Commonwealth v. Thomas

1

COMMONWEALTH OF PENNSYLVANIA Appellee v. RONALD THOMAS Appellant

No. 1034 EDA 2022

No. J-S04023-23

Superior Court of Pennsylvania

September 11, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37

Appeal from the Order Entered March 4, 2022 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s) CP-51-CR-0013001-2010

BEFORE: MURRAY, J., KING, J., and PELLEGRINI, J. ^[*]

MEMORANDUM

KING J.

Appellant Ronald Thomas, appeals from the order entered in the Philadelphia County Court of Common Pleas, denying his motion to bar retrial under principles of double jeopardy. We affirm.

This Court has previously set forth the underlying relevant facts and procedural history of this case as follows:

The charges against [Appellant] relate to his shooting and murder of Anwar Ashmore (Ashmore).

Ashmore was fatally shot in the chest at the corner of North Stanley and West [Huntingdon] Streets in Philadelphia at approximately 9:00 P.M. on the evening of April 22, 2010. He suffered injuries to his sternum, heart, ribs, lungs and left arm. When Philadelphia Police Officers William Forbes and Anthony Ricci arrived on the scene moments later, a group of people was standing around him as he gasped for air. Ashmore was unable to answer the officers' questions and the bystanders denied having heard anything. Ashmore was pronounced dead at Temple University Hospital moments after arriving. The cause of death was two gunshot wounds to the chest, later determined to be from a .45 caliber handgun.

Approximately one hour after the shooting, Detectives Philip Nordo, Tracy Byard, Thorsten Lucke and Billy Golphin arrived at the scene. The police did not locate any eyewitnesses to the murder that night. However, one month later, on May 22, 2010, they arrested Raphael Spearman three blocks from the murder scene after a police chase. He was in possession of a .45 caliber handgun that was later determined to be the gun that fired the bullets that killed Ashmore. Over the ensuing days and months, Troy Devlin, Jeffrey Jones, Raphael Spearman and Kaheem Brown identified [Appellant] as Ashmore's killer. Detective Nordo took the statements of Devlin, Jones and Spearman. Detective [Nathan] Williams took Brown's statement.

* * *

Trial commenced on September 11, 2018.^[1] The Commonwealth proceeded under the theory that [Appellant] murdered Ashmore in retaliation for the shooting of his associate…approximately five months earlier. At trial, the Commonwealth presented Devlin, Jones, Spearman and Brown, each of whom identified [Appellant] as the shooter in their police statements, but then recanted at trial.^[2] … * * *

On September 19, 2018, at the conclusion of trial, the jury convicted [Appellant] of first-degree murder and related charges. The court sentenced him to an aggregate term of life imprisonment. [Appellant] timely appealed. …

* * *

[Prior to trial, o]n September 5, 2018, the Commonwealth [had] filed a Motion in Limine to Preclude Reference to Detective Nordo's Alleged Misconduct on the basis that such evidence was hearsay, irrelevant and collateral. More specifically, the Commonwealth maintained that, although the detective had since been fired by the Philadelphia Police Department for his misconduct, his actions occurred approximately five years after his interrogations in this case, none of the allegations involved [Appellant's] case, no criminal charges had been filed, and the Commonwealth did not intend to call him as a witness. Therefore, the Commonwealth argued, Detective Nordo's misconduct was a collateral issue. The court granted the motion the same day.

Neither Detective Nordo nor Detective Williams testified at trial. At the time of trial, Detective Nordo had been dismissed from the Philadelphia Police Department for allegedly putting money in prison inmates' commissary accounts and improperly communicating with witnesses and defendants outside of his official duties. There was no evidence of misconduct by Detective Williams at that time.

Since [Appellant's] trial, the Commonwealth has filed criminal charges against Detectives Nordo and Williams premised on their alleged misconduct in the investigation of crimes and use of police resources and has vacated the judgment of sentence and conviction in other cases based on Detective Nordo's misconduct. It has provided [Appellant] with related discovery. On April 22, 2019, [Appellant] filed a motion for remand to allow the trial court to conduct an evidentiary hearing based on this newly provided evidence. This Court denied the motion per curiam, without prejudice to [Appellant] bringing the issue up [before the] merits panel.

* * *

Since the conclusion of his trial, the Commonwealth has provided [Appellant] with information about Detective Nordo's role in an unrelated murder case, Commonwealth v. Powell, No. CP-51-CR-0006915-2015. In Powell, the trial court dismissed all charges after "new and uniquely troubling information" about Detective Nordo's investigative techniques were revealed at a pretrial hearing on Powell's motion to dismiss.

At the hearing, the evidence showed that Detective Nordo made phone calls and unauthorized visits to incarcerated witnesses and deposited money into their prison accounts. He also had unauthorized contact with a judge without the District Attorney's knowledge and sought pretrial release of an incarcerated witness. He lied about whether he had prior relationships with witnesses he claimed only to have met during his investigation of Powell and his co-defendant. One of the witnesses could be heard on recorded prison phone calls telling Detective Nordo that he loves him and calling him "Coach." Nordo was unavailable for Powell's pretrial hearing because Nordo's attorney stated that Nordo would assert his Fifth Amendment privilege against self-incrimination.

Further, Detective Nordo took a statement from a person who was under the influence of illegal narcotics and suggested everything that ultimately was said in the statement. That statement alluded to another conversation between the individual and the detectives that was not recorded. The detective had kept Powell's co-defendant in custody for seventeen hours before taking his written statement.

The Commonwealth also disclosed to [Appellant] a grand jury report that detailed Detective Nordo's coercive interrogation techniques, including threatening individuals with prosecution, intimidating individuals into signing false statements and giving people cash rewards for providing fabricated statements. The disclosure included multiple indictments that charged Detective Nordo with coercive sex crimes related to his interrogation of suspects and witnesses.

* * *

Detective Nathan Williams was arrested in November 2019 and charged with tampering with public records, unsworn falsification to authorities, tampering with or fabricating physical evidence, and obstructing the administration of law. Since that time, the Commonwealth provided [Appellant] with certain related disclosures pursuant to its practice. Those disclosures included information from an internal investigation report showing that Detective Williams used police database records to find personal information about a woman that his cousin had been harassing and send the woman's personal information to his cousin, and then lying, attempting to conceal his misconduct from internal investigators.

Thomas II at 3-16 (internal citations and footnotes omitted). On direct appeal from his 2018 judgment of sentence, this Court remanded for an evidentiary hearing concerning the newly-discovered evidence of the misconduct of Detectives Nordo and Williams, and to determine whether the Commonwealth committed a Brady^[3] violation by failing to disclose this information to defense counsel prior to trial. See id. at 24-25.

Upon remand, the parties agreed not to conduct an evidentiary hearing and to grant Appellant a new trial based on the Commonwealth's "negligent" Brady violation in suppressing certain 2005 allegations against Detective Nordo. (See Commonwealth's Answer Regarding Nordo's Misconduct and its Nexus to this Case, 5/20/21, at ¶32).^[4] Thus, on May 25, 2021, based on the Commonwealth's agreement, the assigned homicide calendar jurist, Judge Ransom, awarded Appellant a new trial.

Thereafter, the case was reassigned to Judge DeFino-Nastasi for a new trial. On July 8, 2021, Appellant filed a motion to bar retrial on double jeopardy grounds based on the Commonwealth's intentional or reckless failure to disclose Detective Nordo's misconduct to defense counsel prior to Appellant's 2018 trial. The court held hearings on the motion on February 15, 2022 and March 4, 2022.

At the February 15, 2022 hearing, Deputy District Attorney Matthew Krouse of the Delaware County District Attorney's Office testified that he was previously employed as an Assistant District Attorney at the Philadelphia District Attorney's Office. Attorney Krouse prosecuted Appellant's second trial in 2018. Attorney Krouse said that Detective Nordo was involved in the investigation of Appellant's case but was not called as a witness, and Attorney Krouse had no interaction with him pertaining to Appellant's case. Attorney Krouse testified that in June 2018 (prior to Appellant's trial), Attorney Krouse's supervisor then-Assistant Chief Ed Cameron,^[5] sent an email to Attorney Krouse indicating that charges had been dismissed against a defendant in the Powell case based on allegations of Detective Nordo's misconduct. Attorney Krouse discussed an email chain regarding Detective Nordo, which Attorney Krouse confirmed was the extent of his knowledge regarding Detective Nordo's misconduct. Attorney Krouse said he knew there was an indication that Detective...