Com. v. Smith

• Decision Date: 18 September 1992
• Citation: 615 A.2d 321,532 Pa. 177
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Jay C. SMITH, Appellant.
• Court: Pennsylvania Supreme Court

Page 321

615 A.2d 321

532 Pa. 177

COMMONWEALTH of Pennsylvania, Appellee, v. Jay C. SMITH, Appellant.

Supreme Court of Pennsylvania.

Argued May 6, 1992.

Decided Sept. 18, 1992.

[532 Pa. 178] William C. Costopoulos, Lemoyne, for appellant.

Robert A. Graci, Chief Deputy Atty. Gen. and Anthony Sarcione, Executive Deputy Atty. Gen., for appellee.

Before NIX, C.J., and LARSEN, FLAHERTY, McDERMOTT, ZAPPALA, PAPADAKOS and CAPPY, JJ.

OPINION OF THE COURT

FLAHERTY, Justice.

In this infamous murder case, we are compelled to order the discharge of appellant Jay C. Smith. Despite our prior holding granting a retrial, Commonwealth v Smith, 523 Pa. 577, 568 A.2d 600 (1989), we now hold that the prosecutorial misconduct during appellant's first trial was not only impermissible, but had constitutional implications under the double jeopardy clause which prohibit retrial.

At issue is whether the double jeopardy clause bars retrial following intentional prosecutorial misconduct designed to secure a conviction through the concealment of exculpatory evidence; previously, we have held that "double jeopardy will attach only to those mistrials which have been intentionally caused by prosecutorial misconduct." Commonwealth v. Simons, 514 Pa. 10, 16, 522 A.2d 537, 540 (1987), adopting the federal constitutional standard set forth in Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982). The Superior Court recognized that our prior remand did not foreclose this question, and it considered the issue and the claim of double jeopardy to be outside the scope of the direct appeal. Commonwealth v. Smith, 404 Pa.Super. 553, 557, 591 A.2d 730, 732 (1991). Superior Court's view is supported by the fact that the after-discovered evidence of prosecutorial misconduct during appellant's trial was unknown to appellant during his direct appeal and was not presented to this court at that time. Both the trial court and the Superior Court, Commonwealth v. Smith, supra at 559, 591 A.2d at 733, in proceedings following remand, found that intentional prosecutorial misconduct had been proved by appellant but deferred the remedy, a question of first impression, to this court. We granted allocatur to consider this question.

Inasmuch as a more detailed description of the crimes charged against appellant is contained in our prior opinion, Smith, supra, 523 Pa. 577, 568 A.2d 600, we abridge our description of the case for purposes of this appeal. Schoolteacher Susan Reinert and her two young children were murdered in June, 1979. William Bradfield, who was her fiance and fellow schoolteacher, and appellant, who was the principal of their school, allegedly had conspired to murder Mrs. Reinert in order to recover the proceeds of insurance policies on her life which named her fiance as beneficiary. The Commonwealth presented physical evidence linking appellant to the murders as well as various other testimonial evidence which, together, this court regarded as sufficient to sustain appellant's conviction. Id. at 586, 568 A.2d at 605. Nevertheless, this court held that appellant was entitled to a new trial due to the admission of impermissible hearsay testimony by associates of alleged co-conspirator Bradfield. Id. at 588-96, 568 A.2d at 605-09.

Before appellant could be retried, he filed a motion to preclude a new trial based on double jeopardy because of after-discovered evidence of prosecutorial misconduct. He alleged that the Commonwealth withheld potentially exculpatory physical evidence during his first trial and that the Commonwealth knowingly denied the existence of the agreement which existed with its chief witness whereby the witness received favorable sentencing treatment in exchange for his testimony against appellant. These alleged Commonwealth tactics were clearly in violation of the rule of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and, if proved, would, at the very least, entitle appellant to a new trial pursuant to Brady. Under the holding of Commonwealth v. Simons, supra, however, appellant would not be entitled to discharge to avoid double jeopardy, for the violation was not based on a "claim that the prosecutor intended to provoke a mistrial." Id. 514 Pa. at 20, 522 A.2d at 542 (emphasis in original). Appellant presents the case hypothesized in Simons, "where the Commonwealth conceals its efforts to subvert the truth-determining process, ... [where there is] no intent to goad the defendant into moving for a mistrial. Quite the opposite, the intent would be that the defendant should never know how his wrongful conviction came about." Simons, supra at 23, 522 A.2d at 544 (Flaherty, J., concurring).

After appellant's direct appeal from his first trial, he acquired evidence that the Commonwealth had obtained his conviction by overreaching in two respects. Specifically, he learned that the prosecution's chief witness, Mr. Martray, who denied the existence of any bargain in exchange for his testimony against appellant, was in fact awaiting sentencing for unrelated crimes and did in fact receive favorable treatment by the Commonwealth at his sentencing. Appellant was thereby precluded from impeaching Mr. Martray's veracity by exposing his motivation to testify falsely against appellant in order to minimize his own punishment. Secondly, appellant learned that the Commonwealth knowingly withheld physical evidence by hiding the fact that grains of sand were discovered between the toes of the murder victim at her autopsy, failing to present this evidence at appellant's trial and failing to apprise appellant of the evidence in compliance with Brady, supra. The significance of the sand lay in the fact that the scene of Susan Reinert's murder was unresolved; it was possible that the murder did not take place where the body was discovered but somewhere else and that the body was afterwards moved to the place of discovery. The prosecution theory was that the murder took place in Pennsylvania, whereas the defense theory was that the murder occurred in Cape May, New Jersey, where Bradfield had been and appellant had not. Thus the existence of the sand was potentially exculpatory to appellant, and the Commonwealth deliberately concealed the evidence for more than two years after the trial.

Due to the fact that appellant learned of these incidents of misconduct long after his trial, they were not part of the record at the time of his direct appeal. Upon remand to the trial court, appellant moved for discharge on the basis of the after-discovered evidence. Hearings were held, and the trial court found as fact that both incidents of misconduct were committed by the Commonwealth. The adhesive "lifters" used to remove and retain the sand from between the victim's toes were discovered by the Commonwealth during appellant's trial but were not disclosed to appellant despite the prosecutor's awareness of their importance. This is established by a mid-trial memorandum from the assistant attorney general who prosecuted appellant to his superior, the executive deputy attorney general, stating: "It is obvious from [defense counsel's] tactics thus far that he will attempt to establish that Mrs. Reinert was killed at the shore in Cape May, New Jersey by William Bradfield, Chris Pappas, and Susan Myers. The sand, therefore, is extremely material to the defense case." Similarly, the Commonwealth deliberately denied the existence of the agreement pursuant to which its witness, Mr. Martray, received extremely lenient treatment at his sentencing in return for his testimony against appellant.

Such misconduct, standing alone, would suffice to implicate the protection of the double jeopardy clause. But further examination of the record establishes the bad faith of the prosecution beyond any possibility of doubt; indeed, it would be hard to imagine more egregious prosecutorial tactics.

One of the Commonwealth's witnesses was Corporal John Balshy, a former Pennsylvania state trooper who had investigated the Reinert murders and been present during the victim's autopsy. He testified on cross-examination that he had used adhesive lifters to remove granular particles which looked like sand from between the victim's toes. The Commonwealth excoriated Corporal Balshy, implying that he had fabricated his testimony about the adhesive lifters. The Commonwealth then presented the testimony of other state police officers who had attended the autopsy and did not remember the sand or the adhesive lifters, attempting to prove that Balshy's testimony was false. The prosecutor even recommended to the deputy executive attorney general that he investigate the feasibility of prosecuting Balshy for perjury. A few days later, while appellant's trial was still in progress, the Pennsylvania state police discovered the missing adhesive lifters in their evidence locker at the state police barracks. Despite their...