J-A17018-21
2021 PA Super 197
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
ALFONSO SANCHEZ :
:
Appellant : No. 2073 EDA 2020
Appeal from the Order Entered October 2, 2020
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0001136-2008
BEFORE: McLAUGHLIN, J., KING, J., and PELLEGRINI, J.*
OPINION BY KING, J.: FILED OCTOBER 4, 2021
Appellant, Alfonso Sanchez, appeals from the order entered in the Bucks
County Court of Common Pleas, which denied his second motion to dismiss
the charges against him based on double jeopardy grounds.1 We affirm.
The relevant facts and procedural history of this case are as follows. On
September 30, 2008, a jury convicted Appellant of two counts of first-degree
murder and numerous other offenses in connection with the shooting deaths
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* Retired Senior Judge assigned to the Superior Court.
1 This interlocutory appeal is properly before us pursuant to Pa.R.Crim.P.
587(B)(6) (stating if judge denied motion to dismiss but does not find it
frivolous, judge shall advise defendant on record that denial is immediately
appealable as collateral order). Here, the trial court expressly decided that
Appellant’s current motion to dismiss was not frivolous. (See N.T. Hearing,
10/2/20, at 80-81).
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of Mendez Thomas and Lisa Diaz.2 The case was tried as a capital case, so it
proceeded to a penalty hearing on October 2, 2008, at which time the jury
sentenced Appellant to death for the shooting of Lisa Diaz and a consecutive
life sentence for the shooting of Mendez Thomas. The court imposed the death
sentence on October 22, 2008. Our Supreme Court affirmed the judgment of
sentence on December 17, 2013, and the United States Supreme Court denied
certiorari on October 6, 2014. See Commonwealth v. Sanchez, 623 Pa.
253,
82 A.3d 943 (2013), cert. denied,
574 U.S. 860,
135 S.Ct. 154,
190
L.Ed.2d 113 (2014).
On January 30, 2015, Appellant timely filed a petition pursuant to the
Post Conviction Relief Act (“PCRA”) at 42 Pa.C.S.A. §§ 9541-9546. During the
PCRA proceedings, the Commonwealth disclosed that it was in receipt of a
DNA lab analysis dated October 23, 2008, that it had not turned over to the
defense before or during trial. The lab report concerned DNA found under
victim Lisa Diaz’s fingernail clippings, which matched the DNA of Appellant’s
co-defendant, Steven Miranda.3
Based on this new evidence, and with the agreement of the
Commonwealth, the court entered an order on January 26, 2017, vacating
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2 Appellant committed the offenses with his co-conspirators Steven Miranda
and Alex Martinez.
3 Steven Miranda was tried with Appellant, and the jury also convicted him of
first-degree murder.
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Appellant’s judgment of sentence and ordering a new trial.
On February 14, 2017, Appellant filed a pro se motion to dismiss based
on double jeopardy grounds. In the motion, Appellant alleged, inter alia: (1)
the Commonwealth intentionally suppressed the DNA analysis; (2) the
prosecutor knew or should have known that multiple pieces of physical
evidence, including the murder weapon and Lisa Diaz’s fingernail clippings,
had been submitted for DNA analysis; (3) the presence of Steven Miranda’s
DNA under Lisa Diaz’s fingernails inculpated him, as it suggested that Lisa
Diaz scratched Steven Miranda to defend herself against him; and (4) the
Commonwealth proffered false evidence at trial when one of its witnesses
stated that the murder weapon had not been submitted for DNA testing.
The court subsequently appointed new counsel for Appellant for the
upcoming re-trial, which was scheduled for October 10, 2017. On October 10,
2017, the parties appeared for jury selection. Appellant’s counsel “adopted”
the pro se double jeopardy motion and the court held a hearing on the motion
on October 10th and 11th, 2017. This Court has summarized the relevant
testimony from those hearings as follows:
The document at issue was formally introduced as the report
from the Pennsylvania State Police [(“PSP”)] Bureau of
Forensic Services, DNA Laboratory in Greensburg,
Pennsylvania, dated October 23, 2008.[4] See N.T.,
10/10/17, at 79-80. Pertinently, [the trial prosecutor] Mr.
Gambardella [(who is now a District Judge)] testified that
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4The evidence was sent from the PSP lab in Bethlehem to the PSP lab in
Greensburg for analysis.
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he did not “recall directing” the taking and submission of
DNA testing, and it was “something that the detectives could
decide to do on their own.” Id. at 78. Further, it was not
until after trial that Bucks County Detective McDonough told
him that the detective had received “a report, I believe from
Warminster [Township], involving DNA analysis, but that’s
my recollection. That was after the verdict, well after
verdict.” Id. at 79. Mr. Gambardella testified that he
immediately forwarded the report to Appellant’s [trial]
counsel, Mr. McMahon. Id. at 80, 82, 84, 93. Mr.
Gambardella stated:
I didn’t make a judgment at the time. I think it’s for
Mr. McMahon to do, to make a judgment as to what
value the evidence might have had, if any, but it was
an analysis that came in involving the case and
involving one of the co-defendants who was present
at the scene, even though he had a relationship, or
that’s my recollection, with the victim, but because it
was material to the facts involving a co-defendant, I
immediately turned it over.... [A]gain, it was
something that involved the case. Whether it involved
[Appellant] or not, [Appellant] or [his co-defendant],
because it involved one of the defendants, I
determined, as I would for anything of this nature,
that it should be turned over.
N.T., 10/10/17, at 96.
When asked whether he had intentionally withheld
evidence, Mr. Gambardella replied, “[n]o, never.” Id. at 97.
He also testified that he did not know of any detectives or
police intentionally withholding evidence. Id.
Warminster Township Police Detective John Bonargo
testified to working with the Bucks County District
Attorney’s office and taking the fingernail evidence to the
[PSP] for analysis in November of 2007. N.T., 10/11/17, at
9, 18. At the time, Detective Bonargo listed his name on
the submission form as the “point of contact.” Id. at 10.
However, he stated that he “didn’t have any personal
conversations” with the lead investigator, Detective Harold,
about the evidence, and opined that he “should have.” Id.
at 20. It was not until 2008 when PSP contacted Detective
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Bonargo about the fingernail clippings. Id. The detective
testified that he received the DNA analysis “post conviction.”
Id. at 22. He did not recall being asked by anyone prior to
trial about the DNA testing occurring. Id. at 23. He
explained that when he went to the lab and retrieved the
report he:
[r]eturned to headquarters, put those items in
evidence, and placed the serology report on my
Sergeant’s desk, which in hindsight, I should have
notified the affiant [Detective Harold] in the case right
away so they would know immediately those items
were back.
N.T., 10/10/17, at 12.
Appellant’s trial counsel, Mr. McMahon, testified on
Appellant’s behalf. He stated:
I think I asked [the assistant district attorney, Mr.
Gambardella,] prior to trial. I asked him twice during
the trial, or during the jury selection process, because
just after all my experience trying homicide cases,
there is no way that the Pennsylvania State Police
clipped those [finger]nails and then did nothing with
them.
N.T., 10/11/17, at 131-132.
He continued:
[T]he first time I asked him was on the telephone. He
said he didn’t know. He did not – he just wasn’t sure,
and I said check into it. Then he told me that they
were – that no testing was done. Then when we came
back here again I said, look, you got to go check
again, and he told me that he called the Pennsylvania
State Police, because I said to him, Gary, come on,
man, there’s no way, and he said he called the
Pennsylvania State Police and they said they did not
analyze those forensically in any way, shape, or form,
and I said that’s nonsense. I said to him you’ve got
to talk to somebody else because that’s just, I don't
know who you spoke to, but whoever you spoke to is
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not giving you the right information. He talked to me
the next day and said he spoke – I said you got to
speak to a supervisor or somebody, and he came back
and said, Jack, they did not test those items, I double
checked.
Id. at 132-133. Mr. McMahon stated that he had a “hundred
percent clear recollection” that was “crystal clear.” Id. at
133. He averred that the fingernail evidence was “very,
very significant” and “key to the defense” because his theory
was that Appellant’s co-defendant, Steven Miranda – not
Appellant – was the shooter and would have left DNA
evidence under the victim’s fingernails. Id. at 137-138. He
explained:
[The evidence] would have demonstrated and
assisted me in that theory that I tried to, if you read
the trial [transcript] you’ll see that I tried to present a
pretty, [vociferously] that [Steven] Miranda was the
actor, the major player. He was the one that was
doing all the things. This [DNA] report here would
have been extremely helpful and back that up. I
should have had it.
Id. at 142.
However, on rebuttal, Mr. Gambardella testified to the
contrary. He stated:
There were very few conversations either in person or
over the phone with Mr. McMahon, because largely,
because he was so hard to get a hold of. I had no
conversation with him at the preliminary hearing
because he failed to appear for the preliminary
hearing. I had very, what I will call, I would have
difficulties getting a hold of him. There was, at one
point, I know of at least one letter that I sent him. I
reduced a lot of my correspondence to writing to make
sure that the messages were getting across.
N.T., 10/11/17, at 150-151.
With regard to the fingernail clippings, Mr. Gambardella
stated that he “did not have a recollection of [Mr. McMahon]
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ever mentioning fingernail clippings, ever.” Id. at 159.
Further, Mr. Gambardella opined that if he had such
evidence, he would have viewed it as favorable to the
Commonwealth because it corroborated the witnesses who
testified that Appellant’s co-defendant, Steven Miranda, and
the victim, Lisa Diaz “had a relationship.” Id. at 159. In
sum, Mr. Gambardella testified, “I never contacted the
police regarding DNA analysis because I didn’t know there
was DNA analysis.” Id. at 164.
Warminster Police Detective Sean Harold offered testimony
similar to that of Mr. Gambardella. Detective Harold stated
that in October of 2007, he was the “lead investigator” in
the case against Appellant. Id. at 174. Detective Harold
testified that he was unaware of any evidence taken by
Detective Bonargo to the PSP lab for testing. Id. at 175.
He specifically did not recall fingernail clippings being
recovered from Lisa Diaz. Id. at 176. Detective Harold
repeatedly testified to his belief that “back in 2008 that no
evidence in this case had been sent for DNA testing.” Id.
at 178. He did not learn about the evidence that had been
submitted to the lab until April of 2016, and opined that he
“absolutely [did] not” intentionally withhold evidence in this
case. Id. at 178-179. Detective Harold did not know who
“took the initiative” and was responsible for sending the
fingernail clippings to the PSP lab, and in fact was not aware
that the clippings had even been taken. Id. at 180-182.
Similarly, Bucks County Detective Martin McDonough
testified to investigating the case in conjunction with the
Warminster Township Police, and having no knowledge of
fingernail clippings taken from Lisa Diaz and sent to the PSP
for DNA analysis. Id. at 185-186. He did not learn about
the evidence until after Appellant’s trial in October of 2008.
Id. at 186. Detective McDonough learned about the
evidence from Detective Bonargo. He stated:
I believe Detective Bonargo faxed [the DNA report] to
me. We had a phone conversation. He said, he had
– we had a conversation, I believe it was over the
phone, that he had this report from PSP, a DNA report
from PSP. And I said, well, send it to me so I can give
it to [Mr. Gambardella]. The trial is over, so we can
forward it to Mr. McMahon. When I got my copy I
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made a copy, handed it to Mr. Gambardella in the
District Attorney’s Office, and I put a copy I had in my
file.
Id. at 192. Detective McDonough expressed his surprise at
learning about the evidence. He continued:
I said to John [Bonargo], how did it get there? He
said he dropped them off and they were being worked
on. I said, John, we didn’t even know they were at
the lab. How did this happen? He really didn’t have
an answer.
Id. at 193.
After hearing argument from the parties, the trial court
denied Appellant’s motion to dismiss. The trial court
verbally detailed the parties’ respective arguments,
recounted the testimony, and articulated its rationale for
denying Appellant’s motion. See, N.T., 10/11/17, at 219-
228.
Commonwealth v. Sanchez, No. 3368 EDA 2017, unpublished
memorandum at 9-14 (Pa.Super. filed June 28, 2018) (internal footnote
omitted), cert. denied, ___ U.S. ___, 140 S.Ct. 445,
205 L.Ed.2d 257 (2019).
On appeal, this Court affirmed the trial court’s denial of Appellant’s
motion to dismiss. In doing so, this Court decided there was no evidence that
the police or prosecutor had intended to deprive Appellant of a fair trial. While
this Court acknowledged there was a “miscommunication between the police,
the prosecutor and the defense,” this Court held that there was no intentional
withholding of evidence which would rise to the level of prosecutorial
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misconduct to bar retrial on double jeopardy grounds.5 (See id. at 16-17).
On June 5, 2020, Appellant filed the current motion to dismiss on double
jeopardy grounds, relying on the Supreme Court’s decision in
Commonwealth v. Johnson, ___ Pa. ___, 231 A.3d 807 (2020). Appellant
alleged that in Johnson, the Supreme Court barred retrial on double jeopardy
grounds where the prosecution’s reckless actions prejudiced the defendant
to the point of the denial of a fair trial. Consequently, Appellant claimed that
even if the prosecution’s actions in his case were unintentional, under
Johnson, the prosecution’s reckless actions in failing to disclose the DNA
results in his case deprived him of a fair trial such that retrying him would
violate double jeopardy.
The court held a hearing on Appellant’s motion on October 2, 2020.6 At
the conclusion of the hearing, the court denied relief. Appellant timely filed a
notice of appeal on October 15, 2020. Appellant filed a voluntary concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b)
on December 15, 2020.
Appellant raises one issue for our review:
Did the Commonwealth act with recklessness and with
deliberate indifference during the investigation and
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5 Our Supreme Court denied allowance of appeal on February 26, 2019, and
the United States Supreme Court denied certiorari on October 21, 2019.
6 The court incorporated the notes of testimony from the October 10 th and 11th
2017 hearings, and the attorneys made argument on the applicability of
Johnson to Appellant’s case.
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prosecution of [Appellant] sufficient to bar retrial on double
jeopardy grounds?
(Appellant’s Brief at 4).
Our standard and scope of review in this case are 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. Graham, 109 A.3d 733, 736 (Pa.Super. 2015), appeal
denied,
633 Pa. 775,
126 A.3d 1282 (2015) (quoting Commonwealth v.
Kearns,
70 A.3d 881, 884 (Pa.Super. 2013), appeal denied,
624 Pa. 663,
84
A.3d 1063 (2014)).
Appellant argues the Commonwealth acted recklessly in this case due
to its (1) oversight of forensic testing; and (2) failure to advise defense
counsel of the exculpatory DNA analysis report after Appellant was sentenced
to death. Regarding the oversight of forensic testing, Appellant challenges
the Commonwealth’s statement that its error in failing to disclose the DNA
evidence was caused by a “failure to communicate” which resulted in the
“collective ignorance” of the prosecution team. (Appellant’s Brief at 26).
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Rather, Appellant insists the Commonwealth’s actions demonstrate that it
acted recklessly and with deliberate indifference when investigating and
prosecuting Appellant’s case. Appellant emphasizes testimony at the 2017
double jeopardy hearing from Detective Bonargo, who testified that he took
physical evidence, including the right-hand fingernail clippings of Lisa Diaz to
the PSP Bethlehem lab for forensic testing on November 28, 2007. Appellant
maintains Detective Bonargo also transported blood samples of Lisa Diaz and
Mendez Thomas to the Bethlehem lab on January 10, 2008. Appellant avers
that Detective Bonargo received a serology report on September 4, 2008 (four
days prior to jury selection in Appellant’s trial), which stated that the fingernail
clippings of Lisa Diaz were forwarded to the PSP Greensburg DNA lab on
August 13, 2008. Nevertheless, Detective Bonargo failed to notify the other
police officers involved in the case or the prosecutor of the serology report.
Following Appellant’s convictions and death sentence, Detective Bonargo
admitted that he received a DNA analysis from the PSP Greensburg lab.
Although the other police officers and the prosecutor testified
consistently with Detective Bonargo that they were unaware Detective
Bonargo had submitted evidence for forensic testing at any time prior to or
during trial, Appellant submits the testimony from these witnesses is not
credible and unsupported by the record. Appellant suggests “[i]t is hard to
believe that an experienced prosecutor and several experienced detectives
would have acted in such a manner when investigating and prosecuting a
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capital homicide involving two victims.” (Id. at 30). Specifically, Appellant
highlights a telephone log entry from March 11, 2008, stating that the
Bethlehem lab “gave results to Bonargo and explained which samples to DNA
+ why. Requested DNA samples from all suspects and living victim.” (Id. at
30) (quoting Ex. CP-2). Appellant also emphasizes that Detective Bonargo
brought the victims’ blood samples to the lab. Appellant submits that the
record belies Detective Bonargo’s testimony that he did not think the lab would
conduct an analysis unless and until Detective Bonargo expressly requested
the lab to do so.
Appellant posits that testimony from the Commonwealth’s witnesses
regarding their oversight of forensic testing is simply not credible. Even if
credible, Appellant insists the record shows the Commonwealth made a series
of easily preventable mistakes regarding the oversight of evidence for forensic
testing,7 which cumulatively rise above ordinary negligence and amount to
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7 Specifically, Appellant highlights: (1) Detective Bonargo’s failure to notify
the other officers or prosecutor at any point prior to trial that he had taken
evidence to the PSP Bethlehem lab for testing; (2) Detective Bonargo’s failure
to adequately review the serology report, which would have revealed ongoing
DNA analysis; (3) Detective Bonargo’s failure to notify the other police officers
or prosecutor that the serology report indicated the presence of blood on the
right-hand fingernails of Lisa Diaz; (4) Detective Bonargo’s decision to leave
a copy of the serology report on his supervisor’s desk without ensuring that
the other officers and prosecutor also received a copy of the report; (5)
Detective Bonargo’s incorrect assumption that the PSP Greensburg lab would
contact him prior to conducting any DNA testing; (6) Detective Bonargo’s
incorrect assumption that the other officers and prosecutor would review his
supplemental police reports prior to trial to learn of the serology report; (7)
(Footnote Continued Next Page)
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recklessness.
With respect to the Commonwealth’s failure to advise defense counsel
of the allegedly exculpatory DNA analysis report after Appellant was
sentenced, Appellant argues that the prosecutor learned of the lab report soon
after the verdict. Although the prosecutor claimed he faxed the report to
defense counsel’s office, the prosecutor took no further action thereafter.
Appellant submits that the Commonwealth did not introduce any evidence at
the double jeopardy hearing to substantiate the prosecutor’s claim that he
faxed the report to defense counsel as soon as he learned of its existence.
Appellant highlights testimony from defense counsel stating that no one
from the Bucks County District Attorney’s Office contacted him regarding the
DNA evidence after the death sentence on October 22, 2008. Rather, defense
counsel testified that he did not become aware of the DNA report until years
later when he was contacted by attorneys representing Appellant in his PCRA
proceedings. Defense counsel made clear that he would not have
“overlooked” any fax regarding the DNA evidence had he received it.
Appellant emphasizes testimony from defense counsel that the DNA analysis
on the fingernail clippings would have been very significant and critical to the
____________________________________________
the failure of the other police officers and the prosecutor to review Detective
Bonargo’s police reports prior to trial; and (8) Detective Bonargo’s decision to
allow a capital murder investigation to proceed to trial without notifying the
prosecutor or other police officers involved that DNA testing was not complete.
(Appellant’s Brief at 33-34).
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defense because it was consistent with Appellant’s theory that his co-
defendant Steven Miranda was the shooter and that Miranda had physical
contact with Lisa Diaz before her death.
Appellant insists the Commonwealth’s actions, even if unintentional,
“yielded a substantial risk of depriving [Appellant] of his right to a fair trial.”
(Id. at 25). Appellant concludes the prejudice here is “obvious” because he
proceeded to trial without critical exculpatory evidence, and this Court must
reverse the trial court’s decision and bar retrial on double jeopardy grounds.8
We disagree.
This Court has explained:
The double jeopardy clause of the Pennsylvania Constitution
prohibits retrial of a defendant when the conduct of the
prosecutor is intentionally undertaken to prejudice the
defendant to the point of denying him a fair trial. However,
because of the compelling societal interest in prosecuting
criminal defendants to conclusion, our Supreme Court has
recognized that dismissal of charges is an extreme sanction
that should be imposed sparingly and only in cases of
blatant prosecutorial misconduct.
Commonwealth v. Wilson, 147 A.3d 7, 13 (Pa.Super. 2016) (internal
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8 Alternatively, Appellant asks this Court to bar the Commonwealth from
retrying his case as a capital homicide prosecution, claiming that the
Commonwealth’s errors deprived him not only of a fair trial, but also of a fair
sentencing. (See
id. at 41-43). Because Appellant did not preserve this claim
in his concise statement of errors, this argument is waived. See generally
Commonwealth v. Snyder,
870 A.2d 336 (Pa.Super. 2005) (explaining that
where trial court does not order appellant to file Rule 1925(b) statement, and
appellant files one on his own accord, he is limited on appeal to raising only
those issues he presented in his voluntary Rule 1925(b) statement).
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citations omitted). See also Commonwealth v. Smith, 532 Pa. 177, 186,
615 A.2d 321, 325 (1992) (holding double jeopardy clause of Pennsylvania
Constitution prohibits retrial of defendant not only when prosecutorial
misconduct is intended to provoke defendant into moving for mistrial, but also
when conduct of prosecutor is intentionally undertaken to prejudice defendant
to point of denial of fair trial). Compare
Kearns, supra (holding prosecutor’s
gross negligence in failing to obtain and produce defendant’s post-arrest
written statement to police and statement of principal eyewitness was
insufficient basis upon which to bar retrial on double jeopardy grounds;
appropriate remedy in such circumstances is new trial).
In Johnson, our Supreme Court considered whether the double
jeopardy clause bars retrial “where the Commonwealth obtains a conviction
based on false evidence and its misconduct, while not undertaken with the
intent to deny the defendant a fair trial, nevertheless stems from prosecutorial
errors that rise substantially above ordinary negligence.” Johnson, supra at
___, 231 A.3d at 810. The relevant facts of Johnson are as follows. During
investigation of the victim’s death, police recovered a red baseball cap located
in the middle of the street approximately nine feet from the victim’s body.
The cap was assigned a property receipt number. Shortly after the murder,
the victim’s friend Ms. Williams gave a statement to police. Ms. Williams was
with the victim on the night of the murder and described the details of her
observations to police. Ms. Williams also explained that the victim had worn
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a black baseball cap on the night in question. After the shooting, Ms. Williams
picked up the black baseball cap, which had a bullet hole in it, and she gave
it to police while giving her statement. The black baseball cap was assigned
a separate property receipt number and was submitted to the crime lab for
testing. Testing revealed the presence of the victim’s blood under the brim of
the black cap. Several years later, upon new information connecting the
appellant to the crime, police obtained a sample of the appellant’s DNA and
submitted it for testing along with the red cap. Testing showed the appellant
was a contributor to the DNA in the sweatband of the red cap.
The Commonwealth subsequently proceeded with its prosecution of the
case as if there was only one baseball cap—the red one—which the
Commonwealth argued contained both the victim’s blood and the appellant’s
DNA. Nevertheless, the Commonwealth’s argument was factually inaccurate,
as neither cap had DNA from both individuals.
At trial, the Commonwealth’s crucial piece of physical evidence was the
red baseball cap, and the prosecutor repeatedly suggested that the appellant
had shot the victim at point blank range. Consistent with the Commonwealth’s
factually inaccurate theory of the case, the lead crime-scene investigator
testified at trial that when he recovered the red baseball cap from the scene,
he saw fresh blood underneath the brim of the cap. The Commonwealth’s
forensic scientist also testified that the victim’s blood and the appellant’s DNA
were both found on “the hat.” In closing argument, the prosecutor again told
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the jury that the DNA evidence showed the appellant’s sweat on the
sweatband of the red cap, as well as the victim’s blood on the brim.
In PCRA proceedings, the appellant learned the two caps, a red one and
a black one, had been analyzed in connection with the Commonwealth’s case,
and that the victim’s blood was found only on the black one. The
Commonwealth thereafter agreed that the appellant was entitled to a new
trial. The appellant subsequently filed a motion to dismiss based on double
jeopardy grounds. The appellant learned during discovery related to the
motion to dismiss, that the Commonwealth had “misunderstood its own
evidence and conflated the findings related to the red and black caps.” Id. at
___, 231 A.3d at 813-14. Notwithstanding the “unimaginable mistakes by
experienced police officers and an experienced prosecutor” made in the case,
the trial court found no intentional misconduct or bad faith on the
Commonwealth’s part and denied the appellant’s motion to dismiss. Id. at
___, 231 A.3d at 815-16. This Court affirmed the trial court’s ruling.
On appeal to the Supreme Court, the Court initially decided that the
record supported the trial court’s credibility determinations in favor of the
Commonwealth. The Court stated that the trial court had personally heard
extensive testimony from numerous witnesses involved in the prosecution,
actively questioned many of the witnesses himself, and ultimately credited the
prosecutor’s testimony and found the Commonwealth had not acted with the
intent to deprive the appellant of a fair trial. Id. at ___, 231 A.3d at 818-19.
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Regarding the scope of double jeopardy protections, the Supreme Court
held that “prosecutorial overreaching sufficient to invoke double jeopardy
protections includes misconduct which not only deprives the defendant of his
right to a fair trial, but is undertaken recklessly, that is, with a conscious
disregard for a substantial risk that such will be the result.” Id. at ___, 231
A.3d at 826. In so holding, the Court clarified that it did not “suggest that all
situations involving, “serious prosecutorial error implicate double jeopardy[.]”
Id. Rather, “retrial is only precluded where there is prosecutorial
overreaching—which, in turn, implies some sort of conscious act or
omission.” Id. (emphasis in original).
Applying its holding to the facts of the case at hand, the Court
emphasized the trial court’s findings that the prosecutor had made “almost
unimaginable” mistakes, which “dovetailed” with other serious errors by law-
enforcement officers and other police personnel such as the DNA lab
technician. Id. Recounting the errors in the case, the Court highlighted: (1)
the prosecutor’s failure to notice that there were two property receipt numbers
for the two caps, and his failure to verify whether the receipt numbers
pertained to different caps; (2) the prosecutor’s failure to obtain a
criminalistics report which would have summarized the evidence and revealed
that there were two different caps involved; (3) the failure of the detective
who had interviewed Ms. Williams on the night of the shooting to recall the
evidence of the black baseball cap and Ms. Williams’ statement that the victim
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had worn the black cap on the night of the murder; (4) the false testimony
from the lead crime scene investigator at trial that he saw fresh drops of blood
under the brim of the red cap on the night of the murder, which was factually
inaccurate. On this point, the Court stated it could not “escape the conclusion
that the officer testified to something that he did not actually observe[.]” Id.
at ___, 231 A.3d at 827. Thus, the Supreme Court held that the
Commonwealth’s actions were “strongly suggestive of a reckless disregard for
consequences and for the very real possibility of harm stemming from the lack
of thoroughness in preparing for a first-degree murder trial.” Id. Such actions
prejudiced the appellant to the point of a denial of a fair trial, immunizing the
appellant from retrial for the murder of the victim.
Instantly, in rejecting Appellant’s current double jeopardy motion, the
court explained:
[Appellant’s] circumstances are considerably different from
that of the defendant in [Johnson]. [Appellant’s] case is
distinguishable because the Commonwealth did not engage
in reckless misconduct with a conscious disregard for a
substantial risk of an unfair trial.
[At the double jeopardy hearing], Detective John Bonargo
testified to his role in transporting physical evidence to the
[PSP] Laboratory. Detective Bonargo claimed that the
laboratory, without his express request, conducted tests
upon physical evidence (Lisa Diaz’s fingernail clippings).
Detective Bonargo retrieved the evidence from the
laboratory along with a serology report that he claimed to
have placed on his Sergeant’s desk.
Detective Bonargo stated, to this personal regret, that he
had no further conversations about the DNA report with
either the trial prosecutor, Gary Gambardella, or Detective
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Sean Harold, one of the lead investigators[.]
…
Gambardella and Detective Harold had no knowledge of the
DNA report prior to and during [Appellant’s] trial. Detective
Harold confirmed this claim when asked about his
knowledge of the submission of the evidence and its
subsequent testing[.]
…
Detective Harold further asserted that he had no prior
knowledge of fingernail clippings taken from Lisa Diaz’s
autopsy and had never requested for them to be sent for
laboratory testing.
…
During the same hearings, prosecutor Gambardella, now
District Judge Gambardella, asserted that he was unaware
of any DNA items being submitted for testing after
[Appellant’s] arrest.
…
During [Appellant’s] trial, the prosecutor was not made
aware of any DNA evidence sent for laboratory testing. It
was not until after the trial that he was notified of the
existence of the DNA analysis report, which he sent
immediately to [Appellant’s] prior trial counsel.
…
As we noted in our first Opinion on [Appellant’s] initial
Double Jeopardy claim, this [c]ourt viewed these events to
be evidence of “not minding the store”; that while
inadvertent, it did not rise to the level of intentional
misconduct.
This [c]ourt previously held that the Commonwealth and the
police had a lapse in communication that did not rise to a
conscious disregard of the rights of [Appellant]. The
prosecution was unaware of the DNA report’s existence and
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therefore was not barred from retrial on Double Jeopardy
grounds.
This [c]ourt further distinguishes [Appellant] from
[Johnson]. Here, the Commonwealth did not present “false
evidence” that prejudiced [Appellant] and denied him a fair
trial.
In contrast to [Johnson], where the Commonwealth relied
upon fabricated evidence that one hat contained both the
defendant and victim’s DNA, [Appellant] was never
subjected to similar prejudice by the Commonwealth during
trial.
At no point did the Commonwealth attempt to use the DNA
report from Lisa Diaz’s fingernail clippings against
[Appellant]. As previously stated, the Commonwealth did
not have knowledge of the report’s existence and, therefore
could not and did not rely upon its findings during the trial.
(Trial Court Opinion, filed December 21, 2020, at 17-21) (internal citations
omitted). In sum, the trial court decided, “the Commonwealth did not engage
in any intentional misconduct, and its actions, while perhaps being less than
careful, did not rise to the type of ‘recklessness’ requiring a dismissal upon
Double Jeopardy grounds.” (Id. at 23). We agree with the court’s analysis.
Initially, we see no reason to disrupt the court’s credibility
determinations in favor of the Commonwealth, which are supported by the
record. See Graham, supra. See also Johnson, supra at ___, 231 A.3d
at 818 (discussing great deference afforded to trial courts regarding credibility
determinations).
Further, the only “false evidence” on which Appellant relies is
distinguishable from that in Johnson. Here, Appellant insists Detective
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Harold falsely testified that the murder weapon was not submitted for DNA
analysis. (Appellant’s Brief at 21) (citing N.T. Trial, 9/24/08, at 58). Appellant
insists the DNA analysis report showed the Commonwealth did submit swabs
from the firearm to the PSP Bethlehem lab for analysis. Detective Harold
explained at the double jeopardy hearing that he did not believe the firearm
was submitted for testing due to contamination, where it had been sitting in
an unlocked vehicle for days after the murder, with an open sunroof, and it
had rained. Although his trial testimony that the gun was not submitted for
testing was incorrect, it is undisputed that no DNA evidence was recovered
from the gun in the analysis. Significantly, Appellant does not claim that any
of the Commonwealth’s witnesses offered “false testimony” at trial concerning
DNA analysis of the fingernail clippings, which are the subject of this appeal.
Thus, we agree with the Commonwealth that Detective Harold’s misstatement
is a “far cry from the problematic testimony at issue in Johnson.” (See
Commonwealth’s Brief at 46).
Notwithstanding the Commonwealth’s unfortunate errors in this case,
they do not rise to the level of recklessness displayed in Johnson. On this
record, we cannot agree with Appellant that the Commonwealth engaged in
“prosecutorial overreaching” by acting “with a conscious disregard for a
substantial risk” of depriving Appellant of a fair trial. Johnson, supra at ___,
231 A.3d at 826. Under these facts, the remedy for the Commonwealth’s
actions is precisely what the court ordered here—a new trial. See Kearns,
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supra. See also Commonwealth v. Rivera, 241 A.3d 411 (Pa.Super. 2020)
(unpublished memorandum),9 appeal denied, ___ Pa. ___,
252 A.3d 235
(2021) (summarizing Commonwealth’s errors in case as (a) failing to inform
appellants that lead investigator was going to be called at trial as expert
witness; (b) failing to provide PowerPoint presentation to appellants before
trial, and altering one of slides without first notifying appellants; (c)
introducing photographs during trial that it failed to disclose to appellants
before trial; (d) destroying cell phone containing text messages that agent
testified about during trial; and (e) failing to disclose prior to trial inculpatory
statement made by one appellant to agent; holding Commonwealth was
responsible for pattern of minor omissions, but not reckless and systematic
overreaching; Commonwealth’s errors were negligent rather than reckless or
intentional; facts of case were distinguishable from Johnson, and proper
remedy was retrial under Kearns). Based upon the foregoing, we affirm the
order denying Appellant’s second motion to dismiss the charges against him
based on double jeopardy grounds.
Order affirmed.
____________________________________________
9 See Pa.R.A.P. 126(b) (stating non-precedential decisions of Superior Court
filed after May 1, 2019 may be cited for persuasive value).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/4/2021
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