Commonwealth v. Anderson

• Decision Date: 03 November 2011
• Citation: 38 A.3d 828,2011 PA Super 233
• Parties: COMMONWEALTH of Pennsylvania, Appellant v. David W. ANDERSON, Appellee.
• Court: Pennsylvania Superior Court

2011 PA Super 233

38 A.3d 828

COMMONWEALTH of Pennsylvania, Appellant

v.David W. ANDERSON, Appellee.

Superior Court of Pennsylvania.

Argued June 7, 2011.Filed Nov. 3, 2011.

James P. Carbone, Assistant District Attorney, Franklin, for Commonwealth, appellant.

Alexander H. Lindsay, Butler, for appellee.

BEFORE: STEVENS, P.J., FORD ELLIOTT, P.J.E., MUSMANNO, BENDER, GANTMAN, DONOHUE, ALLEN, LAZARUS, and OLSON, JJ.

OPINION BY GANTMAN, J.:

Appellant, the Commonwealth of Pennsylvania, appeals from the order entered in the Venango County Court of Common Pleas, which granted Appellee, David W. Anderson's motion to dismiss on double jeopardy grounds, based on prosecutorial misconduct. The Commonwealth asks us to determine whether the trial court erred in dismissing the case pursuant to the double jeopardy clause of the Pennsylvania Constitution, where the prosecutorial misconduct occurred after remand for a new trial, but before the retrial. We hold prosecutorial misconduct occurring before a retrial can serve to bar the retrial, under the double jeopardy clause of the Pennsylvania Constitution. We further hold the trial court properly granted Appellee's motion to dismiss, because the prosecutor intentionally committed the misconduct to prejudice Appellee to the point of denying him a fair trial. Accordingly, we affirm the order granting Appellee's motion to dismiss.

This Court previously set forth the relevant facts of this appeal as follows:

[Appellee] was employed as a Residential Service Aide (“RSA”), a caregiver, at the Polk Center State Hospital, a facility that houses mentally retarded patients. D.M., T.C., and J.L. were residents of the hospital and function at approximate mental age levels ranging from six to eight years old. [Appellee] cared for the three residents at various times throughout his employment at the hospital. The following sets out the claims of each resident.

1. The incidents are:

D.M.

On or about March 1, 2000, Robert Lake, a coworker of [Appellee], observed [Appellee] with his pants down and buttocks exposed in the presence of D.M. in an abandoned cottage at the facility. Lake reported what he saw and the hospital began an internal investigation.

T.C.

During the investigation, another coworker of [Appellee], Kelly McCullon, reported an incident she saw in February 2000. McCullon observed [Appellee] in a restroom with resident T.C., with his shorts lowered and T.C.'s head positioned alongside [Appellee's] legs. When [Appellee] realized McCullon had entered the restroom, he appeared startled and immediately raised his trousers. T.C. does not require assistance in the bathroom because he is totally independent. A few days after the incident, [Appellee] approached McCullon and stated he was worried about something somebody may have seen, adding that seeing something is one thing and proving it is another.

T.C. reported to RSA McCullon that [Appellee] performed unwanted sexual acts with him. T.C. stated that [Appellee] rubbed his penis in the bathroom and T.C. placed his mouth on [Appellee's] penis at Polk Center. Afterwards, [Appellee] warned T.C. not to tell anyone what happened or he would get in trouble.

J.L.

The investigation continued and resident J.L. came forward to report misconduct by [Appellee]. J.L. reported that [Appellee] performed oral sex upon him and masturbated him on several occasions at the facility's swimming pool. In addition, J.L. revealed that while on a Special Olympics trip, [Appellee] performed oral sex on him in a Somerset County hotel. J.L. stated he did not reveal any of the incidents because [Appellee] threatened to beat him up if he did. The events at the hotel were corroborated by another Polk Center resident, Henry Garner, who was staying in the room with J.L. and [Appellee]. Garner observed J.L. playing with [Appellee's] penis and was reluctant to report the act because of threats made by [Appellee].

2. The Police Investigation and the Trial

In March 2000, following the internal investigation, Polk Center State Hospital referred the case to the police. Pennsylvania State Trooper Brian Mason was assigned as the investigating officer. Trooper Mason interviewed [Appellee] about the act that had been reported by [Appellee's] coworker Robert Lake. [Appellee] allegedly admitted to the act of indecent assault on resident D.M. On April 28, 2000, after the police reviewed the internal investigation of the hospital and interviewed the alleged victims, the Venango County district attorney's office filed criminal charges against [Appellee] for multiple counts of involuntary deviate sexual intercourse (“IDSI”) and indecent assault involving these three alleged victims.

On June 30, 2000, the Honorable District Justice Douglas Gerwick ruled that resident D.M. was incompetent to testify and dismissed the charges involving him. On October 20, 2000, a second preliminary hearing was held and District Justice Gerwick again held that D.M. was incompetent to testify. On January 25, 2001, the Commonwealth re-filed charges involving resident D.M. and a preliminary hearing was held on January 31, 2001. At the hearing, the district justice found D.M. to be competent to testify and the Commonwealth was allowed to proceed on charges involving D.M.

The procedure regarding residents J.L. and T.C. is as follows. On June 30, 2000, District Justice Gerwick allowed the charges involving these residents to go forward. On February 1, 2001, charges involving all the residents (D.M., T.C. and J.L.) were consolidated ... and trial was set for February 5, 2001.

On February 5, 2001, the day trial began, [Appellee's] motion under Rule 315 for dismissal of charges involving D.M. was denied. On February 13, 2001, the jury found [Appellee] guilty of indecent assault but not of IDSI from the incident involving D.M. The jury was deadlocked as to the charges involving J.L. and T.C. On March 26, 2001, [Appellee] was sentenced to incarceration of three months to 24 months less one day in the Venango County Jail for the conviction of indecent assault on D.M.

* * *

[Appellee] was retried on the charges involving residents J.L. and T.C.—the charges on which the jury had deadlocked in the first trial. Following the second trial, on September 17, 2001, the jury found [Appellee] guilty of one count of indecent assault on T.C. On the charges involving J.L., the jury found [Appellee] guilty of IDSI for the incident in Somerset County, as well as finding [Appellee] guilty of indecent assault at both the hospital and in Somerset. On January 24, 2002, the court sentenced [Appellee] to five to 15 years' imprisonment for the IDSI conviction and six years of probation for the three counts of indecent assault.

[Appellee] filed timely notices of appeal from both judgments of sentence.

Commonwealth v. Anderson, No. 746 WDA 2001, unpublished memorandum at 2–6, 855 A.2d 127 (Pa.Super. filed April 21, 2004) (internal citations to the record omitted).

On appeal, this Court reversed the conviction related to D.M., concluding Appellee had “suffered prejudice by the eleventh-hour amendment” of the charges. Id. at 10. Accordingly, this Court discharged Appellee with respect to D.M. This Court also reversed and remanded for a new trial on the charges related to T.C. and J.L. Specifically, this Court determined the prosecutor had engaged in misconduct during his closing argument, utilizing intemperate language and making a hand gesture to simulate masturbation in the direction of Appellee and defense counsel. Nevertheless, this Court declined to discharge the matter on double jeopardy grounds:

Our review of the record reflects no justification for the behavior of the prosecutor during his closing argument. The only purpose of the conduct appears to be to prejudice the jury, forming in their minds a fixed bias and hostility toward [Appellee] so that the jury could not weigh the evidence objectively and render a true verdict. Such conduct, from the record, appears to have been undertaken intentionally to prejudice [Appellee] to the point of denying him a fair trial. If so, the double jeopardy clause of the Pennsylvania Constitution would bar retrial of any charges prosecuted at the second trial. [ Commonwealth v. Smith, 532 Pa. 177, 615 A.2d 321 (1992) ]. On the other hand, we do not have before us the egregious circumstances of Smith.... While the prosecutor's behavior in [Appellee's] case was outrageous, it did not rise to the level of the intentional prejudice of the prosecutor in Smith. Thus, we reverse and remand for a new trial.

Id. at 14–15. The Commonwealth filed a petition for allowance of appeal, which our Supreme Court denied on February 22, 2005. Commonwealth v. Anderson, 855 A.2d 127 (Pa.Super.2004) (unpublished memorandum), appeal denied, 582 Pa. 668, 868 A.2d 1196 (2005) (“ Anderson I ”).

Upon remand, the court conducted jury selection on September 6, 2005. Immediately following jury selection, the court conducted a competency hearing to reevaluate T.C. and J.L. On September 8, 2005, the court found T.C. and J.L. were incompetent to testify, and it dismissed the jury. The Commonwealth timely filed a notice of appeal on October 6, 2005. On appeal, this Court determined the trial court had abused its discretion in failing to apply the factors in Pa.R.E. 601 to evaluate the witnesses' competency. Consequently, this Court reversed and remanded the case for trial. Commonwealth v. Anderson, 927 A.2d 647 (Pa.Super.2007) (unpublished memorandum) (“ Anderson II ”).

On September 26, 2007, Appellee filed a motion for another competency hearing. In it, Appellee alleged “the Commonwealth, by way of its Assistant District Attorney, has had substantial meetings with [the] witnesses prior to each hearing in which the witnesses testified.” (Motion for Competency Hearing, filed 9/26/07, at 5). Appellee argued the prosecutor used these meetings to “coach” the witnesses. Moreover, at a 2005 competency hearing, the...