J-A20018-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                 IN THE SUPERIOR COURT OF
                                                   PENNSYLVANIA
                        Appellee

                   v.

SHAWN EDWARD LEE

                        Appellant                 No. 464 WDA 2015


                   Appeal from the Order February 13, 2015
               In the Court of Common Pleas of Mercer County
              Criminal Division at No: CP-43-CR-0000967-2014




COMMONWEALTH OF PENNSYLVANIA                 IN THE SUPERIOR COURT OF
                                                   PENNSYLVANIA
                        Appellee

                   v.

SHAWN EDWARD LEE

                        Appellant                 No. 169 WDA 2016


                    Appeal from the Order January 8, 2016
               In the Court of Common Pleas of Mercer County
              Criminal Division at No: CP-43-CR-0000967-2014


BEFORE: BOWES, STABILE, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.:                   FILED FEBRUARY 07, 2017

     Appellant, Shawn Edward Lee, appeals from the order entered in the

Mercer County Court of Common Pleas that denied his motion to dismiss

based on double jeopardy.    This case returns to us after we remanded to
J-A20018-16


have the trial court comply with Pa.R.Crim.P. 587(B), to clarify whether this

Court had appellate jurisdiction. Appellant contends the trial court erred by

sua sponte granting a mistrial absent a finding of manifest necessity. We

conclude we have appellate jurisdiction and reverse.

      We need not discuss the facts underlying Appellant’s alleged offenses

of, inter alia, murder of the second degree and murder of the third degree.

On the third day of a jury trial, during the Commonwealth’s case-in-chief,

the following exchange transpired between Colleen Pritts, Appellant’s

girlfriend, and the Commonwealth:

         [District attorney:] What type of a relationship did you
         have with [Appellant]?

         A: He’s my boyfriend.

         Q: For how long was he your boyfriend on May 13, 2013?

         A: Four years at that point. We had been together since
         he got out of prison in –

         [Appellant’s counsel:] Your Honor --

         [Trial court:] Granted. Ladies and Gentlemen, I have had
         to grant a mistrial. It means we have to start and do this
         over again. You will be excused from further service.
         We’ll clear the courtroom and I will talk to you. Please
         step down.

N.T. Trial, 2/13/14, at 63-64. The transcript does not reflect any objection

or other communication by either Appellant’s counsel or the district attorney

prior to the jury’s dismissal.




                                    -2-
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     After the jury was dismissed and the trial court spoke with the jury,

the following discussion occurred:

        The court: Please be seated. [Appellant’s counsel], do you
        wish to put things on the record?

        [Appellant’s counsel]: Yes, Your Honor. For the record,
        before the Court came in we did have the court reporter
        read back the testimony from the time that Ms. Pritts was
        asked the last question and responded.       The record
        indicates that I said, “Your Honor”; the Court said,
        “granted”, and there was no other discussion and the
        Court cleared the room.

        The court: There was an order entered before I did that,
        clearly.

        [Appellant’s counsel] I’m sorry, Your Honor?

        The court: I entered an order before I cleared the
        courtroom. There has to be an order granting the mistrial.

        [Appellant’s counsel]: We didn’t get that far on the
        transcript, apparently, Your Honor.

        At any rate, the defense would cite -- bring the Court’s
        attention to Rule 605(b): When an event prejudicial to the
        defendant occurs during trial only the defendant may move
        for a mistrial. The motion shall be made when the event is
        disclosed; otherwise, the trial judge may declare a mistrial
        only for reasons of manifest necessity.

        We note for the record that when Ms. Pritts gave her
        answer to [the district attorney’s] question I stood up and
        said, “Your Honor”. It was my intention, as it normally is
        when these things arise, to request a sidebar or a recess
        to discuss or consider our options. I never got to do so
        because the Court stated “granted”, and in our opinion sua
        sponte declared a mistrial and cleared the courtroom.

        We would note that there was no discussion or
        consideration of any less drastic options. It is our position
        that [Appellant] is prejudiced.     In the opinion of the

                                     -3-
J-A20018-16


       defense team the case was going very well for the
       defense. We have now been deprived of our jury. The
       Commonwealth now knows essentially all of the defense
       strategy, and one key Commonwealth’s witness, as the
       Court is aware, is missing and currently has not been
       found.

       It is our position that Ms. Pritts’ statement could have been
       addressed with a precautionary instruction, as the Court
       had previously suggested, as to the testimony of Mr. Huey
       where he indicated he had been continuously incarcerated
       since his arrest but had spoken to [Appellant]. Therefore,
       we would like to place on the record our objection to the
       Court sua sponte the declaration of a mistrial [sic], and we
       would ask that the Court order that [Appellant] be barred
       from being retried for reasons of double jeopardy.

       We cite to the Court the Commonwealth versus Diehl, 615
       A.2d 690, a 1992 Pennsylvania Supreme Court case that
       held the trial court erred in awarding [sic] the appellant
       retried, where doing so impermissibly placed him again in
       jeopardy after the Court declared a mistrial sua sponte. It
       is well settled the declaration of a mistrial sua sponte by
       the trial court is proper only for reasons of manifest
       necessity. If there is any doubt as to the presence of
       manifest necessity to support the trial court’s declaration
       of a mistrial, such doubt is to be resolved in favor of the
       accused, and double jeopardy shall prohibit a retrial.

       We have a number of other cases, Judge, but we believe
       that that’s the one that’s on point. We would therefore ask
       the Court that [Appellant] not be retried.

       [The court]: The Court will note for the record several
       things:

       Number one, Ms. Pritts testified she saw him when he got
       out of prison. That was diametrically different than what
       Mr. Huey testified to. Mr. Huey’s implication was that he
       was in jail. Clearly this was not—at that point in time the
       Court is faced with manifest necessity because if you don’t
       declare a mistrial [Appellant] has an automatic right to a
       new trial for ineffective assistance of counsel. You would
       be per se ineffective. The courts clearly have shown that

                                   -4-
J-A20018-16


          this is not something to be cured by a cautionary
          instruction.

          Two, when I said “granted”, I didn’t say anything other
          than that. You did not seek to clarify. It was done by a
          waiver on your part, clearly.

          I’ll enter this order:

          AND NOW, 13th day of February, 2015, IT IS HEREBY
          ORDERED [Appellant’s] Motion to Dismiss pursuant to a
          double jeopardy violation is DENIED.

N.T. Post-Trial Hearing, 2/13/15, at 2-6. The district attorney said nothing.

        The trial court’s order was docketed on February 17, 2015, and

Appellant timely appealed on March 16, 2015. On March 17, 2015,1 the trial

court ordered Appellant to file a Pa.R.A.P. 1925(b) statement prior to March

31, 2015.2 Appellant filed his Rule 1925(b) statement on March 31, 2015,

and the court filed a responsive opinion on May 8, 2015. The trial court, in

justifying its decision, noted the following:

          The primary witnesses against [Appellant] were his co-
          defendant’s [sic] Miguel Huey and Zachariah Owens. Both
          defendants had pled guilty pursuant to extremely generous
          plea bargains. Both co-defendant [sic] testified that Huey
          entered [the robbery victim’s residence] to scout out the
          place and then left. Owens and [Appellant] then entered
          the residence to commit the robbery.        Owens further
____________________________________________


1
    The order was dated March 16, 2015.
2
  We note the trial court’s order contravenes Rule 1925(b)(2), which states
“The judge shall allow the appellant at least 21 days from the date of the
order’s entry on the docket for the filing and service of the” Rule 1925(b)
statement. Pa.R.A.P. 1925(b)(2).




                                           -5-
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            testified that he [i.e., Appellant,] fired the shot that killed
            [the decedent].

            [The robbery victim] and his brother Bradley both testified
            that Huey was an active participant in the robbery. Their
            testimony directly contradicted Huey’s and Owens’ version
            of the incident.
                                    *    *   *

            The sole witnesses to implicate [Appellant] in the murder
            were his co-defendants.     Both co-defendants received
            generous plea bargains to testify against [Appellant].
            Their versions of the incident substantially and
            dramatically [sic] from the testimony of the decedent’s
            sons, [i.e., the robbery victim and his brother,] who
            witnessed the incident.

Trial Court Opinion, 5/8/15, at 2, 5.

      On November 23, 2015, this Court remanded to have the trial court

comply with Pa.R.Crim.P. 587(B), and to file a supplemental Rule 1925(a)

decision.     Appellant formally filed a motion to bar retrial and dismiss the

case on January 6, 2016.

      On January 11, 2016, the trial court filed an order with findings of fact

and conclusions of law, in accordance with Rule 587(B).           In relevant part,

the trial court made the following findings of fact:

            4. [Appellant’s] [c]ounsel at that point stood up and said,
            “Your Honor.”

            5. The [trial] court in one continuous statement said,
            “Granted,” and advised the jury that the court was
            declaring a mistrial and ordered the courtroom cleared.

            6. The [trial] court stepped down from the bench so he
            could speak to the jury to explain what had occurred.




                                         -6-
J-A20018-16


           7. As the the [sic] [trial] court was walking toward the jury
           box, counsel for [Appellant] again stated, “Your Honor”.

           8. The [trial] court next reaffirmed its order that the
           courtroom be cleared.

           9. When the courtroom reopened, counsel[3] again
           approached the bench and asked the court to reconvene.

           10. The [trial] court indicated there would be no court
           reporter available as it was the lunch hour, and we would
           reconvene after the lunch hour.

           11. The [trial] court reconvened immediately after the
           lunch hour.

           12. [Appellant’s] [c]ounsel at that point in time put on the
           record an objection to the [trial] court sua sponte granting
           a mistrial and made a motion that [Appellant] be barred
           from retrial.

Order, 1/11/16, at 2.

        The trial court’s order opined manifest necessity existed for a mistrial:

           The [c]ourt finds there was manifest necessity because the
           testimony established that [Appellant] had been in prison
           prior to this incident and it would taint the [j]ury. The
           [c]ourt notes that the case at that point in time was
           favorable to [Appellant] and the Commonwealth was, in
           this [c]ourt’s opinion, losing; and as a result, this [c]ourt
           believes that any conviction would have been based upon
           that taint.

Id. at 3.    The trial court also held Appellant’s motion for mistrial was not

frivolous, id. at 3, notified Appellant that the order was immediately

appealable, see generally Pa.R.Crim.P. 587(B), and filed a supplemental
____________________________________________


3
    Apparently, the trial court was referencing Appellant’s counsel.




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Rule 1925(a) decision.      We are satisfied the trial court complied with our

prior mandate to comply with Rule 587(B), and that we have jurisdiction to

entertain Appellant’s appeal. Accordingly, we address the merits.

      Appellant raises the following issue:

          Whether the [t]rial [c]ourt erred when the [t]rial [c]ourt
          denied Appellant’s motion to dismiss and to bar retrial
          based upon a double jeopardy violation, in contravention
          of [s]tate and/or [f]ederal constitutional safeguards, when
          the [t]rial [c]ourt declared a mistrial sua sponte, which
          declaration was not supported by manifest necessity.

Appellant’s Brief at ii.

      Appellant contends the trial court failed to consider any alternatives to

a mistrial before declaring a mistrial. He points out that the Commonwealth

did not deliberately elicit Ms. Pritts’s statement. Appellant maintains that a

cautionary instruction would have cured any prejudice from her comment.

He opines the trial was going favorably for him prior to the trial court’s

order.    Appellant asserts the Commonwealth has knowledge of his entire

defense strategy and additional time to locate a witness who was missing at

the time of trial.

      In response, the Commonwealth observes, “[t]here are no bright-line

rules or mechanical formulas for determining whether manifest necessity

existed   for”   a   mistrial.   Commonwealth’s     Brief   at   11.    In   the

Commonwealth’s view, however, the trial court’s order granting a mistrial

was a foregone conclusion “wholly consistent with case law that has found

even a single reference to a defendant’s having been incarcerated on an

                                      -8-
J-A20018-16


unrelated charge fatal to the prosecution.” Id. at 12. We hold Appellant is

due relief.

       We review the trial court’s decision to declare a mistrial sua sponte for

abuse of discretion. The trial court’s decision to declare a mistrial rests on

the trial court’s “sound, and conscientious exercise of [] discretion,” but “the

power    ought    to   be    used    with      the   greatest   caution,   under   urgent

circumstances, and for very plain and obvious causes.”                United States v.

Perez, 22 U.S. 579, 580 (1824).4 While the trial court’s decision to declare

mistrial is accorded broad deference,

       [t]his is not to say that we grant absolute deference to trial
       judges in this context. Perez itself noted that the judge’s
       exercise of discretion must be “sound,” [id.], and we have made
       clear that “[i]f the record reveals that the trial judge has failed to
       exercise the ‘sound discretion’ entrusted to him, the reason for
       such deference by an appellate court disappears.” [Arizona v.
       Washington, 434 U.S. 497, 510 n.28 (1978)]. Thus “if the trial
       judge acts for reasons completely unrelated to the trial problem
       which purports to be the basis for the mistrial ruling, close
       appellate scrutiny is appropriate.” Ibid. Similarly, “if a trial
       judge acts irrationally or irresponsibly, . . . his action cannot be
       condoned.” Id., at 514 [] (citing United States v. Jorn, 400
       U.S. 470 [] (1971), and [Illinois v. Somerville, 410 U.S. 458,
       469 (1973)].

Renico v. Lett, 559 US 766, 775 (2010) (emphasis in original).

       As our Supreme Court noted:

____________________________________________


4
  In determining whether the declaration of mistrial is supported by
“manifest necessity,” we apply the standards set forth in both Pennsylvania
and federal case law. Commonwealth v. Diehl, 615 A.2d 690, 691 (Pa.
1992); Commonwealth v. Mitchell, 410 A.2d 1232, 1233 (Pa. 1980).



                                            -9-
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      in the final analysis, the judge must always temper the decision
      whether or not to abort the trial by considering the importance
      to the defendant of being able, once and for all, to conclude his
      confrontation with society through the verdict of a tribunal he
      might believe to be favorably disposed to his fate.

Commonwealth ex rel. Walton v. Aytch, 352 A.2d 4, 8 (Pa. 1976) (citing

Jorn, 400 U.S. at 486)).

      In determining whether the trial court abused its discretion by

declaring a mistrial sua sponte, we are guided by the following principles.

      Pennsylvania Rule of Criminal Procedure 605(B) provides that “when

an event prejudicial to the defendant occurs during trial only the defendant

may move for a mistrial; the motion shall be made when the event is

disclosed. Otherwise, the trial judge may declare a mistrial only for reasons

of manifest necessity.” Pa.R.Crim. 605(B).

      The words “manifest necessity” appropriately characterize the
      magnitude of the prosecutor’s burden. For that reason Mr.
      Justice Story’s classic formulation of the test has been quoted
      over and over again to provide guidance in the decision of a wide
      variety of cases. Nevertheless, those words do not describe a
      standard that can be applied mechanically or without attention
      to the particular problem confronting the trial judge. Indeed, it
      is manifest that the key word “necessity” cannot be interpreted
      literally; instead, contrary to the teaching of Webster, we
      assume that there are degrees of necessity and we require a
      “high degree” before concluding that a mistrial is appropriate.
      The question whether that “high degree” has been reached is
      answered more easily in some kinds of cases than in others. At
      one extreme are cases in which a prosecutor requests a mistrial
      in order to buttress weaknesses in his evidence. . . . At the other
      extreme is the mistrial premised upon the trial judge’s belief that




                                    - 10 -
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        the jury is unable to reach a verdict, long considered the classic
        basis for a proper mistrial.

Washington, 434 U.S. at 505-6 (footnotes omitted).5
    Similarly, while our courts have refrained from “establishing a catalog

of situations in which a mistrial is dictated by manifest necessity, and has

instead    stated   that   each    case    must    turn   on   the   particular   facts,”

Commonwealth v Balog, 576 A.2d 1092, 1095 (Pa. Super. 1990), we have

established certain significant factors to consider in determining whether the

trial court abused its discretion in declaring sua sponte a mistrial.                For

example, the Supreme Court held that the failure on the part of the trial

court to consider less drastic alternatives to a mistrial “creates doubt about

the propriety of the exercise of the trial judge’s discretion and is grounds for
____________________________________________


5
    Justice Story articulated the “manifest necessity” standard as follows:

        We think, that in all cases of this nature, the law has invested
        Courts of justice with the authority to discharge a jury from
        giving any verdict, whenever, in their opinion, taking all the
        circumstances into consideration, there is a manifest necessity
        for the act, or the ends of public justice would otherwise be
        defeated.    They are to exercise a sound discretion on the
        subject; and it is impossible to define all the circumstances,
        which would render it proper to interfere. To be sure, the power
        ought to be used with the greatest caution, under urgent
        circumstances, and for very plain and obvious causes[.] But,
        after all, they have the right to order the discharge; and the
        security which the public have for the faithful, sound, and
        conscientious exercise of this discretion, rests, in this, as in other
        cases, upon the responsibility of the Judges, under their oaths of
        office.

Perez, 22 U.S. at 580.




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J-A20018-16


barring retrial because it indicates that the court failed to properly consider

the defendant’s significant interest in whether or not to take the case from

the jury.”       Diehl, 615 A.2d at 691 (citation omitted); see also, e.g.,

Commonwealth           v.    Kelly,    797     A.2d    925   (Pa.   Super.   2002);6

Commonwealth           v.   McCord,      700    A.2d   938   (Pa.   Super.   1997);7

Commonwealth v. Hatten, 496 A.2d 837 (Pa. Super. 1985).8


____________________________________________


6
   The Kelly Court held double jeopardy applied to bar a subsequent
prosecution because the trial court failed to consider alternative options prior
to sua sponte ordering a mistrial:

        Upon review, we conclude that the trial court acted prematurely
        in ordering a mistrial. In other words, manifest necessity for a
        mistrial was not demonstrable at the time the court sua sponte
        ended the trial. We do not believe the trial court adequately
        considered other less severe options before compelling [the
        defendants] to forfeit their right to have the trial completed and
        to undergo another prosecution.

Kelly, 797 A.2d at 940 (emphasis added).
7
    In McCord, this Court noted:

        A failure of the lower court to consider less drastic alternatives
        before declaring a mistrial creates doubt about the exercise of
        the court’s discretion and may bar re-prosecution because of
        double jeopardy. The determination of whether to declare a
        mistrial after jeopardy has attached is one of utmost importance
        since the defendant has a substantial interest in having his fate
        determined by the jury first impaneled.

McCord, 700 A.2d at 943.
8
    In Hatten,

(Footnote Continued Next Page)


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J-A20018-16


      The failure to consult with parties regarding the propriety of declaring

a mistrial also has been viewed by our Supreme Court as a factor tending to

demonstrate an abuse of discretion. See Walton, supra. In Walton,

      during the course of the trial, the trial judge decided that the
      jury had to be sequestered because of the surrounding publicity.
      Two of the jurors asked to be excused because of the hardship
      this would cause, with the result that there were no alternate
      jurors available. Subsequently, the judge was informed that one
      of the twelve remaining jurors was very distressed because she
      had been unable to find a baby-sitter for her children. As a
      result, without consulting either counsel, the trial judge allowed
      the juror to go home without requesting her to return the next
      day, and the trial was aborted

Balog, 576 A.2d at 1096 (discussing Walton, 352 A.2d at 9).

      Our Supreme Court noted:

      The trial court could have at least attempted to contact both
      attorneys involved in the case to ascertain if they had any
      suggestions. In order to properly exercise his discretion, the
      trial judge should have sought out such suggestions, particularly
      those of defense counsel, in order to indicate that the

                       _______________________
(Footnote Continued)

      we held that a prosecutor’s disclosure in a joint trial of defendant
      and her co-defendant, that co-defendant had threatened the
      complaining witness, did not justify a declaration of a mistrial,
      when the mistrial was requested only by the co-defendant and
      the defendant requested a severance of the two cases in order to
      proceed with the trial.     Apart from failing to consider the
      alternatives to declaring a mistrial, this [C]ourt noted that
      disclosure of the defendant’s threat would not have necessarily
      required reversal on appeal had appellant been convicted.
      Therefore, it was held that a mistrial was not manifestly
      necessary, and the trial court should have severed the two
      cases.

Balog, 576 A.2d at 1096-97.



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      determination was tempered by a consideration of Walton’s
      interest.

Walton, 352 A.2d at 8.

      Similarly, in Commonwealth v. Bartolomucci, 362 A.2d 234 (Pa.

1976), our Supreme Court found that the trial court failed to inquire directly

of the jury about the “hopeless deadlock” and that such failure “made the

necessity of the mistrial not manifest and thus open to doubt.” Id. at 239.

To this end, the Court noted:

      The doubt stems from the trial court’s failure to inquire directly
      of the jury, either individually or through the foreman, about the
      possibility of the deadlock being overcome by further
      deliberations. Such an inquiry would have served to remove any
      doubt, and thus, would have provided greater certainty as to the
      existence of a deadlock and the hopelessness of breaking it. If
      an individual inquiry were made, the trial court would have then
      had the opinion of each juror as to the existence and
      hopelessness of the deadlock.

Id.

      In light of the foregoing, the Supreme Court ultimately concluded that

the trial court’s declaration of a mistrial was not manifestly necessary, thus

subject to doubt regarding its propriety. Id. at 239-40.

      Finally, we note that if the trial court’s decision to sua sponte declare a

mistrial is not supported by manifest necessity double jeopardy principles

preclude a new prosecution.      See, e.g., Washington, 434 U.S. at 505;

Jorn, 400 U.S. at 484-85; Kelly, 797 A.2d at 942; Commonwealth v.

Rivera, 715 A.2d 1136, 1140 (Pa. Super. 1998); Balog, 576 A.2d at 1098.




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       A review of the record reveals the trial court hastily declared a

mistrial, providing no explanation as to the reasons for its decision.9

Additionally, there is no record of an attempt by the trial court to consult

with the parties or consideration of less drastic alternatives to mistrial,

following the statement proffered by the witness. The trial court declared a

mistrial and released the jury without giving the parties an opportunity to

address its decision.        In light of the foregoing, we are constrained to

conclude that these failures “made the necessity of the mistrial not manifest

and thus open to doubt.”            Bartolomucci, 363 A.2d at 239; see also

Walton, 352 A.2d at 8.10 Because any doubt regarding the propriety of the

____________________________________________


9
  We are not suggesting that the trial court at the time it declared a mistrial
“was required to make explicit findings of ‘manifest necessity’ [or] to
articulate on the record all the factors which informed the deliberate exercise
of his discretion.” Washington, 434 U.S. at 517. However, the record
should adequately disclose the basis for the trial court’s mistrial order. Id.
Here, the record is barren of reasons for the mistrial. To the extent that one
could surmise the trial court’s reasons for declaring a mistrial, after defense
counsel merely proffered “Your Honor,” following the witness’ statement,
there is no indication that said reasons were “plain” and “obvious,” Perez,
supra, such as to justify a sua sponte declaration of a mistrial for manifest
necessity. Indeed, if defense counsel would not have a problem with a
cautionary a jury instruction, then the reasons for mistrial were not so plain
and obvious as to warrant a sua sponte declaration of mistrial.
10
   In United States v. Sanders, 591 F.2d 1293 (9th Cir. 1979), the Court
of Appeals noted:

       When the record is barren of reasons for the mistrial . . . or
       reveals that the judge failed adequately to consider feasible
       alternatives to a mistrial, then the decision to declare a mistrial
       may be reversed by a reviewing court, despite the high degree
(Footnote Continued Next Page)


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J-A20018-16


exercise of discretion of manifest necessity must be be resolved in favor of

defendant, Bartolomucci, 33 A.2d at 239, we must conclude the mistrial

was not manifestly necessary and reverse the order of the trial court

denying Appellant’s motion to dismiss on double jeopardy grounds.

        The reasons behind the trial court’s decision were disclosed only after

the trial court declared a mistrial and subsequent to the release of the jury.

In its post facto explanation of the basis for its decision, the trial court

suggested that the witness’s comment was prejudicial to Appellant,

insomuch that it even speculated that if Appellant were found guilty, the

conviction rested solely upon the comment. Trial Court Order, 1/11/16, at

2-3.

        There is no per se rule that any mention of a defendant’s prior criminal

activity warrants a mistrial. Commonwealth v. Morris, 519 A.2d 374, 377

(Pa. 1986) (“There is no per se rule that requires a new trial for a defendant

every    time   there     is   a   reference     to   prior   criminal   activity”   (citing

Commonwealth v. Heaton, 472 A.2d 1068 (Pa. 1984)); Commonwealth

v. Richardson, 437 A.2d 1162, 1165 (Pa. 1981) (“Our decisions have

indicated that there are situations where the taint, resulting from an

                       _______________________
(Footnote Continued)

        of deference to be accorded the conclusions of the trial judge in
        such cases.

Sanders, 591 F.2d at 1299.




                                           - 16 -
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improper reference to an unrelated criminal act, may be expunged without

resort to the extreme remedy of aborting an otherwise fair trial.”);

Commonwealth v. Williams, 368 A.2d 249, 252 (Pa. 1977) (“We have

never ascribed to the view that all improper references to prior criminal

activities necessarily require the award of a new trial as the only effective

remedy”); Commonwealth v. Valerio, 712 A.2d 301, 303 (Pa. Super.

1998) (holding, “there is no ‘per se’ rule requiring a new trial for every

reference” to a defendant’s prior criminal activity); Commonwealth v.

Colon, 399 A.2d 1068, 1071 (Pa. Super. 1979) (same).11

       Moreover, “[a]n immediate curative instruction to the jury may

alleviate any harm to the defendant that results from reference to prior

____________________________________________


11
   In its brief, the Commonwealth cites to a number of cases apparently for
the proposition that a single reference to a defendant having previously been
incarcerated constitutes reversible error. A closer review of these cases,
however, reveals a more nuanced articulation of the principle of law relied
upon by the Commonwealth. Indeed, “reversal is not warranted unless the
record     indicates   that  prejudice    RESULTED     from    the   remark.”
Commonwealth v. Bricker, 548 A.2d 604, 607 (Pa. Super. 1988)
(emphasis in original).     “Further, ‘passing references’ to prior criminal
activity do not warrant reversal.” Commonwealth v. Nichols, 400 A.2d
1281, 1282 (Pa. 1979) (citing Commonwealth v. Irwin, 381 A.2d 444 (Pa.
1977); Commonwealth v. McFadden, 346 A.2d 550 (Pa. 1975);
Commonwealth v. Sharpe, 296 A.2d 519 (Pa. 1972)).                  “Moreover,
whether the remark was intentionally elicited by the Commonwealth, and
whether cautionary instructions were given, are considerations relevant to
the determination of whether a mistrial is required. In certain situations,
curative instructions may suffice to remove the taint of unintentional and
innocuous references to prior criminal activity.” Commonwealth v. Ford,
607 A.2d 764, 766-67 (Pa. Super. 1992).




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criminal conduct.”       Morris, 519 A.2d at 377 (citing Commonwealth v.

Whitfield, 376 A.2d 617 (Pa. 1977) (jury was instructed to disregard a

witness’s testimony that he had previously seen defendant “work people

over”)); Williams, 368 A.2d at 252 (jury was instructed to disregard a

witness’s testimony concerning defendant’s unrelated use of drugs);

Commonwealth v. Povish, 387 A.2d 1282 (Pa. 1978) (jury instructed to

disregard testimony concerning a robbery for which defendant was charged

but not then being tried); and Richardson, supra, (jury instructed to

disregard a witness’s testimony concerning a prior burglary of the same

residence for which defendant was then on trial)).

       It should be noted that in the above cited cases, the defendants

requested a mistrial,12 rather than the court declaring one sua sponte. In

each of those cases, the trial court’s decision to deny a motion for a mistrial

was upheld on appeal.         In the matter sub judice, not only there was no

request from Appellant for a mistrial or new trial, it is clear that the trial

court was operating under the mistaken belief that there is a per se rule that

any mention of Appellant’s criminal activity warrants a mistrial.    See N.T.

Post-Trial Hearing, 2/13/15, at 5. Therefore, as in Balog and Hatten, the

fact that the witness statement would not necessarily warrant reversal upon


____________________________________________


12
  In Morris and Whitfield, the defendants requested a new trial instead of
a mistrial.



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appeal, is further evidence that the declaration of a mistrial here was not

manifestly necessary. See Balog, 576 A.2d at 1097.

      Furthermore, the trial court’s speculation that Appellant would be

convicted based on the statement made by the witness was in error.

      “[S]peculation . . . cannot serve as a basis for manifest
      necessity.” United States v. Allen, 984 F.2d 940, 942 (8th Cir.
      1993). Thus, ‘[e]ven if the trial judge believes in subjective
      good faith that a mistrial is called for,’ an appellate court ‘must
      reverse if the record belies his concerns.’ United States v.
      Meza-Soria, 935 F.2d 166, 171 (9th Cir. 1991).              As the
      Supreme Court has explained, when ‘the record reveals that the
      trial judge has failed to exercise the “sound discretion” entrusted
      to him, the reason for deference [to his discretion] by an
      appellate court disappears.’ Washington, 434 U.S. at 510
      n.28[.]

United States v. Sloan, 36 F.3d 386, 400-401 (4th Cir. 1994). While the

trial court genuinely believed that the witness’s comment warranted a sua

sponte declaration of mistrial, as explained herein, the record and the law do

not support the court’s ruling.

      The trial court’s speculation that defense counsel was about to ask for

a mistrial following the witness’s statement in open court also was in error.

Indeed, the trial court stated: “[Defense counsel] stood up and said “Your

Honor.” Rather than let counsel continue, this [c]ourt, anticipating counsel

was asking for a mistrial, stated “Granted[.]”. Trial Court Opinion, 5/8/15,

at 2. The trial court “conced[ed] there was no specific request for mistrial

and better practice would have been to have waited for a specific request for

a mistrial.   Under the circumstances, however, this [c]ourt genuinely


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believed [Appellant] was seeking a mistrial.”    Id. at 3.   To the contrary,

defense counsel later indicated it would have been his desire to discuss other

options.

      Finally, it appears the trial court assumed that the jury “will disregard

judicial instructions admonishing them to disregard improper evidence[.]”

Balog, 576 A.2d at 1098. “Whether the exposure of the jury to improper

evidence can be cured by an instruction depends upon a consideration of all

circumstances.”    Richardson, 437 A.2d at 1165.           Here, there is no

indication whether the trial court considered less drastic measures, such as a

curative instruction, or why a curative instruction would not have cured the

prejudice, or considered “the importance to the defendant of being able,

once and for all, to conclude his confrontation with society through the

verdict of a tribunal[.]”   Walton, 352 A.2d at 8.      Accordingly, we must

conclude the mistrial was not manifestly necessary.

      Lastly, the trial court suggested that Appellant waived his double

jeopardy claim for failure to raise it promptly.      We disagree.   As noted

above, Appellant’s counsel did not have an opportunity to object until after

the court cleared the courtroom.      Order, 1/11/16, at 2; N.T. Post-Trial

Hearing, 2/13/15, at 5.     Nonetheless, even if Appellant did not object or

specifically raise the double jeopardy ground, he would not have waived his

double jeopardy claim. See, e.g., Bartolomucci, 362 A.2d at 239 (mere

silence by a defendant or lack of specific objection to the sua sponte


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declaration of mistrial by the trial court is not sufficient to waive defendant’s

“very important constitutional right” of protection from double jeopardy).

        The trial court also opined that Appellant’s conduct following the

declaration of mistrial should be construed as a waiver because he

essentially acquiesced to the trial court’s decision.       Trial Court Opinion,

5/8/15, at 4.     As noted above, however, the record shows that Appellant

objected to the ruling as soon as feasible under the circumstances. Order,

1/11/16, at 2; N.T. Post-Trial Hearing, 2/13/15, at 5.

        As discussed above, the trial court made the following findings:

           4. [Appellant’s] [c]ounsel at that point stood up and said,
           “Your Honor.”

           5. The [trial] court in one continuous statement said,
           “Granted,” and advised the jury that the court was
           declaring a mistrial and ordered the courtroom cleared.

           6. The [trial] court stepped down from the bench so he
           could speak to the jury to explain what had occurred.

           7. As the the [sic] [trial] court was walking toward the jury
           box, counsel for [Appellant] again stated, “Your Honor”.

           8. The [trial] court next reaffirmed its order that the
           courtroom be cleared.

           9. When the courtroom reopened, counsel[13] again
           approached the bench and asked the court to reconvene.



____________________________________________


13
     Apparently, the trial court was referencing Appellant’s counsel.




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           10. The [trial] court indicated there would be no court
           reporter available as it was the lunch hour, and we would
           reconvene after the lunch hour.

           11. The [trial] court reconvened immediately after the
           lunch hour.

           12. [Appellant’s] [c]ounsel at that point in time put on the
           record an objection to the [trial] court sua sponte granting
           a mistrial and made a motion that [Appellant] be barred
           from retrial.

Order, 1/11/16, at 2.

      Appellant attempted to obtain the court’s attention immediately after

the trial court ordered a mistrial sua sponte; however, the trial court did not

respond.    “One must object to errors, improprieties or irregularities at the

earliest possible stage of the criminal . . . adjudicatory process to afford the

jurist hearing the case the first occasion to remedy the wrong and possibly

avoid an unnecessary appeal to complain of the matter.” Commonwealth

v.   Rosser,     135    A.3d   1077,    1086    (Pa.   Super.   2016)     (quoting

Commonwealth v. Strunk, 953 A.2d 577, 580 (Pa. Super. 2008)).

Appellant’s delay in raising such an objection was beyond his control and he

raised it as soon as practical. Therefore, Appellant did not waive his double

jeopardy challenge based upon the timeliness of his objection.

      Because no manifest necessity existed warranting a mistrial, we are

constrained to hold that the trial court abused its discretion. Therefore, we

reverse the order denying Appellant’s motion to dismiss the charges based

on double jeopardy.


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     Order reversed. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/7/2017




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