Argued: October 29, 2014.
As Corrected March 24, 2015.
Appeal from the Order Entered January 14, 2014. In the Court of Common Pleas of Juniata County. Criminal Division at No: CP-34-CR-0000235-2011. Before MORROW, J.
Nevin R. Zimmerman, Mifflintown, for appellant.
Cory J. Snook, Assistant District Attorney, Mifflintown, for Commonwealth, appellee.
BEFORE: BOWES, OTT, and STABILE, JJ. OPINION BY STABILE, J.
Appellant, David Karl Graham, appeals from the January 14, 2014 order denying Appellant's pretrial motion to dismiss all charges against him. Appellant argues the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution bars retrial because the prosecutor's misconduct during Appellant's first trial resulted in mistrial. After review, we affirm.
This prosecution commenced on November 16, 2011 when police filed a criminal complaint charging Appellant with 12 counts of aggravated indecent assault, 12 counts of indecent assault, and one count of corruption of minors. The alleged victim is Appellant's daughter (" Daughter" ), who was eight years old at the time of the alleged sexual assaults and twenty-five years old at trial. Appellant's trial commenced on April 3, 2013 but resulted in a mistrial when a Commonwealth witness testified about sexual misconduct unrelated to the charged offenses. Specifically, Appellant's wife testified that her son from another marriage also was involved, presumably as another of Appellant's sexual assault victims. N.T., 4/3/13, at 87.
On April 4, 2013, the Commonwealth filed a motion to relist Appellant's trial for jury selection. The trial court granted that motion one week later. On May 17, 2013, Appellant filed a pre-trial motion seeking dismissal of all of his charges under the Double Jeopardy Clause. The trial court conducted a hearing on that motion on July 16, 2013. On January 14, 2014, the trial court filed its order denying that motion. This timely appeal followed. Appellant presents two questions for our review:
1. Was the lower court's factual finding that the Commonwealth did not intentionally elicit testimony in a bad faith effort to prejudice [Appellant] at trial, such that no intentional prosecutorial misconduct occurred, supported by competent evidence of record?
2. Did the lower court commit an error of law in denying [Appellant's] Motion to Dismiss on the grounds of double jeopardy by finding that no intentional prosecutorial misconduct occurred?
Appellant's Brief at 5.
We conduct our review as follows:
An 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[.] 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. Kearns, 2013 PA Super 185, 70 A.3d 881, 884 (Pa. Super. 2013), appeal denied, 84 A.3d 1063 (Pa. 2014).
Both of Appellant's arguments challenge the trial court's conclusion that the prosecutor did not engage in intentional misconduct. We will consider them together. The Double Jeopardy Clauses of the Fifth Amendment to the United States Constitution and Article 1, § 10 of the Pennsylvania Constitution protect a defendant from repeated criminal prosecutions for the same offense. Id. Ordinarily, the law permits retrial when the defendant successfully moves for mistrial. If, however, the prosecution engages in certain forms of intentional misconduct, the Double Jeopardy Clause bars retrial. Id. at 884. Article I, § 10, which our Supreme Court has construed more broadly than its federal counterpart, bars retrial " not only when prosecutorial misconduct is intended to provoke the defendant into moving for a mistrial, but also when the conduct of the prosecutor is intentionally undertaken to prejudice the defendant to the point of the denial of a fair trial." Commonwealth v. Smith, 532 Pa. 177, 615 A.2d 321, 325 (Pa. 1992). An error by a prosecutor does not deprive the defendant of a fair trial. Kearns, 70 A.3d at 884. " However, where the prosecutor's conduct changes from mere error to intentionally subverting the court process, then a fair trial is denied." Id. (quoting Commonwealth v. Chmiel, 2001 PA Super 34, 777 A.2d 459, 464 (Pa. Super. 2001), appeal denied, 567 Pa. 736, 788 A.2d 372 (Pa. 2001), cert. denied, 535 U.S. 1059, 122 S.Ct. 1921, 152 L.Ed.2d 829 (2002)).
Thus under Pennsylvania jurisprudence, it is the intentionality behind the Commonwealth's subversion of the court process, not the prejudice caused to the defendant, that is inadequately remedied by appellate review or retrial. By and large, most forms of undue prejudice caused by inadvertent prosecutorial error or misconduct can be remedied in individual cases by retrial. Intentional prosecutorial misconduct, on the other hand, raises systematic concerns beyond a specific individual's right to a fair trial that are left unaddressed by retrial. As this Court has often repeated, '[a] fair trial is not simply a lofty goal, it is a constitutional mandate, ... [and] [w]here that constitutional mandate is ignored by the Commonwealth, we cannot simply turn a blind eye and give the Commonwealth another opportunity.'
Id. at 884-85 (quoting Chmiel, 777 A.2d at 464).
Pursuant to Chmiel, our first inquiry is whether the prosecutor engaged in misconduct at all. Prosecutorial misconduct occurs where the " unavoidable effect" of the prosecutor's actions is to " prejudice the jury, forming in their minds fixed bias and hostility towards the accused so as to hinder an objective weighing of the evidence and ...