J-S63020-18

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

YARED ABDIEL PEREZ 

Appellant

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 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. We affirm.

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

follows:

On July 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 12th and 13th, 2017. Appellant was the 

last witness to testify in the jury trial on December 13th, 2017. 

Assistant District Attorney Jared M. Trent, while cross-examining 

Appellant, inquired 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 charges 
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from his “parole agent.” Specifically, the exchange between ADA 

Trent and 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 arrested 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 Notes 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 expressed 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 Appellant’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 – Double 

Jeopardy” (hereinafter “Motion to Dismiss”). By Order dated

January 11th, 2018, a hearing was scheduled on January 17th, 

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

said hearing 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

against 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 

such an inquiry does not “constitute either gross negligence or 
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intentional misconduct.” (Id. at 15:9). ADA Trent additionally 

conceded the line questioning of Appellant at issue constituted an 

“inartful” inquiry. (Id. at 14).

By Opinion and Order January 22nd, 2018, this [t]rial [c]ourt 

denied Appellant’s “Motion to Dismiss Information – Double 

Jeopardy.” Therein, pursuant to Pennsylvania Rule of Criminal

Procedure 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 pursuant 

to Pa.R.Crim.P. 587(B)(6).” Pa.R.Crim.P. 587(B)(4) & (6). Thus, 

on February 16th, 2018, Appellant filed his interlocutory Notice of 

Appeal wherein Appellant appealed this [t]rial [c]ourt’s Order 

dated January 22, 2018. By Order dated the same day, on 

February 16th, 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 6th, 2018, 

Appellant filed his Concise Statement of Matters Complain[ed] of 

on Appeal.

On March 16th, 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 as a premature appeal from this 

[t]rial [c]ourt’s interlocutory Order dated January 22, 2018. By 

letter dated March 20th, 2018, Attorney Clelland responded to the 

Pennsylvania Superior Court’s Order. Therein, Attorney Clelland

noted he was enclosing a copy of this [t]rial [c]ourt’s Order dated 

January 22nd, 2018, wherein this [t]rial [c]ourt advised Appellant 

of his right to appeal pursuant to 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.
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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 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 prohibition against double jeopardy was designed to protect 

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

allegation or offense. Commonwealth 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 Commonwealth v. Minnis, 83 A.3d 1047, 1049 n.1 (Pa. Super. 

2014) (en banc).
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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 

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.

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

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

Commonwealth intended 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:

Dismissal 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 sanction 

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 egregious 
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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 questioning 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 whether 

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 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.

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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 defendant’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, citations, 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 

Appellant 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 did 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 crossexamination eliciting the prejudicial response was “inartful.” 

Moreover, immediately 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 was 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 

finds 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 properly 

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 4-5.
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Based on our review of the certified record, we agree with the 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 “inartful,” the record is replete with evidence that it was not 

ADA Trent’s intention to prejudice 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 charges against him on grounds of 

double jeopardy.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/25/2018