Commonwealth v. Adams

177 A.3d 359

COMMONWEALTH of Pennsylvania

v.Jordan Timothy ADAMS, Appellant

No. 813 WDA 2016

Superior Court of Pennsylvania.

Argued May 9, 2017

Filed December 27, 2017

Elizabeth K. Feronti, Warren, for appellant.

Richard A. Hernan, Jr., Assistant District Attorney, Warren, for Commonwealth, appellee.

BEFORE: OLSON, J., SOLANO, J., and RANSOM, J.

OPINION BY SOLANO, J.:

Appellant Jordan Timothy Adams appeals from the order entered May 5, 2016, denying his motion to dismiss the charges against him on double jeopardy grounds. Also before this Court is Appellant's Motion to Strike Appendix A of the Commonwealth's Brief. We affirm the order of the trial court and deny Appellant's Motion to Strike.

On April 15, 2015, Appellant was charged with multiple crimes arising from the passing of counterfeit fifty-dollar bills at the Warren County Fair in August 2014.¹ Appellant's co-defendant, Christine Redding, was charged with similar crimes, including a charge of conspiring with Appellant to commit forgery. Redding later pleaded guilty to the criminal conspiracy charge, with the agreement that she would testify against Appellant.² Redding was subpoenaed to appear at Appellant's trial.

Appellant filed a motion for discovery on November 17, 2015. The request included, among other things, "[a]ny evidence favorable to the accused which is material either to guilt or to punishment, and which is in the possession of the attorney for the Commonwealth," and "[a]ll written or recorded statements, and substantially verbatim oral statements, made by co-defendants and by co-conspirators or accomplices, whether such individuals have been charged or not." Mot., 11/17/15, at ¶ A, K. The motion specified that the request was in accordance with Pa.R.Crim.P. 573, which governs discovery in a criminal case.

Prior to trial, Appellant's counsel followed-up on the discovery motion by sending an e-mail to the prosecutor in the case, Warren County First Assistant District Attorney Caleb Gnage. The e-mail requested "any recorded statements by [Appellant] or any of the co[-]defendants." See Appellant's Ex. 3 to Hr'g on Appellant's Mot. to Dismiss. Gnage responded that he would have a copy of "the DVD" available for Appellant's counsel to pick up, and that he would "comb [the] file" for required discovery. Id. Gnage had previously sent an e-mail to the state police requesting "all the audio/video recordings admitted into evidence" on Appellant's case. Commonwealth's Ex. 1 to Hr'g on Appellant's Mot. to Dismiss.

Appellant's jury trial began on June 12, 2016. The Commonwealth presented twelve witnesses who were vendors at the Warren County Fair and who had received counterfeit fifty-dollar bills on August 4, 2014.³ None of the vendors were able to positively identify Appellant at trial, and none testified that they had been able to identify Appellant in a photographic lineup when interviewed by the police. However, three of the vendors gave descriptions of a man with characteristics similar to Appellant, and two of the vendors testified that they received a counterfeit bill from a man with a neck tattoo. Appellant has such a tattoo. One of those vendors testified that he received a first counterfeit bill from a young woman, and the second from a young man who had a neck tattoo and a hat displaying the emblem of a marijuana leaf.⁴

State Trooper Jeffrey Osborne, the lead investigator on the case, testified that he was contacted by security for the fair and interviewed several vendors at the fair the next day, August 5, 2014.⁵ After contacting other officers who were investigating counterfeit cases, he interviewed several suspects in those cases who had passed counterfeit bills with the same serial numbers as those recovered at the fair. The information garnered from those interviews led Osborne to suspect that Appellant and Redding had conspired to pass bills at the fair.

Osborne testified that he interviewed Appellant twice. The first interview took place on April 27, 2015. It was audio recorded, but the recording was deleted when Osborne attempted to transfer the digital file to storage that same day. According to Osborne,⁶ Appellant initially denied any knowledge of or involvement with the crime, but ultimately confessed to passing four or five counterfeit bills at the fair, with someone named "Carla," and stated that he had purchased a hat with a marijuana leaf emblem. Appellant also said something to Osborne along the lines of "having a tattoo on his neck was not a good idea while committing a crime." N.T., 1/12/16, at 259.

During the second interview, on May 6, 2015, Appellant again confessed to Osborne, this time to passing three counterfeit bills at the fair. The second interview was also audio recorded, and portions of it were played at trial.

Osborne testified that he also interviewed Redding, but only once. When Appellant's attorney asked if that interview had been recorded, Gnage called a sidebar and informed the court that the interview of Redding would not have been recorded, as it was done during a polygraph examination. The prosecutor stated "she wouldn't have been video taped. And it's not the habit to video tape someone when they are under polygraph." N.T., 1/12/16, at 319. When questioning resumed, Osborne clarified that he interviewed Redding in jail, and that the interview was not recorded.⁷ Osborne testified that Redding was later interviewed by Corporal Brian Zeybel at the police barracks (referring to the polygraph examination), but that Osborne was not present during that interview.

Corporal Zeybel, whose job mainly entails conducting polygraph examinations, testified that he accompanied Trooper Osborne to the fair and assisted with interviewing witnesses. He testified that he also interviewed Redding.⁸ When asked on cross-examination whether there was a recording of the interview, Zeybel answered that there was. A sidebar conference was called, at which Appellant's counsel complained that she was not given a copy of the recording of the interview. Appellant's counsel requested the opportunity to review the recording of the interview that night. Appellant's counsel was given a copy of the video, and court was adjourned.

When Appellant's trial resumed the following day, Appellant moved for a mistrial. Appellant's counsel informed the court that the video in fact shows two interviews: (1) Zeybel's interview of Redding during the polygraph examination, and (2) Osborne interviewing Redding immediately afterwards. Gnage stated that he was unaware that Zeybel's interview had been recorded, as it was not indicated in the police report, and was unaware that Osborne had also interviewed Redding on that date, as this was also left out of the report.⁹ Appellant argued that the statements made by Redding during the interviews were favorable to Appellant and would have altered the defense strategy at trial. In response, Gnage stated, "I agree that we have absolutely no argument and this is a Brady¹⁰ violation. It's absolutely discoverable. It would change the nature of the defense." N.T., 1/13/16, at 6. The court granted the motion for a mistrial and dismissed the jury. Notably, Redding did not appear at the courthouse on either day of Appellant's trial.¹¹ The Commonwealth did not appeal the mistrial order.

On April 11, 2016, Appellant filed a motion to dismiss the charges. Appellant contended that prosecutorial misconduct warranted the dismissal because Trooper Osborne and Corporal Zeybel knew of the two recorded interviews of Redding and failed to provide them to Appellant or include them in the police report, and Gnage misled the court by stating that no such video existed. Appellant argued that the Commonwealth should be precluded from retrying Appellant, as it would violate his double jeopardy rights under the Fifth Amendment to the United States Constitution, and Article I, Section 10 of the Constitution of Pennsylvania.

In its answer, which was filed by Gnage, the Commonwealth asserted that the videos of Redding's statements to Osborne and Zeybel were not subject to mandatory disclosure under Pa.R.Crim.P. 573(B)(1),¹² but instead were subject to discovery pursuant to a court order under Pa.R.Crim.P. 573(B)(2)(a)(iii),¹³ and that their discovery had not been ordered by the court. The Commonwealth also argued that no prosecutorial misconduct had occurred, as the Commonwealth was not aware of the existence of the undisclosed recordings of the interviews and did not intentionally withhold any discoverable evidence from Appellant. According to the Commonwealth, the police "simply neglected" to communicate the existence of the recordings to the prosecutor, and did not act with the intention of causing prejudice to Appellant. See Resp. 5/2/16, at ¶ 9.

The Commonwealth attached to its answer a copy of the full 44–page police report authored in alternating portions by Osborne and Zeybel (and some other officers), which was given to the defense prior to trial. In a portion authored by Osborne, the report states that on May 12, 2015, Redding took a polygraph test, and "[a]ccording to Zeybel, Redding failed the polygraph test. The supplemental report from Cpl. Zeybel will be attached to this report when received. Reference supplemental report from Cpl. Zeybel for additional details."

Report at 36 (some capitalization omitted). The report does not mention Osborne's interview of Redding that day, or that either interview was recorded.

The supplemental polygraph report (authored by Zeybel, and incorporated at pages 37 through 39 of the police report) does not state that the examination was audio- or video-recorded. The supplemental report states that Redding told Zeybel that she had made plans to accompany Appellant to the fair in order to pass counterfeit bills, but "just prior to the scheduled trip[,] the car they were to use got a flat tire and Redding decided to back out of the planned scam," and "Redding ... believes [Appellant] did in fact come to Warren Co....