Opinion
66 EDA 2020 67 EDA 2020 68 EDA 2020 69 EDA 2020 70 EDA 2020 J-S02044-22
04-25-2022
COMMONWEALTH OF PENNSYLVANIA v. ERIC TORRES Appellant COMMONWEALTH OF PENNSYLVANIA v. ERIC TORRES Appellant COMMONWEALTH OF PENNSYLVANIA v. ERIC TORRES Appellant COMMONWEALTH OF PENNSYLVANIA v. ERIC TORRES Appellant COMMONWEALTH OF PENNSYLVANIA v. ERIC TORRES Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered October 17, 2019 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0011169-2013, CP-51-CR-0011170-2013, CP-51-CR-0011171-2013,
CP-51-CR-0011172-2013, CP-51-CR-0011173-2013
BEFORE: OLSON, J., KING, J., and McCAFFERY, J.
MEMORANDUM
MCCAFFERY, J.
Eric Torres (Appellant) filed these consolidated appeals from the orders entered in the Philadelphia County Court of Common Pleas denying his motion to bar prosecution under the double jeopardy clause. Appellant argues the trial court erred or abused its discretion when it determined the Commonwealth's misconduct, which warranted the court's declaration of a mistrial, was not intended to prejudice Appellant or deny him a fair trial. Further, he contends that even if the Commonwealth's reckless action was unintentional, it evidenced such a deliberate indifference to trial preparation as to establish the functional equivalent of intentional misconduct. For the reasons below, we affirm.
On January 7, 2020, this Court granted Appellant's petition to consolidate the above-captioned appeals. See Order, 1/7/20.
See U.S. CONST. amend. V; PA. CONST. art. 1 § 10.
A detailed recitation of the facts underlying Appellant's arrest and conviction were provided by this Court in a prior appeal, and we need not reiterate them herein. See Commonwealth v. Torres, 177 A.3d 263, 265-69 (Pa. Super. 2017), appeal denied, 189 A.3d 375 (Pa. 2018). Suffice it to say, on August 13, 2013, a Philadelphia police officer initiated a traffic stop of the car Appellant was driving. See id. at 265. When Appellant acted suspiciously, the officer requested he step out of the vehicle. Id. Instead, however, Appellant drove away and a high-speed chase ensued. Id. Appellant eventually crashed, but fled the scene on foot. Id. at 266. Soon thereafter, he was apprehended at a grocery store. Id. During a struggle to control Appellant, the officers observed he had a gun. Id. Moments later, a shot was fired, striking Philadelphia Police Officer Edward Davies in the abdomen. Id. at 267.
After Appellant was arrested, the police obtained a search warrant for his vehicle and his home. They recovered drugs and paraphernalia from both locations. See Torres, 177 A.3d at 268. Moreover, "[t]he search of [Appellant's] home produced a 9 mm Zoraki model gun[.]" Trial Ct. Op. 5/24/21, at 5. Appellant was charged over five dockets, but the cases were tried together. Following a jury trial, Appellant was convicted of multiple offenses, including assault of a law enforcement officer, persons not to possess a firearm, and possession with intent to deliver controlled substances. On July 8, 2015, the trial court sentenced Appellant to an aggregate term of 66 to 132 years' imprisonment.
The police also obtained a warrant for a second vehicle, but that search yielded no relevant evidence. See Torres, 177 A.3d at 276.
The charges at Docket CP-51-CR-011169-2013 involve the shooting of the Officer Davies, as well as firearm offenses. The charges at Dockets CP-51-CR-0011170-2013, CP-51-CR-0011171-2013, and CP-51-CR-0011172-2013 involve Appellant's assault of the other officers who apprehended him. Finally, the charges at Docket CP-51-CR-0011173-2013 concern drugs recovered from Appellant's car and home.
See 18 Pa.C.S. §§ 2702.1(a) and 6105(a)(1); 35 P.S. § 780-113(a)(30), respectively.
On direct appeal, Appellant argued, inter alia, that the trial court erred in denying his pretrial motion to suppress the evidence seized from his home because the affidavit in support of the search warrant was not supported by probable cause "that connecting evidence would be found at [his] home." Torres, 177 A.3d at 269. This Court agreed, concluding "police did not have probable cause to search [Appellant's] home[, ]" and therefore, Appellant was entitled to a new trial "without introduction of the evidence retrieved from [his] home." Id. at 275, 276. The Pennsylvania Supreme Court subsequently denied the Commonwealth's petition for allowance of appeal. See Torres, 189 A.3d 375.
We note Judge Moulton filed a concurring opinion to express his concern about the case law relied upon by the Majority. See Torres, 177 A.3d at 278 (Moulton, J. concurring). Nevertheless, he agreed that "the Commonwealth's affidavit of probable cause failed to establish a sufficient nexus between the crimes under investigation and the search proposed in the warrant." Id. (footnote omitted).
Upon remand, Appellant filed a motion in limine requesting, inter alia, that the trial court "exclude all evidence recovered from [his] home" in compliance with the Superior Court's ruling. Appellant's Motions in Limine, 8/20/19, at 2. During an August 22, 2019, pretrial hearing, the Commonwealth agreed that "[o]bviously, . . . all the evidence" from Appellant's home would be excluded at the retrial. See N.T., 8/22/19, at 30 (Commonwealth's attorney stating, "No problem with that."). The trial court subsequently entered an order granting Appellant's request to exclude all evidence recovered from his home. See Order, 8/23/19.
Appellant's retrial commenced with jury selection on September 10, 2019. Prior to the start of testimony on September 11th, Appellant's counsel - Jonathan Strange, Esquire - informed the court that the Commonwealth's exhibit list, which he received that morning, had "a couple of issues." N.T., 9/11/19 Excerpt, at 3. Namely, Attorney Strange noted that there were "10 or 11 things on [the] list that were . . . items taken from the house" and, therefore, subject to the Superior Court's suppression ruling. Id. at 4. Assistant District Attorney Edward Jaramillo (ADA Jaramillo) stated: "This is our discretion, obviously[.] We left them there because this is the original packet [but] it doesn't mean we're going to refer to them but we never know what issue may come up." Id. The trial court responded: "[T]hat's probably the answer I was expecting. Things that can't come in don't come in. I don't care what's marked as exhibits." Id.
Appellant was also represented by Stefanie Fennell, Esquire. Both attorneys were employed by the Defenders Association of Philadelphia.
This excerpt was attached as an exhibit to Appellant's October 2019 double jeopardy motion. See Appellant's Petition to Bar Prosecution as a Violation of Double Jeopardy, 10/9/19, Exhibit 2.
The following day, September 12, 2019, the Commonwealth called Philadelphia Police Officer Raul Ortiz to testify. Officer Ortiz was one of the officers involved in the struggle with Appellant at the grocery store. During direct examination, ADA Jaramillo intended to have Officer Ortiz identify the gun Appellant possessed on the day of the shooting. He approached Officer Ortiz with a gun, which he stated had been "cleared with the Sheriff." N.T., 9/12/19, at 83. ADA Jaramillo asked the officer if he recognized that gun, to which the officer replied, "Yes." Id. at 83-84. The trial court explained the sequence of events that transpired:
ADA Jaramillo first approached Officer Ortiz with the silver Zoraki model gun found in [A]ppellant's home which was banned from introduction by [the] Superior Court. ADA Jaramillo then went back to counsel['s] table and switched the silver Zoraki firearm for a black .45 Glock firearm which was confiscated from [A]ppellant at the store following the shooting of [the other officer]. This gun was then shown to Officer Ortiz who was about to describe for the jury how it gets jammed when court was halted, and the jury eventually dismissed. Counsel agreed that both guns were located and removed from the same box at the Commonwealth's counsel's table during the examination of Officer Ortiz.Trial Ct. Op. at 7, citing N.T., 9/12/19, at 87-106.
Attorney Fennell moved for a mistrial "with prejudice," arguing the silver gun displayed to the jury "was to be suppressed" and "both guns were visible to the jury" in the open evidence box on the Commonwealth's table. N.T., 9/12/19, at 87, 100. She emphasized that the defense had expressed concern about the Commonwealth's exhibit list before trial. Id. at 89-90. ADA Jaramillo acknowledged he "made a mistake" but insisted there was "nothing to suggest" that the silver gun had anything to do with Appellant. Id. at 91. He further assured the trial court: "There's testimony that will come out [that] there's only one gun. We've always made that clear, and it was my mistake." Id. at 92. ADA Jaramillo requested the court provide a curative instruction to the jury. Id.
After a brief recess, and further argument by counsel, the trial court issued the following ruling from the bench:
In this case the gun was shown to Officer Ortiz. The gun is a silver gun. It was taken from [Appellant's] house. The Superior Court overturned the previous conviction because the Superior Court ruled that the evidence in that house should not have been allowed in and was so prejudicial as to warrant the overturning of
the verdict. So, the case came back for a second trial because of that.
As a result of that decision, and as a result of what occurred today, what I find is that there was an error made by the prosecution, an inadvertent error of taking the wrong gun and showing it to the officer.
However, by doing that, . . . the silver gun from [Appellant's home] is now in front of the jury. And while I could give a curative instruction to the jury to say to disregard it, they have seen two guns.
And since that gun, specifically from [Appellant's home] can't come in, the only gun that's coming in, the only . . . ballistics evidence that's coming in, is the gun that was taken from [Appellant] after he allegedly shot Officer Davies, which is what he's on trial for. No other ballistics evidence is coming in.
* * *
So, in view of that, and in view of the fact that we have really just started the trial, . . . I believe that in the interest of making sure that this record is completely clean, and that there are no issues about the multiple weapons, and the issues of what the defense can do or not do in terms of a proper defense for [Appellant], I'm going to declare a mistrial. But I am not finding that this was intentional.
* * *
There's no reason to think that this was not an inadvertent error, especially after this case had just started, one officer was testifying about identifying this.
And I think a curative instruction could certainly help, but in an abundance of caution to make sure there's no issues and [Appellant] gets a fair trial, which is what he's entitled to as any other defendant is, I'm going to declare a mistrial. But I am not finding that double jeopardy is in any way implicated.N.T., 9/12/19, at 107-09. Thereafter, the court scheduled Appellant's retrial for October 29, 2019.
On October 9, 2019, Appellant filed a petition seeking to bar his prosecution as a violation of double jeopardy. He asserted, inter alia, that: (1) the Commonwealth's error was not inadvertent, as it was warned "on several occasions to be careful not to admit inadmissible evidence[;]" (2) the Commonwealth "chose to leave both guns on the witness stand" for the jury to see; and (3) the Commonwealth argued during the first trial that Appellant's "lifestyle . . . made him a person capable" of assaulting police officers. Appellant's Petition to Bar Prosecution as a Violation of Double Jeopardy, 10/9/19, at 5-7 (unpaginated). The trial court conducted a hearing on Appellant's double jeopardy claim on October 17th. Following argument by both counsel, the court denied Appellant's motion as frivolous, and noted that the retrial would proceed as scheduled on October 29th. See N.T., 10/17/19, at 20.
On October 21, 2019, Appellant petitioned this Court to review the trial court's determination that his double jeopardy claim was frivolous, and to stay the October 29th retrial. See Appellant's Petitions for Review of a Double Jeopardy Frivolous Determination and Application for Extended Stay of Re- Trial, 10/21/19, at 8 (unpaginated). Because he filed a separate petition for each trial court docket, Appellant also sought to consolidate the cases. See Appellant's Petition to Consolidate, 10/24/19. Subsequently, on November 18, 2019, Appellant filed petitions to amend his petition for review to update proceedings that had occurred in the trial court. See Appellant's Petitions to Amend, 11/18/19, at 1 (unpaginated). Appellant explained that his third trial began on October 29th, but that another mistrial was granted on October 31st, after "it was brought to the Court's attention by one of the jurors that 5-6 jurors were discussing aspects of the case." Id. Trial was once again rescheduled to begin on March 23, 2019.
Pursuant to Pennsylvania Rule of Criminal Procedure 587, when a trial court denies a pretrial motion to dismiss based on double jeopardy, it must make a "specific finding" as to whether the motion is frivolous. See Pa.R.Crim.P. 587(B)(4). If the court determines it is frivolous, it must inform the defendant of his right to petition this Court for a review of that determination within 30 days. See Pa.R.Crim.P. 587(B)(5); see also Pa.R.A.P. 1311(a)(3) ("An appeal may be taken by permission from an interlocutory order . . . that determined that a defendant's motion to dismiss on the basis of double jeopardy is frivolous.").
On January 7, 2020, this Court entered a per curiam order granting Appellant's petitions for review, amended petitions for review, and petition to consolidate the appeals. Order, 1/7/20. Thereafter, Appellant complied with the trial court's directive to file a Pa.R.A.P. 1925(b) statement of errors complained of on appeal.
Appellant raises the following two issues for our review:
1. Did not the lower court err and abuse its discretion by denying the motion to bar prosecution as a violation of Double Jeopardy, as the Commonwealth's misconduct was intentional, and was intended to prejudice [Appellant] and deny him a fair trial?
2. Should this Court find that the Commonwealth's misconduct was not conscious and calculated, should it nonetheless find that such deliberate indifference to the preparation and presentation of trial evidence (given the numerous notices and warnings it had received referring to the inadmissibility of suppressed evidence) is nonetheless recklessness that is the functional equivalent of intentional misconduct and is
prosecutorial overreaching meriting a double jeopardy bar of retrial?Appellant's Brief at 3.
Both of Appellant's issues on appeal challenge the trial court's denial of his motion to dismiss based upon double jeopardy concerns. Our review is guided by the following:
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. Sanchez, 262 A.3d 1283, 1288 (Pa. Super. 2021) (citations omitted).
"Under both the federal and state constitutions, double jeopardy bars retrial where the prosecutor's misconduct was intended to provoke the defendant into moving for a mistrial." Commonwealth v. Chmiel, 777 A.2d 459, 463 (Pa. Super. 2001). However, the Pennsylvania Supreme Court has held that double jeopardy protection under the Pennsylvania Constitution also includes circumstances "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, the Supreme Court concluded the prosecutor's misconduct - which included the "[d]eliberate failure to disclose material exculpatory physical evidence during a capital trial, intentional suppression of the evidence while arguing in favor of the death sentence on direct appeal, and the investigation of [a state trooper's] role in the production of the evidence rather than its own role in the suppression of evidence" - demonstrated misconduct intended to prejudice the defendant and deny him a fair trial. Id. at 324, 325. See also Commonwealth v. Martorano, 741 A.2d 1221, 1223 (Pa. 1999) (holding prosecutorial misconduct met the "Smith standard" when "prosecutor acted in bad faith throughout the trial, consistently making reference to evidence that the trial court had ruled inadmissible, continually defying the trial court's rulings on objections, and . . . repeatedly insisting that there was fingerprint evidence linking [defendants] to the crime when the prosecutor knew for a fact that no such evidence existed").
Recently, in Commonwealth v. Johnson, 231 A.3d 807 (Pa. 2020), the Supreme Court further expanded the double jeopardy protections under the Pennsylvania Constitution to include prosecutorial overreaching. The Court opined:
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 mentioned above 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. Notably, however, this Court has explained, albeit in a different context, that reckless conduct subsumes conscious behavior.Id. at 826 (citations omitted).
In Johnson, during the defendant's capital trial for first-degree murder, the Commonwealth "proceeded on the understanding that there was only one baseball cap involved [in the incident] and that it contained both [the victim's] blood and [the defendant's] DNA." Johnson, 231 A.3d at 811. However, in fact, there were two baseball caps at the scene of the shooting - each of which was placed on separate property receipts - one with the victim's blood, and the other with the defendant's DNA. See id. at 813. Following discovery of the discrepancy and the defendant's request for collateral relief, "the Commonwealth admitted that it had made substantial errors during the trial" and agreed the defendant was entitled to a new trial. Id. at 815. The trial court subsequently denied the defendant's motion to bar retrial on double jeopardy grounds, and this Court affirmed. Id. at 816.
However, the Supreme Court disagreed. It explained that while the prosecutor did not act "intentionally or with a specific purpose to deprive [the defendant] of his rights, the record [was] consistent with [the trial court's] characterization that [the prosecutor's] mistakes were 'unimaginable.'" Johnson, 231 A.3d at 827. The Court opined that this description was
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. There is little dispute that those consequences include "prejudice [to] the defendant to the point of the denial of a fair trial." That being the case, Article I, Section 10 immunizes [the defendant] from being put in jeopardy a second time for the crimes with which he was charged in connection with the killing of [the victim].Id. at 827-28 (citations and footnote omitted).
With this background in mind, we review Appellant's claims on appeal. Appellant first argues the trial court erred and abused its discretion when it found ADA Jaramillo's conduct - in displaying a previously suppressed firearm to the jury - was "an inadvertent mistake." Appellant's Brief at 16. Rather, Appellant describes the ADA's actions as "flaunt[ing] two guns before the jury in complete disregard of the admonitions of defense counsel and the court." Id. at 17. Indeed, he maintains: "The very act of bringing two guns into the courtroom . . . suggests that this was not a mere mistake, and instead was an act of intentionally defying the orders of the trial court and [the Superior] Court." Id. Appellant emphasizes the Commonwealth's closing argument in his first trial, which attempted to paint him "a big-time drug dealer" from the streets who was "capable of committing the assault on the officers." Id. at 18. Accordingly, he insists the Commonwealth's misconduct "met the standards . . . for intentional prosecutorial overreaching that was designed to prejudice a fair trial, and retrial should be barred." Id. at 23.
In his second argument, Appellant contends that, even if we conclude "the Commonwealth's misconduct was not conscious and calculated, [we] should . . . find that such deliberate indifference to the preparation and presentation of evidence . . . is nonetheless reckless [such that it constitutes] prosecutorial overreaching meriting a double jeopardy bar of retrial." Appellant's Brief at 24. Relying on Johnson, Appellant insists that ADA Jaramillo's "conscious decision to bring both guns into the courtroom" demonstrated either a deliberate attempt to portray Appellant as a dangerous individual or "evidenced deliberate indifference in the preparation of his case and to the trial court's order regarding the inadmissibility of trial evidence." Id. at 29. He maintains "[e]ither way, a retrial should be barred." Id.
Upon our review of the record, the parties' briefs, and the relevant statutory and case law, we conclude the trial court thoroughly addressed and properly disposed of Appellant's claims in its May 24, 2021, opinion. See Trial Ct. Op. at 15-22 (discussing case law concerning double jeopardy protections, including recent cases applying the Johnson standard, and finding "no resemblance between this case and that described by our Supreme Court in Johnson[ - ]" finding that, in the present case, "an experienced prosecutor made a mistake [and] picked up the wrong gun[;] "there was "no overreaching[, ] recklessness[, or] attempt to disadvantage [A]ppellant or compel him to seek a mistrial[;]" Appellant's "identification was not in doubt, only his intent[;]" and that the "Commonwealth's errors in this case were negligent rather than reckless or intentional"). Our review reveals the trial court's factual findings are supported by the record, and its legal conclusion are correct; thus, we rest on its well-reasoned bases. See Sanchez, 262 A.3d at 1288.
We direct that a copy of the trial court's May 24, 2021, opinion be filed along with this memorandum, and attached to any future filings of this memorandum.
Orders affirmed. Case remanded for further proceedings. Jurisdiction relinquished.
Judgment Entered.