J-A22045-18

2018 PA Super 289

____________________________________

* Former Justice specially assigned to the Superior Court.

COMMONWEALTH OF PENNSYLVANIA

v.

ANTHONY WASHINGTON 

Appellant

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1099 EDA 2017

Appeal from the Order March 2, 2017

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

No(s): CP-51-CR-1210371-1993

BEFORE: BENDER, P.J.E., NICHOLS, J., and STEVENS*, P.J.E.

OPINION BY STEVENS, P.J.E.: FILED OCTOBER 24, 2018

Appellant Anthony Washington appeals from the Order entered in the 

Court of Common Pleas of Philadelphia County on March 2, 2017, denying his 

“Motion to Preclude Retrial and Dismiss All Cha[r]ges on the Basis of 

Intentional Prosecutorial Misconduct, Pursuant to the Double Jeopardy Clause 

of the Pennsylvania Constitution and the Federal Constitution.” After careful

review, we affirm.1 

____________________________________________

1 “While an order denying a motion to dismiss charges on double jeopardy 

grounds is technically interlocutory, it is appealable as of right as long as the 

trial court certifies the motion as non-frivolous.” Commonwealth v. Lynn, 

192 A.3d 194, 196 n. 1 (Pa.Super. 2018) (citing Pa.R.Crim.P. 587(B)(6); 

Commonwealth v. Barber, 940 A.2d 369, 376 (Pa.Super. 2007) (“It is well 

settled in Pennsylvania that a defendant is entitled to an immediate 

interlocutory appeal as of right from an order denying a non-frivolous motion 

to dismiss on state or federal double jeopardy grounds.”)). In the matter sub 

judice, the trial court denied Appellant’s motion to dismiss on its merits and 

determined it was non-frivolous. See Trial Court Opinion, filed 7/26/17, at 3. 

Thus, under Pa.R.Crim.P. 587 (B)(6), this rendered the denial of Appellant’s 
J-A22045-18

- 2 -

The trial court aptly set forth the procedural history and relevant facts 

herein as follows: 

PROCEDURAL HISTORY

The Appellant was found guilty of first degree murder and 

sentenced to death on December 9, 1994. Commonwealth v. 

Washington, 700 A.2d 400 (Pa. 1997). The Supreme Court of 

Pennsylvania affirmed the conviction and death sentence on direct 

appeal. Id. On August 20, 2007, [Appellant] filed a motion to stay 

execution and to appoint counsel to represent him in a to-be-filed 

habeas petition, which was granted on August 23, 2007. 

Washington v. Beard, 2015 WL 234719 at *1 (E.D. Pa. Jan. 16, 

2015).

[Appellant] filed a federal habeas petition on May 5, 2008. 

Id. On January 16, 2015, after an evidentiary hearing, Judge 

Stengel found that the Commonwealth violated both Brady1 and 

Bruton2, vacated the Appellant's conviction and sentence, and 

remanded the matter for a new trial. Id.

The Defender Association of Philadelphia was appointed as 

counsel and filed a motion/memorandum titled "Motion to 

Preclude Retrial and Dismiss all Cha[r]ges on the Basis of 

Intentional Prosecutorial Misconduct, Pursuant to the Double 

Jeopardy Clause of the Pennsylvania Constitution and the Federal 

Constitution" on July 13, 2016. The Commonwealth filed 

"Commonwealth's Answer to Defendant's Motion to Preclude 

Retrial and Dismiss All Charges on the Basis of Intentional

Prosecutorial Misconduct" on August 17, 2016.3

A hearing on the motion was scheduled for March 2, 2017. 

Appellant's presence was waived by counsel. N.T. 3/2/2017, p. 

3.[2] The Commonwealth and Appellant's counsel stated that both 

sides intended to rely on the pleadings filed in this matter and 

argument. N.T. 3/2/2017, p. 4-5. After consideration of the 

pleadings and arguments of counsel, this [c]ourt denied 

Appellant's motion, but found that the motion was not frivolous 

____________________________________________

motion immediately appealable as a collateral order, and the instant appeal is 

properly before us. See Lynn, supra. 

2 Despite the trial court’s statement to the contrary, the notes of testimony 

reveal that Appellant was present, sworn, and testified at the March 2, 2017, 

hearing. N.T. Hearing, 3/2/17, at 35. 
J-A22045-18

- 3 -

and the denial was automatically appealable as a collateral issue. 

N.T. 3/2/2017, p. 32.

The Appellant filed a notice of appeal on March 29, 2017. 

On the same day, this [c]ourt ordered the Appellant to file a 

1925(b) statement within twenty-one (21) days of the filing. On 

April 11, 2017, Appellant filed a request for an extension of time 

to file the 1925(b) statement because the notes of testimony were 

unavailable. Appellant requested an extension for the 1925(b) 

statement for twenty-one (21) days after the notes of testimony 

were made available. This [c]ourt granted the extension on April 

13, 2017.

Notes of testimony were uploaded to the Court Reporting 

System on May 2, 2017. The Appellant filed a "Statement of Errors 

Complained of on Appeal" on June 21, 2017. Counsel for the 

Appellant stated that the notes of testimony were received on 

June 2, 2017. This [c]ourt notes that another copy of the notes of 

testimony was uploaded on June 1, 2017.

Appellant asserts that this [c]ourt erred in not finding that 

the conduct of the prosecutor was "deliberate, egregious, and was 

intended to prejudice the defendant and deny him a fair trial." 

Appellant's Statement of Errors Complained of on Appeal, page 2.

STATEMENT OF FACTS

The following factual statement is incorporated from District 

Judge Stengel's opinion in Washington v. Beard, 2015 WL 234719 

at *1 (E.D. Pa. Jan. 16, 2015). No additional facts were presented 

in the Appellant's or Commonwealth's pleadings.4

a) Facts of Appellant's Trial

On January 23, 1993, two men robbed a Save-A-Lot in the 

Kensington Area of Philadelphia. Id. During the course of the 

robbery, the emergency gate to the front of the store started to 

close, causing the robbers to flee. Id. They were pursued by Tracy 

Lawson, an unarmed security guard working at the Save-A-Lot. 

Id. Police Officer Gerald Smith, who was moonlighting as a 

security guard at an adjacent store, joined the pursuit and fired a 

shot at the fleeing men. Id. One of the robbers fired a shot in 

Lawson's direction in response. Id. Lawson was struck in the head 

by the bullet and died of the wound. Id.

The Appellant and Derrick Teagle were arrested and charged 

with robbery, murder, and related offenses. Id. Teagle gave a 

statement to the police before being arrested. Id. This statement 
J-A22045-18

- 4 -

outlined his involvement in the robbery and named the Appellant 

as the other robber and as the person who shot Lawson. Id. The 

Appellant's name was replaced with "blank" when the statement 

was read to the jury at trial. Id. Neither Teagle nor the Appellant 

testified at trial. Id.

The identity of the shooter was a contested issue at trial. Id. 

at *23. Several witnesses identified Teagle and/or the Appellant 

as one of the robbers on the night of the shooting. Id. Two SaveA-Lot employees identified Teagle as the only person they saw 

with a gun the night of the robbery. Id. Officer Smith identified 

the Appellant as the robber who shot Lawson, both at a line-up 

and at trial. Id. The Appellant's then former girlfriend and her 

sister both testified that the Appellant admitted to being the 

shooter and the Appellant's brother testified that he saw the 

Appellant and Teagle sitting with piles of money later that night. 

Id.

During closing arguments, ADA Gilson used Teagle's 

statement in a manner which "broke" the redactions of the 

Appellant's name. Id. After the second break in redaction, defense 

counsel objected and requested a mistrial. Id. The judge 

admonished ADA Gilson, but denied the request for mistrial. Id. 

Instead, the judge gave a cautionary instruction to the jury, 

reminding them that Teagle's statement could not be used in 

determining the guilt of the Appellant and any reference to the 

Appellant while discussing Teagle's statement must be ignored. 

Id. However, ADA Gilson implicated the Appellant while 

referencing Teagle's statement two more times. Id. Defense 

counsel once again objected and requested a mistrial. Id. The 

judge again admonished ADA Gilson and told him he was close to 

having a mistrial, but instead allowed the closing argument to 

continue after giving another cautionary instruction to the jury. 

Id. The jury convicted the Appellant of first degree murder and 

sentenced him to death.

5

Id.

b) Brady and Bruton Violations

Judge Stengel determined that the Commonwealth violated 

[Brady] by failing to turn over four documents prior to the trial. 

Id. Three documents were separate descriptions of the robbers 

from the Philadelphia Police Department. Id. In each document, 

the robber matching Teagle's description was described as having 

a gun. Id. Further, none of the documents placed a gun in the 

hand of the other robber. Id. The documents were attached to a 

motion to reconsider the Appellant's supplemental PCRA petition 
J-A22045-18

- 5 -

on July 24, 2001. Id. It is still unclear as to how the Appellant 

found this evidence.

The fourth document was a police activity sheet dated 

February 25, 1993, showing that three witnesses to the robbery 

were shown a photo array. Id. The photo array included the 

Appellant, but no witness was able to make a positive

identification. Id. However, two of these witnesses positively 

identified the Appellant at trial. Id. This fourth document was not 

produced until federal discovery was ordered. Id.

Judge Stengel concluded that the documents in the 

aggregate may have well been material to the Appellant's case 

and that there was a "reasonable probability that the disclosure of 

these descriptions would have changed the outcome of the trial,

particularly in regard to who the jury found to be the shooter." Id. 

at *25.

Judge Stengel also found that ADA Gilson violated Bruton

when he implicated the Appellant using Teagle's statement.6Id. 

at *14. ADA Gilson "relied on an inference that Washington was 

identified in Teagle's statement as one of the gun-toting robbers." 

Id. at *16. By ignoring the redactions, the prosecutor presented

to the jury a statement where "Washington [was] featured as the 

other robber and, most likely, the shooter." Id. at *16.

____

1 Brady v. Maryland, 373 U.S. 83 (1963).

2 Bruton v. United States, 391 U.S. 123 (1968).

3 ADA Mark Gilson submitted the Commonwealth's answer and 

argued the motion before this [c]ourt. ADA Mark Gilson was also 

the prosecutor who tried the Appellant in 1994.

4 Counsel for the Appellant incorporated Judge Stengel's opinion 

by reference in his motion/memorandum.

5 Teagle was convicted of second degree murder and sentenced 

to life imprisonment.

6 Judge Stengel also found that replacing the Appellant's name 

with "blank" was an improper redaction under Gray v. Maryland, 

118 S.Ct. 1151 (1998). Washington, 2015 WL 234719 at *9.

Trial Court Opinion, filed 7/26/17, at 2-8.

In his brief, Appellant presents the following Statement of the Question 

Involved:
J-A22045-18

- 6 -

Did not the court err and abuse its discretion in denying the 

defense motion to preclude retrial and dismiss all charges, where 

the prosecutorial misconduct at issue was deliberate, egregious, 

and was intended to prejudice [Appellant] and deny him a fair 

trial?

Brief for Appellant at 3. In considering this claim, we are guided by the 

following: 

An appeal grounded in double jeopardy raises a question 

of constitutional law. This [C]ourt'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. Graham, 109 A.3d 733, 736 (Pa. Super. 

2015) (citation omitted).

The Double Jeopardy Clauses of the Fifth Amendment to the 

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

Constitution prohibit retrial where prosecutorial misconduct during 

trial provokes a criminal defendant into moving for a mistrial. See

Oregon v. Kennedy, 456 U.S. 667, 679, 102 S.Ct. 2083, 72 

L.Ed.2d 416 (1982); Commonwealth v. Simons, 514 Pa. 10, 

522 A.2d 537, 540 (1987). However, Article 1, § 10 of the 

Pennsylvania Constitution offers broader protection than its 

federal counterpart in 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.
J-A22045-18

- 7 -

Commonwealth v. Smith, 532 Pa. 177, 615 A.2d 321, 325 

(1992). Pennsylvania has adopted a strict remedy for intentional 

prosecutorial misconduct:

[U]nder 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.

Commonwealth v. Kearns, 70 A.3d 881, 884–885 (Pa. Super. 

2013) (footnote and emphasis omitted).

Commonwealth v. Lynn, 192 A.3d 194, 199-200 (Pa.Super. 2018). 

“[B]ecause 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). 

Appellant generally asserts that each of the three aspects of impropriety 

the District Court identified as having occurred during trial and being sufficient 

to grant the writ of habeas corpus was “deliberate, egregious, and was 

intended to prejudice [Appellant] and deny him a fair trial.” Brief for Appellant 

at 17 (referencing District Judge Stengel’s Opinion in Washington v. Beard, 

2015 WL 234719 (E.D. Pa. filed Jan. 16, 2015) (unpublished memorandum)). 

Appellant maintains the prosecutor intentionally attempted to violate the 
J-A22045-18

- 8 -

redaction of Teagle’s statement in an effort to use it against Appellant despite 

repeated admonishments from the trial court. Id. at 22-23, 25. 

In addition, Appellant contends the Commonwealth suppressed 

evidence in the form of the three, contemporaneous witness statements that 

identified Teagle as the shooter along with the police activity sheet which 

indicated three eyewitnesses were shown photographs of Appellant and could 

not identify him as a participant in the robbery. Id. at 23-24. Appellant posits

that the aforementioned is the same type of “prosecutorial overreach” which 

led to the Pennsylvania Supreme Court’s barring retrial in Commonwealth 

v. Smith, 532 Pa. 177, 615 A.2d 321 (1992) and in Commonwealth v. 

Martorano, 559 Pa. 533, 741 A.2d 1221 (1999). 

In Smith, our Supreme Court examined the protection the Double 

Jeopardy Clause affords in a case involving prosecutorial misconduct pursuant 

to the standard set forth in Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 

2083, 72 L.Ed.2d 416 (1982). The Smith Court broadened the double 

jeopardy protection provided by the federal courts and United States 

Constitution requiring the prosecution to have intentionally caused a mistrial

through misconduct. Specifically, the Smith court held:

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.

Smith, 532 Pa. at 186, 615 A.2d at 325. 
J-A22045-18

- 9 -

Determining that the Commonwealth intentionally had prejudiced the 

defendant and deprived him of a fair trial when it failed to disclose material 

exculpatory physical evidence, suppressed evidence while arguing in favor of 

the death sentence on direct appeal, and attempted to discredit a state trooper 

who had testified as to existence of the exculpatory evidence, the Smith Court

held that the defendant’s double jeopardy rights would be violated if he faced 

a new trial and discharged him. 

Several years later in Martorano, the defendants were awarded a new 

trial based upon prosecutorial misconduct. On remand, the trial court denied

the defendants' motion to dismiss on double jeopardy grounds; however, a 

panel of this Court reversed and held that a retrial would constitute double 

jeopardy. The Pennsylvania Supreme Court affirmed and in doing so amplified 

the Smith standard. The Supreme Court held that even absent the 

concealment of evidence, pervasive prosecutorial misconduct throughout the 

trial court proceedings had demonstrated the prosecutor's intent to deprive 

the defendants of a fair trial and that double jeopardy barred their retrial 

where the prosecutor:

acted in bad faith throughout the trial, consistently making 

reference to evidence that the trial court had ruled inadmissible, 

continually def[ied] the trial court's rulings on objections and ... 

repeatedly insist[ed] that there was fingerprint evidence linking 

[the defendants] to the crime when the prosecutor knew for a fact 

that no such evidence existed.

Martorano, 559 Pa. at 538, 741 A.2d at 1223.
J-A22045-18

- 10 -

In Commonwealth v. Minnis, 83 A.3d 1047 (Pa.Super. 2014) (en 

banc), a panel of this Court sitting en banc confirmed that Martorano stands 

for the proposition that “where the defendant alleges prosecutorial misconduct

as a basis for double jeopardy protection, the outcome depends on the nature

of the alleged misconduct.” Minnis, 83 A.3d at 1052. For prosecutorial

misconduct to prohibit retrial on double jeopardy grounds, the prosecutor's 

conduct must be both egregious and pervasive. Id. at 1052–1053. The 

Commonwealth can “therefore engage in misconduct that warrants a new trial

but is not sufficiently egregious to bar mistrial on double jeopardy grounds.” 

Id. at 1053 n. 5 (internal citation omitted).

 Herein, the trial court, relying upon Commonwealth v. Moose, 623 

A.2d 831 (Pa.Super. 1993), appeal denied, 645 A.2d 1317 (Pa. 1994), cert. 

denied, 513 U.S. 1060 (1994) concluded retrial is not barred because 

Appellant has failed to adduce evidence of intentional prosecutorial 

misconduct.3 Specifically, the trial court stated: 

 Prosecutorial misconduct will only bar retrial when it is 

done intentionally to deny the defendant a fair trial, but not when 

the defendant is denied a fair trial due to gross negligence on the 

part of the prosecution. Commonwealth v. Kearns, 70 A.3d 881 

(Pa.Super. 2013); See also, Commonwealth v. Burke, 781 A.2d 

____________________________________________

3

In Moose, the Commonwealth failed to turn over a statement from a 

confidential informant until the first day of trial and never informed the 

defendant the informant had made a deal in exchange for his testimony. The 

defendant was convicted, but in light of the Commonwealth’s admission on 

direct appeal that the informant had made an agreement with it, the defendant 

was granted a retrial. Id. at 836. 
J-A22045-18

- 11 -

1136 (Pa. 2001); Commonwealth v. Strong, 825 A.2d 685 

(Pa.Super. 2003). 

Judge Stengel found that Brady was violated when four 

documents were not disclosed to the Appellant before trial. The 

Appellant provided no evidence as to what role, if any, ADA Gilson 

played in withholding these documents. This [c]ourt could not 

find that ADA Gilson intentionally withheld the document to 

deprive the Appellant of a fair trial absent evidence that he was 

aware of the existence of the documents during trial. 

 Judge Stengel also found that ADA Gilson violated Bruton

several times during closing argument, even after being 

admonished by the trial judge. Appellant’s counsel argued during 

the hearing on the motion that the Bruton violations were, in and 

of themselves, sufficient to show that ADA Gilson’s intent was to 

deny the Appellant a fair trial. N.T. 3/2/2017, p. 7,8,24. While 

ADA Gilson obviously said the sentences that broke redaction, it 

is not clear that his intent was to violate Bruton and to deprive the 

Appellant of a fair trial.

 Appellant’s counsel presented no evidence to support the 

assertion that ADA Gilson intentionally acted to prejudice the 

Appellant to the point of denying him a fair trial by violating Brady

and Bruton. Based on controlling authority, this [c]ourt disagreed 

with the assertion that the egregiousness of the violations alone 

proved the intent needed to bar retrial under the standard of

Smith. Supra. For these reasons, this [c]ourt denied the motion 

to bar retrial and dismiss the charges against the Appellant. 

 Failing to turn over four potentially material documents in 

addition to four separate breaks of redaction of a non-testifying 

co-defendant during closing argument is highly improper and 

cannot be condoned. In order to bar retrial and dismiss the 

charges against him, however, the Appellant was required to 

produce evidence that ADA Gilson intentionally violated Brady and

Bruton in order to deny [him] a fair trial. No such evidence was 

produced, therefore retrial cannot be barred Moose, supra. 

Therefore, the appropriate remedy is a new trial, which was 

ordered by Judge Stengel. Washington, 2015 WL 234719 at *27. 

Trial Court Opinion, field 7/26/17, at 12-14. 

 Based upon our review of the entire record in this matter, we discern 

no error on the part of the trial court in reaching this conclusion. Appellant’s 

assertions in his motion to preclude retrial and his claims in his appellate brief 
J-A22045-18

- 12 -

to the contrary, our review has revealed no instance where Appellant produced 

evidence of the Commonwealth’s intent to withhold information or to force a 

mistrial. 

 In fact, Appellant admits the admission of Teagle’s statement was 

“arguably in good faith due to the state of the law at the time.” Brief for 

Appellant at 20.4 In addition, despite his claims of intentional misconduct 

regarding the admission of evidence, Appellant further admits that “no 

explanation has ever been provided or determined for [the] flagrant violation 

of the prosecutor’s duty to provide all exculpatory evidence to the accused 

. . . .” Id. at 24. Indeed, Appellant offered no evidence at the March 2, 2017, 

____________________________________________

4 The Prosecutor’s substituting the term “blank” in place of Appellant’s name 

when redacting Teagle’s statement did not violate Appellant’s constitutional 

right to confrontation at the time of his trial in 1994. See Commonwealth 

v. Rainey, 540 Pa. 220, 232, 656 A.2d 1326, 1333 (1995) (stating trial court’s 

instruction to the jury informing it that an individual's name had been replaced 

with the letter “X” was in accordance with the law). However, the United 

States Supreme Court later held that redactions indicated with an obvious 

blank, the word “delete,” symbols, or other markers violate the protective rule 

established in Bruton v. United States, 88 S.Ct. 1620 (1968). See Gray v. 

Maryland, 118 S.Ct. 1151, 1155 (1998). The Pennsylvania Supreme Court 

thereafter determined that substituting the neutral phrase “the guy” or “the 

other guy” for the defendant's name is an appropriate redaction.

Commonwealth v. Travers, 564 Pa. 362, 373, 768 A.2d 845, 851 (2001).

Accordingly, as the Commonwealth states in its brief, although Gray was 

applicable to Appellant because it had been decided before his direct appeal 

was finalized, “Gray does not demonstrate prosecutorial bad faith in the 

redaction of co-defendant Teagle’s statement at trial nearly four years earlier.” 

Commonwealth’s Brief at 18. 
J-A22045-18

- 13 -

hearing to prove his claim that the prosecutor intentionally withheld the 

discovery. 

 Finally, while we agree with the trial court’s finding that the 

prosecutor’s statements during closing argument were highly improper and 

may even be considered to be grossly negligent, the record does not support 

Appellant’s instant serious allegations that counsel intended to violate Brady

and Bruton in an effort to deny Appellant a fair trial. Following his objection 

to the prosecutor’s closing argument, defense counsel argued Appellant was 

entitled to a mistrial in light of the prosecutor’s repeated interweaving of 

Appellant’s name with “Blank” to suggest Teagle’s confession implicated 

Appellant. In response, the prosecutor expressed his belief that he had used 

the neutral term “accomplice,” and the trial court provided a curative 

instruction at defense counsel’s request. N.T. Trial, 10/7/94, at 97-98. 

 The prosecutor continued his closing argument only to be interrupted 

again by defense counsel’s objection and a second request for a mistrial. Id. 

at 99. The ensuing discussion evinces the prosecutor’s apparent ignorance 

regarding the ramifications of his choice of words and negates Appellant’s 

claims his actions had been intentional: 

 Mr. Gilson: I identify him as the accomplice, Judge, as 

the accomplice.

 Mr. Myers: You identify him as an accomplice, you’re 

referring to my client. Every time if you into Teagle’s statement 

and want to read Teagle’s statement, I don’t mind, but when you 

start to weaving it in with my client sitting there, you have a choice 

of guns, where did that come from? It only came from Teagle’s 

statement. So what do you mean the accomplice, he’s the 
J-A22045-18

- 14 -

accomplice here. He’s the one that gave him a choice of guns. 

Wait a minute, that’s exactly wat you’re saying to the Jury. And 

you can’t do that because you can’t infer in any way that’s my 

client.

 Mr. Gilson: That’s absolutely, unequivocally wrong. How 

else am I going to refer to Derrick Teagle’s statement? I have 

that there is [a] conspirator here. I don’t want to call him the 

conspirator. We have been using that term in the courtroom so 

I’m using the—

 THE COURT: Listen, Mr. Gilson, I’m not going to teach 

you how to make a —you’re on the verge of having a mistrial if 

you keep it up. If you want to say that two people cooperate, 

refer to the people identified who were taking up the place 

together, simultaneously, but you can’t use Teagle’s statement or 

anything contained in that statement to infer who that person is. 

If you do, you have violated redaction. I have two choices, 

separate trials or shut up. That’s your—

Mr. Gilson: I am not. I am not in any way, shape or 

form.

THE COURT: Yes, you are. If you would only read your 

closing argument when this case is over you would understand 

how you’re violating the rules. Go argue from the evidence or lack 

thereof, but don’t implicate [Appellant] by Teagle’s statement in 

any way. That’s my ruling. 

Id. at 100-01. The prosecutor complied with the trial court’s directive 

thereafter. 

 Therefore, as the trial court aptly noted, the proper remedy in this 

situation is not a complete bar to prosecution, but a retrial, which Appellant 

already has been awarded. Trial Court Opinion, filed 7/26/17, at 14; Lynn,

supra at 201. In light of our conclusion that Appellant has failed to 

demonstrate any of the alleged acts of misconduct were intended to deprive 

him of a fair trial, we affirm. 

 Order affirmed. 
J-A22045-18

- 15 -

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/24/18