July 18, 2013
COMMONWEALTH OF PENNSYLVANIA
AMIEN PATTON, Appellant COMMONWEALTH OF PENNSYLVANIA
THERIM RAHMEE POWELL, Appellant
Appeal from the Order Entered November 2, 2012, in the Court of Common Pleas of Lycoming County Criminal Division at Nos. CP-41-CR-0000826-2009, CP-41-CR-0000700-2009.
BEFORE: FORD ELLIOTT, P.J.E., PANELLA AND FITZGERALD, [*] JJ.
FORD ELLIOTT, P.J.E.
In these related appeals, two co-defendants appeal the trial court's order denying their motions to dismiss their cases based on double jeopardy grounds following three mistrials allegedly occasioned by intentional prosecutorial misconduct. Finding no error, we affirm.
Initially, we note that this is an appeal from an interlocutory order. In Pennsylvania, a defendant is entitled to an immediate interlocutory appeal as of right from an order denying a non-frivolous motion to dismiss on state or federal double jeopardy grounds. Commonwealth v. Barber, 940 A.2d 369, 376 (Pa.Super. 2007), appeal denied, 599 Pa. 686, 960 A.2d 835 (2008). Thus, we find that this appeal is properly before us.
We find no error with either the trial court's decision or rationale. After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the trial court, it is our determination that there is no merit to the question raised on appeal. The trial court's careful, ten-page opinion, filed on November 5, 2012, comprehensively discusses and properly disposes of the question presented. We will adopt it as our own and affirm on that basis.
We agree with the trial court that the Commonwealth is basically blameless as to the first two mistrials. We also agree with the trial court that the most egregious action of the Commonwealth was the playing of the video that depicted appellants refusing a consent search of their vehicle. This followed an earlier testimonial incident that involved a veiled reference to the refusal. However, the court made a specific credibility determination that the prosecutor was telling the truth when she testified that she had told her intern that the jury must not see this portion of the video. (Trial court opinion, 11/5/12 at 10.) The court also appears to accept the explanation of the intern who was operating the video that the incident was accidental. We must defer to the credibility determinations of the trial judge, who had the opportunity to observe the witness' credibility. Commonwealth v. Wright, 867 A.2d 1265, 1267 (Pa.Super. 2005), appeal denied, 583 Pa. 695, 879 A.2d 783 (2005), cert. denied, Wright v. Pennsylvania, 546 U.S. 1104 (2006). Therefore, we accept the trial court's conclusion that the actions of the Commonwealth were not intentional.
Accordingly, having found that the trial court properly assessed that the actions of the Commonwealth were not intentional, we will affirm the order below.