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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT

OF

PENNSYLVANIA

Appellee

v.

NELSON RIVERA, JR.

Appellant No. 792 MDA 2017

Appeal from the Order May 8, 2017

In the Court of Common Pleas of Clinton County

Criminal Division at No: CP-18-CR-0000513-2016

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT

OF

PENNSYLVANIA

Appellee

v.

NAPHEACE JAMAL COOPER-REID

Appellant No. 793 MDA 2017

Appeal from the Order May 8, 2017

In the Court of Common Pleas of Clinton County

Criminal Division at No: CP-18-CR-0000245-2016

BEFORE: STABILE, NICHOLS, AND RANSOM,* JJ.

MEMORANDUM BY STABILE, J.: FILED JUNE 13, 2018

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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Appellants, Nelson Rivera, Jr. and Napheace Jamal Cooper-Reid, codefendants in a drug trafficking case, appeal from an order denying their 

motions to bar retrial on double jeopardy grounds following the declaration of 

a mistrial. Appellants contend that the Commonwealth committed 

prosecutorial misconduct with the intent to force a mistrial or prejudice 

Appellants’ right to a fair trial. We consolidate these appeals pursuant to 

Pa.R.A.P. 513, and we affirm.

Appellants were charged with twenty counts of possession with intent to 

deliver a controlled substance, a general conspiracy to sell a controlled 

substance, two counts of corrupt organizations, one count of criminal use of a 

communication facility and one count of dealing in proceeds of unlawful 

activity. The case was complex because there were nineteen alleged sales of 

various controlled substances between July 25, 2014 and April 19, 2015. The 

trial court set aside five days for a jury trial, and the Commonwealth provided 

a voluminous amount of pretrial discovery to Appellants.

The Commonwealth committed multiple missteps during trial. First, it 

moved to qualify Agent Andrew Sproat, a lead investigator in this case who 

posed as a heroin user, as an expert in voice recognition. N.T., 2/27/17, at 

45-57, 61-66. The trial court denied the Commonwealth’s motion because it 

failed to disclose before trial its intent to qualify Agent Sproat as an expert 

witness. Id. at 77-78. 
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Next, the Commonwealth attempted to introduce a PowerPoint

presentation to the jury that summarized evidence it had produced during 

pretrial discovery. Appellants objected on the ground that the Commonwealth 

had not disclosed the PowerPoint presentation itself before trial. N.T., 

2/29/17, at 74. The trial court ordered the Commonwealth to provide a copy 

of the PowerPoint to Appellants before introducing it into evidence. The 

Commonwealth did so but altered one of the PowerPoint slides without first 

advising Appellants. N.T., 3/1/17, at 179-80. The slide originally reflected

that one Draymond Jones made a drug delivery on April 19, 2015, but the 

Commonwealth corrected the slide to reflect that Appellant Cooper-Reid made 

the delivery—a claim that was consistent with a report that the 

Commonwealth provided Appellants during pretrial discovery. Id. at 179-80. 

The trial court permitted the jury to view the corrected slide. 

Third, the Commonwealth destroyed a cell phone that contained text 

messages between Agent Sproat and Appellant Rivera. N.T., 3/1/17, at 12. 

Agent Sproat testified that in November 2014, he had phone conversations 

and text message communications with Rivera concerning heroin purchases. 

Id. at 239-45. Rivera objected, claiming the Commonwealth had to provide 

the original text messages to him. The prosecutor explained that the text 

messages might have been memorialized in investigative reports but that the 

original text messages may not be available. Id. at 246. Agent Sproat then 

explained that he turned in his prior work phone, which contained the text 
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messages in question, in order to receive another work phone, but that he did 

not take photographs of text messages with Rivera on the first work phone. 

Id. at 248. The Commonwealth then removed the text messages from the 

first work phone. Id. at 6-7. When the trial court asked if a phone company 

could retrieve the deleted text messages, Agent Sproat conceded the 

Commonwealth’s actions rendered the phone permanently unavailable. Id.

at 7-9. He explained that the Commonwealth removed the text messages 

because the phone contained confidential information, including information

from other cases, but that he described the text messages verbatim in his

investigative reports. Id. at 10-12. The trial court concluded that the 

Commonwealth did not act in bad faith by removing the text messages from 

the phone, and that Agent Sproat’s testimony concerning text messages was 

permissible under Pa.R.E. 1004.

1 Id. at 20. 

Finally, the Commonwealth failed to disclose Appellant Rivera’s 

inculpatory statement before Agent Sproat’s testimony at trial. Agent Sproat 

testified that on April 16, 2015, he had a phone conversation with Rivera in 

which Rivera agreed to sell heroin on April 19, 2015. N.T., 3/1/17, at 171-

72. On April 19, 2015, Agent Sproat learned that Appellant Cooper-Reid would 

make the sale, not Rivera. Id. at 172-79. Agent Sproat wrote a report that 

____________________________________________

1 Pa.R.E. 1004 provides in relevant part: “An original is not required and other 

evidence of the content of a writing, recording, or photograph is admissible if 

. . . all the originals are lost or destroyed, and not by the proponent acting in 

bad faith.” Pa.R.E. 1004(a).
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the controlled purchase on April 19, 2015 was arranged on April 16, 2015, but 

the report did not mention that the April 16, 2015 conversation was with 

Rivera. Id. at 188-200. The trial court concluded the Commonwealth 

committed a discovery violation by not informing Appellants prior to trial that 

Agent Sproat’s conversation on April 16, 2015 was with Rivera. Id. at 188-

204. Due to this error, the trial court granted a mistrial on the third day of 

trial.

The trial court scheduled a retrial, but Appellants moved to bar retrial 

on the basis of double jeopardy. In response, on May 5, 2017, the trial court 

convened a hearing in which Agent Sproat testified about the Commonwealth’s 

errors during trial. The theme of his testimony was that he did nothing 

intentional to prejudice Appellants during trial. 

Agent Sproat explained that (1) he, the trial prosecutor, and a police 

chief corrected the PowerPoint slide to state that Appellant Cooper-Reid made 

the drug delivery instead of Jones, (2) the PowerPoint consisted of information 

included in reports that Appellants received during discovery, and (3) the 

PowerPoint presentation was a work in progress at the time of trial. The 

prosecution showed the corrected PowerPoint slide to the jury instead of the 

incorrect slide. Agent Sproat testified that he did not intentionally change 

information on the PowerPoint but simply corrected the mistaken reference to 

Jones. N.T., 5/5/17, at 3-42.
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With regard to the text messages deleted from his first work phone after 

he turned it in, Agent Sproat explained that he did not photograph the text 

messages on this phone because of security issues. Agent Sproat added that

his work phone did not change often, so he believed he would continue to 

have access to his text messages. He did not turn in his first work phone 

intending for the text messages to be deleted. Id.

Finally, with regard to his phone call with Rivera on April 16, 2015, Agent 

Sproat testified that he could recall this conversation without notes because it 

was a significant event in the case, and therefore he did not need to 

memorialize it in a report. He testified that he did not intentionally fail to 

mention in his April 19, 2015 report that the conversation was with Rivera. 

Id.

After the hearing, the trial court denied Appellants’ motion to bar retrial 

on double jeopardy grounds, concluding the Commonwealth’s mistakes did 

not amount to deliberate misconduct or a pattern of pervasive misconduct. 

The trial court stated its order was immediately appealable. Appellants filed 

timely appeals, and both Appellants and the trial court complied with Pa.R.A.P. 

1925. 

In his appeal at 792 MDA 2017, Appellant Rivera raises a single issue:

Whether the [trial] court committed an abuse of discretion/error 

of law in denying Appellant’s Motion to Bar Retrial, despite the 

continuing discovery issues during the trial held February 27, 2017 

through March 1, 2017 and subsequent mistrial as a result 

thereof. Specifically, whether the Honorable Court erred in not 

granting [Appellant’s] Motion to Bar Mistrial when said discovery 
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violations, including the destruction of evidence in the form of text 

messages and notes from police interviews were established at 

the Court’s hearing held May 5, 2017.

Appellant Rivera’s Brief at 4. Similarly, in his appeal at 793 MDA 2017, 

Appellant Cooper-Reid raises a single issue:

Whether the [trial] court committed an abuse of discretion/error 

of law in denying Appellant’s Motion to Bar Retrial, despite the 

continuing discovery issues during the trial in this matter, to the 

extent that said discovery issues denied [Appellant] a fair trial in 

this matter, as well as overwhelming evidence that the 

Commonwealth, through its agent(s), destroyed evidence, 

including text messages?

Appellant Cooper-Reid’s Brief at 6. We review these arguments together.

Appellants ask this Court to reverse the trial court’s order denying their 

motions to bar retrial on double jeopardy grounds.

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. Kearns, 70 A.3d 881, 884 (Pa. Super. 2013) (citations 

omitted).
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The Double Jeopardy Clauses of the Fifth Amendment to the United 

States Constitution and Article 1, Section 10 of the Pennsylvania Constitution 

protect a defendant from repeated criminal prosecutions for the same offense. 

Id. Ordinarily, the law permits retrial when the defendant successfully moves 

for mistrial. If, however, the prosecution engages in certain forms of 

intentional misconduct, the Double Jeopardy Clause bars retrial. Id. Article 

I, Section 10, which our Supreme Court has construed more broadly than its 

federal counterpart, bars retrial “not only when prosecutorial misconduct is 

intended to provoke the defendant into moving for a mistrial, but also when 

the conduct of the prosecutor is intentionally undertaken to prejudice the 

defendant to the point of the denial of a fair trial.” Commonwealth v. Smith, 

615 A.2d 321, 325 (Pa. 1992). 

A prosecutor’s error, even an error constituting gross negligence, does 

not deprive the defendant of a fair trial. Kearns, 70 A.3d at 886. However,

“where the prosecutor’s conduct changes from mere error to intentionally 

subverting the court process, then a fair trial is denied.” Id. at 884. 

Thus under Pennsylvania jurisprudence, it is the intentionality 

behind the Commonwealth’s subversion of the court process, not 

the prejudice caused to the defendant, that is inadequately 

remedied by appellate review or retrial. By and large, most forms 

of undue prejudice caused by inadvertent prosecutorial error or 

misconduct can be remedied in individual cases by retrial. 

Intentional prosecutorial misconduct, on the other hand, raises 

systematic concerns beyond a specific individual’s right to a fair 

trial that are left unaddressed by retrial. As this Court has often 

repeated, ‘[a] fair trial is not simply a lofty goal, it is a 

constitutional mandate, . . . [and] [w]here that constitutional 
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mandate is ignored by the Commonwealth, we cannot simply turn 

a blind eye and give the Commonwealth another opportunity.”

Id. at 884–85 (citations omitted).

Several decisions illuminate the difference between intentional 

misconduct, which triggers double jeopardy protections, and gross negligence, 

which does not. In Smith, the Commonwealth intentionally withheld 

information from a capital defendant, including (1) 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 during the trial consisting of grains of 

sand found between the toes of the murder victim during her autopsy. The

sand was consistent with the defendant’s claim that someone else committed 

the crime in Cape May, New Jersey, not him in Pennsylvania. Emphasizing 

the egregious nature of the Commonwealth’s misconduct and its resulting 

prejudice (the defendant’s conviction and death sentence), the Supreme Court 

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 and thereby deny him a fair trial.” Id., 615 A.2d at 325. Because 

the prosecutor’s conduct “was intended to prejudice the defense and thereby 

deny him a fair trial, [the defendant] must be discharged on the grounds that 
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his double jeopardy rights, as guaranteed by the Pennsylvania Constitution, 

would be violated by conducting a second hearing.” Id.

In Commonwealth v. Martorano, 741 A.2d 1221 (Pa. 1999), the 

prosecutor committed misconduct during trial including “blatantly 

disregarding the trial court’s evidentiary rulings, disparaging the integrity of 

the trial court in front of the jury, and repeatedly alluding to evidence that the 

prosecutor knew did not exist.” Id. at 1222. While acknowledging the 

misconduct, the Commonwealth argued that double jeopardy principles were 

not proper because Smith only applied where the prosecution withheld 

exculpatory evidence. The Supreme Court rejected this argument, holding 

that double jeopardy barred retrial where the prosecutor's action “evinces the 

prosecutor’s intent to deprive [the defendant] of a fair trial; to ignore the 

bounds of legitimate advocacy; in short, to win a conviction by any means 

necessary.” Martorano, 741 A.2d at 1223.

Finally, in Commonwealth v. Anderson, 38 A.3d 828 (Pa. Super. 

2011) (en banc), the defendant was convicted of sexually assaulting three 

mentally retarded children who resided at a state hospital. This Court 

reversed the defendant’s conviction and remanded for a new trial due to the 

prosecutor’s misconduct during closing argument. On remand, the trial court 

ordered the prosecutor not to meet with any of the complainants unless other 

personnel from the hospital were present. The prosecutor violated this order 

by meeting alone with one of the complainants for several hours to rehearse 
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his testimony and then lied to the trial court that the meeting did not take 

place. This Court held that the prosecutor’s misconduct violated 

Pennsylvania’s Double Jeopardy Clause and affirmed the trial court’s order 

granting the defendant’s motion to dismiss. Id. at 840.

In contrast, Kearns demonstrates that gross negligence by the 

Commonwealth does not require dismissal of a criminal case. During a nonjury trial in an attempted murder case, defense counsel obtained a 

continuance when he learned that the Commonwealth failed to produce an 

incident report from the West Deer Police Department. When trial reconvened 

one week later, the Commonwealth admitted that defense counsel had 

requested the entire case file during the continuance period, and that there 

were two additional important documents that had not been disclosed to him. 

The court granted the defendant’s motion for a mistrial, and the defendant

filed a motion to dismiss alleging a double jeopardy violation. The court 

dismissed all charges and barred a retrial, stating that “[w]hile it did not 

appear that the prosecutor intentionally withheld this evidence, it is apparent 

. . . that the [p]rosecution was grossly negligent in failing to obtain and 

produce the clearly discoverable material.” Kearns, 70 A.3d at 885.

This Court reversed and remanded for further proceedings, stating:

We accept the factual determinations of the trial court regarding 

the Commonwealth’s conduct and, further, we accept its legal 

conclusion that the Commonwealth was grossly negligent in 

withholding discoverable evidence from the defense based upon 

those factual determinations. Nevertheless, gross negligence on 
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the part of the Commonwealth is never a sufficient basis upon 

which to bar retrial on double jeopardy grounds.

Id. at 886; see also Commonwealth v. Strong, 825 A.2d 658, 668-70 (Pa. 

Super. 2003) (prosecution’s failure to disclose information pursuant to Brady 

v. Maryland, 373 U.S. 83 (1963), that key witness was receiving leniency in 

exchange for testimony did not warrant dismissal of charges, where there was 

no evidence demonstrating specific intent to deny defendant fair trial).

In the present case, the trial court reasoned that “nothing in the 

evidence presented to us, particularly the testimony of [Agent] Sproat, would 

suggest that the Commonwealth intended to keep [any] information from 

defense counsel.” Order Denying Motion of Defendants to Bar Retrial, 5/8/17, 

at 2. The court continued:

We find that neither the failure to clarify the contact between 

[Agent] Sproat and Rivera on the 16th nor the belated 

modification of a PowerPoint nor any of the other discovery 

violations amounted to a deliberate and intentional tactic to deny 

[Appellants] a fair trial. Clearly, [the prosecutor] and his 

witnesses should have made a more diligent effort to guarantee 

defense counsel had the information they believe was necessary. 

On the other hand, the sheer complexity of this case and the fact 

that the task force allowed [Appellants] to allegedly engage in 

nineteen (19) separate sales before making an arrest resulted in 

the accumulation of massive amounts of evidence which defense 

counsel understandably had difficulty assimilating. Nonetheless, 

we are not convinced that any alleged omissions or misstatements 

amounted to deliberate misconduct or a pattern of pervasive 

misconduct [that] would justify the dismissal of the charges 

against [Appellants]. The appropriate remedy for the negligence 

of the prosecution is simply a new trial.

Id. at 2-3. 
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We see no reason to overturn this decision. The trial court presides as 

factfinder when the defendant moves to bar retrial on the basis of 

prosecutorial misconduct. If the court determines that the Commonwealth 

committed intentional misconduct to deprive the defendant of a fair trial—

e.g., the prosecutor deliberately concealed exculpatory evidence (Smith), 

misled the jury about non-existent evidence (Martorano), or brazenly 

violated a court order and then lied to the court that no violation took place 

(Alexander)—the trial court should grant the defendant’s motion to bar retrial 

under Pennsylvania’s Double Jeopardy Clause. Conversely, if the court 

determines that the Commonwealth was negligent, or even grossly negligent, 

such as the prosecutor in Kearns who failed to turn over multiple important 

documents during discovery, barring retrial is too harsh a sanction. We cannot 

reverse the trial court’s finding of intent or negligence when it is supported by 

the record. Kearns, 70 A.3d at 884. Here, the trial court found that the 

Commonwealth’s errors were the product of negligence instead of intent to 

deprive Appellants of a fair trial. Agent Sproat’s testimony during trial and 

the post-trial evidentiary hearing supports this finding. Agent Sproat 

confirmed that the alteration of the PowerPoint slide, deletion of text 

messages from his first work phone, and his failure to state in his report that 

his conversation on April 16, 2015 was with Appellant Rivera were all errors 

but not deliberate acts of misconduct. The proper sanction, therefore, was 
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not to dismiss the charges against Appellants but to make the Commonwealth 

retry Appellants in a new trial. 

Order affirmed. Case remanded for further proceedings. Jurisdiction 

relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 06/13/2018