Commonwealth of Pa. v. Hemingway

• Decision Date: 24 March 2011
• Parties: COMMONWEALTH of Pennsylvania, Appellantv.Maharaji HEMINGWAY, Appellee.Commonwealth of Pennsylvania, Appellantv.Michael Charles Gearhart, Appellee.Commonwealth of Pennsylvania, Appellantv.Michael Clair Styers, Appellee.Commonwealth of Pennsylvania, Appellantv.Charles R. Gearhart, Appellee.Commonwealth of Pennsylvania, Appellantv.Kenneth Vernon Smeal, Appellee.
• Court: Pennsylvania Superior Court

13 A.3d 491

2011 PA Super 8

COMMONWEALTH of Pennsylvania, Appellant

v.Maharaji HEMINGWAY, Appellee.Commonwealth of Pennsylvania, Appellant

v.Michael Charles Gearhart, Appellee.Commonwealth of Pennsylvania, Appellant

v.Michael Clair Styers, Appellee.Commonwealth of Pennsylvania, Appellant

v.Charles R. Gearhart, Appellee.Commonwealth of Pennsylvania, Appellant

v.Kenneth Vernon Smeal, Appellee.

Superior Court of Pennsylvania.

Argued May 19, 2010.Filed Jan. 11, 2011.Reargument Denied March 24, 2011.

David C. Gorman, Office of Attorney General, State College, William R. Stoycos and Christopher D. Carusone, Office of Attorney General, Harrisburg, for Commonwealth, appellant.Lance T. Marshall, State College, for Maharaji Hemingway, appellee.William C. Kerr, III, Dubois, for Michael Charles Gearhart, appellee.Benjamin J. Vrobel, Clarion, for Michael Clair Styers, appellee.Gary A. Knaresboro, Dubois, for Gearhart, C., appellee.Ronald L. Collins, Clearfield, for Smeal, appellee.BEFORE: DONOHUE, OLSON and FITZGERALD ^*, JJ.OPINION BY DONOHUE, J.:

The Commonwealth of Pennsylvania appeals from the order of the Court of Common Pleas, Clearfield County, precluding 34 of the Commonwealth's witnesses from testifying at the trial of defendants Maharaji Hemingway, Michael Charles Gearhart, Michael Clair Styers, Charles R. Gearhart, and Kenneth Vernon Smeal, as a result of the Commonwealth's failure to provide the defendants with transcripts of the witnesses' grand jury testimony in accordance with an agreement reached on February 27, 2009. We reverse and remand.

On December 20, 2006, at the request of the Attorney General, the Pennsylvania Supreme Court entered an order convening the Twenty–Sixth Statewide Investigating Grand Jury. The Honorable Barry F. Feudale was appointed as the Supervising Judge. The Supreme Court's order stated, in relevant part:

All applications and motions relating to the work of the 26th Statewide Investigating Grand Jury—including motions for disclosure of grand jury transcripts and evidence—shall be presented to said Supervising Judge. With respect to investigations, reports, and all other proper activities of the Twenty–Sixth Statewide Investigating Grand Jury, Senior Judge Feudale, as Supervising Judge, shall have jurisdiction over all counties throughout the Commonwealth of Pennsylvania.

In re: Application of Thomas W. Corbett Jr., Attorney General of the Commonwealth of Pennsylvania, Requesting an Order Directing that an Additional Multicounty Investigating Grand Jury Having Statewide Jurisdiction be Convened, No. 95 WM 2006 (December 20, 2006).

After hearing testimony from numerous witnesses and conducting an investigation into an alleged cocaine distribution network operating in Clearfield County and elsewhere, the grand jury issued a presentment on September 25, 2008, recommending the filing of various criminal charges against the defendants. Judge Feudale accepted and sealed the presentment. The Commonwealth filed criminal informations against each of the defendants, and the cases were consolidated for trial in the Court of Common Pleas of Clearfield County before the Honorable Fredric J. Ammerman, President Judge (“the trial court”).

On February 27, 2009, a pretrial conference was convened by order of the trial court. The trial court memorialized the resultant agreements in a court order which states, in relevant part:

The Commonwealth shall provide copies of the transcripts of Grand Jury testimony for any witness who will testify at the time of trial to Defense counsel by no later than July 6, 2009. Any failure to provide the Grand Jury testimony in conformance with this deadline shall result in the individual being precluded from testifying at time of trial.

Trial Court Order, 2/27/09.¹ No objection was made and no appeal was taken from that order.

On April 15, 2009, in response to omnibus pretrial motions filed by all defendants other than Charles Gearhart, the trial court ordered the Commonwealth to provide the grand jury transcripts to defense counsel “within no more than Ten (10) Days from this date.” Trial Court Order, 4/15/09. The Commonwealth filed a petition for the issuance of a writ of prohibition to the Pennsylvania Supreme Court regarding only the April 15, 2009 trial court order. On May 28, 2009, the Supreme Court granted the writ of prohibition, stating that “[a]pplications for disclosure of [...] grand jury transcripts are properly directed to Senior Judge Barry F. Feudale, the Supervising Judge.” Corbett v. Court of Common Pleas of Clearfield County, No. 29 WM 2009 (per curiam). It vacated the April 15 trial court orders “insofar as they require disclosure of grand jury transcripts, without prejudice to the ability of each of the defendants in these cases to present an application for disclosure in the appropriate forum.” Id.

On July 2, 2009, argument on motions unrelated to the instant appeal was held before the trial court. At that time, the Commonwealth indicated that it still intended to abide by the terms of the February 27 trial court order memorializing the agreement between the parties and provide the grand jury transcripts to defense counsel prior to trial. The attorney representing the Commonwealth did not reference the Supreme Court's May 28 Order. The prosecutor stated on the record that he was going to turn over the grand jury transcripts to all defense counsel “on the 9th of July [...].” ² N.T., 7/2/09, at 17.

The Commonwealth did not turn over the transcripts by July 6 or by July 9. All defense counsel filed motions in limine on Friday, July 10 to enforce the February 27 order and preclude the Commonwealth from calling the witnesses who testified before the grand jury because of its failure to provide the grand jury transcripts by July 6, as it had agreed. The Commonwealth provided all of the grand jury transcripts to defense counsel the same day that the motion in limine was filed.

Argument on the motions was held on Monday, July 13, the date that the trial was scheduled to begin. At that time, the prosecutor indicated that he erroneously thought the date for dissemination was July 9, but was unable to provide the transcripts on that date because he was interviewing potential witnesses for this trial and was not in the office that day. He stated that he provided the transcripts to defense counsel as soon as he arrived at his office on July 10, prior to receiving the motions in limine filed by defense counsel. The prosecutor pointed out that the grand jury transcripts were provided prior to trial, which he argued gave the defendants more time to review the transcripts than they were entitled to pursuant to the Rules of Criminal Procedure.³ The prosecutor offered to provide defense counsel with the order in which the Commonwealth would call their witnesses to testify to give defense counsel time to appropriately prepare for the relevant testimony each day.

In response to questioning by the trial court, the prosecutor admitted that he had agreed to the content of the February 27 order. The prosecutor also acknowledged that the Office of the Attorney General commonly provided grand jury transcripts to defense counsel in advance of trial, and that this prosecutor had previously done so in other cases.

Another prosecutor who was present for argument addressed the trial court and asserted that the disclosure of grand jury transcripts was for impeachment purposes, and that it was not a discovery matter. The prosecutor indicated that the Commonwealth had been working tirelessly to pare down the number of witnesses who would testify at trial, rendering many of the transcripts irrelevant. Furthermore, the assisting prosecutor added that defense counsel had been provided with an extensive amount of discovery, which included summaries of the witnesses' testimony before the grand jury, and thus suppression of all of the testimony of the witnesses who testified before the grand jury was too severe a sanction and not warranted under the circumstances.

The trial court granted defense counsels' motions and entered an order precluding the testimony of the 34 witnesses who testified before the grand jury. The Commonwealth filed an appeal the same day.⁴

The Commonwealth raises three issues on appeal:

1. Whether the trial court lacked subject matter jurisdiction to sanction the Commonwealth for failing to disclose grand jury transcripts seven days prior to trial given that determinations regarding the disclosure of transcripts of proceedings of the Twenty–Sixth Statewide Investigating Grand Jury must, as a matter of law, be made by the Honorable Barry Feudale, Supervising Judge of the Twenty–Sixth Statewide Investigating Grand Jury?

2. Whether the trial court's order sanctioning the Commonwealth for failing to disclose grand jury transcripts seven days prior to trial violated the Law of the Case Doctrine given that the Supreme Court of Pennsylvania had previously issued an order in these cases instructing the trial court and parties that all applications relating to the disclosure of grand jury transcripts must be presented to the Honorable Barry Feudale, Supervising Judge of the Twenty–Sixth Statewide Investigating Grand Jury?

3. Whether the trial court's sanction precluding 34 Commonwealth witnesses from testifying at trial constituted an abuse of discretion given that it is the functional equivalent of a dismissal of the charges filed against the defendants and the record: (A) contains no evidence that the prosecutor acted in bad faith; (B) contains evidence that the prosecutor's conduct was inadvertent; (C) contains evidence that the trial court contributed to the prosecutor's confusion on the subject; and (D) reflects the availability of less drastic remedies?

Commonwealth's Brief at 4.

As its first issue, the Commonwealth argues that the trial court lacked subject matter jurisdiction to sanction the Commonwealth for its failure to disclose the grand...