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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                 IN THE SUPERIOR COURT OF
                                                   PENNSYLVANIA
                         Appellee

                    v.

SARAH J. DIXON

                         Appellant                No. 2020 WDA 2015


            Appeal from the Order Entered December 15, 2015
             In the Court of Common Pleas of Crawford County
            Criminal Division at No(s): CP-20-CR-0000778-2015


BEFORE: PANELLA, J., LAZARUS, J., and MUSMANNO, J.

MEMORANDUM BY LAZARUS, J.:                   FILED DECEMBER 13, 2016

      Sarah J. Dixon appeals from the order entered in the Court of Common

Pleas of Crawford County, which denied her motion to dismiss burglary and

related charges filed against her based upon double jeopardy grounds. After

careful review, we affirm.

      The trial court summarized the relevant facts and procedure as

follows:

      [Dixon] was charged in four counts with burglary, theft by
      unlawful taking, and criminal mischief, stemming from the May
      2015 removal of firearms from the Hollabaugh residence in
      Steuben Township. Her trial commenced on November 9, 2015,
      and on direct examination, witness Brian Lee Hollabaugh was
      asked by the Commonwealth inter alia whether, on or about May
      16, [Dixon] told him that he owed her money, and what she
      would do if he didn’t pay. He answered in the affirmative, and
      the trial was halted and a mistrial declared due to the
      prosecution’s failure to disclose, prior to trial, at least the
      substance of [Dixon’s] apparently incriminating statements to
      Mr. Hollabaugh.
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       [Dixon] filed her motion [to dismiss the criminal information
       based on double jeopardy] on November 10, 2015[,] the
       Commonwealth answered on November 18, 2015[,] and
       argument was heard on December 2, 2015.

Trial Court Opinion, December 15, 2015, at 1-2. Thereafter, on December

15, 2015, the trial court denied the motion and found it to be nonfrivolous. 1

This timely appeal followed.

       On appeal, Dixon raises the following issue for our review:

       Should the information against [Dixon] be dismissed based on
       double jeopardy when the first trial was declared a mistrial
       because of the intentional actions of the prosecutor [in] denying
       her access to mand[a]tory discovery until after the [trial]
       started[,] prejudic[ing] [Dixon] to the point of denying her a fair
       trial and forcing her to request a mistrial?

Brief for Appellant, at 7.

       The scope of our review in an appeal grounded in double jeopardy is

plenary, as it raises a question of constitutional law.    Commonwealth v.

Wood, 803 A.2d 217, 220 (Pa. Super. 2002). Following a mistrial due to



____________________________________________


1
   Pursuant to Pa.R.Crim.P. 587, if the trial court judge denies a motion to
dismiss on double jeopardy grounds “but does not find it frivolous, the judge
shall advise the defendant on the record that the denial is immediately
appealable as a collateral order.” Pa.R.Crim.P. 587(B)(6). Here, the trial
court did not expressly include its finding of nonfrivolousness when it ruled
on the motion. However, the court issued an order addressing this issue on
January 27, 2016, in which it stated that the “[c]ourt intended implicitly to
find that [the motion] was not frivolous[,]” and advised Dixon of her right to
immediately appeal the denial as a collateral order. See Order, 1/27/16, at
n. 1-2.




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prosecutorial misconduct, we determine whether retrial is barred due to

double jeopardy based upon the following standard:

      Under both the federal and state constitutions, double jeopardy
      bars retrial where the prosecutor’s misconduct was intended to
      provoke the defendant into moving for a mistrial. . . . [Our
      Supreme Court has held] that 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.
      [Commonwealth v. Smith, 615 A.2d 321, 325 (Pa. 1992),]
      . . . However, Smith did not create a per se bar to retrial in all
      cases of intentional prosecutorial overreaching.

Commonwealth v. Culver, 51 A.3d 866, 882-83 (Pa. Super. 2012) (some

citations omitted).   As to our review of the trial court’s findings of fact,

      [w]here issues of credibility and weight of the evidence are
      concerned, it is not the function of the appellate court to
      substitute its judgment based on a cold record for that of the
      trial court. The weight to be accorded conflicting evidence is
      exclusively for the fact finder, whose findings will not be
      disturbed on appeal if they are supported by the record.

Wood, supra at 220.

      In Commonwealth v. Burke, 781 A.2d 1136 (Pa. 2001), our

Supreme Court clarified that prosecutorial misconduct does not warrant

dismissal of charges unless it is deliberate and egregious, such as the

conduct that occurred in Smith. In Smith, the Commonwealth intentionally

withheld information from a capital defendant, including:

      (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


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      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.

Burke, supra at 1144.

      In Burke, the Court reaffirmed its holding in Commonwealth v.

Moose, 602 A.2d 1265 (Pa. 1992). In Moose, the prosecutor’s failure to

inform   defense    counsel   of   a    witness’   police   statement   containing

incriminating admissions allegedly made by the defendant amounted to a

willful violation of discovery rules.     Nevertheless, despite the intentional

nature of the failure to disclose the evidence, the Court remanded the

matter for a new trial. Burke, supra at 1145. See also Commonwealth

v. Strong, 825 A.2d 658, 668-70 (Pa. Super. 2003) (Commonwealth’s

failure to reveal information pursuant to Brady v. Maryland, 373 U.S. 83

(1963), did not warrant dismissal of charges where there was lack of

evidence demonstrating specific intent to deny defendant a fair trial).

      Dixon asserts that the Commonwealth “denied [her] a fair trial by

proceeding to trial knowing that there was new discovery to provide [to her,]

but then [the Commonwealth] intentionally tried to continue the non-

disclosure.”   Brief for Appellant, at 9.     The new discovery to which Dixon

refers was information provided to the Commonwealth approximately fifteen

minutes prior to trial starting, involving potentially inculpatory statements.

See Pa.R.Crim.P. 573(B)(1)(b) (Commonwealth is required to disclose to

defendant’s attorney “the substance of any oral confession or inculpatory

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statement, and the identity of the person to whom the confession or

inculpatory statement was made that is in the possession or control of the

attorney for the Commonwealth”).

       The relevant statements came to light during the following exchange

at trial:

       [Direct Examination of Brian Lee Hollabaugh by Assistant District
       Attorney (ADA) Douglas Ferguson:]

       Q.    Okay. And did you tell us how soon after you talked to
       your father about the guns that you called Dixon?

       A.   Shortly after – within half hour probably.

       Q.   And what did you – what did you say to her?

       A.   I said, [d]id you go to my parent’s house and steal mine
       and my dad’s hunting rifles[?]

       Q.   Okay. Was it a long conversation?

       A.   No.

                                     ...

       Q.     On May 16th or any time before that, did Mrs. Dixon ever
       tell you, you owed her money?

       A.   Yes.

       Q.   Did you ever pay her any money?

       A.   I’ve paid her.

       Q.   Did you pay her money as a result of her saying you owed
       her money?

       A.   No.

       Q.     Did she ever indicate to you what would happen if you
       didn’t tell her – didn’t pay her?

       A.   Yes.



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N.T. Trial, 11/19/15, at 55-56.     Defense counsel objected to this line of

questioning, and the court thereafter granted a mistrial because the

statements regarding Hollabaugh owing Dixon money had not been disclosed

to defense counsel.

      Dixon contends that the failure to disclose the allegedly inculpatory

statements that the Commonwealth learned of immediately prior to trial was

a deliberate and intentional tactic to deny her a fair trial.      There is no

dispute that the Commonwealth was required to disclose the statements

prior to trial, and we do not condone the Commonwealth’s serious failure to

uphold its obligation to provide the required discovery to defense counsel.

However, based upon the timing in which the statements were made to the

Commonwealth and the representations made by ADA Ferguson during the

sidebar discussion when defense counsel moved for a mistrial, the trial court

determined that the Commonwealth did not intend to prejudice Dixon or

force her to move for a mistrial.    ADA Ferguson stated that his intent in

placing Hollabaugh on the stand was to obtain “the time frames of when he

got the call – when he made the call because it fits in . . . within minutes [of

Dixon] going over to – to Michelle Cannon’s with the guns.”         Id. at 73.

Thus, the trial court’s credibility determination is supported in the record.

Wood, supra.

      Further, as the trial court noted, it was not “convinced that [the]

omission amounted to deliberate misconduct.        Even if willful, rather than

inadvertent, it was not part of a ‘pattern of pervasive misconduct’ [quoting

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Commonwealth v. Anderson, 38 A.3d 828, 840 (Pa. Super. 2011)] . . .

nor exacerbated by attempts to hide the transgression.” Trial Court Opinion,

12/15/15, at 4.    Accordingly, the trial court properly ordered a new trial

rather   than   dismissing   the   charges   against   Dixon.   Even   if   the

Commonwealth willfully withheld information of the statements, a new trial

is nevertheless an appropriate remedy based upon the record in this matter.

Burke, supra. Thus, we discern no error on the part of the trial court.

     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/13/2016




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