Commonwealth v. Krista

271 A.3d 465

COMMONWEALTH of Pennsylvania

v.Richard KRISTA, Appellant

No. 446 WDA 2021

Superior Court of Pennsylvania.

Filed: February 4, 2022

Argued December 14, 2021

Reargument Denied April 13, 2022

Stephanie M. Noel, Pittsburgh, for appellant.

Kenneth J. Haber, Pittsburgh, for appellant.

Francesco L. Nepa, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.

BEFORE: BENDER, P.J.E., BOWES, J., and PELLEGRINI, J.^*

OPINION BY BOWES, J.:

Richard Krista appeals the denial of his second motion to bar retrial based upon double jeopardy. We affirm.

This Court summarized the history of this case as follows on Appellant's appeal from the denial of his first motion to bar retrial based upon double jeopardy:

Appellant was charged with two counts of homicide pertaining to his involvement in the shooting of two men, which took place on May 11, 2012, behind a housing project in West Mifflin. Appellant's first trial, which concluded on October 10, 2013, ended in a mistrial due to a hung jury. His second trial also ended in a mistrial on January 23, 2014, due to a hung jury. Appellant was tried a third time. However, during defense counsel's cross-examination of a police detective, the Commonwealth objected to a series of questions and suggested that Appellant can take the witness stand and explain what happened on the night in question. Appellant moved for a mistrial, and the trial court gave a curative instruction the following day. On June 5, 2014, at the conclusion of the trial, Appellant was convicted of two counts of first-degree murder. On July 29, 2014, Appellant was sentenced to serve two consecutive terms of life imprisonment without parole. Appellant then filed a direct appeal. On August 9, 2016, this Court vacated Appellant's judgment of sentence and remanded for a new trial after determining the prosecutor impermissibly commented on Appellant's decision not to testify, in violation of Appellant's Fifth Amendment rights, and the misconduct was not rendered harmless by the circumstances under which it was made, or by the trial court's delayed curative instruction. Commonwealth v. Krista [("Krista I ")], 156 A.3d 332, 174 WDA 2015 (Pa. Super. 2016) (unpublished memorandum at 26).

Upon remand, Appellant filed a motion to bar retrial and dismiss the charges. The trial court held a hearing and denied the motion on December 8, 2017. Pursuant to Pa.R.Crim.P. 587(b)(4), the trial court stated in its order that Appellant's motion was not frivolous.

Commonwealth v. Krista ("Krista II "), 209 A.3d 1068 (Pa.Super. 2019) (unpublished memorandum at 1-2). This Court affirmed and remanded for further proceedings, holding that "the error in this case does not approach the egregious and intentional nature of the conduct required to bar a retrial." Id . (unpublished memorandum at 10). Appellant's petition for allowance of appeal was denied by our Supreme Court. See Commonwealth v. Krista ("Krista III "), 654 Pa. 580, 216 A.3d 1035 (2019) (per curiam order).

Back in the trial court, Appellant filed an omnibus pretrial motion which included another request to bar retrial based upon double jeopardy. The underpinning of the new motion was our Supreme Court's decision in Commonwealth v. Johnson , ––– Pa. ––––, 231 A.3d 807 (2020), in which the Court held that reckless prosecutorial misconduct, in addition to intentional conduct, may bar a retrial. The trial court denied Appellant's motion, holding that the prosecutor's misconduct did not rise to the level of reckless sabotage that barred retrial under Johnson . See Order, 3/16/21, at unnumbered 2. The trial court subsequently entered another order denying the motion, this time stating its finding that the motion was not frivolous and advising Appellant that its determination was thus immediately appealable as a collateral order. See Order, 3/26/21. See also Pa.R.Crim.P. 587(B)(6) ("If the judge denies the motion but does not find it frivolous, the judge shall advise the defendant on the record that the denial is immediately appealable as a collateral order.").

Appellant filed a timely notice of appeal, and both he and the trial court complied with Pa.R.A.P. 1925. Appellant presents the following questions for our determination:

Did the trial prosecutor engage in reckless misconduct by impermissibly commenting on [Appellant]'s silence while challenging him to "take the stand and explain what happened" such that the double jeopardy provisions of Article I, Section 10 of the Pennsylvania Constitution bar a fourth trial in this case? If so, did the trial court err by failing to dismiss the charges against [Appellant] and bar retrial?

Appellant's brief at 5.

We begin with our standard of review:

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) (cleaned up).

The Double Jeopardy Clauses of both the federal and Pennsylvania constitutions "protect a defendant from repeated criminal prosecutions for the same offense." Commonwealth v. Byrd , 209 A.3d 351, 353 (Pa.Super. 2019) (cleaned up). The purpose of this prohibition against double jeopardy is to prevent the government from making "repeated attempts to convict the accused, thereby subjecting him to embarrassment, expense, and ordeal and compelling him to live in a continued state of anxiety and insecurity as well as enhancing the possibility that even though innocent he may be found guilty." Commonwealth v. Wilson , 227 A.3d 928, 936 (Pa.Super. 2020) (cleaned up).

However, subjecting a defendant to a second trial following a mistrial or a successful appeal does not ordinarily offend double jeopardy protections. "Dismissal of criminal charges punishes not only the prosecutor[,] but also the public at large, since the public has a reasonable expectation that those who have been charged with crimes will be fairly prosecuted to the full extent of the law." Commonwealth v. Burke , 566 Pa. 402, 781 A.2d 1136, 1144 (2001) (cleaned up). Accordingly, "dismissal of charges is an extreme sanction that should be imposed sparingly," only in the most blatant and egregious circumstances. Id .

It has long been the case under both state and federal law that a subsequent trial is prohibited when a mistrial resulted from prosecutorial overreaching in the form of intentional misconduct designed to provoke a mistrial. See , e.g. , Byrd , supra at 353. In Commonwealth v. Smith , 532 Pa. 177, 615 A.2d 321 (1980), our Supreme Court ruled that Pennsylvania's constitution provides more extensive double jeopardy protections than its federal counterpart, holding that a retrial is impermissible "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." Id . at 325. Nonetheless, " Smith did not create a per se bar to retrial in all cases of intentional prosecutorial overreaching. Rather, the Smith court primarily was concerned with prosecution tactics, which actually were designed to demean or subvert the truth seeking process." Commonwealth v. Lambert , 765 A.2d 306, 327 (Pa.Super. 2000) (cleaned up).

Our High Court in Johnson again augmented the prevailing law, ruling that the Pennsylvania constitution's double jeopardy protections also prohibit retrial if the prosecution acted recklessly. Specifically, the Johnson 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.

Johnson , supra at 826 (citation and emphasis omitted). However, the Court made it clear that it is still true that not every instance of error by the Commonwealth requires a finding that retrial is barred:

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.

Id . at 826 (citation omitted, emphasis in original).

The Court explained that prosecutorial overreaching is conduct that reflects a fundamental breakdown in the judicial process where "the prosecutor, as representative of an impartial sovereign, is seeking conviction at the expense of justice." Id . While the "overreaching prerequisite" was abandoned in federal jurisprudence, it remains "firmly entrenched" in Pennsylvania's double jeopardy law. Id . at 824 (cleaned up).

An examination of the application of the law to the facts of Johnson is instructive. In Johnson , a gunman...