J-A32005-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellee

                    v.

MARLIN J. KELLEY,

                         Appellant                  No. 278 WDA 2015


                   Appeal from the Order February 13, 2015
               In the Court of Common Pleas of Greene County
             Criminal Division at No(s): CP-30-CR-0000443-2013


BEFORE: SHOGAN, OTT, and STABILE, JJ.

MEMORANDUM BY SHOGAN, J.:                             FILED MAY 10, 2016

     Marlin J. Kelley (“Appellant”) appeals from the February 13, 2015

order denying his motion to prohibit retrial on double jeopardy grounds.

We affirm.

     While driving routine patrol on Locust Avenue at 2:30 a.m. on July 13,

2013, in Mount Morris, Greene County, Officer John L. Lingo observed a

Chevrolet Cavalier approaching his marked police car. To avoid a head-on

collision with the Cavalier, Officer Lingo was forced “to go up on a sidewalk

to get away from it.” N.T., 11/25/14, at 19–20, 22–23, 45. Within a few

minutes, Officer Lingo stopped the Cavalier, which was driven by Appellant;

the officer did not see anyone else in the car.    Id. at 23–26, 46.    After

speaking with Appellant, Officer Lingo noticed the odor of alcohol coming

from Appellant’s breath and that his speech was slurred. Id. at 28. Based
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on   these   observations,   Appellant’s   reckless   driving,   and   Appellant’s

admission that he had had “two shots of whiskey,” Officer Lingo placed

Appellant under arrest for suspicion of driving under the influence of alcohol.

Id. at 28–29.    Because there was no one available to drive Appellant’s

vehicle, Officer Lingo called his local 911 center and requested a towing

company; he then transported Appellant to the Waynesburg Police Station.

Id. at 29, 82.    After observing Appellant for twenty minutes, Patrolman

Shawn Wood gave Appellant a breathalyzer test. Id. at 63–65. Appellant’s

blood alcohol content (“BAC”) was recorded at .196%.                   Id. at 70,

Commonwealth Exhibit 5.

      Appellant was charged with driving under the influence (“DUI”) of

alcohol in violation of 75 Pa.C.S. § 3802(a)(1) and (c) and reckless driving in

violation of 75 Pa.C.S. § 3736. He proceeded to trial in November of 2014.

On the morning of trial, before the jury was sworn, defense counsel

announced that a witness, Mr. Jeff Mullenax, who was offered as the driver

of the Cavalier, had been contacted the day before about testifying at trial,

but his whereabouts that morning were unknown. N.T., 11/25/14, at 3–4.

Defense counsel unsuccessfully moved for a continuance, and the trial

commenced. Id. at 4.

      After the Commonwealth rested, Appellant testified that he was not

the driver; Mr. Mullenax was. N.T., 11/25/14, at 75. On cross-examination,

the prosecutor inquired as to why Appellant had not identified his “buddy”


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sooner. Id. at 85. Defense counsel objected. Id. at 85–86. At sidebar,

defense counsel recalled that, on the day of jury selection, November 17 or

18, 2014, he had informed the Commonwealth that he intended to call

Mr. Mullenax during trial to prove that Appellant was not the person driving

the Cavalier. Id. at 86–89. The prosecutor recalled that she was given a

name with an incorrect spelling and, therefore, could not locate the witness.

Id. at 86–87.     As the argument escalated at sidebar, defense counsel

suggested a mistrial based on the prosecutor’s violation of Appellant’s

constitutional rights.   Id. at 89.   In response, the prosecutor asked for a

missing-witness instruction, contending: “[T]his is a major lie. . . . [T]here

was no Jeff Mullenax present there.       In fact, I agree, maybe we need a

mistrial so I can call the tow truck driver who can say there was no other

person there.”   Id. at 89.   Defense counsel moved for a mistrial, and the

prosecutor consented with the qualification that “this is not on the

Commonwealth” and, therefore, “[t]his is not double jeopardy.” Id. at 90.

      Following a lunch recess, the trial court reconvened. N.T., 11/25/14,

at 92. Defense counsel submitted a memorandum discussing the bases for a

mistrial.   Id. at 92; Defense Exhibit (unnumbered).        In response, the

prosecutor argued the lack of an alibi notice from the defense in violation of

the Pennsylvania Rules of Criminal Procedure. Id. at 93.

      The trial court granted Appellant a mistrial “due in part to the

impaneled jury overhearing the ‘aggressive side bar argument between


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counsel’ and due to . . . potential eye witnesses and the possibility of alibi

witnesses necessary to both defense and prosecution in the pursuit of

justice. . . .” Id. at 94–95. The trial court specifically found no bad faith or

misconduct by either counsel; it also determined that jeopardy did not

attach.   Id.   Thereafter, the trial court directed the court administrator to

schedule a new trial for the February 2015 term. Id. at 95–96.

       On December 5, 2014,1 Appellant filed a motion to prohibit retrial on

double jeopardy grounds, which the trial court denied. Order, 2/13/15. A

timely appeal followed.

       Upon initial review of Appellant’s appeal, we observed sua sponte that

we could exercise jurisdiction only to the extent that the order denying

Appellant’s pretrial motion to dismiss qualified as a collateral order under

Pa.R.A.P. 313.2 Our concern was informed by recent precedent:

       To establish whether a motion to dismiss on double jeopardy
       grounds qualifies as a collateral order, trial courts must now,
       inter alia, satisfy [Pa.R.Crim.P.] 587(B)(3), (4), (5), and (6).
____________________________________________


1
   The prosecutor, Assistant District Attorney Linda Chambers, retired in
December of 2014.
2
    Pa.R.A.P. 313 provides, in relevant part, as follows:

       A collateral order is an order separable from and collateral to the
       main cause of action where the right involved is too important to
       be denied review and the question presented is such that if
       review is postponed until final judgment in the case, the claim
       will be irreparably lost.

Pa.R.A.P. 313(b).



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      Subsection (B)(3) requires the trial court, following a hearing, to
      enter on the record a statement of findings of fact and
      conclusions of law and its disposition of the double jeopardy
      motion. Subsection (B)(4) requires the trial court to render a
      specific finding on frivolousness in the event the court denies the
      double jeopardy motion. Subsection (B)(5) requires the trial
      court, if it finds frivolous the double jeopardy motion, to inform
      on the record a defendant of his or her right to petition for
      review under Pa.R.A.P. 1573 within [thirty] days of the order
      denying the motion. Subsection (B)(6) requires the court to
      advise a defendant of his immediate right to a collateral appeal if
      the court does not find the double jeopardy motion to be
      frivolous.

Commonwealth v. Taylor, 120 A.3d 1017, 1022–1023 (Pa. Super. 2015).

      We found that the trial court failed to render a specific finding on the

record regarding frivolousness, as required under Pa.R.Crim.P. 587(B)(4).

Thus, the trial court failed to comply with Rule 587(B)(4) through (6).

Because the trial court failed to fully comply with Rule 587(B), we entered a

judgment order, remanding this matter to the trial court for compliance with

Rule 587(B) and preparation of a supplemental Pa.R.A.P. 1925(a) opinion.

Judgment Order, 11/25/15, at 2.

      The trial court complied with our judgment order and Rule 587(B) and

issued the following conclusion:

            Pursuant to the requirement set out in Rule 587
      Subsection (B) (4) regarding a specific finding of frivolousness,
      we make a finding for the record that the Defendant’s motion to
      dismiss on double jeopardy grounds was non-frivolous and
      advise the Defendant that the denial is immediately appealable
      as a collateral order.




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Supplemental Trial Court Opinion, 3/14/16, at unnumbered 3.           Thus, we

conclude that we have jurisdiction to entertain this matter as an appeal from

a collateral order under Pa.R.A.P. 313.

      Appellant presents the following question for our consideration:

              Did the trial judge err and apply incorrect standards when
      it failed to find that retrial of the defendant was barred by double
      jeopardy after a motion for mistrial based on the
      Commonwealth’s declarations (1) that it was “ridiculous” and “a
      waste of time” for a defendant to insist that the BAC datamaster
      operator testify at trial of a DUI case, (2) that trial counsel was
      planning to improperly insinuate the officer was incompetent
      “based on years of experience” with the named counsel, and (3)
      questioning the defendant on cross-examination why he did not
      tell the name of the driver until “yesterday” when the
      Commonwealth knew that the appellant had made a denial at
      the stop, was arrested, was never questioned about the denial,
      had actually revealed the name of the potential witness at jury
      selection seven days earlier, and provided the precise name and
      contact telephone number the day before jury selection when
      there was no prior order compelling the defendant to do so, and
      (4) the offensive comments were broadcast by the prosecutor
      within earshot of the jury, all of which provoked the motion for
      mistrial and were undertaken to prevent the fair trial of the
      defendant?

Appellant’s Brief at 12.

      Our scope and standard of review are as follows: “An appeal grounded

in double jeopardy raises a question of constitutional law. This court’s scope

of review in making a determination on a question of law is, as always,

plenary. As with all questions of law, the appellate standard of review is de

novo.” Taylor, 120 A.3d at 1021 (quoting Commonwealth v. Vargas, 947

A.2d 777, 780 (Pa. Super. 2008) (citations and quotation marks omitted)).

Moreover:

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       [a]ppellate review of the trial court’s findings of fact in a double
       jeopardy matter further implicates the following: Where 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.

Commonwealth v. Anderson, 38 A.3d 828, 834 (Pa. Super. 2011)

(quoting Commonwealth v. Wood, 803 A.2d 217, 220 (Pa. Super. 2002)

(internal citations omitted)).

       Double jeopardy protection applies where the prosecution engages in

conduct    intended      to   provoke     the    defendant’s    motion      for   mistrial.

Commonwealth v. Starks, 416 A.2d 498, 500 (Pa. 1980).                       Additionally,

double    jeopardy     applies    in   the     event   of   prosecutorial    misconduct

“undertaken in bad faith to prejudice or harass the defendant.”                   Id.; see

also Commonwealth v. Martorano, 741 A.2d 1221 (Pa. 1999) (affirming

the two-part analysis of prosecutorial misconduct set forth in Starks).

       The appropriate mechanism to challenge prosecutorial misconduct is

through a motion for mistrial. Pa.R.Crim.P 605(B).3 The following standards

govern our review:

             In criminal trials, declaration of a mistrial serves to
       eliminate the negative effect wrought upon a defendant when
____________________________________________


3
    Pa.R.Crim.P. 605(B) provides:       “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.”



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     prejudicial elements are injected into the case or otherwise
     discovered at trial. By nullifying the tainted process of the
     former trial and allowing a new trial to convene, declaration of a
     mistrial serves not only the defendant’s interest but, equally
     important, the public’s interest in fair trials designed to end in
     just judgments.      Accordingly, the trial court is vested with
     discretion to grant a mistrial whenever the alleged prejudicial
     event may reasonably be said to deprive the defendant of a fair
     and impartial trial. In making its determination, the court must
     discern whether misconduct or prejudicial error actually
     occurred, and if so, . . . assess the degree of any resulting
     prejudice. Our review of the resulting order is constrained to
     determining whether the court abused its discretion. Judicial
     discretion requires action in conformity with the law on facts and
     circumstances before the trial court after hearing and
     consideration. Consequently, the court abuses its discretion if,
     in resolving the issue for decision, it misapplies the law or
     exercises its discretion in a manner lacking reason.

Commonwealth v. Jaynes, ___ A.3d ___, 2016 PA Super 55 at *6 (Pa.

Super. filed Mar. 1, 2016) (quoting Commonwealth v. Lettau, 955 A.2d

360, 363 (Pa. Super. 2008), reversed on other grounds, 986 A.2d 114 (Pa.

2009) (citations, quotations, and quotation marks omitted)).

     The trial court disposed of Appellant’s motion to bar retrial as follows:

           During trial, several conversations occurred at sidebar
     between former First          Assistant Linda Chambers     and
     Mr. Cancelmi. During these conversations, Mr. Cancelmi accused
     the Commonwealth of prosecutorial misconduct and moved for a
     mistrial based on statements made by Ms. Chambers that could
     potentially have been heard by several jurors.             The
     Commonwealth consented but stated on the record that she felt
     that no misconduct had occurred. After a brief recess, this
     [c]ourt granted the mistrial.

                                   * * *

           In this case, the [c]ourt clearly stated, on the record, that,
     given that the physical limitations of the Courtroom, jurors could
     easily overhear the conversations that occurred at sidebar. The

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      [c]ourt recognized the need for eyewitnesses for both the
      Defendant and the Commonwealth, and that it was in the
      interest of justice that a mistrial be declared. This [c]ourt also
      recognized on the record that neither defense counsel nor the
      prosecutor took any action that rose to the level of bad faith,
      misconduct or actions specifically intended to cause a mistrial.
      Further, this [c]ourt found that a retrial was not barred by
      Double Jeopardy and ordered a new trial date to be set by the
      Court Administrator.

Order, 2/13/15, at unnumbered 2–3, 4.

      On appeal, Appellant asserts that a “criminal defendant has no

mandatory duty to disclose the name of eyewitnesses known to the

defendant.” Appellant’s Brief at 31 (citing Pa.R.Crim.P. 573). According to

Appellant, Mr. Mullenax was an eyewitness, not an alibi witness, and,

therefore, Appellant did not have to identify him.   Appellant’s Brief at 34.

We disagree.       In doing so, we are persuaded by the Commonwealth’s

position: “In Commonwealth v. Chamberlain, the Superior Court held that a

defense that places another individual in the driver’s seat in a DUI case

constitutes   an   alibi   defense.”   Commonwealth’s   Brief   at   14   (citing

Commonwealth v. Chamberlain, 658 A.2d 395, 399 (Pa. Super. 1995)).

      The Chamberlain Court addressed this issue in the context of a

missing witness instruction:

             An “alibi” is “a defense that places the defendant at the
      relevant time in a different place than the scene involved and so
      removed therefrom as to render it impossible for [her] to be the
      guilty party.” Commonwealth v. Roxberry, 529 Pa. 160, 163,
      602 A.2d 826, 827 (1992) (citations omitted). If the defendant
      presents evidence which covers the time period when the crime
      was committed and which puts her at a different location than
      that of the crime scene, she has presented an alibi.         See

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      Commonwealth v. Jones, 529 Pa. 149, 150-54, 602 A.2d 820,
      821-22 (1992) (acknowledging alibi charge to jury as accurately
      stating the law: “whether the testimony given covers the entire
      time the offense is shown to have been committed and whether
      it precludes the possibility of defendant’s presence at the
      scene”). The evidence presented, taken as true, must make it
      impossible for the defendant to have committed the crime. Id.,
      529 Pa. at 152-54, 602 A.2d at 822. Commonwealth v.
      Repaci, 419 Pa.Super. 591, 594-95, 615 A.2d 796, 798 (1992).
      According to appellant, [her husband] would have testified that
      she was not in the driver’s seat at the time of the infraction.
      Instead, [her husband’s] testimony would place appellant in the
      passenger seat at the crucial point in time. Although [her
      husband’s] testimony would place appellant at the scene of the
      infraction, his testimony precluded the possibility that she was
      driving the vehicle.

Chamberlain, 658 A.2d at 399.

      Applying Chamberlain to this case, we conclude that Mr. Mullenax

was an alibi witness.     According to Appellant, Mr. Mullenax would have

testified that Appellant was not in the driver’s seat at the time of the

infraction.   Instead, Mr. Mullenax’s testimony would place Appellant in the

passenger seat at the crucial point in time.        Although Mr. Mullenax’s

testimony would place Appellant at the scene of the infraction, his testimony

precluded the possibility that Appellant was driving the vehicle.     Because

Mr. Mullenax was an alibi witness, Appellant was required to identify him and

file a notice of alibi, as the Commonwealth contends. Commonwealth’s Brief

at 14–15. Appellant’s contrary claim lacks merit.

      Next, Appellant complains that the trial court erred in ruling that

“there being eyewitnesses that neither party could obtain at trial, . . . the

interest of justice necessitated the cessation of the trial.” Appellant’s Brief

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at 32. According to Appellant, “This was clearly not a manifest necessity.”

Id.   However, we need not address manifest necessity.           That standard

applies when the trial court declares a mistrial, not when—as here—the

defense moves for one. Pa.R.Crim.P. 605(B).

       Lastly, Appellant argues that retrial is warranted due to prosecutorial

misconduct. Appellant’s Brief at 35–36. We disagree.

       Upon plenary and de novo review of the certified record, we find

support therein for the trial court’s findings and, therefore, will not disturb

them on appeal.       Nor will we substitute our judgment regarding credibility

and weight based on a cold record for that of the trial court. Anderson, 38

A.3d at 834. Our review reveals that Appellant moved for a mistrial during a

heated exchange after the Commonwealth asked Appellant about failing to

identify Mr. Mullenax until the day before trial. N.T., 11/25/14, at 85, 86–

90.4 The trial court observed from the bench that, given the design of the

courtroom, “the jury members could easily overhear the details of the

argument at side bar.”            Id. at 94–95.    Additionally, the trial court

determined that Appellant and the Commonwealth each had an additional

eyewitness who, in the interest of justice, should be heard. Id. at 95.

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4
   Appellant previously moved for a mistrial during a sidebar at which the
Commonwealth asked defense counsel about stipulating to Appellant’s BAC.
N.T., 11/25/14, at 17. The trial court denied the motion and issued a
cautionary instruction to the jury regarding the attorney’s arguments, to
which Appellant did not object. Id. at 18–19. That ruling is not before us.



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     We observe that two seasoned and well-acquainted attorneys argued

multiple times at sidebar in a small courtroom with the jury present. N.T.,

11/25/14, at 17–18, 26–27, 35–36, 52–53, 66, 68, 86–90.       Although the

attorneys were patently frustrated with each other’s advocacy, we agree

with the trial court that the prosecutor did not provoke Appellant into

requesting a mistrial.    Starks, 416 A.2d at 500.   Indeed, nothing in the

record supports the conclusion that the prosecutor acted in bad faith to

prejudice or harass Appellant or to deny him a fair trial. Martorano, 741

A.2d 1221.

     Thus, we conclude that the trial court did not abuse its discretion.

Accordingly, we affirm the order denying Appellant’s motion to prohibit

retrial on double jeopardy grounds.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/10/2016




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