Com. v. Tielsch, 2182 WDA 2002.

• Decision Date: 23 August 2007
• Docket Number: No. 2182 WDA 2002.,2182 WDA 2002.
• Citation: 934 A.2d 81
• Parties: COMMONWEALTH of Pennsylvania v. Steven Michael TIELSCH, Appellant.
• Court: Pennsylvania Superior Court

934 A.2d 81

COMMONWEALTH of Pennsylvania v. Steven Michael TIELSCH, Appellant.

No. 2182 WDA 2002.

Superior Court of Pennsylvania.

Argued June 20, 2006.

Filed August 23, 2007.

Reargument Denied November 1, 2007.

Candace Cain, Pittsburgh, for appellant.

Michael W. Streily, Deputy Dist. Atty. and Kevin McCarthy, Asst. Dist. Atty., Pittsburgh, for the Com., appellee.

BEFORE: BOWES, PANELLA, and POPOVICH, JJ.

OPINION BY PANELLA, J.:

¶ 1 Steven M. Tielsch, Appellant, brings this direct appeal from the judgment of sentence entered on November 13, 2002,¹ by the Court of Common Pleas of Allegheny County. He was sentenced to a term of imprisonment of ten to twenty years on a conviction for third-degree murder. This appeal is a result of the fourth jury trial convened to address the charges filed against Tielsch. After careful review of the claims raised by Tielsch, we affirm the comprehensive decision of the Honorable Lawrence J. O'Toole.

¶ 2 On April 17, 1986, Tielsch and Kevin Ohm were driving around the Squirrel Hill section of Pittsburgh in a black Corvette. At approximately 9:15 p.m., the victim, Neil S. Rosenbaum, a rabbinical student from Canada, was walking toward the intersection of Phillips and Pittcock Avenues when Tielsch and Ohm pulled up in the Corvette. The pair asked the victim for directions. As the victim approached the vehicle, Tielsch opened fire and shot the victim four to five times.² Immediately after the shooting, Tielsch and Ohm drove off. Shortly thereafter, before he passed away, the victim told Officer Albert Stegena that a black Corvette had pulled up to him and that two white males had been in the vehicle.

¶ 3 Although an intensive investigation took place, little was learned as to the killer's identity until early 1988 when representatives from the District Attorney's Office and the local police department met with Sanford Gordon. Gordon told the police that Tielsch had bragged about the killing while the two had been housed at the Allegheny County Jail.

¶ 4 Additional evidence came to the Commonwealth's attention through Michael Starr. While Starr was under federal indictment, he related to the authorities that he was involved in an incident in the summer of 1991. Starr had been at a nightclub in the Strip District of Pittsburgh when he got into an altercation with Tielsch. According to Starr, Tielsch eventually pulled his jacket to the side and exposed the butt of a gun to Starr, and said: "I wacked some Jew f__k and I would have no trouble doing you too."

¶ 5 Tielsch was subsequently arrested for the victim's murder on February 17, 2000. On January 23, 2001, the first jury trial commenced. On February 13, 2001, the jury informed the trial court that it was hopelessly deadlocked; a mistrial was eventually declared. On November 26, 2001, the second jury trial began, but again the result was a mistrial due to a deadlocked jury. On May 13, 2002, the third jury trial began, but once again, the jury informed the trial court that it was deadlocked without hope for a unanimous verdict.

¶ 6 As stated above, this appeal is a result of the fourth jury trial, which began on August 27, 2002, and ended on September 13, 2002, when the jury returned its verdict finding Tielsch guilty of third-degree murder.³

¶ 7 Following his conviction at the fourth trial, Tielsch was sentenced, on November 13, 2002, to a term of imprisonment of ten to twenty years on the conviction for third-degree murder. This timely appeal followed.

¶ 8 On appeal, Tielsch raises arguments involving double jeopardy and due process violations, contends that evidentiary rulings by the trial court prohibited him from presenting exculpatory evidence, i.e., testimony that another man allegedly confessed to this murder,⁴ and that the Commonwealth presented insufficient evidence to sustain his conviction. See Appellant's Brief, at 3.

¶ 9 In his first issue presented on appeal, Tielsch argues that the trial court erred in denying his motion to dismiss as he contends that any retrial was barred by the double jeopardy clause of the Pennsylvania Constitution⁵ as interpreted in Commonwealth v. Smith, 532 Pa. 177, 615 A.2d 321 (1992). In Smith, our Supreme Court held that the double jeopardy clause of the Pennsylvania Constitution bars retrial when the Commonwealth specifically undertakes to prejudice the defendant to the point of denying him a fair trial. See id., 532 Pa. at 186, 615 A.2d at 325.⁶ Tielsch argues that there were two incidents of Commonwealth misconduct which invoke the double jeopardy clause: (1) In the first trial, by the deliberate action of the assistant district attorney in falsely contending that records from the Pennsylvania Department of Transportation showed that Tielsch destroyed his Corvette following the murder; and (2) by representing that Michael Starr, a Commonwealth witness, received no benefit for his testimony.⁷

¶ 10 At the first trial, the Commonwealth introduced Exhibit 31, a certified copy of the title history of a 1977 Corvette, which indicated that the vehicle had been first titled in Pennsylvania on May 5, 1977, and registered to Tielsch, and that the registration had expired on April 30, 1986. During the Commonwealth's closing argument, the prosecutor told the jury that Exhibit 31 indicated that Tielsch's uncle, Francis Tielsch, an insurance agent, had the Corvette destroyed in 1998, thus evidencing actions taken to hide Tielsch's guilt. In so informing the jury, the prosecutor relied not on the actual exhibit, but a loose-leaf copy from a detective's file. It turned out that the page the prosecutor relied on was from another unrelated report. The prosecutor accordingly admitted his error after the mistake was discovered.

¶ 11 After Tielsch's motion for a mistrial was denied, the trial court appropriately provided a curative instruction to the jury telling them that "the parties agree that the insurance claim referred on that page of Exhibit 31 was actually made by Francis T. Tielsch on a Chrysler automobile" and to disregard the Commonwealth's comment that Tielsch's uncle had disposed of the vehicle. N.T., Trial 1, at 1842.

¶ 12 As Tielsch acknowledges in his brief, the prosecutor "claimed that he made an honest mistake due to confusion by a missing page in Exhibit 31." Appellant's Brief, at 77. Tielsch maintains, however, that the aforementioned conduct requires a new trial "as an experienced prosecutor ... knows" that the Vehicle Code requires that "the defendant would have had to put the title for the Corvette into his uncle's name or a salvor's name," in order for Tielsch's uncle to have arranged for the car to be destroyed. Appellant's Brief, at 77-78. Tielsch also notes that Francis Tielsch had been contacted by police investigators two times before the prosecutor made his final argument and had informed the police that he had not made a claim, nor had any claim been filed through his agency, for the Corvette.⁸ See id., at 77. In addition, Tielsch contends that the veteran prosecutor "knew or should have known that he could not utilize the loose leaf papers from a detective's file...." Reply Brief, at 1 (emphasis added).

¶ 13 The record simply does not support Tielsch's contention that the Commonwealth acted intentionally in describing Exhibit 31 to prejudice Tielsch. See Smith, 532 Pa. at 186, 615 A.2d at 325 (holding that the double jeopardy clause bars retrial when the Commonwealth "intentionally undertake[s] to prejudice the defendant to the point of the denial of a fair trial."). Although the prosecutor was mistaken in his assertion, there is absolutely no evidence of a deliberate misstatement. Tielsch's unsupported theory is insufficient to show a deliberate trial tactic adopted by the prosecutor. As such, Tielsch's claim fails. See, e.g., Commonwealth v. Simmons, 541 Pa. 211, 248, 662 A.2d 621, 639 (1995) (finding no prosecutorial misconduct where evidence did not show that misstatement of fact was deliberate);⁹ Commonwealth v. Brown, 489 Pa. 285, 298-299, 414 A.2d 70, 77 (1980) (misstatement of fact by prosecutor in closing did not constitute error or warrant a new trial because evidence did not show that misstatement was deliberately done). Because we find no suggestion that the Commonwealth deliberately undertook trial strategies to prejudice Tielsch, we cannot conclude that any double jeopardy violation occurred in this regard.

¶ 14 Tielsch also contends that the Commonwealth committed intentional misconduct when it represented that Michael Starr received no benefit for his testimony.¹⁰ Specifically, Tielsch cites the following exchange from the first trial:

PROSECUTOR: Do you expect to gain anything by doing it [i.e., testifying], sir?

STARR: No, sir. I already have my deal with the [g]overnment. It's been completed.

N.T., Trial 1, 2/5/01, at 1193.

¶ 15 Tielsch contends that the prosecutor

had to know that in just a few weeks Starr would be using the fact that he testified in the Tielsch homicide to gain a sentence reduction in federal court, including having prosecutor Fitzsimmons himself testify on his behalf. Instead of allowing the jury to hear Starr's expectation of what he had to gain, Fitzsimmons permitted Starr to deny any benefit, alerting no one.

Appellant's Brief, at 81 (citation omitted).

¶ 16 At trial, Starr noted that he had signed a plea agreement in federal court wherein he had agreed to testify against others in exchange for the government's commitment to review his actions and accordingly recommend a sentence reduction if appropriate. Starr also testified that as of the date of his testimony against Tielsch he was still awaiting the hearing on his request for reduction of sentence. Starr repeatedly denied, even during vigorous cross-examination, that his testimony against Tielsch was related in any way to his plea agreement. See, e.g., N.T., Trial 1, 2/5/01, at 1231. In other words, the impetus for his testimony was that he was simply...