A blog of the Philadelphia Bar Association’s Criminal Justice Section

By Burt Rose

Click to download Opinion C v. Anderson

The Superior Court of Pennsylvania en banc has issued a decision in the matter of COMMONWEALTH of Pennsylvania, Appellant v. David W. ANDERSON, Appellee, 2011 WL 5235232, 2011 PA Super 233, No. 495 WDA 2009 (Nov. 3, 2011), an appeal from an Order of Judge Boyer of the Court of Common Pleas of Venango County, Criminal Division, CP–61–CR–0000009–2001 CP–61–CR–0000636–2000. The judges were STEVENS, P.J., FORD ELLIOTT, P.J.E., MUSMANNO, BENDER, GANTMAN, DONOHUE, ALLEN, LAZARUS, and OLSON. The OPINION was by Judge GANTMAN.

The Commonwealth appealed from an order entered in the Venango County Court of Common Pleas which granted the Appellee’s motion to dismiss on double jeopardy grounds based on prosecutorial misconduct. The issue was whether the trial court erred in dismissing the case pursuant to the double jeopardy clause of the Pennsylvania Constitution, where the prosecutorial misconduct occurred after remand for a new trial, but before the retrial. The Court held that prosecutorial misconduct occurring before a retrial can serve to bar the retrial, under the double jeopardy clause of the Pennsylvania Constitution, and that the trial court properly granted the Appellee’s motion to dismiss because the prosecutor intentionally committed the misconduct to prejudice Appellee to the point of denying him a fair trial.

The Appellee had been convicted of IDSI and Indecent Assault offenses. On direct appeal, the Superior Court had reversed the conviction and remanded for a new trial on certain charges. Specifically, the Court determined the prosecutor had engaged in misconduct during his closing argument, utilizing intemperate language and making a hand gesture to simulate masturbation in the direction of Appellee and defense counsel. The Court declined to discharge the matter on double jeopardy grounds. Commonwealth v. Anderson, 855 A.2d 127 (Pa.Super.2004) (unpublished memorandum), appeal denied, 582 Pa. 668, 868 A.2d 1196 (2005).

On remand, the lower court scheduled a competency hearing regarding J.L. one of the complaining witnesses. At that hearing, it was discovered that the prosecutor committed egregious prosecutorial misconduct which was designed to subvert the truth-seeking process and deny Appellee his right to a fair trial. The prosecutor had met with J.L. six days before the competency hearing for several hours; watched a Pittsburgh Penguins hockey game with J.L.; told J.L. what questions were going to be asked at the hearing, along with their answers; did ask those very questions at the competency hearing; and was then repeatedly dishonest with the court in an attempt to conceal his misconduct.

The lower court granted the Appellee’s motion to dismiss on double jeopardy grounds. The Commonwealth timely filed a notice of appeal. A panel of this Court reversed (with one dissent) and remanded for trial. The Appellee requested en banc reargument, which was granted.

The Commonwealth asserted that double jeopardy principles do not apply to prosecutorial misconduct occurring after remand for a new trial, but before the retrial actually occurs. The Commonwealth concluded the prosecutor’s actions did not rise to the level of misconduct sufficient to bar retrial under the double jeopardy clause of the Pennsylvania Constitution, and that this Court must reverse the order granting Appellee’s motion to dismiss.

Instantly, the Commonwealth charged Appellee with multiple sex offenses perpetrated against three different victims. Following a retrial, the jury found Appellee guilty of indecent assault. On appeal, the Court reversed the conviction and vacated and remanded for a new trial on the charges involving J .L. and T.C., concluding the prosecutor’s misconduct had unduly prejudiced the jury. Upon remand, the court found T.C. and J.L. were incompetent to testify at the new trial. The Commonwealth timely filed a notice of appeal, and this Court reversed and remanded the case for trial. Upon remand, Appellee requested another competency hearing, accusing the prosecutor of “coaching” the witnesses during the prior proceedings. The trial court granted Appellee’s request, issuing an order to address concerns about the possibility of taint. Specifically, that order prohibited the prosecutor from meeting with the witnesses alone. The court also ordered the prosecutor to keep a log of his visits with the witnesses, to deliver certain mental capacity assessments, and to produce a witness list.

At the competency hearing, defense counsel immediately informed the court that the prosecutor had not provided a log of his meetings with J.L. The prosecutor responded that he had met with J.L. only once, and the meeting occurred earlier that afternoon: “Today, yeah, today’s the only time.” The prosecutor denied discussing any matters related to the hearing with J.L. and indicated that J.L.’s day program supervisor was present at the meeting. When defense counsel pressed the prosecutor for additional details, the prosecutor admitted he had spoken with J.L. while delivering a subpoena during the prior week. The prosecutor, however, denied having any conversation with J.L. about competency.

After hearing from this complainant, the lower court found that the prosecutor had met with J.L. the week before to rehearse sports-related questions and answers for the competency hearing while watching the Pittsburgh Penguins hockey game.

Thus the Appellee filed a motion to dismiss on double jeopardy grounds. At the hearing, the prosecutor continued to deny he had met with J.L. in violation of the court’s order: “Your Honor again … there was no contact and that’s where defense counsel is misleading the court again. The contact was that day of the competency hearing, Your Honor. I could not prepare a log when the first time I met with J.L. was that day.”

The prosecutor reiterated he had no other contact with J.L. concerning the competency hearing. The trial court found the prosecutor’s actions constituted an overall pattern of misconduct designed to violate Appellee’s right to a fair trial:

“The court finds that the prosecutor met with J.L. on Saturday, May 31, 2008, six days before the June 6, 2008 Competency Hearing without a third party present, in brazen violation of the court’s Order. The court finds that during this improper meeting, which lasted for hours, the prosecutor told J.L. the questions he was going to be asked at the competency hearing, as well as the answers. The court finds that at the June 6, 2008 Competency Hearing, the prosecutor did ask those same questions to J.L., eliciting the predetermined responses. The court finds that the prosecutor lied … about the existence of the meeting, as well as what happened at the meeting. The court finds that the prosecutor intended that his taint of the witness J.L. would never be discovered. The court finds the prosecutor’s dishonesty in this matter to be appalling. The court finds that the prosecutor did not make any attempt to provide defense counsel with a list of witnesses as mandated in the October 29, 2007 Court Order. The court finds that the prosecutor did not make any attempt to provide the defense with mental capacity assessments performed after January 2004 as mandated by the October 29, 2007 Court Order. The court finds that at the July 31, 2008 Motion to Dismiss Hearing, the prosecutor continued to perpetrate his fraud on the court and Appellee….We further find that in regard to the prosecution of Appellee for crimes allegedly committed against J.L. and T.C., (1) the prosecutor intended to subvert the truth-seeking process, (2) the prosecutor intended to forever conceal his misconduct in order to win a conviction at any cost, and (3) the prosecutor’s misconduct was intended to violate Appellee’s right to a fair trial.”

Where the record evinces a prosecutor’s intent to deprive the defendant of a fair trial, to ignore the bounds of legitimate advocacy, in short, to win a conviction by any means necessary, then there exists the kind of prosecutorial overreaching to which double jeopardy protection applies. Here, the prosecutor did more than demonstrate a flagrant disregard for a pretrial discovery order. The prosecutor engaged in a pattern of pervasive misconduct throughout the proceedings, culminating in the improper meeting with J.L. Despite J .L.’s testimony that the meeting had occurred and the parties rehearsed certain questions and answers, the prosecutor continued to deny any wrongdoing. The prosecutor’s disingenuous responses served only to exacerbate the misconduct. Under these circumstances, the prosecutor intentionally acted to prejudice the defendant to the point of the denial of a fair trial. Judge Gantman concluded that double jeopardy principles apply to prosecutorial misconduct that occurs after remand for a new trial but before the retrial, and, on this record, the lower court properly determined double jeopardy barred Appellee’s retrial.

JUDGE OLSON FILED A DISSENTING OPINION WHICH JUDGES STEVENS, FORD ELLIOTT AND DONOHUE JOINED.

The attorney for the Appellee was Joseph Victor Charlton of the Lindsey Law Firm of Sarver, PA.

The Free Student Research Center is now OPEN. It will be open on Mondays, Wednesdays and Fridays, from 9AM to 3PM. The Free Student Research Center is available for use by attorneys who are current members of the Philadelphia Bar Association’s Criminal Justice Section and who are court-appointed to the case for which they seek research (either state or CJA!).

The Free Student Research Center is located in the Jack Myers Memorial Lounge on the Third Floor of the CJC. You may make a research request in person or via the Criminal Justice Section website at http://www.philadelphiabar.org/page/CJResearch

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