Commonwealth v. King

2021 PA Super 243

COMMONWEALTH OF PENNSYLVANIA Appellant v. JEROME KING

COMMONWEALTH OF PENNSYLVANIA Appellant v. ESHEEM HASKINS

Nos. 1812 EDA 2020, 1813 EDA 2020

No. J-A21019-21

Superior Court of Pennsylvania

December 14, 2021

Appeal from the Order Entered August 25, 2020 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s) CP-51-CR-0706191-2005, CP-51-CR-0706192-2005

BEFORE: KUNSELMAN, J., NICHOLS, J., and KING, J.

OPINION

NICHOLS, J.

In these consolidated cases, ^[1] the Commonwealth appeals from the August 25, 2020 order granting the motion to dismiss and bar retrial filed by Jerome King and Esheem Haskins (collectively Appellees). The Commonwealth asserts that although the prosecutor in this matter committed an error prior to trial the remedy should be a new trial rather than dismissal of the charges based on double jeopardy. After review, we reverse the order dismissing the charges against Appellees based on double jeopardy and remand for a new trial.

The trial court summarized the relevant facts and procedural history underlying the instant appeals as follows:

On February 2, 2005, Nathaniel Giles (Giles) was shot to death outside of a Chinese restaurant in Philadelphia, PA. At the time, Giles was cooperating with federal authorities in the murder investigation of ten-year[-]old Faheem Thomas-Childs (Thomas-Childs). Giles told federal authorities that the gun used in Thomas-Childs' murder was purchased from Jerome King (King). Two civilians, minors at the time, witnessed Giles' murder outside of the restaurant.

The eyewitnesses were inside of the restaurant waiting for their food order when they saw Giles engaged in a conversation with Khalief Alston (Alston) just outside the restaurant. While Giles and Alston talked, a car stopped for an unusually long time at the stop sign by the restaurant then drove away. A short time later, two men approached Giles from the direction the car had driven and one of the men [put] a gun to the back of Giles' head and shot him. The shooter stood over [Giles'] body and shot Giles again before the two men fled.

The eyewitnesses consistently identified King as the shooter and Esheem Haskins (Haskins) as the accomplice in photo arrays during the investigation and at trial. During the June 2006 trial, some of the eyewitnesses' testimony was inconsistent with their police statements and inconsistent with each other. One witness did not mention an accomplice in the police statement and described the shooter as six feet to six feet and three inches tall, while King is only five feet and seven inches tall. This witness denied providing detectives with the shooter's height.

The other witness testified to watching Haskins hand a gun to King as they approached Giles but later changed her testimony denying she witnessed that interaction. This witness also changed her testimony that she heard Haskins yell "Shoot him. Shoot him," to King, instead claiming that she could not hear what was being said outside of the restaurant.

On March 11, 2005, Khalief Alston and Ernest Cannon (Cannon) were arrested for an unrelated homicide. The same day, Alston gave a statement (March 11 statement) to police regarding the unrelated murder, implicating Cannon as the murderer in that matter. Cannon also gave a statement that same day regarding the unrelated murder, . . . implicating Alston as the murderer in that matter. In the March 11 statement, Alston also identified Cannon, not King or Haskins, as Giles' killer claiming Cannon killed Giles for being a police informant.

On March 23, 2005, three letters were recovered from 2849 N. Taney Street (Alston's address) pursuant to a search warrant executed in connection to the unrelated murder. One of the letters recovered was handwritten by Alston (Alston letter) to an unidentified person. Part of the Alston letter read, "Ezel (i.e. Ernest Cannon) rocked Nate (i.e. Nathaniel Giles) for snitching on [L]em (i.e. Jerome King) too." This letter predated Alston's police statement because Alston was in custody when . . . his home was searched and the letters were discovered.

On May 6, 2005, King and Haskins were arrested for the murder of Nathaniel Giles. At trial, the Commonwealth argued that King and Haskins were motivated to kill Giles[] because he had implicated King as the supplier of the firearm used in the Thomas-Childs murder.

On September 1, 2005, Craig Lindsey (Lindsey) was arrested in an unrelated federal drug case. Initially, Lindsey was incarcerated in prison on State Road, Philadelphia, PA. In March 2006, while incarcerated at State Road, Lindsey came into contact with King. On April 23, 2006, based on conversations Lindsey allegedly had with King, Lindsey wrote a letter to the District Attorney's Office and was brought down to the Homicide Division of the Philadelphia Police Department where he gave a statement. Lindsey claimed that King told him that the gun used in the murder of Thomas-Childs was the one he gave to the shooter. When questioned at [the] King/Haskins trial about what expectations he had in providing this testimony with respect to his open federal drug case, Lindsey replied that he "ain't really know how it was going to affect it."

At the King/Haskins trial, Alston testified as a defense witness claiming that on the evening of Giles' murder he was walking with Cannon when they spotted Giles. Cannon, believing that Giles was a police informant, crossed the street and shot Giles in the back of the head before fleeing. On cross, it was revealed that Alston, Haskins, and King were part of the same gang and that Alston was loyal to them. Additionally, it was revealed that during the police investigation into an unrelated murder, Alston learned that Cannon had implicat[ed] him as the murderer in that unrelated investigation. The Commonwealth argued that Alston's allegation that Cannon [murdered Giles] was a recent fabrication [that] Alston created as retaliation for Cannon implicating him in the unrelated murder.

On June 23, 2006, King was convicted by a jury of murder of the first degree, criminal conspiracy, and violation of the Uniform Firearms Act, while Haskins was convicted of murder and conspiracy but was found not guilty of the violation of the Uniform Firearms Act. King was sentenced to life imprisonment on the murder charge and a consecutive twenty to forty years for the conspiracy charge with a concurrent five[-]year sentence for the firearms charge. Haskins was sentenced to life imprisonment on the murder charge with a consecutive twenty to forty years for the conspiracy charge.

Trial Ct. Op., 11/12/20, at 1-4 (record citations omitted).^[2]

Both King and Haskins filed post-sentence motions, and both were denied by operation of law. King and Haskins each filed a direct appeal. This Court affirmed Haskins' judgment of sentence on March 12, 2008. Commonwealth v. Haskins, 953 A.2d 599, 3303 EDA 2006 (Pa. Super. filed Mar. 12, 2008) (unpublished mem.) (Haskins I), appeal denied, 956 A.2d 432 (Pa. 2008). We affirmed King's judgment of sentence in a published opinion filed on October 17, 2008. Commonwealth v. King, 959 A.2d 405 (Pa. Super. 2008) (King I). King did not petition for allowance of appeal in our Supreme Court.

Appellees filed separate Post-Conviction Relief Act^[3] (PCRA) petitions, and on June 29, 2011, Appellees filed a joint memorandum of law alleging the Commonwealth committed a Brady^[4] violation with respect to the Alston letter. On July 5, 2011, the PCRA court agreed with Appellees that the Commonwealth committed a Brady violation and granted Appellees a new trial.

On July 22, 2011, the Commonwealth appealed the July 5, 2011 order granting Appellees a new trial. After review, in a consolidated appeal, our Court reversed the PCRA court's order and returned the matters to the PCRA court. Commonwealth v. Haskins, 60 A.3d 538 (Pa. Super. 2012) (Haskins II). Appellees petitioned for allowance of appeal to our Supreme Court, and those petitions were denied on October 29, 2013. Commonwealth v. Haskins, 78 A.3d 1090, 5 EAL 2013 (Pa. 2013); Commonwealth v. King, 78 A.3d 1090, 8 EAL 2013 (Pa. 2013). On remand, the PCRA court subsequently denied Appellees' PCRA petitions.

On November 26, 2013, Haskins filed a petition for writ of habeas corpus in federal district court, and following review, the district court denied Haskins' petition. See Haskins v. Folino, NO. 13-6901, 2017 WL 1397261 (E.D.Pa. Apr. 19, 2017). Haskins filed a timely appeal to the United States Court of Appeals for the Third Circuit.

The trial court summarized the subsequent procedural history as follows:

After over a decade of appeals, on November 8, 2018, the United States Court of Appeals for the Third Circuit decided Haskins' habeas petition and granted him a new trial after finding that the Pennsylvania [Superior Court in Haskins II] misapplied the Brady materiality standard, [and held] that suppressing the Alston letter was a Brady violation.^[5] On July 29, 2019 the PCRA court granted King a new trial based on the Third Circuit decision of Haskins' habeas petition.

As a result of the Third Circuit decision, King and Haskins both filed a Motion to Dismiss Based on the Double Jeopardy Clauses of the Pennsylvania and the United States Constitutions. In addition to claiming the prosecution should be barred based on the Alston letter Brady violation, King raised an additional Brady violation claim asserting that the Commonwealth failed to disclose Lindsey's possible status as a federal confidential informant at the time of Haskins' and King's trial.

In his Motion to Dismiss, King cited the opinion by the Honorable Paul S. Diamond in U.S. v. Wilcox, NO. 06-0445[, 2007 WL 2461820] (E.D.PA. Aug. 28, 2007), granting movant

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