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Commonwealth v. Adams

Superior Court of Pennsylvania

December 27, 2017


         Appeal from the Order Dated May 5, 2016 In the Court of Common Pleas of Warren County Criminal Division at No(s): CP-62-CR-0000173-2015

          BEFORE: OLSON, J., SOLANO, J., and RANSOM, J.


          SOLANO, J.

         Appellant Jordan Timothy Adams appeals from the order entered May 5, 2016, denying his motion to dismiss the charges against him on double jeopardy grounds. Also before this Court is Appellant's Motion to Strike Appendix A of the Commonwealth's Brief. We affirm the order of the trial court and deny Appellant's Motion to Strike.

         On April 15, 2015, Appellant was charged with multiple crimes arising from the passing of counterfeit fifty-dollar bills at the Warren County Fair in August 2014.[1] Appellant's co-defendant, Christine Redding, was charged with similar crimes, including a charge of conspiring with Appellant to commit forgery. Redding later pleaded guilty to the criminal conspiracy charge, with the agreement that she would testify against Appellant.[2]Redding was subpoenaed to appear at Appellant's trial.

         Appellant filed a motion for discovery on November 17, 2015. The request included, among other things, "[a]ny evidence favorable to the accused which is material either to guilt or to punishment, and which is in the possession of the attorney for the Commonwealth, " and "[a]ll written or recorded statements, and substantially verbatim oral statements, made by co-defendants and by co-conspirators or accomplices, whether such individuals have been charged or not." Mot., 11/17/15, at ¶ A, K. The motion specified that the request was in accordance with Pa.R.Crim.P. 573, which governs discovery in a criminal case.

         Prior to trial, Appellant's counsel followed-up on the discovery motion by sending an e-mail to the prosecutor in the case, Warren County First Assistant District Attorney Caleb Gnage. The e-mail requested "any recorded statements by [Appellant] or any of the co[-]defendants." See Appellant's Ex. 3 to Hr'g on Appellant's Mot. to Dismiss. Gnage responded that he would have a copy of "the DVD" available for Appellant's counsel to pick up, and that he would "comb [the] file" for required discovery. Id. Gnage had previously sent an e-mail to the state police requesting "all the audio/video recordings admitted into evidence" on Appellant's case. Commonwealth's Ex. 1 to Hr'g on Appellant's Mot. to Dismiss.

         Appellant's jury trial began on June 12, 2016. The Commonwealth presented twelve witnesses who were vendors at the Warren County Fair and who had received counterfeit fifty-dollar bills on August 4, 2014.[3] None of the vendors were able to positively identify Appellant at trial, and none testified that they had been able to identify Appellant in a photographic lineup when interviewed by the police. However, three of the vendors gave descriptions of a man with characteristics similar to Appellant, and two of the vendors testified that they received a counterfeit bill from a man with a neck tattoo. Appellant has such a tattoo. One of those vendors testified that he received a first counterfeit bill from a young woman, and the second from a young man who had a neck tattoo and a hat displaying the emblem of a marijuana leaf.[4]

         State Trooper Jeffrey Osborne, the lead investigator on the case, testified that he was contacted by security for the fair and interviewed several vendors at the fair the next day, August 5, 2014.[5] After contacting other officers who were investigating counterfeit cases, he interviewed several suspects in those cases who had passed counterfeit bills with the same serial numbers as those recovered at the fair. The information garnered from those interviews led Osborne to suspect that Appellant and Redding had conspired to pass bills at the fair.

         Osborne testified that he interviewed Appellant twice. The first interview took place on April 27, 2015. It was audio recorded, but the recording was deleted when Osborne attempted to transfer the digital file to storage that same day. According to Osborne, [6] Appellant initially denied any knowledge of or involvement with the crime, but ultimately confessed to passing four or five counterfeit bills at the fair, with someone named "Carla, " and stated that he had purchased a hat with a marijuana leaf emblem. Appellant also said something to Osborne along the lines of "having a tattoo on his neck was not a good idea while committing a crime." N.T., 1/12/16, at 259.

         During the second interview, on May 6, 2015, Appellant again confessed to Osborne, this time to passing three counterfeit bills at the fair. The second interview was also audio recorded, and portions of it were played at trial.

         Osborne testified that he also interviewed Redding, but only once. When Appellant's attorney asked if that interview had been recorded, Gnage called a sidebar and informed the court that the interview of Redding would not have been recorded, as it was done during a polygraph examination. The prosecutor stated "she wouldn't have been video taped. And it's not the habit to video tape someone when they are under polygraph." N.T., 1/12/16, at 319. When questioning resumed, Osborne clarified that he interviewed Redding in jail, and that the interview was not recorded.[7] Osborne testified that Redding was later interviewed by Corporal Brian Zeybel at the police barracks (referring to the polygraph examination), but that Osborne was not present during that interview.

         Corporal Zeybel, whose job mainly entails conducting polygraph examinations, testified that he accompanied Trooper Osborne to the fair and assisted with interviewing witnesses. He testified that he also interviewed Redding.[8] When asked on cross-examination whether there was a recording of the interview, Zeybel answered that there was. A sidebar conference was called, at which Appellant's counsel complained that she was not given a copy of the recording of the interview. Appellant's counsel requested the opportunity to review the recording of the interview that night. Appellant's counsel was given a copy of the video, and court was adjourned.

         When Appellant's trial resumed the following day, Appellant moved for a mistrial. Appellant's counsel informed the court that the video in fact shows two interviews: (1) Zeybel's interview of Redding during the polygraph examination, and (2) Osborne interviewing Redding immediately afterwards. Gnage stated that he was unaware that Zeybel's interview had been recorded, as it was not indicated in the police report, and was unaware that Osborne had also interviewed Redding on that date, as this was also left out of the report.[9] Appellant argued that the statements made by Redding during the interviews were favorable to Appellant and would have altered the defense strategy at trial. In response, Gnage stated, "I agree that we have absolutely no argument and this is a Brady[10] violation. It's absolutely discoverable. It would change the nature of the defense." N.T., 1/13/16, at 6. The court granted the motion for a mistrial and dismissed the jury. Notably, Redding did not appear at the courthouse on either day of Appellant's trial.[11] The Commonwealth did not appeal the mistrial order.

         On April 11, 2016, Appellant filed a motion to dismiss the charges. Appellant contended that prosecutorial misconduct warranted the dismissal because Trooper Osborne and Corporal Zeybel knew of the two recorded interviews of Redding and failed to provide them to Appellant or include them in the police report, and Gnage misled the court by stating that no such video existed. Appellant argued that the Commonwealth should be precluded from retrying Appellant, as it would violate his double jeopardy rights under the Fifth Amendment to the United States Constitution, and Article I, Section 10 of the Constitution of Pennsylvania.

         In its answer, which was filed by Gnage, the Commonwealth asserted that the videos of Redding's statements to Osborne and Zeybel were not subject to mandatory disclosure under Pa.R.Crim.P. 573(B)(1), [12] but instead were subject to discovery pursuant to a court order under Pa.R.Crim.P. 573(B)(2)(a)(iii), [13] and that their discovery had not been ordered by the court. The Commonwealth also argued that no prosecutorial misconduct had occurred, as the Commonwealth was not aware of the existence of the undisclosed recordings of the interviews and did not intentionally withhold any discoverable evidence from Appellant. According to the Commonwealth, the police "simply neglected" to communicate the existence of the recordings to the prosecutor, and did not act with the intention of causing prejudice to Appellant. See Resp. 5/2/16, at ¶ 9.

         The Commonwealth attached to its answer a copy of the full 44-page police report authored in alternating portions by Osborne and Zeybel (and some other officers), which was given to the defense prior to trial. In a portion authored by Osborne, the report states that on May 12, 2015, Redding took a polygraph test, and "[a]ccording to Zeybel, Redding failed the polygraph test. The supplemental report from Cpl. Zeybel will be attached to this report when received. Reference supplemental report from Cpl. Zeybel for additional details." Report at 36 (some capitalization omitted). The report does not mention Osborne's interview of Redding that day, or that either interview was recorded.

         The supplemental polygraph report (authored by Zeybel, and incorporated at pages 37 through 39 of the police report) does not state that the examination was audio- or video-recorded. The supplemental report states that Redding told Zeybel that she had made plans to accompany Appellant to the fair in order to pass counterfeit bills, but "just prior to the scheduled trip[, ] the car they were to use got a flat tire and Redding decided to back out of the planned scam, " and "Redding . . . believes [Appellant] did in fact come to Warren Co. and pass some fake bills at the Fair as planned." Report at 39 (capitalization omitted). The report also conveys the following: "Redding wanted back out on the street mentioning ankle monitors, doing sex acts with [another counterfeit suspect] in attempt to gather information for [the police], wearing a wire, and or anything else to get her out of jail. Redding was desperate to say the least." Id. (capitalization omitted).[14]

         A hearing was held on the motion to dismiss on May 5, 2016. Robert Greene, the District Attorney for Warren County, represented the Commonwealth. Trooper Osborne testified that he arranged for Zeybel's polygraph of Redding, but was not present in the room during the test itself. Osborne stated that he has no knowledge of the polygraph procedures, including when Zeybel records polygraph examinations, or when those recordings are entered into evidence in a case.

         Osborne testified that he did not remember that he interviewed Redding after the polygraph exam until the video of the interview came to light at Appellant's trial. He had not known at the time of the interview that the interview was recorded, as it was recorded by Zeybel's polygraph equipment and not his own recording equipment, and he had not reported the interview in the police report. Normally, according to Osborne, if he was recording an interview, he would start by informing the subject that he or she was being recorded, and the video of his interview of Redding shows that was not done. Osborne testified that he never intentionally lied during Appellant's trial about not interviewing Redding after the polygraph examination, and that he never intentionally withheld the video. According to Osborne, Redding did not disclose any material information during the interview.

         Osborne testified that the police report also indicates that both Osborne and Zeybel spoke to Redding again on May 15, 2015, the day after the polygraph exam. See Report at 39. He said he does not recollect that conversation. He did not mention that third interview during his direct testimony at trial.

         Osborne also testified that he did not mention his first interview with Appellant (the recording of which had been deleted) in the report because it "wasn't important enough." N.T., 5/5/16, at 21. Osborne testified that Gnage had requested all evidence from the police in preparation for trial, but Osborne could not recall whether Gnage had specifically asked for recorded or written statements made by co-defendants or other witnesses.

         Corporal Zeybel testified that, while polygraph examiners are not required to record their examinations, he records 99.9% of his polygraph examinations, and that this was common knowledge in the Warren barracks. Zeybel would typically make a copy of the video recording, print the accompanying test results, and keep them both secured in a closet in his office. A supplemental report regarding the polygraph would be given to a supervising officer and attached to the police investigation report, which would eventually be given to the prosecutor on the case. Zeybel testified that he would enter a recorded statement into case evidence only if the statement had "evidentiary value" - that is, when it contained a confession. N.T., 5/5/16, at 86.

         Appellant introduced a copy of the state police administrative regulations governing polygraph examinations, which state, "If the polygraph examination is A/V recorded, the original copy (CD/DVD) shall be provided to the investigating officer and shall be handled as evidence in accordance with AR 3-3, Storage and Security of Property. A copy shall be retained at the polygraph examiner's assigned station." Appellant's Ex. 1 to Hr'g on Appellant's Mot. to Dismiss, at 13.[15] Zeybel testified that he was "mistaken" for failing to comply with the regulation, but that he does not enter every recorded statement into evidence "only for the sheer fact [the investigating officers] have to eventually account for this, dispose of it. And, it becomes a thorn in their side." N.T., 5/5/16 at 86. Zeybel testified that since Appellant's mistrial, he has changed his practice; now, if he records a polygraph examination, he includes that information in his report. He still does not put the recording into case evidence unless it includes a confession, or unless it is specifically requested.[16]

         Corporal Zeybel testified that because Redding did not confess during or after the polygraph, and the information provided by Redding during her polygraph exam "did not implicate" Appellant, a recording was not made part of the police investigation file. N.T., 5/5/16, at 87. Instead, Zeybel summarized in the supplemental report the statements made by Redding during the polygraph examination. Until Appellant's trial, Corporal Zybel did not realize that his interview with Redding was considered "part of" Appellant's case. Id. at 77.

         Zeybel testified that he did not include in the supplemental polygraph report that Osborne had also interviewed Redding that day because it was not a part of the polygraph examination. Zeybel believes that Osborne was aware that the interview was being recorded, because he believes he gave "a preamble on camera with him present." N.T., 5/5/16, at 103. Ultimately, Zeybel testified that he did not intentionally withhold any material evidence.

         First Assistant District Attorney Gnage testified that he recalled speaking with Osborne and Zeybel about the polygraph examination, but never asked them whether the polygraph exam was recorded; because a recording was not indicated in the police report, Gnage was not aware of the recording until Appellant's trial. Gnage testified that he believed that polygraph examinations were never recorded because his office has never received a recording of such an examination.[17] He did not specifically request a recording of the polygraph examination, but requested any and all discovery. Gnage stated that he had no reason not to trust law enforcement to give him all evidence he requested.

         Gnage testified that his office sometimes has had difficulty obtaining discovery from law enforcement agencies in Warren County, and that this issue has been addressed repeatedly at meetings between the District Attorney's office and chief law enforcement officers. Gnage knows of only one discovery violation which led to a mistrial, and other cases in which discovery was provided late. Gnage testified that none of the discovery violations were intentional.

         A copy of the video was played at the hearing.[18] In the video, Zeybel is shown interviewing Redding for approximately two hours, during which he administers a polygraph examination, which Redding failed. As stated in the report, Redding told Zeybel that she was supposed to go with Appellant to the Warren County fair, but ended up not going. After Redding failed the exam, Zeybel pressed her for information about the origin of the bills, the destination of the stolen merchandise, and the involvement of other people, and stated that she could give this information to the police to "help herself out." Redding then protested that she had no further knowledge regarding the crime, but that she would be willing to do "anything" to get out of jail, including gathering information by wearing a wire and ankle monitor, and she flippantly offered to perform sex acts with another suspect to get him to talk. In addition, and not included in the report, Redding told Zeybel that she hates Appellant and blames him for her charges.

         The video also showed that roughly ten minutes after the conclusion of the polygraph with Zeybel, and in the same room, Osborne interviewed Redding for approximately nine minutes. Prior to that interview, Zeybel stated for the camera that Trooper Osborne was next going to interview Redding; the recording shows Osborne standing in the hallway and looking into the room at the beginning of this statement. Zeybel then exited the room, and Osborne returned with Redding. During the interview with Osborne, Redding expressed her disappointment and confusion over failing the polygraph test, and regretted agreeing to take it.

         At the conclusion of the hearing, District Attorney Greene conceded that the video of Redding's statements should have been provided to the defense, and that failure to do so was a Brady violation.[19] Greene also stated that he was not going to argue this point, in part because the trial court had already ruled that there had been a Brady violation.[20] Instead, Greene argued that there was no prosecutorial misconduct to warrant dismissal of the charges, as there had been no intentional withholding of evidence on either the part of the police or the prosecutor. Greene stated that "mistakes [were] made" when the police did not include in the report that Osborne had spoken with Redding after the polygraph exam and did not log the video of the interviews into evidence. N.T., 5/5/16, at 188.[21] He also argued that he was doing everything in his power to ensure that officers in Warren County adhere to the discovery rules.

         Appellant argued that having to know what evidence exists before asking for it places an undue burden on defendants. According to Appellant, District Attorney Greene is the chief law enforcement officer in the county, and, along with First Assistant District Attorney Gnage, he has a duty "to make sure they have everything when they prosecute . . . . That's their job to make sure all of the evidence is obtained." N.T., 5/5/16, at 194.

         The trial court denied Appellant's motion to dismiss. As a sanction for the discovery violation, the court ordered that the Commonwealth "be precluded from admitting any evidence . . . regarding Miss Redding's guilty plea, conviction, or sentence at the time of retrial." N.T., 5/5/16, at 215.[22]The court noted that unless Redding appeared at the retrial, it was unlikely that the video recordings of her interviews would be admissible as evidence at trial. Id.

         In its Pa.R.A.P. 1925(a) opinion, the trial court explained that it found three instances of prosecutorial misconduct.[23] First, when the prosecutor assumed that there was no recording of the polygraph, and therefore did not request it from the police, the prosecutor "attempted to discharge the government's Brady responsibility almost entirely through his assumptions." Trial Ct. Op. at 4 (italicization added). According to the court, the prosecutor should have put more effort into determining what evidence existed, as he was on notice of ongoing discovery issues in the area. Id. at 4-5.[24] Second, Gnage misrepresented to the trial court that polygraph examinations are not recorded. Id. at 5-6.[25] Third, in the response to Appellant's motion to dismiss, Gnage argued that Appellant's counsel knew of the existence of the video (whereas Gnage did not), and that counsel intentionally withheld that knowledge when requesting discovery. Gnage also argued in the response that the video did not contain Brady material, even though he had never watched the video in full. The court found that Gnage's response was "overly defensive, argumentative, and [involved] rehearsed hindsight-based" contentions. Id. at 6.

         However, the court found that dismissal was not warranted based on prosecutorial misconduct because "[a]ll evidence pointed to the prosecutor's gross negligence in making assumptions regarding the existence or non-existence of evidence, " and "the panicked response of an inexperienced attorney, who was unwilling to accept responsibility for his mistakes." In the eyes of the court, this conduct did not amount to deliberate overreaching warranting discharge. Trial Ct. Op. at 8-9.

         The trial court also reviewed the conduct of the police. On the part of Zeybel, the trial court found:

This practice of putting a DVD into the file only when there is inculpatory evidence is concerning. The [Pennsylvania State Police] regulations require that the original of all recorded polygraph interviews by placed in the investigating officer's case file. Zeybel's contrary practice functionally placed an extra hurdle to the disclosure of exculpatory interviews through discovery.

Trial Ct. Op. at 7. However, the trial court noted that Zeybel made no effort to hide the existence of the video at trial, and that "he saw no problem with his method because the videos are so rarely admissible and prosecutors will contact him when they need a copy of the video." Id. The court also took issue with Osborne's failure to memorialize his conversation with Redding in the report, and indicated that Osborne should have been aware that the interview was recorded. However, the court found that while officers are generally aware that Zeybel records his polygraph examinations, it appears that this "is not at the forefront of their minds, " and was likely not at the forefront of Osborne's mind. Id. Overall, the trial court found:

The issues involving police handling of evidence in the case appear[s] to be a result of a lack of communication and organization. There was no evidence to suggest that there was collusion between the prosecutor and the police. Instead, there appears to be a serious problem of ...

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