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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.

YARED ABDIEL PEREZ

Appellant :

:

:

:

:

:

:

:

: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 259 WDA 2018
Appeal from the Order January 23, 2018 In the Court of Common Pleas of Erie County Criminal Division at No(s): CP

- 25

- CR

- 0001535

- 2017

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

MEMORANDUM BY MURRAY, J.: FILED OCTOBER 25, 2018

Yared Abdiel Perez (Appellant) appeals from the order denying his

motion to dismiss charges based on double jeopardy. W e affirm

. The trial court detailed the facts and procedural history of this case as

follows:

On Jul y 17, 2017, an Information was filed against Appellant on six criminal counts, including: (1) Violation of the Controlled Substance, Drug, Device and Cosmetic Act, Possession with Intent to Deliver; (2) Liquefied Ammonia Gas, Precursors and Chemicals; (3) Operating A Methamphetamine Laboratory; (4) Violation of the Controlled Substance, Drug, Device and Cosmetic Act, Possession of Drug Paraphernalia; (5) Recklessly Endangering Another Person; and (6) Endangering Welfare of Children.

A jury trial was held for the above

- captioned matter before the [trial court] on December 12 th and 13 th , 2017. Appellant was the last witness to testify in the jury trial on December 13 th , 2017. Assistant District Attorney Jared M. Trent, while cross

- examining Appellant, inqu ired as to how Appellant learned of the charges against [him] in the instant matter. In response to this particular line of questioning, Appellant answered he learned of the chargesJ

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from his “parole agent.” Specifically, the exchange between ADA Trent an d Appellant proceeded, in pertinent part, as follows:

Q: If you had been charged, would you have known about this?

A: What?

Q: If you were charged in this case?

A: I was charged in this case.

Q: How did you find out about that?

A: When they arre sted me. I got a call from my

– I got a call from my parole agent, he told me to come in. It was weird because

– it was weird because he never calls me, never. So when he called me, he told me to come there and that's how I found out about it.

( See Not es of Testimony, Jury Trial, Day 2, Dec. 13, 2017, pg. 168:14

- 24).

Upon eliciting this response from Appellant, ADA Trent ceased

cross

- examining Appellant and e xpressed his concern with this [t]rial [c] ourt. ( Id . at 168:20

- 169:1). Appellant, through Attorney Clelland, orally moved for a mistrial. ( Id . at 171:11

- 19). This [t]rial [c] ourt granted Appell ant’ s request for a mistrial, and the jury was discharged. ( Id . at 171:21

- 22).

On January 10, 2018, Appellant filed, through Attorney Clelland, the present “ Motion to Dismiss Information

– D ouble Jeopardy” (hereinafter “Motion to Dismiss” ). By Order dated January 11 th , 2018, a hearing was scheduled on January 17 th

, 2018 for Appellant’ s Motion to Dismiss. On January 17 th , 2018,

s aid hea ring was held, and this [c] ourt heard testimony and oral arguments from both counsel. At said hearing, ADA Trent stated he did not know the answer to the particular question he asked Appellant during trial, i.e. , that Appellant learned of the charges agai nst him in the instant matter through his parole agent. ( See Motion to Dismiss Transcript, Jan. 17, 2018, at pg. 11:11

- 13; 14:9

- 12). Attorney Trent also indicated he did not intentionally provoke Appellant to elicit this particular response and argued

su ch an inquiry does not “ constitute either gross negligence orJ

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intentional miscond uct.” ( Id . at 15:9). ADA Trent additionally conceded the line questioning of App ellant at issue constituted an “inartful” inquiry. ( Id . at 14).

By Opinion and Order Januar y 22 n d , 2018, this [t]rial [c]ourt denied Appellant’s “ Motion to Dismiss Information

– Dou ble Jeopardy.” Therein, pursuant to Pennsylvania Rule of Criminal Pro cedure 587(B)(4) and (6), this [t]rial [c]ourt also found Appellant’ s Motion to Dismiss on double jeopardy grounds was not frivolous. Thus, this [t]rial [c] ourt advised Appellant that said Order was “ immediately appealable as a collateral order purs uant to Pa.R.Crim.P. 587(B)(6).” Pa.R.Crim.P. 587(B)(4) & (6). Thus, on February 16 th , 2018, Ap pellant filed his interlocutory Notice of Appeal w herein Appellant appealed this [t]rial [c]ourt’ s Order dated January 22, 2018. By Order dated the same day, on February 16 th , 2018, this [t]rial [c] ourt directed Appellant to file his concise statement of matters complained of on appeal within twenty

- one days of the entry of said Order. On March 6 th , 2018, Appellant filed his Concise St atement of Matters Complain [ed] of on Appeal.

On March 16 th , 2018, the Superior Court of Pennsylvania issued a Per Curiam Order directing Attorney Clelland to show cause in the form of a letter why Appellant’ s appeal at Docket Number 259 WDA 2018 should not be quashed a s a premature appeal from this [t] rial [c]ourt’ s interlocutory Order dated January 22, 2018. By letter dat ed March 20 th , 2018, Attorney Clelland responded to the Pennsylvania Superior Court’ s Order. Therein, Attorney Clelland noted h e was enclosing a copy of this [t]rial [c]ourt’s Order dated January 22 n d , 2018, wherein this [t]rial [c] ourt advised Appellant of his right to appeal pursuant t o Pennsylvania Rule of Criminal Procedure 587(B)(6).

Trial Court Opinion, 3/29/18, at 1

- 3.

On appeal, Appellant presents a single issue for review:

WHETHER THE TRIAL COURT COMMITTED AN ABUSE OF DISCRETION AND/OR ERROR OF LAW WHEN IT DENIED APPELLANT’S MOTION TO DISMISS CRIMINAL INFORMATION BASED ON THE FACT THAT DOUBLE JEOPARDY HAD ATTACHED ?

Appellant’s Brief at 3.J

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With respect to Appellant’s double jeopardy claim, our scope and

standard of review is as follows:

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 functi on 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 supporte d by the record.

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

omitted).

The prohib ition against double jeopardy wa s designed to protect

individuals from being tried or punished more than once for the same

allegation or offense. C ommonwealth v. Ball , 146 A.3d 755, 759 ( Pa.

2016)

. The Fifth Amendment of the United States Constitution provides, in

relevant part, that no person shall “be subject for the same offence to be twice

put in jeopardy of life or limb [.]” U.S. Const . amend. V. Likewise , Article I, §

10 of the Pennsylvania Constitution provides that “No person shall, for the

same offense, be twice put in jeopardy of life or limb.” Pa

. Const . art. I, § 10;

see also Com monwealth v. Minnis , 83 A.3d 1047, 1049 n.1 ( Pa. Super.

2014) ( en banc ).J

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In assessing a double jeopardy claim grounded in prosecutorial

misconduct, we are guided by the following:

The Double Jeopardy Clauses of the Fifth Amendment to the United States Constitution and Article 1, § 10 of the Pennsylvania Constit ution 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 cha nges from mere error to intentionally subverting the court process, then a fair trial is denied.

Commonwealth v. Adams , 177 A.3d 359, 371 (Pa. Super. 2017) (citations

omitted). “[W] hether a dismissal is warranted turns on whether the

Commonwealth intende d to deprive the defendant of a fair trial. As [we have]

explained, dismissal is an appropriate remedy in such a case because a

mistrial would be an inadequate remedy for systematic intentional

prosecutorial misconduct[.]” Id. at 372.

Additionally :

Dism issal of criminal charges punishes not only the prosecutor . . . but also the public at large, since the public has a reasonable expectation that those who have been charged with crimes will be fairly prosecuted to the full extent of the law. Thus, the sa nction of dismissal of criminal charges should be utilized only in the most blatant cases. Given the public policy goal of protecting the public from criminal conduct, a trial court should consider dismissal of charges where the actions of the Commonwealth are egregiousJ

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and where demonstrable prejudice will be suffered by the defendant if the charges are not dismissed.

Id. (citations omitted).

Appellant argues that the trial court erred in dismissing his double

jeopardy claim because the Commonwealth’s qu estioning of Appellant during

his first trial amounted to gross negligence, which he asserts is a sufficient

level of prosecutorial misconduct to bar retrial on double jeopardy grounds.

Appellant contends that “ intent is of no concern when determining whe ther

negligent or grossly negligent behavior occurred.” Appellant’s Brief at 8

(emphasis in original).

Appellant’s argument is not consistent with our jurisprudence relating

to double jeopardy claims based on prosecutorial misconduct. We have stated

that “gross negligence on the part of the Commonwealth is never a sufficient

basis upon which to bar retrial on double jeopardy grounds .”

Commonwealth v. Kearns , 70 A.3d 881, 886 (Pa. Super. 2013) (emphasis

in original). As we further explained :

[U]nder Pennsylvania jurisprudence, it is the intenti onality behind the Commonwealth’ s subversion of the court process, not the prejudice caused to the defendant, that is inadequately remedied by appellate review or re trial. 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 specif ic individual’s right to a fair trial that are left unaddressed by retrial.

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The additional protections provided under Pennsylvania’s Double Jeopardy clause do not extend to non

- intentional prosecutorial misconduct, but rather only bar retrial following a defendan t’ s successful motion for a mistrial when the conduct of the prosecutor [giving rise to the mistrial] is intentionally undertaken to prejudice the defendant to the point of the denial of a fair trial.

Id. at 884

- 86 (quotations, citatio ns, and footnotes omitted).

In this case, ADA Trent’s prosecutorial misconduct was not intentional

. Notably, the record reflects that immediately upon eliciting the prejudicial

response from Appellant set forth above, ADA Trent ceased questioning

Appella nt and brought the issue to the attention of the trial court. N.T.,

12/13/17, at 168

- 69 . Thus, the trial court appropriately rejected Appellant’s

double jeopardy claim , stating :

In the instant case, ADA Trent represented to this [t]rial [c]ourt that he d id not know the answer to the prejudicial question which caused Appellant to move for a mistrial. In addition, ADA Trent conceded his line of questioning during Appellant’s cross

examination eliciting the prejudicial response was “inartful.” Moreover, im mediately upon eliciting the prejudicial statement from Appellant, ADA Trent ceased his cross

- examination of Appellant and later expressed his concern to Attorney Clelland and the [c]ourt outside the presence of the jury. ADA Trent stated his “intention w as to explore the conversations with [Appellant’s] sister.” ( See Notes of Testimony, Jury Trial, Day 2, Dec. 13, 2017, pg. 169:24

- 25). ADA Trent also admitted he did not anticipate Appellant’s answer. ( Id . at 170:3

- 4). As such, this [t]rial [c]ourt fin ds and concludes no prosecutorial misconduct occurred because ADA Trent did not intentionally provoke Appellant to elicit this particular response, nor was he motivated by bad faith to harass or prejudice Appellant. Accordingly, this [t]rial [c]ourt prope rly concluded Double Jeopardy does not preclude the Commonwealth from trying Appellant for a second time and properly denied Appellant’s Motion to Dismiss.

Trial Court Opinion, 3/29/18, at 4

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Based on our revie w of the certified record , we agree with t he trial

court’s conclusion that ADA Trent did not intentionally commit prosecutorial

misconduct in order to prejudice Appellant to the point of denying him a fair

trial. See Kearns , 70 A.3d at 884

- 86. Although ADA Trent’s line of

questioning was “inartf ul
, ” the record is replete with evidence that it was not

ADA Trent ’s intention to prejudic e Appellant and deny him a fair trial.

Accordingly, we conclude that the trial court did not abuse its discretion in

denying Appellant’s motion to dismiss the charge s against him on grounds of

double jeopardy.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/25/2018