Double Jeopardy; Prosecutorial Misconduct; Standard of Review

Commonwealth v. Rivera, Nos. 792 MDA 2017; 793 MDA 2017 (Pa. Super. 2018) (unreported) (consolidated), allocatur granted Dec. 28, 2018, appeal dockets 78 MAP 2018, 79 MAP 2018

In this complex drug trafficking case, based on 19 alleged sales of various controlled substances between July 25, 2014 and April 19, 2015, Nelson Rivera, Jr. and Napheace Jamal Cooper-Reid (Defendants) were charged with twenty counts of possession with intent to deliver a controlled substance, a general conspiracy to sell a controlled substance, two counts of corrupt organizations, one count of criminal use of a communication facility and one count of dealing in proceeds of unlawful activity. The trial court set aside five days for a jury trial, and the Commonwealth provided a voluminous amount of pretrial discovery. During trial, the Commonwealth committed “multiple missteps” that led the trial court to declare a mistrial, which Superior Court summarized as follows:

First, [the Commonwealth] moved to qualify Agent Andrew Sproat, a lead investigator in this case who posed as a heroin user, as an expert in voice recognition. The trial court denied the Commonwealth’s motion because it failed to disclose before trial its intent to qualify Agent Sproat as an expert witness.

Next, the Commonwealth attempted to introduce a PowerPoint presentation to the jury that summarized evidence it had produced during pretrial discovery. Appellants objected on the ground that the Commonwealth had not disclosed the PowerPoint presentation itself before trial. The trial court ordered the Commonwealth to provide a copy of the PowerPoint to Appellants before introducing it into evidence. The Commonwealth did so but altered one of the PowerPoint slides without first advising Appellants. The slide originally reflected that one Draymond Jones made a drug delivery on April 19, 2015, but the Commonwealth corrected the slide to reflect that Appellant Cooper-Reid made the delivery—a claim that was consistent with a report that the Commonwealth provided Appellants during pretrial discovery. The trial court permitted the jury to view the corrected slide.

Third, the Commonwealth destroyed a cell phone that contained text messages between Agent Sproat and Appellant Rivera. Agent Sproat testified that in November 2014, he had phone conversations and text message communications with Rivera concerning heroin purchases. Rivera objected, claiming the Commonwealth had to provide the original text messages to him. The prosecutor explained that the text messages might have been memorialized in investigative reports but that the original text messages may not be available. Agent Sproat then explained that he turned in his prior work phone, which contained the text. messages in question, in order to receive another work phone, but that he did not take photographs of text messages with Rivera on the first work phone. The Commonwealth then removed the text messages from the first work phone. When the trial court asked if a phone company could retrieve the deleted text messages, Agent Sproat conceded the Commonwealth’s actions rendered the phone permanently unavailable. He explained that the Commonwealth removed the text messages because the phone contained confidential information, including information from other cases, but that he described the text messages verbatim in his investigative reports. The trial court concluded that the Commonwealth did not act in bad faith by removing the text messages from the phone, and that Agent Sproat’s testimony concerning text messages was permissible under Pa.R.E. 1004.

Finally, the Commonwealth failed to disclose Appellant Rivera’s inculpatory statement before Agent Sproat’s testimony at trial. Agent Sproat testified that on April 16, 2015, he had a phone conversation with Rivera in which Rivera agreed to sell heroin on April 19, 2015. On April 19, 2015, Agent Sproat learned that Appellant Cooper-Reid would make the sale, not Rivera. Agent Sproat wrote a report that the controlled purchase on April 19, 2015 was arranged on April 16, 2015, but the report did not mention that the April 16, 2015 conversation was with Rivera. The trial court concluded the Commonwealth committed a discovery violation by not informing Appellants prior to trial that Agent Sproat’s conversation on April 16, 2015 was with Rivera. Due to this error, the trial court granted a mistrial on the third day of trial.

Slip Op. at 2-5 (internal citations omitted).

Following the declaration of a mistrial, Appellants moved the trial court to bar retrial on double jeopardy grounds, arguing that the Commonwealth committed prosecutorial misconduct with the intent to force a mistrial or prejudice Appellants’ right to a fair trial warranting dismissal of all charges. The trial court denied Appellants motions and Appellants appealed to Superior Court, which consolidated the appeals pursuant to Pa. R.A.P. 513.

Noting that the trial court presides as a factfinder when the defendant moves to bar retrial on the basis of prosecutorial misconduct, Superior Court noted it was unable to “reverse the trial court’s finding of intent or negligence when it is supported by the record.” Slip Op. at 13 (citing Commonwealth v. Kearns, 70 A.3d 881, 884 (Pa. Super. 2013)). Finding “no reason to overturn this decision” here, the Superior Court reasoned that the trial court’s finding that the Commonwealth’s “missteps” in this case were “errors but not deliberate acts of misconduct” was supported by Agent Sproat’s testimony, and a new trial (not dismissal of all charges) was the “proper sanction.” Slip Op. at 13.

The Supreme Court of Pennsylvania granted allocatur, limited to the following issue:

Where a prosecutor’s conduct causes a mistrial, and a defendant subsequently moves to bar retrial on double jeopardy grounds, what standard of review should a reviewing court apply to the trial court’s factual finding regarding the prosecutor’s intent?

Allocatur grants present an excellent opportunity for your group or association to advance your legal and policy goals by filing an amicus brief. Participating as an amicus has proven to be an effective method of advising and influencing courts and often can involve far fewer resources than traditional lobbying.

If you are interested or would like more information, contact Kevin McKeon or Dennis Whitaker.