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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
JAMES LEE TURNER :
:
Appellant : No. 2778 EDA 2019
Appeal from the Judgment of Sentence Entered August 29, 2019
In the Court of Common Pleas of Bucks County Criminal Division at
No(s): CP-09-CR-0005117-2018
BEFORE: SHOGAN, J., NICHOLS, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY NICHOLS, J.: Filed:December 24, 2020
Appellant James Lee Turner appeals from the judgment of sentence
imposed following his convictions for simple assault and harassment.1
Appellant argues that the trial court erred when it denied his motion to dismiss
the charges on double jeopardy grounds. We affirm.
The trial court summarized the facts and procedural history of this case
as follows:
Appellant was arrested and charged with aggravated assault,
simple assault, strangulation, and a lesser summary charge of
harassment. After several continuances[2], the case was brought
to trial on April 22, 2019. On that date, a jury was chosen and
seated. After attorneys for both sides made opening
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1 18 Pa.C.S. §§ 2701(a)(1) and 2709(a)(1), respectively.
2 Appellant’s preliminary hearing was held on August 22, 2018 and trial was
initially scheduled for January 3, 2019.
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statements[3],the trial was adjourned for the day. Immediately
after adjournment, the prosecuting attorney and the affiant[,
Officer Kelli Fronk] discussed the case. During this discussion, it
was determined the affiant had taken additional investigative
actions which were unknown to the prosecuting attorney. These
actions were contained in a supplemental report which had not
been provided to the District Attorney’s Office. The prosecuting
attorney immediately notified defense counsel by e-mail of the
additional investigation.
The next day, April 23, 2019, [the trial court] held a hearing. At
this hearing, the affiant testified that her supplemental police
report was not included with the initial incident report provided to
the District Attorney’s Office, and thereafter, to [Appellant] during
the discovery process. The supplemental report was prepared
more than six months after the initial report and may not have
existed at the time the initial report was provided in discovery.
The supplemental report described her attempt to locate and
interview witnesses to the alleged assault. More specifically, she
spoke with a private security guard who had been working in the
welfare office where and when the assault had allegedly occurred.
The security guard stated he worked from opening to closing and
there was no assault or fight. The security officer confirmed there
were no surveillance cameras inside the office. The officer
testified the failure to provide the supplemental report was “an
oversight.” At the conclusion of the hearing, [the trial court]
granted Appellant’s motion for a mistrial, reduced his bail to a
nominal amount pursuant to Rule 600 of the Pennsylvania Rules
of Criminal Procedure, and deferred further action pending the
filing of a written motion.
Appellant filed a motion to dismiss all charges on grounds of
double jeopardy. [The trial court] held a hearing on this motion
on June 13, 2019. At this hearing, [Officer Fronk] clarified her
supplemental police report was dated February 21, 2019. The
officer also swore under oath she did not intend to withhold her
report to prejudice [Appellant]. Appellant’s motion was denied
and dismissed by an order dated June 25, 2019.
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3 Appellant’s counsel centered his opening argument on a theory that the
investigating officer did not attempt to identify any eyewitnesses. See N.T.,
4/23/19, at 5.
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Thereafter, Appellant was tried before a jury beginning on August
19, 2019. Appellant was found guilty of simple assault by the jury
and the summary charge of harassment by the trial judge. The
jury found Appellant not guilty of charges of strangulation and
aggravated assault. Appellant was sentenced only on the charge
of simple assault to serve a term of imprisonment in the Bucks
County Correctional Facility for not less than six (6) nor more than
twenty-three (23) months, with credit for approximately thirteen
months[’] time served since August 1, 2018.
Appellant timely filed an appeal to the Superior Court of
Pennsylvania and complied with [the trial court’s order] issued
pursuant to Rule 1925(b) of the Rules of Appellate Procedure.
Trial Ct. Op., 2/24/20, at 1-3 (footnotes omitted and some formatting
altered).
Appellant presents the following issue for our review.
Whether the trial court erred by denying Appellant’s motion to
dismiss all charges pursuant to the double jeopardy clauses of
both the federal and state constitutions where the Commonwealth
caused a mistrial by intentionally withholding from Appellant
exculpatory police reports until after Appellant’s trial began[.]
Appellant’s Brief at 4 (formatting altered).
Appellant argues that double jeopardy precluded his retrial for the same
offenses after the trial court declared a mistrial due to misconduct attributable
to the Commonwealth.4 Appellant concedes that the prosecuting attorney
provided the defense with the supplemental report in a timely manner. Id. at
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4 In Appellant’s first trial, the trial court determined that the Commonwealth
violated Brady v. Maryland, 373 U.S. 83 (1963) by failing to disclose the
exculpatory supplemental report. Trial Ct. Op. at 4. The Commonwealth
argued that the report was cumulative and not material. Id. The trial court
reasoned that “testimony of an independent, impartial witness that directly
repudiates the victim’s account on an incident underlying the criminal charges
at issue is clearly material” and granted Appellant’s request for a mistrial. Id.
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16. However, Appellant asserts that the prosecution bears responsibility for
the omission of the police department because “both entities represent the
Commonwealth for purposes of this prosecution.” Id. at 15.
Appellant continues that Officer Fronk intentionally withheld the
supplemental police report to prejudice Appellant and deny him a fair trial.
Id. at 13-14. Appellant contends that this case does not involve a complex
investigation with multiple participating police officers or departments. Id. at
17. Appellant argues that because the investigation involved a single officer
from a single police department, the simplicity of this investigation serves as
“strong circumstantial evidence that [Officer Fronk] intentionally withheld her
February 21, 2019 supplemental report.” Id. Accordingly, Appellant
concludes that his conviction and sentence should be vacated and all charges
dismissed with prejudice. Id. at 19.
The Commonwealth responds that, while mistrial was warranted based
on a Brady violation, Appellant’s double jeopardy claim is meritless.
Commonwealth’s Brief at 7. The Commonwealth asserts that it neither
intentionally nor recklessly withheld exculpatory evidence to deprive Appellant
of a fair trial. Id. The Commonwealth points out that the prosecuting attorney
promptly notified Appellant’s counsel of the undisclosed report. Id. at 13.
Further, the Commonwealth maintains that the late disclosure was “the
product of Officer Fronk’s oversight and swiftly corrected following the
error[’]s revelation.” Id. The Commonwealth maintains that the late
disclosure was not carried out with the intention to deny Appellant a fair trial
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nor did its actions, according to the Commonwealth, demonstrate a conscious
disregard for a substantial risk that Appellant would be denied a fair trial. Id.
at 14.
We apply the following standard:
An appeal grounded in double jeopardy raises a question of
constitutional law. This 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. Adams, 177 A.3d 359, 370 (Pa. Super. 2017) (citation
omitted and some formatting altered).
In determining whether double jeopardy bars retrial following a mistrial,
our Supreme Court has set forth the following standard.
We now hold 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.
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Commonwealth v. Smith, 615 A.2d 321, 325 (Pa. 1992). In Adams, this
Court acknowledged that the police can be responsible for a Brady violation
and articulated:
We have no question that if a Brady violation is committed by a
prosecutor, it can result in a dismissal on double jeopardy grounds
if it is shown that the prosecutor intended to deprive the defendant
of a fair trial. Although we have found no instance in which we
have held that intentional misconduct by the police also should
warrant dismissal of the charges under a double jeopardy
analysis, we see no reason to foreclose that possibility.
Prosecutors must perform their duties under Brady in conjunction
with the police, and a Brady violation may occur where evidence
in the possession of the police is not disclosed to the defendant,
even if the prosecutor did not know about it.
Adams, 177 A.3d at 372 (citations and footnote omitted).
In addition, our Supreme Court recently expanded the Smith standard
in Commonwealth v. Johnson, 231 A.3d 807 (Pa. 2020).5
Under Article I, Section 10 of the Pennsylvania Constitution,
prosecutorial overreaching sufficient to invoke double jeopardy
protections includes misconduct which not only deprived 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
will be the result.
Johnson, 231 A.3d at 826.
In Johnson, the prosecution alleged that the defendant shot and killed
the victim at close range. Id. at 812. During the investigation, police
recovered a black baseball cap and a red baseball cap. Id. at 810-11. The
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5We note that the trial court did not have the benefit of our Supreme Court’s
decision in Johnson before issuing its Rule 1925(a) opinion.
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black cap had been worn by the victim and had his blood under the brim. Id.
at 811. The red cap was recovered several yards away from the victim’s body
and had the defendant’s sweat on the band. Id. at 810-11. Police logged
each cap under separate property receipts with distinct numbers. Id. at 810-
11, 827. The case went unsolved for several years before an informant
directed police to the defendant. Id. at 811. At trial, the prosecuting attorney
proceeded under the theory that one cap, the red one, had both the victim’s
blood and the defendant’s sweat on it. Id. at 811-13. The Commonwealth’s
forensics expert also erroneously indicated that the blood and sweat DNA
evidence were found on the same cap. Id. at 812. Further, an investigating
officer testified that he saw blood under the brim of the red cap when he
recovered it. Id. A jury convicted the defendant and sentenced him to death.
Id. at 813.
Following the release of a forensics lab report, which revealed that a
second cap had been analyzed, the Commonwealth agreed the defendant was
entitled to a new trial and the defendant moved to dismiss the charges. Id.
Our Supreme Court held that retrial was barred and outlined two significant
errors made by the prosecuting attorney.
[F]irst, there was a notable discrepancy between
the property receipt numbers for the two caps. The prosecutor
was aware this meant that the associated results reflecting the
presence of the victim’s blood and [the defendant]’s DNA might
have related to different pieces of physical evidence. Yet, in the
face of this information, he never sought to verify his working
hypothesis that the receipt numbers pertained the same baseball
cap. He did not even notice this error at the preliminary hearing
when he had in his possession property receipt number 2425291,
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which clearly stated that it was associated with a black baseball
cap. Second, in preparation for a capital case, the prosecutor did
not obtain a criminalistics report which would have summarized
the evidence connected with the matter and revealed that there
were two different caps involved.
Id. at 826-27. The Court determined that the Commonwealth’s “almost
unimaginable mistakes,” though unintentional, were “strongly suggestive of a
reckless disregard for consequences and for the very real possibility of harm
stemming from the lack of thoroughness in preparing for a first-degree murder
trial.” Id. at 826-27.
Instantly, in its Rule 1925(a) opinion the trial court addressed its denial
of Appellant’s motion to dismiss the charges before Appellant’s second trial.
Initially, [the trial court] note[d] the supplemental police report
was dated more than six months after the initial police report. The
initial police report was properly provided to the defense during
the discovery process. The reason for the failure to include the
supplemental report in the discovery process is unknown. It may
not have existed at the time discovery was provided to the
defense.
Both sides agree the prosecuting attorney did not know of its
existence when trial began. There were no pre-trial or other
evidentiary hearings in this case. At the time of trial, the police
affiant was unaware her supplemental report had not been
provided to the defense or prosecuting attorney. It became
obvious during defense counsel’s opening statement that he was
unaware of the police officer’s action described in her
supplemental report. The police affiant spoke with the
prosecuting attorney after opening statements and disclosed the
actions detailed in her supplemental report. The prosecuting
attorney immediately disclosed the existence of the supplemental
report to defense counsel by e-mail. At no time did anyone
associated with the prosecution deny the existence of a
supplemental report or the failure to provide said report to the
defense. Testifying under oath in hearings related to Appellant’s
Motion to Dismiss, the affiant swore the failure to provide the
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supplemental report in discovery was just “an oversight” and that
she did not “intend to suppress that report to prejudice
[Appellant].” [The trial court] listened to the officer’s testimony
carefully. She appeared honest and sincere. Her testimony was
consistent with other evidence and [the trial court] believed her.
Accordingly, [the trial court] determined that although errors
occurred, those errors were unintentional. [The trial court] also
concluded there were no actions taken that were designed to
deprive Appellant of a fair trial. As such, the remedy of dismissal
in this case would be overly harsh and would not promote the
goals contemplated by discharge under double jeopardy,
foreclosing systematic maltreatment.
Id. at 7-8 (footnotes omitted).
Based on our review of the record, we conclude that the record supports
the trial court’s conclusion that the Commonwealth’s errors were
unintentional. See Smith, 615 A.2d at 325.
As noted by the trial court, the prosecuting attorney promptly notified
Appellant’s counsel of Officer Fronk’s supplemental report describing her
contact with the security guard when she brought it to the prosecutor’s
attention. See Trial Ct. Op. at 1. Based on this record, it appears that the
prosecutor did not previously know the supplemental report existed. Trial Ct.
Op. at 7.
Officer Fronk testified that she is a ten-year police veteran and has
investigated and testified in more cases that she could count. N.T. 6/13/19,
at 8. The officer explained that she typed the supplemental report as an
update to the incident report six months after the charges were filed. See id.
at 7; Trial Ct. Op., at 7. Officer Fronk testified that she was not aware that
Appellant had already had two scheduled trial dates prior to the date on which
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she wrote the report. N.T., 6/13/19, at 7. However, Officer Fronk stated that
she did not intend to withhold the report to prejudice Appellant. Id. at 10.
Here, the trial court credited the testimony of Officer Fronk. Trial Ct.
Op. at 8. Based on our review, we conclude the record supports the trial
court’s credibility determination that the Commonwealth’s actions were not
intentionally undertaken to deprive Appellant of a fair trial. See Smith, 615
A.2d at 325; see also Adams, 177 A.3d at 370.
Further, applying the Johnson standard, we find that the
Commonwealth’s actions do not reflect a conscious disregard for the
substantial risk that Appellant would be deprived of a fair trial. See Johnson,
231 A.3d at 826. As noted above, the trial court credited Officer Fronk’s
testimony that she was unaware that the prosecuting attorney did not have
the supplemental report. Trial Ct. Op. at 7. Following opening arguments,
Officer Fronk provided the report to the prosecuting attorney when asked if
there were any additional reports documenting any further investigation. N.T.
6/13/19, at 10. Upon receipt, the prosecutor notified Appellant’s counsel and
provided the missing supplemental report. Trial Ct. Op. at 1.
Based on our review of the record, the instant case is distinguishable
from Johnson in that there is no indication that the prosecuting attorney
should have known or had access to the supplemental report, unlike the
property receipts in Johnson, which were in the prosecutor’s possession. Id.
at 7. Notably, Officer Fronk prepared the supplemental report approximately
five months after Appellant’s preliminary hearing and one month after
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Appellant’s initial trial listing. N.T. 6/13/19, at 7. Accordingly, the record
suggests that the prosecutor did not have access to the report until the April
2019 trial date. Id. at 13.
Further, the investigating officer in Johnson testified to observations
he did not make based on an assumption that the prosecutor’s single hat
theory was correct. See Johnson, 231 A.3d at 827 n.14. Here, by contrast,
Officer Fronk promptly acknowledged the error and provided the supplemental
report to the prosecutor and Appellant’s counsel as soon as she discovered
the oversight. Trial Ct. Op., at 7.
Unlike the case in Johnson, the record reflects the Commonwealth’s
diligence in discovering its error and promptly correcting it. Accordingly, we
conclude that the errors in this case do rise to the level of reckless disregard,
and we agree with the trial court that retrial was not barred. See Johnson,
231 A.3d at 826.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/24/20
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