J-S61026-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

SARAH J. DIXON

Appellant No. 2020 WDA 2015

Appeal from the Order Entered December 15, 2015

In the Court of Common Pleas of Crawford County

Criminal Division at No(s): CP-20-CR-0000778-2015

BEFORE: PANELLA, J., LAZARUS, J., and MUSMANNO, J.

MEMORANDUM BY LAZARUS, J.: FILED DECEMBER 13, 2016

Sarah J. Dixon appeals from the order entered in the Court of Common 

Pleas of Crawford County, which denied her motion to dismiss burglary and 

related charges filed against her based upon double jeopardy grounds. After 

careful review, we affirm.

The trial court summarized the relevant facts and procedure as 

follows:

[Dixon] was charged in four counts with burglary, theft by 

unlawful taking, and criminal mischief, stemming from the May 

2015 removal of firearms from the Hollabaugh residence in 

Steuben Township. Her trial commenced on November 9, 2015, 

and on direct examination, witness Brian Lee Hollabaugh was 

asked by the Commonwealth inter alia whether, on or about May 

16, [Dixon] told him that he owed her money, and what she 

would do if he didn’t pay. He answered in the affirmative, and 

the trial was halted and a mistrial declared due to the 

prosecution’s failure to disclose, prior to trial, at least the 

substance of [Dixon’s] apparently incriminating statements to 

Mr. Hollabaugh.
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[Dixon] filed her motion [to dismiss the criminal information 

based on double jeopardy] on November 10, 2015[,] the 

Commonwealth answered on November 18, 2015[,] and 

argument was heard on December 2, 2015. 

Trial Court Opinion, December 15, 2015, at 1-2. Thereafter, on December 

15, 2015, the trial court denied the motion and found it to be nonfrivolous.1 

This timely appeal followed.

On appeal, Dixon raises the following issue for our review:

Should the information against [Dixon] be dismissed based on 

double jeopardy when the first trial was declared a mistrial 

because of the intentional actions of the prosecutor [in] denying 

her access to mand[a]tory discovery until after the [trial] 

started[,] prejudic[ing] [Dixon] to the point of denying her a fair 

trial and forcing her to request a mistrial?

Brief for Appellant, at 7.

The scope of our review in an appeal grounded in double jeopardy is 

plenary, as it raises a question of constitutional law. Commonwealth v. 

Wood, 803 A.2d 217, 220 (Pa. Super. 2002). Following a mistrial due to 

____________________________________________

1

Pursuant to Pa.R.Crim.P. 587, if the trial court judge denies a motion to 

dismiss on double jeopardy grounds “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)(6). Here, the trial 

court did not expressly include its finding of nonfrivolousness when it ruled 

on the motion. However, the court issued an order addressing this issue on 

January 27, 2016, in which it stated that the “[c]ourt intended implicitly to 

find that [the motion] was not frivolous[,]” and advised Dixon of her right to 

immediately appeal the denial as a collateral order. See Order, 1/27/16, at 

n. 1-2.
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prosecutorial misconduct, we determine whether retrial is barred due to 

double jeopardy based upon the following standard:

Under both the federal and state constitutions, double jeopardy 

bars retrial where the prosecutor’s misconduct was intended to 

provoke the defendant into moving for a mistrial. . . . [Our 

Supreme Court has held] 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),] 

. . . However, Smith did not create a per se bar to retrial in all 

cases of intentional prosecutorial overreaching. 

Commonwealth v. Culver, 51 A.3d 866, 882-83 (Pa. Super. 2012) (some 

citations omitted). As to our review of the trial court’s findings of fact,

[w]here 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.

Wood, supra at 220.

In Commonwealth v. Burke, 781 A.2d 1136 (Pa. 2001), our 

Supreme Court clarified that prosecutorial misconduct does not warrant 

dismissal of charges unless it is deliberate and egregious, such as the 

conduct that occurred in Smith. In Smith, the Commonwealth intentionally 

withheld information from a capital defendant, including:

(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 
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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.

Burke, supra at 1144. 

In Burke, the Court reaffirmed its holding in Commonwealth v. 

Moose, 602 A.2d 1265 (Pa. 1992). In Moose, the prosecutor’s failure to 

inform defense counsel of a witness’ police statement containing 

incriminating admissions allegedly made by the defendant amounted to a 

willful violation of discovery rules. Nevertheless, despite the intentional 

nature of the failure to disclose the evidence, the Court remanded the 

matter for a new trial. Burke, supra at 1145. See also Commonwealth 

v. Strong, 825 A.2d 658, 668-70 (Pa. Super. 2003) (Commonwealth’s 

failure to reveal information pursuant to Brady v. Maryland, 373 U.S. 83 

(1963), did not warrant dismissal of charges where there was lack of 

evidence demonstrating specific intent to deny defendant a fair trial).

Dixon asserts that the Commonwealth “denied [her] a fair trial by 

proceeding to trial knowing that there was new discovery to provide [to her,] 

but then [the Commonwealth] intentionally tried to continue the nondisclosure.” Brief for Appellant, at 9. The new discovery to which Dixon 

refers was information provided to the Commonwealth approximately fifteen 

minutes prior to trial starting, involving potentially inculpatory statements. 

See Pa.R.Crim.P. 573(B)(1)(b) (Commonwealth is required to disclose to 

defendant’s attorney “the substance of any oral confession or inculpatory 
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statement, and the identity of the person to whom the confession or 

inculpatory statement was made that is in the possession or control of the 

attorney for the Commonwealth”).

The relevant statements came to light during the following exchange 

at trial:

[Direct Examination of Brian Lee Hollabaugh by Assistant District 

Attorney (ADA) Douglas Ferguson:]

Q. Okay. And did you tell us how soon after you talked to 

your father about the guns that you called Dixon?

A. Shortly after – within half hour probably.

Q. And what did you – what did you say to her?

A. I said, [d]id you go to my parent’s house and steal mine 

and my dad’s hunting rifles[?]

Q. Okay. Was it a long conversation?

A. No.

. . .

Q. On May 16th or any time before that, did Mrs. Dixon ever 

tell you, you owed her money?

A. Yes.

Q. Did you ever pay her any money?

A. I’ve paid her.

Q. Did you pay her money as a result of her saying you owed 

her money?

A. No.

Q. Did she ever indicate to you what would happen if you 

didn’t tell her – didn’t pay her?

A. Yes.
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N.T. Trial, 11/19/15, at 55-56. Defense counsel objected to this line of 

questioning, and the court thereafter granted a mistrial because the 

statements regarding Hollabaugh owing Dixon money had not been disclosed 

to defense counsel.

Dixon contends that the failure to disclose the allegedly inculpatory 

statements that the Commonwealth learned of immediately prior to trial was 

a deliberate and intentional tactic to deny her a fair trial. There is no 

dispute that the Commonwealth was required to disclose the statements 

prior to trial, and we do not condone the Commonwealth’s serious failure to 

uphold its obligation to provide the required discovery to defense counsel. 

However, based upon the timing in which the statements were made to the 

Commonwealth and the representations made by ADA Ferguson during the 

sidebar discussion when defense counsel moved for a mistrial, the trial court 

determined that the Commonwealth did not intend to prejudice Dixon or 

force her to move for a mistrial. ADA Ferguson stated that his intent in 

placing Hollabaugh on the stand was to obtain “the time frames of when he 

got the call – when he made the call because it fits in . . . within minutes [of 

Dixon] going over to – to Michelle Cannon’s with the guns.” Id. at 73. 

Thus, the trial court’s credibility determination is supported in the record. 

Wood, supra. 

Further, as the trial court noted, it was not “convinced that [the] 

omission amounted to deliberate misconduct. Even if willful, rather than 

inadvertent, it was not part of a ‘pattern of pervasive misconduct’ [quoting 
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Commonwealth v. Anderson, 38 A.3d 828, 840 (Pa. Super. 2011)] . . . 

nor exacerbated by attempts to hide the transgression.” Trial Court Opinion, 

12/15/15, at 4. Accordingly, the trial court properly ordered a new trial 

rather than dismissing the charges against Dixon. Even if the 

Commonwealth willfully withheld information of the statements, a new trial 

is nevertheless an appropriate remedy based upon the record in this matter. 

Burke, supra. Thus, we discern no error on the part of the trial court.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/13/2016