J-S18020-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

SHAWN MICHAEL BOOK,

Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1126 WDA 2017

Appeal from the Order July 20, 2017

in the Court of Common Pleas of Butler County,

Criminal Division at No(s): CP-10-CR-0000630-2016, 

CP-10-CR-0001483-2015

BEFORE: STABILE, J., MUSMANNO, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY MUSMANNO, J.: FILED JUNE 27, 2018

Shawn Michael Book (“Book”) appeals from the Order denying his Motion 

to bar a retrial, following the declaration of a mistrial in Book’s second jury 

trial.1 We affirm.

In its Opinion, the trial court described the history underlying the instant 

appeal, which we adopt as though fully restated herein. See Trial Court 

Opinion, 7/20/17, at 1-15.

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1 This is an interlocutory appeal as of right. See Commonwealth v. 

Hallman, 67 A.3d 1256, 1260 (Pa. Super. 2013) (recognizing that “a

defendant can immediately appeal as of right an order that denies a nonfrivolous motion to dismiss on state or federal double jeopardy grounds.”).
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Book’s first jury trial, on the charges of burglary2 and related crimes, 

ended in a mistrial.3 During his second jury trial, three incidents took place, 

culminating in the trial court’s declaration of a mistrial, sua sponte. First,

Commonwealth witness Toni Arnold (“Arnold”) improperly referred to Book’s 

prior incarceration, after which the trial court denied Book’s Motion for a 

mistrial. See N.T., 4/17/17, at 226-27. Second, Book’s wife, Michelle Book 

(“Michelle”), another Commonwealth witness, testified regarding privileged 

communications between her and Book. See N.T., 4/18/17, at 56-58. 

Counsel for Book objected to the testimony. Id. at 57-58. The trial court did 

not rule on the objection, but no further testimony regarding the discussion 

took place.4 Third, it was discovered that discovery materials, including a 

possible recording related to interviews conducted by Master Trooper Dominic 

Caimona (“Master Trooper Caimona”) and Corporal Randolph Guy, were not 

provided to defense counsel. See N.T., 4/18/17, at 189-91 (wherein Michelle 

testified regarding interviews conducted by the officers, and a subsequent 

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2

 See 18 Pa.C.S.A. § 3502.

3 During the first trial, a police officer improperly had testified regarding facts 

from which it could be inferred that Book had a criminal record. 

4 The trial court requested that the prosecutor provide additional foundation 

to establish that the conversation was not privileged, i.e., that a third person 

was present during the conversation. Id. at 58. The prosecutor was unable 

to provide the necessary foundation. Id. at 58-59. 
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sidebar discussion regarding the possibility of a Brady5 violation). This came 

to light during the testimony of Master Trooper Caimona, who had been called 

as a witness by Book. Following the third event, the trial court, sua sponte,

declared a mistrial, providing the following rationale for its decision: 

[N]umber one, we have the inadvertent[,] but certainly 

prejudicial[,] blurt out by [] Arnold concerning the fact that [Book] 

was in prison. Then we have Michelle[’s] [] testimony in violation 

of the spousal privilege[,] and then we have this issue[,] which[,] 

I think[,] is cumulatively going to make me declare a mistrial at 

this point.

Id. at 226-27. 

Book subsequently filed the instant Motion to Dismiss With Prejudice

seeking to bar a third trial. In support, Book claimed that prosecutorial 

misconduct caused the prior mistrials, and consequently, a retrial would 

violate his constitutional protection against double jeopardy. Motion to 

Dismiss With Prejudice, 6/6/17, at 1; Brief in Support of Motion, 6/6/17, at 3 

(unnumbered). In an Opinion and Order entered on July 20, 2017, the trial 

court denied Book’s Motion to Dismiss With Prejudice. Thereafter, Book filed 

the instant timely appeal, followed by a court-ordered Pa.R.A.P. 1925(b) 

Concise Statement of matters complained of on appeal.

Book presents the following claims for our review:

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5 See Brady v. Maryland, 373 U.S. 83, 87 (1963) (holding that the 

prosecution must disclose evidence favorable to the accused that is material 

either to guilt or to punishment). 
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A. Whether the [trial] [c]ourt committed an error of law and/or 

abuse of discretion in denying [Book’s] “Motion to Dismiss With 

Prejudice”?

B. Whether the [p]rosecutor and/or other agents of the 

Commonwealth engaged in prosecutorial 

misconduct/overreach in the instant case[,] aimed at either 

forcing [Book] to request a mistrial and/or deny [Book] a fair 

trial?

C. Whether the conduct of the agents of the Commonwealth, 

namely members of the [Pennsylvania] State Police, should be 

imputed to the Commonwealth as misconduct barring retrial of 

[Book]?

D. Whether the overreach/prosecutorial misconduct by the 

Commonwealth/its agents prohibits retrial of [Book] via Pa. 

Const., art. I, § 10 and U.S. Const., amend. V.[?]

Brief for Appellant at 9 (emphasis omitted, issues renumbered for clarity). 

In the Argument section of his brief, Book reduces his claims to the 

following three issues: (1) whether prosecutorial misconduct, as defined 

under Commonwealth v. Smith, 615 A.2d 321 (Pa. 1980), occurred in the 

instant case, thereby creating a double jeopardy prohibition of retrial, see 

Brief for Appellant at 19; (2) whether the weight of the evidence in this case 

indicates that the Commonwealth actors engaged in the prosecutorial 

overreach proscribed under the Smith test and, therefore, the double 

jeopardy prohibition of retrial is triggered, see id. at 39; and (3) whether the 

trial court should impute prosecutorial misconduct on the part of Pennsylvania 

State Police personnel to the prosecutor for purposes of double jeopardy 

analysis, see id. at 61. 
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In assessing a double jeopardy claim,6 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. Graham, 109 A.3d 733, 736 (Pa. Super. 2015) 

(quotation marks, brackets, and citations omitted).

Thus, whether a dismissal is warranted turns on whether the 

Commonwealth intended to deprive the defendant of a fair trial. 

Commonwealth v. Adams, 177 A.3d 359, 372 (Pa. Super. 2017). 

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 where that 

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6 Book does not challenge the trial court’s sua sponte declaration of a mistrial. 

Rather, Book challenges the denial of his Motion to Dismiss With Prejudice, 

based upon a claim of prosecutorial misconduct. “Double jeopardy, as it 

relates to prosecutorial misconduct, will attach where the prosecutorial 

misconduct is calculated to trigger a mistrial.” Commonwealth v. Diehl, 

615 A.2d 690, 693 (Pa. 1992).
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constitutional mandate is ignored by the Commonwealth, we 

cannot simply turn a blind eye and give the Commonwealth 

another opportunity.

Id. (citations and internal quotation marks omitted). However, 

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 and where demonstrable prejudice 

will be suffered by the defendant if the charges are not dismissed.

Id. (citations omitted). 

In his first issue, Book argues that, where manifest necessity is the 

result of prosecutorial misconduct, the “Smith test” should be applied, and 

retrial should be barred. Brief for Appellant at 19. Book asserts that the 

prosecutorial overreach in this case is similar to the misconduct that occurred 

in Smith. Id. at 25. According to Book, the Commonwealth’s case was not 

proceeding as planned, and a representative from the Pennsylvania State 

Police, seated at the prosecutor’s table, was aware of this. Id. Book posits 

that this created a motive for the Pennsylvania State Police and/or the 

prosecutor to intentionally inject error into the case, to force Book to choose 

between opting for a mistrial or obtaining a verdict. Id. According to Book, 

the mistrial was declared during the testimony of Master Trooper Caimona, 

who had over two hours to prepare for his “eventually-fatal testimony[,] 

during which he was, by all accounts, in almost constant contact with the 

officers [and] well aware of the issues which had arisen during the rest of the 

trial.” Id. at 26. Book asserts that the purpose of Master Trooper Caimona’s 
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testimony was to create the type of error that would meet the “Smith test.” 

Id.

In his second issue, Book argues that the “weight of the evidence”

indicates that the “Commonwealth actors engaged in the prosecutorial 

‘overreach’ proscribed by the Smith Rule,” thereby triggering Book’s double 

jeopardy protections. Id. at 39 (internal quotation marks and some 

capitalization omitted). In support, Book directs our attention to 

inconsistencies in the testimony of other witnesses, which, he claims,

established the motive for the Commonwealth to inject error into the case. 

See id. at 26-45. Book contends that it would be “ludicrous” to presume that 

the prosecutor did not make known, to the police witnesses, the negative 

implications of the “egregiously-lacking investigation,” and the “fatal nature” 

of exposing the shortfalls, inconsistencies, “and outright lies” to the jury. Id.

at 39-40. Book contends that the Pennsylvania State Police witnesses and the 

prosecutor then acted upon their “perceived need” to inject error into the case. 

Id. Book asserts that fatal errors in both trials “have been the direct result of 

a concerted effort by [Pennsylvania State Police] personnel, and/or the 

[p]rosecutor, which mirror, in both form and function, the alternative prongs 

of the ‘Smith test’ ....” Id. at 46. 

In its Opinion, the trial court set forth the appropriate law, addressed 

Book’s first two challenges to the denial of his Motion to Dismiss With 

Prejudice, and concluded that they lack merit. See Trial Court Opinion, 
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7/20/17, at 16-18. We agree with the sound reasoning of the trial court, as 

set forth in its Opinion, and affirm on this basis as to Book’s claims, with the 

following addendum.

As our Supreme Court announced in Smith, “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, 615 A.2d at 325. 

An example of egregious prosecutorial misconduct which has been 

deemed sufficient to warrant dismissal may be found in Smith. 

In Smith, the Commonwealth deliberately withheld from a capital 

defendant: (1) the existence of an agreement with its chief 

witness pursuant to which he received lenient treatment at 

sentencing on unrelated charges in exchange for his testimony, 

and (2) material, exculpatory physical evidence that it had 

discovered mid-trial. The physical evidence consisted of grains of 

sand that were found between the toes of the murder victim at 

her autopsy. The sand was consistent with Smith’s defense that 

the crime had been committed in Cape May, New Jersey, by 

others, and not by him in Pennsylvania, as the Commonwealth 

had alleged. At trial, when a Pennsylvania state trooper testified 

on cross-examination that granular particles which looked like 

sand had been removed from the victim’s body, the 

Commonwealth implied that [the trooper] had fabricated his 

testimony and the trial prosecutor recommended to his superior 

that he investigate the feasibility of prosecuting the state trooper 

for perjury. While the trial was still in progress, the state police 

discovered the adhesive “lifters” that had been used to remove 

and retain the sand from the victim’s feet. The Commonwealth, 

however, failed to disclose this evidence and, indeed, continued 

to suppress the evidence for over two years while the case was on 

direct appeal to this Court. In light of this deliberate, bad faith 

failure to disclose potentially exculpatory evidence, this Court 

discharged Smith under the double jeopardy clause of the 
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Pennsylvania Constitution, opining that “it would be hard to 

imagine more egregious prosecutorial tactics.” [Smith,] ... 615 

A.2d at 323.

On the other hand, a mere finding of willful prosecutorial 

misconduct will not necessarily warrant dismissal of charges. For 

example, in Commonwealth v. Moose, ... 602 A.2d 1265 ([Pa.] 

1992), [the Pennsylvania Supreme] Court found that the 

prosecutor’s failure to inform defense counsel of a witness’s police 

statement[,] which contained incriminating admissions allegedly 

made by the defendant[,] amounted to a “willful violation of Rule 

305.” Id. at ... 1274. The [Supreme] Court held that “the district 

attorney’s conduct raised significant ethical concerns” and 

referred the matter to the Disciplinary Board for its consideration. 

Id. ... at 1274 n.8 & 1276 n.12. Nonetheless, the [Supreme] Court 

did not dismiss the charges against Moose, but rather remanded 

the matter for a new trial. Id. ... at 1276.

Commonwealth v. Burke, 781 A.2d 1136, 1144-45 (Pa. 2001). 

In the instant case, the prosecutor’s conduct does not approach that of 

the deliberate, bad faith, prosecutorial misconduct that warranted the 

dismissal in Smith. Further, the prosecutor’s conduct does not even approach 

the conduct of the prosecutor in Moose. There is no evidence here of 

deliberate overreaching by the Commonwealth or its witnesses. Although 

Book offers speculation regarding the motives of the Commonwealth’s 

witnesses, there is no evidence supporting his assertions. Simply put, the 

errors in this case in no way approach the egregious and intentional nature of 

the conduct addressed in Smith. Accordingly, we cannot grant Book relief on 

his first two issues.

In his third issue, Book claims that the conduct and motives of the 

Pennsylvania State Police witnesses should be imputed to the prosecutor, for 
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the purpose of applying the Smith test. Brief for Appellant at 61. Book 

contends that the prosecutor should “feel adverse effects from the intentional 

acts of her fellow Commonwealth Agents in the prosecution of [Book] in now[] 

two (2) trials.” Id. at 65. 

In Adams, this Court recognized the important role that police have in 

disclosing potentially exculpatory material. Adams, 177 A.3d at 373. 

However, our Court concluded that “there may be no double-jeopardy 

dismissal if [police] misconduct is unintentional[,] or if it does not lead to 

intentional misconduct of the prosecutor.” Id.

Here, the trial court found no evidence that the Pennsylvania State 

Police witnesses intentionally acted to provoke a mistrial. Trial Court Opinion, 

7/20/17, at 17. Further, the trial court found no evidence that would support 

a finding that Master Trooper Caimona purposefully injected error into the 

proceedings, based upon an awareness that the Commonwealth’s case was 

not proceeding “as planned.” Id. Finally, as observed by the trial court, 

Master Trooper Caimona was called upon to testify by Book, and not the 

prosecutor. Id. 

Because the trial court found that there was no intentional misconduct 

or intent to deprive Book of a fair trial, and because those findings are 

supported by the record, we affirm the trial court’s conclusion that Book is not 

entitled to have the charges against him dismissed on double jeopardy 
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grounds. We therefore affirm the Order of the trial court, which denied Book’s 

Motion to Dismiss With Prejudice.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/27/2018