J-A23031-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

HERBERT TRAVER 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 382 MDA 2021

Appeal from the Order Entered March 19, 2021

In the Court of Common Pleas of Wyoming County Criminal Division at 

No(s): CP-66-CR-0000283-2018

BEFORE: PANELLA, P.J., MURRAY, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED JANUARY 06, 2022

Defendant/Appellant, Herbert Traver, files this interlocutory appeal from 

the trial court’s order denying his motion to bar retrial on grounds of double 

jeopardy. Specifically, Mr. Traver contends that double jeopardy attached 

when the Commonwealth impermissibly referenced his pre-arrest silence 

during its cross-examination of him at trial. After careful consideration, we 

affirm the trial court’s order finding no reckless misconduct on the part of the 

Commonwealth and remand for a new trial.

In June of 2018, Mr. Traver was arrested and charged with one count of 

rape, one count of corruption of minors, and two counts of indecent assault 

on allegations that he sexually assaulted D.R., his step-granddaughter, on 

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* Former Justice specially assigned to the Superior Court.
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various occasions starting when she was 11 years old. The rape allegedly 

occurred in July of 2014, when D.R. was 12 years old.

A three-day jury trial commenced on May 20, 2019. D.R., who was 17

years old at the time of trial, testified, as did her brother, the investigating 

police officer, and a psychologist who provided expert testimony on delayed 

reports by child victims. The defense called seven witnesses, including family 

members, friends, Traver’s primary care physician, and Traver himself, who 

collectively offered testimony calling into question whether Traver, 72 years 

old at the time of trial, was physically capable of committing sexual assault 

given his physical limitations and medical diagnoses, including clinical 

blindness, cardiac issues, and alleged erectile dysfunction.

Specifically at issue is the following exchange during the 

Commonwealth’s cross-examination of Traver:

Cmwlth: Good afternoon sir. The things you testified to[--]you 

never touched [D.R.’s] breasts, you never touched her vagina, 

and you never had intercourse with her[--]and you were contacted 

by Trooper Cooney in February, 2016, you never told him that, 

did you?

Traver: He never asked me if I ever touched her.

Cmwlth: Because you never called him back, did you?

N.T., 5/22/2019, at 611.

The defense lodged an objection and requested a sidebar, during which 

it moved for mistrial on the argument that the Commonwealth had subverted 

Traver’s right to pre-arrest silence. In apparent anticipation of such a motion, 
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the Commonwealth supplied the court with caselaw to support its position that 

reference to a defendant’s pre-arrest silence is permissible to impeach a

defendant witness. Nevertheless, despite finding that the Commonwealth had 

not engaged in prosecutorial overreaching, the trial court granted the defense 

motion and declared a mistrial, citing its concern that the implication of the 

question “may have had the affect [sic] of biasing the jury.” Trial Court 

Opinion, 4/16/21, at 5.

Prior to the commencement of a new trial, Traver filed a motion to 

dismiss on double jeopardy grounds. After considering oral argument and 

briefs, the trial court denied Traver’s motion to dismiss on the conclusion that 

double jeopardy protection was unwarranted in the absence of requisite 

intentional prosecutorial misconduct. See Commonwealth v. Smith, 615 

A.2d 321 (Pa. 1992) (predicating double jeopardy protection on prosecutorial 

misconduct intended to either prompt a defense motion for mistrial or deprive 

defendant of a fair trial). Traver filed a timely interlocutory appeal to this 

Court.

In Commonwealth v. Traver, 1722 MDA 2019, unpublished 

memorandum at **1-3 (Pa.Super. 2020), a panel of this Court concluded 

there was no intentional misconduct by the prosecutor to cause a defense 

motion for mistrial or deprive Traver of a fair trial. However, it remanded the 

matter for reconsideration of the facts under the Pennsylvania Supreme 

Court’s new decision in Commonwealth v. Johnson, 231 A.3d 807 (Pa. 
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2020), which expanded grounds for double jeopardy relief to include 

unintentional prosecutorial misconduct that is, nevertheless, reckless. 

On remand, the trial court determined the prosecutor did not recklessly 

ask the question at issue. In so determining, the trial court rejected Traver’s 

position that the prosecutor falsely misled the jury into thinking Traver 

avoided answering the Trooper’s pre-arrest questions regarding the 

allegations against him. 

Specifically, the court opined that it was actually defense counsel who 

informed the jury through his cross-examination of Trooper Cooney that 

Traver was aware of the allegations against him as early as 2016 when he 

chose not to return a phone call by Trooper Cooney, who left a message that 

he sought an interview. The trial court alludes to the following exchange in 

support of its opinion:

Defense Counsel: 2018. OK. Now you’d agree with me that

these allegations were under investigation, really, since 2016.

Trooper Cooney: Correct. It was February of 2016.

Q: OK and you’d agree with me that Mr. Traver was made 

aware, either through your office or through other – through 

Human Services, Children and Youth Services that he was under 

investigation?

A: Yes, I reached out to Mr. Traver originally after I got the 

original referral. I left a message at his house and a different 

attorney at the time, that he had contacted me.

N.T., 5/21/19, at 187-88. 
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As such, the trial court concluded that the Commonwealth’s reference

to Traver’s failure to cooperate with the investigation when confronted with

D.R.’s accusations was an explanation in fair response to defense counsel’s 

line of questioning revealing to the jury that the investigation into Traver had 

begun in 2016—nearly two and one-half years prior to his arrest—when Traver 

had been contacted by Children and Youth Services and Trooper Cooney.

In his timely interlocutory appeal, Traver presents the following 

questions for this Court’s consideration:

1. Did the prosecutor in the trial before the lower court engage in 

reckless misconduct by questioning Appellant during cross 

examination in a manner which violated his right to remain 

silent under the 5th and 14th Amendments to the United States 

Constitution and Article I, Section 9 of the Pennsylvania 

Constitution?

2. Assuming, arguendo, misconduct, was the unavoidable affect 

[sic] of the prosecutor’s actions a denial of the Appellant’s right 

to a fair trial? 

Brief for Appellant, at 4.

Our standard and scope of review in this case are as follows:

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 
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fact finder, whose findings will not be disturbed on appeal if they 

are supported by the record.

Commonwealth v. Sanchez, --- A.3d ----, 2021 PA Super 197 (Oct. 4, 2021)

(citations omitted).

Prior to Johnson, the Pennsylvania Supreme Court held in Smith that 

the double jeopardy clause of the Pennsylvania Constitution prohibits retrial 

of a defendant not only in instances where the prosecutorial misconduct was 

intended to provoke a defense motion for mistrial but also where it was 

intended to deprive a defendant of a fair trial. Smith, thus, distinguished a 

prosecutor’s “mere error” from “overreaching,” with only the latter 

constituting a tactic that “reflects that the prosecutor, as representative of an 

impartial sovereign, is seeking conviction at the expense of justice.” 

Johnson, 231 A.3d at 820 (discussing Smith and Commonwealth v. 

Simons, 522 A.2d 537, 539 (Pa. 1987)). The double jeopardy clause, our 

Supreme Court concluded, was designed to protect against such a tactic. 

Johnson expanded the class of prosecutorial overreaching sufficient to 

invoke double jeopardy protections to include not only intentional conduct but 

also conduct “undertaken recklessly, that is, with a conscious disregard for a 

substantial risk that [the deprivation of a defendant’s right to a fair trial] will 

result.” Id. at 826.

Recently, this Court discussed the Johnson standard of reckless 

misconduct, as follows:

In Johnson, our Supreme Court considered whether the double 

jeopardy clause bars retrial “where the Commonwealth obtains a 

conviction based on false evidence and its misconduct, while not 
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undertaken with the intent to deny the defendant a fair trial, 

nevertheless stems from prosecutorial errors that rise 

substantially above ordinary negligence.” Johnson, supra at ––

––, 231 A.3d at 810. The relevant facts of Johnson are as follows. 

During investigation of the victim's death, police recovered a red 

baseball cap located in the middle of the street approximately nine 

feet from the victim's body. The cap was assigned a property 

receipt number. Shortly after the murder, the victim's friend Ms. 

Williams gave a statement to police. Ms. Williams was with the 

victim on the night of the murder and described the details of her 

observations to police. Ms. Williams also explained that the victim 

had worn a black baseball cap on the night in question. After the 

shooting, Ms. Williams picked up the black baseball cap, which had 

a bullet hole in it, and she gave it to police while giving her 

statement. The black baseball cap was assigned a separate 

property receipt number and was submitted to the crime lab for 

testing. Testing revealed the presence of the victim's blood under 

the brim of the black cap. Several years later, upon new 

information connecting the appellant to the crime, police obtained 

a sample of the appellant's DNA and submitted it for testing along 

with the red cap. Testing showed the appellant was a contributor 

to the DNA in the sweatband of the red cap.

The Commonwealth subsequently proceeded with its prosecution 

of the case as if there was only one baseball cap—the red one—

which the Commonwealth argued contained both the victim's 

blood and the appellant's DNA. Nevertheless, the 

Commonwealth's argument was factually inaccurate, as neither 

cap had DNA from both individuals.

At trial, the Commonwealth's crucial piece of physical evidence 

was the red baseball cap, and the prosecutor repeatedly 

suggested that the appellant had shot the victim at point blank 

range. Consistent with the Commonwealth's factually inaccurate 

theory of the case, the lead crime-scene investigator testified at 

trial that when he recovered the red baseball cap from the scene, 

he saw fresh blood underneath the brim of the cap. The 

Commonwealth's forensic scientist also testified that the victim's 

blood and the appellant's DNA were both found on “the hat.” In 

closing argument, the prosecutor again told the jury that the DNA 

evidence showed the appellant's sweat on the sweatband of the 

red cap, as well as the victim's blood on the brim.
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In PCRA proceedings, the appellant learned the two caps, a red 

one and a black one, had been analyzed in connection with the 

Commonwealth's case, and that the victim's blood was found only 

on the black one. The Commonwealth thereafter agreed that the 

appellant was entitled to a new trial. The appellant subsequently 

filed a motion to dismiss based on double jeopardy grounds. The 

appellant learned during discovery related to the motion to 

dismiss, that the Commonwealth had “misunderstood its own 

evidence and conflated the findings related to the red and black 

caps.” Id. at ––––, 231 A.3d at 813-14. Notwithstanding the 

“unimaginable mistakes by experienced police officers and an 

experienced prosecutor” made in the case, the trial court found 

no intentional misconduct or bad faith on the Commonwealth's 

part and denied the appellant's motion to dismiss. Id. at ––––, 

231 A.3d at 815-16. This Court affirmed the trial court's ruling.

On appeal to the Supreme Court, the Court initially decided that 

the record supported the trial court's credibility determinations in 

favor of the Commonwealth. The Court stated that the trial court 

had personally heard extensive testimony from numerous 

witnesses involved in the prosecution, actively questioned many 

of the witnesses himself, and ultimately credited the prosecutor's 

testimony and found the Commonwealth had not acted with the 

intent to deprive the appellant of a fair trial. Id. at ––––, 231 A.3d 

at 818-19.

Regarding the scope of double jeopardy protections, the Supreme 

Court held that “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 will be the result.” Id. at ––––, 231 A.3d at 826. In so 

holding, the Court clarified that it did not “suggest that all 

situations involving serious prosecutorial error implicate double 

jeopardy[.]” Id. Rather, “retrial is only precluded where there is 

prosecutorial overreaching—which, in turn, implies some sort of 

conscious act or omission.” Id. (emphasis in original).

Applying its holding to the facts of the case at hand, the Court 

emphasized the trial court's findings that the prosecutor had made 

“almost unimaginable” mistakes, which “dovetailed” with other 

serious errors by law-enforcement officers and other police 

personnel such as the DNA lab technician. Id. Recounting the 

errors in the case, the Court highlighted: (1) the prosecutor's 
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failure to notice that there were two property receipt numbers for 

the two caps, and his failure to verify whether the receipt numbers 

pertained to different caps; (2) the prosecutor's failure to obtain 

a criminalistics report which would have summarized the evidence 

and revealed that there were two different caps involved; (3) the 

failure of the detective who had interviewed Ms. Williams on the 

night of the shooting to recall the evidence of the black baseball 

cap and Ms. Williams’ statement that the victim had worn the 

black cap on the night of the murder; (4) the false testimony from 

the lead crime scene investigator at trial that he saw fresh drops 

of blood under the brim of the red cap on the night of the murder, 

which was factually inaccurate. On this point, the Court stated it 

could not “escape the conclusion that the officer testified to 

something that he did not actually observe[.]” Id. at ––––, 231 

A.3d at 827. Thus, the Supreme Court held that the 

Commonwealth's actions 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. Such actions prejudiced the 

appellant to the point of a denial of a fair trial, immunizing the 

appellant from retrial for the murder of the victim.

Commonwealth v. Sanchez, --- A.3d ----, 2021 PA Super 197 (Oct. 4, 

2021).

Traver claims the Commonwealth’s cross-examination was done in 

reckless disregard of the risk that confronting him with his pre-arrest silence

would violate his federal and state rights to silence and, thus, deprive him of 

a fair trial. As such, he concludes that at the very least a reckless use of his 

silence occurred that brings his case within the scope of Johnson, such that 

double jeopardy relief must attach. We disagree.

Both the Fifth Amendment of the United States Constitution and Article 

1, Section 9 of the Pennsylvania Constitution protect an individual's right not 

to be compelled to be a witness against himself or herself. Commonwealth 

v. Adams, 39 A.3d 310, 316 (Pa.Super. 2012), aff'd, 104 A.3d 511 (Pa. 
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2014). This right has been held to extend to the pre-arrest setting, but 

decisional law of this Commonwealth has observed that when defendants elect 

to testify, the Commonwealth may comment on their pre-arrest silence for 

impeachment purposes or in fair response to their testimony or defense 

tactics: 

The Fifth Amendment and the Fourteenth Amendment's due 

process clause generally prohibit a prosecutor from commenting 

upon a criminal defendant's decision not to testify or upon his 

decision to remain silent during the preliminary stages of a 

criminal investigation. See Doyle v. Ohio, 426 U.S. 610, 618, 

96 S.Ct. 2240, 49 L.Ed.2d 91 (1976); Griffin v. California, 380 

U.S. 609, 613–14, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965); 

Commonwealth v. Randall, 758 A.2d 669, 681 (Pa.Super.

2000). The United States Supreme Court has held that, when a 

defendant elects to testify, neither the Fifth Amendment nor due 

process principles are offended by a prosecutor's reference to that 

defendant's silence, when that reference is used to impeach the 

testifying defendant's credibility. This holds true whether a 

defendant chooses to remain silent pre-arrest or [. . . ] post-arrest 

where no Miranda warnings are given.[fn] See Jenkins v. 

Anderson, 447 U.S. 231, 238, 100 S.Ct. 2124, 65 L.Ed.2d 86 

(1980) (pre-arrest); Brecht v. Abrahamson, 507 U.S. 619, 628, 

113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (citing Fletcher v. Weir, 

455 U.S. 603, 606–07, 102 S.Ct. 1309, 71 L.Ed.2d 490 (1982) 

(per curiam ) (post-arrest)).

. . .

[I]n Commonwealth v. Bolus, 545 Pa. 103, 680 A.2d 839 

(1996)[, the Pennsylvania Supreme Court] was “called upon for 

the first time to decide whether a prosecutor may refer to a 

criminal defendant's pre-arrest silence.” Id. at 843. The Court 

expressly distinguished [Commonwealth v. Turner, 499 Pa. 

579, 454 A.2d 537 (1982)[(addressing reference to post-arrest, 

pre-Miranda silence)] based upon the time at which the accused's 

silence occurred. The Court explained:
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We find Turner, however, to be distinguishable from 

the instant matter. In Turner, the period of silence 

which was referenced by the prosecution occurred 

after the defendant's arrest, but prior to the time the 

defendant was given his Miranda warnings. In the 

instant matter, the prosecutor questioned Appellant 

regarding his silence which occurred months before he 

was arrested.

Id. The Bolus Court adopted the United States Supreme Court's 

rationale in Jenkins, and held that, “when a criminal defendant 

waives his right to remain silent and testifies at his own trial, 

neither the United States nor the Pennsylvania Constitution 

prohibit a prosecutor from impeaching a defendant's credibility by 

referring to his pre-arrest silence.” Id. at 844.

Commonwealth v. Kuder, 62 A.3d 1038, 1049, 1051-52 (Pa.Super. 2013). 

Furthermore:

a prosecutor may make fair comment on the admitted evidence 

and may provide fair rebuttal to defense arguments.” 

Commonwealth v. Burno, 626 Pa. 30, 94 A.3d 956, 974 (2014). 

“Even an otherwise improper comment may be appropriate if it is 

in fair response to defense counsel's remarks. Any challenge to a 

prosecutor's comment must be evaluated in the context in which 

the comment was made.” Id. (citation and internal quotation 

marks omitted). 

Commonwealth v. Reid, 259 A.3d 395, 429 (Pa. 2021). See also

Commonwealth v. Fischere, 70 A.3d 1270, 1276 (Pa.Super. 2013) (“our

Supreme Court has held ‘there is no Fifth Amendment proscription precluding 

the raising of silence in fair response to defense argumentation.’) (citing 

Commonwealth v. DiNicola, 866 A.2d 329, 335 (Pa. 2005)); Adams, 

supra (holding prosecutor’s remarks about defendant’s pre-arrest silence 

were fair response to defense commentary and therefore did not violate right 

to silence under Article I Section 9).
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In the case sub judice, both the prosecutor’s question put to Mr. Traver 

and his subsequent clarification of Mr. Traver’s confusing, if not misleading,

reply were collectively, in significant part, fair response to the defense tack of 

informing the jury both in its opening statement and through its crossexamination of Trooper Cooney that the investigation’s focus on Mr. Traver 

had lasted two and one-half years before he was finally arrested. While asking

Mr. Traver if he ever offered to Trooper Cooney the denial he had just stated 

for the jury implicated his pre-arrest silence, the brief reference was part of 

an exchange that, taken as a whole, provided an explanation for the 

protracted investigative timeline that the defense had called into question. 

See DiNicola, supra (reference to a defendant's refusal to speak to trooper 

constituted fair response to defense counsel's questioning of the adequacy of 

the trooper's investigation).

Therefore, in light of the fact that a purpose other than suggesting guilt 

was served by the cross-examination in question, we join in the trial court’s 

discernment that nothing in the record evinces the prosecution’s conscious

disregard of justice, or “wanton or heedless indifference to consequences,” 

undertaken in the hope of securing a favorable verdict that would warrant the 

double jeopardy sanction. 

As indicated, the Commonwealth had not referred to Mr. Traver’s prearrest silence in either its opening statement or its case-in-chief, it broached 

the topic only after the defense twice referred to the long passage of time 

between initial accusations against Mr. Traver and his arrest, and it was the 
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trial court’s perception that the question was asked in earnest1to impeach or 

provide fair response to Mr. Traver’s testimony after he had elected to waive 

his right to remain silent by taking the witness stand and offering a categorical 

denial of having committed the acts with which he was charged. 

On this last point, the fact that the question put to Mr. Traver did not 

offend his federal constitutional right to silence, and that decisional law on 

Article I, Section 9 likewise permits such a question if it impeaches his 

credibility on a basis other than silence equating to a tacit admission or if it 

constitutes fair response to testimony or defense strategy, are further 

indication of the complexities attendant to referencing the pre-arrest silence 

of a testifying defendant that work in favor of upholding the trial court’s 

assessment here that any error on the Commonwealth’s part in asking its

question was just that, an error, and not “some sort of conscious act or 

omission” on which, Johnson observes, the double jeopardy bar must be 

based. Id., 231 A.3d at 826.

Therefore, we would concur with the trial court in its determination that 

any error committed by the Commonwealth during its cross-examination did 

not reach the level of prosecutorial misconduct reflecting a reckless, conscious

disregard for Mr. Traver’s right to receive a fair trial.

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1 We see no reason to disrupt the court's credibility determinations in favor of 

the Commonwealth, which are supported by the record. See Graham, supra. 

See also Johnson, 231 A.3d at 818 (discussing great deference afforded to 

trial courts regarding credibility determinations).
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For the foregoing reasons, the trial court’s denial of Mr. Traver’s motion 

to bar retrial on grounds of double jeopardy is affirmed. Case is remanded to 

the trial court for a new trial. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 01/06/2022