J-S37020-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JAMES LEE TURNER 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2778 EDA 2019

Appeal from the Judgment of Sentence Entered August 29, 2019

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

No(s): CP-09-CR-0005117-2018

BEFORE: SHOGAN, J., NICHOLS, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY NICHOLS, J.: Filed:December 24, 2020

Appellant James Lee Turner appeals from the judgment of sentence 

imposed following his convictions for simple assault and harassment.1 

Appellant argues that the trial court erred when it denied his motion to dismiss 

the charges on double jeopardy grounds. We affirm.

The trial court summarized the facts and procedural history of this case 

as follows:

Appellant was arrested and charged with aggravated assault, 

simple assault, strangulation, and a lesser summary charge of 

harassment. After several continuances[2], the case was brought 

to trial on April 22, 2019. On that date, a jury was chosen and 

seated. After attorneys for both sides made opening 

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1 18 Pa.C.S. §§ 2701(a)(1) and 2709(a)(1), respectively.

2 Appellant’s preliminary hearing was held on August 22, 2018 and trial was 

initially scheduled for January 3, 2019.
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statements[3],the trial was adjourned for the day. Immediately 

after adjournment, the prosecuting attorney and the affiant[, 

Officer Kelli Fronk] discussed the case. During this discussion, it 

was determined the affiant had taken additional investigative 

actions which were unknown to the prosecuting attorney. These 

actions were contained in a supplemental report which had not 

been provided to the District Attorney’s Office. The prosecuting 

attorney immediately notified defense counsel by e-mail of the 

additional investigation.

The next day, April 23, 2019, [the trial court] held a hearing. At 

this hearing, the affiant testified that her supplemental police 

report was not included with the initial incident report provided to 

the District Attorney’s Office, and thereafter, to [Appellant] during 

the discovery process. The supplemental report was prepared 

more than six months after the initial report and may not have

existed at the time the initial report was provided in discovery. 

The supplemental report described her attempt to locate and 

interview witnesses to the alleged assault. More specifically, she 

spoke with a private security guard who had been working in the 

welfare office where and when the assault had allegedly occurred. 

The security guard stated he worked from opening to closing and

there was no assault or fight. The security officer confirmed there 

were no surveillance cameras inside the office. The officer 

testified the failure to provide the supplemental report was “an

oversight.” At the conclusion of the hearing, [the trial court] 

granted Appellant’s motion for a mistrial, reduced his bail to a 

nominal amount pursuant to Rule 600 of the Pennsylvania Rules 

of Criminal Procedure, and deferred further action pending the 

filing of a written motion.

Appellant filed a motion to dismiss all charges on grounds of 

double jeopardy. [The trial court] held a hearing on this motion 

on June 13, 2019. At this hearing, [Officer Fronk] clarified her 

supplemental police report was dated February 21, 2019. The 

officer also swore under oath she did not intend to withhold her 

report to prejudice [Appellant]. Appellant’s motion was denied 

and dismissed by an order dated June 25, 2019.

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3 Appellant’s counsel centered his opening argument on a theory that the 

investigating officer did not attempt to identify any eyewitnesses. See N.T., 

4/23/19, at 5.
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Thereafter, Appellant was tried before a jury beginning on August 

19, 2019. Appellant was found guilty of simple assault by the jury 

and the summary charge of harassment by the trial judge. The 

jury found Appellant not guilty of charges of strangulation and 

aggravated assault. Appellant was sentenced only on the charge 

of simple assault to serve a term of imprisonment in the Bucks 

County Correctional Facility for not less than six (6) nor more than 

twenty-three (23) months, with credit for approximately thirteen 

months[’] time served since August 1, 2018. 

Appellant timely filed an appeal to the Superior Court of 

Pennsylvania and complied with [the trial court’s order] issued 

pursuant to Rule 1925(b) of the Rules of Appellate Procedure.

Trial Ct. Op., 2/24/20, at 1-3 (footnotes omitted and some formatting 

altered).

Appellant presents the following issue for our review.

Whether the trial court erred by denying Appellant’s motion to 

dismiss all charges pursuant to the double jeopardy clauses of 

both the federal and state constitutions where the Commonwealth 

caused a mistrial by intentionally withholding from Appellant 

exculpatory police reports until after Appellant’s trial began[.] 

Appellant’s Brief at 4 (formatting altered).

Appellant argues that double jeopardy precluded his retrial for the same 

offenses after the trial court declared a mistrial due to misconduct attributable 

to the Commonwealth.

4

 Appellant concedes that the prosecuting attorney

provided the defense with the supplemental report in a timely manner. Id. at 

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4

In Appellant’s first trial, the trial court determined that the Commonwealth 

violated Brady v. Maryland, 373 U.S. 83 (1963) by failing to disclose the 

exculpatory supplemental report. Trial Ct. Op. at 4. The Commonwealth 

argued that the report was cumulative and not material. Id. The trial court 

reasoned that “testimony of an independent, impartial witness that directly 

repudiates the victim’s account on an incident underlying the criminal charges 

at issue is clearly material” and granted Appellant’s request for a mistrial. Id.
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16. However, Appellant asserts that the prosecution bears responsibility for 

the omission of the police department because “both entities represent the 

Commonwealth for purposes of this prosecution.” Id. at 15. 

Appellant continues that Officer Fronk intentionally withheld the 

supplemental police report to prejudice Appellant and deny him a fair trial. 

Id. at 13-14. Appellant contends that this case does not involve a complex 

investigation with multiple participating police officers or departments. Id. at 

17. Appellant argues that because the investigation involved a single officer 

from a single police department, the simplicity of this investigation serves as 

“strong circumstantial evidence that [Officer Fronk] intentionally withheld her 

February 21, 2019 supplemental report.” Id. Accordingly, Appellant 

concludes that his conviction and sentence should be vacated and all charges 

dismissed with prejudice. Id. at 19.

The Commonwealth responds that, while mistrial was warranted based 

on a Brady violation, Appellant’s double jeopardy claim is meritless. 

Commonwealth’s Brief at 7. The Commonwealth asserts that it neither 

intentionally nor recklessly withheld exculpatory evidence to deprive Appellant 

of a fair trial. Id. The Commonwealth points out that the prosecuting attorney 

promptly notified Appellant’s counsel of the undisclosed report. Id. at 13. 

Further, the Commonwealth maintains that the late disclosure was “the 

product of Officer Fronk’s oversight and swiftly corrected following the 

error[’]s revelation.” Id. The Commonwealth maintains that the late 

disclosure was not carried out with the intention to deny Appellant a fair trial 
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nor did its actions, according to the Commonwealth, demonstrate a conscious 

disregard for a substantial risk that Appellant would be denied a fair trial. Id.

at 14.

We apply the following standard:

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. Adams, 177 A.3d 359, 370 (Pa. Super. 2017) (citation 

omitted and some formatting altered). 

In determining whether double jeopardy bars retrial following a mistrial, 

our Supreme Court has set forth the following standard.

We now hold 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.
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Commonwealth v. Smith, 615 A.2d 321, 325 (Pa. 1992). In Adams, this 

Court acknowledged that the police can be responsible for a Brady violation 

and articulated:

We have no question that if a Brady violation is committed by a 

prosecutor, it can result in a dismissal on double jeopardy grounds 

if it is shown that the prosecutor intended to deprive the defendant 

of a fair trial. Although we have found no instance in which we 

have held that intentional misconduct by the police also should 

warrant dismissal of the charges under a double jeopardy

analysis, we see no reason to foreclose that possibility.

Prosecutors must perform their duties under Brady in conjunction 

with the police, and a Brady violation may occur where evidence 

in the possession of the police is not disclosed to the defendant, 

even if the prosecutor did not know about it.

Adams, 177 A.3d at 372 (citations and footnote omitted).

In addition, our Supreme Court recently expanded the Smith standard

in Commonwealth v. Johnson, 231 A.3d 807 (Pa. 2020).5

Under Article I, Section 10 of the Pennsylvania Constitution, 

prosecutorial overreaching sufficient to invoke double jeopardy 

protections includes misconduct which not only deprived 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.

Johnson, 231 A.3d at 826.

In Johnson, the prosecution alleged that the defendant shot and killed 

the victim at close range. Id. at 812. During the investigation, police 

recovered a black baseball cap and a red baseball cap. Id. at 810-11. The

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5 We note that the trial court did not have the benefit of our Supreme Court’s 

decision in Johnson before issuing its Rule 1925(a) opinion.
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black cap had been worn by the victim and had his blood under the brim. Id.

at 811. The red cap was recovered several yards away from the victim’s body 

and had the defendant’s sweat on the band. Id. at 810-11. Police logged

each cap under separate property receipts with distinct numbers. Id. at 810-

11, 827. The case went unsolved for several years before an informant 

directed police to the defendant. Id. at 811. At trial, the prosecuting attorney 

proceeded under the theory that one cap, the red one, had both the victim’s 

blood and the defendant’s sweat on it. Id. at 811-13. The Commonwealth’s 

forensics expert also erroneously indicated that the blood and sweat 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 the defendant and sentenced him to death. 

Id. at 813.

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

second cap had been analyzed, the Commonwealth agreed the defendant was 

entitled to a new trial and the defendant 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 the victim’s blood and [the defendant]’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, 
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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 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.

Instantly, in its Rule 1925(a) opinion the trial court addressed its denial 

of Appellant’s motion to dismiss the charges before Appellant’s second trial.

Initially, [the trial court] note[d] the supplemental police report 

was dated more than six months after the initial police report. The 

initial police report was properly provided to the defense during 

the discovery process. The reason for the failure to include the 

supplemental report in the discovery process is unknown. It may 

not have existed at the time discovery was provided to the 

defense.

Both sides agree the prosecuting attorney did not know of its 

existence when trial began. There were no pre-trial or other 

evidentiary hearings in this case. At the time of trial, the police 

affiant was unaware her supplemental report had not been 

provided to the defense or prosecuting attorney. It became 

obvious during defense counsel’s opening statement that he was 

unaware of the police officer’s action described in her 

supplemental report. The police affiant spoke with the 

prosecuting attorney after opening statements and disclosed the 

actions detailed in her supplemental report. The prosecuting 

attorney immediately disclosed the existence of the supplemental 

report to defense counsel by e-mail. At no time did anyone 

associated with the prosecution deny the existence of a 

supplemental report or the failure to provide said report to the 

defense. Testifying under oath in hearings related to Appellant’s 

Motion to Dismiss, the affiant swore the failure to provide the 
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supplemental report in discovery was just “an oversight” and that

she did not “intend to suppress that report to prejudice 

[Appellant].” [The trial court] listened to the officer’s testimony 

carefully. She appeared honest and sincere. Her testimony was 

consistent with other evidence and [the trial court] believed her.

Accordingly, [the trial court] determined that although errors 

occurred, those errors were unintentional. [The trial court] also 

concluded there were no actions taken that were designed to 

deprive Appellant of a fair trial. As such, the remedy of dismissal 

in this case would be overly harsh and would not promote the 

goals contemplated by discharge under double jeopardy, 

foreclosing systematic maltreatment.

Id. at 7-8 (footnotes omitted).

Based on our review of the record, we conclude that the record supports 

the trial court’s conclusion that the Commonwealth’s errors were 

unintentional. See Smith, 615 A.2d at 325. 

As noted by the trial court, the prosecuting attorney promptly notified 

Appellant’s counsel of Officer Fronk’s supplemental report describing her 

contact with the security guard when she brought it to the prosecutor’s 

attention. See Trial Ct. Op. at 1. Based on this record, it appears that the 

prosecutor did not previously know the supplemental report existed. Trial Ct. 

Op. at 7. 

Officer Fronk testified that she is a ten-year police veteran and has 

investigated and testified in more cases that she could count. N.T. 6/13/19, 

at 8. The officer explained that she typed the supplemental report as an 

update to the incident report six months after the charges were filed. See id.

at 7; Trial Ct. Op., at 7. Officer Fronk testified that she was not aware that 

Appellant had already had two scheduled trial dates prior to the date on which 
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she wrote the report. N.T., 6/13/19, at 7. However, Officer Fronk stated that 

she did not intend to withhold the report to prejudice Appellant. Id. at 10.

Here, the trial court credited the testimony of Officer Fronk. Trial Ct. 

Op. at 8. Based on our review, we conclude the record supports the trial 

court’s credibility determination that the Commonwealth’s actions were not 

intentionally undertaken to deprive Appellant of a fair trial. See Smith, 615 

A.2d at 325; see also Adams, 177 A.3d at 370.

Further, applying the Johnson standard, we find that the 

Commonwealth’s actions do not reflect a conscious disregard for the 

substantial risk that Appellant would be deprived of a fair trial. See Johnson, 

231 A.3d at 826. As noted above, the trial court credited Officer Fronk’s 

testimony that she was unaware that the prosecuting attorney did not have 

the supplemental report. Trial Ct. Op. at 7. Following opening arguments,

Officer Fronk provided the report to the prosecuting attorney when asked if 

there were any additional reports documenting any further investigation. N.T. 

6/13/19, at 10. Upon receipt, the prosecutor notified Appellant’s counsel and 

provided the missing supplemental report. Trial Ct. Op. at 1.

Based on our review of the record, the instant case is distinguishable

from Johnson in that there is no indication that the prosecuting attorney

should have known or had access to the supplemental report, unlike the 

property receipts in Johnson, which were in the prosecutor’s possession. Id.

at 7. Notably, Officer Fronk prepared the supplemental report approximately 

five months after Appellant’s preliminary hearing and one month after 
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Appellant’s initial trial listing. N.T. 6/13/19, at 7. Accordingly, the record 

suggests that the prosecutor did not have access to the report until the April 

2019 trial date. Id. at 13.

Further, the investigating officer in Johnson testified to observations 

he did not make based on an assumption that the prosecutor’s single hat 

theory was correct. See Johnson, 231 A.3d at 827 n.14. Here, by contrast, 

Officer Fronk promptly acknowledged the error and provided the supplemental 

report to the prosecutor and Appellant’s counsel as soon as she discovered 

the oversight. Trial Ct. Op., at 7. 

Unlike the case in Johnson, the record reflects the Commonwealth’s 

diligence in discovering its error and promptly correcting it. Accordingly, we 

conclude that the errors in this case do rise to the level of reckless disregard,

and we agree with the trial court that retrial was not barred. See Johnson, 

231 A.3d at 826.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/24/20