J-S29026-18

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* Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ALFONSO SANCHEZ, 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 3368 EDA 2017

Appeal from the Order October 11, 2017

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

No(s): CP-09-CR-0001136-2008

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

MEMORANDUM BY MURRAY, J.: FILED JUNE 28, 2018

Alfonso Sanchez (Appellant) appeals from the trial court’s order denying 

his motion to dismiss on double jeopardy grounds.

1

 After careful review, we 

affirm.

The trial court summarized the genesis of this case as follows:

____________________________________________

1 This interlocutory appeal is properly before us pursuant to Pa.R.Crim.P. 

587(B)(6) (If the judge denies the motion 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.); see also N.T., 10/11/17, at 228-229 (trial 

court stating that the motion is not “well-grounded” or “supported by the 

evidence,” but averring that “I can’t say, as a matter of fact, that I find it to 

be frivolous”); Trial Court Opinion, 12/20/17, at 6 (“Because this court found 

that the Motion to Dismiss on Double Jeopardy grounds was not frivolous on 

its face, and was not subject to automatic dismissal, [Appellant] was permitted 

to file an interlocutory appeal of our denial of his Double Jeopardy Motion.”).
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On September 30, 2008, after a seven (7) day jury trial, 

[Appellant] was found guilty of Murder in the First Degree in the 

shooting deaths of Mendez Thomas and Lisa Diaz. [Appellant] was 

also found guilty of fifteen (15) other counts including Burglary, 

Attempted Homicide, Aggravated Assault, Possession of an 

Instrument of Crime, Criminal Conspiracy (Murder, Burglary, 

Aggravated Assault, and Possession of an Instrument of Crime), 

Flight to Avoid Apprehension, and Recklessly Endangering Another 

Person.

On October 2, 2008, at the conclusion of the penalty hearing 

for First Degree Murder, the jury sentenced [Appellant] to death 

for the willful murder of Lisa Diaz and to life imprisonment for the 

murder of Mendez Thomas.

On October 22, 2008, this [trial c]ourt, in accordance with 

the verdict of the jury, imposed a sentence of death for the murder 

of Lisa Diaz, and a consecutive sentence of life imprisonment for 

the murder of Mendez Thomas.

Trial Court Opinion, 12/20/17, at 1.

A protracted procedural history ensued. See id. at 2-5. More than five 

years later, on December 17, 2013, the Pennsylvania Supreme Court reviewed 

Appellant’s direct appeal nunc pro tunc and affirmed his judgment of sentence. 

Commonwealth v. Sanchez, 82 A.3d 943 (Pa. 2013) (rejecting Appellant’s 

argument that because there was insufficient evidence to support his burglary 

and conspiracy to commit burglary convictions, there was insufficient evidence 

to prove that that the killings were committed during the perpetration of 

felonies, and thus the jury considered a non-existing aggravating 

circumstance when it imposed the death sentence).
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On January 30, 2015, Appellant filed a petition pursuant to the Post 

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. The PCRA court 

scheduled a hearing for April 19, 2016. The trial court explained:

After the April 19, 2016 hearing, this [c]ourt granted 

continuances of the PCRA hearing at the request of [Appellant] 

and his counsel.

Prior to the conclusion of a further PCRA hearing, held on 

January 26, 2017, the Commonwealth informed this [c]ourt that

they were in receipt of a DNA lab analysis report from the 

Pennsylvania State Police. The DNA report was dated October 

2[3], 2008[]. The lab report concerned DNA found under Lisa 

Diaz’s fingernail clippings, which matched the DNA of [Appellant’s]

co-defendant, Steven Miranda, who in a joint trial with 

[Appellant], was found guilty by the same jury, of First Degree 

Murder.

On January 26, 2017, with the agreement of the 

Commonwealth, this [c]ourt entered an Order vacating the 

judgment of sentence imposed on October 22, 2008 and ordering 

a new trial. This Order granting a new trial was the result of a 

joint motion by the Commonwealth and [Appellant’s] PCRA 

counsel.

On February 14, 2017, this [c]ourt received a pro se Motion 

to Dismiss on Double Jeopardy grounds from [Appellant]. In the 

Motion, [Appellant] alleged:

“The Commonwealth intentionally suppressed 

evidence in the form of the DNA report and the evidence 

itself revealed that Steven Miranda’s DNA was under Lisa 

Diaz’s fingernails when she was killed.”

“The Prosecutor knew or should have known both 

pretrial and during the trial that multiple pieces of physical 

evidence – including the fingernail clippings - had been 

submitted to the State Police Crime Lab for DNA Analysis.”

“The presence of a defendant’s DNA under the 

fingernails of a murder victim is a powerful piece of 

inculpatory evidence, and here it inculpated Steven 
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Miranda. Where DNA was found under only one hand, as 

here, it suggests that Diaz scratched Miranda to defend 

herself against him as her aggressor.”

Upon receipt of this pro se Motion to Dismiss for Double 

Jeopardy, this [c]ourt, on March 31, 2017, forwarded a copy to 

both the Bucks County District Attorney’s Office and the Federal 

Community Defender Office.

Thereafter, new court-appointed counsel was appointed by 

this [c]ourt to represent [Appellant] at a re-trial scheduled for 

October 10, 2017.

Newly court-appointed counsel for [Appellant] requested 

that this [c]ourt conduct a separate hearing upon the pro se

Motion to Dismiss on the basis of Double Jeopardy. A hearing was 

held on October 10 and October 11, 2017, and the motion was 

denied.

***

On October 13, 2017, [Appellant] filed a Notice of Appeal to 

the Superior Court of Pennsylvania and filed a Concise Statement 

of Matters on November 3, 2017.

The single issue presented in this appeal is whether this 

[c]ourt “erred in denying [Appellant’s] Motion to Dismiss on 

Double Jeopardy grounds based on a Brady violation and 

prosecutorial misconduct.”

Trial Court Opinion, 12/20/17, at 5-7.

Likewise, Appellant presents this Court with the same question:

DID THE TRIAL COURT ERR IN DENYING APPELLANT’S MOTION 

TO DISMISS BASED ON A BRADY VIOLATION AND 

PROSECUTORIAL MISCONDUCT?

Appellant’s Brief at 4.

We review Appellant’s claim mindful of the following:

An appeal grounded in double jeopardy raises a question of 

constitutional law. This court’s scope of review in making a 
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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), citing

Commonwealth v. Graham, 109 A.3d 733, 736 (Pa. Super. 2015) (brackets 

and citation omitted), appeal denied, 126 A.3d 1282 (Pa. 2015). We have 

also explained:

The double jeopardy clause of the Pennsylvania Constitution 

prohibits retrial of a defendant when the conduct of the prosecutor 

is intentionally undertaken to prejudice the defendant to the point 

of denying him a fair trial. However, because of the compelling 

societal interest in prosecuting criminal defendants to conclusion, 

our Supreme Court has recognized that dismissal of charges is an 

extreme sanction that should be imposed sparingly and only in 

cases of blatant prosecutorial misconduct. 

Commonwealth v. Wilson, 147 A.3d 7, 13 (Pa. Super. 2016) (citations 

omitted).

Instantly, Appellant argues that the trial court erred in denying his 

motion to dismiss, and alleges that suppression of the DNA evidence and the 

prosecution’s “intentional misrepresentations” and “willful misconduct” bar a 

re-trial. Appellant’s Brief at 7. Appellant cites Brady v. Maryland, 373 U.S. 

83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), where “the United States Supreme 
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Court held that ‘the suppression by the prosecution of evidence favorable to 

an accused upon request violates due process where the evidence is material 

either to guilt or to punishment, irrespective of the good faith or bad faith of 

the prosecution.’” Commonwealth v. Sullivan, 820 A.2d 795, 802 n.5 (Pa. 

Super. 2003). Appellant claims that prior to and during trial, his counsel 

“repeatedly asked the prosecutor for the status of DNA testing on the victim’s 

fingernails. At first the prosecutor gave no answer, but eventually said he had 

checked and no such testing had been or was being done [when] in fact the 

Warminster [Township] police had been notified about pending testing.” 

Appellant’s Brief at 7. Appellant concedes that to prevail on his Brady claim, 

he must “show that the prosecutor’s misconduct was intended to provoke the 

defendant into moving for a mistrial, or that the conduct of the prosecutor was 

intentionally undertaken to prejudice the defendant to the point of the denial 

of a fair trial.” Id. at 8, citing Commonwealth v. Smith, 615 A.2d 321, 325 

(Pa. 1992) (holding 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).

In support of his allegation of willful misconduct, Appellant references 

testimony from his trial counsel, Jack McMahon, Esquire, that Mr. McMahon’s 

defense theory was that Appellant’s co-defendant had committed the murder, 
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and that Mr. McMahon would have used the exculpatory DNA evidence at 

Appellant’s trial. Appellant’s Brief at 10, citing N.T., 10/11/17, at 132. 

Appellant further references Mr. McMahon’s testimony that he repeatedly 

asked the district attorney at the time, Thomas Gambardella,

2 about the DNA 

evidence prior to trial and during jury selection. Appellant’s Brief at 10. Mr.

McMahon testified that Mr. Gambardella told him that no fingernail testing had 

occurred and opined that Mr. Gambardella lied to him. Id., citing N.T., 

10/11/17, at 141.

Appellant additionally cites the testimony of Detective John Bonargo, 

who learned in September 2008 – the month of Appellant’s trial – that the 

Pennsylvania State Police (PSP) had completed a preliminary report and would 

be sending the fingernail clippings for further testing. Appellant’s Brief at 9. 

That report was dated October 23, 2008, and showed an absence of 

Appellant’s DNA on the victim’s fingernails. Detective Bonargo testified that 

he did not speak to Mr. Gambardella about the report, causing the trial court 

to remark that “[s]omeone wasn’t minding the store.” Id., citing N.T., 

10/11/17, at 226.

In response, the Commonwealth concedes that its “failure to ensure that

Appellant was advised prior to trial that [DNA] testing was being undertaken 

warranted relief by way of a new trial.” Commonwealth Brief at 29. 

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2 Thomas Gambardella is currently a Magisterial District Judge; he worked as 

a district attorney in Bucks County until 2010. N.T., 10/10/17, at 85.
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Conversely, though, the Commonwealth states that “there was no intentional 

attempt by the prosecution to deprive [Appellant] of a fair trial, [and] 

Appellant’s request to prevent a retrial in this capital murder case on double 

jeopardy grounds is wholly unjustified.” Id. Specifically, the Commonwealth 

argues:

The record establishes that neither the affiants nor the 

prosecutor in this case believed that evidence had been submitted 

to the laboratory for DNA analysis and proceeded to trial on that 

belief. The fact that this belief proved erroneous was not the 

result of intentional prosecutorial misconduct, but, rather, failure 

to communicate among the officers involved in the investigation 

of the case.

Id. at 29. The essence of the Commonwealth’s argument is that the credible 

evidence failed to establish that the erroneous conduct was taken to 

intentionally subvert the court process and deny Appellant a fair trial. Id. at 

32. The Commonwealth, referencing hearing testimony, states that the 

“failure on the part of the officers and the assigned prosecutor to effectively 

communicate with one another regarding this issue resulted in the collective 

ignorance of the prosecution team at the time of trial as to the existence of 

either the testing or the lab report.” Id. at 34. Significantly, the 

Commonwealth contends that “[i]n contrast to the compelling and credible 

evidence that the prosecution did not intentionally conceal or suppress the 

DNA evidence in this case, the only information provided to the trial court to 

support Appellant’s claim to the contrary was that imparted by Mr. McMahon.” 

Id. at 39.
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We have reviewed the record and specifically the notes of testimony. 

The document at issue was formally introduced as the report from the 

Pennsylvania State Police Bureau of Forensic Services, DNA Laboratory in 

Greensburg, Pennsylvania, dated October 23, 2008. See N.T., 10/10/17, at 

79-80. Pertinently, Mr. Gambardella3testified that he did not “recall directing” 

the taking and submission of DNA testing, and it was “something that the

detectives could decide to do on their own.” Id. at 78. Further, it was not 

until after trial that Bucks County Detective McDonough told him that the 

detective had received “a report, I believe from Warminster [Township], 

involving DNA analysis, but that’s my recollection. That was after the verdict, 

well after verdict.” Id. at 79. Mr. Gambardella testified that he immediately 

forwarded the report to Appellant’s counsel, Mr. McMahon. Id. at 80, 82, 84, 

93. Mr. Gambardella stated:

I didn’t make a judgment at the time. I think it’s for Mr. 

McMahon to do, to make a judgment as to what value the evidence 

might have had, if any, but it was an analysis that came in 

involving the case and involving one of the co-defendants who was 

present at the scene, even though he had a relationship, or that’s 

my recollection, with the victim, but because it was material to 

the facts involving a co-defendant, I immediately turned it over. 

. . . [A]gain, it was something that involved the case. Whether it 

involved [Appellant] or not, [Appellant] or [his co-defendant], 

because it involved one of the defendants, I determined, as I 

would for anything of this nature, that it should be turned over.

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3 As previously noted, Thomas Gambardella is now a Magisterial District Judge. 

However, because Judge Gambardella was a district attorney during the 

timeframe relevant to our analysis, we refer to him as Mr. Gambardella.
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N.T., 10/10/17, at 96.

When asked whether he had intentionally withheld evidence, Mr. 

Gambardella replied, “[n]o, never.” Id. at 97. He also testified that he did 

not know of any detectives or police intentionally withholding evidence. Id. 

Warminster Township Police Detective John Bonargo testified to working 

with the Bucks County District Attorney’s office and taking the fingernail 

evidence to the PSP for analysis in November of 2007. N.T., 10/11/17, at 9, 

18. At the time, Detective Bonargo listed his name on the submission form 

as the “point of contact.” Id. at 10. However, he stated that he “didn’t have 

any personal conversations” with the lead investigator, Detective Harold,

about the evidence, and opined that he “should have.” Id. at 20. It was not 

until 2008 when PSP contacted Detective Bonargo about the fingernail 

clippings. Id. The detective testified that he received the DNA analysis “post 

conviction.” Id. at 22. He did not recall being asked by anyone prior to trial 

about the DNA testing occurring. Id. at 23. He explained that when he went 

to the lab and retrieved the report he:

[r]eturned to headquarters, put those items in evidence, and 

placed the serology report on my Sergeant’s desk, which in 

hindsight, I should have notified the affiant [Detective Harold] in 

the case right away so they would know immediately those items 

were back.

N.T., 10/10/17, at 12. 

Appellant’s trial counsel, Mr. McMahon, testified on Appellant’s behalf. 

He stated:
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I think I asked [the assistant district attorney, Mr. Gambardella,] 

prior to trial. I asked him twice during the trial, or during the jury 

selection process, because just after all my experience trying 

homicide cases, there is no way that the Pennsylvania State Police 

clipped those [finger]nails and then did nothing with them.

N.T., 10/11/17, at 131-132.

He continued:

[T]he first time I asked him was on the telephone. He said he 

didn’t know. He did not – he just wasn’t sure, and I said check 

into it. Then he told me that they were – that no testing was 

done. Then when we came back here again I said, look, you got 

to go check again, and he told me that he called the Pennsylvania 

State Police, because I said to him, Gary, come on, man, there’s 

no way, and he said he called the Pennsylvania State Police and 

they said they did not analyze those forensically in any way, 

shape, or form, and I said that’s nonsense. I said to him you’ve 

got to talk to somebody else because that’s just, I don’t know who 

you spoke to, but whoever you spoke to is not giving you the right 

information. He talked to me the next day and said he spoke – I 

said you got to speak to a supervisor or somebody, and he came 

back and said, Jack, they did not test those items, I double 

checked.

Id. at 132-133. Mr. McMahon stated that he had a “hundred percent clear 

recollection” that was “crystal clear.” Id. at 133. He averred that the 

fingernail evidence was “very, very significant” and “key to the defense” 

because his theory was that Appellant’s co-defendant, Steven Miranda – not

Appellant – was the shooter and would have left DNA evidence under the 

victim’s fingernails. Id. at 137-138. He explained:

[The evidence] would have demonstrated and assisted me in that 

theory that I tried to, if you read the trial [transcript] you’ll see 

that I tried to present a pretty, vociferously, [sic] that [Steven] 

Miranda was the actor, the major player. He was the one that was 

doing all the things. This [DNA] report here would have been 

extremely helpful and back that up. I should have had it.
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Id. at 142.

However, on rebuttal, Mr. Gambardella testified to the contrary. He 

stated:

There were very few conversations either in person or over 

the phone with Mr. McMahon, because largely, because he was so 

hard to get a hold of. I had no conversation with him at the 

preliminary hearing because he failed to appear for the 

preliminary hearing. I had very, what I will call, I would have 

difficulties getting a hold of him. There was, at one point, I know 

of at least one letter that I sent him. I reduced a lot of my 

correspondence to writing to make sure that the messages were 

getting across.

N.T., 10/11/17, at 150-151.

With regard to the fingernail clippings, Mr. Gambardella stated that he 

“did not have a recollection of [Mr. McMahon] ever mentioning fingernail 

clippings, ever.” Id. at 159. Further, Mr. Gambardella opined that if he had 

such evidence, he would have viewed it as favorable to the Commonwealth 

because it corroborated the witnesses who testified that Appellant’s codefendant, Steven Miranda, and the victim, Lisa Diaz “had a relationship.” Id.

at 159. In sum, Mr. Gambardella testified, “I never contacted the police 

regarding DNA analysis because I didn’t know there was DNA analysis.” Id.

at 164.

Warminster Police Detective Sean Harold offered testimony similar to 

that of Mr. Gambardella. Detective Harold stated that in October of 2007, he 

was the “lead investigator” in the case against Appellant. Id. at 174. 

Detective Harold testified that he was unaware of any evidence taken by 
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Detective Bonargo to the PSP lab for testing. Id. at 175. He specifically did 

not recall fingernail clippings being recovered from Lisa Diaz. Id. at 176. 

Detective Harold repeatedly testified to his belief that “back in 2008 that no 

evidence in this case had been sent for DNA testing.” Id. at 178. He did not 

learn about the evidence that had been submitted to the lab until April of 

2016, and opined that he “absolutely [did] not” intentionally withhold evidence 

in this case. Id. at 178-179. Detective Harold did not know who “took the 

initiative” and was responsible for sending the fingernail clippings to the PSP 

lab, and in fact was not aware that the clippings had even been taken. Id. at 

180-182.

Similarly, Bucks County Detective Martin McDonough testified to 

investigating the case in conjunction with the Warminster Township Police, 

and having no knowledge of fingernail clippings taken from Lisa Diaz and sent 

to the PSP for DNA analysis. Id. at 185-186. He did not learn about the 

evidence until after Appellant’s trial in October of 2008. Id. at 186. Detective 

McDonough learned about the evidence from Detective Bonargo. He stated:

I believe Detective Bonargo faxed [the DNA report] to me. We 

had a phone conversation. He said, he had – we had a 

conversation, I believe it was over the phone, that he had this 

report from PSP, a DNA report from PSP. And I said, well, send it 

to me so I can give it to [Mr. Gambardella]. The trial is over, so 

we can forward it to Mr. McMahon. When I got my copy I made a 

copy, handed it to Mr. Gambardella in the District Attorney’s 

Office, and I put a copy I had in my file.

Id. at 192. Detective McDonough expressed his surprise at learning about

the evidence. He continued:
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I said to John [Bonargo], how did it get there? He said he dropped

them off and they were being worked on. I said, John, we didn’t 

even know they were at the lab. How did this happen? He really 

didn’t have an answer.

Id. at 193.

After hearing argument from the parties, the trial court denied 

Appellant’s motion to dismiss. The trial court verbally detailed the parties’ 

respective arguments, recounted the testimony, and articulated its rationale 

for denying Appellant’s motion. See, N.T., 10/11/17, at 219-228. On this 

record, and mindful of applicable legal authority, we discern no error by the

trial court in denying Appellant’s motion to dismiss. When considering a 

Brady violation in the context of double jeopardy, retrial is prohibited “when 

the conduct of the prosecutor is intentionally undertaken to prejudice the 

defendant to the point of the denial of a fair trial.” Smith, 615 A.2d at 325

(emphasis added). In this case, the trial court expressly determined that “the 

Commonwealth did not engage in conduct which was intended to prejudice 

[Appellant] and deny him a fair trial.” Trial Court Opinion, 12/20/17, at 8. 

Similarly, in Adams, supra, this Court recently determined that a Brady

violation did not warrant dismissal on double jeopardy grounds. We cited our 

Supreme Court’s decision in Commonwealth v. Burke, 781 A.2d 1136 (Pa. 

2001), and explained:

Here, the alleged prosecutorial misconduct consisted of a 

Brady violation that was caused by failures on the part of both 

the police and the prosecutor. 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 
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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. . . . 

Even recognizing the important role of the police in 

disclosing Brady material, however, there may be no doublejeopardy dismissal if their misconduct is unintentional or if it does 

not lead to intentional misconduct of the prosecutor. A leading 

case is Burke. During the course of trial, the prosecutor 

discovered evidence in a police file, including a statement made 

by the defendant, and an exculpatory statement made by the 

Commonwealth’s chief witness. The trial court granted the 

defendant’s motion to dismiss based on the discovery violation, 

noting that the prosecutor was “grossly negligent” in not 

uncovering the statements earlier, and that the error which had 

led to their suppression was within the Commonwealth’s control. 

We reversed, and the Supreme Court affirmed our decision. The 

Supreme Court determined that dismissal was inappropriate 

because there was no evidence of deliberate, bad faith 

overreaching by the prosecutor. And the Court described the 

police misconduct in terms equivalent to negligence:

Rather than prosecutorial misconduct, it appears that this 

case primarily involves miscommunication between the police 

departments involved in the investigation and/or police 

mishandling of the evidence. . . . Whatever may have been 

the reason for the nondisclosure here, it is apparent from the 

record that it did not result from deliberate misconduct by the 

prosecutor designed to compel [the defendant] into moving 

for a mistrial or to deprive [him] of a fair trial.

Burke, 781 A.2d at 1145–46. There was no allegation in Burke

that the police intentionally suppressed evidence. See also

Commonwealth v. Wood, 803 A.2d 217, 222 (Pa. Super. 2002) 

(remanding for evidentiary hearing on whether prosecutor acted 

intentionally when failing to provide exculpatory evidence in the 

possession of the police, without addressing whether police 

intentionally withheld the exculpatory material).
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Commonwealth v. Adams, 177 A.3d 359, 372–374 (Pa. Super. 2017) (some 

citations and footnotes omitted).

Likewise, in this case, we must defer to the trial court’s credibility 

determinations, particularly its finding that the prosecutor, Mr. Gambardella, 

and the investigating officers, did not intend to deprive Appellant of a fair trial. 

See Adams, 177 A.3d at 370 (“[t]o the extent that the factual findings of the 

trial court impact its double jeopardy ruling, we apply a more deferential 

standard . . . [and 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.”) (emphasis added). The trial court acknowledged the 

unequivocal testimony of Appellant’s trial counsel, Mr. McMahon, which 

contrasted with the testimony from the Commonwealth’s witnesses and 

particularly Mr. Gambardella. The trial court stated:

[Mr.] Gambardella denies having those conversations [with 

Mr. McMahon], but it’s not so much an issue of credibility of Jack 

McMahon and Gary Gambardella. This happened nine years ago. 

You know, sometimes memories fade and recollections dim, but 

what is unmistakably clear is that at some point, the 

Commonwealth had an obligation once they learned of this to turn 

it over to the appropriate people.

N.T., 10/11/17, at 224. The trial court continued:
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So as we learned, nobody seems to know how this evidence 

from Lisa Diaz got to the Pennsylvania State Police. Obviously, it 

didn’t get there by itself. So it’s clear to me, just directly and 

inferentially, that it was Detective John Bonargo who submitted 

this. Now, did he do this ultra vires? Did he do this without any 

approval? No, he probably assumed it was taken from one of the 

victims and it should be analyzed. I can’t speculate or guess why 

it took the Pennsylvania State Police that long to analyze it. It’s 

just unfortunate that the report comes in after the verdict.

So having said all of that, the defense would have me 

believe that there was a conscious decision, a willful co[ll]usion to 

withhold evidence which was perhaps exculpatory to [Appellant], 

and therefore, consistent with my duties under the Constitution, I 

am to find that he would be, on a retrial, placed in jeopardy twice 

of life and limb. I cannot find that because there is no evidence 

to indicate that.

My conclusion, based on the evidence I heard, common 

sense, the testimony, having presided over the trial, is simply this. 

Someone wasn’t minding the store, necessarily. Detective 

Bonargo submitted evidence that perhaps he did on his own 

initiative, but no one, by any stretch, intentionally withheld that 

evidence which would arise to prosecutorial misconduct. 

N.T., 10/11/17, at 226-227.

As indicated above, the trial court determined that “someone wasn’t 

minding the store,” i.e., that there was miscommunication between the police, 

the prosecutor and the defense. This Court in Adams stated that 

“miscommunication between the police and the prosecutor, alone, cannot be 

the basis for misconduct.” 177 A.3d at 374, citing Burke, 781 A.2d at 1145–

46. We therefore are unpersuaded by Appellant’s claim of intentional 

prosecutorial misconduct. In sum, the trial court found that there was no 

intent to deprive Appellant of a fair trial, and because that finding is supported 
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by the record and our de novo review, we affirm the trial court’s denial of 

Appellant’s motion to dismiss on double jeopardy grounds. 

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/28/18