Commonwealth v. Daidone

CERCONE, President Judge Emeritus,

concurring.

Although I agree with the sound result reached by the majority, I write separately to emphasize that the historical development of the standard articulated by the majority undermines the Commonwealth’s contention that Smith only bars retrial following intentional prosecutorial misconduct designed to secure a conviction through the concealment of exculpatory evidence.

Traditionally, reviewing courts asked to determine whether prosecutorial misconduct prohibits re-trial on double jeopardy grounds have focused on the distinction between prosecutorial error and prosecutorial overreaching. Conduct that constituted mere prosecutorial error did not implicate double jeopardy principles; conduct that constituted prosecutorial overreaching, by contrast, triggered double jeopardy protections and barred retrial. See United States v. Dinitz, 424 U.S. 600, 609, 611 , 96 S.Ct. 1075, 1080, 1082 , 47 L.Ed.2d 267 (1976); Commonwealth v. Simons, 514 Pa. 10, 13 , 522 A.2d 537, 539 (1987) (“Administrative error by a prosecutor is one thing; prosecutorial overreaching which triggers double jeopardy is another”). This distinction between prosecutorial error and prosecutorial overreaching was premised on the role of the prosecutor as the sovereign’s representative:

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 *561 against.... “[P]rosecutors are to seek justice, not only convictions.”

Commonwealth v. Starks, 490 Pa. 336, 341 , 416 A.2d 498, 500 (1980) (quoting Commonwealth v. Cherry, 474 Pa. 295, 301 , 378 A.2d 800, 803 (1977)).

In Commonwealth v. Starks, our Supreme Court identified two types of prosecutorial overreaching: (1) prosecutorial misconduct designed to provoke a mistrial to secure a second, perhaps more favorable, opportunity to convict the defendant and (2) prosecutorial misconduct undertaken in bad faith to prejudice or harass the defendant. Id. at 341 , 416 A.2d at 500 . The United States Supreme Court later restricted prosecutorial overreaching sufficient to bar re-trial to those cases in which the prosecutor intended to provoke the defendant into moving for a mistrial. Oregon v. Kennedy, 456 U.S. 667, 679 , 102 S.Ct. 2083, 2091 , 72 L.Ed.2d 416 (1982). In 1987, our Supreme Court considered the implications of Oregon v. Kennedy. Commonwealth v. Simons, supra, 514 Pa. 10 , 522 A.2d 537 . Although the Simons Court noted that it was free to provide greater protections under Pennsylvania’s Constitution, it nevertheless adopted the high court’s conclusion that double jeopardy will bar retrial only when a mistrial has been intentionally provoked by the prosecutor. Simons, 514 Pa. at 16 , 522 A.2d at 540 . Five years later, in Commonwealth v. Smith, our Supreme Court acknowledged the more restrictive federal standard but held that “the double jeopardy clause under 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.” Commonwealth v. Smith, 532 Pa. 177, 186 , 615 A.2d 321, 325 (1992). Thus, Smith signaled a return to the pre-Oregon standard, with particular emphasis being accorded to the fairness of trial. Although Smith involved a prosecutor’s intentional concealment of exculpatory material, our Supreme Court did not expressly restrict its rule to such a factual setting. Rather, the Court merely identified the concealment *562 of exculpatory evidence as an example of prosecutorial misconduct specifically undertaken to prejudice a defendant to the point of the denial of a fair trial.

Since Smith was decided, our courts have not had another occasion to bar retrial on the basis of prosecutorial misconduct intentionally undertaken to deprive a defendant of a fair trial. See, e.g., Commonwealth v. Moose, 424 Pa.Super. 579 , 623 A.2d 831 (1993), appeal denied, 538 Pa. 613 , 645 A.2d 1317 (1994), cert. denied, — U.S. -, 115 S.Ct. 672 , 130 L.Ed.2d 605 (1994) (superior court did not bar retrial despite the prosecutor’s discovery violation; specifically, the Commonwealth failed to disclose the statement of its main witness until the first day of trial and its plea agreement with that witness until after securing a conviction); Commonwealth v. Rightley, 421 Pa.Super. 270, 279 , 617 A.2d 1289, 1294 (1992) (a panel of this court rejected the defendant’s claim that double jeopardy barred retrial; the trial court had granted the defendant a new trial because the prosecutor implied that a witness gave inconsistent testimony and because the prosecutor made three improper statements during his closing argument). Nevertheless, we continue to evaluate prosecutorial misconduct under the standard articulated in Smith . To that end, we reject prosecutorial misconduct designed to demean or subvert the truth seeking process:

The role of the trial judge is to evaluate when the prosecutor has overstepped the bounds of zealous advocacy into an area which deprives the defendant of a fair trial. Unless the conduct, while perhaps reprehensible, is actually designed to demean or subvert the truth seeking process, Smith will not apply to bar a retrial.

Rightley, 421 Pa.Super. at 280 , 617 A.2d at 1294 .

I agree with the majority that this case presents an illustration of prosecutorial overreaching designed to demean or subvert the truth seeking process. I further agree that the voluminous record of this case obviates any attempt on our part to itemize each instance of the prosecutor’s odious behavior. Nevertheless, I feel compelled to emphasize the atmosphere pervading the courtroom to provide guidance to the *563 bench and bar. To that end, I stress the prosecutor’s perversion of the fingerprint evidence by quoting at length from the notes of testimony as previously summarized by a panel of this court:

The following exchange involving the prosecutor (Ms. Christie), appellant Martorano’s counsel (Mr. Fitzpatrick), the witness, and the court took place during cross-examination by Mr. Fitzpatrick:

Q: And as a result of your search, you found one fingerprint?

A: Yes sir.

Q: Do you know whether that fingerprint was ever compared?

A: I believe it was, sir.

Q: And do you know whose fingerprint it was?

MS. CHRISTIE: Objected to, Your Honor. This witness would be testifying to hearsay, Your Honor, in that he would be testifying to an examination performed by another witness, sir.

THE COURT: I’m going to overrule the objection.

Q (by Mr. Fitzpatrick): Whose fingerprint was it?

A: I do not know, sir.

Q: Nobody ever told you?

A: No, sir.

Q: Okay. But there was one fingerprint that was compared, and you think it was identified as belonging to a living individual; is that right? You just don’t know the identity of that living individual? Right?

A: Living or deceased, that’s correct.

N.T., 5/15/84, at 234-35. During cross-examination by Mr. Brown, counsel for appellant Daidone, Officer Land indicated that he knew the results of the fingerprint comparison:

Q: What was the result?

A: It was negative to your client and several other people that were listed.

*564 Q: Was it positive as to anybody?

A: No, sir.

Q: So not just my client ... but it didn’t identify anybody. Right?

A: That’s correct, sir.

N.T., 5/16/84, at 28. During redirect examination this point was clarified by the court:

THE COURT: In other words, Officer Land, there is no human being alive today that those prints were related to in any way. Is that right?

A: That’s correct, sir.

N.T., 5/16/84, at 91. The redirect examination then continued:

Q [by Ms. Christie]: Officer Land, with regard to the one identifiable lift, you have indicated, in answer to defense questions on cross-examination, that certain individuals connected to this case — that their fingerprints were compared as against that one lift. Is that correct? MR. BROWN: I object, Your Honor.

THE COURT: I’ll sustain the objection. The witness testified that these prints were not able to be hooked up to anybody.

Q: I believe you were asked on cross-examination whether the FBI hooked up that one identifiable lift to any individual connected with this case. Is that correct, Officer Land?

MR. BROWN: I object. That’s not so, sir.

THE COURT: I don’t understand why you are questioning this, Miss Christie. The witness said that he cannot give you the name of anybody to whom any of the prints taken from that van relates. Isn’t that what you testified to, Officer Land?

A: Yes, sir.

THE COURT: All right. That’s it.

*565 Q (by Ms. Christie): And was that answer to counsel on cross-examination based upon your knowledge of the FBI conclusion concerning that particular print?

A: Yes, ma’am.

THE COURT: So the answer is that these prints ... could not be hooked up to anybody in this case?

A: Correct, sir.

THE COURT: That’s it.

Q: Officer Land, on that one identifiable print, were there any points of comparison to any individual connected with this case?

MR. BROWN: I object.

THE COURT: I’ll sustain the objection. The officer has testified that to the very best of his knowledge they were not able to relate any of these prints to anybody connected with this case or anybody period. And that’s it. I am sustaining the objection.

MS. CHRISTIE: Very well. I don’t wish to argue with your Honor.

Q (by Ms. Christie): Does that one identifiable print bear any — contain any points of comparison?

MR. BROWN: I object sir.

THE COURT: I’ll sustain the objection.

MR. BROWN: It was asked thirty-five times.

MS. CHRISTIE: I thought it was asked in terms of any connecting to this case.

MR. BROWN: Your Honor, I don’t believe—

THE COURT: Hold it, hold it. We don’t need any comments. I am sustaining] the objection to that question.

*566 Q (by Ms. Christie): Do you know if that identifiable lift now contained on the card marked C-18-G was also submitted to Mr. Grimes [Officer Joseph Grimes, an evidence technician] to review?

A: Yes, ma’am.

Q: And what if any is your knowledge of Mr. Grimes’ conclusion concerning that one lift?

MR. BROWN: I object to that, your Honor.

THE COURT: I’ll sustain the objection to that question.

Q (by Ms. Christie): Does that one identifiable lift bear eight or nine points of comparison to anyone connected in this case?

MR. BROWN: I object, sir.

THE COURT: I’ll sustain the objection.

MR. BROWN: Asked and answered, gone over and over.

THE COURT: I’ll sustain the objection. I think the testimony clearly reflects — and if I’m wrong, tell me— any counsel — that no fingerprints were taken from this van that relate to anybody connected with this case. Is that right? Is that a safe statement to make?

MR. BROWN: Yes, sir.

MS. CHRISTIE: Not exactly, sir.

MR. FITZPATRICK: May we see your Honor at sidebar?

THE COURT: Let me see counsel.

MR. BROWN: Let’s have it out right now. He said there wasn’t any hookup to anybody.

THE COURT: I don’t need further comment, Mr. Brown.

MS. CHRISTIE: I asked about eight or nine points of comparison, your Honor—

THE COURT: Miss Christie, I do not want anything further stated in front of the jury. Let’s have a conference on this.

N.T., 5/16/84, at 92-99.

During the ensuing conference in chambers, the prosecutor stated that “what I am prepared to show is that five *567 points of comparison as to that identifiable print compared to a known fingerprint of Albert Daidone” (N.T., 5/16/84, at 100). When Mr. Fitzpatrick maintained that “[w]e have not received a copy of a report from Mr. Grimes,” the prosecutor replied, “You didn’t, counsel, because it was oral ... [b]ecause then it was submitted to the FBI, who then found, sir, We couldn’t conclude it to be Daidone’s print, because we require eight or nine points of comparison’ ” (N.T., 5/16/84, at 102). Mr. Fitzpatrick then moved for a mistrial, arguing that the prosecutor had failed to comply with the court’s discovery order. The trial judge indicated that he would clarify the matter for the jury. The following discussion then took place:

THE COURT: [T]he problem here, Miss Christie, is you have placed before the jury an implication that somebody in this case is tied into this van by a verifiable fingerprint. Now, from what I know up to this moment, there is no such testimony, there is no way ... that anybody in this case can be tied up to that van.... What you are implying to the jury is that you have a fingerprint identification that indicates that somebody involved in this case was in that van. And you don’t have it. You just don’t have it.

MS. CHRISTIE: I indicated to the jury that we don’t have eight or nine points of comparison.

MR. BROWN: Your Honor, this is the most rotten drivel I have ever heard.

N.T., 5/16/84, at 113-14.

The following day Officer Grimes was interviewed outside of the jury’s hearing. In response to the court’s questioning, he indicated that he had no reports on the lifting of fingerprints from the van, he could not specifically recall talking to the prosecutor on that subject, and he neither looked over FBI reports concerning the prints nor knew anything about the conclusions drawn by the FBI....

*568 Q [by Mr. Fitzpatrick]: When they submitted this print to you, is there any reason why a report wasn’t prepared on it?

A: The prints, to my knowledge, had little value. And I usually do not make a report on anything unless there’s a conclusion to be obtained.

Q: I see. So that that print that they submitted to you ... you did not come to any opinion that the print belonged to an identifiable human being; is that correct, sir?

A: Well, it did belong to an identifiable human being. But I couldn’t identify. That’s what I am saying.

Q: You couldn’t identify it by two or three or four or five points of comparison?.

A: That’s correct.

Q: You didn’t even find five points of comparisons; is that correct?

A: There might have been five, I don’t know. But it was definitely insufficient.

N.T., 5/17/84, at 5-6. Mr. Brown, counsel for appellant Daidone, continued the questioning:

Q: Mr. Grimes, would you have ever said to somebody, ... “I have four or five points here which compare to Albert Daidone’s print, so this indicates Daidone?” You couldn’t possibly say that, could you?

A: No. And I did not say that. Because you would have to say that about seven-hundred fifty thousand or a million people.

N.T., 5/17/84, at 22-23.

Commonwealth v. Martorano, 420 Pa.Super. 638 , 610 A.2d 66 (1992) and Commonwealth v. Daidone, 420 Pa.Super. 635 , 610 A.2d 63 (1992)(slip opinion at 6-16).

The prosecutor’s persistent attempts to link appellant, through innuendo, to fingerprint evidence despite unequivocal expert testimony that the partial fingerprint could not be *569 identified as belonging to any living human being “were part of an overall scheme to give the jury the impression that the court was excluding evidence beneficial to the prosecution.” Id. The prosecutor’s use of innuendo in this instance and throughout the trial to pervert the truth-determining process undeniably “signalled] the breakdown of the integrity of the judicial proceeding, and represented] the type of prosecutorial tactic which the double jeopardy clause was designed to protect against.” Starks, supra. Accordingly, I agree that the order should be reversed and the appellants discharged.