The opinion
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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MICHAEL F. FLYNN :
:
Appellant : No. 1488 EDA 2021
Appeal from the Order Entered June 16, 2021
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0009050-2018
BEFORE: PANELLA, P.J., OLSON, J., and STEVENS, P.J.E.*
MEMORANDUM BY PANELLA, P.J.: FILED AUGUST 23, 2022
Michael Flynn has filed an interlocutory appeal from the Philadelphia
County Court of Common Pleas’ order denying his motion to bar reprosecution
on double jeopardy grounds. Flynn filed this motion on the heels of the trial
court granting his motion for a mistrial after the Commonwealth improperly
exposed the jury to evidence of Flynn’s prior bad acts during trial. The
Commonwealth did so by projecting on a video screen a computer-generated
version of Flynn’s statement to police, which did not redact Flynn’s reference
to his prior bad acts in accordance with an agreement by the parties. Although
this was clearly an error on the part of the Commonwealth, we do not conclude
____________________________________________
* Former Justice specially assigned to the Superior Court.
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that the Commonwealth's actions constituted prosecutorial overreaching so as
to trigger the double jeopardy bar. We therefore affirm, and remand for retrial.
The facts leading up to Flynn’s first trial, and the granting of the motion
for a mistrial during that first trial, are as follows. Special Agent Daniel Block
of the Pennsylvania Office of the Attorney General arrested Flynn for soliciting
sex online from a male who Flynn believed to be 14 years old. Flynn was
Mirandized and gave an audio-recorded statement admitting he had an online
discussion about paying for sex with a male who told him he was 14 years old.
During his statement, Flynn also reported he had been arrested and sentenced
for a series of sexual assaults in 1976, one involving a male victim and the
others involving five separate female victims. Flynn told the police that the
ages of the victims ranged from thirteen to twenty-five.
Prior to trial, the Commonwealth filed a Rule 404(b) motion in limine to
admit evidence of Flynn’s conviction involving the male. Specifically, the
Commonwealth sought to introduce evidence that Flynn had pleaded guilty to
the involuntary deviate sexual intercourse (“IDSI”) of a 13-year-old boy in
1976. The trial court granted the Commonwealth’s motion. Despite the court’s
ruling allowing evidence of the previous IDSI to be admitted, the
Commonwealth informed both the trial court and defense counsel on the day
before trial that it would not introduce the prior bad act evidence unless the
defense opened the door to its introduction. See N.T. Motion, 5/11/21, at 6-
7. The Commonwealth also reported it planned to introduce the audio and a
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written transcript of Flynn’s post-arrest statement, but that Flynn’s reference
to his prior sexual assault convictions would be redacted from both. See id.
at 15. Defense counsel had no objection. See id.
The matter proceeded to a jury trial the next day, and the first witness
the Commonwealth called to the stand was Agent Block. Agent Block testified
he was assigned to the child predator section of the Pennsylvania Attorney
General’s office where he, among other things, investigated potential online
sexual predators. According to Agent Block, as part of his online undercover
investigations, he created covert profiles on Grindr, a social media “site for
[gay] males to hook up.” N.T. Trial, 5/12/21, at 54. He created one such
covert profile on the morning of December 1, 2018. Although Agent Block
represented he was 18 years old in this profile, as that is the minimum age
allowed by Grindr to create an account, Agent Block testified it is well known
that minors use Grindr.
Block recounted that later in the morning on December 1, 2018, he
received a message to the covert profile from a Grindr account named “I have
issues.” “I have issues” represented that his name was Mike, and that he was
white, 5’10” and 62 years old. Agent Block testified he responded from the
covert account and began a conversation with “I have issues.” During their
conversation, Agent Block twice messaged “I have issues” that he was 14
years old, and alluded to that age a third time by indicating he had another
two years before he could drive. According to Block, “I have issues” arranged
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to meet the purported child at a CVS in Northeast Philadelphia at 6 p.m., after
which the two would return to “I have issue’s” home and engage in sexual
activities for which “I have issues” would pay the purported child.
Agent Block testified he, along with several other agents and officers
from the Philadelphia Police Department, went to the designated CVS and saw
a man matching the physical description provided by “I have issues” enter the
store minutes after 6 p.m. The Commonwealth then played a security video
taken from inside the store for the jury, with Agent Block providing narration
of the video. The video showed the man looking up and down the aisles of the
store, while periodically manipulating his cell phone. Agent Block testified he
received a message from “I have issues” while inside the store stating that he
could not find the purported child. After Agent Block received that message,
he testified his entire conversation with “I have issues” disappeared.
The man left the CVS, but returned to the store a few minutes later.
After the man looked around some more and then left the store the second
time, Agent Block, accompanied by other officers, approached and stopped
the man. Agent Block averred that the man, later identified as Flynn, allowed
Agent Block to look at his phone. The phone had the Grindr application “up
and running” on it, along with the “I have issues” profile. Id. at 101. Agent
Block arrested Flynn.
Agent Block told the jury Flynn gave an audio-recorded statement to
police acknowledging he had used Grindr that day to try to engage in certain
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explicit sex acts with a male who told Flynn he was 14 years old. In preparation
for playing that audio for the jury and in accordance with the pre-trial
agreement, the Commonwealth distributed a written transcript of Flynn’s
statement that had redacted Flynn’s references to his prior convictions for
sexual assault. The Commonwealth’s technical support person started to play
the audio of Flynn’s statement while simultaneously projecting a transcript of
the statement on a video screen in the courtroom via a computer.
At that point, defense counsel requested a sidebar, and one was held
off the record. Once the parties returned from the sidebar, the court remarked
that there is “nothing like a technical hiccup. I think we got it fixed.” Id. at
123. The court crier then interjected “one moment, counsel,” and the court
then held a second sidebar, again off the record. Id. The parties returned and
the audio of Flynn’s statement was played for the jury.
After Agent Block completed his direct examination, and the jury left the
room, the court addressed the two sidebars that had been held. The court
stated it had noticed that an unredacted version of the transcript, with Flynn’s
references to his previous sexual assaults intact, had been displayed on the
video screen for about five seconds before it was taken down.1 Defense
counsel said he also saw the unredacted statement on the screen, that it had
____________________________________________
1According to Flynn, there were two files of Flynn’s statement on the computer
- one containing the unredacted statement and one containing the redacted
statement.
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been put up twice - once before the first sidebar and once after the first
sidebar. See id. at 134, 137, 151. He was not sure how long it stayed on the
screen. See id. at 134.
Both the court officer and the court crier indicated that the statement
was up on the screen when the parties walked to the sidebar. See id. at 140-
141. The prosecutor, meanwhile, stated she had not seen what version of the
transcript was up on the screen, had not been the one operating the computer,
and the person who had been operating the computer denied the unredacted
version was the one displayed a second time. See id. at 138. Defense counsel
moved for a mistrial.
The court acknowledged the problem:
We all agree that the bad [unredacted] version was up first for
five seconds and then [defense] counsel is stating as an officer of
the court that he saw the bad [unredacted] version up again when
we went in the back [to sidebar].
Id. at 142. Meanwhile, the court also stated:
Counsel did not do this on purpose. We are dealing with technical
things. Technical issues happen…[I]t clearly wasn’t done on
purpose. No one is saying that the Commonwealth did this on
purpose.
Id. at 139. The court later emphasized “[f]or the record, I’m going to say this
a million times, people make mistakes. It was a technical error. No one did
this on purpose.” Id. at 153.
The court took the matter under advisement to consider whether a
mistrial without prejudice was warranted, see id. at 156 (“I’m not going to
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have prejudice for this case [-i]t was not intentional in any way, shape or form
by counsel”), or whether the matter could be resolved by giving a curative
instruction. The court stated it would review the matter overnight, and invited
counsel to submit case law and argument on the issue. Defense counsel did
so, essentially arguing that a new trial was warranted because instructions
would not sufficiently cure the prejudice Flynn suffered by the jury’s exposure
to the evidence of his prior bad acts. See Appendix A to Trial Court Opinion,
1/13/22, Defense Counsel’s Email to Trial Court dated 5/12/21.
The following day, the court granted the motion for a mistrial, without
prejudice to retry Flynn. In doing so, the court stated it had already made a
record about what was “inadvertently” seen by members of the jury in what
had only been a “technical issue” which the Commonwealth quickly tried to
fix. See N.T. Motion, 5/13/21, at 4. The court explained granting the mistrial
motion without prejudice was appropriate as it would not be overly
burdensome to restart this one-day case, especially given the brevity of the
testimony that had been presented. See id. at 4-5. The parties then began
discussing dates for a new trial. Neither Flynn nor the Commonwealth
appealed the order granting the motion for a mistrial without prejudice.
Just shy of a month later, however, Flynn filed a “petition to bar
prosecution as a violation of double jeopardy” (“motion to dismiss”). In this
motion, Flynn maintained for the first time that the Commonwealth’s actions
in twice publishing the unredacted transcript to the jury were undertaken with
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a reckless disregard for whether Flynn would be denied his right to a fair trial.
This recklessness, Flynn argued, triggered the bar to prosecution on double
jeopardy grounds under Commonwealth v. Johnson, 231 A.3d 807 (Pa.
2020) (holding that prosecutorial overreaching sufficient to invoke double
jeopardy protections under the Pennsylvania constitution includes not only
intentional misconduct, but also reckless conduct that deprived the defendant
of a fair trial).
The trial court held a previously-scheduled trial readiness conference
on June 16, 2021. At the conference, the trial court first addressed, and
immediately denied, the motion to dismiss. The court explained it had already
considered the issue by granting the motion for a mistrial without prejudice.
The court stated it had given counsel the opportunity to brief the issue of what
relief was appropriate - curative instructions or a mistrial. At that time, counsel
did not raise any claim regarding double jeopardy or Johnson. Instead,
counsel advocated for the granting of a mistrial and a new trial - the very
relief the court gave by granting the motion for a mistrial without prejudice.
The trial court stated there was no need to relitigate the matter. See N.T.
Motion, 6/16/21, at 3-4.
Flynn filed an interlocutory notice of appeal. He also filed a “petition for
remand for hearing on the motion to dismiss on double jeopardy grounds and
for compliance with Pa.R.Crim.P. 587(B)” with this Court. In that petition,
Flynn argued the trial court’s refusal to hold a hearing in which he could
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present evidence on his claims regarding the Commonwealth’s intent for
purposes of double jeopardy violated Rule 587(B). This Court denied the
petition without prejudice to Flynn’s right to again raise the issues in the
petition before the merits panel of this Court, either by refiling the petition or
raising the issues in his appellate brief.
Flynn chose the latter and now raises the following two issues:
1. Did not the failure of the lower court to hold a hearing on
[Flynn’s] written motion to dismiss on double jeopardy grounds in
violation of Pennsylvania Rule of Criminal Procedure 587(B) not
only deprive [Flynn] of an ability to present both evidence and
argument in support of his claim, but further deprives this Court
of an adequate record on which to resolve the sole issue on
appeal?
2. Did not the lower court err and abuse its discretion by denying
the motion to bar prosecution as a violation of Double Jeopardy
as the Commonwealth’s deliberate indifference to the preparation
and presentation of trial (given a previous ruling on a motion in
limine and the admonition by the trial court and time given to
correct its first misconduct of showing the jury prejudicial
information) is recklessness that is the functional equivalent of
intentional misconduct and is prosecutorial overreaching meriting
a double jeopardy bar of retrial?
Appellant’s Brief at 3.
Flynn first argues the trial court erred by refusing to grant his request
for a hearing on his motion to dismiss on double jeopardy grounds.
Specifically, he alleges the court erroneously failed to “entertain any argument
on the merits of his claim under Johnson, or hold an evidentiary hearing in
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support of, or in opposition to, the motion to dismiss.” Id. at 18. By doing so,
Flynn maintains, the trial court violated Rule 587. This claim fails.2
Rule 587(B) addresses motions for dismissal on double jeopardy
grounds and states in relevant part:
(2) A hearing on the motion shall be scheduled in accordance with
Rule 577 (Procedures Following Filing of Motion). The hearing shall
be conducted on the record in open court.
(3) At the conclusion of the hearing, the judge shall enter on the
record a statement of findings of fact and conclusions of law and
shall issue an order granting or denying the motion.
Pa.R.Crim.P. 587 (B)(2),(3). “‘Hearing,’ as used in paragraph (B)(2) includes
the taking of testimony, or the hearing of argument, or both.” Pa.R.Crim.P.
587 at Official Comments.
In turn, Rule 577 provides that “if the judge determines the motion
requires a hearing or argument, the court or the court administrator shall
schedule the date and time for the hearing or argument.” Pa.R.Crim.P. 577
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2Flynn also claims the trial court violated Rule 587 by failing to make a finding
as to whether or not his double jeopardy motion was frivolous. As the
Commonwealth points out, however, a finding of frivolousness goes to
whether this Court has jurisdiction over Flynn’s interlocutory notice of appeal.
This Court has held that “pre-trial orders denying double jeopardy claims are
immediately appealable in the absence of a written finding of frivolousness.”
Commonwealth v. Feaser, 723 A.2d 197, 199 n.2 (Pa. Super. 1999)
(quotation marks and citation omitted); see also Commonwealth v. Gross,
232 A.3d 819, 833 (Pa. Super. 2020) (en banc) (finding that trial court’s order
denying a double jeopardy motion was immediately appealable in the absence
of a finding that the motion was frivolous). Because the trial court did not
make a finding that Flynn’s motion was frivolous, we have jurisdiction over
this appeal and we fail to see any prejudice to Flynn.
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(A)(2). Therefore, as both the trial court and the Commonwealth have pointed
out here, it is the trial judge who determines whether a double jeopardy
motion requires a hearing or argument. The trial court here made clear that
it had allowed for and considered argument on this matter. It concluded that
it had therefore:
Fully complied with … Pa.R.Crim.P. 587 in giving both parties
ample opportunity to make argument[s] as to the issue of
prejudice, and even held the record open to give counsel the
opportunity to present case law and argument as to the issue.
Defense counsel emailed their position, stating unequivocally that
a new trial was the appropriate remedy.
Trial Court Opinion, 1/13/22, at 8-9.
Flynn counters, however, that this Court’s decision in Commonwealth
v. Kemick, 240 A.3d 214 (Pa. Super. 2020), compels the conclusion that the
trial court failed to comply with Rule 587 when it denied Flynn the opportunity
to present testimony in support of his newfound Johnson claim. But Kemick
does not hold, as Flynn appears to contend, that a court is required to hold an
evidentiary hearing on every double jeopardy motion that is filed. Rather, the
panel in Kemick held that the lower court erred by failing to hold an
evidentiary hearing on Kemick’s double jeopardy motion, which arose in
circumstances far different than those here.
In Kemick, Kemick pleaded guilty to a series of burglary and thefts in
Bradford County between July 2017 and September 2017 at four different
docket numbers. He then filed a motion to dismiss new criminal charges that
were subsequently filed for a burglary and related offenses committed in
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August 2017 in Bradford County on the basis that prosecution of those charges
would violate double jeopardy and the compulsory joinder rule.
Kemick requested a hearing on the motion, and the trial court convened
the parties to address the motion. Although Kemick was prepared to present
the testimony of at least nine witnesses in support of his motion to dismiss at
the hearing, the trial court did not admit any testimony or hear arguments on
the motion. It subsequently denied the motion without any findings of fact or
conclusions of law.
Kemick appealed, arguing the trial court violated Rule 587 by failing to
hold a hearing to give Kemick the opportunity to present the proffered
testimony and evidence in support of his motion. This Court agreed and
stated:
Rule 587(B) clearly required the trial court to develop a record, by
some means, in order that it could make findings of fact, reach
conclusions of law, and issue an order either granting or denying
the motion to dismiss. A record can be developed by conducting a
hearing, as defined by the official comments to Rule 587, or by
other means, such as, conducting a proceeding for the purpose of
admitting evidence or taking judicial notice of other proceedings
and documents to generate a factual record pertinent to claims
asserting double jeopardy and compulsory joinder.
Id. at 220 (internal citation omitted).
Here, as the Commonwealth points out, Flynn, unlike Kemick, did not
offer any witnesses he wished to present at the hearing. In fact, Flynn did not
outline any additional evidence he wished to present to the court in his motion
to dismiss in support of his Johnson claim or even request a hearing in his
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motion to dismiss. Therefore, this issue regarding the holding of a hearing is
not even preserved for our review. See Pa.R.A.P. 302(a) (providing that any
issue not raised in the lower court is waived and cannot be raised for the first
time on appeal).
Even if the issue were preserved, Flynn does not offer any persuasive
arguments as to why an evidentiary hearing was needed. The trial court here,
unlike the trial court in Kemick, had already developed a record on the
circumstances surrounding the Commonwealth’s conduct Flynn now says
warrants a bar on reprosecution. Moreover, the parties generally agree on the
factual predicate underlying Flynn’s claim. The Commonwealth concedes that
“the computer-generated image of the transcript displayed on a screen
showed the redacted information. The Commonwealth attempted to correct
the technical issue that caused the wrong version to be shown, but when the
transcript was displayed on the screen again, that version was again visible.”
Commonwealth’s Brief at 3-4. Accordingly, the Commonwealth does not
dispute that it showed the unredacted statement, attempted but failed to
correct the issue, and showed the unredacted statement again.
Flynn adds that in addition to the Commonwealth twice showing the
unredacted version of the statement, the second time arose after the court
instructed, and gave time to, the Commonwealth to remedy the problem at
the first off-the-record sidebar. It appears Flynn is suggesting for the first time
that an evidentiary hearing was required to elicit testimony that this is what
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occurred at the sidebar. However, not only would it seem logical that the court
instructed and allotted time for counsel to fix the problem the court itself had
seen, the Commonwealth does not in any way dispute the court gave this
instruction or time to fix the problem. In the end, even if Flynn had preserved
his issue by requesting a hearing before the trial court, we do not see how the
trial court committed reversible error by not holding an evidentiary hearing
prior to denying Flynn’s motion to dismiss under the circumstances here.
Turning to Flynn’s substantive double jeopardy claim, he argues the
Commonwealth’s actions underlying the granting of his motion for a mistrial
should also prohibit the Commonwealth from retrying him at a new trial on
double jeopardy grounds. As such, Flynn maintains, the trial court improperly
denied his motion to dismiss. We disagree.
An appeal grounded in double jeopardy raises a question of
constitutional law and this Court’s scope of review is therefore plenary. See
Commonwealth v. Krista, 271 A.3d 465, 468 (Pa. Super. 2022). Our
standard of review is de novo. See id. To the extent the trial court’s factual
findings impact its double jeopardy ruling, we apply a more deferential
standard of review to those findings. See id.
The Double Jeopardy Clauses of both the federal and Pennsylvania
constitutions protect a defendant from repeated prosecutions for the same
offense. See id. at 469. However, retrial is generally allowed where a first
trial ends in a mistrial. See id. This is because the dismissal of charges, among
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other things, subverts the public’s reasonable expectation that those charged
with a crime will be prosecuted for their crime. See id. Accordingly, dismissal
is an “extreme sanction that should be imposed sparingly, only in the most
blatant and egregious circumstances.” Id. at 469 (citation and internal
quotation marks omitted).
Under both the federal and state constitutions, such circumstances exist
when a mistrial resulted from prosecutorial overreaching in the form of
intentional misconduct designed to provoke a mistrial. See id. Our state
Supreme Court has found, however, that the Pennsylvania constitution gives
even broader double jeopardy protections than those under the federal
constitution. See Commonwealth v. Smith, 615 A.2d 321 (Pa. 1992). To
that end, the Smith Court held that our state constitution prohibits a
subsequent trial “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. at 325.
Despite this broadening of double jeopardy protections under our state
constitutional law, our High Court later clarified that only misconduct that is
sufficiently egregious to be classified as prosecutorial overreaching will invoke
the double jeopardy bar. See Johnson, 231 A.3d at 822. The Johnson Court
made clear that there is a difference between mere prosecutorial errors, which
are “an inevitable part of the trial process,” and prosecutorial overreaching,
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which is not. Id. at 824 (citation and internal quotation marks omitted). Unlike
mere 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. at 824 (citation omitted). The Johnson Court reaffirmed that,
under our state constitution and firmly entrenched in our case law, there is an
“overreaching prerequisite” to any finding that prosecutorial misconduct bars
a retrial on double jeopardy grounds. Id. (internal quotation marks omitted).
Johnson went on to address the question of whether misconduct, which
is undertaken recklessly, rather than intentionally, can qualify as
overreaching. It held:
Under Article I, Section 10 of the Pennsylvania Constitution,
prosecutorial overreaching sufficient to invoke double jeopardy
protections includes 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. This, of course, is in addition to the behavior
described in Smith, relating to tactics specifically designed to
provoke a mistrial or deny the defendant a fair trial. In reaching
our present holding, we … highlight again that, in accordance with
long-established double-jeopardy precepts, retrial is only
precluded where there is prosecutorial overreaching - which, in
turn, implies some sort of conscious act or omission.
Id. at 826 (emphasis in original).
Here, Flynn does not argue the Commonwealth deliberately or
intentionally displayed the unredacted statement to the jury. Instead, he
asserts the Commonwealth recklessly showed the statement to the jury and
essentially claims this recklessness should bar his retrial. His claim fails.
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In the first place, Flynn’s argument seems to ignore the “overreaching
prerequisite” mandated by Johnson. Johnson made clear that the initial
question in determining if a retrial is barred on grounds of prosecutorial
misconduct is whether the prosecutor made a mere error or whether the
prosecutor overreached to the point of denying the defendant a fair trial,
whether it be intentionally or recklessly.
Here, it is clear from the record the trial court found that the
Commonwealth’s showing of the unredacted statement on the video screen
was merely an error, not prosecutorial overreaching. The court repeatedly
called the incident “inadvertent” and various forms of an unintentional
technical mistake. It stated in no uncertain terms that “the record is clear that
the error was a technical misstep on the part of the Commonwealth, rather
than any surreptitious or maligned motive to trigger a mistrial.” Trial Court
Opinion, 1/13/22, at 8.
This Court has emphasized that, in the wake of Johnson, an appellant
seeking to bar retrial on the basis that the Commonwealth’s alleged reckless
conduct deprived him of a fair trial must still show, as a threshold matter, that
the prosecutor engaged in overreaching:
Appellant loses sight of the fact that, regardless of the mens rea
involved, in accordance with long-established double-jeopardy
precepts, retrial is only precluded where there is prosecutorial
overreaching. … Indeed, Appellant’s advocacy appears to be
premised on the idea that the existence of overreaching is a given,
and it is just a matter of whether that overreaching was done
recklessly. That is simply not the case.
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As mentioned above, overreaching is conduct that reveals a
fundamental breakdown in the judicial process where the
prosecutor, as representative of an impartial sovereign, is seeking
conviction at the expense of justice. Examples of overreaching
[include]… the prosecution[ ] 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. [Another example is] contacting a
defense witness to intimidate her and prevent her from testifying.
In such scenarios, it is clear the prosecutor made conscious
decisions, be they intentional malfeasance or a failure to heed red
flags signaling an unintentional error, to place getting a favorable
verdict ahead of the defendant’s rights.
Krista, 271 A.3d at 473-474 (citations omitted).
Applying that analysis to the facts before it, the Krista Court held that
even if it were to agree with the appellant that the prosecutor’s improper
comment on the appellant’s decision not to testify was made recklessly, it did
not qualify as the kind of overreaching that bars a subsequent trial. Under
Johnson, the Krista court stated, retrial should only be barred when the
“prosecutor’s misconduct is an act of deliberate or reckless overreaching and
not an isolated incident,” such as the one that occurred in that case. Id. at
474. The Krista court emphasized that the prosecutor’s misconduct in its case
did not come close to qualifying as the type of “overreaching” necessary to
prohibit the appellant’s retrial. See id.
We reach a similar conclusion, as there was no overreaching here. At
the outset, it is worth noting that it was the Commonwealth's technical support
person, and not the prosecutor, who was the one controlling the computer
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when the unredacted version was shown on the video screen. Even so, we
simply fail to see how the Commonwealth’s showing of the unredacted
statement, an isolated incident found by the trial court to be inadvertent,
reflects a situation where the Commonwealth was seeking a conviction at the
expense of justice. In fact, as the trial court repeatedly stated, there was
absolutely no incentive for the Commonwealth to do anything that had the
potential to jeopardize what the court described as “a near-certain conviction.”
Trial Court Opinion, 1/13/22, at 7; see also id. at 8 (stating “the case against
[Flynn] was so strong, that even after it was clear that a mistrial was
imminent, the parties still discussed the possibility of a guilty plea”). As the
Commonwealth points out, and the trial court found, the strength of the
Commonwealth's case against Flynn only serves to undermine any finding that
the Commonwealth engaged in overreaching.
Flynn seems to argue that the Commonwealth’s actions constituted
recklessness, and therefore overreaching, because the Commonwealth: (1)
should not have had the unredacted version of the statement “in its queue” in
the first place; (2) failed to correct the problem after being told to do so at
the first sidebar; and (3) violated the court’s ruling regarding the
Commonwealth's Rule 404(B) motion. None of these circumstances persuade
us there was overreaching.
In the first place, it is not unreasonable that the Commonwealth had the
unredacted version of Flynn’s statement available, given that it had reserved
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its right to use evidence of the 1976 IDSI conviction if the defense opened the
door to its introduction. Moreover, although it is true the unredacted
statement referenced all six of Flynn’s 1976 convictions and the
Commonwealth only sought to admit the one IDSI in its Rule 404(B) motion,
the trial court specifically found that the “Commonwealth made efforts to
abide by the Court’s ruling with regard to excluded evidence.” Id. at 8. And,
again, the Commonwealth acknowledged that the unredacted version was
displayed twice, but the court found this was the result of a mere technical
error, not some reckless disobedience of its directive to fix the error.
Flynn also argues the Commonwealth’s actions here are akin to those in
Johnson, where our state Supreme Court, after concluding that reckless
prosecutorial overreaching may bar retrial, found the prosecutor in that case
had engaged in such reckless overreaching. Not only do we disagree with
Flynn, but in our view, Johnson only buttresses our finding that there was no
overreaching by the Commonwealth here. Johnson involved what the trial
court in that case described as “almost unimaginable” prosecutorial errors,
which have been summarized this way:
The unimaginable prosecutorial errors involved the
Commonwealth's mishandling of the most critical pieces of trial
evidence, particularly two baseball caps, one red and the other
black, each with a distinct property receipt number. Forensic
analysis established that the victim's blood was found only on the
black cap, which had a bullet hole in it, and that the red cap
contained only the DNA of the defendant. At trial, the
Commonwealth proceeded on the mistaken theory that there was
only one baseball cap, the red one, which contained both the blood
of the victim and the DNA of the defendant. The prosecutor
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repeatedly informed the jury that the defendant had shot the
victim at close range, causing the victim's blood to appear on the
defendant's cap, when no evidence supported such [a] claim. Two
Commonwealth witnesses reinforced this erroneous theory in their
trial testimony.
Commonwealth v. Edwards, 272 A.3d 954, 971 (Pa. 2022).
Johnson was convicted of first-degree murder. After a forensics lab
report revealed a second cap had been analyzed, exposing the prosecutor’s
erroneous trial theory, the trial court vacated Johnson’s conviction on
collateral review. Johnson moved to dismiss the charges. Our Supreme Court
held that retrial was barred and, in doing so, highlighted two of the errors
made by the prosecutor:
[F]irst, there was a notable discrepancy between the property
receipt numbers for the two caps. The prosecutor was aware this
meant that the associated results reflecting the presence of the
victim’s blood and [the defendant’s] DNA might have related to
different pieces of evidence. Yet, in the face of this information,
he never sought to verify his working hypothesis that the receipt
numbers pertained to the same baseball cap. He did not even
notice this error at the preliminary hearing when he had in his
possession property receipt number 2425291, which clearly stated
that it was associated with a black baseball cap. Second, in
preparation for a capital case, the prosecutor did not obtain a
criminalistics report which would have summarized the evidence
connected with the matter and revealed there were two different
caps involved.
Johnson, 231 A.3d at 826-827.
It was against this backdrop of “almost unimaginable” errors that our
Supreme Court found the prosecutor had engaged in conduct “strongly
suggestive of a reckless disregard for consequences and the very real
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possibility of harm stemming from the lack of thoroughness in preparing for a
first-degree murder trial.” Id. at 827.
In even the quickest comparison between Johnson and this case, it
becomes obvious that the errors of the Commonwealth in this case do not
even come close to the reckless errors of the prosecutor in Johnson. Here,
the trial court repeatedly noted that the Commonwealth’s technical assistant’s
showing of Flynn’s unredacted statement from the computer was an
inadvertent, technical mishap. It was an isolated incident; it is not as though
the prosecutor tried to introduce evidence of Flynn’s prior bad acts into
evidence in other ways. As noted above, the prosecutor had no need to do so
given the strength of its case. Indeed, in light of all the evidence it had against
Flynn, the Commonwealth agreed that it would not proactively introduce the
one previous IDSI conviction that the trial court ruled the Commonwealth was
free to admit. Based on all of these circumstances, Flynn has failed to establish
that there was prosecutorial overreaching here, the prerequisite Johnson
explicitly requires him to show in order to obtain the relief he seeks.
To be clear, there is no dispute that the Commonwealth’s two-time
showing of the unredacted version of Flynn’s statement was an error. The trial
court recognized the error, and declared a mistrial because of it. However, the
error does not rise to the level of overreaching we saw in Johnson or any of
the cases described by the Krista Court above. We therefore agree with the
trial court that there is no double jeopardy impediment to retrying Flynn for
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the crimes for which he has been charged, and we affirm its order denying
Flynn’s motion to dismiss on double jeopardy grounds.
Order affirmed. Matter remanded for retrial. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/23/2022
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