J-A21019-21

2021 PA Super 243

COMMONWEALTH OF PENNSYLVANIA 

Appellant

v.

JEROME KING

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1812 EDA 2020

Appeal from the Order Entered August 25, 2020

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

No(s): CP-51-CR-0706191-2005

COMMONWEALTH OF PENNSYLVANIA 

Appellant

v.

ESHEEM HASKINS

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1813 EDA 2020

Appeal from the Order Entered August 25, 2020

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

No(s): CP-51-CR-0706192-2005

BEFORE: KUNSELMAN, J., NICHOLS, J., and KING, J. 

OPINION BY NICHOLS, J.: FILED DECEMBER 14, 2021

In these consolidated cases,

1

the Commonwealth appeals from the 

August 25, 2020 order granting the motion to dismiss and bar retrial filed by 

Jerome King and Esheem Haskins (collectively Appellees). The 

Commonwealth asserts that although the prosecutor in this matter committed 

an error prior to trial, the remedy should be a new trial rather than dismissal 

____________________________________________

1

In an order filed on August 6, 2021, we consolidated these appeals sua 

sponte. 
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of the charges based on double jeopardy. After review, we reverse the order 

dismissing the charges against Appellees based on double jeopardy and 

remand for a new trial.

The trial court summarized the relevant facts and procedural history 

underlying the instant appeals as follows: 

On February 2, 2005, Nathaniel Giles (Giles) was shot to death 

outside of a Chinese restaurant in Philadelphia, PA. At the time, 

Giles was cooperating with federal authorities in the murder 

investigation of ten-year[-]old Faheem Thomas-Childs (ThomasChilds). Giles told federal authorities that the gun used in 

Thomas-Childs’ murder was purchased from Jerome King (King). 

Two civilians, minors at the time, witnessed Giles’ murder outside 

of the restaurant.

The eyewitnesses were inside of the restaurant waiting for their 

food order when they saw Giles engaged in a conversation with 

Khalief Alston (Alston) just outside the restaurant. While Giles 

and Alston talked, a car stopped for an unusually long time at the 

stop sign by the restaurant then drove away. A short time later, 

two men approached Giles from the direction the car had driven 

and one of the men [put] a gun to the back of Giles’ head and 

shot him. The shooter stood over [Giles’] body and shot Giles 

again before the two men fled.

The eyewitnesses consistently identified King as the shooter and 

Esheem Haskins (Haskins) as the accomplice in photo arrays 

during the investigation and at trial. During the June 2006 trial, 

some of the eyewitnesses’ testimony was inconsistent with their 

police statements and inconsistent with each other. One witness 

did not mention an accomplice in the police statement and 

described the shooter as six feet to six feet and three inches tall, 

while King is only five feet and seven inches tall. This witness 

denied providing detectives with the shooter’s height.

The other witness testified to watching Haskins hand a gun to King 

as they approached Giles but later changed her testimony denying 

she witnessed that interaction. This witness also changed her 

testimony that she heard Haskins yell “Shoot him. Shoot him,” to 
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King, instead claiming that she could not hear what was being said 

outside of the restaurant.

On March 11, 2005, Khalief Alston and Ernest Cannon (Cannon) 

were arrested for an unrelated homicide. The same day, Alston 

gave a statement (March 11 statement) to police regarding the 

unrelated murder, implicating Cannon as the murderer in that 

matter. Cannon also gave a statement that same day regarding 

the unrelated murder, . . . implicating Alston as the murderer in 

that matter. In the March 11 statement, Alston also identified 

Cannon, not King or Haskins, as Giles’ killer claiming Cannon killed 

Giles for being a police informant.

On March 23, 2005, three letters were recovered from 2849 N. 

Taney Street (Alston’s address) pursuant to a search warrant 

executed in connection to the unrelated murder. One of the 

letters recovered was handwritten by Alston (Alston letter) to an 

unidentified person. Part of the Alston letter read, “Ezel (i.e.

Ernest Cannon) rocked Nate (i.e. Nathaniel Giles) for snitching on 

[L]em (i.e. Jerome King) too.” This letter predated Alston’s police 

statement because Alston was in custody when . . . his home was 

searched and the letters were discovered.

On May 6, 2005, King and Haskins were arrested for the murder 

of Nathaniel Giles. At trial, the Commonwealth argued that King 

and Haskins were motivated to kill Giles[] because he had 

implicated King as the supplier of the firearm used in the ThomasChilds murder.

On September 1, 2005, Craig Lindsey (Lindsey) was arrested in 

an unrelated federal drug case. Initially, Lindsey was incarcerated 

in prison on State Road, Philadelphia, PA. In March 2006, while 

incarcerated at State Road, Lindsey came into contact with King. 

On April 23, 2006, based on conversations Lindsey allegedly had 

with King, Lindsey wrote a letter to the District Attorney’s Office 

and was brought down to the Homicide Division of the Philadelphia 

Police Department where he gave a statement. Lindsey claimed 

that King told him that the gun used in the murder of ThomasChilds was the one he gave to the shooter. When questioned at 

[the] King/Haskins trial about what expectations he had in 

providing this testimony with respect to his open federal drug 

case, Lindsey replied that he “ain’t really know how it was going 

to affect it.”

At the King/Haskins trial, Alston testified as a defense witness 

claiming that on the evening of Giles’ murder he was walking with 
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Cannon when they spotted Giles. Cannon, believing that Giles 

was a police informant, crossed the street and shot Giles in the 

back of the head before fleeing. On cross, it was revealed that 

Alston, Haskins, and King were part of the same gang and that 

Alston was loyal to them. Additionally, it was revealed that during 

the police investigation into an unrelated murder, Alston learned 

that Cannon had implicat[ed] him as the murderer in that 

unrelated investigation. The Commonwealth argued that Alston’s 

allegation that Cannon [murdered Giles] was a recent fabrication 

[that] Alston created as retaliation for Cannon implicating him in 

the unrelated murder.

On June 23, 2006, King was convicted by a jury of murder of the 

first degree, criminal conspiracy, and violation of the Uniform 

Firearms Act, while Haskins was convicted of murder and 

conspiracy but was found not guilty of the violation of the Uniform 

Firearms Act. King was sentenced to life imprisonment on the 

murder charge and a consecutive twenty to forty years for the 

conspiracy charge with a concurrent five[-]year sentence for the 

firearms charge. Haskins was sentenced to life imprisonment on 

the murder charge with a consecutive twenty to forty years for 

the conspiracy charge.

Trial Ct. Op., 11/12/20, at 1-4 (record citations omitted).2

Both King and Haskins filed post-sentence motions, and both were 

denied by operation of law. King and Haskins each filed a direct appeal. This 

Court affirmed Haskins’ judgment of sentence on March 12, 2008. 

Commonwealth v. Haskins, 953 A.2d 599, 3303 EDA 2006 (Pa. Super. filed 

Mar. 12, 2008) (unpublished mem.) (Haskins I), appeal denied, 956 A.2d 

432 (Pa. 2008). We affirmed King’s judgment of sentence in a published 

opinion filed on October 17, 2008. Commonwealth v. King, 959 A.2d 405 

____________________________________________

2 For ease of discussion, we refer to a single trial court opinion. Although the 

trial court drafted separate Rule 1925(a) opinions in King’s and Haskins’ cases, 

the opinions are largely the same, and the portions quoted here are identical.
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(Pa. Super. 2008) (King I). King did not petition for allowance of appeal in 

our Supreme Court. 

Appellees filed separate Post-Conviction Relief Act3 (PCRA) petitions, 

and on June 29, 2011, Appellees filed a joint memorandum of law alleging the 

Commonwealth committed a Brady4 violation with respect to the Alston letter. 

On July 5, 2011, the PCRA court agreed with Appellees that the 

Commonwealth committed a Brady violation and granted Appellees a new 

trial. 

On July 22, 2011, the Commonwealth appealed the July 5, 2011 order

granting Appellees a new trial. After review, in a consolidated appeal, our

Court reversed the PCRA court’s order and returned the matters to the PCRA 

court. Commonwealth v. Haskins, 60 A.3d 538 (Pa. Super. 2012)

(Haskins II). Appellees petitioned for allowance of appeal to our Supreme 

Court, and those petitions were denied on October 29, 2013. 

Commonwealth v. Haskins, 78 A.3d 1090, 5 EAL 2013 (Pa. 2013); 

____________________________________________

3 42 Pa.C.S. §§ 9541-9546. 

4 See Brady v. Maryland, 373 U.S. 83, 87 (1963) (stating, “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”). To establish a 

Brady violation, a criminal defendant must establish: “(1) the evidence at 

issue was favorable to the accused, either because it is exculpatory or because 

it impeaches; (2) the evidence was suppressed by the prosecution, either 

willfully or inadvertently; and (3) prejudice ensued.” Commonwealth v. 

Roney, 79 A.3d 595, 607 (Pa. 2013) (citation omitted).
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Commonwealth v. King, 78 A.3d 1090, 8 EAL 2013 (Pa. 2013). On remand, 

the PCRA court subsequently denied Appellees’ PCRA petitions.

On November 26, 2013, Haskins filed a petition for writ of habeas corpus

in federal district court, and following review, the district court denied Haskins’

petition. See Haskins v. Folino, NO. 13-6901, 2017 WL 1397261 (E.D.Pa. 

Apr. 19, 2017). Haskins filed a timely appeal to the United States Court of 

Appeals for the Third Circuit. 

The trial court summarized the subsequent procedural history as 

follows:

After over a decade of appeals, on November 8, 2018, the United 

States Court of Appeals for the Third Circuit decided Haskins’

habeas petition and granted him a new trial after finding that the 

Pennsylvania [Superior Court in Haskins II] misapplied the 

Brady materiality standard, [and held] that suppressing the 

Alston letter was a Brady violation.[5] On July 29, 2019, the PCRA 

court granted King a new trial based on the Third Circuit decision 

of Haskins’ habeas petition.

As a result of the Third Circuit decision, King and Haskins both 

filed a Motion to Dismiss Based on the Double Jeopardy Clauses 

of the Pennsylvania and the United States Constitutions. In 

addition to claiming the prosecution should be barred based on 

the Alston letter Brady violation, King raised an additional Brady

violation claim asserting that the Commonwealth failed to disclose 

Lindsey’s possible status as a federal confidential informant at the 

time of Haskins’ and King’s trial.

In his Motion to Dismiss, King cited the opinion by the Honorable 

Paul S. Diamond in U.S. v. Wilcox, NO. 06-0445[, 2007 WL 

2461820] (E.D.PA. Aug. 28, 2007), granting movant’s motion to 

suppress in part and denying in part. This opinion revealed that 

after Lindsey’s September 1, 2005, drug arrest he was recruited 

____________________________________________

5 See Haskins v. Superintendent Greene SCI, 755 Fed.Appx. 184 (3d Cir. 

2018) (Haskins III).
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as a confidential informant in hopes of mitigating “his punishment 

by helping police,” Wilcox, at page 6, and that police sought to 

protect his identity as a confidential informant to “ensure Lindsey’s 

continue[d] assistance with other investigations.” Id. at page 15.

Assistant District Attorney Jason Bologna was assigned to try the 

King/Haskins trial. ADA Bologna testified at the August 19, 2020, 

Double Jeopardy motion hearing that he understood the Alston 

letter to mean that someone other than King or Haskins shot and 

killed Giles because Giles was cooperating with police in the 

Thomas-Childs investigation. ADA Bologna testified at the Double 

Jeopardy motion hearing, that he understood that this additional 

statement was significant but made a deliberate decision not to 

turn it over to the defense on the assumption that this handwritten 

note was merely cumulative of the statement which Alston had 

given to the police on March 11, 2005. The Commonwealth made 

no argument as to the defense claim that information on Lindsey’s 

cooperation with local and federal law enforcement agencies was 

withheld from the defense during the trial.

On August 25, 2020, this court granted [Appellees’] Motion to 

Dismiss Based on the Double Jeopardy Clauses of the 

Pennsylvania and the United States Constitutions. On September 

1, 2020, the Commonwealth filed a Motion to Reconsider the 

granting of the double jeopardy motions and a request to the court 

to file a Findings of Fact and Conclusions of Law. The Findings of 

Fact and Conclusions of Law were filed on September 24, 2020, 

holding that a retrial was barred by the double jeopardy rule and 

granted the defendants’ motions. On October 20, 2020, the 

Commonwealth [appealed].

Trial Ct. Op., 11/12/20, at 5-6. Both the trial court and the Commonwealth 

complied with Pa.R.A.P. 1925.

On appeal, the Commonwealth raises the following issues:

Did the [trial] court err by precluding [Appellees’] retrial for the 

murder of a federal informant on double jeopardy grounds where 

its finding of prosecutorial overreaching was factually erroneous; 

and where it erred as a matter of law by failing to consider, as

[Commonwealth v. Johnson, 231 A.3d 807 (Pa. 2020)] 

requires, society’s strong interest in bringing the guilty to justice, 

and whether retrial threatened the conviction of innocent people?
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Commonwealth’s Brief at 6 (unpaginated). 

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 

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, 2021 

WL 4515356, at *5 (Pa. Super. filed Oct. 4, 2021) (citations omitted and some 

formatting altered). We must also consider the following:

The Double Jeopardy Clauses of the Fifth Amendment to the 

United States Constitution and Article 1, § 10 of the Pennsylvania 

Constitution protect a defendant from repeated criminal 

prosecutions for the same offense. 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. Article I, § 

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. An error by a prosecutor does not 

deprive the defendant of a fair trial. However, where the 

prosecutor’s conduct changes from mere error to intentionally 

subverting the court process, then a fair trial is denied.
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Commonwealth v. Byrd, 209 A.3d 351, 353 (Pa. Super. 2019) (citation

omitted). “Dismissal is an appropriate remedy in such a case because a 

mistrial would be an inadequate remedy for systematic intentional 

prosecutorial misconduct.” Id. (citation omitted and formatting altered). “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.” Id. (citation omitted). “[A] fair trial is not simply a lofty goal, it is a 

constitutional mandate, . . . and where that constitutional mandate is ignored 

by the Commonwealth, we cannot simply turn a blind eye and give the 

Commonwealth another opportunity.” Id. (citation omitted). 

In its opinion, the trial court addressed the Commonwealth’s claim of 

error as follows:

At the August 19, 2020, double jeopardy motion hearing, ADA 

Bologna testified that he knew the Alston letter to mean that 

neither King [n]or Haskins were involved in Giles’ murder. He 

understood that the letter was significant but made the conscious 

decisions not to turn over the letter to [Appellees]. At trial, when 

Alston testified that Cannon was the one who killed Giles, the 

Commonwealth attacked his motiv[e] to testify by claiming Alston 

only recently fabricated this story because Cannon implicated him 

in an unrelated homicide. Had the Commonwealth shared the 

Alston letter with [Appellees], [counsel for Appellees] could have 

shown that the letter predated Alston’s revelation and that his 

testimony was not recently fabricated in retaliation to Cannon 

implicating him in an unrelated homicide. Therefore, this court 

found that the Commonwealth acted recklessly when it 

deliberately withheld the crucial piece of evidence (the Alston 

letter) which impaired [Appellees’] ability to have a fair trial in this 
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matter. Because they did not have the benefit of this evidence 

which was consciously and intentionally withheld by the 

Commonwealth, they were unable to put forth the defense of prior 

consistent statement to the jury. If [Appellees] had this evidence 

it would have been able to offer for the consideration of the jury 

that on two (2) prior occasions, Alston had identified some other 

person, other than King or Haskins, as the killer of Giles (i.e. the 

March 11 statement and the Alston letter).

The [trial c]ourt also found that the Commonwealth withheld 

evidence that Lindsey was a confidential informant arising from 

his arrest on September 1, 2005, and was supplying police with 

information in other investigation in hopes of mitigating his own 

punishment, which may have impacted his desire to be a truthful 

witness at this trial.

United States law requires the prosecution to turn over favorable 

evidence to the defendant when it is material to either the guilt or 

sentencing phase. Brady v. Maryland, 373 U.S. 83, 87 (1963). 

This “includes evidence that would affect the credibility of a 

witness.” Haskins v. Superintendent Greene SCI, 755 

Fed.Appx. 184, [188] (3d Cir. 2018) (citing Wilson v. Beard, 589 

F.3d 651, 659, 666-67 (3d Cir. 2009)). The prosecution must 

disclose information it actually knows “and all information in the 

possession of the prosecutor’s office, the police, and others acting 

on behalf of the prosecution.” Id. . . .

Lindsey was arrested in September 2005, and he began 

cooperating with local and federal authorities in criminal 

investigations in hopes of mitigating his own sentence.[fn3] At the 

time of the King/Haskins trial, Lindsey was incarcerated in a 

federal prison with an open federal case. Looking at the timeline 

of Lindsey’s arrest and testimony at the King/Haskins trial, along 

with the fact that Lindsey’s role as a confidential informant was 

known to Philadelphia Police, indicate that his role as an informant 

was withheld by the Commonwealth in violation of prong two of 

Brady. The Commonwealth’s trial theory of motive was that King 

and Haskins murdered Giles because Giles was cooperating with 

federal authorities in the investigation of the murder of ten-year 

old Faheem Thomas-Childs. Lindsey wrote a letter to the DA after 

allegedly talking to King while they were both incarcerated in the 

Philadelphia prison system. Lindsey learned that King supplied 

the gun that was used to kill Thomas-Childs. At trial, Lindsey 

testified that King told him that the gun used in the Thomas-Childs 

murder was King’s. Lindsey’s testimony helped establish a major 
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part of the Commonwealth’s case theory; King and Haskins 

murdered Giles because he implicated King in the Thomas-Childs 

murder. Lindsey’s informant status was material and [Appellees] 

were prejudiced by being unable to impeach Lindsey’s credibility 

when Lindsey testified that he “ain’t really know how testifying at 

the King/Haskins trial was going to affect” his open federal case. 

In failing to disclose Lindsey’s involvement with law enforcement 

as an informant, the Commonwealth committed a second Brady

violation.

[fn3] During the Wilcox hearing, it was a Philadelphia Police 

Officer John Coyne who testified credibly that “he did not 

disclose in the affidavit for the search warrant that Lindsey 

was a C.I. . . . because he was seeking to protect Lindsey’s 

identity both for reasons of safety and to ensure Lindsey’s 

continue[d] assistance with other investigations.” U.S. v. 

Hassan Wilcox, NO. 06-0445, [2007 WL 2461820,] page 

15 (E.D.Pa. Aug. 28, 2007).

Therefore, the Commonwealth engaged in prosecutorial 

overreaching when it had in its possession exculpatory evidence 

in the form of the Alston letter, which it knew was significant but 

instead deliberately chose not to turn it over to [Appellees and]

later arguing [that] Alston’s testimony [where he testified] that 

another person killed Giles was [a] recent fabrication when it 

should have known that was not the case, exhibiting a conscious 

disregard to King’s or Haskins’ constitutional rights to a fair trial. 

The Commonwealth again engaged in prosecutorial overreaching 

by failing to disclose that Lindsey was a confidential informant for 

the Philadelphia Police Department while using his testimony to 

establish motive in the case against King and Haskins, further 

eroding their chances at a fair trial.

Due to the passage of time and fading memories and possible 

unavailability of witnesses who could have been explored at the 

time of this trial, [Appellees] are severely limited in their ability to 

mount a defense, despite the assertion of the Commonwealth that 

a new trial is a fair remedy.

Trial Ct. Op., 11/12/20, at 8-11 (record citations omitted and some formatting 

altered).
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The Commonwealth has acknowledged a violation of the rule in Brady

for failing to provide Appellees the Alston letter. However, it argues that 

dismissal of the charges was not warranted because the prosecutor’s conduct 

constituted an error rather than overreaching. Commonwealth’s Brief at 21-

27 (unpaginated). Additionally, the Commonwealth also contends that the 

trial court erred when it concluded that the Commonwealth overreached in not 

disclosing that Craig Lindsey was a police informant. The Commonwealth 

asserts that although Johnson provides that “non-intentional prosecutorial 

conduct may constitute a bar to retrial,” barring retrial is an extreme remedy 

for rare situations where the prosecutor’s actions are “so egregious that they 

constitute overreaching by seeking conviction above justice[.]” Id. at 21

(unpaginated). The Commonwealth notes that although “prosecutorial errors 

are an ‘inevitable part of the trial process,’ prosecutorial overreaching is not.” 

Id. at 25 (unpaginated) (quoting Johnson, 231 A.3d at 824) (additional 

citation omitted)). “[O]verreaching signals that the judicial process has 

fundamentally broken down because it reflects that the prosecutor, as 

representative of an impartial sovereign, is seeking conviction at the expense 

of justice.” Id. (quoting Johnson, 231 A.3d at 822). The Commonwealth 

emphasizes that while the prosecutor in Johnson overreached, the prosecutor 

in the instant cases did not. Id. 

Briefly, we summarize the facts and holding in Johnson. In that case, 

our Supreme Court considered whether retrial is barred based on the 

constitutional protections against double jeopardy “where the Commonwealth 
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obtains a conviction based on false evidence and its misconduct, while not 

undertaken with the intent to deny the defendant a fair trial, nevertheless 

stems from prosecutorial errors that rise substantially above ordinary 

negligence.” Johnson 231 A.3d at 810. 

The Johnson case involved the murder of Walter Smith outside a 

Philadelphia bar. During the investigation of the crime scene, the police 

recovered a red baseball cap near Smith’s body, and the police assigned this 

cap a property receipt number. Id. at 810. After the murder, Smith’s friend 

Debbie Williams provided a statement to the police. Id. at 810-11. Williams 

informed the police that she had been with Smith on the night of the murder, 

and she described what she had seen. Id. at 811. Additionally, Williams told 

the investigators that Smith was wearing a black cap at the time of the 

shooting that Williams had herself collected from the crime scene. This black 

cap had a bullet hole in it, and Williams gave the black cap to the police. The 

police assigned the black cap a property receipt number separate from the 

receipt number assigned to the red cap. Forensic testing of the black cap 

revealed the presence of Smith’s blood. Id.

Years later, evidence linking Johnson to the murder was uncovered, and 

the police collected a sample of Johnson’s DNA. Id. Subsequent testing of 

the red cap revealed the presence of Johnson’s DNA. Id. At trial, the 

prosecuting attorney proceeded under the theory that one cap, the red one, 

had both Smith’s blood and Johnson’s sweat on it. Id. at 811-13. The 

Commonwealth’s forensics expert also erroneously indicated that the blood 
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and 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 Johnson and sentenced him to 

death. Id. at 813.

Following the review of a forensics lab report, which revealed that a 

second cap had been analyzed, the Commonwealth agreed that Johnson was 

entitled to a new trial, and Johnson 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 

[Smith’s] blood and [Johnson’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, 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 Supreme 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 (internal quotation marks omitted).
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The Johnson Court concluded that the Commonwealth had not acted 

with the intent to deprive Johnson of a fair trial. However, it further explained

and expanded prior caselaw defining overreaching: 

Under Article I, Section 10 of the Pennsylvania Constitution,[6]

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. This, of course, is in addition to the behavior 

described in [Commonwealth v. Smith, 615 A.2d 321 (Pa. 

1992)], relating to tactics specifically designed to provoke a 

mistrial or deny the defendant a fair trial. In reaching our present 

holding, we do not suggest that all situations involving serious 

prosecutorial error implicate double jeopardy under the state 

Charter. To the contrary, we bear in mind the countervailing 

societal interests mentioned above regarding the need for 

effective law enforcement, see generally State v. Michael J., 

274 Conn. 321, 875 A.2d 510, 534 (2005) (referring to the need 

for an “optimal balance between the defendant’s double jeopardy 

rights and society’s interest in enforcing its criminal laws”), and

highlight again that, in accordance with long-established doublejeopardy precepts, retrial is only precluded where there is 

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

conscious act or omission. Notably, however, this Court has 

explained, albeit in a different context, that reckless conduct 

____________________________________________

6 Article 1, Section 10 of the Pennsylvania Constitution provides in relevant 

part, as follows:

Except as hereinafter provided no person shall, for any indictable 

offense, be proceeded against criminally by information, except in 

cases arising in the land or naval forces, or in the militia, when in 

actual service, in time of war or public danger, or by leave of the 

court for oppression or misdemeanor in office. Each of the several 

courts of common pleas may, with the approval of the Supreme 

Court, provide for the initiation of criminal proceedings therein by 

information filed in the manner provided by law. No person shall, 

for the same offense, be twice put in jeopardy of life or limb . . . .

Pa. Const. Art. 1, § 10.
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subsumes conscious behavior. See Tayar v. Camelback Ski 

Corp., Inc., [47 A.3d 1190, 1200 (Pa. 2012)] (indicating that 

recklessness, as distinguished from negligence, “requires 

conscious action or inaction which creates a substantial risk of 

harm to others”).

Johnson, 231 A.3d at 826. Bearing these principles in mind, we must now 

determine whether the trial court erred in barring retrial based on double 

jeopardy.

Disclosure of the Alston Letter

As discussed above, the Commonwealth failed to provide the Alston 

letter to Appellees before trial. After review, we agree that the Commonwealth 

committed a serious Brady violation. The Third Circuit addressed this issue 

as follows: 

[G]iven that the suppressed letter contained direct evidence going 

to a central issue in this case, the jury’s lack of access to it causes 

us to question whether the verdict is worthy of confidence. The 

Commonwealth presented two disinterested witnesses who 

implicated Haskins in the murder. Portions of their trial testimony 

were inconsistent with their earlier statements to the police and 

with aspects of either their own or each other’s testimony. Even 

though the two witnesses were disinterested and, as Haskins

concedes, neither had a motive to lie, a compelling alternate 

version of events, presented with corroborating evidence, might 

have cast doubt on their accounts. Alston’s testimony provided 

such an alternative. Alston testified that Cannon shot Giles and

neither Haskins nor King was present. 

Alston’s credibility was vigorously attacked on multiple fronts. He 

was confronted with his five pending trials, his prior juvenile 

adjudication for possession of stolen property, and his admitted 

loyalty to and bias in favor of Haskins. Moreover, in response to 

Alston’s testimony that Cannon and not King shot Giles, the 

prosecutor asserted through his questioning that Alston fingered 

Cannon for Giles’s murder in retaliation for Cannon having 

implicated Alston in a separate murder. Put plainly, the 
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prosecution sought to suggest to the jury that Alston’s testimony 

blaming Cannon was a recent fabrication made in retaliation for 

Cannon’s then recent disclosure of Alston’s role in another murder.

The Brady material here would have corroborated Alston’s 

testimony, undercutting that challenge. The letter identifying 

Cannon as Giles’s killer was written before Cannon’s statements 

to police implicating Alston in a murder. Thus, even before a 

retaliatory motive may have existed, Alston said Cannon shot 

Giles. Had the letter been disclosed, the prosecutor would have 

been unable to pursue the recent fabrication challenge, and if he 

attempted to do so, Haskins could have easily refuted that 

accusation by pointing to his letter to someone with whom he 

shared a close relationship, written before the alleged motive to 

retaliate against Cannon arose. Given the importance of Alston’s 

credibility and the inconsistencies in the testimony of the 

prosecution’s witnesses, we believe that there is no room for fairminded disagreement that the letter calls into question whether 

the verdict returned is worthy of confidence. As a result, the 

Superior Court unreasonably applied Brady and its progeny when 

it held that the evidence was not material. Haskins is therefore 

entitled to habeas relief.

For the foregoing reasons, we will reverse the District Court’s 

order denying Haskins’s habeas petition, and the Commonwealth 

is directed to retry Haskins within 120 days or release him.

Haskins III, 755 Fed.Appx. at 189-90 (citations omitted and some formatting 

altered). However, although the Commonwealth committed a Brady

violation, we conclude that the trial court erred in granting Appellees’ motion 

to bar retrial. 

Pursuant to Johnson, the trial court must consider the countervailing 

societal interests regarding the need for effective law enforcement concerning 

the balance between a double jeopardy rights and society’s interest in 

enforcing its criminal laws. See Johnson, 231 A.3d at 826. We note that 

retrial is only precluded where there is prosecutorial overreaching, which 
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implies some sort of conscious act or omission. See id. Moreover, the 

constitutional double jeopardy prohibition:

is not primarily intended to penalize prosecutorial error, but to 

protect citizens from the embarrassment, expense and ordeal of 

a second trial for the same offense and from compelling them to 

live in a continuing state of anxiety and insecurity, as well as 

enhancing the possibility that even though innocent they may be 

found guilty. 

Id. (citation omitted and formatting altered). 

With respect to the Alston letter itself, the record reflects that the 

prosecutor testified that he received the undated Alston letter, which had no 

postmark or envelope attached, after he began working on Appellees’ case. 

N.T., 8/19/20, at 31. ADA Bologna testified that he thought that the Alston 

letter was written after Alston’s arrest and was, therefore, only cumulative of 

Alston’s statements to police. Id. at 31-35. However, ADA Bologna’s error 

led him to conclude incorrectly that Alston’s subsequent exculpatory 

statement was a recent fabrication. Id. at 31-38. The prosecutor later 

learned during PCRA proceedings that the Alston letter was written before 

Alston’s arrest. Id. at 32-35. 

The trial court found that the prosecutor immediately recognized the 

significance of the Alston letter and consciously decided not to turn it over to 

Appellees prior to trial. Trial Ct. Op., 11/12/20, at 6, 8-9. The record does 
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not support this conclusion.7 See N.T., 8/19/20, at 129, 131-132, 148-149 

(revealing that ADA Bologna testified that he did not immediately recognize 

the significance of the Alston letter or understand when the Alston letter was 

written, and the Commonwealth was not aware of the date the letter was 

written until it cross-referenced Appellees’ cases with other cases years after 

the trial). Indeed, the record is devoid of any evidence that ADA Bologna was 

aware or should have been aware of the significance of the Alston letter until 

the PCRA proceedings. Rather, ADA Bologna testified that he believed that 

the Alston letter had been written after Alston was arrested. Id. at 44-47. 

ADA Bologna then placed the letter in a file and was not reminded of its 

existence until years after trial. Id. at 47-48. On its face, the undated Alston 

letter did not present the “red flag” that the separate property receipts for the 

two caps in Johnson did. We conclude that the prosecutor’s mistake

concerning the Alston letter, although significant, does not constitute 

overreaching that would require the imposition of the double jeopardy bar 

precluding the retrial of this case. See id. 44-48, 54-55, 97-106 (detailing 

ADA Bologna’s description of his review of the Alston letter, his erroneous 

belief as to when it was written, his misunderstanding of its significance, and 

his admission of his mistake). 

____________________________________________

7 We note that the Attorney General of Pennsylvania in an amicus curiae brief 

emphasizes that the trial court’s conclusion that the prosecutor made a 

“deliberate decision” not to turn over the Alston letter to Appellees is not 

supported by the record. Amicus Brief at 22 (citing N.T. 8/19/20 at 44).
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The prosecutor’s error in the case at bar does not rise to the level of the 

“almost unimaginable” error in Johnson where the Commonwealth’s actions 

led it to conjure a cap containing forensic evidence of the victim’s blood and 

the accused’s DNA and indelibly linking the accused to the murder. Johnson, 

231 A.3d at 816, 826-27. As noted, in Johnson, the red cap was a crucial 

part of the Commonwealth’s case, yet there was no single cap bearing both 

Smith’s blood and Johnson’s DNA. In Johnson, the Commonwealth’s failure 

to conduct even a cursory review of its evidence led to a non-existent piece 

of evidence to establish Johnson’s guilt. This recklessness on the part of the 

Commonwealth in Johnson represented an instance of seeking a conviction 

at the expense of justice, and it rose to the level of overreaching. Id. at 824, 

827. 

In the instant case, the prosecutor violated Brady by failing to turn over 

the Alston letter, and we reiterate that the prosecutor’s intent and “good faith” 

are irrelevant concerning Brady material. Brady, 373 U.S. at 87. However, 

for the reasons discussed above, we cannot conclude that the prosecution

engaged in overreaching or attempted to subvert justice. Moreover, society 

has a compelling interest in bringing the guilty to justice, and under the facts 

and circumstances presented here, we cannot conclude that retrial would 

increase the possibility that an innocent person would be found guilty. Further 

distinguishing the instant case from Johnson is the evidence presented at 

trial concerning Appellees’ guilt including motive, independent and 

disinterested eyewitnesses, identification of Appellees as the perpetrators, and 
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factual evidence contradicting Alston’s version of events. Trial Ct. Op., 

11/12/20, at 1-3. For these reasons, the Commonwealth’s Brady violation 

merits relief to Appellees in the form of a new trial, but not the application of 

the double jeopardy bar precluding the retrial of this case. See Byrd, 209 

A.3d at 353. Accordingly, we conclude that the trial court erred in barring 

retrial based on the Brady violation relative to the Alston letter.

Disclosure of Lindsey’s Identity

Next, we must address the trial court’s finding that the Commonwealth 

committed a second Brady violation concerning the Commonwealth’s alleged 

failure to identify Lindsey as an informant for federal law enforcement. The 

record revels that ADA Bologna testified that prior to trial, he obtained all 

available discovery relative to Lindsey, this included reaching out to the 

Assistant U.S. Attorney who was prosecuting Lindsey in a federal matter and 

Lindsey’s own defense attorney. N.T. 8/19/20 at 66. ADA Bologna specifically 

stated that he discovered no information revealing that Lindsey was a federal 

informant. Id. at 76. ADA Bologna testified: “[Lindsey] was a person who 

was arrested on a local drug case, was in a county facility, and reached out to 

the District Attorney’s Office with information about an open homicide. That’s 

what I believed Mr. Lindsey to be, a person who had information about a 

homicide.” Id. ADA Bologna testified that he specifically asked the Assistant 

U.S. Attorney if Lindsey was a cooperating witness and was not informed of 

any relationship between Lindsey and federal authorities. Id. at 107-112. 

Moreover, ADA Bologna found no evidence of a cooperation agreement. Id. 
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Additionally, although King cited Wilcox in his motion to dismiss8to support 

the proposition that Lindsey was a known informant, there is no indication 

that Lindsey’s status as an informant was known at the time of trial in 

Appellees’ case. Id.; see also Wilcox, 2007 WL 2461820. 

Because Lindsey’s identity as an informant was unknown and kept from 

the Commonwealth, we cannot conclude that the Commonwealth willfully or 

inadvertently suppressed evidence of Lindsey’s identity in violation of Brady. 

See Roney, 79 A.3d at 607. Moreover, because the Commonwealth 

attempted to obtain information relative to Lindsey’s cooperation with the 

federal government, but Lindsey’s status was withheld from the 

Commonwealth, we further conclude that there was no constructive 

knowledge. In other words, we cannot attribute cross-jurisdiction constructive 

knowledge of Lindsey’s activities as a federal informant when, despite 

requesting the information, the U.S. Attorney’s Office did not or could not 

disclose the information to the Commonwealth prior to trial. See U.S. v. 

Risha, 445 F.3d 298 (3d Cir. 2006) (discussing imputing cross-jurisdiction 

constructive knowledge).9 In Risha, the Third Circuit noted as follows: 

It appears that in addressing the issue of cross-jurisdiction 

constructive knowledge, most courts of appeals have looked to 

the same questions that we have. Those questions include: (1) 

whether the party with knowledge of the information is acting on 

____________________________________________

8 King’s Mot. to Dismiss, 11/19/19.

9 Although federal circuit court decisions are not binding, they may be 

considered for their persuasive value by the courts of this Commonwealth. 

Commonwealth v. Little, 246 A.3d 312, 328 n.18 (Pa. Super. 2021).
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the government’s “behalf” or is under its “control”; (2) the extent 

to which state and federal governments are part of a “team,” are 

participating in a “joint investigation” or are sharing resources; 

and (3) whether the entity charged with constructive possession 

has “ready access” to the evidence.

Risha, 445 F.3d at 304. 

Considering the decision in Risha for its persuasive value, we 

nevertheless conclude that there is no evidence supporting cross-jurisdiction 

constructive knowledge in this case. As discussed above, there is no evidence 

that the Commonwealth knew of Lindsey’s status as an informant for the 

federal government. There is no indication that the Commonwealth and

federal authorities were working jointly or sharing resources in this case, and 

the Commonwealth did not have access to, or was denied access to, the 

information concerning Lindsey’s identity. See Risha, 445 F.3d at 304

After review, we are constrained to conclude that the trial court erred in 

its conclusion that the Commonwealth committed a Brady violation related to 

disclosing Lindsey’s role as an informant. See Roney, 79 A.3d at 607. 

Moreover, because we conclude that there was no Brady violation in this 

regard, we further conclude that the trial court erred in barring the retrial of 

this case.

Conclusion

Although we agree that the Commonwealth committed a serious Brady

violation when it failed to turn over the Alston letter to Appellees, we conclude 

that the trial court erred in barring retrial. Moreover, we conclude that there 

was no Brady violation regarding the non-disclosure of Lindsey’s identity as 
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an informant for federal law enforcement authorities, and therefore the trial 

court erred in barring retrial on this basis. Accordingly, we reverse the order 

barring retrial and remand this matter for a new trial for Appellees consistent

with this opinion.

Order reversed. Case remanded for a new trial. Jurisdiction 

relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/14/2021