of [Appellant]’s
right hand was positive.

At about this same time, Rafiel Hoston (“Hoston”) exited the rear
of the building. After initially speaking with detectives at the
scene, Hoston went to the police station to make a formal
statement. Hoston was interviewed by Detective Patrick Miller of
the Allegheny County Police. Hoston told Detective Miller that he
was drinking at Pearl’s Café when he received a call from Shawn
Phenizy, Sharon Fisher’s son, who asked him to go [to] his
apartment to take care of his dog, Miami. Hoston told Detective
Miller that he was only in Apartment 2 for a few minutes due to
the “commotion” outside. He testified that the back door of this
apartment is always open so that anyone can go in and out,
including [Appellant]. He told Detective Miller that [Appellant]
was in Apartment 2. Hoston’s hands were tested for GSR. This
test was negative. Additionally, Detective Miller confirmed

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[Hoston]’s alibi that he was drinking at Pearl’s Café at the time of
the shooting.

Allegheny County detectives submitted the following evidence
taken from Apartment 2, 339 E. 12th Street to the Medical
Examiner’s Office for DNA collection and testing: a cloth, the
Glock, the towel that contained pieces of the Glock, and t-shirt
that contained the remaining pieces of the Glock. Anita Lorenz,
an expert in the field of DNA collection and testing, testified that
the DNA samples from a cloth matched DNA sample of
Satterwhite. With regard to the pieces of the Glock, Ms. Lorenz
testified that she was unable to draw any conclusions or find a
statistical match, as there were four or more contributors of DNA
on these items. She further recommended that this sample be
sent for “TrueAllele” testing. Ashley Platt, an expert in the field of
DNA analysis, testified that she examined the DNA results from
the towel, and that due to the number of contributors, she was
unable to make a comparison. Further, she examined the DNA
results of the t-shirt, which [were] a match to [Appellant].

Dr. Mark Perlin, the Chief Executive and Scientist at
Cybergenetics, testified regarding the results of the TrueAllele
analysis. Dr. Perlin created the company known as Cybergenetics
and developed technology called TrueAllele, which takes data
generated from the crime lab and infers genotypes so that it can
separate multiple contributors and make a comparison to known
contributors. In March 2016, Cybergenetics received DNA data
from the Allegheny County Medical Examiner’s Office from the
samples taken from the Glock as well as four reference samples
belonging to [Appellant], Shipp, Scott, and Satterwhite. The
Glock pistol frame and the Glock pistol slide contained DNA that
were statistical matches to [Appellant]. In May 2019,
Cybergenetics analyzed data from the swabbing of the t-shirt and
towel as well as two (2) new references: Hoston and Shawn
Phenizy. Both items contained statistical matches to [Appellant].

Trial Court Opinion (“TCO”), 7/11/19, at 3-7 (citations omitted).

The Commonwealth charged Appellant with a general count of criminal

homicide, 18 Pa.C.S. § 2501(a); two counts of attempted homicide, 18 Pa.C.S.

§ 901(a); two counts of aggravated assault, 18 Pa.C.S. § 2702(a)(1); person

not to possess a firearm, 18 Pa.C.S. § 6105(a)(1); and tampering with

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evidence, 18 Pa.C.S. § 4910(1). A non-jury trial commenced in November of

2017. On December 7, 2017, the trial court declared a mistrial due to

“documentary evidence being produced [by the Commonwealth] for the first

time during trial.” TCO at 1. Appellant filed a motion to bar re-trial on double-

jeopardy grounds on March 12, 2018.

A second non-jury trial began in May of the following year and, on May

21, 2018, the trial court found Appellant guilty of third-degree murder.1

Appellant was also convicted at all but one of the remaining counts. The trial

court found Appellant not guilty of the person-not-to-possess-a-firearm

offense. On August 7, 2018, the court sentenced Appellant to 17–34 years’

incarceration for third-degree murder, and to concurrent terms of 10-20 years’

incarceration for each count of attempted murder, for an aggregate term of

17–34 years’ incarceration. Appellant did not file post-sentence motions or a

direct appeal. On February 1, 2019, Appellant filed a timely Post Conviction

Relief Act petition seeking reinstatement of his direct appeal and post-

sentence motion rights nunc pro tunc. The lower court granted the petition

on February 4, 2019.

Appellant thereafter filed a post-sentence motion nunc pro tunc on

February 14, 2019, which the trial court denied on February 25, 2019. He

filed a timely notice of appeal nunc pro tunc, and a timely, court-ordered

____________________________________________

1 18 Pa.C.S. § 2502(c).

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Pa.R.A.P. 1925(b) statement. The trial court issued its Rule 1925(a) opinion

on July 11, 2019.

Appellant now presents the following questions for our review:

I. The Commonwealth has the duty to engage in good faith
discovery and avoid intentionally provoking a mistrial. In the
instant case, the Commonwealth revealed lengthy and ultimately
inadmissible discovery to the defense in the middle of trial,
resulting in a mistrial. Accordingly[:]

Did the trial court abuse its discretion in failing to bar retrial based
on intentionally flagrant and deleterious prosecutorial misconduct
aimed at causing a mistrial to gather additional evidence in direct
response to the defense’s questioning during the first trial?

II. With regards to [Appellant]’s convictions for third-degree
murder, criminal attempt–homicide, attempted homicide,
aggravated assault, and tampering with evidence, the
Commonwealth relied on DNA evidence to link [him] to the firearm
used in the shooting. However, the Commonwealth failed to
present testimony that the DNA was not on the firearm due to
passive transfer. Accordingly[:]

Did the Commonwealth fail to present sufficient evidence that
[Appellant] was the individual who fired the bullets towards the
decedent and other victims and that [Appellant] subsequently
dismantled the firearm?

Appellant’s Brief at 7. For ease of disposition, we will address these issues in

reverse order.

Sufficiency of the Evidence

Appellant asserts that the evidence was insufficient to demonstrate his

identity as the shooter.

A claim challenging the sufficiency of the evidence is a question of
law. Evidence will be deemed sufficient to support the verdict
when it establishes each material element of the crime charged
and the commission thereof by the accused, beyond a reasonable
doubt. Where the evidence offered to support the verdict is in

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contradiction to the physical facts, in contravention to human
experience and the laws of nature, then the evidence is insufficient
as a matter of law. When reviewing a sufficiency claim[,] the court
is required to view the evidence in the light most favorable to the
verdict winner giving the prosecution the benefit of all reasonable
inferences to be drawn from the evidence.

Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000) (internal

citations omitted).

This Court has previously recognized that,

even though ‘vague, tenuous and uncertain’ identifications
standing alone are insufficient, see Commonwealth v.
Farrington, … 280 A.2d 623 ([Pa. Super.] 1971);
Commonwealth v. Sharpe, … 10 A.2d 120 ([Pa. Super.] 1939),
our courts have held that ‘evidence of identification ... need[ not]
be positive and certain in order to convict, although any
indefiniteness and uncertainty in the identification testimony goes
to its weight.’ Commonwealth v. Hickman, … 309 A.2d [ 564,]
566 ([Pa.] 1973).

Commonwealth v. Minnis, 458 A.2d 231, 233 (Pa. Super. 1983).

Moreover, “[d]irect evidence of identity is … not necessary and a defendant

may be convicted solely on circumstantial evidence.” Hickman, 309 A.2d at

566.

Here, proof of Appellant’s identity was not the product of direct

evidence, but was instead based on a confluence of circumstantial evidence.

First, police discovered Appellant near the scene of the crime, two hours after

the shooting. Second, Appellant emerged from a residence where the murder

weapon was ultimately discovered.2 Third, traces of Appellant’s DNA were

____________________________________________

2Notably, police arrived on the scene immediately after the shooting, and did
not observe anyone else entering or exiting the home until Appellant emerged
two hours later. See TCO at 7.

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discovered on the clothing that held the disassembled murder weapon, and

on parts of the weapon itself. Fourth, when police tested Appellant for GSR,

the test indicated that he had recently fired a gun. None of these facts were

alone sufficient to establish identity. However, collectively considered, the

trial court concluded that this circumstantial evidence was legally sufficient to

establish Appellant’s identity as the shooter. See TCO at 8.

Appellant now argues on appeal that the

Commonwealth failed to prove beyond a reasonable doubt that
[Appellant] handled the firearm used in the shooting, let alone
that he was the shooter. No eyewitness saw the shooter, so there
was no identification or description provided. No motive was
established. No fingerprints were recovered from the firearm.
[Appellant]’s mere presence in the unsecured apartment where
the firearm was located failed to establish his possession of the
firearm.

Furthermore, the forensic evidence could not show when or how
[Appellant]’s DNA got onto the firearm, such as by secondary DNA
transfer from the towel and t-shirt which swathed the firearm
parts. Without any expert testimony to reject secondary DNA
transfer from the towel and t-shirt on to the firearm, the
Commonwealth lacked sufficient evidence to convict [Appellant].
Even assuming arguendo that the DNA evidence was sufficient to
place the firearm in [his] hands, there was still no evidence that
he possessed the firearm at the time of the shooting.

Appellant’s Brief at 7.

We agree with the trial court that Appellant’s sufficiency claim is

meritless. The confluence of circumstances here were sufficient to establish

his identity as the shooter, despite the lack of direct evidence. Appellant’s

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theory that secondary DNA transfer3 might explain the presence of his DNA

on the gun goes primarily to the weight, not the sufficiency of the DNA

evidence. Under the sufficiency standard, we are not permitted to second-

guess the manner in which the jury weighed the evidence. Instead, we must

“view the evidence in the light most favorable to the verdict winner giving the

prosecution the benefit of all reasonable inferences to be drawn from the

evidence.” Widmer, 744 A.2d at 751.

In any event, Appellant fails to provide any case law in support of the

notion that the Commonwealth had a burden to disprove his secondary DNA

transfer theory. Although the Commonwealth bears the specific burden to

disprove affirmative defenses such as self-defense, Appellant raised no

affirmative defenses at trial. As to other defense theories that do not

constitute affirmative defenses, our Supreme Court has stated that “the

Commonwealth’s burden to prove beyond a reasonable doubt all elements of

the crime does not require it to disprove a negative” and, “[o]nce a defendant

has come forward with” evidence that might tend to disprove an element of a

crime, “or it is in the case otherwise, the Commonwealth … may introduce

testimony to refute it, but is under no duty to do so.” Commonwealth v.

Rose, 321 A.2d 880, 884-85 (Pa. 1974) (reasoning that the prosecution did

not have the burden to disprove a defense theory of diminished capacity by
____________________________________________

3Essentially, this theory suggests that the DNA discovered on the gun could
have originated from the clothing in which the gun parts were discovered, and
not from Appellant’s handling of the firearm during and immediately after the
shooting.

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intoxication, even when the defendant had presented evidence to that effect,

but that did not mean that the trial court could place a burden on the

defendant by instructing the jury that he was required to prove intoxication

by a preponderance of the evidence). Here, the Commonwealth was not

required to disprove the secondary DNA transfer theory to meet its burden.

We agree with the Commonwealth that Appellant’s theory was

presented to the factfinder, and the factfinder was free to reject it. As the

Commonwealth explained:

[A]s to the theory of secondary DNA transfer, the factfinder
received scientific evidence that [Appellant]’s theory of the case—
that his DNA was on the gun because it had been transferred from
the t-shirt to the gun—was vastly less likely than the reverse. The
evidence showed that transfer of DNA from a hard, nonporous
surface like a gun to a soft cotton surface like a t-shirt was vastly
more likely. ([] the Commonwealth’s expert testif[ied] that,
according to an authoritative study, about .01% of DNA moves
from a soft cotton surface to a hard, nonporous surface, whereas
nearly 100% of DNA will transfer in the other direction.) Even
though, as [Appellant] correctly points out, the Commonwealth’s
expert was not permitted to give an expert opinion about
secondary DNA transfer ([Appellant’s Brief] at 66), the factfinder
still heard the underlying scientific evidence, and was free to make
the inference that secondary DNA transfer from the t-shirt to the
gun was likely not the reason why [Appellant’s] DNA was on the
gun.

...

[A] rational finder of fact could conclude that [Appellant’s] DNA
was on the murder weapon because he had handled it, not
because of secondary DNA transfer. It could conclude that
[Appellant] had gunshot residue on his hands because he had
recently fired a gun. It could conclude that, since [Appellant] was
apprehended after leaving the apartment containing the
disassembled and stashed murder weapon, that it was he who had
done the disassembling and stashing. And based on all of this

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combined, a rational finder of fact could conclude that it was
[Appellant] who fired the bullet that killed Daren Scott.

Commonwealth’s Brief at 31-32 (citations to trial transcript omitted).

We agree with the Commonwealth’s analysis, and the trial court’s

determination that the evidence was sufficient to establish Appellant’s identity

as the shooter. No relief is due on this claim.

Double Jeopardy

Next, Appellant asserts that double-jeopardy principles barred his retrial

due to prosecutorial misconduct during the first trial. Specifically, he claims

that the trial prosecutor “deliberately engaged in flagrant and deleterious

discovery conduct intended to provoke a mistrial and obtain additional time to

prepare its case against” Appellant. Appellant’s Brief at 28. The trial court

determined that the misconduct warranted a new trial, but that it was not

deliberately intended to deprive Appellant of a fair trial. See TCO at 9 (stating,

“it is clear to this [c]ourt that the actions giving rise to [Appellant]’s request

for a mistrial were not done with the intent to provoke [him] into moving for

a mistrial nor were they done in bad faith”).

“[O]ne of the principal threads making up the protection embodied in”

the double-jeopardy clause of the federal constitution “is the right of the

defendant to have his trial completed before the first jury empaneled to try

him.” Oregon v. Kennedy, 456 U.S. 667, 673 (1982). Under the federal

standard, re-trial of a defendant is barred by double-jeopardy principles when

prosecutorial misconduct “giving rise to the successful motion for a mistrial

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was intended to provoke the defendant into moving for a mistrial.” Id. at

679.

In Pennsylvania, it has long been the rule “that the 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.” Commonwealth v. Smith, 615 A.2d 321, 325 (Pa. 1992). In

Smith, legally sufficient evidence established that the defendant had

murdered a woman and her two children in order to capitalize on a life

insurance policy. Id. at 322. However, during Smith’s trial, the

Commonwealth had concealed potentially exculpatory evidence, both physical

evidence recovered from the scene of the crime, and impeachment evidence

concerning a key Commonwealth witness. Id. at 322-23. The Smith Court

determined that, even if Smith’s retrial was not barred under the federal

standard, the double-jeopardy clause of the Pennsylvania Constitution

prohibited it.

Recently, our Supreme Court expanded this double-jeopardy

safeguard under the Pennsylvania Constitution to include reckless

prosecutorial misconduct, holding that under

Article I, Section 10 of the Pennsylvania Constitution,
prosecutorial overreaching sufficient to invoke double[-]jeopardy
protections includes misconduct which not only deprives the
defendant of his right to a fair trial, but is undertaken recklessly,
that is, with a conscious disregard for a substantial risk that such

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will be the result. This, of course, is in addition to the behavior
described in Smith, relating to tactics specifically designed to
provoke a mistrial or deny the defendant a fair trial.

Commonwealth v. Johnson, 40 EAP 2018, 2020 WL 2532671, at *15 (Pa.

May 19, 2020).

Here, Appellant argues that the trial prosecutor’s repeated discovery

violations were intentionally designed to deprive him of a fair trial, or to

provoke him into filing a motion for a mistrial. Alternatively, Appellant

contends that conduct was at least reckless to a degree that the prosecutor

consciously disregarded a substantial risk of an unfair trial, and, therefore,

that he is entitled to relief under Johnson.4

The undisputed facts concerning the various pieces of evidence that

were not disclosed to the defense prior to Appellant’s first trial are as follows.

The Phone Dump

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4 Johnson was decided after Appellant filed his notice of appeal, but before
he filed his brief. When “an appellate decision overrules prior law and
announces a new principle, unless the decision specifically declares the ruling
to be prospective only, the new rule is to be applied retroactively to cases
where the issue in question is properly preserved at all stages of adjudication
up to and including any direct appeal.” Commonwealth v. Cabeza, 469
A.2d 146, 148 (Pa. 1983).

Here, Appellant has satisfied the procedural requirements for retroactive
application of Johnson. In his motion seeking to bar retrial on double-
jeopardy principles, he not only raised the claim that the prosecutor’s
misconduct was intentional, but also claimed that, “at the very least[,]” the
misconduct was “reasonably expected … to invoke [Appellant] to move for a
mistrial.” Apppellant’s Double[-]Jeopardy Motion, 3/19/2018, at 6 ¶ 23. This
sufficiently invokes the recklessness standard enunciated in Johnson to
preserve such a claim for our review.

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During cross-examination by the defense on the first day of the first

trial, a police officer testified that Appellant’s phone had been seized pursuant

to his arrest, and that a search warrant was issued to search its contents. No

evidence from that search was provided to the defense in the normal course

of discovery. However on the second day of trial, the prosecutor disclosed to

the defense 869 pages of cell phone records. The trial court granted the

defense a continuance to review the newly-disclosed records, and warned the

prosecution against any more evidentiary surprises. However, the court and

the parties ultimately agreed that the phone records were inadmissible. No

evidence from the phone dump was admitted at either trial.

Hoston’s GSR test

During cross-examination of a police officer on the second day of the

first trial, it became clear that a GSR swab had been taken from Hoston on

the day of the shooting, but had never been tested. The prosecutor

immediately ordered a test of that swab. The test came back negative, and

was turned over to the defense on the day the trial reconvened after the

postponement granted for review of the phone records. This evidence was

admitted into evidence by the Commonwealth at the second trial.

The Bullet Fragment Report

The bullet fragments discovered in the victim’s vehicle were not initially

tested by the Commonwealth. The prosecutor indicated that he ordered the

fragments to be tested at the beginning of or just before the first trial began.

The report came back during trial, and the prosecutor turned it over to the

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defense with the results of the GSR test of Hoston. The results were

inconclusive; the fragments appeared to be .40 caliber, but they were too

small or damaged to conclusively prove that they had been, or had not been,

fired from the at-issue firearm. This evidence was ultimately admitted at the

second trial.

Additional DNA Testing

Initially, the prosecutor only ordered the gun tested for DNA evidence.

When the defense cross-examined the Commonwealth’s expert witness at

trial, it became apparent that no testing had been ordered or done on the

towel and t-shirt in which the pieces of the gun were discovered. The

prosecutor ordered those items tested, the results of which were not available

until the second trial.

Appellant claims:

In the nine months leading up to the start of [Appellant]’s first
trial, the Commonwealth had been engaged in a sustained
campaign of providing last-minute discovery to the defense. By
the end of the first day of trial, trial counsel had elicited testimony
that none of the phones taken from the scene had been analyzed
and that there had been no forensic tests done on Hoston’s GSR
kit or the t-shirt and towel that enfolded the pieces of the Glock.
Upon being informed by the officers questioned about the
existence of the phone analysis, Prosecutor Avetta learned that a
phone dump had been conducted on [Appellant]’s phone but had
not been disclosed to defense counsel. By that point, the evidence
should have been disclosed to the defense and excluded for
discovery violations, but Prosecutor Avetta had a different plan.

On the second day of trial, Prosecutor Avetta handed over
hundreds of pages of previously undisclosed and ultimately
inadmissible cellphone data to the defense and sought to
introduce it that day despite not having reviewed it. While the

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defense received a week to review the materials, Prosecutor
Avetta violated a court pronouncement by obtaining additional
evidence to rebut the weaknesses exposed by the defense on the
first day of trial.

Prosecutor Avetta’s pithy explanations relating to the use and
procurement of this additional evidence after the defense had
undermined significant pieces of the Commonwealth’s case show
that the Prosecutor needed time to obtain further evidence and
strengthen his case with a second round of testimony. However,
the Prosecutor had insufficient [Pa.R.Crim.P.] 600 time left to
prepare all of the additional evidence needed to respond to the
defense’s case.

Prosecutor Avetta then disclosed additional evidence to defense
counsel just before trial was to resume, thus provoking the
mistrial, to continue to gather critical evidence.

Appellant’s Brief at 24-25.

Appellant further argues the prosecutor had a motive to engage in

misconduct that would provoke a mistrial request by the defense, because

the mistrial presented the Commonwealth with an opportunity to
prepare additional, favorable evidence, namely DNA evidence and
testimony on secondary DNA transfer, that it did not have initially
and that it uncovered in response to the defense’s questioning at
trial. Without this time, the Commonwealth would have had no
testimony or response to the defense theory of the case.

Id. at 52 (footnote omitted). Appellant contends that the prosecutor

intended to both force the defense to proceed without proper
disclosure or review of evidence provided after trial commenced
and to provoke a mistrial to obtain further forensic evidence to
rebut the defense, including its theory of secondary DNA transfer.
All told, this misconduct deprived [Appellant] of a fair trial.

Id. at 54.

After accurately stating the pre-Johnson double-jeopardy standard

for barring retrial due to prosecutorial misconduct, the entirety of the trial

court’s analysis of this claim is as follows:

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In this matter, it is clear to this [c]ourt that the actions giving rise
to [Appellant]’s request for a mistrial were not done with the
intent to provoke [Appellant] into moving for a mistrial nor were
they done in bad faith. The prosecution’s delay in providing
discovery in a timely fashion to [Appellant] was arguably dilatory,
but it did not rise to the level of prosecutorial misconduct. As
such, this [c]ourt found that the Double Jeopardy Clause did not
bar retrial of [Appellant] following the December 7, 2017 mistrial.

TCO at 9.

The Commonwealth argues:

1. None of this evidence was intentionally withheld, at any point,
and was in fact turned over as soon as the prosecutor personally
obtained it;

2. There is no point at which the Commonwealth is obligated to
stop a criminal investigation, so there is nothing illegal or
unethical about a prosecutor ordering follow-up testing, even in
the middle of trial or after a mistrial is declared. A trial court
cannot lawfully order the Commonwealth to stop investigating a
crime, or to stop turning over discovery to the defense;

3. This evidence, even taken collectively, had much less of an
impact on the strength of the Commonwealth’s case than
[Appellant] insists. In fact, the Commonwealth began the second
trial in a virtually identical evidentiary position as it began the first
trial; and

4. The most [Appellant] is entitled to is a second trial. He has
already gotten this. There is nothing further for this Court to do.

Commonwealth’s Brief at 12-13.

Given the trial court’s cursory analysis of Appellant’s double-jeopardy

claim,5 as well as the new standard set forth in Johnson, we conclude that

we are unable to assess whether Appellant’s double-jeopardy rights were

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5 The trial court heard argument from the parties on Appellant’s double-
jeopardy motion to dismiss at a hearing held on May 7, 2018. The trial court
did not provide any more explanation for its ruling at that time.

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violated based on the record before us. The trial court did not make any

specific factual findings regarding the prosecutor’s dilatory disclosures to aid

our review, nor did the court hear any testimony relevant to the double-

jeopardy claim at the May 7, 2018 double-jeopardy hearing. To the extent

that the trial court implies that the record clearly supports its conclusion that

the prosecutor did not intend to provoke a mistrial or deprive Appellant of a

fair trial, we disagree. The record is not clear either way.

Nor does the record clearly undermine the claim that the prosecutor

exercised a “conscious disregard for a substantial risk” that his dilatory

disclosures would deprive Appellant of a fair trial. Johnson, 2020 WL

2532671, at *15. It is in this regard that the prosecutor’s testimony, subject

to cross-examination, would be particularly valuable in determining whether

a double-jeopardy violation occurred in this case. Unfortunately, the record

only contains the prosecutor’s averments in his capacity as counsel for the

Commonwealth. The arguments of counsel are not evidence, and those

statements were not subject to rigors of cross-examination. Furthermore, the

trial court did not specify which statements it deemed credible, if any, or if it

based its determination on the gravity of the prosecutorial misconduct alone,

irrespective of the prosecutor’s intent. Moreover, the trial court’s assertion in

its Rule 1925(a) opinion that the prosecutor did not engage in misconduct is

incompatible with the fact that it granted a mistrial based on the prosecutor’s

dilatory disclosures.

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Nevertheless, the Commonwealth asserts that any prejudice resulting

from the prosecutor’s misconduct was adequately cured by the trial court’s

granting Appellant a new trial. However, the Commonwealth misconstrues or

misunderstands the nature of the right at issue. A defendant’s due process

right to a fair trial can be cured by a new trial in most cases. However, the

double-jeopardy clause goes further, and “protects a defendant’s interest in

having his fate decided by his first jury.” Id. at *9 (emphasis added). The

fact that Appellant’s second trial proceeded without the prosecutorial mishaps

of the first did not cure the harm of multiple prosecutions for the same offense,

which is the primary concern of double-jeopardy protections. The double-

jeopardy clause “prevents a prosecutor or judge from subjecting a defendant

to a second prosecution by discontinuing the trial when it appears that the

jury might not convict.” Green v. U.S., 355 U.S. 184, 188 (1957). When

double-jeopardy principles bar a retrial, it is not because a fair trial cannot be

obtained in a subsequent prosecution. Instead, the purpose of the remedy is

to deny the reward of a second trial to a prosecutor who intentionally or

recklessly sabotages the first in order to avoid an acquittal.

Nevertheless, it is true that “not all intentional misconduct is sufficiently

egregious to be classified as overreaching and, as such, to invoke the jeopardy

bar.” Johnson, 2020 WL 2532671, at *11. It must also be true that not all

reckless prosecutorial misconduct warrants the extreme remedy of barring re-

trial. Thus, in addition to the specific intent or recklessness of the prosecutor,

double jeopardy is not implicated unless the misconduct itself is severe. Id.

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However, the fact that the prejudice stemming from such misconduct can be

cured by a second trial is not a valid consideration in assessing a double-

jeopardy claim. Thus, we disagree with the Commonwealth that Appellant’s

second trial was a sufficient remedy to address Appellant’s double-jeopardy

claim.

Because the record does not obviously show that the prosecutor’s

actions fell below the double-jeopardy standard of reckless or intentional

conduct designed to deprive Appellant of a fair trial (or to provoke him into

moving for a mistrial), and because that appears to be the only basis for the

trial court’s decision to deny Appellant’s double-jeopardy motion, we conclude

that the court abused its discretion in denying that motion. Accordingly, we

vacate Appellant’s judgment of sentence and remand for a double-jeopardy

hearing consistent with this memorandum.6

Judgment of sentence vacated. Case remanded for a double-jeopardy

hearing. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/1/2020
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6 If the trial court again decides to deny the motion, it shall re-impose
Appellant’s judgment of sentence, from which Appellant may appeal.

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