J-A04036-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

WILLIAM BOYD,

                            Appellant                 No. 1612 EDA 2015


                       Appeal from the Order May 7, 2015
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No.: CP-51-CR-0010818-2011


BEFORE: SHOGAN, J., SOLANO, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                                FILED JUNE 14, 2017

        Appellant, William Boyd, brings this interlocutory appeal from the trial

court’s order denying his request to bar re-trial on the basis of double

jeopardy.1     Appellant maintains that the trial court declared a mistrial

without a manifest necessity, and failed to consider a less drastic alternative.

We affirm.
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
   See Pa.R.A.P. 311(a)(6); Commonwealth v. Calloway, 675 A.2d 743,
745 n.1 (Pa. Super. 1996); see also Commonwealth v. Brady, 508 A.2d
286, 287 (Pa. 1986), holding modified by Commonwealth v. Orie, 22 A.3d
1021 (Pa. 2011). The trial court judge here did not make a finding of
frivolity. See Pa.R.Crim.P. 587(B)(5) (providing that on finding of frivolity,
judge shall advise defendant of right to file petition for review pursuant to
Pa.R.A.P. 1573). Therefore, in this case, the rules for review of frivolity do
not apply. The trial court granted Appellant leave to file an interlocutory
appeal. (See Trial Court Opinion, 4/13/16, at 5).
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       We derive the facts of this case from the trial court’s opinion and our

independent review of the certified record. (See Trial Ct. Op., at 1-8).

       On May 12, 2011, Philadelphia police arrested Appellant after they

observed him selling crack cocaine to a confidential informant.              A search

executed by warrant on his residence recovered a handgun in his closet.

Appellant was prohibited from possessing a handgun based on a prior

narcotics trafficking conviction. Trial began on April 14, 2015.2

       The trial court had granted a defense request to bifurcate the drug

charges from the firearm charge. In his opening statement at trial on the

drug   charges,     defense    counsel     inaccurately   told   the   jury─twice─that

Appellant was “not facing any gun charges.”           (See N.T. Trial, 4/14/15, at

43; see also id. at 44). Indisputably, he was.

       Out of the presence of the jury, the trial court proposed giving the jury

an instruction to correct the misstatement, but defense counsel expressed

concern that the correction would undermine his credibility. The trial court

granted his request for a mistrial. (See id. 4/15/15, at 8-9).

       The trial which followed is the main subject of this appeal. The trial

court reports that during deliberations in the second trial on the afternoon of

April 29, 2015 and the day of April 30, the jury was contentious and loud
____________________________________________


2
  It is not readily apparent from our review of the record why the trial did
not begin until four years after arrest. However, Appellant’s motion to
dismiss under the prompt trial rule was denied. (See Order, 4/10/15). The
time delay is not at issue in this appeal.



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enough to disturb other proceedings.               The trial court also observed

“antagonistic body language.”         (Trial Ct. Op., at 3).   On May 1, the third

calendar day of deliberations, the trial court judge gave the jury a “Spencer

charge.”3

       Later on the same day, the jury sent a note to the trial court judge

asking “to be recognized as a hung jury.”           (Trial Ct. Op., at 3; N.T. Trial,

5/01/15, at 6). Defense counsel opposed a mistrial, and requested another

Spencer charge, which the court denied.

       The trial court judge summoned the jury. The foreperson confirmed

that the jury considered itself deadlocked, that further deliberations would

be fruitless, and that there was no reasonable probability of reaching a

unanimous verdict on any of the charges.              The judge polled each juror

individually.       They    confirmed      the   conclusions   of   the   foreperson,

unanimously. On the record, the trial court found manifest necessity, based

on the hung jury, and declared a mistrial.          (See Trial Ct. Op., at 4; N.T.

Trial, 5/01/15, at 11). Appellant filed a motion to dismiss, based on a claim



____________________________________________


3
   A Spencer charge, named for our Supreme Court’s decision in
Commonwealth v. Spencer, 275 A.2d 299 (Pa. 1971), instructs a
deadlocked jury to continue to deliberate with an open mind to
reconsideration of other jurors’ views, but without the requirement to give
up one’s own firmly held convictions. See Commonwealth v. Greer, 951
A.2d 346, 354 (Pa. 2008).




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of double jeopardy, which the court denied.         This interlocutory appeal

followed.4

       Appellant raises four overlapping issues, framed as one compound-

complex question, on appeal:

             Did not the [trial] court err and abuse its discretion in
       denying [A]ppellant’s request to bar retrial on double jeopardy
       grounds where, in the absence of manifest necessity, the trial
       court declared a mistrial over objection and without the consent
       of [A]ppellant and where it failed to consider an available less
       drastic alternative?

(Appellant’s Brief, at 4).

       Preliminarily, it bears noting that there are only two assertions of

abuse of discretion actually identified in either statement of errors: the

denial of the request to re-read the Spencer charge, and the assertion that

the court declared a mistrial after only a (relatively) short time of

deliberation which, Appellant claims, did not establish manifest necessity.

(See Supplemental Statement of Errors Complained of on Appeal, 10/29/15,

at 2 ¶5; see generally id. at 1-2, Statement of Errors Complained of on

Appeal, 10/06/15, at 1-2).5

____________________________________________


4
  Appellant filed a court-ordered statement of errors and a supplementary
statement after transcripts became available. The trial court filed a Rule
1925(a) opinion on April 13, 2016. See Pa.R.A.P. 1925.
5
  The initial statement, citing transcript unavailability, asserted no errors at
all. (See Statement of Errors, 10/06/15, at 2 ¶5). We recognize that
counsel for Appellant filed the supplementary statement of errors late,
without apparent prior leave of court. However, the trial court addresses the
(Footnote Continued Next Page)


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      Here, Appellant assigns both error of law and abuse of discretion to

the trial court.   He maintains that the court lacked the manifest necessity

required for it to declare a mistrial sua sponte without the consent or

request of a party.        He asserts that the trial court should have issued a

second Spencer charge instead of declaring a mistrial.        He claims retrial

should be barred under double jeopardy. (See Appellant’s Brief, at 22). We

disagree.

            “An appeal grounded in double jeopardy raises a question
      of constitutional law.” Commonwealth v. Wood, 803 A.2d
      217, 220 (Pa. Super. 2002) (quoting Commonwealth v.
      Mattis, 454 Pa. Super. 605, 686 A.2d 408, 410 (1996)). “This
      court’s scope of review in making a determination on a question
      of law is, as always, plenary.” Wood, supra at 220 (quoting
      Mattis, supra at 410). “As with all questions of law, the
      appellate standard of review is de novo . . . .” Commonwealth
      v. Kositi, 880 A.2d 648, 652 (Pa. Super. 2005) (quoting In re
      Wilson, 879 A.2d 199, 214 (Pa. Super. 2005) (en banc )).

Commonwealth v. Vargas, 947 A.2d 777, 780 (Pa. Super. 2008).

      “The Double Jeopardy Clause of the Fifth Amendment to the United

States Constitution protects an individual against successive punishments

and successive prosecutions for the same criminal offense.”        Id. (citation

omitted). Here, however, Appellant does not develop a formal argument of

constitutional infirmity as such.
                       _______________________
(Footnote Continued)

issues raised, in its Rule 1925(a) opinion. When counsel has filed an
untimely Rule 1925(b) statement and the trial court has addressed those
issues, we need not remand and may address the merits of the issues
presented. See Commonwealth v. Thompson, 39 A.3d 335, 340 (Pa.
Super. 2012).



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      Instead, he posits that the trial court judge, acting out of “manifest

animus,” (Appellant’s Brief, at 12), found prematurely that the jury was

deadlocked, improperly concluded there was manifest necessity, and

declared a mistrial after refusing to “consider an available less drastic

alternative,” specifically, giving the jury a second Spencer charge. (Id. at

4; see also id. at 12-13). Appellant’s arguments lack merit.

      “[T]he trial judge may declare a mistrial only for reasons of manifest

necessity.” Pa.R.Crim.P. 605(B). Our standard of review for the trial court’s

determination is well-settled. We review a finding of manifest necessity for

abuse of discretion.   See Commonwealth v. Hudson, 955 A.2d 1031,

1034 (Pa. Super. 2008), appeal denied, 964 A.2d 1 (Pa. 2009); see also

Commonwealth v. Story, 410 A.2d 1251, 1256 (Pa. Super. 1979).

      “An abuse of discretion may not be found merely because an appellate

court might have reached a different conclusion, but requires a result of

manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such

lack of support so as to be clearly erroneous.” Commonwealth v. Greer,

951 A.2d 346, 354–55 (Pa. 2008) (citations omitted).

      “In accordance with the scope of our review, we must take into

consideration all the circumstances when passing upon the propriety of a

declaration of mistrial by the trial court.”   Orie, supra at 996 (citations

omitted).




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J-A04036-17


            We do not apply a mechanical formula in determining
      whether a trial court had a manifest need to declare a mistrial.
      Rather, varying and often unique situations arise during the
      course of a criminal trial . . . [and] the broad discretion reserved
      to the trial judge in such circumstances has been consistently
      reiterated. . . .

Commonwealth v. Kelly, 797 A.2d 925, 937 (Pa. Super. 2002) (citations

and internal quotation marks omitted).

      Furthermore, it is long-settled that “a genuine inability of a jury to

agree constitutes a ‘manifest necessity’ to declare a mistrial over a

defendant’s objection without offending the defendant’s Fifth Amendment

rights.”   Commonwealth v. Monte, 329 A.2d 836, 840 (Pa. 1974)

(collecting cases); see also Commonwealth v. Marconi, 490 A.2d 871,

876 (Pa. Super. 1985), appeal denied, 518 A.2d 542 (Pa. 1986) (“[T]he

declaration of a mistrial following a hung jury is a matter of manifest

necessity.”).

      Notably, here, after the jury requested to be discharged, the trial court

consulted with both counsel about possible courses of action, summoned the

jury, and made direct, specific inquiry of the foreperson about the possibility

of reaching agreement on any of the pending charges.           The foreperson

confirmed that the jury was deadlocked.      (See N.T. Trial, 5/01/15, at 9).

She rejected any possibility that the jury could reach a unanimous verdict on

any of the charges.    (See id.).   The foreperson affirmed that any further

deliberation would be fruitless. (See id.). Polled individually by the judge,

the jury agreed, unanimously. (See id. at 9-11).

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J-A04036-17


      On independent review, we conclude that the trial court complied with

every procedure specified by our Supreme Court in Commonwealth v.

Bartolomucci, 362 A.2d 234, 239 (Pa. 1976).           We discern no basis to

conclude that the trial court abused its discretion or otherwise acted

improperly. See Monte, supra at 840; Marconi, supra at 876; see also

Commonwealth v. Myers, 405 A.2d 1252, 1260 (Pa. Super. 1979) (trial

court properly found manifest necessity and declared mistrial when judicial

inquiry confirmed jury had deadlocked on one issue after three hours;

second trial did not subject appellant to double jeopardy).

      Further, the perceived brevity of deliberations is not a sufficient

ground for relief.   (See Appellant’s Brief, at 13, 16).   While mathematical

exactitude is not possible without factoring in breaks, interruptions, and

other variables, the parties here generally agree that the jury deliberated

between ten and eleven hours, over the span of three days.

      “[T]he question of the proper duration of jury deliberations is one that

rests within the sound discretion of the trial court, whose decision will not be

disturbed unless there is a showing that the court abused its discretion or

that the jury’s verdict was the product of coercion or fatigue.” Greer, supra

at 386–87 (citation omitted).

      Our Courts have found manifest necessity on deliberations significantly

shorter than the one here. See Myers, supra at 1260 (three hours on one

issue; total of seven hours of deliberations); see also Monte, supra at 840


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J-A04036-17


(six and one-half hours); Commonwealth v. McCord, 700 A.2d 938, 945

(Pa. Super. 1997) (six and one-half hours); Commonwealth v. Verdekal,

506 A.2d 415, 418 (Pa. Super. 1986), appeal denied, (September 16, 1986)

(less than two hours). Appellant’s claim does not merit relief.

        Appellant argues that “less drastic alternatives [to a mistrial] were

available,” (Appellant’s Brief, at 14), but only identifies one: the trial court

should have accepted his counsel’s suggestion to issue a second Spencer

charge. (See id. at 16).

        However, “[w]hether to give a Spencer charge is a matter for the

exercise of the trial court’s sound discretion.” Greer, supra at 354 (citation

omitted). Here, we decline to find an abuse of discretion in the trial court’s

decision not to repeat an instruction it had already given earlier the same

day, to no avail.

        Appellant makes two additional arguments.     First, he posits that the

trial   court   judge   acted   out   of    “anger”   for   defense   counsel’s

misrepresentations in the first trial, and engaged in “an entire series of

apparently retaliatory decisions.” (Appellant’s Brief, at 14, 16). Secondly,

he asserts that the trial court, in describing the contentious behavior and

attitude of some of the jurors, as part of the context and background for the

deadlock, relied on observations that were “substantially dehors the record.”

(Id. at 15).




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J-A04036-17


       Preliminarily, we observe that neither of these two claims was included

in either statement of errors. Not coincidentally, the trial court was deprived

of the opportunity to respond to them in its Rule 1925(a) opinion.

Accordingly,     Appellant     has    waived       these   claims.   See   Pa.R.A.P.

1925(b)(4)(vii) (“Issues not included in the Statement and/or not raised in

accordance with the provisions of this paragraph (b)(4) are waived.”).

Moreover, neither argument would merit relief.

       First, Appellant complains of retaliatory behavior by the trial court.

However, Appellant does no more than recite a list of rulings Appellant

perceives to be unfavorable to him.            (See Appellant’s Brief, at 16-17).

“[S]imply because a judge rules against a defendant does not establish any

bias on the part of the judge against that defendant.” Commonwealth v.

Travaglia, 661 A.2d 352, 367 (Pa. 1995), cert. denied, 516 U.S. 1121

(1996).

       Furthermore, Appellant fails to develop an argument in support of

these assertions, or cite pertinent authority in support of them.               See

Pa.R.A.P. 2119(a), (b).        Appellant also fails to reference the place in the

record where the purportedly objectionable orders or other actions occurred.

See Pa.R.A.P. 2119(c).6          It is not the function of this Court to scour the

____________________________________________


6
  In the Statement of the Case, counsel for Appellant does reference the
record for various actions described there. (See Appellant’s Brief, at 6-11).
However, the two recitations do not coincide, and many, if not most, of the
(Footnote Continued Next Page)


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J-A04036-17


record to find evidence to support an appellant’s arguments.          See J.J.

DeLuca Co. Inc. v. Toll Naval Assocs., 56 A.3d 402, 411 (Pa. Super.

2012). Appellant’s claim would be waived for these reasons as well.

      Moreover, instead of developing an argument, Appellant merely asks

this Court to “infer” an abuse of discretion. (Appellant’s Brief, at 18). “We

will not find judicial bias sufficient to reverse where appellant’s claim[s] are

unsubstantiated and undeveloped.” Commonwealth v. Morales, 701 A.2d

516, 524 (Pa. 1997) (citation omitted).

      Additionally, this Court has previously explained:

             [O]pinions formed by the judge on the basis of facts
      introduced or events occurring in the course of the current
      proceedings, or of prior proceedings, do not constitute a basis
      for a bias or partiality motion unless they display a deep-seated
      favoritism or antagonism that would make fair judgment
      impossible. Thus, judicial remarks during the course of a
      trial that are critical or disapproving of, or even hostile to,
      counsel, the parties, or their cases, ordinarily do not
      support a bias or partiality challenge. They may do so if
      they reveal an opinion that derives from an extrajudicial
      source; and they will do so if they reveal such a high degree of
      favoritism or antagonism as to make fair judgment
      impossible. . . .        Not establishing bias or partiality,
      however, are expressions of impatience, dissatisfaction,
      annoyance, and even anger, that are within the bounds of
      what imperfect men and women, even after having been
      confirmed as [ ] judges, sometimes display.            A judge’s
      ordinary efforts at courtroom administration—even a
      stern and short-tempered judge’s ordinary efforts at
      courtroom administration—remain immune.

                       _______________________
(Footnote Continued)

rulings complained of in the argument section remain without a reference to
the record.



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J-A04036-17


Commonwealth v. Kearney, 92 A.3d 51, 61 (Pa. Super. 2014), appeal

denied, 101 A.3d 102 (Pa. 2014) (quoting Liteky v. United States, 510

U.S. 540, 551 (1994) (some emphasis deleted, some emphasis added).

      Finally, Appellant argues that the trial court judge relied on facts

outside of the record to support the declaration of mistrial. At the outset,

we note that the abuse of discretion analysis we have already made

establishes that the trial court followed proper procedure in declaring a

mistrial.   Therefore, that decision is independently sustainable and will be

affirmed.

      Beyond that, on independent review, we find that the additional facts

Appellant complains of, e.g., shouting in the deliberations room and

“antagonistic body language,” (Trial Ct. Op., at 3), constitute little more than

background information. To be sure, the trial court judge used this material

to explain context, and to furnish additional reasons for her actions.      But

background description does not obviate that the trial court also made

appropriate inquiries and established independently, at the initial request of

the jury, that it was hopelessly deadlocked, before declaring a mistrial.

      In any event, under our scope of review, we examine the totality of

the circumstances.     See Orie, supra at 996.         This Court has further

explained:

             Appellate courts are necessarily reliant on the observations
      of trial court judges for non-verbal actions occurring during the
      course of legal proceedings. Transcripts rarely contain any
      mention of physical behaviors that occur in courtrooms, nor do

                                     - 12 -
J-A04036-17


      they indicate certain characteristics of speech such as volume
      and tone. The difference between a whisper and a scream is not
      easily conveyed in the black and white print of a trial transcript,
      nor are the gesticulations of an animated speaker. The failure of
      a court reporter to transcribe non-verbal behaviors in no way
      discredits a trial judge’s observations of such conduct.

Commonwealth v. Culver, 51 A.3d 866, 875 (Pa. Super. 2012).

      The   trial   court’s   background   description   of   surrounding   events

provided useful information under Culver and Orie. The trial court properly

declared a mistrial based on manifest necessity. Appellant fails to prove an

abuse of discretion.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/14/2017




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