NON-PRECEDENTIAL
DECISION - SEE SUPERIOR COURT OP 65.37
BEFORE: MURRAY, J., KING, J., and PELLEGRINI, J.
[*]
MEMORANDUM
KING
J.
Appellant
Ronald Thomas, appeals from the order entered in the
Philadelphia County Court of Common Pleas, denying his motion
to bar retrial under principles of double jeopardy. We
affirm.
This
Court has previously set forth the underlying relevant facts
and procedural history of this case as follows:
The charges against [Appellant] relate to his shooting and
murder of Anwar Ashmore (Ashmore).
Ashmore was fatally shot in the chest at the corner of North
Stanley and West [Huntingdon] Streets in Philadelphia at
approximately 9:00 P.M. on the evening of April 22, 2010. He
suffered injuries to his sternum, heart, ribs, lungs and left
arm. When Philadelphia Police Officers William Forbes and
Anthony Ricci arrived on the scene moments later, a group of
people was standing around him as he gasped for air. Ashmore
was unable to answer the officers' questions
and the bystanders denied having heard anything. Ashmore was
pronounced dead at Temple University Hospital moments after
arriving. The cause of death was two gunshot wounds to the
chest, later determined to be from a .45 caliber handgun.
Approximately one hour after the shooting, Detectives Philip
Nordo, Tracy Byard, Thorsten Lucke and Billy Golphin arrived
at the scene. The police did not locate any eyewitnesses to
the murder that night. However, one month later, on May 22,
2010, they arrested Raphael Spearman three blocks from the
murder scene after a police chase. He was in possession of a
.45 caliber handgun that was later determined to be the gun
that fired the bullets that killed Ashmore. Over the ensuing
days and months, Troy Devlin, Jeffrey Jones, Raphael Spearman
and Kaheem Brown identified [Appellant] as Ashmore's
killer. Detective Nordo took the statements of Devlin, Jones
and Spearman. Detective [Nathan] Williams took Brown's
statement.
* * *
Trial commenced on September 11, 2018.[1] The Commonwealth
proceeded under the theory that [Appellant] murdered Ashmore
in retaliation for the shooting of his
associate…approximately five months earlier. At trial,
the Commonwealth presented Devlin, Jones, Spearman and Brown,
each of whom identified [Appellant] as the shooter in their
police statements, but then recanted at trial.[2] …
* * *
On September 19, 2018, at the conclusion of trial, the jury
convicted [Appellant] of first-degree murder and related
charges. The court sentenced him to an aggregate term of life
imprisonment. [Appellant] timely appealed. …
* * *
[Prior to trial, o]n September 5, 2018, the Commonwealth
[had] filed a Motion in Limine to Preclude Reference
to Detective Nordo's Alleged Misconduct on the basis that
such evidence was hearsay, irrelevant and collateral. More
specifically, the Commonwealth maintained that, although the
detective had since been fired by the Philadelphia Police
Department for his misconduct, his actions occurred
approximately five years after his interrogations in this
case, none of the allegations involved [Appellant's]
case, no criminal charges had been filed, and the
Commonwealth did not intend to call him as a witness.
Therefore, the Commonwealth argued, Detective Nordo's
misconduct was a collateral issue. The court granted the
motion the same day.
Neither Detective Nordo nor Detective Williams testified at
trial. At the time of trial, Detective Nordo had been
dismissed from the Philadelphia Police Department for
allegedly putting money in prison inmates' commissary
accounts and improperly communicating with witnesses and
defendants outside of his official duties. There was no
evidence of misconduct by Detective Williams at that time.
Since [Appellant's] trial, the Commonwealth has filed
criminal charges against Detectives Nordo and Williams
premised on their alleged misconduct in the investigation of
crimes and use of police resources and has vacated the
judgment of sentence and conviction in other cases based on
Detective Nordo's misconduct. It has provided [Appellant]
with related discovery. On April 22, 2019, [Appellant] filed
a motion for remand to allow the trial court to conduct an
evidentiary hearing based on this newly provided evidence.
This Court denied the motion per curiam, without
prejudice to [Appellant] bringing the issue up [before the]
merits panel.
* * *
Since the conclusion of his trial, the Commonwealth has
provided [Appellant] with information about Detective
Nordo's role in an unrelated murder case,
Commonwealth v. Powell, No. CP-51-CR-0006915-2015.
In Powell, the trial court dismissed all charges
after "new and uniquely troubling information"
about Detective Nordo's investigative techniques were
revealed at a pretrial hearing on Powell's motion to
dismiss.
At the hearing, the evidence showed that Detective Nordo made
phone calls and unauthorized visits to incarcerated witnesses
and deposited money into their prison accounts. He also had
unauthorized contact with a judge without the District
Attorney's knowledge and sought pretrial release of an
incarcerated witness. He lied about whether he had prior
relationships with witnesses he claimed only to have met
during his investigation of Powell and his co-defendant. One
of the witnesses could be heard on recorded prison phone
calls telling Detective Nordo that he loves him and calling
him "Coach." Nordo was unavailable for Powell's
pretrial hearing because Nordo's attorney stated that
Nordo would assert his Fifth Amendment privilege against
self-incrimination.
Further, Detective Nordo took a statement from a person who
was under the influence of illegal narcotics and suggested
everything that ultimately was said in the
statement. That statement alluded to another conversation
between the individual and the detectives that was not
recorded. The detective had kept Powell's co-defendant in
custody for seventeen hours before taking his written
statement.
The Commonwealth also disclosed to [Appellant] a grand jury
report that detailed Detective Nordo's coercive
interrogation techniques, including threatening individuals
with prosecution, intimidating individuals into signing false
statements and giving people cash rewards for providing
fabricated statements. The disclosure included multiple
indictments that charged Detective Nordo with coercive sex
crimes related to his interrogation of suspects and
witnesses.
* * *
Detective Nathan Williams was arrested in November 2019 and
charged with tampering with public records, unsworn
falsification to authorities, tampering with or fabricating
physical evidence, and obstructing the administration of law.
Since that time, the Commonwealth provided [Appellant] with
certain related disclosures pursuant to its practice. Those
disclosures included information from an internal
investigation report showing that Detective Williams used
police database records to find personal information about a
woman that his cousin had been harassing and send the
woman's personal information to his cousin, and then
lying, attempting to conceal his misconduct from internal
investigators.
Thomas II at 3-16 (internal citations and footnotes
omitted). On direct appeal from his 2018 judgment of
sentence, this Court remanded for an evidentiary hearing
concerning the newly-discovered evidence of the misconduct of
Detectives Nordo and Williams, and to determine whether the
Commonwealth committed a Brady[3] violation by
failing to disclose this information to defense counsel prior
to trial. See id. at 24-25.
Upon
remand, the parties agreed not to conduct an evidentiary
hearing and to grant Appellant a new trial based on the
Commonwealth's "negligent" Brady
violation in suppressing certain 2005 allegations against
Detective Nordo. (See Commonwealth's Answer
Regarding Nordo's Misconduct and its Nexus to this Case,
5/20/21, at ¶32).[4] Thus, on May 25, 2021, based on the
Commonwealth's agreement, the assigned homicide calendar
jurist, Judge Ransom, awarded Appellant a new trial.
Thereafter,
the case was reassigned to Judge DeFino-Nastasi for a new
trial. On July 8, 2021, Appellant filed a motion to bar
retrial on double jeopardy grounds based on the
Commonwealth's intentional or reckless failure to
disclose Detective Nordo's misconduct to defense counsel
prior to
Appellant's 2018 trial. The court held hearings on the
motion on February 15, 2022 and March 4, 2022.
At the
February 15, 2022 hearing, Deputy District Attorney Matthew
Krouse of the Delaware County District Attorney's Office
testified that he was previously employed as an Assistant
District Attorney at the Philadelphia District Attorney's
Office. Attorney Krouse prosecuted Appellant's second
trial in 2018. Attorney Krouse said that Detective Nordo was
involved in the investigation of Appellant's case but was
not called as a witness, and Attorney Krouse had no
interaction with him pertaining to Appellant's case.
Attorney Krouse testified that in June 2018 (prior to
Appellant's trial), Attorney Krouse's supervisor
then-Assistant Chief Ed Cameron,[5] sent an email to Attorney
Krouse indicating that charges had been dismissed against a
defendant in the Powell case based on allegations of
Detective Nordo's misconduct. Attorney Krouse discussed
an email chain regarding Detective Nordo, which Attorney
Krouse confirmed was the extent of his knowledge regarding
Detective Nordo's misconduct. Attorney Krouse said he
knew there was an indication that Detective...
