Opinion
486 MDA 2022 J-S06022-23
06-14-2023
COMMONWEALTH OF PENNSYLVANIA v. WILBERTO MELENDEZ Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the Order Entered March 3, 2022 In the Court of Common Pleas of Lancaster County Criminal Division at No(s): CP-36-CR-0002279-2018
BEFORE: STABILE, J., NICHOLS, J., and STEVENS, P.J.E. [*]
MEMORANDUM
NICHOLS, J.
Appellant Wilberto Melendez appeals from the order denying his motion to dismiss and bar retrial on charges of criminal homicide and related offenses. Appellant argues that the trial court erred when it denied his motion to dismiss the charges on double jeopardy grounds. We affirm.
The trial court summarized the facts and procedural history as follows:
By criminal information . . . [Appellant has been] charged with allegedly having committed the offenses of criminal homicide; firearms not to be carried without a license; persons not to possess, use, manufacture, control, sell or transfer firearms; and intimidation of witnesses or victims. Said charges stem from a shooting alleged to have occurred on October 27, 2017, in the 300 block of Marshall Street in the City and County of Lancaster.
Following selection of a jury, trial initially commenced in the instant matter on May 14, 2019. On May 21, 2019, during the sixth day of testimony, a Commonwealth witness testified to statements purportedly made by [Appellant] boasting that he had
committed a prior killing, had beaten that charge, and was going to beat the current charges as well. Prior to the commencement of trial, the attorney for the Commonwealth [indicated] that he had affirmatively instructed all Commonwealth witnesses not to discuss such matter[s]. Additionally, at this time, the attorney for the Commonwealth indicated that he had not elicited, and was surprised by, . . . such testimony. Due to the prejudicial nature of such testimony, the court granted [Appellant's] motion and granted a mistrial.
The second trial in the instant matter commenced with jury selection on May 10, 2021. On this date, a meeting occurred at the Lancaster City Bureau of [Police] Headquarters between Assistant District Attorney Cody Wade [(ADA Wade)], Detective Sergeant Robert Whiteford, and Antasia Bair to prepare Ms. Bair for her trial testimony. At the evidentiary hearing relative to [Appellant's] instant motion, [ADA] Wade credibly testified that this meeting had not previously occurred due to scheduling concerns. During this meeting, Ms. Bair reviewed her prior statements and testimony, received a preview of what to expect at trial, and was admonished by [ADA] Wade to tell the truth and avoid reference to any improper subjects during her trial testimony. This meeting was not recorded, nor were any verbatim or substantially verbatim recordings generated from this meeting. During this meeting, Ms. Bair mentioned certain things which were relevant to the matter which were not previously disclosed or varied from the information that she had previously provided to the investigators. This information included claims that she had seen Ernest Talton possess a firearm during the evening in question and that she heard Ernest Talton admonish someone, whom she believed to be [Appellant], that he should not harm the victim. In addition, at this time, Ms. Bair indicated that she observed [Appellant] "choke up" Quetesha Payne [in the parking lot of] a Turkey Hill convenience store in the early morning hours [during a confrontation involving Appellant, Talton, and the victim] preceding the homicide. [ADA] Wade credibly testified that he had no reason to believe the veracity of this representation as it was not supported by any other evidence in this matter. [ADA] Wade further credibly testified that he instructed Ms. Bair during this meeting that they were not going to discuss this topic during her trial testimony. Specifically, [ADA] Wade instructed Ms. Bair that her trial testimony would be limited in scope to what was developed during her testimony at the prior trial and in her prior statements to the investigators. [ADA] Wade credibly
testified that he believed that Ms. Bair was sufficiently cautioned and that she understood that this allegation would not be introduced during her testimony at the upcoming trial. Following this meeting, [ADA] Wade instructed Detective Sergeant Whiteford to prepare a supplemental report regarding this meeting. Detective Sergeant Whiteford prepared such a report, although this report did not include any reference to Ms. Bair's claims regarding [Appellant] purportedly placing his hands upon Ms. Payne. At the evidentiary hearing held in this matter, Detective Sergeant Whiteford testified that he did not hear Ms. Bair make such comments. This supplemental report was provided to counsel for [Appellant] on May 12, 2021.
On May 13, 2021, prior to the commencement of testimony for the day, the court met with counsel for the parties outside the presence of the jury. At this time, discussion was had regarding the meeting with Ms. Bair. Specifically, Ms. Bair's claims regarding certain statements allegedly made by Ernest Talton were addressed and the parties specifically agreed that this topic would not be introduced at trial. Contrary to the representations contained in [Appellant's] memorandum [of law in support of his motion to dismiss and bar retrial], the record does not demonstrate any reference to remedies or discharge of [Appellant] should this topic be introduced at trial. Additionally, at this time, there was no reference made by counsel regarding Ms. Bair's allegations that [Appellant] had "choked up" Ms. Payne.
On May 14, 2021, the Commonwealth presented the testimony of Antasia Bair at trial. It is noted that Ms. Bair was not an eyewitness to the homicide. Based upon the credible representations made by the attorneys for the Commonwealth, Ms. Bair was presented to provide testimony regarding her observations of the argument which occurred at the Turkey Hill convenience store [parking lot] prior to the homicide, as well as her knowledge of certain prior consistent statements made by an eyewitness to the homicide which identified [Appellant] as the shooter. During her testimony, Ms. Bair reiterated her claim that [Appellant] had "choked up" Ms. Payne at the Turkey Hill. Again, this allegation had not been referenced by Ms. Bair during her testimony at the first trial and was not contained in any of her prior statements. At this point, counsel for [Appellant] moved for a mistrial on the basis that such testimony was prejudicial to [Appellant] and was not provided to defense counsel through discovery.
Extensive argument was held on the record outside the presence of the jury. During this argument, [ADA] Wade indicated that he recalled Ms. Bair informing him at the recent meeting about [Appellant] and Ms. Payne "getting into it", but he couldn't recall what she had specifically told him. Additionally, at this time, [ADA] Wade informed that court that he had instructed Ms. Bair not to discuss this topic during her testimony. After consideration of providing the jury with a strong curative instruction, the court granted [Appellant's] motion for a mistrial in light of the serious nature of the instant matter.
On June 24, 2021, counsel for [Appellant] filed a motion to dismiss and bar retrial. After consultation with counsel regarding their availability, by order dated July 1, 2021, this court scheduled an evidentiary hearing relative to [Appellant's] motion for September 16, 2021.
In addition to the testimony noted above, at [the September 16, 2021] hearing, [ADA] Wade credibly testified that he did not seek to elicit any testimony from Ms. Bair regarding any physical contact between [Appellant] and Ms. Payne. [ADA] Wade further credibly testified that he was not seeking to cause a mistrial or prejudice [Appellant]. [ADA] Wade testified that the Commonwealth was pleased with the progression of the trial and that the award of a mistrial did not place the Commonwealth in a more advantageous position.Trial Ct. Op. & Order, 3/3/22, at 1-5 (citations and footnotes omitted; formatting altered).
Detective Sergeant Whiteford also testified at the September 16, 2021 hearing. See N.T. Hr'g, 9/16/21, at 59-75.
On March 3, 2022, the trial court filed an opinion and order denying Appellant's motion to dismiss. See id. at 16-18. Appellant filed a timely notice of appeal and a timely court-ordered Pa.R.A.P. 1925(b) statement. In lieu of a Rule 1925(a) opinion, the trial court issued an order incorporating its March 3, 2022 opinion and order. See Trial Ct. Order, 6/17/22.
We note that although the trial court's opinion and order denying Appellant's motion to dismiss was time-stamped and entered on the docket on March 2, 2022, the docket entries reflect that the trial court served the parties with a copy of the opinion and order on March 3, 2022. See Commonwealth v. Jerman, 762 A.2d 366, 368 (Pa. Super. 2000) (stating that "[i]n a criminal case, the date of entry of an order is the date the clerk of courts enters the order on the docket, furnishes a copy of the order to the parties, and records the time and manner of notice on the docket" (citations omitted)); see also Pa.R.Crim.P. 114(C)(2)(c); Pa.R.A.P. 108(a)(1), (d)(1).
The trial court also found that Appellant's motion was not frivolous. See Trial Ct. Op. & Order at 17. "If the trial court enters an order denying the motion to dismiss on double jeopardy grounds and in doing so, makes no finding, in writing, that the motion is frivolous, then the order is a collateral order under [Pa.R.A.P.] 313 and is immediately appealable." Commonwealth v. Kemick, 240 A.3d 214, 217 (Pa. Super. 2020) (citations omitted); see also Pa.R.Crim.P. 587(B).
The trial court's order adopting its prior opinion and order was time-stamped and entered on the docket on March 29, 2022, but the docket entries indicate that the trial court served the parties with a copy of this order on June 17, 2022. See Jerman, 762 A.2d at 368; Pa.R.Crim.P. 114(C)(2)(c).
On appeal, Appellant raises the following issue for review:
Whether [the] trial court erred in denying [Appellant's] motion for dismissal and barring retrial on double jeopardy grounds due to reckless prosecutorial conduct[?]
Appellant's Brief at 4 (formatting altered).
Appellant argues that double jeopardy bars retrial in this case because the trial court declared a mistrial due to the Commonwealth's misconduct. Id. at 6-23. In support, Appellant alleges two specific instances of prosecutorial misconduct: (1) a Brady violation relating to the Commonwealth's failure to disclose Ms. Bair's statement that Appellant had choked Payne on the night of the murder; and (2) the Commonwealth improperly elicited testimony about the choking incident from Ms. Bair in violation of Pa.R.E. 404(b). Id. at 9-10.
Brady v. Maryland, 373 U.S. 83 (1963).
First, regarding the alleged Brady violation, Appellant contends that the Commonwealth possessed Ms. Bair's statement "after trial began and intentionally withheld them from the defense until after a mistrial was declared." Id. at 14. Appellant claims that the Commonwealth's failure to disclose Ms. Bair's new statement satisfies all three prongs of the Brady standard because (1) the new statement was favorable impeachment material because it was inconsistent with Ms. Bair's prior testimony and statements and was inconsistent with the testimony of other witnesses; (2) the prosecution willfully suppressed the new statement because it was not included in Detective Sergeant Whiteford's report of Ms. Bair's interview; and (3) Appellant was prejudiced by the admission of evidence relating to his other bad acts. Id. at 19-21. Appellant concludes that the Commonwealth's Brady violation was intentional misconduct which bars retrial. Id. at 17-18, 21 (citing, inter alia, Commonwealth v. Smith, 615 A.2d 321 (Pa. 1992)).
Appellant also argues that the Commonwealth engaged in prosecutorial misconduct by failing to adequately prepare Ms. Bair as a witness for trial. Id. at 21-23. Appellant contends that ADA Wade's testimony established that he did not adequately prepare Ms. Bair so she would not testify as to the choking incident, which is an inadmissible prior bad act. Id. at 22. Appellant concludes double jeopardy bars retrial because the Commonwealth's misconduct here "is tantamount to the level of recklessness in [Commonwealth v. Johnson, 231 A.3d 807 (Pa. 2020)]." Id. at 23.
Our standard and scope of review in this case are as follows:
An appeal grounded in double jeopardy raises a question of constitutional law. This Court's scope of review in making a determination on a question of law is, as always, plenary. As with all questions of law, the appellate standard of review is de novo. To the extent that the factual findings of the trial court impact its double jeopardy ruling, we apply a more deferential standard of review to those findings.
Where issues of credibility and weight of the evidence are concerned, it is not the function of the appellate court to substitute its judgment based on a cold record for that of the trial court. The weight to be accorded conflicting evidence is exclusively for the fact finder, whose findings will not be disturbed on appeal if they are supported by the record.Commonwealth v. King, 271 A.3d 437, 443 (Pa. Super. 2021) (citation omitted).
Our Supreme Court has explained that
the [double] jeopardy prohibition is not primarily intended to penalize prosecutorial error, but to protect citizens from the embarrassment, expense and ordeal of a second trial for the same offense and from compelling them to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent they may be found guilty.Johnson, 231 A.3d at 826 (citations omitted and formatting altered).
We must also consider the following:
The Double Jeopardy Clauses of the Fifth Amendment to the United States Constitution and Article 1, [Section] 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, [Section] 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.
Dismissal is an appropriate remedy in such a case because a mistrial would be an inadequate remedy for systematic intentional prosecutorial misconduct.
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. 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.
In sum, conduct that constitutes mere prosecutorial error does not implicate double jeopardy; it is prosecutorial overreaching that cannot be condoned.Commonwealth v. Byrd, 209 A.3d 351, 353-54 (Pa. Super. 2019) (citations omitted and formatting altered).
Article 1, Section 10 of the Pennsylvania Constitution provides in relevant part, "No person shall, for the same offense, be twice put in jeopardy of life or limb . . . ." Pa. Const. Art. 1, § 10.
Additionally, our Supreme Court has expanded the definition of "prosecutorial overreaching" to also include reckless conduct. Johnson, 231 A.3d at 826-27. Specifically, the Court held:
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 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. In reaching our present holding, we do not suggest that all situations involving serious prosecutorial error implicate double jeopardy under the state Charter. To the contrary, we bear in mind the countervailing societal interests . . . regarding the need for effective law enforcement, and highlight again that, in accordance with long-established double-jeopardy precepts, retrial is only precluded where there is prosecutorial overreaching - which, in turn, implies some sort of conscious act or omission.Johnson, 231 A.3d at 826 (citations omitted and emphasis in original); see also Commonwealth v. Krista, 271 A.3d 465, 474 (Pa. Super. 2022) (explaining that following Johnson, "retrial should be barred when the prosecutor's misconduct is an act of deliberate or reckless overreaching and not an isolated incident"), appeal denied, 285 A.3d 597 (Pa. 2022).
To establish a Brady violation, a defendant must prove three elements: "(1) the evidence at issue was favorable to the accused, either because it is exculpatory or because it impeaches; (2) the evidence was suppressed by the prosecution, either willfully or inadvertently; and (3) prejudice ensued." Commonwealth v. Roney, 79 A.3d 595, 607 (Pa. 2013) (citation omitted). This Court has stated that "if a Brady violation is committed by a prosecutor, it can result in a dismissal on double jeopardy grounds if it is shown that the prosecutor intended to deprive the defendant of a fair trial." Commonwealth v. Adams, 177 A.3d 359, 372 (Pa. Super. 2017) (citation omitted).
In Smith, the Commonwealth violated Brady by failing to disclose that its chief witness received favorable treatment in unrelated criminal matters in exchange for his testimony and by failing to disclose autopsy records that contradicted the Commonwealth's theory of the case and supported the defendant's. See Smith, 615 A.2d at 322-23. Also, there was evidence that the Commonwealth knowingly concealed the Brady material during the trial and for more than two years after defendant's conviction. See id. at 323-24. Therefore, the Smith Court concluded that "[b]ecause the prosecutor's conduct in this case was intended to prejudice the defendant and thereby deny him a fair trial, [the defendant] must be discharged on the grounds that his double jeopardy rights, as guaranteed by the Pennsylvania Constitution, would be violated by conducting a second trial." Id. at 325; cf. Adams, 177 A.3d at 373-74 (holding that although the prosecutor and police committed a Brady violation by failing to disclose video recordings of police interviews with the co-defendant, dismissal was not warranted where the record established the prosecutor did not act intentionally or in bad faith, but rather was "grossly negligent").
In Johnson, our Supreme Court granted the defendant's petition for allowance of appeal to determine whether "the Commonwealth's misrepresentation of physical evidence in [the defendant's] first trial bar[s] retrial on double jeopardy grounds, notwithstanding the trial court's finding that the Commonwealth's misconduct was unintentional?" Johnson, 231 A.3d at 816. Ultimately, the Johnson Court concluded that the Commonwealth made "almost unimaginable mistakes," in conflating two different pieces of evidence and the results of DNA tests performed on that evidence prior to and during trial. Id. at 826. The Court also found that although the mistakes were unintentional, they were "strongly suggestive of a reckless disregard for consequences and for the very real possibility of harm stemming from the lack of thoroughness in preparing for a first-degree murder trial." Id. at 827 (citation omitted). Therefore, the Court held that double jeopardy barred the defendant from being retried. Id. at 827-28. Following Johnson, this Court held that a Brady violation will not bar retrial on double jeopardy grounds where "[t]he prosecutor's error . . . does not rise to the level of the 'almost unimaginable' error in Johnson[,]" and the record did not establish that "the prosecution engaged in overreaching or attempted to subvert justice." King, 271 A.3d at 450 (citation omitted).
Subject to certain exceptions, evidence of other crimes committed by a defendant is generally inadmissible at trial. See Pa.R.Crim.P. 404(b)(1); Commonwealth v. Strong, 825 A.2d 658, 665 (Pa. Super. 2003). However, "[f]or double jeopardy purposes, unfairly prejudicial statements by witnesses generally are not chargeable to the prosecuting attorney, especially when they are unexpected and made on cross-examination." Johnson, 231 A.3d at 827 n.14; see also Commonwealth v. Graham, 109 A.3d 733, 736-38 (Pa. Super. 2015) (concluding that the prosecutor did not engage in misconduct where the defendant's wife mentioned the defendant engaged in sexual misconduct unrelated to the charged offenses because "[t]he prosecutor did not ask, directly or indirectly, about any unrelated criminal conduct"). Following Johnson, this Court also concluded that the Commonwealth's introduction of previously excluded evidence will not bar retrial, where the Commonwealth did not engage in reckless overreaching. See Commonwealth v. Hill, 1267 EDA 2022, 2023 WL 140340, at *4-5 (Pa. Super. filed Jan. 10, 2023) (unpublished mem.) (prosecutor asked the detective why the police began investigating the defendant, and the detective testified that he identified the defendant from surveillance footage, in violation of the trial court's order granting the defendant's motion in limine which precluded that detective from offering identification evidence based on the surveillance footage).
We may cite to non-precedential decisions of this Court filed after May 1, 2019, for their persuasive value. See Pa.R.A.P. 126(b).
Here, at trial, Ms. Bair testified that on the night of October 27, 2017, there was a confrontation between two groups of people in the parking lot of a Turkey Hill convenience store. See N.T. Trial, 5/14/21, at 453, 460-61. Ms. Bair stated that Appellant arrived a few minutes later and that he was angry and red faced. See id. at 462. ADA Wade asked Ms. Bair if Appellant said anything, and she responded that Appellant threatened to choke the women with Ms. Bair and was yelling "a lot of, . . . angry stuff." See id. at 462-63. She continued, "[a]nd in that time that's when he choked up [Quetesha Payne] because she was having words back with them. It was really about them at the moment. And he choked her up." See id. at 463. ADA Wade then asked Ms. Bair about whether she heard if Appellant and Ernest Talton said anything to each other during this confrontation. See id. Appellant did not immediately object to the statement about the choking incident, but the trial court called a sidebar. See id. The trial court asked if a cautionary instruction about prior bad acts was necessary. See id. at 463-64. Appellant requested a mistrial on two grounds: (1) Ms. Bair's statement that he had choked a woman was a prejudicial and inadmissible prior bad act, and (2) the Commonwealth violated its continuing duty of discovery because it failed to disclose that Ms. Bair's new statement about Appellant choking or grabbing Ms. Payne. See id. at 464-501. The trial court granted the motion for mistrial. See id. at 501-02.
At the evidentiary hearing on Appellant's motion to bar retrial, ADA Wade testified that he and Detective Sergeant Whiteford met with Ms. Bair on May 10, 2021, to prepare her to testify at trial. See N.T. Hr'g, 9/16/21, at 10-12. ADA Wade explained that Ms. Bair mentioned several facts for the first time, including that Appellant had choked Ms. Payne during the confrontation in the parking lot. See id. at 23-24, 46-47. ADA Wade instructed Ms. Bair that during her testimony she had to tell the truth and not mention the first trial or any other bad acts by Appellant. See id. at 24-26. On May 14, 2021, the day Ms. Bair was scheduled to testify, ADA Wade briefly met with Ms. Bair and reminded her not to mention the prior trial, not to mention Appellant's other bad acts, and to tell the truth. See id. at 36-38.
After the Commonwealth informed Appellant that Ms. Bair had brought up new information in her interview, Detective Sergeant Whiteford prepared a supplemental report of the interview. See id. at 28-31. Ms. Bair's statement that Appellant choked Ms. Payne is not in that supplemental report. See id. at 32-35. ADA Wade explained that he did not ask Detective Sergeant Whiteford to revise the report to add the choking incident or Ms. Bair's other statements that were not included because he believed they were not relevant and did not plan to introduce them at trial. See id. at 34-35, 49-50, 53-55.
Appellant marked the supplemental report as Exhibit D-1. See N.T. Hr'g, 9/16/21, at 30-31. This exhibit is not included in the certified record. Additionally, we note that numerous documents in the electronic certified record are distorted or are illegible. See, e.g., Criminal Compl., 2/16/18; Waiver of Arraignment, 5/8/18; Pro Se Mot. for Discovery/Transcripts, 8/16/19. Although the omission of Exhibit D-1 and the distorted documents in the certified record does not impede our review, we remind counsel that, the "[a]ppellant has the responsibility to make sure that the record forwarded to an appellate court contains those documents necessary to allow a complete and judicious assessment of the issues raised on appeal." Commonwealth v. Wint, 730 A.2d 965, 967 (Pa. Super. 1999) (citations and quotation marks omitted); see also Pa.R.A.P. 1921, Note (stating that "[u]ltimate responsibility for a complete record rests with the party raising an issue that requires appellate court access to record materials" (citation omitted)).
In its opinion and order, the trial court addressed whether the Commonwealth acted intentionally or reckless as follows:
[T]here is no evidence of record to suggest that any lack of disclosure; by the attorneys for the Commonwealth resulted from any intentional, willful, or reckless conduct, as opposed to mere inadvertence.
Most importantly, it must be recognized that the mistrial granted in this matter, upon [Appellant's] motion, did not pertain to any purported discovery violations. More specifically, the court granted a mistrial in this matter because the jury was presented with testimony regarding a purported prior bad act allegedly committed by [Appellant] some time before, and at a different location, from the homicide.
In assessing this claim, as noted above, the court finds that [ADA] Wade credibly testified that: he did not intend to introduce this evidence at trial; he admonished Ms. Bair not to present this testimony at trial; he did not elicit such testimony; he was surprised by such testimony; and, he did not seek to prejudice [Appellant's] right to a fair trial. [ADA] Wade further credibly testified that the Commonwealth has received no benefit from the award of [Appellant's] motion for a mistrial in this matter.
Accordingly, based upon the totality of the evidence presented, it is clear to this court that the introduction of the challenged testimony was solely the result of an unexpected "blurt out" on the part of a lay witness, despite the reasonable attempts of the attorneys for the Commonwealth to prevent such. The court finds that the record in this matter is devoid of any evidence that the Commonwealth acted in an intentional or reckless manner. The court further finds that the record in this matter is devoid of any evidence of prosecutorial overreaching which, in turn, implicates some sort of conscious act or omission. Accordingly, the double jeopardy bar of retrial is not warranted in this matter. Rather, this court correctly granted [Appellant's] motion for a mistrial upon the inadvertent admission of the prejudicial prior bad acts evidence. As the result thereof, [Appellant] will receive the benefit of a new trial untainted by such evidence.Trial Ct. Op. & Order at 15-16 (footnotes omitted and some formatting altered); see also id. at 5 (concluding that ADA Wade's testimony at the September 16, 2021 evidentiary hearing was credible).
Based on our review, we conclude the record supports the trial court's credibility determinations and legal conclusions that the Commonwealth's actions were not intentionally or recklessly undertaken to deprive Appellant of a fair trial. See King, 271 A.3d at 443. Further, we agree with the trial court and adopt its reasoning in concluding that Ms. Bair's statement about the choking incident was not Brady material nor did the Commonwealth violate Brady, or Pa.R.Crim.P. 573. See Trial Ct. Op. & Order at 8-15. Additionally, the trial court credited ADA Wade's testimony that he did not intentionally conceal evidence which he knew to be material with the intent to deprive Appellant of a fair trial. Compare Smith, 615 A.2d at 322 with Adams, 177 A.3d at 373-74. Accordingly, on this record, we conclude that double jeopardy does not bar retrial with respect to Ms. Bair's statement about the choking incident made during her witness preparation. With respect to the questioning of Ms. Bair, the record reflects that ADA Wade did not ask Ms. Bair any questions that directly or indirectly related to Appellant's other criminal conduct. See Graham, 109 A.3d at 736-38. Therefore, we agree with the trial court that there was no intentional prosecutorial misconduct for double jeopardy purposes. See Byrd, 209 A.3d at 353-54; Adams, 177 A.3d at 371-72.
Further, applying the Johnson standard, we find that the Commonwealth's actions do not reflect a conscious disregard for the substantial risk that Appellant would be deprived of a fair trial. See Johnson, 231 A.3d at 826. Accordingly, the trial court's finding that the Commonwealth did not act recklessly when it failed to disclose Ms. Bair's statement about the choking incident is supported by the record and pertinent legal authority. See Trial Ct. Op. & Order at 15-16. As for the Commonwealth's witness preparation and trial examination of Ms. Bair, the trial court found that the Commonwealth made reasonable attempts to prevent the witness from testifying about Appellant's prior bad acts, but the witness's statements were unexpectedly "blurt[ed] out." See Trial Ct. Op. & Order at 16. Our review concludes that the record supports the trial court's determination that the Commonwealth did not engage in any reckless overreaching. See Krista, 271 A.3d at 474; King, 271 A.3d at 450; Hill, 2023 WL 140340 at *5. For these reasons, we affirm the trial court's order denying Appellant's motion to bar retrial.
Order affirmed. Case remanded for retrial. Jurisdiction relinquished.
P.J.E. Stevens joins the memorandum.
Judge Stabile concurs in the result.
Judgment Entered.
June 27, 2022
Re: Wilberto Melendez
Cp Cr No: 2279-2018
Superior Cr No: 486 MDA 2022
Index of Opinion
1. Index of Opinion
2. Order of the Court
3. Opinion and Order
ORDER
Appellant/Defendant, by Notice of Appeal filed on March 21,2022, has appealed from the order entered on March 2,2022, denying Appellant's Motion to Dismiss and Bar Retrial. The reasons for this court's rulings are contained in the Opinion and Order entered on March 2, 2022. This court relies on said documents for compliance with Rule 1925(a) of the Pennsylvania Rules of Appellate Procedure. As such, said documents are attached hereto.
MERRILL M. SPAHN, JR., JUDGE
[*] Former Justice specially assigned to the Superior Court.