Commonwealth v. Lapish

1

COMMONWEALTH OF PENNSYLVANIA v. RYAN SCOTT LAPISH Appellant

No. 2690 EDA 2023

No. J-A20037-24

Superior Court of Pennsylvania

November 7, 2024

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

Appeal from the Order Entered October 2, 2023 In the Court of Common Pleas of Montgomery County Criminal Division at No(s) CP-46-CR-0004464-2020

Benjamin D. Kohler, Esq.

BEFORE: LAZARUS, P.J., PANELLA, P.J.E., and DUBOW, J.

MEMORANDUM

DUBOW J.

Appellant, Ryan Scott Lapish, appeals from the October 2, 2023 order of the Montgomery County Court of Common Pleas denying his motion to bar retrial based on double jeopardy. The court had previously granted Appellant a new trial based upon a typographical error in a text message introduced into evidence. After careful consideration, we affirm the trial court's order and remand for new trial.

The following are the relevant facts and procedural history. On February 20, 2020, Amber Hovermale ("Mother") brought her and Appellant's daughter, D.L., to her one-month well visit. The nurse practitioner noticed that D.L. was lethargic and barely responsive, had a low body temperature and bruising, and had lost weight. The nurse directed Mother to take D.L. to the local hospital, which transferred D.L. to the pediatric intensive care unit at Children's Hospital of Philadelphia, where D.L. stayed for over a month to address significant brain injuries and a leg broken in two places.

While D.L. was hospitalized, Montgomery County Office of Children and Youth and the State Police investigated Mother and Appellant for potential child abuse. In addition, police arrested Appellant for driving under the influence ("DUI") in the early hours of March 14, 2020.

Later that day, Appellant sent the text message at issue in this appeal to Mother. The parties agree that the text message read as follows:

How much you wanna bet, this is about to get worse for me? They're gonna slam me for what I did to do [D.L.] and this what happened last night. It doesn't look good at all....I'm trying to prepare myself for this week...potentially to go to jail. And I have no one to blame but myself....because everyone is right And [sic] that scares me.

Commonwealth's Prior Motion in Limine, 9/6/23, at 7 (emphasis added; child's name redacted and "[sic]" added by the Commonwealth; ellipses in original text message). Later, Appellant texted Mother asking her to "Delete this entire thread[.]" Id.

In July 2020, the Commonwealth charged Appellant with various crimes related to D.L.'s injuries. In preparation for trial, the Commonwealth filed a motion in limine to admit the text message, but omitted the word "do[,]" which resulted in the following:

How much you wanna bet, this is about to get worse for me? They're gonna slam me for what I did to [D.L.] and this what happened last night. It doesn't look good at all....I'm trying to prepare myself for this week...potentially to go to jail. And I have no one to blame but myself....because everyone is right And [sic] that scares me.

Commonwealth's Motion in Limine, 11/17/22, at 7 (emphasis added; child's name redacted and "[sic]" added by the Commonwealth; ellipses in original text message).

In a December 9, 2022 order, the trial court precluded any evidence relating to Appellant's DUI arrest and directed the parties to agree to redacted versions of the text messages with references to Appellant's DUI arrest removed. At trial, the Commonwealth presented a redacted version of the relevant text message, which continued to omit the word "do." N.T. Trial, 12/20/22, at 4-5. To prevent the jury from seeing the redaction, the Commonwealth and defense counsel agreed that witnesses would read the redacted version, rather than publishing the text message for the jury. Id.

During her testimony, Mother read the following redacted version of the text message:

How much you wanna bet this is about to get worse for me. They're going to slam me for what I did to [D.L.]. It doesn't look good at all. I'm trying to prepare myself for this week, potentially go to jail, and I have no one to blame but myself because everyone is right and that scares me.

N.T. Trial, 12/20/22, at 55 (emphasis added; child's name redacted). The investigating State Trooper additionally testified that the version of the text message as read by Mother was what had been retrieved from Mother's iPad, failing to recognize the missing "do." Id. at 144-45. The Commonwealth additionally invoked the text message when cross-examining the defense's expert witness by asking him, "Is it important to you in considering the history for [D.L.] that [Defendant] said he was going to jail, quote, for what he did to [D.L.]?" Id. at 230. The expert responded, "Not at all important." Id. Finally, during closing argument, the Commonwealth relied upon the misquoted text message repeatedly, including displaying the misquoted text message to the jury in a PowerPoint. N.T., 12/21/23, at 59-61, 79, 86-87, 89.

During the three-day trial, the Commonwealth additionally presented the testimony of the initial treating nurse practitioner and a treating physician, who served as an expert witness, the investigating state trooper, as well as Mother and her sister. Appellant presented an expert witness to contest the Commonwealth's medical testimony and Appellant's uncle, mother, and a character witness.

During jury deliberations, the jury requested to see the text messages. The court refused the request and instead read the redacted version but with the original correct phrasing: "what I did to do [D.L.]." Id. at 123-25.

Later in the evening, while jury deliberations continued, defense counsel requested a conference regarding the text message. Id. at 126-127. At this point, the Commonwealth thought that Mother had read the text message correctly but agreed that the Commonwealth's closing arguments referenced, and the PowerPoint slide included, the incorrect version with "do" omitted. Id. at 128. All counsel also "agreed that the 'typo' was accidental and not intentional[.]" Trial Ct. Op., 1/3/24, at 6. Defense counsel did not request a mistrial at that point, nor did he ask the court to inform the jury of the misquotation. N.T. 12/21/23, at 129. Approximately two hours later, the jury returned its verdict of guilty on aggravated assault and endangering the welfare of a child.^[1] The court deferred sentencing for the preparation of a presentence investigation report.

On April 6, 2023, new defense counsel^[2] filed a motion for new trial, claiming prosecutorial misconduct relating to the misquoted text message. At the sentencing hearing on April 14, 2023, the court denied the motion for new trial following argument on the motion. The court then imposed an aggregate sentence of 10-20 years of incarceration followed by 5 years of probation.

On April 23, 2023, Appellant filed a post-sentence motion, seeking, inter alia, a new trial claiming prosecutorial misconduct and trial counsel ineffectiveness based upon the misquotation of the text message.

On July 13, 2023, the court heard argument on the motion and then scheduled an evidentiary hearing for July 24, 2023, to address the claims of trial counsel ineffectiveness. At the hearing, Appellant's trial counsel opined that the typo "was an absolute mistake[,]" and "an oversight[.]" N.T. Post-Sentence Mot. Hr'g, 7/24/23, at 9. He testified that when the judge read the correct version of the text message, "the Commonwealth was surprised[,] and I was surprised[,] and we all kind of scrambled to look back at all older examples of the text to get the proper text and everybody was surprised at the misquote." Id.

"The court found the testimony and the explanations offered by both trial [c]ounsel for the [p]arties very credible." Trial Ct. Op. at 9. On August 18, 2023, the court granted a new trial upon finding trial counsel ineffective for failing to notice the typographical error. The court stated that "[n]either [p]arty presented evidence on the issue of alleged prosecutorial misconduct, nor did the [c]ourt find prosecutorial misconduct." Id. at 9-10.

On September 6, 2023, Appellant filed a motion to bar retrial, asserting double jeopardy. On October 2, 2023, the trial court denied Appellant's motion to bar retrial, after a hearing on September 22, 2023. The court opined, however, that it did not find the motion to be frivolous. Findings of Fact and Conclusions of Law Pursuant to [Pa.R.Crim.P. 587], 10/2/23, at 9. Accordingly, Appellant's issue is immediately appealable pursuant to Rule 587(b)(6).

Appellant filed his notice of appeal on October 12, 2023. Both the court and counsel complied with Pa.R.A.P. 1925.

Appellant raises the following question:

Whether the trial court erred in denying the motion to bar retrial on double jeopardy grounds where Appellant received a new trial because the Commonwealth committed prosecutorial misconduct by editing a text message from Appellant to make it appear as if the message was an unequivocal confession rather than an ambiguous statement, showing the edited message to the jury through multiple witnesses, arguing the false confession to the jury eight times in closing arguments, and then failing to correct the record when trial counsel pointed out the modification while the jury was still deliberating?

Appellant's Br. at 7.

A.

A double jeopardy challenge raises a question of constitutional law, for which our standard of review is de novo and our scope of review is plenary. See Commonwealth v Krista, 271 A.3d 465, 468 (Pa. Super. 2022). "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." Id. In so doing, we defer to the trial...