Commonwealth v. Byrd

209 A.3d 351

COMMONWEALTH of Pennsylvania, Appellant

v.Al-Tariq Sharif Ali BYRD

No. 468 WDA 2017

Superior Court of Pennsylvania.

Argued December 4, 2018

Filed April 29, 2019

Reargument Denied July 8, 2019

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.

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 firearm¹ 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.² 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:

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

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