Appeal from the Order Entered March 14, 2011 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0013663-2008
BEFORE: BENDER, J., LAZARUS, J., and STRASSBURGER, J. [*]
The Commonwealth appeals from the trial court's order dismissing the prosecution and barring the retrial of Appellee, Kenneth Kearns, on double jeopardy grounds, following the trial court's previous order granting his request for a mistrial due to discovery violations committed by the Commonwealth. After careful review, we reverse.
The Commonwealth charged Appellee by criminal information with attempted homicide, two counts of aggravated assault, and reckless endangerment. The charges arose out of an incident that occurred on June 15, 2008, in which Appellee shot the victim, Joseph Allen Piole, during an altercation at Appellee's home. Appellee's non-jury trial began on May 3, 2010, but it ended in a mistrial.
The trial court's accounting of the events that transpired before and during Appellee's trial, ultimately leading to the mistrial and subsequent dismissal of the prosecution, are as follows:
During the Commonwealth's presentation of evidence, defense counsel learned of the existence of an incident report prepared by the West Deer Township Police [(Report)] dated June 15, 2008. . . . Defense counsel brought the existence of this previously undisclosed report to this Court's attention and requested a postponement. The postponement was granted. When the parties reconvened on May 13, 2010, the District Attorney's Office revealed to the Court that on May 6, 2010, it ha[d] requested the entire case file from the West Deer Police Department and, in reviewing that file, determined that there were two additional documents that had not been previously disclosed to defense counsel [(Statements 1 and 2)]. [Statement 1] is a hand-written statement by [a] witness, Pamela Truckley, who was present when the victim and the defendant engaged in their altercation and when the defendant shot the victim. [Statement 2] was a written statement provided by the defendant after his arrest. When the parties reconvened, defense counsel requested a mistrial based upon the failure of the Commonwealth to provide essential and material discovery to the defendant. Clearly, the [Report], the initial hand-written statement of the only other person who witnessed this incident [Statement 1] and the original handwritten statement of the defendant [Statement 2] were vitally important documents that should have been provided to defense counsel at some time prior to the middle of the trial. To expect trial counsel to digest the matters set forth in those reports and continue to represent the defendant at the trial was unreasonable and this Court, accordingly, granted a mistrial. The defendant thereafter filed a Motion to Dismiss alleging a double jeopardy violation. Considering the arguments of counsel and reviewing the facts in this matter, this Court entered an Order dismissing the charges and barring a retrial. The Commonwealth appealed from that Order.
TCO, 2/12/12, at 2 – 4.
The Commonwealth presents the following question for our review:
Whether the trial court erred and abused its discretion in granting the motion to dismiss charges where the failure to disclose the relevant reports was not intentional, the materials were duplicative of information and materials that had already been provided to appellee, appellee suffered no prejudice by the late disclosure, and appellee initially requested, and was granted, a new trial[?]
Commonwealth's Brief, at 6.
Although not expressly stated in the question raised by the Commonwealth, the trial court dismissed the prosecution on double jeopardy grounds, and "[a]n 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[.]" Commonwealth v. Vargas, 947 A.2d 777, 780 (Pa. Super. 2008) (internal citations omitted). 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. Wood, 803 A.2d 217, 220 (Pa. Super. 2002) (quoting Commonwealth v. Young, 692 A.2d 1112, ...