J-S64004-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JOSHUA WARDLAW                             :
                                               :
                       Appellant               :   No. 1716 WDA 2018

                Appeal from the Order Dated November 5, 2018
     In the Court of Common Pleas of Allegheny County Criminal Division at
                       No(s): CP-02-CR-0013708-2016

BEFORE:      BOWES, J., LAZARUS, J., and PELLEGRINI, J.*

MEMORANDUM BY BOWES, J.:                            FILED DECEMBER 12, 2019

        Joshua Wardlaw appeals from the order that denied his motion for

judgment of acquittal filed after the trial court declared a mistrial based upon

a deadlocked jury. We quash the appeal.

        The trial court summarized the history of the case as follows.

              [Appellant] was charged with one count of criminal
        homicide, two counts of criminal attempt — criminal homicide, two
        counts of aggravated assault, and two counts of recklessly
        endangering another person (REAP), in connection with a shooting
        that occurred in the early morning hours on August 6, 2016. The
        victims of the shooting included Amanda Smith, Alyssa Madison
        and Jonathan Minnie. Minnie died as a result of his injuries, and
        Smith and Madison sustained significant life threatening injuries.

              [Appellant]’s jury trial began on Tuesday, October 23, 2018,
        and the jury heard the case over the next four days. The jury
        returned a verdict of not guilty with respect to the two counts of
        attempted homicide and indicated to the court that it was
        deadlocked with respect to the remaining counts. This court
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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      declared a mistrial with respect to the counts on which the jury
      was deadlocked.

             On November 5, 2018, [Appellant] filed a motion in arrest
      of judgement/judgment of acquittal with respect to the
      deadlocked charges. . . .         Appellant’s motion of arrest of
      judgment/judgment of acquittal allege[d] the evidence presented
      at trial was insufficient to prove that [Appellant] was the shooter
      and as such he was entitled to a dismissal of the charges.

Trial Court Opinion, 3/28/19, at 2-3 (citations and unnecessary capitalization

omitted omitted). The trial court denied Appellant’s motion on November 5,

2018, and Appellant filed a notice of appeal from that order on December 4,

2018. Both Appellant and the trial court complied with Pa.R.A.P. 1925.

      Appellant presents the following question for this Court’s review:

      Whether the trial court erred in denying [Appellant]’s motion in
      arrest of judgment/judgment of acquittal on the hung charges of
      criminal homicide, aggravated assault (four counts), and [REAP]
      (two counts) when the Commonwealth’s evidence presented at
      trial failed to prove that [Appellant] was the shooter; under such
      circumstances, [Appellant] was entitled to an absolute discharge,
      not merely a new trial?

Appellant’s brief at 6 (unnecessary capitalization omitted).

      Before we consider the merits of Appellant’s claim, we must determine

whether the trial court’s November 5, 2018 order is appealable. See, e.g.,

Commonwealth v. Horn, 172 A.3d 1133, 1135 (Pa.Super. 2017) (providing

that, as appealability implicates this Court’s jurisdiction, “prior to reaching the

merits of any appeal, this Court must first ascertain whether the order

appealed from is properly appealable”) (cleaned up).




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J-S64004-19


      “It is well-established that a criminal defendant may take an appeal only

from the judgment of sentence.      An appeal from any prior order must be

quashed.”     Commonwealth v. McPherson, 533 A.2d 1060, 1061–62

(Pa.Super. 1987) (citations omitted). However, Appellant claims this Court

has jurisdiction over the instant appeal pursuant to Pa.R.A.P. 311(a)(6), which

provides for an interlocutory appeal as of right from:

      An order in a civil action or proceeding awarding a new trial, or an
      order in a criminal proceeding awarding a new trial where the
      defendant claims that the proper disposition of the matter would
      be an absolute discharge or where the Commonwealth claims that
      the trial court committed an error of law.

Pa.R.A.P. 311(a)(6).

      This Court has repeatedly held that a new trial following the declaration

of a mistrial upon a hung jury is not immediately appealable under Rule

311(a)(6). As we explained,

      By limiting the scope of the rule to those orders “awarding a new
      trial,” the plain language draws a distinction between (1) orders
      that grant a request for a new trial and (2) new trials that follow
      from the declaration of a mistrial. . . . (emphasis added). In
      Johnson v. Frazier, 787 A.2d 433, 435 (Pa.Super. 2001), we
      explained this distinction in greater detail as follows.

            There is a marked difference between a court’s
            granting a motion for a new trial and declaring a
            mistrial; the former contemplates that a case has
            been tried, a judgment rendered, and on motion
            therefor, said judgment set aside and a new trial
            granted, while the latter results where, before a trial
            is completed and judgment rendered, the trial court
            concludes that there is some error or irregularity that
            prevents a proper judgment being rendered in which
            event a mistrial may be declared.


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      After a mistrial due to a deadlocked jury, a new trial follows as of
      course. Conversely, when a court awards a new trial, that trial
      occurs only because the court issued an order granting it.
      Importantly, while an award of a new trial is immediately
      appealable under Pa.R.A.P. 311(a)(6), a mistrial and any new trial
      arising therefrom is not.

Kronstain v. Miller, 19 A.3d 1119, 1124 (Pa.Super. 2011) (some internal

citations and quotation marks omitted).

      In MacPherson, supra, this Court rejected Rule 311(a)(6) as a basis

for jurisdiction in a case procedurally similar to the case sub judice.      In

MacPherson, the defendant invoked the Rule as the basis of jurisdiction for

his appeal from the denial of his application for discharge which he filed after

his first trial resulted in a hung jury and a new trial was scheduled.       We

rejected the defendant’s “argument that the grant of a mistrial due to a

deadlocked jury is the equivalent of an award of a new trial.”    McPherson,

supra at 1062.     Consistent with the law quoted above, we indicated that

“[w]hen a mistrial is declared due to a deadlocked jury, no award of a new

trial is necessary as retrial follows as of course.”     Id.   Therefore, Rule

311(a)(6) was not implicated and we quashed the appeal.

      Applying the above precedent, we hold that Appellant’s appeal from the

denial of his motion for judgment of acquittal must be quashed as

interlocutory.

      Appeal quashed.




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J-S64004-19



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/12/2019




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