Opinion
No. 468 WDA 2017
04-29-2019
COMMONWEALTH of Pennsylvania, Appellant v. Al-Tariq Sharif Ali BYRD
Kevin F. McCarthy, Assistant District Attorney, Pittsburgh, for Commonwealth, appellant. Frankie C. Walker, II, Clairton, for appellee.
Kevin F. McCarthy, Assistant District Attorney, Pittsburgh, for Commonwealth, appellant.
Frankie C. Walker, II, Clairton, for appellee.
BEFORE: SHOGAN, J., KUNSELMAN, J., and STRASSBURGER, J.
Retired Senior Judge assigned to the Superior Court.
OPINION BY SHOGAN, J.:
Appellant, the Commonwealth of Pennsylvania ("the Commonwealth"), appeals from the order entered on March 20, 2017, granting a mistrial and dismissing with prejudice the charge of persons not to possess a firearm filed against Al-Tariq Sharif Ali Byrd ("Appellee"). After careful review, we affirm the trial court's order.
The trial court noted that Appellee was originally charged at CP-02-CR-2875-2015 with multiple drug and firearm-related crimes, and at CP-02-CR-3369-2016 with numerous additional offenses including rape of an unconscious victim. Trial Court Opinion, 6/29/17, at 1-2. Appellee filed motions to suppress at both docket numbers. Id. at 2. The trial court granted the suppression motions, and the Commonwealth appealed. Id. In light of the Commonwealth's appeals, Appellant's charge of persons not to possess a firearm at CP-02-CR-2875-2015, which was not impacted by the suppression motions, was severed. Id. The persons not to possess a firearm charge was re-captioned at trial court docket number CP-02-CR-14138-2016, which is the case currently before us. Id. Trial began on November 28, 2016, and while the trial was proceeding, the trial court noted that the following events occurred:
The Commonwealth's appeals were assigned Superior Court docket numbers 1817 WDA 2016 and 1818 WDA 2016, and they have no bearing on the case at bar.
In the early morning hours of December 1, 2016, this Court received an email message containing a voice recording from Brandy Wilson, who was set to testify as a character witness for [Appellee], indicating that she had been threatened by Assistant District Attorney Lawrence Sachs, Esquire. After a hearing outside the presence of the jury on December 1, 2016, this Court declared a mistrial sua sponte on the basis of manifest necessity due to ADA Sachs' prosecutorial misconduct. Following subsequent hearings on February 13 and March 20, 2017, which included testimony from Ms. Wilson reading ADA Sachs' threats, this Court dismissed the charge with prejudice. This appeal followed.
Id. at 2-3. Both the trial court and the Commonwealth complied with Pa.R.A.P. 1925.
On appeal, the Commonwealth presents the following issue for this Court's consideration: "Whether the trial court erred in finding that prosecutorial misconduct necessitated the granting of a mistrial and in dismissing the charges?" Commonwealth's Brief at 9. Initially, we point out that the Commonwealth is not appealing the grant of a mistrial; rather, the Commonwealth challenges only the finding of prosecutorial misconduct that resulted in the trial court dismissing the charges and preventing retrial on double jeopardy grounds. Commonwealth's Brief at 17-18.
Our standard of review is well settled. An appeal based on double jeopardy grounds presents a question of constitutional law. Commonwealth v. Vargas , 947 A.2d 777, 780 (Pa. Super. 2008) (citations omitted). As with all questions of pure law, our standard of review is de novo and our scope of review is plenary. Id. We must also consider the following:
The Double Jeopardy Clauses of the Fifth Amendment to the United States Constitution and Article 1, § 10 of the Pennsylvania Constitution protect a defendant from repeated criminal prosecutions for the same offense. Ordinarily, the law permits retrial when the defendant successfully moves for mistrial. If, however, the prosecution engages in certain forms of intentional misconduct, the Double Jeopardy Clause bars retrial. Article I, § 10, which our Supreme Court has construed more broadly than its federal counterpart, bars retrial not only when prosecutorial misconduct is intended to provoke the defendant into moving for a mistrial, but also when the conduct of the prosecutor is intentionally undertaken to prejudice the defendant to the point of the denial of a fair trial. An error by a prosecutor does not deprive the defendant of a fair trial. However, where the prosecutor's conduct changes from mere error to intentionally subverting the court process, then a fair trial is denied.
Commonwealth v. Adams , 177 A.3d 359, 371 (Pa. Super. 2017). "[D]ismissal is an appropriate remedy in such a case because a mistrial would be an inadequate remedy for systematic intentional prosecutorial misconduct[.]" Id.
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 constitutional mandate is ignored by the Commonwealth, we cannot simply turn a blind eye and give the Commonwealth another opportunity."
Id. (quoting Commonwealth v. Graham , 109 A.3d 733, 736 (Pa. Super. 2015) (additional citations omitted). In sum, conduct that constitutes mere prosecutorial error does not implicate double jeopardy; it is prosecutorial overreaching that cannot be condoned. Commonwealth v. Martorano , 559 Pa. 533, 741 A.2d 1221, 1222 (1999).
In the instant case, the Commonwealth avers that the trial court failed to discern the distinction between prosecutorial error and prosecutorial overreaching. Commonwealth's Brief at 22. After reviewing the transcript of the telephone call from Ms. Brandy Wilson, a potential witness, the notes of testimony, and the trial court's rationale for dismissing the charge against Appellee, we disagree with the Commonwealth's assessment.
It is undisputed that on the evening of the third day of the trial, Assistant District Attorney Lawrence Sachs contacted Ms. Wilson, who was a potential character witness for Appellee. In a voicemail sent to the trial court in the early morning of December 1, 2016, Ms. Wilson informed the trial court that Attorney Sachs had contacted her, and she provided detail of this conversation. At a hearing outside the presence of the jury, Ms. Wilson's voicemail to the court was played. Ms. Wilson's voicemail was transcribed at the December 1, 2016 hearing, and provides, in relevant part, as follows:
MS. WILSON: This is Brandy Wilson. I am recording this due to the fact that I am not willing to participate in the trial of the Commonwealth of Pennsylvania versus [Appellee].
* * *
During the phone conversation [with Attorney Sachs] I advised him that -- the same information that I was provided. That I was contacted, that I didn't confirm anything yet.
I'm actually pretty freaked out that he was calling me since he was, you know, the ADA. I advised him that because I'm a new employee that I couldn't come in because of the simple fact that I was going to get fired. I said that if I needed to come in, in order for me to come in that I would need subpoenaed.
[Attorney Sachs] proceeded to basically scare me to the point where I do not want to participate in this trial. I am not sure what to believe at this point. I have a bad feeling about the whole situation simply because I do not want any type of repercussions against me because of my participation in the trial.
[Attorney Sachs] advised me that he feels – that he feels that [Appellee] is the most dangerous man that he has ever met or ever seen. He asked me if I knew how or why he was in jail up in Ohio. I said that as far as I knew it was drug related, but I said that I believe that everybody deserves a second chance.
[Attorney Sachs] proceeded to tell me that the situation was an armed -- an aggravated kidnap and an armed robbery that him and other people were involved with, you know. I might not be saying this completely accurate.
As far as I can remember, [Attorney Sachs] went into very big details about the cases saying that [Appellee] had duct-taped a man up and kidnapped him, and basically interrogated him until they got the information that they wanted, and went to another location and robbed the place, armed robbery, and then proceeded to tell me that he was also a murderer involved in a shooting in Duquesne that led to the death of three people.
Obviously, not knowing anything about it freaked me out. Not knowing who to believe in this case, I advised Mr.
Sachs that, you know, I wanted our conversation to stay between me and him simply because at this point I was really freaked out.
I advised [Attorney Sachs] that I only knew [Appellee] for a few months before he got re-incarcerated. [Attorney Sachs] cut me off and was like, yeah, I know a lot about you. [Attorney Sachs] talked about the fact of my financial hardship, about a break-up, and told me that he knows a lot more about me than he should, which really freaks me out because that means I'm being watched at this point just for being in contact with [Appellee].
* * *
For me I'm just scared of any type of retaliation. I don't want -- you know, corruption can be on all levels. Me not knowing the history of ADA Sachs and the fact that I'm being watched and my children are being watched really freaks me out.
You know, [Attorney Sachs] did say to me that, you know, he feels that I'm a good person, which I believe I am. I believe I am a model citizen. I am 32 years old with three children. I'm a single mother. I work hard. I provide for my children. I abide by the laws. My record is completely clean. I have traffic violations. That is it.
If anything happened to me, my children would be split into different homes, and my well-being and the well-being of my children outweighs anybody in my life. Friend, family or foe. I will protect me and my children over anybody in this world.
So me being scared of the situation I don't want to be part of it. You hear about corruption all the time with the DEA's Office, ADA's Office, police officers.
You know, I do believe that the majority of people who are in power who are public servants are good. But you still have those people who are not. You never know.
So I'm just fearful that -- excuse me -- that if I participate as a character witness that anything could happen. You know, something could be planted on me. I could get pulled over for complete bullcrap. That is not something that I'm willing to risk for anybody.
So I wanted to put this on record with Judge [McDaniel or her staff]. I want to put this on record simply because if something happens to me in the future, I want it to be documented of this current situation because at this point I am very fearful for my safety, the safety of my children, my family, my friends, all because of me being associated with somebody who's incarcerated. It seems like to me the ADA's Office is desperately trying to continue to have [Appellee] incarcerated for life.
So I just don't want to take that risk. If there's anything that you need from me as far as verbal communication, like over the phone or through emails, I don't have a problem with that, with it being directly with Judge McDaniel[ ] and [her staff].
As long as it is documented about the conversation that I had today with Mr. Sachs. I feel that that's wrong. The whole situation, calling me, scaring me into not coming. Even if I was subpoenaed I wouldn't want to be there.
I feel like the information that I was given about [Appellee] shouldn't have been given to me by him. Whether he was trying to make it seem like to scare me to, you know, make his character – make [Appellee] look threatening towards me, making me feel that I can't trust him or, you know, being fearful of
what he could do to me or my children. I don't know if that's what Mr. Sachs was trying to do, but whatever he was trying to do it worked because I am not trying to participate whatsoever.
So if you choose to email me back and let me know that you got this recording so then that way I could put this on record for my safety and the safety of my children.
I'm not sure -- if there's anything else that I forgot to say I will do another recording, but I believe I covered everything. Like I said, you can respond back to me through the email.
I appreciate your time and listening to this recording and documenting the events that have occurred today.
Thank you.
N.T., 12/1/16, at 4-12 (internal quotation marks omitted).
After Ms. Wilson's voicemail was played for the court, Assistant District Attorney Streily questioned Attorney Sachs on the record, and Appellee's stand-by counsel, Brandon Herring, Esquire, conducted cross-examination. The notes of testimony provide, in relevant part, as follows:
[By Attorney Streily] Q. Mr. Sachs, when did you first become aware of the existence of [Ms.] Wilson?
[By Attorney Sachs] A. Some time around February of this year, 2016. It would have been late February.
Q. How did you become aware of her existence or relation to Mr. Byrd?
A. There was an inquiry from the Duquesne Police Department regarding this case, which caused us to look into [Appellee's] jail telephone calls and visits. As a result of listening to telephone calls, I became aware of [Ms.] Wilson.
Q. During those telephone calls I'm assuming you learned information about [Ms.] Wilson?
A. Yes.
Q. From the discussions that she had with [Appellee]?
A. Yes.
Q. In this trial at some point you became aware that [Appellee] wanted to call [Ms.] Wilson as a character witness?
A. Yesterday during the course of trial. I believe it was before lunch yesterday.
Q. Okay. As a result of learning of that, what did you do?
A. Once Court had recessed -- well, there was an attempt made, apparently, to contact her, but the phone number was no good. Eventually another phone number was provided to the Court by [Appellee], and through the course of the afternoon apparently [Ms. Wilson] was contacted, and the Court staff indicated that she would be able -- [Ms.] Wilson would be able to be here this morning.
Q. Okay. Sir, once you learned that did you make a decision as to whether to contact [Ms.] Wilson?
A. Yes. Once Court recessed for the day, some time between four and five o'clock, I know it wasn't as late as five, but I had the phone number for her from the most recent jail telephone calls that we had which wouldn't – I don't think they would have been any later than March of this year. So I used that phone number that we had to try and contact her.
Q. Using the phone number that you had obtained you made the call to [Ms.] Wilson; correct?
A. Yes.
Q. Sir, what was your intent in making that phone call?
A. My intent was to determine what basis she had to be able to testify as a character witness for [Appellee] because I had known from all recordings I have
listened to she hadn't known him that long. It didn't appear that she had a lot of contact with anybody who would be within his circle other than his mother and perhaps his brother. I wanted to know if she was aware of what his prior convictions were and whether that would change her opinion of his reputation. That was the essence of why I was calling her. Also, I meant to find out whether she was, in fact, going to appear. Almost – the conversation only lasted two or three minutes. She indicated in fairly short order that she wasn't going to appear. Then the rest of the conversation was merely to ask her these questions and find out what she knew in case she had changed her mind or her circumstance had changed. Q. Now, you indicated earlier in conversation she said she was not going to appear. Did she tell you why she was not going to appear? A. She said that she couldn't get off work, and she couldn't afford to lose her job. It was a new job for her. Q. Sir, what was your belief as to the character trait of [Appellee] that she was going to testify to? A. Honestly, I'm not certain what she was supposed to testify to, whether it was for his honesty or his peaceable nature in the community. Because this case, although it's a gun charge, but there is a lot of testimony about what generated the police response, which was a terroristic threats situation. So I wasn't certain exactly what she would testify to. I wanted to find out what her basis was. Q. Did you disclose to her during that conversation any information about your belief as to past activity of [Appellee] that might have been of a criminal or violent nature? A. Yes. I asked her if she was aware of the circumstances of his Ohio conviction. She told me that he had told her that it was a drug-related case, and I explained what the charges were, what he was convicted of. I explained that he had been convicted of an aggravated assault in Duquesne. I think she must have been confused that there were three people killed. He did three years is what I told her. Somehow that morphed into three people being killed. Q. Today, sir, did you tell her that he had murdered three people? A. No. Q. What was your tone of voice, Mr. Sachs, during this conversation? A. Conversational. It was conversational. It was pleasant. I explained to her who I was as soon as she picked up and went from there. Q. Did her responses to you, did they indicate any apprehension on her part in speaking with you? A. She had indicated to me very early on -- like I said, the conversation only went like two or maybe three minutes. But she had indicated to me that she wasn't coming, that she was getting a bad feeling about this, and she wasn't going to come because of her job. Q. Mr. Sachs, during that was it ever your intent to intimidate her from coming to be a witness for [Appellee] here today? A. Not at all. Q. Did you raise your voice at all during that conversation? A. No. Q. Again, you're telling the Court you made that conversation in order to have knowledge as to her ability to be
actually be a proper character witness for [Appellee]?
A. Yes.
* * *
MR. STREILY: I don't have any more questions for Mr.Sachs.
THE COURT: [Appellee], you are representing yourself. Would you like to ask Mr. Sachs any questions?
[Appellee]: Your Honor, at this time I would like to request that the Court allow me the opportunity to have [stand-by counsel] Mr. Herring represent me with regards to this particular hearing and let him ask Mr. Sachs some questions.
THE COURT: Thank you, [Appellee]. Mr. Herring.
CROSS-EXAMINATION
BY MR. HERRING:
Q. Mr. Sachs, you were obviously present in the courtroom while that recording was played; correct?
A. Yes.
Q. The witness indicated on that recording that you had informed her that [Appellee] was one of the most dangerous people that you had ever met or something to that effect. Correct?
A. Yes.
Q. Did you, in fact, say that to her?
A. Yes.
Q. What was the legitimate purpose of telling her that in relation to her coming to Court and being a witness?
A. We were discussing him, and she had already indicated that she wasn't planning on coming, and we were just having a conversation at that point.
Q. We can agree that you wouldn't have been permitted to ask her a question related to your opinion of [Appellee] during the course of the trial; correct?
A. Absolutely.
Q. So there was no --
A. Yes. I agree.
Q. So there was no legitimate purpose for editorializing to her your opinion of [Appellee] while you were contacting her about being a character witness; correct?
A. I wouldn't necessarily agree with that, that it was not legitimate. It was a conversation about him.
Q. [Ms. Wilson] also referenced a homicide in Duquesne. Did you mention any homicide charges that had been previously brought against [Appellee]?
A. I don't recall mentioning that. I told her that he did three years for a shooting in Duquesne.
Q. It's your opinion that she had misinterpreted that to be three homicides in Duquesne?
A. Yes. I mean, as far as I know, there are not three homicides in Duquesne associated with [Appellee].
Q. Mr. Sachs, in that recording, [Ms. Wilson], despite having been told by you that [Appellee] had all of these convictions, but I believe it was your conduct that was going to be directed towards her in relation to knowing about her family.
Did you reference the jail recordings that you had listened to in relation to [Appellee's] case?
A. I believe I told her that that's how I -- why I knew about her, what I knew about her.
I mean I never told her that she was under surveillance. She wasn't under surveillance. Everything I know about her is from having had to listen to these jail recordings.
Q. But you had, in fact, told her several things about her family, and you told her that you knew more information
about her than you should? Did you say that to her?
A. In response to when she was telling me about herself, I said, yes, I know about these things. I know about this. I know about that. It was all as a result of listening to these recordings. That's why I know more about her than I should.
Q. You did, in fact, use those words in speaking with the witness?
A. Yes. I believe I did. Yes.
MR. HERRING: Your Honor, I have no more questions of the witness.
Thank you.
THE COURT: You may step down.
I find [Ms. Wilson], although not cross-examined, to have been well spoken and articulate.
I see no legitimate reason Mr. Sachs would tell her about the details of the Ohio case. He said that he knew more about her than he should.
I find it hard to believe that she said that she had financial problems and a recent break-up. I believe that Mr. Sachs told her that.
I believe that he told her that [Appellee] shot people in Duquesne. He said that he was dangerous.
I believe that it's the perception of the witness in this case that matters, and her perception is that Mr. Sachs and/or the D.A.'s Office is corrupt, possibly she was afraid for her life and for her children, and the witness has not appeared. For manifest necessity I am going to declare a mistrial in this case.
I have been on the bench for 31 years. In that 31 years I have never once banned anyone from my courtroom .... However, Mr. Sachs, you are banned from my courtroom. I can no longer trust you. I find you to be sneaky. I find you to be able to backdoor people, and you're not allowed in my courtroom.
Thank you.
N.T., 12/1/16, at 16-26.
After review, we agree with the trial court that the Commonwealth, through the actions of Attorney Sachs, intimidated Ms. Wilson to prevent her from testifying with the intent of depriving Appellee a fair trial. Trial Court Opinion, 6/29/17, at 11, 12-13. Attorney Sachs questioned Ms. Wilson regarding her knowledge of Appellee, informed Ms. Wilson about prior criminal acts that Appellee allegedly committed, editorialized about Appellee's dangerous propensity, and informed Ms. Wilson that he was aware of many details about her life. Attorney Sachs's statements placed Ms. Wilson in fear for her own safety and for that of her family. We cannot conclude that Attorney Sachs's actions were mere prosecutorial error; rather, they were intentional acts of prosecutorial overreaching implicating double jeopardy protection. Martorano , 741 A.2d at 1222. Because we conclude that the Commonwealth's misconduct was intended to deprive Appellee of a fair trial, we agree that retrial is barred and that the charge against Appellee at trial court docket number CP-02-CR-0014138-2016 was properly dismissed. Adams , 177 A.3d at 371. Accordingly, we affirm the March 20, 2017 order dismissing this case with prejudice.
Order affirmed.
Judge Kunselman joins this Opinion.
Judge Strassburger files a Dissenting Opinion.
DISSENTING OPINION BY STRASSBURGER, J.:
I respectfully dissent. I do not believe the record supports the conclusion that the assistant district attorney, Larry Sachs, engaged in intentional prosecutorial misconduct such that he intended to prejudice Al-Tariq Sharif Ali Byrd (Byrd) to the point of a denial of a fair trial.
The learned Majority aptly covers the procedural history of this case. I add only that upon the trial court's original declaration of a mistrial, the trial court specifically declined to designate the conduct at issue as prosecutorial misconduct. See N.T., 12/1/2016, at 26-27 (declaring a mistrial and denying request of Byrd's standby defense counsel to "attach prejudice to its mistrial declaration"). Id. at 27. On the date scheduled for the new trial, however, the trial court began the case by expressing "[its] belief [that] upon reviewing the case law [the case] cannot be retried...." N.T., 2/13/2017, at 2. At the Commonwealth's request, the trial court agreed to review transcripts of three calls between Byrd and Ms. Wilson introduced by the Commonwealth, and continued the hearing for another date in order to receive testimony from Ms. Wilson. Id. at 3-7. At the March 20, 2017 hearing, Ms. Wilson finally testified under oath, and the trial court changed its ruling to a dismissal with prejudice.
Moments earlier, the trial judge indicated her intent to report Attorney Sachs to the disciplinary board, stating, "I can no longer trust you. I find you to be sneaky. I find you to be able to backdoor people , and you're not allowed in my courtroom." Id. (emphasis added). Even assuming arguendo that Attorney Sachs had engaged in conduct that violated the Rules of Professional Conduct, I find it troubling that the trial judge opted to voice her personal feelings about Attorney Sachs on the record. This particularly concerns me since this Court twice has had to take the extraordinary step of ordering the recusal of this particular jurist due to the personal animus she has demonstrated towards the attorneys appearing before her. See Commonwealth v. Bernal , 200 A.3d 995, 1001-03 (Pa. Super. 2018) ; Commonwealth v. McCauley , 199 A.3d 947, 952-954 (Pa. Super. 2018).
It is that ruling that the Commonwealth asks us to review. " Article I, § 10 ... bars retrial ... 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. Adams , 177 A.3d 359, 371 (Pa. Super. 2017) (distinguishing between prosecutorial error that could be corrected in a future trial versus intentional subversion of the court process, which bars retrial).
Ms. Wilson was a potential character witness for Byrd, identified by Byrd mid-trial when Byrd, operating pro se , asked for the court's assistance in contacting Ms. Wilson to testify as a character witness on his behalf. N.T., 11/28/2016 – 11/30/2016, at 166-171. Despite the overall tenor of the trial court's commentary regarding Attorney Sachs's actions, I note that the Commonwealth is not prohibited from contacting and interviewing an unrepresented third party, even if the third party is a possible defense witness.
For purposes of double jeopardy, the proper focus is on Attorney Sachs's intent, not the effect of his words on Ms. Wilson. See Commonwealth v. Smith , 532 Pa. 177, 615 A.2d 321, 324 (1992) (holding that the double jeopardy clause of the Pennsylvania Constitution prohibits retrial "when prosecutorial misconduct is intended to provoke the defendant into moving for a mistrial" or "when the conduct of the prosecutor is intentionally undertaken to prejudice the defendant to the point of the denial of a fair trial") (emphasis added); Adams , 177 A.3d at 372 (holding that "whether a dismissal is warranted turns on whether the Commonwealth intended to deprive the defendant of a fair trial").
It is unclear whether the trial court appreciated that the focus should properly be on the prosecutor's intent, not the victim's reaction. Although the trial court found Attorney Sachs's actions to be "knowing and deliberate and [ ] intended to deprive [Appellant] of a fair trial," in doing so, the trial court judged his words by Ms. Wilson's reaction. See Trial Court Opinion, at 13 (focusing on how Attorney Sachs's actions "left [Ms. Wilson] scared, feeling threatened[,] and afraid of retaliation against herself and her family by [Attorney] Sachs"). In fact, at the time it declared a mistrial, the trial court candidly stated that it believed "that [it was] the perception of the witness in this case that matter[ed] , and her perception is that [Attorney] Sachs and/or the [district attorneys' office] is corrupt, possibly she was afraid for her life and for her children, and the witness has not appeared." N.T., 12/1/2016, at 26 (emphasis added). Yet the trial court does not appear to consider that Ms. Wilson could have perceived Attorney Sachs's comments differently than he intended them. See Commonwealth v. Lafferty , 315 Pa.Super. 241, 461 A.2d 1261, 1263 (1983) ("Although the effect of the improper statements was prejudicial, it cannot automatically be concluded that they were made with that intent, particularly in light of the strength of the prosecution's case at the outset."). The standard requires consideration of the prosecuting attorney's intent in making the comments, not simply whether the receiving person subjectively or even objectively felt threatened by the comments.
The Majority and the trial court take specific issue with Attorney Sachs's questioning of Ms. Wilson "regarding her knowledge of [Byrd]" and his prior criminal acts, Majority at 359, but I do not think it is unreasonable for the prosecuting attorney to probe the foundation upon which a character witness's intended testimony would be built. They also take issue with Attorney Sachs's informing Ms. Wilson of Attorney Sachs's perception of Byrd's dangerousness. However, it stands to reason that the average person would not be surprised to learn that the prosecuting attorney believed Byrd to be dangerous; otherwise, the Commonwealth would not be prosecuting him for firearm-related crimes and rape. Furthermore, Attorney Sachs based his comment upon Byrd's prior criminal history.
In addition to the persons not to possess charge in this case, the Commonwealth was in the midst of prosecuting Byrd for a multitude of other charges. At docket number CP-02-CR-2875-2015, the Commonwealth had charged Byrd with persons not to possess firearms, carrying a firearm without a license, three counts of possession with intent to deliver, and three counts of possession of controlled substance. At docket number CP-02-CR-3369-2016, the Commonwealth had charged Byrd with rape (unconscious victim), two counts of involuntary deviate sexual intercourse (unconscious victim), two counts of aggravated indecent assault (unconscious victim), two counts of terroristic threats, stalking, indecent assault (unconscious victim), invasion of privacy, and persons not to possess firearms. As the Majority explains, the persons not to possess firearms charge originally listed at docket number 2875-2015 was severed from the rest of the case and re-captioned at docket number 14138-2016.
The Majority and trial court also emphasize Attorney Sachs's statement that he knew more about Ms. Wilson than he should. While it is understandable why Ms. Wilson may have felt alarmed by this statement, this does not mean automatically that Attorney Sachs delivered the statement with the intent to threaten Ms. Wilson. In fact, the record is clear that the statement referenced knowledge Attorney Sachs gained about Ms. Wilson from recordings of telephone calls between her and Byrd at the jail.
In her voicemail to the trial court, Ms. Wilson said this of Attorney Sachs's statement:
I advised him that I only knew Mr. Byrd for a few months before he got re-incarcerated. He cut me off and was like, yeah, I know a lot about you. He talked about the fact of my financial hardship, about a break-up, and told me that he knows a lot more about me than he should, which really freaks me out because that means I'm being watched at this point just for being in contact with Mr. Byrd.
N.T. 12/1/2016, at 8.
During her testimony before the trial court, Ms. Wilson again mentioned Attorney Sachs's statement. When asked if Attorney Sachs had threatened her during the call, Ms. Wilson responded as follows.
It was more indirect. He stated things like: Yeah. I know a lot more about you than I should. Kind of like a chuckle. He hinted on knowing my situation with a case that I had against my ex. He stated about my financial situation. So I didn't put two and two together that he got it from [the] phone calls [between Byrd and me at the jail]. I immediately went into: Oh, my God. I am being watched. What does he know about me? I tried to play kind of coy with him, like I was on his side to try and find out what he knew about me. So he asked where I worked, and I told him, because it's public knowledge where I work. But he just continued to be like: Oh, yeah. Like he said two or three times: I know more about you than I probably should, and he chuckled.
N.T., 3/20/2017, at 5-6.
Attorney Sachs does not deny that he made the statement about knowing too much about Ms. Wilson. During his testimony, the following exchange occurred.
[Byrd's standby counsel:] [Attorney] Sachs, in that recording, ... I believe it was your conduct that was going to be directed towards her in relation to knowing about her family. Did you reference the jail recordings that you had listened to in relation to [ ] Byrd's case?
[Attorney Sachs:] I believe I told her that that's how I -- why I knew about her, what I knew about her. I mean I never told her that she was under surveillance. She wasn't under surveillance. Everything I know about her is from having had to listen to these jail recordings [between her and Byrd].
[Byrd's standby counsel:] But you had, in fact, told her several things about her family, and you told her that you knew more information about her than you should? Did you say that to her?
[Attorney Sachs:] In response to when she was telling me about herself, I said, yes, I know about these things. I know about this. I know about that. It was all as a result of listening to these recordings. That's why I know more about her than I should.
[Byrd's standby counsel:] You did, in fact, use those words in speaking with the witness?
[Attorney Sachs:] Yes. I believe I did. Yes.
N.T., 12/1/2016, at 24-25.
Even if Attorney Sachs went too far in editorializing about Byrd's alleged dangerousness, or in flippantly remarking to Ms. Wilson that he knew more about her than he should, I do not believe that his statements were made with intent to subvert the court process and to prejudice Byrd to the point of a denial of a fair trial. The Majority and trial court conclude Attorney Sachs intended to scare Ms. Wilson from testifying as a character witness for Byrd. I disagree. What would be the point? Attorney Sachs already knew from listening to the jail calls between Ms. Wilson and Byrd that Ms. Wilson did not know Byrd very long. It would be easy enough on cross-examination to challenge her testimony regarding his law-abiding or peaceful reputation with questions regarding her knowledge of his prior convictions. See Commonwealth v. Buterbaugh , 91 A.3d 1247, 1263 (Pa. Super. 2014) (stating that prior criminal convictions are admissible as rebuttal evidence of good character).
Furthermore, this was not a complicated case. Although it is possible evidence of Byrd's good character could engender reasonable doubt in the mind of the jury regarding the charge of person not to possess a firearm, multiple police officers identified Byrd on the stand and testified that they found Byrd with a gun on the front seat of his car, which was prohibited by his prior conviction for aggravated assault.
Moreover, the record is clear that because Ms. Wilson believed she could lose her job if she missed work, she was not planning to testify, except possibly if forced to do so by subpoena. Ms. Wilson told Attorney Sachs this at the outset of the conversation. See N.T., 12/1/2016, at 5-6 (Ms. Wilson's voicemail message to trial court stating she told Attorney Sachs that "because [she was] a new employee that [she] couldn't come in because of the simple fact that [she] was going to get fired" and she would need a subpoena); id. at 18-19 (testimony of Sachs that Ms. Wilson "said that she couldn't get off work, and she couldn't afford to lose her [new] job"); Commonwealth Exhibit 3 (N.T., 11/30/2016, at 15) (jail call between Byrd and Ms. Wilson, where Ms. Wilson told Byrd that she had told Attorney Sachs that she "can't come" because her "supervisor [had told her] no," she did not have a subpoena, and it was "too short of a notice"); id. at 14-15 (jail call between Byrd and Ms. Wilson, where Byrd suggested that she would have tried harder to come to testify if it were not for Attorney Sachs's call, and Ms. Wilson responded, "No, there's the thing. Like [Attorney Sachs] asked me if I was coming, and I was like ... I can't because of my job").
Ms. Wilson's statements to Attorney Sachs are consistent with Ms. Wilson's statements to court staff. See N.T., 12/1/2016, at 5 (Ms. Wilson's voicemail message to trial court stating she had told the court's staff that she "wasn't sure if [she] was able to make it simply because [she's] a new employee at her job"); Commonwealth Exhibit 3 (N.T., 11/30/2016, at 11-15) (jail call between Byrd and Ms. Wilson, where Ms. Wilson told Byrd that she had told court staff that she would not miss work to testify without a subpoena); N.T., 3/20/2017, at 4 (testimony of Ms. Wilson that she had told the trial court's staff that she "wasn't sure [if she could testify], because [she had] just started [her] job and [she] didn't know if they were going to give [her] the time off").
Because Ms. Wilson was not planning to attend even before Attorney Sachs called her, I am not convinced that Byrd was prejudiced to the point of an unfair trial. In addition to Ms. Wilson's clear statements about her desire not to attend trial made to Attorney Sachs and court staff, the transcript of the jail calls between Byrd and Ms. Wilson introduced by the Commonwealth is revealing.
MS. WILSON: But like I ... tried to tell that ... lady, I was like, ... I will ask and I will find out.... But most likely ..., unless I have a doctor's excuse or, like, a subpoena, I was like, I'm not going to be able to miss work because I'm still in my first 90 days. And I said, [s]end me all the information to my e-mail address. I gave her my e-mail address. And I told her, I said, on my next break, ... I'll be able to call you and let you know. I said, I don't go on break until probably like 4:00. So I go on break to call her to tell her what my supervisor said, and nobody answered. So I go back to my desk, and I was
going to e-mail her, and as soon as I sat down back at my desk, ... Larry Sachs called me. And I was like ... [w]hy are you calling me? And he was like, Oh, well, you know, it's been addressed that you're going to be appearing for -- for -- to be a -- oh, my God, I can't even recall now.
MR. BYRD: A character witness.
MS. WILSON: Okay, yeah, a character -- ... I told the lady that I would let her know. I was like ... I can't come. My supervisor told me no but it's -- like I don't have a subpoena. I was like -- and I told him, I said, it's too short of a notice. I have to have all my days requested in before I started my first day of work. I had to have everything approved. And he was like, Oh. And then proceeds to tell me about all this stuff about, oh, yeah, I'm glad you found a job. I know you've been having financial hardship. I was like, Excuse me?
MR. BYRD: Mm-hmm. Go ahead. I'm listening.
MS. WILSON: Yeah. I was just like, Are you -- like he -- he knows everything about me, which makes me, like ... why are you watching me? And he was like, you know, you seem like you're a really good person, and he was like, so, you know, you just -- basically, like – it's just a bunch of BS, but I -- I don't know. But I told your mom because I wanted your mom to tell you because I didn't think you had any phone time to call me.
MR. BYRD: Yeah, well, you can tell me, because the phone is recorded, and if I need to subpoena it, then that's what I'll do.
MS. WILSON: There's not enough time now.
MR. BYRD: Yes, it is. Just keep talking.
MS. WILSON: Oh, well -- I don't know. I was just saying because -- I was just like basically letting him know that I couldn't make it. You know, and what makes me mad is that why would she -- like, why would that lady go (indiscernible)? (Indiscernible) if I didn't tell her (indiscernible).
MR. BYRD: That lady -- that lady didn't do that. That lady didn't do that. Listen, let me explain to you something. First and foremost, you're not obligated to Larry Sachs. Larry Sachs is a district attorney. He's the opposition in an adversarial process where they're trying to prosecute one of your people. You are a character witness on my behalf because he's in the courtroom trying to make it seem like I'm just a devil, a monster or something in an indirect way, and I wanted to paint a different picture for the jury ....
* * *
If I win this case, I'm going to be all over the news and be famous. Just watch. You don't have to come. I'm not mad if you don't come or none of that, baby. I'm not trippin' at all, because I'm going to beat them with or without you, but I just was giving you an opportunity to be a part of it because I love you and it would have helped me close them out real good. At the end of the day, I don't have to have that, though. It helps me for the simple fact that he reached out and tried to scare you up and tell you all type of derogatory things about me that he can't prove and that are not true. Since he did that, it let me know that he's in panic mode, and he knows he lost the case for real for real. That's what it let me know.
MS. WILSON: Well, the only thing is, I can't -- I can't come is simply because I can't lose my job.
MR. BYRD: Right.
MS. WILSON: You know, that's the whole thing. Like I can't lose my -- I can't lose my job.
MR. BYRD: No. You're not --
MS. WILSON: And, like, she straight up told me. She was like --
MR. BYRD: -- not saying. You're not --
MS. WILSON: I understand. I'm just letting you know. Just letting you know.
MR. BYRD: No, no, no. I'm saying – let me let you know. Let me be in control of the conversations for this time right here. You're not coming to the thing, and I know that he scare you, Brandi. I know that he spooked you with that bullshit.
MS. WILSON: That's not why, though.
MR. BYRD: It's --
MS. WILSON: I support --
MR. BYRD: Why don't you just listen sometime, baby. You don't have to chime in every time, if you just listen to me, you read between the lines and understand.
MS. WILSON: Yeah.
MR. BYRD: If you let these people know -- if you even called the lady back that called you and tell them that he called you and said all those derogatory things and he threatened you and he scared you and that's why you're not coming, it helps me. Are you not –
MS. WILSON: Yeah, I know.
MR. BYRD: So why would you say it's because you can't come to work?
MS. WILSON: Because I – everybody already know. Like I left a message for that lady letting her know, like, I can't come in because –
MR. BYRD: But if dude would have never would have called you, I think you would have made a bigger and a better effort to make sure you could try to get there. Being that he did that and said I was -- what all did he say? Put it on the record so I can use this call. Put it on the record.
MS. WILSON: No, there's the thing. Like he asked me if I was coming, and I was like, well ... I can't because of my job. And he was like, Oh, well such-and-such said that you said that you were going to be there. And I was like, I tried to call her back. I said, I called the number to try to call her back to let her know that I wasn't coming. And he's just like, oh, (indiscernible).
Commonwealth Exhibit 3 (N.T., 11/30/2016, at 11-15) (emphasis added).
The conversation between Byrd and Ms. Wilson leaves one with the inescapable conclusion that Byrd was capitalizing upon Ms. Wilson's general uneasiness over her conversation with Attorney Sachs. Byrd evinces a clear intent to convince Ms. Wilson that not only did Attorney Sachs threaten her, but that she should report it to the trial court so that he could use the information to his advantage. He is the first one to use the word "threatened." He is the one who suggested to Ms. Wilson that she say she was not coming because of Attorney Sachs, not because her supervisor told her she could not miss work to testify without a subpoena.
Moreover, the conversation underscores that Ms. Wilson was not planning to attend the trial without a subpoena before Attorney Sachs even called her. Since Ms. Wilson told Attorney Sachs this at the outset of their call, I am not convinced that he would intentionally subvert the court process over a character witness who was not planning to attend. Simply put, Attorney Sachs had little to gain by engaging in nefarious conduct.
In my view, the evidence falls short of supporting a finding of intentional subversion of the court process and instead looks like the mishandling of a witness interview with poor people skills. Attorney Sachs was forthcoming regarding his conversation with the witness, and there is little dispute regarding the contents of the conversation. His conduct here simply is not comparable to the type of conduct at issue in other cases involving interviews of witnesses where double jeopardy attached. See, e.g., Commonwealth v. Anderson , 38 A.3d 828, 839 (Pa. Super. 2011) (en banc ) (holding double jeopardy barred retrial based upon prosecutor's intent to taint a child witness subversively; prosecutor met with a child witness without a third party present in violation of a prior court order, spent hours with the child in advance of a competency hearing, told the child both the questions he would be asked and the answers the child should provide, asked those questions at the competency hearing, and lied about his meeting with the child).
Without the requisite intent by Attorney Sachs, double jeopardy does not attach. See Commonwealth v. Rightley , 421 Pa.Super. 270, 617 A.2d 1289, 1294 (1992) ("Unless the conduct, while perhaps reprehensible, is actually designed to demean or subvert the truth seeking process, Smith will not apply to bar a retrial."). Therefore, I would reverse the trial court's ruling and permit the Commonwealth to re-try Byrd.