J-S18020-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    SHAWN MICHAEL BOOK,                        :
                                               :
                       Appellant               :      No. 1126 WDA 2017

                      Appeal from the Order July 20, 2017
                in the Court of Common Pleas of Butler County,
             Criminal Division at No(s): CP-10-CR-0000630-2016,
                            CP-10-CR-0001483-2015

BEFORE: STABILE, J., MUSMANNO, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY MUSMANNO, J.:                               FILED JUNE 27, 2018

       Shawn Michael Book (“Book”) appeals from the Order denying his Motion

to bar a retrial, following the declaration of a mistrial in Book’s second jury

trial.1 We affirm.

       In its Opinion, the trial court described the history underlying the instant

appeal, which we adopt as though fully restated herein.          See Trial Court

Opinion, 7/20/17, at 1-15.




____________________________________________


1  This is an interlocutory appeal as of right. See Commonwealth v.
Hallman, 67 A.3d 1256, 1260 (Pa. Super. 2013) (recognizing that “a
defendant can immediately appeal as of right an order that denies a non-
frivolous motion to dismiss on state or federal double jeopardy grounds.”).
J-S18020-18


       Book’s first jury trial, on the charges of burglary2 and related crimes,

ended in a mistrial.3 During his second jury trial, three incidents took place,

culminating in the trial court’s declaration of a mistrial, sua sponte.      First,

Commonwealth witness Toni Arnold (“Arnold”) improperly referred to Book’s

prior incarceration, after which the trial court denied Book’s Motion for a

mistrial. See N.T., 4/17/17, at 226-27. Second, Book’s wife, Michelle Book

(“Michelle”), another Commonwealth witness, testified regarding privileged

communications between her and Book.             See N.T., 4/18/17, at 56-58.

Counsel for Book objected to the testimony. Id. at 57-58. The trial court did

not rule on the objection, but no further testimony regarding the discussion

took place.4    Third, it was discovered that discovery materials, including a

possible recording related to interviews conducted by Master Trooper Dominic

Caimona (“Master Trooper Caimona”) and Corporal Randolph Guy, were not

provided to defense counsel. See N.T., 4/18/17, at 189-91 (wherein Michelle

testified regarding interviews conducted by the officers, and a subsequent


____________________________________________


2   See 18 Pa.C.S.A. § 3502.

3 During the first trial, a police officer improperly had testified regarding facts
from which it could be inferred that Book had a criminal record.

4 The trial court requested that the prosecutor provide additional foundation
to establish that the conversation was not privileged, i.e., that a third person
was present during the conversation. Id. at 58. The prosecutor was unable
to provide the necessary foundation. Id. at 58-59.




                                           -2-
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sidebar discussion regarding the possibility of a Brady5 violation). This came

to light during the testimony of Master Trooper Caimona, who had been called

as a witness by Book. Following the third event, the trial court, sua sponte,

declared a mistrial, providing the following rationale for its decision:

       [N]umber one, we have the inadvertent[,] but certainly
       prejudicial[,] blurt out by [] Arnold concerning the fact that [Book]
       was in prison. Then we have Michelle[’s] [] testimony in violation
       of the spousal privilege[,] and then we have this issue[,] which[,]
       I think[,] is cumulatively going to make me declare a mistrial at
       this point.

Id. at 226-27.

       Book subsequently filed the instant Motion to Dismiss With Prejudice

seeking to bar a third trial.        In support, Book claimed that prosecutorial

misconduct caused the prior mistrials, and consequently, a retrial would

violate his constitutional protection against double jeopardy.         Motion to

Dismiss With Prejudice, 6/6/17, at 1; Brief in Support of Motion, 6/6/17, at 3

(unnumbered). In an Opinion and Order entered on July 20, 2017, the trial

court denied Book’s Motion to Dismiss With Prejudice. Thereafter, Book filed

the instant timely appeal, followed by a court-ordered Pa.R.A.P. 1925(b)

Concise Statement of matters complained of on appeal.

       Book presents the following claims for our review:




____________________________________________


5  See Brady v. Maryland, 373 U.S. 83, 87 (1963) (holding that the
prosecution must disclose evidence favorable to the accused that is material
either to guilt or to punishment).

                                           -3-
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      A. Whether the [trial] [c]ourt committed an error of law and/or
         abuse of discretion in denying [Book’s] “Motion to Dismiss With
         Prejudice”?

      B. Whether the [p]rosecutor and/or other agents of the
         Commonwealth           engaged          in       prosecutorial
         misconduct/overreach in the instant case[,] aimed at either
         forcing [Book] to request a mistrial and/or deny [Book] a fair
         trial?

      C. Whether the conduct of the agents of the Commonwealth,
         namely members of the [Pennsylvania] State Police, should be
         imputed to the Commonwealth as misconduct barring retrial of
         [Book]?

      D. Whether the overreach/prosecutorial misconduct by the
         Commonwealth/its agents prohibits retrial of [Book] via Pa.
         Const., art. I, § 10 and U.S. Const., amend. V.[?]

Brief for Appellant at 9 (emphasis omitted, issues renumbered for clarity).

      In the Argument section of his brief, Book reduces his claims to the

following three issues:    (1) whether prosecutorial misconduct, as defined

under Commonwealth v. Smith, 615 A.2d 321 (Pa. 1980), occurred in the

instant case, thereby creating a double jeopardy prohibition of retrial, see

Brief for Appellant at 19; (2) whether the weight of the evidence in this case

indicates that the Commonwealth actors engaged in the prosecutorial

overreach proscribed under the Smith test and, therefore, the double

jeopardy prohibition of retrial is triggered, see id. at 39; and (3) whether the

trial court should impute prosecutorial misconduct on the part of Pennsylvania

State Police personnel to the prosecutor for purposes of double jeopardy

analysis, see id. at 61.




                                     -4-
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       In assessing a double jeopardy claim,6 we are guided by the following:

       The Double Jeopardy Clauses of the Fifth Amendment to the
       United States Constitution[,] and Article 1, § 10 of the
       Pennsylvania Constitution[,] protect a defendant from repeated
       criminal prosecutions for the same offense. Ordinarily, the law
       permits retrial when the defendant successfully moves for mistrial.
       If, however, the prosecution engages in certain forms of
       intentional misconduct, the Double Jeopardy Clause bars retrial.
       Article I, § 10, which our Supreme Court has construed more
       broadly than its federal counterpart, bars retrial 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. An error by a prosecutor
       does not deprive the defendant of a fair trial. However, where the
       prosecutor’s conduct changes from mere error to intentionally
       subverting the court process, then a fair trial is denied.

Commonwealth v. Graham, 109 A.3d 733, 736 (Pa. Super. 2015)

(quotation marks, brackets, and citations omitted).

       Thus, whether a dismissal is warranted turns on whether the

Commonwealth        intended     to   deprive    the   defendant   of   a   fair   trial.

Commonwealth v. Adams, 177 A.3d 359, 372 (Pa. Super. 2017).

       By and large, most forms of undue prejudice caused by
       inadvertent prosecutorial error or misconduct can be remedied in
       individual cases by retrial. Intentional prosecutorial misconduct,
       on the other hand, raises systematic concerns beyond a specific
       individual’s right to a fair trial that are left unaddressed by retrial.
       As this Court has often repeated, a fair trial is not simply a lofty
       goal, it is a constitutional mandate, … and where that
____________________________________________


6 Book does not challenge the trial court’s sua sponte declaration of a mistrial.
Rather, Book challenges the denial of his Motion to Dismiss With Prejudice,
based upon a claim of prosecutorial misconduct. “Double jeopardy, as it
relates to prosecutorial misconduct, will attach where the prosecutorial
misconduct is calculated to trigger a mistrial.” Commonwealth v. Diehl,
615 A.2d 690, 693 (Pa. 1992).

                                           -5-
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      constitutional mandate is ignored by the Commonwealth, we
      cannot simply turn a blind eye and give the Commonwealth
      another opportunity.

Id. (citations and internal quotation marks omitted). However,

      the sanction of dismissal of criminal charges should be utilized
      only in the most blatant cases. Given the public policy goal of
      protecting the public from criminal conduct, a trial court should
      consider dismissal of charges where the actions of the
      Commonwealth are egregious and where demonstrable prejudice
      will be suffered by the defendant if the charges are not dismissed.

Id. (citations omitted).

      In his first issue, Book argues that, where manifest necessity is the

result of prosecutorial misconduct, the “Smith test” should be applied, and

retrial should be barred.   Brief for Appellant at 19.   Book asserts that the

prosecutorial overreach in this case is similar to the misconduct that occurred

in Smith. Id. at 25. According to Book, the Commonwealth’s case was not

proceeding as planned, and a representative from the Pennsylvania State

Police, seated at the prosecutor’s table, was aware of this. Id. Book posits

that this created a motive for the Pennsylvania State Police and/or the

prosecutor to intentionally inject error into the case, to force Book to choose

between opting for a mistrial or obtaining a verdict. Id. According to Book,

the mistrial was declared during the testimony of Master Trooper Caimona,

who had over two hours to prepare for his “eventually-fatal testimony[,]

during which he was, by all accounts, in almost constant contact with the

officers [and] well aware of the issues which had arisen during the rest of the

trial.” Id. at 26. Book asserts that the purpose of Master Trooper Caimona’s

                                     -6-
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testimony was to create the type of error that would meet the “Smith test.”

Id.

      In his second issue, Book argues that the “weight of the evidence”

indicates that the “Commonwealth actors engaged in the prosecutorial

‘overreach’ proscribed by the Smith Rule,” thereby triggering Book’s double

jeopardy protections.        Id. at 39 (internal quotation marks and some

capitalization   omitted).     In   support,   Book   directs   our   attention   to

inconsistencies in the testimony of other witnesses, which, he claims,

established the motive for the Commonwealth to inject error into the case.

See id. at 26-45. Book contends that it would be “ludicrous” to presume that

the prosecutor did not make known, to the police witnesses, the negative

implications of the “egregiously-lacking investigation,” and the “fatal nature”

of exposing the shortfalls, inconsistencies, “and outright lies” to the jury. Id.

at 39-40. Book contends that the Pennsylvania State Police witnesses and the

prosecutor then acted upon their “perceived need” to inject error into the case.

Id. Book asserts that fatal errors in both trials “have been the direct result of

a concerted effort by [Pennsylvania State Police] personnel, and/or the

[p]rosecutor, which mirror, in both form and function, the alternative prongs

of the ‘Smith test’ ….” Id. at 46.

      In its Opinion, the trial court set forth the appropriate law, addressed

Book’s first two challenges to the denial of his Motion to Dismiss With

Prejudice, and concluded that they lack merit.         See Trial Court Opinion,


                                       -7-
J-S18020-18


7/20/17, at 16-18. We agree with the sound reasoning of the trial court, as

set forth in its Opinion, and affirm on this basis as to Book’s claims, with the

following addendum.

      As our Supreme Court announced in Smith, “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.”

Smith, 615 A.2d at 325.

      An example of egregious prosecutorial misconduct which has been
      deemed sufficient to warrant dismissal may be found in Smith.
      In Smith, the Commonwealth deliberately withheld from a capital
      defendant: (1) the existence of an agreement with its chief
      witness pursuant to which he received lenient treatment at
      sentencing on unrelated charges in exchange for his testimony,
      and (2) material, exculpatory physical evidence that it had
      discovered mid-trial. The physical evidence consisted of grains of
      sand that were found between the toes of the murder victim at
      her autopsy. The sand was consistent with Smith’s defense that
      the crime had been committed in Cape May, New Jersey, by
      others, and not by him in Pennsylvania, as the Commonwealth
      had alleged. At trial, when a Pennsylvania state trooper testified
      on cross-examination that granular particles which looked like
      sand had been removed from the victim’s body, the
      Commonwealth implied that [the trooper] had fabricated his
      testimony and the trial prosecutor recommended to his superior
      that he investigate the feasibility of prosecuting the state trooper
      for perjury. While the trial was still in progress, the state police
      discovered the adhesive “lifters” that had been used to remove
      and retain the sand from the victim’s feet. The Commonwealth,
      however, failed to disclose this evidence and, indeed, continued
      to suppress the evidence for over two years while the case was on
      direct appeal to this Court. In light of this deliberate, bad faith
      failure to disclose potentially exculpatory evidence, this Court
      discharged Smith under the double jeopardy clause of the

                                      -8-
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      Pennsylvania Constitution, opining that “it would be hard to
      imagine more egregious prosecutorial tactics.” [Smith,] … 615
      A.2d at 323.

            On the other hand, a mere finding of willful prosecutorial
      misconduct will not necessarily warrant dismissal of charges. For
      example, in Commonwealth v. Moose, … 602 A.2d 1265 ([Pa.]
      1992), [the Pennsylvania Supreme] Court found that the
      prosecutor’s failure to inform defense counsel of a witness’s police
      statement[,] which contained incriminating admissions allegedly
      made by the defendant[,] amounted to a “willful violation of Rule
      305.” Id. at … 1274. The [Supreme] Court held that “the district
      attorney’s conduct raised significant ethical concerns” and
      referred the matter to the Disciplinary Board for its consideration.
      Id. … at 1274 n.8 & 1276 n.12. Nonetheless, the [Supreme] Court
      did not dismiss the charges against Moose, but rather remanded
      the matter for a new trial. Id. … at 1276.

Commonwealth v. Burke, 781 A.2d 1136, 1144-45 (Pa. 2001).

      In the instant case, the prosecutor’s conduct does not approach that of

the deliberate, bad faith, prosecutorial misconduct that warranted the

dismissal in Smith. Further, the prosecutor’s conduct does not even approach

the conduct of the prosecutor in Moose.        There is no evidence here of

deliberate overreaching by the Commonwealth or its witnesses.         Although

Book offers speculation regarding the motives of the Commonwealth’s

witnesses, there is no evidence supporting his assertions. Simply put, the

errors in this case in no way approach the egregious and intentional nature of

the conduct addressed in Smith. Accordingly, we cannot grant Book relief on

his first two issues.

      In his third issue, Book claims that the conduct and motives of the

Pennsylvania State Police witnesses should be imputed to the prosecutor, for


                                     -9-
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the purpose of applying the Smith test.         Brief for Appellant at 61.   Book

contends that the prosecutor should “feel adverse effects from the intentional

acts of her fellow Commonwealth Agents in the prosecution of [Book] in now[]

two (2) trials.” Id. at 65.

      In Adams, this Court recognized the important role that police have in

disclosing potentially exculpatory material.        Adams, 177 A.3d at 373.

However, our Court concluded that “there may be no double-jeopardy

dismissal if [police] misconduct is unintentional[,] or if it does not lead to

intentional misconduct of the prosecutor.” Id.

      Here, the trial court found no evidence that the Pennsylvania State

Police witnesses intentionally acted to provoke a mistrial. Trial Court Opinion,

7/20/17, at 17. Further, the trial court found no evidence that would support

a finding that Master Trooper Caimona purposefully injected error into the

proceedings, based upon an awareness that the Commonwealth’s case was

not proceeding “as planned.”     Id.    Finally, as observed by the trial court,

Master Trooper Caimona was called upon to testify by Book, and not the

prosecutor. Id.

      Because the trial court found that there was no intentional misconduct

or intent to deprive Book of a fair trial, and because those findings are

supported by the record, we affirm the trial court’s conclusion that Book is not

entitled to have the charges against him dismissed on double jeopardy




                                       - 10 -
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grounds. We therefore affirm the Order of the trial court, which denied Book’s

Motion to Dismiss With Prejudice.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/27/2018




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SHAWN MICHAEL BOOK

For the Commonwealth:          Patricia J. McLean, Esq., First Assistant District Attorney
For the Defendant:             Joel L. Hills, Esq.

Judge William R. Shaffer                                   July 19, 2017

                                  MEMORANDUM OPINION

       The Defendant seeks to bar a retrial after the Court declared a mistrial during the second

day of a jury trial in the above-captioned cases. The trial was the second jury trial in these cases

to conclude in a mistrial.   Per the argument of defense counsel, the Defendant seeks to impute

actions of the police to the Attorney for the Commonwealth. Such actions by the police, the

Defense asserts, were designed either to provoke the Defendant to move for a mistrial or

amounted to overreaching such that retrial should be prohibited. The first mistrial was granted at

the request of the Defendant after a police officer testified to facts from which it could have been

inferred that the Defendant had a criminal record. The second trial ended when the Court

declared a mistrial based on the cumulative effects of three discrete incidences that took place

during the trial. We will set forth here the testimony and argument surrounding each incident.

        The first incident related to testimony by Toni Arnold given during her redirect

examination by First Assistant District Attorney McLean:

                Q:      All right. You mentioned several times on cross-examination that you
                        have been cousins with the [D]efendant your whole life?

                A:      Yes.

                Q:      Did your families socialize, do things together at all?
                                                                                                                   1
              A:      Yes.

              Q:      How frequently?

              A:      Holidays. Any evening, he was at my dad's house all the time. When
                      Shawn was out of prison he would be there, sometimes, or be fishing with
                      my dad.

                      MR. HILLS:      Your Honor, I ask for a sidebar.

                      THE COURT: Sure.

                      (Sidebar conference)

                      MR. HILLS: Your Honor, and the nature of my objection is I'd be
                      requesting a mistrial. The witness based on [Ms.] McLean's questioning
                      just blurted out on the record that when Shawn was out of prison. So
                      people have been in prison, and that implicates his criminal record, and the
                       same reason you granted a mistrial the last time.

4/17/2017 N.T., 226-27. Following the time it was requested, the Court denied the Defendant's

request for a mistrial. Id. at 227-29. Counsel for the Defendant renewed his request for a mistrial

at the close of the Commonwealth's case-in-chief. 4/18/2017 N.T., 187-88.

       The second incident involved the testimony of Michelle Book relating to communications

between her and the Defendant, her husband. By Order of Court dated October 18, 2016, the

Court granted the Defendant's Motion in Limine to Exclude Testimony-Marital Privilege, and

found inadmissible confidential marital communications between the Defendant and Ms. Book.

The following exchange took place during the direct examination of Ms. Book by First Assistant

District Attorney McLean:

               Q:      Did you meet up with them at any point?

               A:      I did.

                Q:     About where?

                A:     Where they went where the road "Y'd" there was a stop sign further down
                                                                                                      2
     maybe close to a mile, I would estimate, and they made a left-hand tum.
     They pulled over further down the road. After they made the left-hand
     tum that's where I met up with them at.

Q:   Did you measure that mileage?

A:   I did not.

Q:   When you met up with them, what was Shawn's demeanor at that time?

A:   He was injured. He was, hard to breathe. He was anxious and angry.
     Upset. Scared.

Q:   And did you, well, and what happened then? You met up with them, he's
     injured, what happened?

A:   I asked what happened, and Shawn told me that when he went into the
     home he had opened a door and there was a gentleman in there and that
     once he saw the gentleman he had to try to hurry up and get out of the
     house and he fell off of a balcony or a deck.

     MR. HILLS:              Your Honor, may I have a sidebar, please.

      (Sidebar conference)

      MR. HILLS:             If you remember correctly, I made a motion to
                             suppress all of the confidential communications and
                             I believe that's what she's testifying now about, you
                             know, marital communication between her and
                             Shawn, and I believe that you granted my motion,
                             that that shouldn't be introduced.

      MS. MCCLEAN:           At the time he made that motion that all
                             communicating between husband and wife is
                             confidential this clearly is not confidential. Toni
                             Arnold was there. She's part of the co-conspiracy.
                             There's a third person there. There is nothing
                             confidential about this at all.

      MR. HILLS:             I don't believe that was made clear, Your Honor.

      THE COURT:             What wasn't made clear?

      MR. HILLS:             That these communications weren't made between
                             her and Shawn alone and Toni was there. She
                             simply said what was recounted to her by Shawn.
                                                                                   3
                                           There was no foundation laid as to who else may or
                                           may not have been there.

                     THE COURT:             I don't recall that that was established, [Ms.]
                                            McLean, that there was a third person present, so.

                     MS.MCLEAN:             All right.

                     THE COURT:             Maybe go back and revisit that issue.

                     (End of sidebar conference)

              Q:     [Ms.] Book, when you, and when you met up with Toni and Shawn, do
                     you guys stay together for a little while?

              A:     No.

              Q:      What happened?

              A:      Shawn got into the Kia that I was driving.

              Q:      And was it just the two of you in that vehicle then?

              A:      It was.

              Q:      Can you describe his demeanor without telling me what he said?

              A:      Anxious. Irritated. Scared. Angry. Hurt.

              Q:      And were those things that you observed?

              A:      Yes, Ma' am.

4118/2017 N .T ., 56-59. The testimony of Ms. Book concerning the communications made by the

Defendant to her while the two were alone should not have been admitted pursuant to the

October 18, 2016 Order of Court. Counsel for the Defendant properly objected to the testimony.

       The third incident concerned discovery materials requested by the Defendant and which,

it appeared at the time of trial, had not been provided. The materials concerned the

memorialization or recordings of one or more interviews conducted by Master Trooper Dominic


                                                                                                 4




                                                       ..>··�
                                                   •    •. )    I   _.\
Caimona and Corporal Randolph Guy. The following testimony was given by Michelle Book on

re-cross examination by Attorney Hills:

               Q:     Two more questions. I'm sorry to belabor the point. The fact of the
                      matter is there's absolutely no record of this interview between you and
                      the police on seven ten or Toni and the police on seven ten. Now, at least
                      that I know of, I have been provided by the Commonwealth so I'm going
                      to ask you were you notified that you were going to be videotaped or
                      audio recorded when you spoke to Troopers Guy and Caimona on the
                      tenth so you say after the kids were detained by CYS?

               A:     Yes, I believe I was audio recorded.

               Q:     Were you advised of your rights?

               A:     Yes.

               Q:     As a criminal defendant on the tenth?

               A:     Yes.

                       MR. HILLS: Your Honor, I'd like a sidebar, please, ifl could?

                       THE COURT: Sure.

                       (Sidebar conference)

                       MR. HILLS:             The reason I asked for sidebar is we just had a
                                              witness testify that she was audio recorded and read
                                              her right on seven ten, incident to the CYS
                                              investigation, Your Honor.



                       MR. HILLS:             The fact of the matter is, Your Honor, I asked and
                                              made plenary request for all such interviews and
                                              recordings of the same from the Commonwealth,
                                              and I received no copies of any interviews on seven
                                              ten from either Toni Arnold or Michelle Book.

                       MS. MCLEAN:            He didn't because I don't have them. Trooper
                                              Caimona did not do a very good investigation in
                                              New Castle. I don't have them. I don't know that
                                              they exist. When I asked, when I talked with
                                              Michelle herself, I was under the impression only
                                                                                                     5
              the July eleven when they took them around that's
              the only recorded interview I have. I don't have it.
              I was never given one.

MR. Hills:    Honestly, Your Honor, I don't mean [Ms.] McLean
              is not telling the truth, but the fact of the matter is,
              Your Honor, I mean, I'm not trying to be a wiseacre
              here, I think we need a stipulation Officer Caimona
              didn't do a very good investigation.

MS.MCLEAN:    That's not proper at all, Your Honor.

MR. HILLS:    We are going to have to have a stipulation he didn't
              tender certain evidence he had in his possession.

THE COURT:    Maybe we need to develop the record as to when
              the state police interviewed this witness. I don't
              know. All I have heard is July eleventh so far.

MR. HILLS:    She said the tenth, Your Honor.

THE COURT:    I understand that's what she said, and your video or
              audio CD you pulled out yesterday is from seven
              eleven fifteen.

MR. HILL:      Seven thirteen that was Toni Arnold. The only
               audio recording of [Ms.] Book I have is seven
               eleven.

THE COURT:     Well, I think it's maybe a little premature to say
               there's a Brady violation here since it's unclear -

MR. HILLS:     It's on the record, I'm not accusing [Ms.] McLean
               of not handing anything over, I just noticed holes
               like this throughout. Toni alluded to the same that
               she was interviewed again.

 THE COURT:    If you want to subpoena Trooper Caimona, I think
               that's certainly within your right.

 MR. HILLS:    I think Officer Guy-okay. Can I have [ additional]
               time, I didn't realize that that was going to be
               needed, Your Honor, to subpoena him, because she
               had them on her list of witnesses. I know Officer
               Guy is going to be here. I don't know if Officer
               Guy was in the alleged interview of seven ten.
                                                                         6
                    THE COURT:             Maybe you can ask her that, this witness.

                    (End of sidebar conference)

             BY MR. HILLS:

             Q:      When you were interviewed on the tenth, the day the kids were taken by
                     CYS, okay?

              A:     Yes.

              Q:     And you were interviewed by I assume Officer Caimona and Guy, is that
                     correct?

              A:     No, sir. It was Trooper Caimona.

              Q:     Just Caimona?

              A:     Correct.

4/18/2017 N.T., 107-11.

       The following exchange took place at sidebar after the Commonwealth rested:

              THE COURT:             Any other testimony you're going to get into today from
                                     any other witnesses?

              MR. HILLS:             I don't believe today, Your Honor, we discussed my having
                                     the right to subpoena Trooper Caimona with regard to the
                                     alleged testimony that occurred on seven ten.

              MS. MCLEAN:            I suggest perhaps - if Randy Guy is here, if he can at least
                                     make a phone call to see if, in fact, if it was recorded. That
                                     might-

              MR. HILLS:             I'd like to have Trooper Caimona testify as to what's going
                                     on.


              MR. HILLS:             Obviously, we have a discovery issue, and I think it's not
                                     attributable to [Ms.] McLean. I would be remiss and a
                                     disservice to my client by not asking all questions -

              THE COURT:             I agree with you that needs to be explored.

                                                                                                      7



                                                    .. ,,•   .....
                                                              · ·j
              MS. MCLEAN:            Can I see if I can make contact?

              THE COURT:              I'd like to figure out how long it's going to take to finish up
                                      the trial. Are you going to call anybody else?

               MR. HILLS:             I have no objection to Officer Caimona appearing by
                                      phone.

               THE COURT:             Well, I would.

               MS.MCLEAN:             I have no problem if we take a few minute break and I
                                      think Trooper Guy is still here, see ifhe can contact him,
                                      see if he can get him here.

4/18/2017 N.T., 189-91.

       Once Trooper Caimona was contacted, and after he traveled to the New Castle State

Police Barracks to retrieve his case materials, he appeared before the Court and testified in part

as follows on direct examination by Attorney Hills:

               Q:      Basically, the reason that you have been called as a witness here today the
                       last minute is during [Ms.] Book's testimony she made reference to the
                       fact or her contention that you interviewed both her and [Ms.] Arnold on
                       the tenth of July, the day before the ride around, ride along interview that
                       you conducted with [Ms.] Book. Is that the case?

               A:      Yes. I [interviewed] both of them on that day.

                Q:     Okay. Was also her contention that those interviews, that prior to those
                       interviews you informed her at least that she was audio recorded?

                A:     [Ms.] Book?

                Q:     Yes?

                A:     Okay.

                Q:      On the tenth? And that you read her her Miranda rights?

                A:      Correct.

                Q:      You did?


                                                                                                        8
A:    I read her her rights and advised her that I was going to record our
      interview.

Q:    On the tenth?

A:    Yes.

Q:    Okay. Before the ride along?

A:    Yes, the day before. That would have been a Friday.

Q:    Okay.

A:    I don't know the exact date, but it was Friday. Saturday was the ride
      along.

Q:    Do you remember correctly that would have been the day that, and I don't
      know if you would remember the circumstances surrounding it, but that
      would be the day [Ms.] Book's children were detained by CYS, do you
      remember that?

A:    Yes, I think that was a Friday. I can give you an exact date if you give me
      a minute.

Q:    Yes, sir.

A:     Okay, the eleventh was the day I did the ride along with Michelle along
       with Trooper Guy. So it would have been the tenth.

 Q:    So, there was an interview on the tenth, and there was an audio recording
       made of that?

 A:    The audio recording on that date I was going to, I was going to audio
       record it, but once I started speaking to her I shut the recording off, to gain
       her confidence and just to speak to her one on one.

 Q:    But am I to take it that she was Mirandized?

 A:    Yes.

 Q:    And that a portion of it at least was audio recorded?

 A:    No. After I, after I read her her rights we started speaking, told her that I
       was going to record our interview, and then decided not to do the audio
       recording, and we just spoke.

                                                                                       9
Q:    Okay. Correct me if I'm wrong, but I heard your testimony prior to your
      last statement was that somewhere along the line you decided to stop
      audio recording?

A:    Yes. I never recorded a statement from Michelle Book.

Q:    Well, you stated you recorded her Mirandization, is that correct?

A:    No, I just read her her rights.

Q:    Did you take any notes as a result of this interview?

A:    I believe I did. I'd have to check my report here. I have several reports so
      be patient with me. I'm sorry, be patient with me. I have a lot ofreports
      to go through. Just have to find the report that I use as the master number,
      because if I have, if I'm not mistaken six different burglaries, and I just
      did one number as a master number and record it under.

Q:    Got you. Take as much time as you need.

A:    I don't have the actual rights warning waiver attached to my report so it's
      either attached to the recording that's in evidence.

Q:    Excuse me, I'm sorry, I thought you said there was no recording?

A:    There was a recording from the ride along. Can I open this?

       MS. MCLEAN:             You're his witness.

       MR. HILLS:              I don't know what it is.

       MS. MCLEAN:             I don't, either.

       MR. HILLS:              What is it?

 A:    This is a recording for Toni Arnold's interview.

 Q:    On the tenth?

 A:    This would be on, no, this was on the twentieth.

 Q:    There was an Arnold interview on the twentieth?

 A:    Yes. On the tenth both Arnold and Michelle Book were brought in.
       interviewed both of them. The eleventh is when we did the ride along.
       Huh. The eleventh is when I did the ride along with Trooper Guy. After
                                                                                    10
     we ascertained more information and for evidence and recovered
     properties from burglaries from by investigations. We brought [Ms.]
     Arnold back in and interviewed her again.

Q:   On the thirteenth?

A:   On the twentieth.

     MR. HILLS:             Could I have a sidebar, Your Honor?

     (Sidebar conference)

     MR. HILLS:             Your Honor, you can anticipate what I'm going to
                            say. The only two recordings that I was given was
                            ride along interview with Michelle Book on seven
                            eleven and the recorded interview of Toni Arnold
                            on seven thirteen. Now we have references to a
                            Mirandized interview that was initially recorded but
                            then decided not to be recorded on the tenth with
                            both of them, and now there's reference to another
                            recorded interview of Toni Arnold on the twentieth.

     THE COURT:             I assume we are talking about the twentieth of -

     MR. HILLS:             July.

     THE COURT:             That wasn't clearly established.

      MR. HILLS:            Sorry. But the only interviews that I was given as
                            parts of my discovery package are of seven three
                            interview of Toni Arnold and seven thirteen
                            interview of Toni Arnold and seven eleven ride
                            along interview with Michelle [Book].

      THE COURT:            So.

      MR. HILLS:            And if these things contributed to the investigation
                            for these two burglaries my request was a plenary
                            one for all statements, any recordings, any
                            recounting, any notes having to do with statements
                            for witnesses.

      THE COURT:            Okay.



                                                                                   11
MR. HILLS:    And again I'd like to make it clear I'm not in any
              way trying to even intimate [Ms. McLean] had,
              anything, I don't think anybody knew.

THE COURT:    And you're asking for what?

MR. HILLS:    Well, I mean, you made reference to a Kennedy
              violation, Your Honor, I believe right? Am I
              quoting the wrong case?

THE COURT:    Aren't you entitled to exculpatory evidence? In the
              possession of the Commonwealth?

MR. HILLS:    I asked for all statements of witnesses and any
              recordings.

THE COURT:    Any guidance for the Court you would want to give
              me?

MS.MCLEAN:    First of all, I don't know that he has testified
              mistakenly, that he doesn't mean the thirteenth as
              opposed to the twentieth. I don't know of any
              interview on the twentieth even with my
              conversations with [Ms.] Arnold so I don't know
              that that's an accurate statement for one. Number
              two, I think perhaps at the very least perhaps
              counsel should have spoken to the witness and
              gotten this information before we are in the middle
              of a jury and I understand it's last minute, but even
              when he got here, I mean, we don't know what that
               recording is, we don't know there's anything
               exculpatory, I don't know anything about it. I still
               don't know it's from the twentieth and not the
               thirteenth. I don't know. The first I have heard
               about it.

 MR. HILLS:    The very fact [Ms.] McLean doesn't know speaks
               for itself and I don't believe it my responsibility to
               contact state's witnesses to see if there's any
               interviews that the state police officer hasn't
               disclosed to the Commonwealth as he is asked to
               do. There's no way for me to question a witness
               about something I have absolutely no idea let alone
               something the Commonwealth has absolutely no
               idea about.

                                                                    12
MS. MCLEAN:   Well, part of it cannot be forgotten that these two
              cases in Butler are part of a much larger
              investigation, that involved many other cases in
              Lawrence County, and that's where a large part of
              the investigation took place. So, if there are things
              that the police have in their possession for the
              Lawrence County investigations that in no way
              apply to the Butler County case, so there are going
              to be things that the police have that they would not
               give me because they don't relate to this case. I
              just, I don't really intelligently respond to his
               comment about seven twenty because I don't know
               that that is true.

THE COURT:    Here's what we do know is that there was
              interviews on seven ten.

MS. MCLEAN:   Correct, but we don't know what those interviews
              were about, either.

MR.HILLS:     We note both of them were Mirandized, Your
              Honor.

MS. MCLEAN:   Um hum. This investigation started, Your Honor,
              with totally unrelated incidents. It wasn't even
              related to burglaries. That's how the whole
              investigation started. So I don't know if those
              interviews on the tenth were about that first
              incident. That has nothing to do with Butler County.
              I don't know.

MR. HILLS:     I believe [Ms.] Book's testimony was quite clear as .
               to what was discussed on seven ten, Your Honor.

THE COURT:     Well, here's what we do know is that Mr. Book was
               arrested on the thirteenth. So I'm concerned about
               investigations which occurred prior to the date of
               this arrest, and we still haven't established whether
               there are reports of the interviews of seven ten. So,
               ifthere are reports, and you were given those
               reports and allowed to look at them to see whether
               there is anything in there that is exculpatory or that
               would lead you to want to have some type of
               suppression hearing, those are all things it's very
                difficult to do in mid trial.

                                                                   13
MR. HILLS:     I agree.

THE COURT:     So, I'm going to pull the plug on the trial.

MR. HILLS:     Thank you, Your Honor.

THE COURT:     Anything else you wanted to put on the record
               before I do so, [Ms.] McLean? I think let me state
               my reasons just in case, number one, we have the
               inadvertent but certainly prejudicial blurt out by
               [Ms.] Arnold concerning the fact that the
               [D]efendant was in prison. Then we have Michelle
               Book's testimony in violation of the spousal
               privilege and then we have this issue which I think
               is cumulatively going to make me declare a mistrial
               at this point.

MS. MCLEAN:    May I respond to just one issue, that would be the
               marital privilege. I never got to ask about those
               conversations.

THE COURT:     Well, she testified about them.

MS.MCLEAN:      She testified as to her observations.

THE COURT:      She talked about how he told her that there was a
                guy in the room when he went in is what I recall her
                saymg.

MS.MCLEAN:      There was no objection to that testimony, Your
                Honor. The testimony there was no objection to
                that.

THE COURT:      Well, if there's no objection it's waived. There's no
                objection. He made it as fast as he could, seems to
                me.

 MS. MCLEAN:    I asked my question was about when I was holding
                up the Studebaker house, I wasn't even talking
                about the Roher house when that happened. There
                was no objection at that time.

 MR. HILLS:     I objected about the conversation that occurred.

 THE COURT:     In the car.

                                                                    14
                     MR. HILLS:            The conversation on the way back from there and
                                           that's what I objected to.

                     MS.MCLEAN:            Which is way passed (sic) that.

                     MR. HILLS:            She said the guy found them in the house in Roher,
                                           that's the room.

                     MS.MCLEAN:            Right.

                     MR. HILLS:            That's when I objected.

                     MS.MCLEAN:            All right. I'm sorry. I'm sorry.

                     THE COURT:            Whatever it is the record will show whether our
                                           memories are faulty at this point or not.

4/18/2017 N.T., 217-28.

       The following constitutes the relevant standards by which the Defendant's Motion to

Dismiss with Prejudice should be judged:

              The Double Jeopardy Clauses of the Fifth Amendment to the United States
              Constitution and Article 1, § 10 of the Pennsylvania Constitution protect a
              defendant from repeated criminal prosecutions for the same offense.
              [Commonwealth v. Kearns, 70 A.3d 881, 884 (Pa. Super. Ct. 2013), appeal
              denied, 84 A.3d 1063 (Pa. 2014).] Ordinarily, the law permits retrial when the
              defendant successfully moves for mistrial. If, however, the prosecution engages in
              certain forms of intentional misconduct, the Double Jeopardy Clause bars retrial.
              Id. at 884. Article I, § 10, which our Supreme Court has construed more broadly
              than its federal counterpart, bars retrial "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, 615
              A.2d 321, 325 (1992). An error by a prosecutor does not deprive the defendant of
              a fair trial. Kearns, 70 A.3d at 884. "However, where the prosecutor's conduct
              changes from mere error to intentionally subverting the court process, then a fair
              trial is denied." Id. (quoting Commonwealth v. Chmiel, 777 A.2d 459, 464
              (Pa.Super.2001), appeal denied, 567 Pa. 736, 788 A.2d 372 (2001), cert. denied,
               535 U.S. 1059, 122 S.Ct. 1921, 152 L.Ed.2d 829 (2002)).

                      Thus under Pennsylvania jurisprudence, it is the intentionality behind the
                      Commonwealth's subversion of the court process, not the prejudice caused
                      to the defendant, that is inadequately remedied by appellate review or
                      retrial. By and large, most forms of undue prejudice caused by inadvertent
                                                                                                15
                      prosecutorial error or misconduct can be remedied in individual cases by
                      retrial. Intentional prosecutorial misconduct, on the other hand, raises
                      systematic concerns beyond a specific individual's right to a fair trial that
                      are left unaddressed by retrial. As this Court has often repeated, ' [a] fair
                      trial is not simply a lofty goal, it is a constitutional mandate, ... [and]
                      [ w ]here that constitutional mandate is ignored by the Commonwealth, we
                      cannot simply tum a blind eye and give the Commonwealth another
                      opportunity.'

               Id. at 884-85 (quoting Chmiel, 777 A.2d at 464).

Commonwealth v. Graham, 109 A.3d 733, 736 (Pa. Super. Ct. 2015), appeal denied, 126 A.3d

1282 (Pa. 2016).

       Underpinning the Defendant's arguments, which were set forth both in his Brief in

Support of Defendant's "Motion to Dismiss with Prejudice" and before the Court at the time

scheduled for argument, is the notion that the "weakness of the Commonwealth's case was so

evident that the pursuant manifest en-ors therein were likely the result of conscious and concerted

effort by Commonwealth Agents, and/or the Prosecutor, aimed at securing a retrial of the

Defendant in hopes of retrial being more conducive to an ultimate conviction of him."

Additionally, the Defendant asserts that the Commonwealth engaged in conduct that amounted to

coaching of at least one of its witnesses, Mustafa Tay-fur. No credible evidence was presented to

substantiate the Defendant's coaching claim, aside from the testimony set forth in the

Defendant's brief. Thus, in the absence of such evidence, we reject the notion as a basis upon

which to find prosecutorial misconduct or overreaching that would bar a retrial.

       The above exchanges, concerning Toni Arnold and Michelle Book, do not evince

prosecutorial misconduct, much less an intention to provoke a mistrial or deprive the Defendant

of a fair trial. See, Graham l 09 A.3d at 737-38. With respect to Toni Arnold, Attorney Mel.can

inquired whether and how frequently her family socialized with the Defendant's family. She did

not directly or indirectly inquire whether the Defendant had been in prison. See Id. at 737. With
                                                                                                      16




                                                     ''. j
respect to the testimony of Michelle Book, Attorney McLean did not ask her to divulge

confidential communications. She asked about the Defendant's demeanor and "what happened"?

While it is conceivable the inquiries could have been crafted more carefully to avoid Ms. Book

revealing the communications of the Defendant, the questioning by no means amounted to

prosecutorial misconduct.

        We are aware of no authority supporting the notion that the actions of the police, under

circumstances as benign as those here, warrant barring a retrial. With respect to those actions,

relating to the various July 2016 interviews, we are not persuaded by the Defendant's argument,

presented in his brief and at oral argument, that such action should be viewed as having been

undertaken in order to provoke a mistrial or to deprive the Defendant of a fair trial, We find

there is no evidence to support the notion that Master Trooper Caimona purposefully injected

error into the proceedings because he was aware that the Commonwealth's case was not

proceeding as planned. It is worth noting that Trooper Caimona was called upon to testify by the

Defendant.

        Even if the above incidences, relating to the testimony of Ms. Book and Ms. Arnold, as

well as the testimony of Trooper Caimona, are viewed in toto, and are considered prosecutorial

misconduct, we find that there is insufficient evidence to demonstrate that such actions were

 undertaken with the intention of provoking a mistrial. Likewise, the conduct falls far short of the

 overreaching that would bar a retrial. In Smith, for example, retrial was barred based on the

 deliberate and prolonged failure to disclose material exculpatory physical evidence during a

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

 Martorano, retrial was barred where the "prosecutor acted in bad faith throughout the trial,

 consistently making reference to evidence that the trial court had ruled inadmissible, continually

                                                                                                   17
defying the trial court's rulings on objections," and repeatedly insisting that there was physical

evidence that the prosecutor knew did not exist. Commonwealth. v. Martorano, 741 A.2d 1221,

1223 (Pa. 1999). In Commonwealth v. Anderson, retrial was barred where a prosecutor engaged

in a pattern of pervasive misconduct that culminated in a meeting during which the prosecutor

coached the victim-witness, a pattern that demonstrated the prosecutor intentionally acted to

prejudice the defendant. Commonwealth v. Anderson, 38 A.3d 828 (Pa. Super. Ct. 2011). The

conduct of the Commonwealth during the Defendant's second trial does not approach the level

required properly to bar a retrial.

        Accordingly, the Court enters the following:




                                                                                                     18
                           IN THE COURT OF COMMON PLEAS
                            BUTLER COUNTY, PENNSYLVANIA

COMMONWEALTH OF PENNSYLVANIA                              CRIMINAL DIVISION

       vs.                                                C.A. No. 1483 of 2015
                                                          C.A. No. 0630 of 2016
SHAWN MICHAEL BOOK

For the Commonwealth:         Patricia J. McLean, Esq., First Assistant District Attorney
For the Defendant:            Joel L. Hills, Esq.

                                      ORDER OF COURT


       AND NOW, this 19th day of July, 2017, following argument on the Defendant's Motion

to Dismiss with Prejudice, it is ordered that the motion is denied.




                                                              By the Court,




                                                              William R. Shaffer, Judge

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