J-A24016-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

RUDY EUGENE E. NORTH

Appellant No. 1618 EDA 2015

Appeal from the Order Entered May 22, 2015

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0012176-2007

BEFORE: BOWES, J., OTT, J., and SOLANO, J.

MEMORANDUM BY OTT, J.: FILED DECEMBER 16, 2016

Rudy Eugene E. North (North) appeals from the order entered on May 

22, 2015, in the Court of Common Pleas of Philadelphia County, denying his 

motion to dismiss criminal charges based on double jeopardy.1 North’s sole 

issue is a claim the trial court erred in determining the Commonwealth’s 

conduct that occurred in his first trial was not intentionally undertaken with 

the intent of denying him a fair trial. After a thorough review of the 

submissions by the parties, relevant law, and the certified record, we affirm 

the trial court’s order denying North’s motion to dismiss criminal charges on 

the basis of double jeopardy.

____________________________________________

1 This matter has returned to us from remand, the trial court having 

determined, pursuant to Pa.R.Crim.P. 587(B), that this appeal is not 

frivolous. Accordingly, this represents an immediately appealable collateral 

order. See Pa.R.A.P. 313.
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The parties are familiar with the factual and procedural histories of this 

matter. Accordingly, we simply state that North was accused of sexually 

abusing his niece. During the course of the investigation of the alleged 

incidents, the Commonwealth came to believe that North’s niece, the 

complaining witness (Child), was being improperly influenced by her mother 

to deny that anything improper has occurred. This belief arose from the 

Child making accusations and then recanting, and the interaction between 

the Assistant District Attorney (ADA) initially assigned to the case, Child and 

Child’s mother. At the preliminary hearing, the ADA sought permission from 

the court to interview Child outside the presence of her mother, which was 

granted, and a child advocate and attorney were appointed to safeguard the 

rights of Child. Thereafter, Child testified to the alleged assaults and the 

case was bound over for trial.

At trial Child recanted her preliminary hearing testimony and the trial 

ADA called the initial ADA assigned to the case, Carrie Sarhangi, Esquire 

(ADA Sarhangi), to testify regarding her prior interactions with Child and 

Child’s mother. In the course of this testimony, without prompting by the 

trial ADA, ADA Sarhangi vouched for the credibility of Child regarding Child’s 

accusations against North, her uncle. North was acquitted of rape, but 

convicted of child endangerment, indecent assault and corruption of a minor. 

On direct appeal, North was granted a new trial because the trial court, over 

objection, allowed ADA Sarhangi to give her personal opinion regarding 

Child’s credibility. North now claims retrial is barred by double jeopardy 
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considerations. Specifically, he claims that by vouching for the credibility of 

Child, the Commonwealth intentionally sought to deprive him of a fair trial:

During the testimony of the Preliminary Hearing ADA, there were 

multiple instances where ADA Sarhangi impermissibly provided 

opinion evidence both as to Mr. North’s guilt and [Child’s] 

credibility. It is respectfully submitted that this was intentional 

conduct intended to subvert the judicial process and deny a fair 

trial, and this Court should reverse the decision in the Court 

below and order Mr. North discharged.

Appellant’s Brief at 10. 

Our scope and standard of review 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. Graham, 109 A.3d 733, 736 (Pa. Super. 2015) (citation 

omitted).
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In denying North’s motion to dismiss, the remand court2opined while 

there had been misconduct, it was not undertaken with the intent of 

depriving North of his rights to a fair trial. See Remand Court Opinion 

[RCO] at 3. The remand court concluded, “Although such testimony was 

impermissible, it was not an intentional act by the Commonwealth to 

prejudice the defendant from having a fair trial.” RCO at 4. The remand 

court determined, “it was merely an ill-advised trial strategy to bolster the 

inconsistencies of the victim’s testimony.” Id. Our independent review of 

the certified record leads us to the same conclusion.

We begin with the salient standards regarding double jeopardy in 

Pennsylvania jurisprudence.

Our Supreme Court has determined that the Double Jeopardy 

Clause of Pennsylvania's constitution provides greater protection 

than its federal counterpart:

[T]he 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.

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

(1992).

As this Court has reflected:

____________________________________________

2 This case did not return to the same trial court on remand. Accordingly, 

we refer to the court that addressed the motion to dismiss as the “remand 

court” to make this distinction.
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The Smith standard precludes retrial where the 

prosecutor's conduct evidences intent to so prejudice the 

defendant as to deny him a fair trial. A fair trial, of course 

is not a perfect trial. Errors can and do occur. That is why 

our judicial system provides for appellate review to rectify 

such errors. However, where the prosecutor's conduct 

changes from mere error to intentionally subverting the 

court process, then a fair trial is denied.

Commonwealth v. Chmiel, 777 A.2d 459, 464 (Pa. Super. 

2001).

Thus under 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. As this Court has 

often repeated, “[a] fair trial is not simply a lofty goal, it is a 

constitutional mandate, ... [and] [w]here that constitutional 

mandate is ignored by the Commonwealth, we cannot simply 

turn a blind eye and give the Commonwealth another 

opportunity.” Chmiel, 777 A.2d at 464 (quoting 

Commonwealth v. Martorano, 559 Pa. 533, 741 A.2d 1221, 

1223 (1999)).

Commonwealth v. Kearns, 70 A.3d 881, 884-85 (Pa. Super. 2013).3

First, the prior decision by a panel of our Court determined the trial 

court had committed an error of law in allowing improper opinion testimony 

by ADA Sarhangi, who, during examination, vouched for the credibility of 

____________________________________________

3 North did not seek a mistrial; accordingly, that aspect of the double 

jeopardy analysis is not applicable.
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Child in accusing North of having molested her.4 See Commonwealth v. 

North, 2012 WL 10920259, (Pa. Super. 5/7/2014) (unpublished 

memorandum). Indeed, no question posed by the trial ADA during the 

relevant portion of ADA Sarhangi’s testimony elicited an objection from the 

defense.

As previously stated, at trial, Child recanted her allegations and 

preliminary hearing testimony against her uncle, North. ADA Sarhangi, as 

the initially assigned ADA, had been in a position to witness Child interact 

with her mother and was thereby able to explain the circumstances of her 

inconsistent testimony. As such, ADA Sarhangi’s testimony during the 

Commonwealth’s case-in-chief provided context to Child’s trial testimony 

and allowed the jury to fully weigh all the evidence presented. Further, it is 

important to note that the prior panel of our Court specifically stated, “Thus, 

while the previous prosecutor certainly could testify as to the victim’s 

family’s lack of support and its attempts to persuade the victim to recant, 

the [trial] court erred in allowing her to opine as to her beliefs on the 

credibility of the victim.” Id. at *6. What the prior panel of our Court did 

____________________________________________

4 As more fully discussed below, ADA Sarhangi’s direct examination 

consisted mainly of a 13-page narrative of the preliminary hearing process, 

and perceived problems attendant thereto, in response to the question, “Do 

you remember a case involving [Child]?” N.T. Trial, 7/29/2010, at 159. 

Relevant to this appeal, the narrative was interrupted after nine pages of 

testimony by defense counsel’s initial objection regarding ADA Sarhangi’s 

opinion testimony.
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find improper were two instances where the trial court allowed ADA Sarhangi 

to state her personal belief that Child was truthful when she accused North 

of having sexually assaulted her. The specifics of this improper testimony 

will be discussed infra. 

Next, this matter presents an unusual situation in that it is not the 

actions of the trial ADA that are at issue so much as the actions of a witness 

who was also prosecutor. As noted above, there is no suggestion in our 

Court’s prior decision, in North’s current brief, or in the certified record that 

the trial ADA engaged in misconduct or that he and ADA Sarhangi were 

acting in collusion. No instantly relevant question by the trial ADA was the 

source of an objection. Rather, it was the unprovoked answers by the 

witness that provide the basis of North’s double jeopardy claim. 

Accordingly, we examine whether that improper testimony was offered 

with the intent to deprive North of his right to a fair trial.

At trial, ADA Sarhangi provided a narrative description of the 

observations during the preliminary hearing process. The first substantive 

testimony on direct examination by the trial ADA is found in the notes of 

testimony of July 29, 2010 at page 159.

Q: Okay. I want to take you back to – well, do you remember a 

case involving [Child]?

A: I do. Actually rather vividly comparing how long ago the case 

was.

Q: Why is it that you remember that particular case?
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A: I was rather involved in this case. I was the first assistant 

district attorney to handle the case. So what generally happens 

is once a complaint is filed, then the person is arrested and we 

start the preliminary hearing process.

A preliminary hearing – I’m not sure if someone else testified 

about this yet or not.

Q: Please do.

N.T. 7/29/2010, at 159.

After “Please do,” ADA Sarhangi testified uninterrupted by subsequent 

questions for nine pages of recorded testimony. See N.T. Trial, 7/29/2010, 

pp 159-168. ADA Sarhangi’s testimony from pages 159-168 addressed her 

observations of the interaction between Child and Child’s mother, as well as 

her own interactions with Child. As such, this testimony evidences an intent 

to describe the ways that Child has been emotionally pulled by her mother 

and her uncle, North, away from her original accusations. In other words, 

the testimony provided a basis to explain to the jury why Child had 

recanted.

It is not until the end of this multi-page narrative that ADA Sarhangi 

improperly commented on Child’s credibility. ADA Sarhangi had described 

the manner in which she interviewed Child on the day of the preliminary 

hearing. As part of that description, she indicated she changed the focus of 

her inquiry from what Child was currently saying (recanting), to Child’s 

statements to her school counselor in which she had accused North. At that 

point of the conversation between ADA Sarhangi and Child, Child reiterated 

her accusations. Specifically, ADA Sarhangi testified:
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[ADA Sarhangi]: Then when I changed my questioning back to 

[“]Well, so when you were five then, what happened?[”] She 

continued telling the story. That’s kind of how I knew she was 

telling the truth because –

[Defense Counsel]: I’m going to object to that because it’s an 

opinion and it’s not relevant for these proceedings.

The Court: All right. Well, it is your opinion. You can express in 

that way at this point.

[ADA Sarhangi]: Yes, your Honor.

The Court: So if you wouldn’t mind rephrasing it.

[ADA Sarhangi]: Of course. At that point I believed [Child] was 

telling the truth because I felt like I had given her an out, a way 

to just open the door and for her to start telling the truth by 

saying, you know, this was my end. [sic]

Id. at 168.

Later, ADA Sarhangi again vouched for Child’s credibility in accusing 

North. 

[Trial ADA]: So what was your motivation in this case for getting 

[Child] to testify [at the preliminary hearing]?

[ADA Sarhangi]: I believed her. I thought what she was saying 

was the truth.

[Defense Counsel]: I’m just going to object. It’s not relevant. 

Her opinion is not relevant.

 

The Court: Why isn’t it relevant? I’m overruling the objection.

[ADA Sarhangi]: I believed [Child]. I think any seven year old in 

a situation where your mom’s telling you don’t say X, doesn’t 

say X. Mom says Y, they say Y.

The Court: You’re not answering the question.
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[ADA Sarhangi]: I believed [Child], not her mom. And I felt that 

this was the only way to get her out of the hostile environment 

and I felt that she needed an advocate and support outside of 

her family because I didn’t think her family wasn’t [sic] being 

supportive of her and a seven year old I felt that she was so 

young and impressionable that anyone in her family could force 

her to try and say something that wasn’t true and being a victim 

of sexual assault, the only way you can ever deal with it and get 

it past you is to deal with it and move forward.

I believed [Child] and I wanted to prosecute the case because I 

felt she was telling the truth and it was the right thing.

Id. at 180-81.

The trial court’s initial overruling of defense counsel’s objection that 

allowed ADA Sarhangi to give her opinion regarding her interaction with the 

Child, which was later found to be error by our Court, essentially sanctioned 

ADA Sarhangi’s subsequent opinion testimony regarding her belief that 

Child’s allegations against her uncle were truthful. Defense counsel’s second 

objection was lodged and again overruled, and the trial court even prompted 

ADA Sarhangi to clarify her answer. North has provided no case law 

indicating that actions of a witness or trial attorney who is following a 

judge’s evidentiary ruling, even one that is later determined to be an error of 

law, can be considered evidence of intent to prejudice a defendant. 

Because of the trial court’s rulings, we review ADA Sarhangi’s first 

statement, “That’s kind of how I knew she was telling the truth because —”, 

N.T. Trial, 7/29/2010 at 168, supra, as to its intent to prejudice the 

defendant. The statement was made during ADA Sarhangi’s lengthy 

explanation of the circumstances that led to Child’s preliminary hearing 
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testimony and appointment of a child advocate and lawyer to safeguard 

Child’s rights. The complained-of testimony followed a narrative to describe 

Child’s vacillations of her statements against North. The remand court did 

not perceive this testimony as an improper attempt to prejudice North, but 

rather as the unfortunate culmination of the attempt to explain Child’s 

testimonial inconsistency. 

Our review of the certified record, especially the trial notes of 

testimony, combined with the facts that ADA Sarhangi’s comment was not 

invited by a question posed by the trial ADA, defense counsel did not seek 

either a mistrial or curative instruction, and the prior decision by our Court 

was predicated on trial court error, leads us to conclude there was no intent 

to deprive North of a fair trial. Because North has not demonstrated the 

requisite intent to deprive him of a fair trial by the Commonwealth, North is 

not entitled to invoke the protection against double jeopardy.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/16/2016
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