Commonwealth v. Washington, 1099 EDA 2017

198 A.3d 381

COMMONWEALTH of Pennsylvania

v.Anthony WASHINGTON, Appellant

No. 1099 EDA 2017

Superior Court of Pennsylvania.

Submitted September 26, 2018

Filed October 24, 2018

Karl Baker, Public Defender, Philadelphia, for appellant.

Lawrence J. Goode, Assistant District Attorney, and Anthony V. Pomeranz, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

BEFORE: BENDER, P.J.E., NICHOLS, J., and STEVENS,^* P.J.E.

OPINION BY STEVENS, P.J.E.:

Appellant Anthony Washington appeals from the Order entered in the Court of Common Pleas of Philadelphia County on March 2, 2017, denying his "Motion to Preclude Retrial and Dismiss All Cha[r]ges on the Basis of Intentional Prosecutorial Misconduct, Pursuant to the Double Jeopardy Clause of the Pennsylvania Constitution and the Federal Constitution." After careful review, we affirm.¹

The trial court aptly set forth the procedural history and relevant facts herein as follows:

PROCEDURAL HISTORY

The Appellant was found guilty of first degree murder and sentenced to death on December 9, 1994. Commonwealth v. Washington, 700 A.2d 400 (Pa. 1997). The Supreme Court of Pennsylvania affirmed the conviction and death sentence on direct appeal. Id. On August 20, 2007, [Appellant] filed a motion to stay execution and to appoint counsel to represent him in a to-be-filed habeas petition, which was granted on August 23, 2007. Washington v. Beard, 2015 WL 234719 at *1 (E.D. Pa. Jan. 16, 2015).

[Appellant] filed a federal habeas petition on May 5, 2008. Id. On January 16, 2015, after an evidentiary hearing, Judge Stengel found that the Commonwealth violated both Brady¹ and Bruton² , vacated the Appellant's conviction and sentence, and remanded the matter for a new trial. Id.

The Defender Association of Philadelphia was appointed as counsel and filed a motion/memorandum titled "Motion to Preclude Retrial and Dismiss all Cha[r]ges on the Basis of Intentional Prosecutorial Misconduct, Pursuant to the Double Jeopardy Clause of the Pennsylvania Constitution and the Federal Constitution" on July 13, 2016. The Commonwealth filed "Commonwealth's Answer to Defendant's Motion to Preclude Retrial and Dismiss All Charges on the Basis of Intentional Prosecutorial Misconduct" on August 17, 2016.³

A hearing on the motion was scheduled for March 2, 2017. Appellant's presence was waived by counsel. N.T. 3/2/2017, p. 3.^[2] The Commonwealth and Appellant's counsel stated that both sides intended to rely on the pleadings filed in this matter and argument. N.T. 3/2/2017, p. 4-5. After consideration of the pleadings and arguments of counsel, this [c]ourt denied Appellant's motion, but found that the motion was not frivolous and the denial was automatically appealable as a collateral issue. N.T. 3/2/2017, p. 32.

The Appellant filed a notice of appeal on March 29, 2017. On the same day, this [c]ourt ordered the Appellant to file a 1925(b) statement within twenty-one (21) days of the filing. On April 11, 2017, Appellant filed a request for an extension of time to file the 1925(b) statement because the notes of testimony were unavailable. Appellant requested an extension for the 1925(b) statement for twenty-one (21) days after the notes of testimony were made available. This [c]ourt granted the extension on April 13, 2017.

Notes of testimony were uploaded to the Court Reporting System on May 2, 2017. The Appellant filed a "Statement of Errors Complained of on Appeal" on June 21, 2017. Counsel for the Appellant stated that the notes of testimony were received on June 2, 2017. This [c]ourt notes that another copy of the notes of testimony was uploaded on June 1, 2017.

Appellant asserts that this [c]ourt erred in not finding that the conduct of the prosecutor was "deliberate, egregious, and was intended to prejudice the defendant and deny him a fair trial." Appellant's Statement of Errors Complained of on Appeal, page 2.

STATEMENT OF FACTS

The following factual statement is incorporated from District Judge Stengel's opinion in Washington v. Beard, 2015 WL 234719 at *1 (E.D. Pa. Jan. 16, 2015). No additional facts were presented in the Appellant's or Commonwealth's pleadings.⁴

a) Facts of Appellant's Trial

On January 23, 1993, two men robbed a Save-A-Lot in the Kensington Area of Philadelphia. Id. During the course of the robbery, the emergency gate to the front of the store started to close, causing the robbers to flee. Id. They were pursued by Tracy Lawson, an unarmed security guard working at the Save-A-Lot. Id. Police Officer Gerald Smith, who was moonlighting as a security guard at an adjacent store, joined the pursuit and fired a shot at the fleeing men. Id. One of the robbers fired a shot in Lawson's direction in response. Id. Lawson was struck in the head by the bullet and died of the wound. Id.

The Appellant and Derrick Teagle were arrested and charged with robbery, murder, and related offenses. Id. Teagle gave a statement to the police before being arrested. Id. This statement outlined his involvement in the robbery and named the Appellant as the other robber and as the person who shot Lawson. Id. The Appellant's name was replaced with "blank" when the statement was read to the jury at trial. Id. Neither Teagle nor the Appellant testified at trial. Id.

The identity of the shooter was a contested issue at trial. Id. at *23. Several witnesses identified Teagle and/or the Appellant as one of the robbers on the night of the shooting. Id. Two Save-A-Lot employees identified Teagle as the only person they saw with a gun the night of the robbery. Id. Officer Smith identified the Appellant as the robber who shot Lawson, both at a line-up and at trial. Id. The Appellant's then former girlfriend and her sister both testified that the Appellant admitted to being the shooter and the Appellant's brother testified that he saw the Appellant and Teagle sitting with piles of money later that night. Id.

During closing arguments, ADA Gilson used Teagle's statement in a manner which "broke" the redactions of the Appellant's name. Id. After the second break in redaction, defense counsel objected and requested a mistrial. Id. The judge admonished ADA Gilson, but denied the request for mistrial. Id. Instead, the judge gave a cautionary instruction to the jury, reminding them that Teagle's statement could not be used in determining the guilt of the Appellant and any reference to the Appellant while discussing Teagle's statement must be ignored. Id. However, ADA Gilson implicated the Appellant while referencing Teagle's statement two more times. Id. Defense counsel once again objected and requested a mistrial. Id. The judge again admonished ADA Gilson and told him he was close to having a mistrial, but instead allowed the closing argument to continue after giving another cautionary instruction to the jury. Id. The jury convicted the Appellant of first degree murder and sentenced him to death.⁵ Id.

b) Brady and Bruton Violations

Judge Stengel determined that the Commonwealth violated [ Brady] by failing to turn over four documents prior to the trial. Id. Three documents were separate descriptions of the robbers from the Philadelphia Police Department. Id. In each document, the robber matching Teagle's description was described as having a gun. Id. Further, none of the documents placed a gun in the hand of the other robber. Id. The documents were attached to a motion to reconsider the Appellant's supplemental PCRA petition on July 24, 2001. Id. It is still unclear as to how the Appellant found this evidence.

The fourth document was a police activity sheet dated February 25, 1993, showing that three witnesses to the robbery were shown a photo array. Id. The photo array included the Appellant, but no witness was able to make a positive identification. Id. However, two of these witnesses positively identified the Appellant at trial. Id. This fourth document was not produced until federal discovery was ordered. Id.

Judge Stengel concluded that the documents in the aggregate may have well been material to the Appellant's case and that there was a "reasonable probability that the disclosure of these descriptions would have changed the outcome of the trial, particularly in regard to who the jury found to be the shooter." Id. at *25.

Judge Stengel also found that ADA Gilson violated Bruton when he implicated the Appellant using Teagle's statement.⁶Id. at *14. ADA Gilson "relied on an inference that Washington was identified in Teagle's statement as one of the gun-toting robbers." Id. at *16. By ignoring the redactions, the prosecutor presented to the jury a statement where "Washington [was] featured as the other robber and, most likely, the shooter." Id. at *16.

¹Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

²Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).

³ ADA Mark Gilson submitted the Commonwealth's answer and argued the motion before this [c]ourt. ADA Mark Gilson was also the prosecutor who tried the Appellant in 1994.

⁴ Counsel for the Appellant incorporated Judge Stengel's opinion by reference in his motion/memorandum.

⁵ Teagle was convicted of second degree murder and sentenced to life imprisonment.

⁶ Judge Stengel also found that replacing the Appellant's name with "blank" was an improper redaction under Gray v. Maryland, 523 U.S. 185, 118 S.Ct. 1151, 140 L.Ed.2d 294 (1998). Washington, 2015 WL 234719 at *9.

Trial Court Opinion, filed 7/26/17, at 2-8.

In his brief, Appellant presents the following Statement of the Question Involved:

Did not the court err and abuse its discretion in denying the defense motion to preclude retrial and dismiss all charges, where the prosecutorial misconduct at issue was deliberate, egregious, and was intended to prejudice [Appellant] and deny him a fair trial?

Brief for Appellant at 3. In considering this claim, we are guided by the following:

An appeal grounded in double jeopardy raises a question of constitutional law.

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