Com. v. Kujawa, T.

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2025 PA Super 46

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellant :

:

:

v. :

:

:

TREVOR LEE KUJAWA : No. 510 MDA 2024

Appeal from the Order Entered March 26, 2024

In the Court of Common Pleas of Cumberland County Criminal Division at

No(s): CP-21-CR-0000417-2022

BEFORE: LAZARUS, P.J., BECK, J., and BENDER, P.J.E.

OPINION BY BECK, J.: FILED: February 25, 2025

The Commonwealth appeals from the order of the Cumberland County

Court of Common Pleas (“trial court”) barring the retrial of Trevor Lee Kujawa

(“Kujawa”) for sex crimes alleged to have been committed against E.K. based

on a finding of reckless prosecutorial conduct. Specifically, the trial court

determined that Assistant District Attorney Lauren Perchinski (“ADA

Perchinski”) failed to adequately prepare Trooper Nicholas Bierzonski for trial,

as he violated a trial court order prohibiting the mention of other sexual

assault charges against Kujawa and the alleged victim, C.R. After careful

review, we reverse and remand for further proceedings.

Factual and Procedural Background

The legal question presented requires a fact-intensive analysis and we

thus begin with a discussion of the material circumstances. E.K. testified to

the following version of events. She and Kujawa were “really good friends,”

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particularly during her junior year of high school. N.T., 12/6/2023, at 19. On

May 14, 2021, E.K. and several of her female friends were having a sleepover.

Sometime late in the evening, E.K., who had smoked marijuana, wanted food

from Sheetz. Id. at 21. She did not want to drive while intoxicated and called

Kujawa for a ride. Id. at 22. He drove her to Sheetz, told her to stay in the

car, and “came out with a box of condoms” instead of food. Id. at 23. Kujawa

began driving around, and she asked, “where are we going?” Id. at 24. He

replied, “you tell me.” Id. She suggested they “drive around or ... go back”

to her friend’s house. Id. Kujawa drove her to a parking lot, parked his

vehicle, and went to the backseat, asking her to “come back here[,] ... that

kind of thing.” Id. at 25. She repeatedly declined, but Kujawa persisted and

eventually “pulled [her] back into the seat” with him. Id. He started kissing

E.K. and tried “to have sex with [her],” but she continued to say no. Id. at

28. Kujawa eventually took her pants off, put on a condom, and then tried to

penetrate her vagina with his penis. Throughout, she continued “trying to

reason with him,” telling him, “I don’t want to do this[.]” Id. at 30, 31. He

was unable to fully penetrate and “gave up on that.” Id. at 31. Kujawa then

indicated he wanted oral sex. She said no, and Kujawa “put his hand on the

back of [her] head and then forced [her] head down” onto his penis. Id. at

33. He eventually ejaculated into a towel and then drove her back to her

friend’s house. Id. at 34. Kujawa texted her a few days later, apologizing for

what happened and saying there “was some sort of misconception, but it’s

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100 percent on” him. Id. at 38. E.K. replied with “[her] side of things,” and

Kujawa responded “that’s not the way he remember[ed] it.” Id. at 39.

On cross-examination, E.K. testified that it is possible she asked to have

sex that evening. Id. at 47 (Defense counsel asking, “Is it possible that you

don’t remember asking due to alcohol consumption?” and E.K. responding,

“Maybe.”). Kujawa further confronted E.K. with additional text messages from

the evening of the incident. E.K. agreed that she had texted Kujawa that

evening at approximately 7:50 p.m. to ask what he was doing. Id. at 51. He

replied, “nothing.” Id. at 52. E.K. texted that she was “single and ready to

mingle.” Id. Kujawa replied with slang for “that’s a lie,” and E.K. replied,

“swear to G[-]d.” Id. at 56. He replied again with “you’re lying,” and she

replied, “[Kujawa], I swear to G[-]d on my life, if you say sneaky link, we will

sneaky link.” Id. E.K. explained that “sneaky link” meant “when you meet

someone in secret. You could just like hang out. Sometimes it refers to sex.

Sometimes it doesn’t.” Id. E.K. stated that she and Kujawa would often make

these kinds of jokes, but he knew that she had a girlfriend, J.N. Id. at 84.

As to J.N., E.K. agreed that as of the morning of May 14 the two were

having difficulties. Id. at 55. E.K. and J.N. argued throughout the day, with

J.N. accusing E.K. of being manipulative. Id. at 61. The two girls used a

feature on their phones that allowed the other to see their current location.

Id. at 59-60. At 7:44 p.m., E.K. rescinded J.N.’s access to the feature, six

minutes before she texted Kujawa to ask what he was doing. Id. at 61. On

May 15, however, she decided to patch things up with J.N. Id. at 82.

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E.K. stated that the story about what happened between Kujawa and

E.K. began making its way around the school, and on May 26, 2021, she went

to speak to the school’s guidance counselor for advice. Id. at 83. The

counselor fulfilled her mandated reporter duties and informed the police. Id.

Trooper Bierzonski assumed investigative duties and ultimately filed a criminal

complaint charging Kujawa with various crimes relating to both E.K. and

another high school student, C.R., with an accompanying affidavit of probable

cause alleging that Kujawa’s modus operandi for both assaults was similar.

The assaults against C.R. were alleged to have occurred on January 23, 2021.

Kujawa filed a motion to sever the cases, which was granted on July 14,

2022, the day trial commenced on the charges concerning C.R. Upon motion

by Kujawa, the trial court entered a pretrial order stating that “there shall be

no mention of E.K., the investigation and/or charges relating to E.K., any

communications to or from E.K., or any other reference directly or indirectly

relating to E.K.” Trial Court Order, 7/19/2023. The order additionally stated

that the attorneys “shall inform their witnesses of the within directive. Failure

to comply with the within directive shall be grounds for a mistrial.” Id.

At the trial on charges related to C.R.,1 Trooper Bierzonski was asked

on cross-examination whether he interviewed Kujawa, who was by then a

college student. N.T., 7/19/2022, at 43. Trooper Bierzonski explained,

among other thing, that the authorities intended to have C.R. participate in a

____________________________________________

1 Certain testimony taken during this trial is relevant to the parties’ appellate

arguments.

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consensual wiretap and did not want to tip him off that the police were

investigating. Id. at 44-45. Kujawa noted that C.R. declined to participate in

the wiretap in August and charges were filed three months later, asking, “Why

not give [Kujawa] the opportunity to tell his side of the story?” Id. at 45.

Trooper Bierzonski replied, “Well, again, I don’t know if I can go into that side

of it, but there were other elements of this case, which I believe I am not

allowed to talk about,” id., at which point Kujawa interrupted to ask a follow-

up question.2 Kujawa did not object or request a mistrial.3

On October 12, 2023, in anticipation of the forthcoming trial involving

E.K., Kujawa filed a motion seeking to bar evidence about the investigation

and charges related to C.R. as the victim. The trial was postponed,

rescheduled for December 6, 2023, and assigned to another jurist in the

interim. Before the jury was brought in, the trial court referenced the pending

motion to preclude any mention of C.R. and the charges related to her, asking

the Commonwealth for its position. ADA Perchinski replied, “I’m in agreement

with that, and we’ve instructed our witnesses accordingly.” N.T., 12/6/2023,

at 4. Kujawa informed the court that the parties “agreed on the form of an

Order” and handed it to the court. The trial court signed and docketed the

____________________________________________

2 The information Trooper Bierzonski alluded to but could not testify to was

E.K.’s participation in a consensual wiretap. Trooper Bierzonski discussed that

issue at the evidentiary hearing on the motion to bar retrial. Specifically, he

stated: “The other elements were … we did conduct [a] consensual wire where

he made admissions to his sexual assaults[.]” N.T., 2/7/2024, at 26.

3 Unrelated to this testimony, the trial ultimately ended in a mistrial when the

jury could not reach a verdict.

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order, remarking, “I presume you’ve both read it, so I expect you to comply

with it.” Id. The record reflects that Trooper Bierzonski was present for this

exchange and announcement. See N.T., 2/7/2024, at 5.

E.K. was then called as the first witness and testified as previously

summarized. The Commonwealth’s next witness was Trooper Bierzonski, who

was asked to provide basic information about his background. See N.T.,

12/6/2023, at 99-100. The first question regarding the case resulted in a

mistrial:

Q. How did you first become aware of the allegations against [ ]

Kujawa involving [E.K.]?

A. It was brought to my attention when I had a conversation with

my current crime supervisor at Carlisle Station that there had

been an incident that occurred with two girls from a school

that had reported some information to a mandatory

reporter. Another trooper from the patrol unit actually

responded and handled the initial report. When it was determined

to be of a serious nature, then it was reassigned to me.

Id. at 100-01 (emphasis added).

Kujawa asked for a sidebar, stating, “I think that the Order that was

issued at the beginning of the trial was just violated.” Id. at 101. The trial

court replied, “I agree.” Id. Kujawa requested a mistrial, which the court

immediately granted. ADA Perchinski did not comment or make any

argument. The sidebar ended and the trial judge explained that a mistrial had

been granted, remarking, “I would certainly entertain a motion to preclude

further prosecution[.]” Id. at 102. ADA Perchinski said, “I’m sorry. What

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was that, Your Honor?” Id. The trial court repeated the statement, and ADA

Perchinski said, “Thank you, Your Honor,” and nothing else. Id.

Kujawa thereafter filed a motion to bar retrial pursuant to Article I,

Section 10 of the Pennsylvania Constitution based on our Supreme Court’s

decision in Commonwealth v. Johnson, 231 A.3d 807 (Pa. 2020), which

held that double jeopardy protections under the Pennsylvania Constitution

extend to “misconduct which not only deprives the defendant of his right to a

fair trial, but is undertaken recklessly, that is, with a conscious disregard for

a substantial risk that such will be the result.” Id. at 826. The motion

asserted that ADA Perchinski recklessly failed to adequately prepare Trooper

Bierzonski in light of the pretrial order. On this point, the motion suggested

that the relevant facts for assessing whether the prosecutor was reckless

extended to the events at C.R.’s trial. Specifically, Kujawa claimed that

Trooper Bierzonski “ma[de] indirect reference to E.K.’s claims in response to

a cross-examination question” at that prior trial, which, in his view, violated

the preclusion order. Motion to Bar Retrial, 12/7/2023, 13. While conceding

that he did not seek a mistrial or even object to these comments, Kujawa

alleged that ADA Perchinski was “aware that [Trooper] Bierzonski had

difficulty following the [c]ourt’s directive at the first trial, was in position to

easily anticipate that the same parameters would be in place at the second

trial, and had ample time to prepare” him for his testimony. Id. ¶ 26.

Returning to the instant charges, Kujawa asserted that Trooper

Bierzonski “blatantly violated the [c]ourt’s directive by stating that his

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investigation involved two girls,” id. ¶ 24, and those comments “were the

product of [ADA Perchinski]’s recklessness in failing to adequately prepare

Trooper Bierzonski[.]” Id. ¶ 27. Alternatively, Kujawa argued that barring

retrial was justified based solely upon Trooper Bierzonski’s testimony without

any reference to ADA Perchinski’s role. Id. ¶ 31.

Kujawa argued that barring retrial was particularly warranted because

the Commonwealth now had advance knowledge of his strategy. Relevantly,

ADA Perchinski had argued in opening statements that E.K. had no motive to

fabricate the allegations. As previously recounted, however, Kujawa

confronted E.K. with text messages that “neither she, nor the Commonwealth,

knew was in the undersigned’s possession.” Id. ¶ 22. According to Kujawa,

her “raw answers and demeanor ... were invaluable to the jury’s determination

on her credibility,” id. ¶ 23, and indirectly suggested that the Commonwealth

would be in a better position at a retrial since it could anticipate the same

strategy.

The trial court held a hearing on February 7, 2024, at which ADA

Perchinski and Trooper Bierzonski testified. Trooper Bierzonski confirmed that

ADA Perchinski informed him that he was to limit his testimony to the specific

victims in their respective trials. The trial court added, “In fact, in the case

before me, I stated that in open court before the trial began. Do you recall

that?” N.T., 2/7/2024, at 5. Trooper Bierzonski acknowledged that he was

present. Id. The Commonwealth asked him, “When you responded to [ADA

Perchinski’s] question and referenced two girls, what was your intention in

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responding that way?” Id. He replied, “To tell the truth, the whole truth, and

nothing but the truth.” Id. The Commonwealth followed up by asking, “Did

you intend to reference C.R. when you said two girls?” Id. at 5-6. He said,

“No, I did not,” and also stated that he did not believe his answer violated the

pretrial order. Id.

The trial court interjected, requesting more details about the specific

answer. The trooper then reviewed the offending remark and stated, “I did

not refer by names or refer to them as victims at that point, or at any point,

in my answer.” Id. at 7. The trial court repeated the answer and pressed for

an explanation:

THE COURT: Now, how does that not make reference to the

second girl that was allegedly assaulted in this case?

[TROOPER BIERZONSKI]: Your Honor, when I was told that

information, I didn’t know what the truth was or any --

THE COURT: You didn’t know what it was then, but you knew that

it was when you were sitting there when this trial was taking place

because I told you not to mention that other case.

[TROOPER BIERZONSKI]: And that’s why I was trying to answer

the question the whole truth and nothing but the truth. This is

how it was explained to me by my current crime supervisor, and

that’s why I did not reference names or refer to any of the girls,

either one, as a victim. That’s why I went on to mention that

another patrol member actually handled the initial report, so I was

not involved in the process until much later when it was

reassigned to me. So that’s what I was doing, Your Honor, when

I answered the question how did you first become aware of the

allegations against [ ] Kujawa involving [E.K.].

THE COURT: Tell me your thought process and how you thought

a reference to an incident that occurred with two girls would not

somehow prejudice this jury?

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TROOPER BIERZONSKI: Because I’m answering the question

truthfully. I’m not censoring the truth, because I feel like if I don’t

tell the whole truth, that’s not honest, and I am up here under

oath. Also, I don’t believe anyone would think that both girls or a

girl were victims based on that statement unless they had prior

information that there were two victims.

Id. at 8-9. Trooper Bierzonski additionally clarified that he did not think the

term “incident” signaled a crime, as the PSP uses that term broadly. “We refer

to everything as an incident. We could go to an incident and it could be

unfounded, but that’s our terminology.” Id. at 9.

Turning to his preparation for trial, he confirmed that he did not meet

with ADA Perchinski in person to discuss the case, as he had been promoted

to a barracks approximately four hours away prior to trial. The two, however,

spoke on the phone, and ADA Perchinski instructed him not to reference C.R.

or mention that another victim was involved. Id. at 10-11. They did not

specifically discuss the question of how he first became involved in the case.

See id. at 20 (“We didn’t prep that specific question ... I was not provided

specific questions[.]”).

In her testimony, ADA Perchinski confirmed that she instructed Trooper

Bierzonski not to mention C.R. Id. at 31. Addressing the question that

prompted the mistrial, she testified that she expected him “to say that he

received a report from the school and that this triggered his investigation.”

Id. She explained that she did not specifically go over certain questions

because the order was “very clear,” and she spoke with Trooper Bierzonski

before trial to remind him not to mention the other incident or any other

victims. Id. at 37. Moreover, her practice is not to “rehearse specific

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questions ... because I think that sets up inappropriate coaching” and opens

the door to defense arguments that the witnesses practiced their answers with

the prosecutor. Id. at 39. Like Trooper Bierzonski, she did not believe that

his answer necessarily violated the order, as victims often “report with a

friend, with a loved one, with a family member, and it’s two people going to

report.” Id. at 38. The trial court pointed out that the answer stated, “[a]n

incident occurred with two girls ... not two girls came to report an incident.”

Id. ADA Perchinski replied that she did not believe that the trooper intended

to convey two victims were involved and that his answer was careless.

The trial court granted the motion and issued a Rule 1925(a) opinion

without ordering the Commonwealth to file a concise statement of matters

complained of on appeal. In its opinion, the court stated that it found ADA

Perchinski recklessly failed to adequately prepare Trooper Bierzonski for trial.

The trial court further noted its concern that Trooper Bierzonski still believes

that his answer did not violate the order. See Trial Court Opinion, 8/5/2024,

at 6-7 (“Incredibly, he claimed that he was not violating the order[.]”). The

court found that he “did not intend to cause the mistrial,” but it “result[ed]

from ADA Perchinski’s failure to properly prepare him for the necessities of

this case.” Id. at 9. According to the trial court, her “failure to prepare ... as

well as [Trooper Bierzonski]’s deliberate indifference to our order, amounted

to recklessness barring a retrial under ... Johnson[.]” Id. In light of the

preclusion order, the court found that ADA Perchinski “was under the

obligation to prevent the presentation of any such evidence. This meant that

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she needed to prepare her case, including her witnesses.” Id. at 12 (emphasis

in original).

In so holding, the trial court focused on the fact that the trooper

immediately violated the order in response to a basic question. See id. (“Had

she done simple preparation by asking the threshold question regarding the

[t]rooper’s involvement in this case, she would have been alerted to his

improper answer.”). The court criticized ADA Perchinski’s practice of not

rehearsing, opining that this meant “she was prepared to risk a mistrial rather

than prepare her witnesses.” Id. at 12 n.28. Relatedly, the court expressed

frustration that Trooper Bierzonski testified that his duty was to tell the whole

truth in his answers and “would not generalize the truth to comply with the

order.” Id. at 13. “We found that his attitude showed deliberate indifference

to our order.” Id.

The court determined that it was “up to the ADA to dispel that belief and

to bring his proffered testimony into compliance” with the preclusion order.

Id. On this point, the trial court emphasized that the existence of a specific

pretrial order distinguished these circumstances from one “where a ... witness

simply slips up where there was no proper guidance.” Id. Furthermore, the

trial court pointed to Trooper Bierzonski’s wiretap testimony at the trial

concerning C.R. as an alleged victim, finding that he “had to be steered away

from violating the preclusion order in that case,” which the court believed to

be a “red flag” in terms of preparing for this trial. Id.

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The trial court concluded that ADA Perchinski’s failure to prepare

“manifested a conscious disregard for the known and substantial risk of a

mistrial. That conduct effectively caused [Kujawa] to be denied a fair trial.”

Id. at 15. Additionally, it found that Kujawa would be prejudiced by a retrial,

as many of the text messages presented on cross-examination were unknown

to the Commonwealth. The trial court observed that the cross-examination

“tended to suggest a motive” for E.K. “to describe a consensual encounter as

‘rape’ if she wanted to continue her relationship with her girlfriend,” which the

Commonwealth was previously unaware, and could now “adjust its theory of

the case” upon retrial. Id. at 14-15.

The Commonwealth now appeals as of right from the order, see

Pa.R.A.P. 311(a)(6), raising one issue for our review: that the trial court “erred

as a matter of law by finding that the prosecutor engaged in reckless conduct

that invoked double jeopardy protections and barred retrial[.]”

Commonwealth’s Brief at 8.

Parties’ Arguments

The Commonwealth argues that ADA Perchinski’s conduct was negligent

at worst and the remedy should be a retrial, not discharge. Id. at 22, 29-40.

It distinguishes this case from Johnson, quoting that Court’s multiple

references to how severe the prosecutorial and investigative errors were in

that case. Id. at 25-30 (citing Johnson, 231 A.3d at 827 (describing the

prosecutor’s errors as “unimaginable”)). Additionally, that case

“encompassed errors that occurred over time,” while here “there was one

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response that arguably violated” the preclusion order. Id. at 29. The

Commonwealth also focuses on the form of the question: ADA Perchinski did

not ask if there was more than one victim, and the question did not call for

any narrative elaboration. The Commonwealth maintains that the trooper’s

answer, while unfortunate, did not affect Kujawa’s “ability to have a full and

fair trial.” Id. at 32. Even if ADA Perchinski made a mistake, “[t]he trooper’s

testimony, even if construed to be a violation of the pretrial ruling, was not

intentional and did not prejudice the defendant or create a disadvantage to

the defendant during the trial.” Id. at 35.

Further, the Commonwealth argues that, to the extent the trial court

based its finding of prosecutorial recklessness in any part on ADA Perchinski’s

failure to appreciate that Trooper Bierzonski had come close to violating the

preclusion order during the C.R. matter, this was error. Id. at 28. It notes

that the Trooper’s comments were in response to defense questioning and

that “[i]t is unclear how questions from the defense attorney can be

intertwined with the prosecutor’s alleged conduct at a second trial to support

the finding of misconduct.” Id. Additionally, the Commonwealth observes

that Kujawa never moved for a mistrial nor objected to the trooper’s testimony

at the prior trial. Id.

Finally, the Commonwealth argues that its ability to respond to the

defense strategy on retrial is not the type of “prejudice” a court may examine

within the meaning of Johnson. The Commonwealth maintains that the focus

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must be on “how the actions (or inactions) of the prosecutor affected the

defendant’s ability to have a full and fair trial.” Id. at 32. “Preventing the

defendant from ambushing the Commonwealth with a text message at a

future trial may be an unfortunate result of defense counsel’s request for the

mistrial, but it does not prevent the defendant from having a full and fair

second trial.” Id. On this point, the Commonwealth argues that the question

and response “did not prejudice [Kujawa]” because the trooper’s response

“did not directly or indirectly refer to the victim C.R., or even specify that the

other girl was also a victim.” Id. at 31.

Kujawa’s argument largely focuses on the prejudice component,

agreeing with the trial court’s conclusion that the “mistrial resulted in ‘extreme

prejudice,’” because the Commonwealth now knows his strategy for

impeaching E.K. Kujawa’s Brief at 18. Kujawa assesses the prejudice

necessary “in terms of a retrial” and not whether the trooper’s remark itself

caused any form of prejudice at the trial itself. Id. at 28.

Turning to the offending remark, Kujawa emphasizes Trooper

Bierzonski’s comment during the C.R. trial, which “stood as a red flag”

regardless of whether it was “grounds for a mistrial or not.” Id. at 19. He

reasons that this put ADA Perchinski on notice that Trooper Bierzonski was

likely to violate the preclusion order and submits that this awareness is

relevant to whether ADA Perchinski consciously disregarded a substantial risk

that Trooper Bierzonski would again violate the order and thus prompt a

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mistrial. Id. at 26. He therefore agrees with the trial court that it was

incumbent upon ADA Perchinski to prepare the trooper for trial, and she

“consciously chose to bypass basic witness preparation” that could have

prevented the offending remark. Id. The failure to prepare in light of the

known risks “cannot be chalked up to mere negligence under the

circumstances of this case.” Id. Kujawa argues that this case “did not involve

a spontaneous error that occurred in the heat of trial. The error ... was

preventable by basic preparation that could have occurred at any time” in the

months before trial. Id. at 20. Kujawa maintains that there is a significant

difference between “an inadvertent courtroom mistake, as opposed to a

foreseeable mistake preventable by basic preparation.” Id. at 22.

Double Jeopardy

Both the Pennsylvania and United States Constitutions protect a

defendant from being tried twice for the same offense. U.S. CONST. amend. V

(stating no person shall “be subject for the same offence to be twice put in

jeopardy of life or limb”); Pa. CONST. Art. I, § 10 (stating “no person shall, for

the same offense, be twice put in jeopardy of life or limb”). There is a “valued

right to have [a] trial completed by a particular tribunal,” Wade v. Hunter,

336 U.S. 684, 689 (1949), and a mistrial can, in some circumstances, bar a

subsequent trial. See, e.g., Johnson, 231 A.3d at 826. Those instances,

however, are the exception, as “retrial is generally allowed where the first

proceeding ends in a mistrial.” Id. at 819.

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A retrial generally does not implicate double jeopardy concerns when

the defendant requests the mistrial. “[A] motion by the defendant for mistrial

is ordinarily assumed to remove any barrier to reprosecution, even if the

defendant’s motion is necessitated by prosecutorial or judicial error.” United

States v. Dinitz, 424 U.S. 600, 607 (1976) (citation omitted). The High

Court addressed the exceptions to that general rule in Oregon v. Kennedy,

but it acknowledged that “the precise phrasing of the circumstances which will

allow a defendant to interpose the defense of double jeopardy to a second

prosecution where the first has terminated on his own motion for a mistrial

have been stated with less than crystal clarity in our cases[.]” Oregon v.

Kennedy, 456 U.S. 667, 673 (1982) (emphasis in original). In an effort to

abate this confusion, the Kennedy Court held that, under the federal

constitution, the circumstances in which a “defendant may invoke the bar of

double jeopardy in a second effort to try him are limited to those cases in

which the conduct giving rise to the successful motion for a mistrial was

intended to provoke the defendant into moving for a mistrial.” Id. at 679.

Our Supreme Court rejected Kennedy’s limited interpretation as

inconsistent with Article I, Section 10 of the Pennsylvania Constitution in

Commonwealth v. Smith, 615 A.2d 321 (Pa. 1992). In Smith, the

defendant had been sentenced to death following a jury trial, and the Supreme

Court ordered a new trial based upon the erroneous admission of hearsay by

an alleged co-conspirator. See id. at 322. Before the retrial, Smith learned

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that the Commonwealth “withheld potentially exculpatory physical evidence

during his first trial and that the Commonwealth knowingly denied the

existence of the agreement that existed with its chief witness whereby the

witness received favorable sentencing treatment in exchange for his

testimony” against Smith. Id.

Smith argued that retrial was barred under these circumstances, and

our Supreme Court agreed. The Smith Court expressed uncertainty whether

the Kennedy test would bar retrial, noting “it is possible that some courts

would not view the prosecutorial misconduct in this case as rising to the level

of subversion of constitutional rights.” Id. at 325. The Court concluded it did

not need to decide that point, however, as “the double jeopardy clause of the

Pennsylvania Constitution prohibits retrial of a defendant not only when

prosecutorial misconduct is intended to provoke the defendant into moving for

a mistrial, but also when the conduct of the prosecutor is intentionally

undertaken to prejudice the defendant to the point of the denial of a fair trial.”

Id.; see also Commonwealth v. Martorano, 741 A.2d 1221, 1223 (Pa.

1999) (holding that the Smith standard was “deliberately nonspecific,

allowing for any number of scenarios in which prosecutorial overreaching is

designed to harass the defendant through successive prosecutions or

otherwise deprive him of his constitutional rights”).

Johnson, also a capital case, expanded the Smith holding by extending

double jeopardy protections to scenarios in which the prosecution committed

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“misconduct which not only deprives the defendant of his right to a fair trial,

but is undertaken recklessly, that is, with a conscious disregard for a

substantial risk that such will be the result.” Johnson, 231 A.3d at 826

(noting that this basis to bar to retrial “is in addition to the behavior described

in Smith, relating to tactics specifically designed to provide a mistrial or deny

the defendant a fair trial”).4 The Johnson Court clarified, however, that only

misconduct that is sufficiently egregious to be classified as prosecutorial

overreaching will allow a defendant to invoke double jeopardy, and even

“situations involving serious prosecutorial error” will not always bar retrial.

Id. at 822, 826.

In so holding, the Court highlighted the difference between mere

prosecutorial errors, which are “an inevitable part of the trial process,” and

prosecutorial overreaching, which is not. Id. at 824 (citation and internal

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4 In Johnson, the key evidence linking Johnson to a murder was a red

baseball cap which had DNA in its sweatband. “[T]he Commonwealth

proceeded on the understanding that there was only one baseball cap involved

– the red one – and that it contained both [the victim]’s blood and [Johnson]’s

DNA.” Johnson, 231 A.3d at 811. Post-conviction proceedings established

that there were two hats, with the red one having Johnson’s DNA and a

separate black cap containing the victim’s blood. “[N]either cap had DNA from

both individuals.” Id. The lead investigator testified that he observed the red

cap with fresh blood underneath the brim. Id. at 812. That testimony was

false and later revealed to be based on an assumption. Id. at 814. “Although

separate property receipt numbers had been assigned to the two hats, this

did not prompt the Commonwealth to investigate whether its trial witnesses

were discussing two distinct caps[.]” Id. While “these acts and omissions

were not made intentionally or with a specific purpose to deprive [Johnson] of

his rights, the record is likewise consistent with [the trial court]’s

characterization that such mistakes were ‘unimaginable.’” Id.

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quotation marks omitted). Unlike prosecutorial error, “overreaching signals

that the judicial process has fundamentally broken down because it reflects

that the prosecutor, as representative of an impartial sovereign, is seeking

conviction at the expense of justice.” Id. (citation omitted). The Johnson

Court noted that there is an “overreaching prerequisite” to any finding that

prosecutorial misconduct bars a retrial on double jeopardy grounds. Id.

(internal quotation marks omitted).

We recognize, as did the Court in Kennedy, that the “overreaching”

standard is somewhat amorphous, which is why the Kennedy Court jettisoned

it for purposes of the federal constitution. See Kennedy, 456 U.S. at 675

(“The ‘overreaching’ standard applied by the court below and urged today by

Justice STEVENS, however, would add another classification of prosecutorial

error, one requiring dismissal of the indictment, but without supplying any

standard by which to assess that error.”). Our Supreme Court’s decision in

Commonwealth v. Starks, however, aptly summarized the types of

misconduct qualifying as “overreaching”:

The United States Supreme Court has enunciated principally two

types of prosecutorial overreaching. First there is the

prosecutorial misconduct which is designed to provoke a mistrial

in order to secure a second, perhaps more favorable, opportunity

to convict the defendant. Second there is the prosecutorial

misconduct undertaken in bad faith to prejudice or harass the

defendant. In contrast to prosecutorial error, overreaching is not

an inevitable part of the trial process and cannot be condoned. It

signals the breakdown of the integrity of the judicial proceeding,

and represents the type of prosecutorial tactic which the double

jeopardy clause was designed to protect against.

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Commonwealth v. Starks, 416 A.2d 498, 500 (Pa. 1980) (citations

omitted).

To determine whether a “breakdown of the integrity of the judicial

proceeding” occurred, Johnson states that the proper inquiry is whether, at

the time the mistrial is granted, the judicial proceeding was so tainted that a

fair adjudication could not take place:

When the government engages in improper actions sufficiently

damaging to undercut the fairness of a trial, it matters little to the

accused whether such course of conduct was undertaken with an

express purpose to have that effect or with a less culpable mental

state. Either way, the conduct imposes upon the defendant the

very “Hobson’s choice” which double jeopardy seeks to prevent.

Id. at 826. (citation omitted); see also Kennedy, 456 U.S. at 670 (forcing a

defendant to make a “Hobson’s choice” flouts double jeopardy protections

because the defendant is forced to either “accept a necessarily prejudiced jury,

or to move for a mistrial and face the process of being retried at a later time”).

Additionally, in Commonwealth v. Krista, we provided examples of

prosecutorial overreaching:

Examples of overreaching, in addition to the farcical string of

errors and omissions in Johnson, are the prosecution’s

“consistently making reference to evidence that the trial court had

ruled inadmissible, continually defying the trial court’s rulings on

objections, and ... repeatedly insisting that there was fingerprint

evidence linking [the defendants] to the crime when the

prosecutor knew for a fact that no such evidence existed,” ...

Martorano, ... 741 A.2d [at] 1223; and contacting a defense

witness to intimidate her and prevent her from testifying,

[Commonwealth v.] Byrd, [209 A.3d 351,] 359 [(Pa. Super.

2019)]. In such scenarios, it is clear that the prosecutor made

conscious decisions, be they intentional malfeasance or a failure

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to heed red flags signaling an unintentional error, to place getting

a favorable verdict ahead of the defendant’s rights.

Commonwealth v. Krista, 271 A.3d 465, 473–74 (Pa. Super. 2022).

Analysis

We now address whether the trial court correctly ruled as a matter of

law that ADA Perchinski’s conduct is encompassed by the Johnson holding.

“An appeal grounded in double jeopardy raises a question of constitutional

law. This court’s scope of review in making a determination on a question of

law is, as always, plenary.” Commonwealth v. Sanchez, 262 A.3d 1283,

1288 (Pa. Super. 2021) (citation omitted). Our standard of review over this

question is de novo. Id. To the extent that factual findings are encompassed

within the double jeopardy ruling, we defer to those findings. Id.

As discussed above, Johnson requires that prosecutorial conduct

constitute “overreaching” for double jeopardy to bar retrial. Thus, to affirm

the bar to retrial on double jeopardy grounds, it is not enough to find that ADA

Perchinski recklessly failed to fully prepare Trooper Bierzonski for compliance

with the preclusion order or even that ADA Perchinski’s failing was intentional;

instead, pursuant to Johnson, the prosecution’s misconduct must have been

truly egregious to the point of outrageous. See Johnson, 231 A.3d at 822

(“In spite of the broader protections reflected in Smith and Martorano, later

case law clarified that not all intentional misconduct is sufficiently egregious

to be classified as overreaching and, as such, to invoke the jeopardy bar.”);

see also id. at 824 (the Court recognizing that it must “not … lose sight of

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the distinction between prosecutorial error and prosecutorial overreaching”).

We are also mindful that “dismissal of charges is an extreme sanction that

should be imposed sparingly and ... only in cases of blatant prosecutorial

misconduct.” Commonwealth v. Burke, 781 A.2d 1136, 1144 (Pa. 2001)

(citation omitted). Based upon our review of the record, we find it clear that

this standard is not met here.

The trial court’s conclusion that double jeopardy protections precluded

Kujawa’s retrial appears to rest largely on the fact that the parties agreed to

the terms of the preclusion order, which stated that a mistrial could result if

violated. Thus, in the trial court’s view, ADA Perchinski should have

adequately prepared the trooper to testify, especially in light of his testimony

at the C.R. proceeding.5 We accept for purposes of our disposition that the

trial court may, as part of its wide latitude to control the proceedings,

anticipatorily authorize a remedy for violations of its orders (here, a mistrial).

It does not follow, however, that a violation of the preclusion order, no matter

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5 It is not clear if the trial court determined that the trooper’s testimony at the

C.R. trial was a necessary component of its recklessness finding or whether it

was simply evidence tending to show recklessness. We observe, however,

that there was no violation of the preclusion order at the trial involving charges

related to C.R. To the contrary, the trooper took pains to avoid mentioning

E.K. or the additional investigation that was occurring in response to repeated

questioning by the counsel for Kujawa—questioning that could be interpreted

as goading the trooper to violate the preclusion order and would not be

chargeable to the prosecution. See N.T., 7/19/2022, at 43-45; see also,

e.g., Commonwealth v. Bonace, 571 A.2d 1079, 1083 (Pa. Super. 1990)

(affirming trial court’s denial of defense request for a mistrial as the

inadmissible evidence testified to by the trooper was elicited by defense

counsel and was a fair response to the question posed).

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the scale, necessarily means that Kujawa can never be retried. See Johnson,

231 A.3d at 826. To the contrary, on the record before us, there is no basis

to find that ADA Perchinski’s conduct of asking a single introductory question,

coupled with the answer given by Trooper Bierzonski, either caused Kujawa

to be denied a fair trial or created a substantial risk of an unfair trial.

The answer provided by Trooper Bierzonski, on its face, does not readily

inform the jury that there were two victims. See N.T., 12/6/2023, at 100-01

(“there had been an incident that occurred with two girls from a school that

had reported some information to a mandatory reporter”). Nor does the

question itself invite an answer identifying two victims. See id. at 100 (“How

did you first become aware of the allegations against [ ] Kujawa involving

[E.K.]?”). In fact, the question was clearly limited to the allegations involving

E.K. The trial court’s concern that the trooper’s answer stated, “[a]n incident

occurred with two girls ... not two girls came to report an incident,” N.T.,

2/7/2024, at 38, is well understood. But that analysis suggests that the

answer, “two girls came to report an incident” would have been acceptable

and would not constitute overreaching. That we must engage in this kind of

fine parsing alone suggests that there is no overreaching; the conduct

identified by the Krista Court and that occurred in Johnson are so over-the-

line that their prejudicial effect is immediately apparent.6

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6 Furthermore, if we are to scrutinize each word, we note that the trooper’s

answer referred to a singular “incident” and not plural “incidents.”

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The trooper’s relatively benign reference did not present Kujawa with a

clearly tainted jury, nor was ADA Perchinski’s question designed to secure a

mistrial or posed in bad faith to prejudice or harass Kujawa. See Starks, 416

A.2d at 500. Thus, even accepting that ADA Perchinski was reckless in asking

the question as to how law enforcement became involved in this matter

without first rehearsing it with her witness,7 there was no overreaching as

there was no breakdown in the integrity of the judicial proceeding and no

incurable taint to the jury such that a reliable adjudication could not occur.

See id.; Johnson, 231 A.3d at 826.

Indeed, neither the trial court’s opinion nor Kujawa’s brief address how

this exchange was so out of bounds that it substantially risked Kujawa being

denied a fair trial. Instead, both the trial court and Kujawa mainly direct their

arguments to how the mistrial will cause prejudice at the ensuing retrial,

concluding that retrial must be barred because the Commonwealth is now

aware of Kujawa’s strategy of attacking E.K.’s credibility. The primary

difficulty with this theory is that it entirely omits consideration of whether the

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7 The trial court did not focus on the question as asked, as the court premised

the recklessness on ADA Perchinski’s failure to review the specific introductory

question with the trooper ahead of time. Because we determine that there

was no prosecutorial overreach, we need not discuss this aspect of the case

in detail. We note, however, that we are highly skeptical that the double

jeopardy clause can be read to micromanage the way a prosecutor prepares

his or her witnesses. See Johnson, 231 A.3d at 827 n.14 (“For double

jeopardy purposes, unfairly prejudicial statements by witnesses generally are

not chargeable to the prosecuting attorney … .”). ADA Perchinski’s question

was facially vanilla.

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Commonwealth overreached, which, as discussed, is a necessary prerequisite

to precluding retrial on double jeopardy ground. See Johnson, 231 A.3d at

824. Our determination in that regard is dispositive and requires reversal of

the trial court’s order.

Conclusion

In sum, we conclude that this case is one of prosecutorial error, not

overreaching. As such, we reverse the decision of the trial court that barred

retrial of Kujawa as to the allegations concerning E.K. and remand for further

proceedings.

Order reversed. Case remanded. Jurisdiction relinquished.

Judgment Entered.

Benjamin D. Kohler, Esq.

Prothonotary

Date: 02/25/2025

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