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Commonwealth of Pennsylvania v. David W. anderson

November 3, 2011


Appeal from the Order entered February 6, 2009 In the Court of Common Pleas of Venango County Criminal Division at No(s): CP-61-CR-0000009-2001 CP-61-CR-0000636-2000

The opinion of the court was delivered by: Opinion BY Gantman, J.:



Appellant, the Commonwealth of Pennsylvania, appeals from the order entered in the Venango County Court of Common Pleas, which granted Appellee, David W. Anderson's motion to dismiss on double jeopardy grounds, based on prosecutorial misconduct. The Commonwealth asks us to determine whether the trial court erred in dismissing the case pursuant to the double jeopardy clause of the Pennsylvania Constitution, where the prosecutorial misconduct occurred after remand for a new trial, but before the retrial. We hold prosecutorial misconduct occurring before a retrial can serve to bar the retrial, under the double jeopardy clause of the Pennsylvania Constitution. We further hold the trial court properly granted Appellee's motion to dismiss, because the prosecutor intentionally committed the misconduct to prejudice Appellee to the point of denying him a fair trial. Accordingly, we affirm the order granting Appellee's motion to dismiss.

This Court previously set forth the relevant facts of this appeal as follows:

[Appellee] was employed as a Residential Service Aide ("RSA"), a caregiver, at the Polk Center State Hospital, a facility that houses mentally retarded patients. D.M., T.C., and J.L. were residents of the hospital and function at approximate mental age levels ranging from six to eight years old. [Appellee] cared for the three residents at various times throughout his employment at the hospital. The following sets out the claims of each resident.

1. The incidents are:


On or about March 1, 2000, Robert Lake, a co-worker of [Appellee], observed [Appellee] with his pants down and buttocks exposed in the presence of D.M. in an abandoned cottage at the facility. Lake reported what he saw and the hospital began an internal investigation.


During the investigation, another co-worker of [Appellee], Kelly McCullon, reported an incident she saw in February 2000. McCullon observed [Appellee] in a restroom with resident T.C., with his shorts lowered and T.C.'s head positioned alongside [Appellee's] legs. When [Appellee] realized McCullon had entered the restroom, he appeared startled and immediately raised his trousers. T.C. does not require assistance in the bathroom because he is totally independent. A few days after the incident,

[Appellee] approached McCullon and stated he was worried about something somebody may have seen, adding that seeing something is one thing and proving it is another.

T.C. reported to RSA McCullon that [Appellee] performed unwanted sexual acts with him. T.C. stated that [Appellee] rubbed his penis in the bathroom and T.C. placed his mouth on [Appellee's] penis at Polk Center. Afterwards, [Appellee] warned T.C. not to tell anyone what happened or he would get in trouble.


The investigation continued and resident J.L. came forward to report misconduct by [Appellee]. J.L. reported that

[Appellee] performed oral sex upon him and masturbated him on several occasions at the facility's swimming pool. In addition, J.L. revealed that while on a Special Olympics trip, [Appellee] performed oral sex on him in a Somerset County hotel. J.L. stated he did not reveal any of the incidents because [Appellee] threatened to beat him up if he did. The events at the hotel were corroborated by another Polk Center resident, Henry Garner, who was staying in the room with J.L. and [Appellee]. Garner observed J.L. playing with [Appellee's] penis and was reluctant to report the act because of threats made by [Appellee].

2. The Police Investigation and the Trial

In March 2000, following the internal investigation, Polk Center State Hospital referred the case to the police. Pennsylvania State Trooper Brian Mason was assigned as the investigating officer. Trooper Mason interviewed

[Appellee] about the act that had been reported by [Appellee's] co-worker Robert Lake. [Appellee] allegedly admitted to the act of indecent assault on resident D.M. On April 28, 2000, after the police reviewed the internal investigation of the hospital and interviewed the alleged victims, the Venango County district attorney's office filed criminal charges against [Appellee] for multiple counts of involuntary deviate sexual intercourse ("IDSI") and indecent assault involving these three alleged victims.

On June 30, 2000, the Honorable District Justice Douglas Gerwick ruled that resident D.M. was incompetent to testify and dismissed the charges involving him. On October 20, 2000, a second preliminary hearing was held and District Justice Gerwick again held that D.M. was incompetent to testify. On January 25, 2001, the Commonwealth re-filed charges involving resident D.M. and a preliminary hearing was held on January 31, 2001. At the hearing, the district justice found D.M. to be competent to testify and the Commonwealth was allowed to proceed on charges involving D.M.

The procedure regarding residents J.L. and T.C. is as follows. On June 30, 2000, District Justice Gerwick allowed the charges involving these residents to go forward. On February 1, 2001, charges involving all the residents (D.M., T.C. and J.L.) were consolidated...and trial was set for February 5, 2001.

On February 5, 2001, the day trial began, [Appellee's] motion under Rule 315 for dismissal of charges involving

D.M. was denied. On February 13, 2001, the jury found [Appellee] guilty of indecent assault but not of IDSI from the incident involving D.M. The jury was deadlocked as to the charges involving J.L. and T.C. On March 26, 2001, [Appellee] was sentenced to incarceration of three months to 24 months less one day in the Venango County Jail for the conviction of indecent assault on D.M.

[Appellee] was retried on the charges involving residents

J.L. and T.C.―the charges on which the jury had deadlocked in the first trial. Following the second trial, on September 17, 2001, the jury found [Appellee] guilty of one count of indecent assault on T.C. On the charges involving J.L., the jury found [Appellee] guilty of IDSI for the incident in Somerset County, as well as finding [Appellee] guilty of indecent assault at both the hospital and in Somerset. On January 24, 2002, the court sentenced [Appellee] to five to 15 years' imprisonment for the IDSI conviction and six years of probation for the three counts of indecent assault.

[Appellee] filed timely notices of appeal from both judgments of sentence.

Commonwealth v. Anderson, No. 746 WDA 2001, unpublished memorandum at 2-6 (Pa.Super. filed April 21, 2004) (internal citations to the record omitted).

On appeal, this Court reversed the conviction related to D.M., concluding Appellee had "suffered prejudice by the eleventh-hour amendment" of the charges. Id. at 10. Accordingly, this Court discharged Appellee with respect to D.M. This Court also reversed and remanded for a new trial on the charges related to T.C. and J.L. Specifically, this Court determined the prosecutor had engaged in misconduct during his closing argument, utilizing intemperate language and making a hand gesture to simulate masturbation in the direction of Appellee and defense counsel. Nevertheless, this Court declined to discharge the matter on double jeopardy grounds:

Our review of the record reflects no justification for the behavior of the prosecutor during his closing argument. The only purpose of the conduct appears to be to prejudice the jury, forming in their minds a fixed bias and hostility toward [Appellee] so that the jury could not weigh the evidence objectively and render a true verdict. Such conduct, from the record, appears to have been undertaken intentionally to prejudice [Appellee] to the point of denying him a fair trial. If so, the double jeopardy clause of the Pennsylvania Constitution would bar retrial of any charges prosecuted at the second trial. [Commonwealth v. Smith, 532 Pa. 177, 615 A.2d 321 (1992)]. On the other hand, we do not have before us the egregious circumstances of Smith.... While the prosecutor's behavior in [Appellee's] case was outrageous, it did not rise to the level of the intentional prejudice of the prosecutor in Smith. Thus, we reverse and remand for a new trial.

Id. at 14-15. The Commonwealth filed a petition for allowance of appeal, which our Supreme Court denied on February 22, 2005. Commonwealth v. Anderson, 855 A.2d 127 (Pa.Super. 2004) (unpublished memorandum), appeal denied, 582 Pa. 668, 868 A.2d 1196 (2005) ("Anderson I"). Upon remand, the court conducted jury selection on September 6, 2005. Immediately following jury selection, the court conducted a competency hearing to reevaluate T.C. and J.L. On September 8, 2005, the court found T.C. and J.L. were incompetent to testify, and it dismissed the jury. The Commonwealth timely filed a notice of appeal on October 6, 2005. On appeal, this Court determined the trial court had abused its discretion in failing to apply the factors in Pa.R.E. 601 to evaluate the witnesses'

competency. Consequently, this Court reversed and remanded the case for trial. Commonwealth v. Anderson, 927 A.2d 647 (Pa.Super. 2007) (unpublished memorandum) ("Anderson II").

On September 26, 2007, Appellee filed a motion for another competency hearing. In it, Appellee alleged "the Commonwealth, by way of its Assistant District Attorney, has had substantial meetings with [the] witnesses prior to each hearing in which the witnesses testified." (Motion for Competency Hearing, filed 9/26/07, at 5). Appellee argued the prosecutor used these meetings to "coach" the witnesses. Moreover, at a 2005 competency hearing, the prosecutor stated, "I can get [T.C.] to say anything." (Id. at 6). Thus, Appellee requested a new competency hearing "to test or challenge each witness' independent ability to recall the alleged events on his own...." (Id.) (emphasis in original). Appellee further requested that the court prohibit the Commonwealth from interviewing the witnesses prior to the competency hearing, "to minimize the ever-present issue of taint" and "to make a valid determination of each witness'

independent ability to recall the alleged events." (Id. at 7). The court granted Appellee's motion and scheduled the competency hearing to occur at the pretrial conference.

On October 29, 2007, the court issued an additional order, placing the following restrictions on the prosecutor's ability to interview the witnesses prior to the competency hearing:

In preparation for [the competency] hearing, the motion of the defense counsel for some form of protection concerning "taint" is granted. The court sees no impediment to the Commonwealth if we order and we do hereby order that the [prosecutor] when interviewing the four stated witnesses prior to the competency hearing, will have with him preferably [the psychologist from the Polk Center], who has been a counselor for these witnesses, but if not her some other responsible person at Polk Center, such as an RSA. Interviews will not be conducted unless such person is present. Counsel for the

Commonwealth will keep a log showing when the interviews occurred and who was present. This is only up to the point of the competency hearing.

(Order, entered 10/29/07, at 2). The court also ordered the Commonwealth to deliver to defense counsel any assessments*fn1 of the witnesses conducted by the Polk Center after January 1, 2004. Additionally, the court directed the parties to provide a witness list to opposing counsel at least two weeks before jury selection.

On November 8, 2007, the court scheduled the competency hearing for February 1, 2008. On February 1, 2008, the court continued the matter, because an ice storm prevented T.C. and J.L. from attending the hearing. The court rescheduled the hearing for April 4, 2008. The court also noted that the October 29, 2007 order "shall remain in full force and effect until further Order of Court." (Order, dated 2/1/08, at 2). Following an additional continuance, the court conducted the competency hearing on June 6, 2008.

At that hearing, it was discovered that [the prosecutor] not only did not comply with any of the above referenced requirements contained in [the court's] October 29, 2007 Order, he also committed egregious prosecutorial misconduct which was designed to subvert the truth- seeking process and deny [Appellee] of his right to a fair trial. Most troubling, and indeed egregious, [the prosecutor] met with J.L. six days before the competency hearing for several hours; watched a Pittsburgh Penguins hockey game with J.L.; told J.L. what questions were going to be asked at the hearing, along with their answers; did ask those questions at the competency hearing; and was then repeatedly dishonest with [the court] in an attempt to conceal his misconduct and convict [Appellee] at any cost.

(Trial Court Opinion, entered February 6, 2009, at 12-13). In light of the prosecutor's misconduct, the court rescheduled the competency hearing for July 31, 2008.

On July 16, 2008, Appellee filed several motions to dismiss, including a motion to dismiss on double jeopardy grounds. In his motion, Appellee cited specific instances of prosecutorial misconduct, including the prosecutor's meeting with J.L. to rehearse questions and answers for the competency hearing. Appellee also complained that the prosecutor failed to keep a log of his meeting with J.L., failed to provide mental capacity reports, failed to provide certain expert reports, and failed to provide a witness list. Appellee claimed the prosecutor's behavior caused Appellee to suffer unfair prejudice, and the pattern of prosecutorial misconduct throughout the history of the proceedings warranted the dismissal of the charges on double jeopardy grounds.

On July 30 and 31, 2008, the court conducted hearings on Appellee's various dismissal motions. Following the hearings, the court ordered the parties to submit briefs regarding the motion to dismiss on double jeopardy grounds. On September 4, 2008, the court continued the matter indefinitely, as it considered the parties' briefs. By opinion and order entered February 6, 2009, the court granted Appellee's motion to dismiss on double jeopardy grounds.

The Commonwealth timely filed its notice of appeal on March 3, 2009.*fn2

On October 22, 2010, a panel of this Court reversed (with one dissent) and remanded for trial. On November 5, 2010, Appellee requested en banc reargument, which this Court granted on January 6, 2011.

The Commonwealth raises the following issue for our review:


(Commonwealth's Brief at 4). Initially we observe:

"An appeal grounded in double jeopardy raises a question of constitutional law." Commonwealth v. Wood, 803 A.2d 217, 220 (Pa.Super. 2002) (quoting Commonwealth v. Mattis, 686 A.2d 408, 410 (Pa.Super. 1996)[, appeal denied, 547 Pa. 752, 692 A.2d 564 (1997)]). "This court's scope of review in making a determination on a question of law is, as always, plenary." Wood, supra at 220 (quoting Mattis, supra at 410). "As with all questions of law, the appellate standard of review is de novo...." Commonwealth v. Kositi, 880 A.2d 648, 652 (Pa.Super. 2005) (quoting In re Wilson, 879 A.2d 199, 214 (Pa.Super. 2005) (en banc)).

Commonwealth v. Vargas, 947 A.2d 777, 780 (Pa.Super. 2008).

Appellate review of the trial court's findings of fact in a double jeopardy matter further implicates the following:

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.

Wood, supra (internal citations omitted).

In certain circumstances, prosecutorial misconduct may rise to a level of overreaching and result in a mistrial, in which case double jeopardy will bar [retrial] of the defendant. The rationale that supports the proscription embodied in the double jeopardy clause is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.

A criminal proceeding imposes heavy pressures and burdens psychological, physical, and financial on a person charged. The purpose of the Double Jeopardy Clause is to require that he be subject to the experience only once for the same [offense].

Whereas innocent prosecutorial error cannot always be avoided, overreaching is not an inevitable part of the trial process and cannot be condoned. It signals the breakdown of the integrity of the judicial proceeding, and represents the type of prosecutorial tactic which the double jeopardy clause was designed to protect against. Under Pennsylvania law, there are two types of prosecutorial misconduct that trigger double jeopardy. First, the double jeopardy clause of the Pennsylvania Constitution prohibits retrial of a defendant when the conduct of the prosecutor is intentionally undertaken to prejudice the defendant to the point of the denial of a fair trial. Second, retrial is also prohibited when the prosecutorial misconduct is intended to provoke the defendant into moving for a mistrial.

Id. at 220-21 (internal citations and quotation marks omitted).

On appeal, the Commonwealth asserts double jeopardy principles do not apply to prosecutorial misconduct occurring after remand for a new trial, but before the retrial actually occurs. Moreover, the Commonwealth contends the record does not support the trial court's finding that the prosecutor acted intentionally to prejudice Appellee's right to a fair trial. The Commonwealth argues there is no competent evidence that the prosecutor had a "secret meeting" with J.L. prior to the competency hearing. The Commonwealth also emphasizes that this alleged act of misconduct has nothing to do with the actions of the prosecutor during trial, which is where the misconduct must occur for double jeopardy to bar a retrial. Regarding the prosecutor's failure to produce capacity assessments and a witness list, the Commonwealth maintains that mere technical violations of the criminal discovery rules do not amount to the intentional deprivation of Appellee's right to a fair trial. The Commonwealth concludes the prosecutor's actions did not rise to the level of misconduct sufficient to bar retrial under the double jeopardy clause of the Pennsylvania Constitution, and this Court must reverse the order granting Appellee's motion to dismiss.*fn3 We disagree.

Prior to Smith, supra, our Supreme Court held that double jeopardy will attach only to those mistrials intentionally caused by overt prosecutorial misconduct. See Commonwealth v. Simons, 514 Pa. 10, 16, 522 A.2d 537, 540 (1987). In Smith, however, our Supreme Court recognized the need to expand this standard to address situations ...

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