J-A18001-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

CARLOS HARRIS 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 481 WDA 2019

Appeal from the Judgment of Sentence Entered August 7, 2018

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

No(s): CP-02-CR-0011917-2015

BEFORE: BENDER, P.J.E., DUBOW, J., and NICHOLS, J.

MEMORANDUM BY BENDER, P.J.E.: FILED OCTOBER 1, 2020

Appellant, Carlos Harris, appeals nunc pro tunc from the judgment of 

sentence of an aggregate term of 17–34 years’ incarceration, imposed 

following his conviction, after a second trial, for one count of third-degree 

murder, two counts of attempted murder, and related offenses. Appellant 

challenges the sufficiency of the evidence as it pertains to his identity as the 

perpetrator of the shooting. Additionally, Appellant alleges that his second 

trial should have been barred on double-jeopardy grounds due to prosecutorial 

misconduct during the first trial. After careful review, we affirm with respect 

to Appellant’s sufficiency claim. However, we vacate his judgment of sentence 

and remand for a double-jeopardy hearing. 

The facts adduced at Appellant’s second, non-jury trial were as follows:

[O]n August 24, 2015[,] at approximately 11:24 a.m., Michael 

Shipp (“Shipp”) and Jaron Satterwhite (“Satterwhite”) were 

walking on East 12th Street in Homestead, Pennsylvania. Daren 
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Scott (“Scott”) drove up to the men, and they began to talk. Shipp 

entered Scott’s vehicle on the front passenger side, and 

Satterwhite entered in the back passenger side. They drove down 

the street, and Scott pulled the vehicle over to the side to allow 

Shipp and Satterwhite to exit. As they were sitting in the vehicle, 

shots rang out. All told, 19 shots were fired at the vehicle and the 

individuals occupying it. When the shooting began, Shipp and 

Scott ran from the vehicle, and Satterwhite ducked. Satterwhite 

was unable to exit the vehicle due to child safety locks. Once the

shots stopped, Satterwhite reached his arm out of the vehicle, 

opened the door and ran. While Scott was running away from the 

vehicle, one of the shots hit him. He died at the scene.

Dr. Abdulrezak Shakir, the Deputy Medical Examiner for the 

Allegheny County Medical Examiner’s Office, testified that Scott 

died from a gunshot wound to the trunk that entered in his left 

lower back and exited from the middle of his chest. This gunshot 

wound was fatal, as it went through several vital organs, including 

his heart. 

Allegheny County Homicide Detectives arrived at the scene 

approximately two (2) hours after the shooting. Detective 

Stephen Hitchings testified that bullet casings were located in 

front of 339 E. 12th Street, Homestead. By looking at the 

characteristics of the firing pin impressions on the bullet casings, 

Detective Hitchings knew that the firearm that discharged the

bullets was a Glock. Based upon the location of the casings, it 

was likely that the “shooter [was] standing somewhere in the 

general area of the right corner of 339 E. 12th Street shooting at 

[Scott’s] vehicle.” Detective Hitchings obtained consent from the

lessor/owner of the apartment building located at 339 E. 12th 

Street and entered the building. Specifically, Apartment 2, 

owned/leased by Sharon Fisher, was of interest to him due to its 

location. When he entered Apartment 2, 339 E. 12th Street, he 

saw a firearm spring sitting on the floor towards the living room 

area. Based upon his knowledge and experience, Detective 

Hitchings knew that this spring came from a Glock pistol. 

Detective Hitchings began to search the apartment for the rest of 

the firearm. He looked in a closet and pulled out a towel that was 

stuffed into it. As he pulled out the towel, it unrolled and the lower 

receiver of a Glock pistol fell out. Detective Hitchings then noticed 

that the bottom of a chair in the living room was ripped out. He

reached into the chair, and found a t-shirt. Inside the t-shirt were 

the other missing pieces of the Glock: the upper receiver and the 

barrel. At this time, Detective Hitchings had recovered all of the 
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pieces necessary to assemble the Glock. William Best, an expert 

in firearms and ballistics, assembled the recovered Glock and 

tested it. It was found to be operable. There were no fingerprints 

of any value found on this firearm.

The Allegheny County Detectives and the Mobile Crime Unit 

recovered nine (9) bullet casings on August 24, 2015[,] mostly 

from the area in between 337 E. 12th Street and 339 E. 12th Street. 

After a civilian provided an audio recording of the shooting, 

Allegheny County Detectives determined that there were a total 

of 19 shots fired. As such, on August 25, 2019, Detectives 

returned to the scene and located the remaining ten (10) casings. 

All 19 bullet casings were analyzed and found to match the Glock 

found in Apartment 2, 339 E. 12th Street by Detective Hitchings.

While the Mobile Crime Unit was processing the scene, Allegheny 

County Detectives and [p]olice [o]fficers from Homestead and 

Munhall were stationed at the front and back entrances to 339 E. 

12th Street. At approximately 1:30 p.m., a young man, later 

identified as Carlos Harris (“[Appellant]”), exited the front door 

and ran into Allegheny County Homicide Detective Thomas Foley. 

Detective Foley testified that [Appellant] stated that he was 

coming out of Sharon Fisher’s apartment and appeared to be 

nervous. [Appellant] admitted to being in possession of 

marijuana, and was placed under arrest. [Appellant]’s hands were 

tested for gun[]shot residue (“GSR”). According to Daniel Wolfe, 

an expert from the Allegheny County Medical Examiner’s Office, 

the GSR test from the sample taken from the back of [Appellant]’s 

right hand was positive.

At about this same time, Rafiel Hoston (“Hoston”) exited the rear 

of the building. After initially speaking with detectives at the 

scene, Hoston went to the police station to make a formal 

statement. Hoston was interviewed by Detective Patrick Miller of

the Allegheny County Police. Hoston told Detective Miller that he 

was drinking at Pearl’s Café when he received a call from Shawn 

Phenizy, Sharon Fisher’s son, who asked him to go [to] his 

apartment to take care of his dog, Miami. Hoston told Detective

Miller that he was only in Apartment 2 for a few minutes due to 

the “commotion” outside. He testified that the back door of this 

apartment is always open so that anyone can go in and out, 

including [Appellant]. He told Detective Miller that [Appellant] 

was in Apartment 2. Hoston’s hands were tested for GSR. This 

test was negative. Additionally, Detective Miller confirmed 
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[Hoston]’s alibi that he was drinking at Pearl’s Café at the time of

the shooting.

Allegheny County detectives submitted the following evidence 

taken from Apartment 2, 339 E. 12th Street to the Medical 

Examiner’s Office for DNA collection and testing: a cloth, the

Glock, the towel that contained pieces of the Glock, and t-shirt 

that contained the remaining pieces of the Glock. Anita Lorenz, 

an expert in the field of DNA collection and testing, testified that 

the DNA samples from a cloth matched DNA sample of 

Satterwhite. With regard to the pieces of the Glock, Ms. Lorenz 

testified that she was unable to draw any conclusions or find a 

statistical match, as there were four or more contributors of DNA 

on these items. She further recommended that this sample be 

sent for “TrueAllele” testing. Ashley Platt, an expert in the field of 

DNA analysis, testified that she examined the DNA results from 

the towel, and that due to the number of contributors, she was 

unable to make a comparison. Further, she examined the DNA 

results of the t-shirt, which [were] a match to [Appellant].

Dr. Mark Perlin, the Chief Executive and Scientist at 

Cybergenetics, testified regarding the results of the TrueAllele 

analysis. Dr. Perlin created the company known as Cybergenetics 

and developed technology called TrueAllele, which takes data 

generated from the crime lab and infers genotypes so that it can 

separate multiple contributors and make a comparison to known 

contributors. In March 2016, Cybergenetics received DNA data 

from the Allegheny County Medical Examiner’s Office from the 

samples taken from the Glock as well as four reference samples 

belonging to [Appellant], Shipp, Scott, and Satterwhite. The 

Glock pistol frame and the Glock pistol slide contained DNA that 

were statistical matches to [Appellant]. In May 2019, 

Cybergenetics analyzed data from the swabbing of the t-shirt and 

towel as well as two (2) new references: Hoston and Shawn 

Phenizy. Both items contained statistical matches to [Appellant].

Trial Court Opinion (“TCO”), 7/11/19, at 3-7 (citations omitted).

The Commonwealth charged Appellant with a general count of criminal 

homicide, 18 Pa.C.S. § 2501(a); two counts of attempted homicide, 18 Pa.C.S. 

§ 901(a); two counts of aggravated assault, 18 Pa.C.S. § 2702(a)(1); person 

not to possess a firearm, 18 Pa.C.S. § 6105(a)(1); and tampering with 
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evidence, 18 Pa.C.S. § 4910(1). A non-jury trial commenced in November of 

2017. On December 7, 2017, the trial court declared a mistrial due to 

“documentary evidence being produced [by the Commonwealth] for the first 

time during trial.” TCO at 1. Appellant filed a motion to bar re-trial on doublejeopardy grounds on March 12, 2018. 

A second non-jury trial began in May of the following year and, on May 

21, 2018, the trial court found Appellant guilty of third-degree murder.1 

Appellant was also convicted at all but one of the remaining counts. The trial 

court found Appellant not guilty of the person-not-to-possess-a-firearm 

offense. On August 7, 2018, the court sentenced Appellant to 17–34 years’ 

incarceration for third-degree murder, and to concurrent terms of 10-20 years’ 

incarceration for each count of attempted murder, for an aggregate term of 

17–34 years’ incarceration. Appellant did not file post-sentence motions or a 

direct appeal. On February 1, 2019, Appellant filed a timely Post Conviction 

Relief Act petition seeking reinstatement of his direct appeal and postsentence motion rights nunc pro tunc. The lower court granted the petition 

on February 4, 2019. 

Appellant thereafter filed a post-sentence motion nunc pro tunc on 

February 14, 2019, which the trial court denied on February 25, 2019. He 

filed a timely notice of appeal nunc pro tunc, and a timely, court-ordered 

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1 18 Pa.C.S. § 2502(c). 
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Pa.R.A.P. 1925(b) statement. The trial court issued its Rule 1925(a) opinion 

on July 11, 2019. 

Appellant now presents the following questions for our review:

I. The Commonwealth has the duty to engage in good faith

discovery and avoid intentionally provoking a mistrial. In the 

instant case, the Commonwealth revealed lengthy and ultimately 

inadmissible discovery to the defense in the middle of trial, 

resulting in a mistrial. Accordingly[:]

Did the trial court abuse its discretion in failing to bar retrial based 

on intentionally flagrant and deleterious prosecutorial misconduct 

aimed at causing a mistrial to gather additional evidence in direct 

response to the defense’s questioning during the first trial?

II. With regards to [Appellant]’s convictions for third-degree

murder, criminal attempt–homicide, attempted homicide, 

aggravated assault, and tampering with evidence, the 

Commonwealth relied on DNA evidence to link [him] to the firearm 

used in the shooting. However, the Commonwealth failed to 

present testimony that the DNA was not on the firearm due to 

passive transfer. Accordingly[:]

Did the Commonwealth fail to present sufficient evidence that 

[Appellant] was the individual who fired the bullets towards the 

decedent and other victims and that [Appellant] subsequently 

dismantled the firearm?

Appellant’s Brief at 7. For ease of disposition, we will address these issues in 

reverse order. 

Sufficiency of the Evidence

Appellant asserts that the evidence was insufficient to demonstrate his 

identity as the shooter. 

A claim challenging the sufficiency of the evidence is a question of 

law. Evidence will be deemed sufficient to support the verdict 

when it establishes each material element of the crime charged 

and the commission thereof by the accused, beyond a reasonable 

doubt. Where the evidence offered to support the verdict is in 
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contradiction to the physical facts, in contravention to human 

experience and the laws of nature, then the evidence is insufficient 

as a matter of law. When reviewing a sufficiency claim[,] the court 

is required to view the evidence in the light most favorable to the 

verdict winner giving the prosecution the benefit of all reasonable 

inferences to be drawn from the evidence. 

Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000) (internal 

citations omitted). 

This Court has previously recognized that,

even though ‘vague, tenuous and uncertain’ identifications 

standing alone are insufficient, see Commonwealth v. 

Farrington, ... 280 A.2d 623 ([Pa. Super.] 1971); 

Commonwealth v. Sharpe, ... 10 A.2d 120 ([Pa. Super.] 1939), 

our courts have held that ‘evidence of identification ... need[ not] 

be positive and certain in order to convict, although any 

indefiniteness and uncertainty in the identification testimony goes 

to its weight.’ Commonwealth v. Hickman, ... 309 A.2d [ 564,]

566 ([Pa.] 1973).

Commonwealth v. Minnis, 458 A.2d 231, 233 (Pa. Super. 1983). 

Moreover, “[d]irect evidence of identity is ... not necessary and a defendant 

may be convicted solely on circumstantial evidence.” Hickman, 309 A.2d at 

566.

Here, proof of Appellant’s identity was not the product of direct 

evidence, but was instead based on a confluence of circumstantial evidence. 

First, police discovered Appellant near the scene of the crime, two hours after 

the shooting. Second, Appellant emerged from a residence where the murder 

weapon was ultimately discovered.2 Third, traces of Appellant’s DNA were 

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2 Notably, police arrived on the scene immediately after the shooting, and did 

not observe anyone else entering or exiting the home until Appellant emerged 

two hours later. See TCO at 7. 
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discovered on the clothing that held the disassembled murder weapon, and 

on parts of the weapon itself. Fourth, when police tested Appellant for GSR, 

the test indicated that he had recently fired a gun. None of these facts were 

alone sufficient to establish identity. However, collectively considered, the 

trial court concluded that this circumstantial evidence was legally sufficient to 

establish Appellant’s identity as the shooter. See TCO at 8. 

Appellant now argues on appeal that the

Commonwealth failed to prove beyond a reasonable doubt that 

[Appellant] handled the firearm used in the shooting, let alone 

that he was the shooter. No eyewitness saw the shooter, so there 

was no identification or description provided. No motive was 

established. No fingerprints were recovered from the firearm. 

[Appellant]’s mere presence in the unsecured apartment where 

the firearm was located failed to establish his possession of the 

firearm.

Furthermore, the forensic evidence could not show when or how 

[Appellant]’s DNA got onto the firearm, such as by secondary DNA 

transfer from the towel and t-shirt which swathed the firearm 

parts. Without any expert testimony to reject secondary DNA 

transfer from the towel and t-shirt on to the firearm, the 

Commonwealth lacked sufficient evidence to convict [Appellant]. 

Even assuming arguendo that the DNA evidence was sufficient to 

place the firearm in [his] hands, there was still no evidence that 

he possessed the firearm at the time of the shooting.

Appellant’s Brief at 7.

We agree with the trial court that Appellant’s sufficiency claim is 

meritless. The confluence of circumstances here were sufficient to establish 

his identity as the shooter, despite the lack of direct evidence. Appellant’s 
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theory that secondary DNA transfer3 might explain the presence of his DNA 

on the gun goes primarily to the weight, not the sufficiency of the DNA 

evidence. Under the sufficiency standard, we are not permitted to secondguess the manner in which the jury weighed the evidence. Instead, we must 

“view the evidence in the light most favorable to the verdict winner giving the 

prosecution the benefit of all reasonable inferences to be drawn from the 

evidence.” Widmer, 744 A.2d at 751. 

In any event, Appellant fails to provide any case law in support of the 

notion that the Commonwealth had a burden to disprove his secondary DNA 

transfer theory. Although the Commonwealth bears the specific burden to 

disprove affirmative defenses such as self-defense, Appellant raised no 

affirmative defenses at trial. As to other defense theories that do not 

constitute affirmative defenses, our Supreme Court has stated that “the 

Commonwealth’s burden to prove beyond a reasonable doubt all elements of 

the crime does not require it to disprove a negative” and, “[o]nce a defendant 

has come forward with” evidence that might tend to disprove an element of a 

crime, “or it is in the case otherwise, the Commonwealth ... may introduce 

testimony to refute it, but is under no duty to do so.” Commonwealth v. 

Rose, 321 A.2d 880, 884-85 (Pa. 1974) (reasoning that the prosecution did 

not have the burden to disprove a defense theory of diminished capacity by 

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3 Essentially, this theory suggests that the DNA discovered on the gun could 

have originated from the clothing in which the gun parts were discovered, and 

not from Appellant’s handling of the firearm during and immediately after the 

shooting. 
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intoxication, even when the defendant had presented evidence to that effect, 

but that did not mean that the trial court could place a burden on the 

defendant by instructing the jury that he was required to prove intoxication 

by a preponderance of the evidence). Here, the Commonwealth was not 

required to disprove the secondary DNA transfer theory to meet its burden.

We agree with the Commonwealth that Appellant’s theory was 

presented to the factfinder, and the factfinder was free to reject it. As the 

Commonwealth explained: 

[A]s to the theory of secondary DNA transfer, the factfinder

received scientific evidence that [Appellant]’s theory of the case—

that his DNA was on the gun because it had been transferred from 

the t-shirt to the gun—was vastly less likely than the reverse. The

evidence showed that transfer of DNA from a hard, nonporous 

surface like a gun to a soft cotton surface like a t-shirt was vastly 

more likely. ([] the Commonwealth’s expert testif[ied] that, 

according to an authoritative study, about .01% of DNA moves 

from a soft cotton surface to a hard, nonporous surface, whereas 

nearly 100% of DNA will transfer in the other direction.) Even 

though, as [Appellant] correctly points out, the Commonwealth’s 

expert was not permitted to give an expert opinion about 

secondary DNA transfer ([Appellant’s Brief] at 66), the factfinder 

still heard the underlying scientific evidence, and was free to make 

the inference that secondary DNA transfer from the t-shirt to the 

gun was likely not the reason why [Appellant’s] DNA was on the 

gun.

...

[A] rational finder of fact could conclude that [Appellant’s] DNA 

was on the murder weapon because he had handled it, not 

because of secondary DNA transfer. It could conclude that 

[Appellant] had gunshot residue on his hands because he had 

recently fired a gun. It could conclude that, since [Appellant] was 

apprehended after leaving the apartment containing the 

disassembled and stashed murder weapon, that it was he who had 

done the disassembling and stashing. And based on all of this 
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combined, a rational finder of fact could conclude that it was 

[Appellant] who fired the bullet that killed Daren Scott.

Commonwealth’s Brief at 31-32 (citations to trial transcript omitted). 

We agree with the Commonwealth’s analysis, and the trial court’s 

determination that the evidence was sufficient to establish Appellant’s identity 

as the shooter. No relief is due on this claim. 

Double Jeopardy

Next, Appellant asserts that double-jeopardy principles barred his retrial 

due to prosecutorial misconduct during the first trial. Specifically, he claims 

that the trial prosecutor “deliberately engaged in flagrant and deleterious 

discovery conduct intended to provoke a mistrial and obtain additional time to 

prepare its case against” Appellant. Appellant’s Brief at 28. The trial court 

determined that the misconduct warranted a new trial, but that it was not 

deliberately intended to deprive Appellant of a fair trial. See TCO at 9 (stating, 

“it is clear to this [c]ourt that the actions giving rise to [Appellant]’s request 

for a mistrial were not done with the intent to provoke [him] into moving for 

a mistrial nor were they done in bad faith”). 

“[O]ne of the principal threads making up the protection embodied in” 

the double-jeopardy clause of the federal constitution “is the right of the 

defendant to have his trial completed before the first jury empaneled to try 

him.” Oregon v. Kennedy, 456 U.S. 667, 673 (1982). Under the federal 

standard, re-trial of a defendant is barred by double-jeopardy principles when 

prosecutorial misconduct “giving rise to the successful motion for a mistrial 
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was intended to provoke the defendant into moving for a mistrial.” Id. at 

679. 

In Pennsylvania, it has long been the rule “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.” Commonwealth v. Smith, 615 A.2d 321, 325 (Pa. 1992). In 

Smith, legally sufficient evidence established that the defendant had 

murdered a woman and her two children in order to capitalize on a life 

insurance policy. Id. at 322. However, during Smith’s trial, the 

Commonwealth had concealed potentially exculpatory evidence, both physical 

evidence recovered from the scene of the crime, and impeachment evidence 

concerning a key Commonwealth witness. Id. at 322-23. The Smith Court 

determined that, even if Smith’s retrial was not barred under the federal 

standard, the double-jeopardy clause of the Pennsylvania Constitution 

prohibited it. 

 Recently, our Supreme Court expanded this double-jeopardy 

safeguard under the Pennsylvania Constitution to include reckless 

prosecutorial misconduct, holding that under

Article I, Section 10 of the Pennsylvania Constitution, 

prosecutorial overreaching sufficient to invoke double[-]jeopardy 

protections includes misconduct which not only deprives 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 
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will be the result. This, of course, is in addition to the behavior 

described in Smith, relating to tactics specifically designed to 

provoke a mistrial or deny the defendant a fair trial.

Commonwealth v. Johnson, 40 EAP 2018, 2020 WL 2532671, at *15 (Pa. 

May 19, 2020).

Here, Appellant argues that the trial prosecutor’s repeated discovery 

violations were intentionally designed to deprive him of a fair trial, or to 

provoke him into filing a motion for a mistrial. Alternatively, Appellant 

contends that conduct was at least reckless to a degree that the prosecutor 

consciously disregarded a substantial risk of an unfair trial, and, therefore, 

that he is entitled to relief under Johnson.

4

 

The undisputed facts concerning the various pieces of evidence that 

were not disclosed to the defense prior to Appellant’s first trial are as follows.

The Phone Dump

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4 Johnson was decided after Appellant filed his notice of appeal, but before 

he filed his brief. When “an appellate decision overrules prior law and 

announces a new principle, unless the decision specifically declares the ruling 

to be prospective only, the new rule is to be applied retroactively to cases 

where the issue in question is properly preserved at all stages of adjudication 

up to and including any direct appeal.” Commonwealth v. Cabeza, 469 

A.2d 146, 148 (Pa. 1983).

Here, Appellant has satisfied the procedural requirements for retroactive 

application of Johnson. In his motion seeking to bar retrial on doublejeopardy principles, he not only raised the claim that the prosecutor’s 

misconduct was intentional, but also claimed that, “at the very least[,]” the 

misconduct was “reasonably expected ... to invoke [Appellant] to move for a 

mistrial.” Apppellant’s Double[-]Jeopardy Motion, 3/19/2018, at 6 ¶ 23. This 

sufficiently invokes the recklessness standard enunciated in Johnson to 

preserve such a claim for our review. 
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During cross-examination by the defense on the first day of the first 

trial, a police officer testified that Appellant’s phone had been seized pursuant 

to his arrest, and that a search warrant was issued to search its contents. No 

evidence from that search was provided to the defense in the normal course 

of discovery. However on the second day of trial, the prosecutor disclosed to 

the defense 869 pages of cell phone records. The trial court granted the 

defense a continuance to review the newly-disclosed records, and warned the 

prosecution against any more evidentiary surprises. However, the court and 

the parties ultimately agreed that the phone records were inadmissible. No 

evidence from the phone dump was admitted at either trial. 

Hoston’s GSR test

During cross-examination of a police officer on the second day of the 

first trial, it became clear that a GSR swab had been taken from Hoston on 

the day of the shooting, but had never been tested. The prosecutor 

immediately ordered a test of that swab. The test came back negative, and 

was turned over to the defense on the day the trial reconvened after the 

postponement granted for review of the phone records. This evidence was 

admitted into evidence by the Commonwealth at the second trial. 

The Bullet Fragment Report

The bullet fragments discovered in the victim’s vehicle were not initially 

tested by the Commonwealth. The prosecutor indicated that he ordered the 

fragments to be tested at the beginning of or just before the first trial began. 

The report came back during trial, and the prosecutor turned it over to the 
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defense with the results of the GSR test of Hoston. The results were 

inconclusive; the fragments appeared to be .40 caliber, but they were too 

small or damaged to conclusively prove that they had been, or had not been, 

fired from the at-issue firearm. This evidence was ultimately admitted at the 

second trial. 

Additional DNA Testing

Initially, the prosecutor only ordered the gun tested for DNA evidence. 

When the defense cross-examined the Commonwealth’s expert witness at 

trial, it became apparent that no testing had been ordered or done on the 

towel and t-shirt in which the pieces of the gun were discovered. The 

prosecutor ordered those items tested, the results of which were not available 

until the second trial. 

Appellant claims:

In the nine months leading up to the start of [Appellant]’s first 

trial, the Commonwealth had been engaged in a sustained 

campaign of providing last-minute discovery to the defense. By 

the end of the first day of trial, trial counsel had elicited testimony 

that none of the phones taken from the scene had been analyzed 

and that there had been no forensic tests done on Hoston’s GSR 

kit or the t-shirt and towel that enfolded the pieces of the Glock. 

Upon being informed by the officers questioned about the 

existence of the phone analysis, Prosecutor Avetta learned that a 

phone dump had been conducted on [Appellant]’s phone but had 

not been disclosed to defense counsel. By that point, the evidence 

should have been disclosed to the defense and excluded for 

discovery violations, but Prosecutor Avetta had a different plan.

On the second day of trial, Prosecutor Avetta handed over 

hundreds of pages of previously undisclosed and ultimately 

inadmissible cellphone data to the defense and sought to 

introduce it that day despite not having reviewed it. While the 
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defense received a week to review the materials, Prosecutor 

Avetta violated a court pronouncement by obtaining additional

evidence to rebut the weaknesses exposed by the defense on the 

first day of trial.

Prosecutor Avetta’s pithy explanations relating to the use and 

procurement of this additional evidence after the defense had 

undermined significant pieces of the Commonwealth’s case show 

that the Prosecutor needed time to obtain further evidence and 

strengthen his case with a second round of testimony. However, 

the Prosecutor had insufficient [Pa.R.Crim.P.] 600 time left to 

prepare all of the additional evidence needed to respond to the 

defense’s case. 

Prosecutor Avetta then disclosed additional evidence to defense 

counsel just before trial was to resume, thus provoking the 

mistrial, to continue to gather critical evidence. 

Appellant’s Brief at 24-25.

Appellant further argues the prosecutor had a motive to engage in 

misconduct that would provoke a mistrial request by the defense, because

the mistrial presented the Commonwealth with an opportunity to 

prepare additional, favorable evidence, namely DNA evidence and 

testimony on secondary DNA transfer, that it did not have initially 

and that it uncovered in response to the defense’s questioning at 

trial. Without this time, the Commonwealth would have had no 

testimony or response to the defense theory of the case.

Id. at 52 (footnote omitted). Appellant contends that the prosecutor

intended to both force the defense to proceed without proper 

disclosure or review of evidence provided after trial commenced 

and to provoke a mistrial to obtain further forensic evidence to 

rebut the defense, including its theory of secondary DNA transfer. 

All told, this misconduct deprived [Appellant] of a fair trial.

Id. at 54.

 After accurately stating the pre-Johnson double-jeopardy standard

for barring retrial due to prosecutorial misconduct, the entirety of the trial 

court’s analysis of this claim is as follows: 
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In this matter, it is clear to this [c]ourt that the actions giving rise 

to [Appellant]’s request for a mistrial were not done with the 

intent to provoke [Appellant] into moving for a mistrial nor were 

they done in bad faith. The prosecution’s delay in providing 

discovery in a timely fashion to [Appellant] was arguably dilatory, 

but it did not rise to the level of prosecutorial misconduct. As 

such, this [c]ourt found that the Double Jeopardy Clause did not 

bar retrial of [Appellant] following the December 7, 2017 mistrial.

TCO at 9. 

The Commonwealth argues:

1. None of this evidence was intentionally withheld, at any point, 

and was in fact turned over as soon as the prosecutor personally 

obtained it;

2. There is no point at which the Commonwealth is obligated to 

stop a criminal investigation, so there is nothing illegal or 

unethical about a prosecutor ordering follow-up testing, even in 

the middle of trial or after a mistrial is declared. A trial court 

cannot lawfully order the Commonwealth to stop investigating a 

crime, or to stop turning over discovery to the defense;

3. This evidence, even taken collectively, had much less of an 

impact on the strength of the Commonwealth’s case than 

[Appellant] insists. In fact, the Commonwealth began the second 

trial in a virtually identical evidentiary position as it began the first 

trial; and

4. The most [Appellant] is entitled to is a second trial. He has 

already gotten this. There is nothing further for this Court to do.

Commonwealth’s Brief at 12-13.

Given the trial court’s cursory analysis of Appellant’s double-jeopardy 

claim,5 as well as the new standard set forth in Johnson, we conclude that 

we are unable to assess whether Appellant’s double-jeopardy rights were 

____________________________________________

5 The trial court heard argument from the parties on Appellant’s doublejeopardy motion to dismiss at a hearing held on May 7, 2018. The trial court 

did not provide any more explanation for its ruling at that time. 
J-A18001-20

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violated based on the record before us. The trial court did not make any 

specific factual findings regarding the prosecutor’s dilatory disclosures to aid 

our review, nor did the court hear any testimony relevant to the doublejeopardy claim at the May 7, 2018 double-jeopardy hearing. To the extent 

that the trial court implies that the record clearly supports its conclusion that 

the prosecutor did not intend to provoke a mistrial or deprive Appellant of a 

fair trial, we disagree. The record is not clear either way.

Nor does the record clearly undermine the claim that the prosecutor 

exercised a “conscious disregard for a substantial risk” that his dilatory 

disclosures would deprive Appellant of a fair trial. Johnson, 2020 WL 

2532671, at *15. It is in this regard that the prosecutor’s testimony, subject 

to cross-examination, would be particularly valuable in determining whether 

a double-jeopardy violation occurred in this case. Unfortunately, the record 

only contains the prosecutor’s averments in his capacity as counsel for the 

Commonwealth. The arguments of counsel are not evidence, and those 

statements were not subject to rigors of cross-examination. Furthermore, the 

trial court did not specify which statements it deemed credible, if any, or if it 

based its determination on the gravity of the prosecutorial misconduct alone, 

irrespective of the prosecutor’s intent. Moreover, the trial court’s assertion in 

its Rule 1925(a) opinion that the prosecutor did not engage in misconduct is 

incompatible with the fact that it granted a mistrial based on the prosecutor’s 

dilatory disclosures. 
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Nevertheless, the Commonwealth asserts that any prejudice resulting 

from the prosecutor’s misconduct was adequately cured by the trial court’s 

granting Appellant a new trial. However, the Commonwealth misconstrues or 

misunderstands the nature of the right at issue. A defendant’s due process 

right to a fair trial can be cured by a new trial in most cases. However, the 

double-jeopardy clause goes further, and “protects a defendant’s interest in 

having his fate decided by his first jury.” Id. at *9 (emphasis added). The 

fact that Appellant’s second trial proceeded without the prosecutorial mishaps 

of the first did not cure the harm of multiple prosecutions for the same offense, 

which is the primary concern of double-jeopardy protections. The doublejeopardy clause “prevents a prosecutor or judge from subjecting a defendant 

to a second prosecution by discontinuing the trial when it appears that the 

jury might not convict.” Green v. U.S., 355 U.S. 184, 188 (1957). When 

double-jeopardy principles bar a retrial, it is not because a fair trial cannot be 

obtained in a subsequent prosecution. Instead, the purpose of the remedy is 

to deny the reward of a second trial to a prosecutor who intentionally or 

recklessly sabotages the first in order to avoid an acquittal.

Nevertheless, it is true that “not all intentional misconduct is sufficiently 

egregious to be classified as overreaching and, as such, to invoke the jeopardy 

bar.” Johnson, 2020 WL 2532671, at *11. It must also be true that not all 

reckless prosecutorial misconduct warrants the extreme remedy of barring retrial. Thus, in addition to the specific intent or recklessness of the prosecutor, 

double jeopardy is not implicated unless the misconduct itself is severe. Id. 
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However, the fact that the prejudice stemming from such misconduct can be 

cured by a second trial is not a valid consideration in assessing a doublejeopardy claim. Thus, we disagree with the Commonwealth that Appellant’s 

second trial was a sufficient remedy to address Appellant’s double-jeopardy 

claim. 

Because the record does not obviously show that the prosecutor’s 

actions fell below the double-jeopardy standard of reckless or intentional 

conduct designed to deprive Appellant of a fair trial (or to provoke him into 

moving for a mistrial), and because that appears to be the only basis for the 

trial court’s decision to deny Appellant’s double-jeopardy motion, we conclude 

that the court abused its discretion in denying that motion. Accordingly, we 

vacate Appellant’s judgment of sentence and remand for a double-jeopardy 

hearing consistent with this memorandum.6

Judgment of sentence vacated. Case remanded for a double-jeopardy 

hearing. Jurisdiction relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/1/2020

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6

If the trial court again decides to deny the motion, it shall re-impose 

Appellant’s judgment of sentence, from which Appellant may appeal.