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Commonwealth v. Orie

Superior Court of Pennsylvania

March 6, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
JANE C. ORIE, Appellant

Argued December 10, 2013.

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Appeal from the Judgment of Sentence of the Court of Common Pleas, Allegheny County, Criminal Division, No(s): CP-02-CR-0010285-2010, CP-02-CR-0012098-2011. Before MANNING, J.

William Costopoulos, Lemoyne, for appellant.

Michael W. Streily, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.

BEFORE: DONOHUE, J., OTT, J., and PLATT, J.[*] OPINION BY OTT, J.

OPINION

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OTT, J.:

Jane C. Orie brings this appeal from the judgment of sentence imposed on June 4, 2012, in the Court of Common Pleas of Allegheny County. Orie was found guilty by a jury of theft by diversion of services (two counts), conspiracy -- theft by diversion of services, conflict of interest (two counts), and tampering with or fabricating physical evidence (two counts)[1] (Docket No. 10285-2010). On a separate information, the jury found Orie guilty of forgery (two counts), and tampering with or fabricating physical evidence (five counts)[2] (Docket No. 12098-2011). The trial court sentenced Orie to an aggregate sentence for both cases of 30 to 120 months' imprisonment, and ordered Orie to pay restitution,[3] and reimbursement for outside counsel fees incurred by the Senate Republican Caucus (Caucus) in the amount of $110,650.00, pursuant to 18 Pa.C.S. § 5303. Orie presents ten questions for our review, involving issues of double jeopardy, preclusion of testimony, suppression, weight and sufficiency of the evidence, reimbursement under 18 Pa.C.S. § 5303, merger, alleged animus of the prosecutor, and the constitutionality of Pennsylvania's conflict of interest statute, 65 Pa.C.S. § 1103(a). Based upon the following, we affirm.

The case at Docket No. 10285-2010 began after a graduate student intern filed a handwritten complaint with the Office of the District Attorney of Allegheny County, alleging that while she worked in the district office of Orie, a Pennsylvania Senator representing the 40th Senatorial District, she had observed staff members engaging in political campaign work. The case proceeded to trial, but ended in a mistrial when, during jury deliberations, altered defense exhibits were discovered. That discovery led to the charges at Docket No. 12098-2011. As the trial court more fully explained:

... [Orie] was originally charged at [Docket No.] 201010285, pursuant to a presentment issued by the A2008 Allegheny County Investigating Grand Jury on April 4, 2010, with three counts of Theft by Diversion of Services (18 Pa.C.S.A. § 3926(b)); one count of Criminal Conspiracy-Theft by Diversion of Services (18 Pa.C.S.A. § 903(a)(1)); three counts of Violating the Conflict of Interest Statute (65 Pa.C.S.A. § 1103(a)); and three counts of Tampering [W]ith [or] Fabricating Physical Evidence (18 Pa.C.S.A. § 4910(1)).

The first trial on those charges ended in a mistrial on March 3, 2011.1

1[Orie] was tried together with Janine Orie, her sister, who was charged with similar offenses.

The case was scheduled for retrial. [Orie] filed a motion seeking to bar the retrial on double jeopardy grounds. In an Opinion and Order dated April 5, 2011, the Motion was denied. [Orie] filed a Petition with the Superior Court seeking leave to file an interlocutory appeal from the denial of her Motion seeking to bar the retrial on double jeopardy grounds. The Superior Court denied the Petition on April 13, 2011 on the basis that the appeal was frivolous and [Orie] filed a Petition for Allowance of Appeal from the Supreme Court. On

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June 23, 2011 the Supreme Court vacated the Superior Court order as it pertained to the determination that the appeal was frivolous and remanded the matter to that Court to address that issue.2

2[Orie] also appealed [the trial] Court's denial of the request made, with the filing of the Motion to Dismiss, that [the trial] Court recuse. The Supreme Court affirmed the Superior Court's ruling affirming [the trial] Court's denial of the Motion to Recuse.

The Superior Court, in turn, remanded the matter to [the trial] Court to prepare a supplemental Opinion on the issue of frivolousness. That Opinion was filed on July 14, 2011 and the matter was retransmitted to the Superior Court. In an Order dated August 31, 2011, the Superior Court affirmed. A Petition for Allowance of Appeal was filed but denied by the Supreme Court on September [27], 2011.

On August 29, 2011, [Orie] was charged, at [Docket No.] 201112098 with sixteen (16) additional criminal offenses. These new offenses arose out of the events that occurred at the first trial that caused the Court to declare a mistrial. ... In essence, forged documents were offered into evidence by the defense at that trial; documents that were authenticated by [Orie] and admitted into evidence by the Court. It was not until jury deliberations had commenced that the forged nature of the documents was discovered. The investigation into those documents led to the additional charges.
[At Docket No. 201112098, Orie] was charged with five (5) counts of Perjury (18 Pa.C.S.A. § 4902(a)); two (2) counts of Forgery-Uttering a Forged Writing (18 Pa.C.S.A. § 4101(a)(3)); six (6) counts of Tampering With or Fabricating Physical Evidence (18 Pa.C.S.A. § 4910(2)); one count each of Obstructing the Administration of Law or Other Governmental Function (18 Pa.C.S.A. § 5101); Perjury Under the Election Code (25 Pa.C.S.A. § 3502); and one count of Violating the Election Code Regarding the Reporting Obligations of Candidates (25 P.S. § 3246(a)).3
3 The new charges were joined for trial with the original charges. The case of the co-defendant, Janine Orie, was severed from this trial because of the new charges against this defendant, which did not involve Janine Orie.
This matter proceeded to trial before a jury on February 27, 2012. On March 26, 2012, the jury returned verdicts at both cases. At [Docket No.] 201010285, the jury found [Orie] guilty of the Theft by Diversion of Services charges at Counts 1 and 3; the Conspiracy charge at count 4[; ] the Conflict of Interest charges at counts 5 and 6; and [] the Tampering With or Fabricating Physical Evidence charges at counts 8 and 9. The jury found [Orie] not guilty of the Theft by Diversion of Service charge at count 2; the Conflict of Interest charge at count 7; and the Tampering [W]ith or Fabricating Physical Evidence charge at count 10.
At [Docket No.] 201112098, the jury found [Orie] guilty of Forgery charges at counts 6 and 7; [five] of the [six] Tampering With or Fabricating Physical Evidence charges, filed at counts 8, 9, 10, 11 and 12; [Orie] was found not guilty of the five (5) Perjury counts, five (5) Perjury charges at counts 1 through 5; the Tampering With or Fabricating Physical Evidence charge at Count 13; the Obstruction of Justice charge at count 14; the Perjury charge at count 15; and the Election Code Reporting Violation at count 16. Sentencing was originally scheduled for May 21, 2012, but was postponed. The Commonwealth filed a Petition with the Court seeking,

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in addition to standard restitution and costs of prosecution, reimbursement pursuant to 18 Pa.C.S.A. § 5303 and for the imposition of the penalty provided for 65 Pa.C.S.A. § 1109. The defense filed a Memorandum in Opposition.

On June 4, 2012, [Orie] was sentenced, at [Docket No.] 201010285, to not less than six (6) nor more than twenty-four (24) months at counts 1, 3 and 4, to run consecutive to one another, for an aggregate term of imprisonment at that case of not less than eighteen (18) nor more than seventy-two (72) months. No penalty was imposed on the remaining counts for which a verdict of guilty was returned.
At [Docket No.] 201112098, the Court sentenced [Orie] to not less than four (4) nor more than twelve (12) months at each of the two Forgery counts; to not less than two (2) nor more than twelve (12) months at the Tampering With Physical Evidence charges at counts 8 and 10, and to no further penalty on the remaining counts. Those sentences were likewise ordered to run consecutive to one another and consecutive to the sentences imposed in the other case. The aggregate sentence imposed for both cases was not more than thirty (30) nor less than one hundred and twenty (120) months incarceration [sic]. The Court deferred the ruling on the request for restitution and reimbursement pending a further hearing and the submission of briefs by the parties. In the Memorandum Opinion [and Order] filed on July 3, 2012, the Court addressed the request for restitution and reimbursement.[4]

Trial Court Opinion, 1/17/2013, at 2-6.

On June 15, 2012 [5], Orie timely filed post-sentence motions, which were denied by the court on August 29, 2012. Orie then filed a notice of appeal on September 6, 2012,[6] and filed her Pa.R.A.P. 1925(b) statement of errors complained of on appeal on September 25, 2012. The trial judge, the Honorable Jeffrey A. Manning, filed his Rule 1925(a) opinion, dated December 28, 2012, on January 17, 2013. This opinion supplemented five previous opinions that address issues raised in this appeal.[7]

The trial court opinion and record were transmitted to this Court on March 14, 2013. Thereafter, Orie timely filed her brief on April 22, 2013, and the Commonwealth timely filed its brief on June 12, 2013, having requested and been granted an extension of time. Orie filed a reply brief on June 25, 2013. This appeal was then listed for oral argument on the first available list in Pittsburgh, scheduled to convene September 24-26, 2013. However, the appeal was removed from the argument list on August 22, 2013, due to recusal issues, and returned to the Prothonotary of this Court for relisting. On

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September 18, 2013, Orie filed an application for relief, requesting that the case be relisted for argument in October, 2013. In response, this Court, on September 26, 2013, issued a per curiam order, granting the application to the extent that the appeal would be listed for argument before the panel sitting in Harrisburg on December 10-12, 2013. Oral argument took place as scheduled on December 10, 2013.

Orie presents the following questions for our review:

I. Whether the retrial should have been barred on state and federal double jeopardy grounds because the trial court lacked the " manifest necessity" to declare a mistrial while the jury was deliberating in the first trial?

II. Whether the trial court erred in precluding the testimony of the longtime Senate Republican Chief Counsel Steve MacNett, who would have testified at the second trial as he did at the first that Senate policy permitted campaigning during the legislative day with the use of comp time which testimony was needed to rebut that of the prosecution witness, Russ Faber, Senate Chief Clerk, who testified to the contrary?

III. Whether the trial court erred in refusing to suppress the massive amounts of physical evidence in this case (documents, cell phone records, e-mails, computer hard drives, etc.) which evidence was obtained by search warrants that were general investigatory warrants, overbroad, " overseizing" and violative of the speech [and] debate clauses of the state and federal constitutions; furthermore, the taint team in place was procedurally defective?
IV. Whether the forgery convictions must be vacated and dismissed because there was insufficient evidence for the jury to conclude beyond a reasonable doubt that [Orie] was responsible for forging the subject documents or knowingly introducing them at the first trial?
V. Whether the forgery convictions were against the weight of the evidence because no rational juror could infer beyond a reasonable doubt on the evidence adduced that [Orie] was responsible for forging the subject documents or knowingly introducing them at the first trial?
VI. Whether the trial court erred in ordering over $110,000 in restitution be paid by [Orie] for legal fees and costs incurred by counsel for the Senate Republican Caucus when the Caucus is not an " agency" under [18 Pa.C.S. § 5303] and counsel almost exclusively represented the interests of the Caucus itself and not [Orie]?
VII. Whether [Orie's] theft sentences are illegal and should have merged because there was only one theft based on the underlying allegations involving Senator Orie and Justice Orie Melvin?
VIII. Whether the trial court erred in refusing to recuse the District Attorney's office from the instant prosecution because of its conflict of interest or personal animus or the appearance thereof?
IX. Whether the trial court erred in granting the prosecution's motion to preclude from trial any evidence of or argument about the long-standing political feud between the Zappala family and the Orie family

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which was an essential part of the res gestae of this case?

X. Whether the Pennsylvania Conflict-of-Interest Statute is unconstitutionally vague on its face as well as vague and overbroad because it violates [Orie's] right of free speech and association protected by the First Amendment of the United States Constitution and Article I, Section 7 of the Pennsylvania Constitution?

Orie's Brief at 6-7. We address these questions in the order in which they are set forth above.[8]

I. DOUBLE JEOPARDY

In the first issue raised in this appeal, Orie challenges the trial judge's denial of her motion to dismiss the original charges based upon the claim of double jeopardy.

Prior to discussing this issue, some background information is necessary. As the excerpt from the trial court's opinion relates, after the initial case was scheduled for retrial due to a mistrial, Orie filed a number of motions, including, inter alia, a motion to dismiss on the grounds of double jeopardy, and a motion for recusal. The trial court denied the motions, and specifically found that the motion to dismiss was " frivolous as a matter of law." [9] Orie then appealed, proceeding as if the order was a final order under 42 Pa.C.S. § 742, and also seeking permission to appeal the order as an interlocutory order. This Court, by per curiam order of April 13, 2011, treated the appeal as a petition for review, and denied relief. Orie then filed a petition for review in the Pennsylvania Supreme Court. The Supreme Court, treating the petition as a petition for allowance of appeal, granted the petition in part, vacated this Court's order regarding the double jeopardy challenge, and remanded the matter for this Court to review the trial court's determination of frivolousness. See Commonwealth v. Orie , 610 Pa. 552, 22 A.3d 1021 (Pa. 2011) (clarifying procedure for a pretrial double jeopardy challenge dismissed as frivolous).

This Court, in turn, remanded the case to the trial court, giving that court and the parties a limited period to supplement their respective positions on the specific issue of frivolousness. The trial court reiterated its determination and, upon return of the record to this Court, this Court agreed with the trial court's finding that the motion to dismiss was frivolous. This Court affirmed the trial court's order, and the Pennsylvania Supreme Court denied Orie's petition for allowance of appeal. See Commonwealth v. Orie , 2011 PA Super 190, 33 A.3d 17 (Pa. Super. 2011), appeal denied, 613 Pa. 112, 32 A.3d 1195 (Pa. 2011). The second trial proceeded before a jury on February 27, 2012, ending with Orie's convictions as set out above. Orie's challenge to the trial court's decision that rejected her double jeopardy claim is now before this Court for review on the merits.[10]

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We begin with the following summary of the events that occurred at the first trial on March 3, 2011:

On March 3, 2011, as the jury was starting its first full day of deliberations, the Commonwealth informed the trial court that it believed there had been a fraud upon the court. The trial court halted jury deliberations. Following the arrival of defense counsel, the Commonwealth alleged that two defense exhibits had been forged. Ultimately, after permitting both parties to argue the appropriate remedy for the alleged forgery and allowing the Commonwealth to present expert testimony in support of the allegation that the documents were forged, the trial court declared a mistrial.

Orie, supra , 22 A.3d at 1023.

The details of the forged defense exhibits are extensively set forth in this Court's earlier decision concerning Orie's pre-trial double jeopardy challenge. See Orie, supra , 33 A.3d at 21-25. Specifically, the documents exhibited an altered signature of Pavlot. As the trial court explained:

After the recess [to allow the Commonwealth to secure the presence of a document examiner], the witness, George Papadopolous, testified that Jamie Pavlot's signature on both Exhibits 101-B and 110 had been cut from other documents and pasted on. He specifically concluded that the signature on Exhibit 110 was lifted from Exhibit 101-A.

Id. at 24, quoting Trial Court Opinion, dated 4/4/2011 (filed 4/5/2011). The trial court explained the nature of the documents, as follows:

The documents that this [c]ourt determined to have been altered were first identified during the cross examination of Ms. Pavlot. The defense presented her with fifty separate documents which allegedly contained written directives from [Orie] instructing Ms. Pavlot to make sure that campaign activities were not engaged in on State time. Although [Pavlot] recognized the typed portion of both of those documents, she did not recognize [the] hand written notations also included.

Id. at 29, quoting Trial Court Opinion, supra.

The crux of Orie's double jeopardy claim is her contention that the trial court lacked the " manifest necessity" to declare a mistrial. In examining this issue, we are guided by the following principles:

It is within a trial judge's discretion to declare a mistrial sua sponte upon the showing of manifest necessity, and absent an abuse of that discretion, we will not disturb his or her decision. Commonwealth v. Leister , 712 A.2d 332, 334 (Pa. Super. 1998) (citing Commonwealth v. Gains , [383 Pa.Super. 208, 556 A.2d 870] (Pa. Super. 1989)); Pa.R.Crim.P. 1118(b) (amended and renumbered as Rule 605, effective April 1, 2001). Where there exists manifest necessity for a trial judge to declare a mistrial sua sponte, neither the Fifth Amendment to the United States Constitution, nor Article I, § 10 of the Pennsylvania Constitution will bar retrial. Leister, 712 A.2d at 335 (citing Commonwealth ex rel. Walton v. Aytch , 466 Pa. 172, 352 A.2d 4 [(1976))].

In Commonwealth v. Diehl , 532 Pa. 214, [216-17], 615 A.2d 690, 691 (1992)], our Supreme Court, when considering whether manifest necessity for the trial court's sua sponte declaration of a mistrial existed, stated:

Since Justice Story's 1824 opinion in United States v. Perez , 22 U.S. (9 Wheat.) 579, 580, 6 L.Ed. 165, it has

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been well settled that the question whether under the Double Jeopardy Clause there can be a new trial after a mistrial has been declared without the defendant's request or consent depends on [whether] there is a manifest necessity for the mistrial, or the ends of public justice would otherwise be defeated. Commonwealth v. Bartolomucci , 468 Pa. 338, 362 A.2d 234 (1976), citing United States v. Dinitz , 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976). It is important to note that in determining whether the circumstances surrounding the declaration of a mistrial constitute manifest necessity, we apply the standards established by both Pennsylvania and federal decisions. Commonwealth v. Mitchell , 488 Pa. 75, 410 A.2d 1232 (1980).

Pennsylvania Rule of Criminal Procedure [605(B)] provides that:

When an event prejudicial to the defendant occurs during trial only the defendant may move for a mistrial; the motion shall be made when the event is disclosed. Otherwise, the trial judge may declare a mistrial only for reasons of manifest necessity.

In accordance with the scope of our review, we must take into consideration all the circumstances when passing upon the propriety of a declaration of mistrial by the trial court. The determination by a trial court to declare a mistrial after jeopardy has attached is not one to be lightly undertaken, since the defendant has a substantial interest in having his fate determined by the jury first impaneled. Commonwealth v. Stewart , 456 Pa. 447, 317 A.2d 616, 619 (1974), citing United States v. Jorn , 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971). Additionally, failure to consider if there are less drastic alternatives to a mistrial creates doubt about the propriety of the exercise of the trial judge's discretion and is grounds for barring retrial because it indicates that the court failed to properly consider the defendant's significant interest in whether or not to take the case from the jury. Commonwealth ex rel. Walton v. Aytch , 466 Pa. 172, 352 A.2d 4 (1976). Finally, it is well established that any doubt relative to the existence of manifest necessity should be resolved in favor of the defendant. Bartolomucci , 468 Pa. at 347, 362 A.2d 234.

We do not apply a mechanical formula in determining whether a trial court had a manifest need to declare a mistrial. " Rather, 'varying and often unique situations arise during the course of a criminal trial...[and] the broad discretion reserved to the trial judge in such circumstances has been consistently reiterated....'" Leister , 712 A.2d at 335 (quoting Illinois v. Somerville , 410 U.S. 458, 462, 93 S.Ct. 1066, 1069, 35 L.Ed.2d 425 (1973)); Commonwealth v. Morris , 2001 PA Super 112, 773 A.2d 192 (Pa. Super. 2001).

[Commonwealth v.] Kelly , 2002 PA Super 65, 797 A.2d [925,] 936-937 [(Pa. Super. 2002)].

****

... [T]here can be no rigid rule for finding manifest necessity since each case is individual. Commonwealth v. Rivera , 715 A.2d 1136, 1138 (Pa. 1998). Moreover, as a general rule, the trial court is in the best position to gauge potential bias and deference is due the trial court when the grounds for the mistrial relate to jury prejudice.

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Arizona v. Washington , 434 U.S. 497, 513-514, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978). From his or her vantage point, the trial judge is the best arbiter of prejudice, because he or she has had the opportunity to observe the jurors, the witnesses, and the attorneys and evaluate the scope of the prejudice. Id.

Commonwealth v. Walker , 2008 PA Super 182, 954 A.2d 1249, 1254-1256 (Pa. Super. 2008), appeal denied, 600 Pa. 762, 967 A.2d 959 (Pa. 2009) (footnote omitted).

The effect of the forged defense documents, which the jury then had in its possession,[11] was described by Judge Manning, as follows:

THE COURT: At the previous hearing this morning the Court made essentially the same observations as the expert did, but I did not want it to be only the Court that was making those conclusions. That is why the expert has corroborated what the Court has found.
These are critical documents that were not provided to the Commonwealth until the witness has testified. They were marked by counsel, they were used to cross-examine the witness, a crucial witness for the Commonwealth, causing her on a number of occasions to say that she never saw them. That was an attack on her credibility being the principal witness as I see it against [Orie].
The documents were then identified and authenticated by [Orie] in her own testimony and offered into evidence.
But the Court now has the situation where a jury has gone to deliberate the documents that are fraudulent. It is evidence that strikes at the heart of the case. It is a fraud on the Court, it is on the jury, and on our justice system.
And frankly, ..., that is what is outrageous. It calls into suspicion every document that the defense offered. And it is deceitful, it is dishonest, it is despicable, and it is a crime. And I don't know who among the parties involved for the defense has done this, but I cannot allow this jury to continue with fraudulent information in front of them. Go get them.

N.T., 3/3/2011 at 33-34.

Judge Manning reasoned:

The submission into evidence of documents that were altered worked a fraud upon this Court. ... Such an attempt clearly occurred here.

This Court was not dealing with fraud discovered after a judgment had been entered.... Nor was it dealing with a decision it had reached that was later determined to have been secured through the presentation of coerced, perjurious testimony, as occurred in Commonwealth v. Harper , [2006 PA Super 3,] 890 A.2d 1078 (Pa. Super. 2006) (Superior Court affirmed decision by PCRA court to reverse its year old decision granting defendant a new trial where it was determined that testimony that led to new trial was perjured and witness was coerced into testifying). This Court was dealing with freshly discovered fraud; fraud that had not yet ripened into the subversion of justice that would have been the result had the

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 jury rendered its verdict in reliance on that forged evidence.

This Court did not just have the power to declare a mistrial to prevent the possibility of a verdict tainted by the forged evidence; it had an obligation to do so.
The authority of a Court to set aside a judgment or decision obtained by fraud, as established in ... Harper , certainly extends to when a court is confronted with fraud that has not yet affected a verdict or decision. Declaring a mistrial avoided the possibility of a verdict tainted by the forged evidence.

Trial Court Opinion, 4/5/2011, at 12-14 (emphasis in original).

In this appeal, Orie maintains that the trial court lacked the manifest necessity to declare a mistrial during jury deliberations. In support of her position, Orie argues (1) the trial court's decision cannot be supported by legal authority, (2) the trial court improperly substituted itself as fact finder in this jury trial, (3) the trial judge failed to consider available, less drastic alternatives, (4) the Commonwealth failed to exercise reasonable diligence in ascertaining that the documents were forgeries, and (5) the documents at issue were completely immaterial to the case.[12]

These arguments present no basis upon which to grant relief. Orie's argument that the court lacked legal authority to declare a mistrial fails, based upon the legal authority correctly cited by the trial court in support of its decision: Commonwealth v. Harper , 2006 PA Super 3, 890 A.2d 1078, 1082 (Pa. Super. 2006) (" courts simply will not countenance fraud, and when a decision is obtained through its use, the court retains the inherent power to rescind that decision" ). See also Trial Court Opinion, supra , at 12-13, citing Hazel-Altas Glass Co. v. Hartford-Empire Co. , 322 U.S. 238, 64 S.Ct. 997, 88 L.Ed. 1250, 1944 Dec. Comm'r Pat. 675 (1944) (reversing a 12 year judgment that had clearly been obtained through fraud). Once the trial judge realized forged documents had been admitted into evidence, he could not allow those documents to enter into the jury's deliberation and verdict.

Moreover, the court did not err in making the initial factual determination that the documents were forgeries. As the court cogently explained:

The jury was not presented with the evidence necessary for it to determine if the documents were forged. Although the defects in the signature on Exhibit 101-B were brought out in cross examination, the clear forgery of the other document was not before the jury as it was not discovered by the Commonwealth until after the jury received the case. To suggest that the jury would have been able to " ... determine whether any defense documents had been 'forged' or 'fabricated' and, if so, what the ramifications should be for the overall case and, ultimately, the verdict ..." ignores the fact that the jury was never instructed on what those ramifications could be. They were never instructed that if they concluded that certain documents offered by the defense were forgeries, they could consider that as evidence of guilty knowledge. More importantly, because the defense held these documents " close to the vest," figuratively

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and literally, not providing the Commonwealth with the opportunity to inspect them until the very end of the trial, the Commonwealth was left without the opportunity to present evidence to the jury that would have aided it in making a determination regarding the documents.

The question of whether the documents were forged was a factual question that this Court had to decide. If the Court determined that the evidence did not establish that the documents were altered or that the evidence was inconclusive, no further action would have been required or taken.

Trial Court Opinion, 4/5/2011, at 14-15.

Further, it is evident that the trial court considered all possible alternatives, including the remedies suggested by the parties.[13] Although Orie argues in her brief that the court could have given an unspecified special cautionary/limiting instruction, sealed the verdict, or ordered a continuance, Orie did not suggest these options to the court when the court asked for suggestions to address the fraud; these options are offered only in hindsight. Even if offered at trial, none of these now suggested remedies would have obviated the fraud.

In addition, no fault can be placed on the Commonwealth for not confirming that the documents had been altered until after the commencement of jury deliberations, since the defense refused to provide those documents until February 28, 2011, the penultimate day of trial.[14] Lastly, contrary to Orie's argument, the documents were not " immaterial," as the documents were used to attack the credibility of the Commonwealth's crucial witness, Pavlot, and were introduced and admitted in the defense case-in-chief to support Orie's defense that Pavlot had the complete authority to direct the staffers and that Pavlot acted on her own initiative and against Orie's directives that no improper political activity occur in

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the office.[15]

Here, the admission of the forged documents into evidence was not only a fraud upon the court, but also undermined the jury's fact finding function, and we agree with Judge Manning there was no other adequate method, except a mistrial, to cure the harm. During discussion of possible remedies, when the trial judge told counsel he would have to inform the jury of the forgeries, the defense itself responded that the court should instead declare a mistrial. See Footnote 13, supra. Furthermore, defense counsel's suggestion to the court that it do nothing and allow the jury to continue deliberation on the evidence presented was, in fact, no remedy, and was properly found to be unacceptable by the trial court. See id.

In sum, it was incumbent upon the court to protect and uphold the integrity of the judicial process, and there clearly was " manifest necessity" to declare a mistrial in this case. Accordingly, Orie's double jeopardy challenge fails.

II. TESTIMONY OF STEPHEN MacNETT

Orie challenges the decision of the trial court to preclude the testimony of Stephen MacNett, chief counsel to the Senate Republican ...


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