J-S48031-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                        IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellee

                       v.

MICHAEL LESLIE DASZKIEWICZ,

                            Appellant                    No. 1968 MDA 2016


               Appeal from the Order Entered November 3, 2016
                  in the Court of Common Pleas of York County
               Criminal Division at No.: CP-67-CR-0007829-2015

BEFORE: OTT, J., STABILE, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                            FILED SEPTEMBER 26, 2017

        Appellant, Michael Leslie Daszkiewicz, appeals from the order denying

his motion to dismiss the assault and harassment charges against him, after

the trial court declared a mistrial sua sponte.        He claims double jeopardy.

The court maintains that its order declaring a mistrial was properly based on

manifest necessity. We affirm.

        We derive the facts of the case from the trial court’s order (dated

November 3, 2016 and filed November 18, 2016), its supplemental

statement     (Trial   Court’s    Rule    1925(a)   Opinion,   1/25/17),   and   our

independent review of the record.




____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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       On the day of the incident at issue, October 26, 2015, Appellant

invited the victim to visit him at a hotel room where he was staying in York,

Pennsylvania. The two had an on-again-off-again friendship which included

a physical relationship. She accepted.1

       Both parties testified at trial. While they differed sharply on the details

of the actual incident, (in particular, Appellant’s claim that the victim was

the initial physical aggressor), there was a basic agreement that on the day

in question, after the victim arrived, the two argued at first, became

romantic, and then argued again.               Part of the argument may have been

about what the victim considered to be Appellant’s imprudent spending

habits. Part of it may have been about the status of their relationship. In

any event, the argument got heated. Appellant threatened to have a female

cousin beat up the victim.        He also threatened to call the victim’s mother

and make disparaging remarks about her daughter’s virtue.

       The argument became physical (in Appellant’s version, because the

victim began beating him). The victim testified that, at some point, she fled




____________________________________________


1
  In Appellant’s version of events, he was merely facilitating a ride home
from a bar for the victim, who, he claimed, lacked cab fare. (See N.T. Trial,
9/15/16, at 107-08). However, we need not address this discrepancy, which
has no direct relevance to our disposition. We note that Appellant does not
dispute that the victim went to his room, at his direction, and stayed there,
not home to her mother. (See id. at 108).




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into the bathroom, but Appellant followed her.2 She said that he punched

her about five times in the face and pushed her down, which was when she

fell, twisting her left leg, and injuring her knee. (See N.T. Trial, 9/15/16, at

61-66).

        At some point, Appellant called 911. York City patrol officer Shawn M.

Kelly, dispatched by radio to a “domestic dispute, assault,” met Appellant at

the hotel room door.          Appellant demanded that the victim, still in the

bathroom, be removed.           Officer Kelly went to the bathroom, where the

victim could not move because of the pain and swelling to her dislocated

knee. She thought it was fractured. Officer Kelly stayed with her until EMT

personnel transported her to the hospital.

        The parties stipulated at trial that the victim had suffered a strain of

the mid-collateral ligament as well as a patella subluxation and lateral

femoral condyle bone bruise (injuries to her left knee and knee cap). 3 (See

N.T. Trial, 9/15/16, at 83).         A SAFE4 nurse’s examination of the victim

____________________________________________


2
  Appellant testified at trial that the victim yanked him into the bathroom,
and as the two struggled, “she ran into the vanity and fell backwards.” (N.T.
Trial, 9/15/16, at 110). On appeal, Appellant concedes, or reports without
denial, the victim’s testimony that he followed her into the bathroom and
began to punch her. (See Appellant’s Brief at 6).
3
  Appellant concedes that the victim lost twenty weeks of work because of
complications of the injury to her knee. (See Appellant’s Brief, at 7).
4
    Sexual assault forensic examiner.




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confirmed bumps and bruises to the head and face as well. The victim also

had a bleeding split lip, a spider web bruise to the elbow and other bruises

on the arms and torso.5

       At trial, it developed that another York police officer, Officer Ebersole6

had arrived on the scene in a separate vehicle.             While Officer Kelly

concentrated on the victim and getting medical help for her, Officer Ebersole

stayed with Appellant.

       Officer Ebersole’s involvement did not become evident until Officer

Kelly first mentioned it in direct testimony at trial, in response to a general

question from the prosecutor:

               Q. When you went there, did you go along or take anyone

       else?

               A. No. Officer Ebersole was with me at the time.

               Q. Were you in the same vehicle?

               A. No, sir. We came separate.

(Id., 9/15/16, at 85).

____________________________________________


5
  Appellant conceded at trial that he had slapped the victim’s face several
times, claiming justification, and noting his concern that her attack might
have aggravated pre-existing injuries to his neck. (See N.T. Trial, 9/15/16,
at 110).
6
  Officer Ebersole’s first name is not given or readily apparent from the
record before us.




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      On cross-examination by defense counsel, Officer Kelly testified

further:

             Q. And other than your initial interaction with [Appellant],

      you didn’t, you know, sit down and take a full statement from

      him?

             A.    No.   Once I started dealing with [the victim] my

      partner, . . . Officer Ebersole, had come out to talk to

      [Appellant].

             Q. So you would agree it was your partner who probably

      had the most interaction with [Appellant] that evening?

             A. After the initial contact, correct.

(Id. at 101-02).

      Officer Ebersole’s name did not appear in Officer Kelly’s written report

of the incident, or apparently in any other discovery furnished to the

defense.

      After both sides had rested, defense counsel asked the trial court for a

missing witness instruction in a sidebar conference. (See id. at 118). After

an on-the-record discussion, the trial court took the request under

advisement but first directed the parties to determine the availability of

Officer Ebersole. (See id. at 122) (“I don’t care who produces him, and if

he can’t be produced, I’ll revisit your request for an instruction.”).




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        The next day, the prosecutor reported to the trial court that Officer

Ebersole had suffered severe injuries in an unrelated collision with a drunk

driver, and was on indefinite medical leave.         (See N.T. Trial, 9/16/16, at

125).    Defense counsel, in addition to the request for the missing witness

instruction made the day before, raised the new argument of a Brady

violation, arguing prosecutorial misconduct.7        (See id., at 126).   Counsel

asked for a dismissal. (See id.).

        It bears noting that in seeking a dismissal, defense counsel initially

argued that “I don’t think a curative instruction can fix it because my client

has already testified.” (Id. at 127). Counsel also argued against a mistrial

(“I don’t think a mistrial will cure it.”). (Id.).

        Nevertheless, a few minutes later, in the same on-the-record

conference, counsel stated, “The only remedy at this time, Your Honor,

would be to issue a mistrial on prosecutorial misconduct, which I would

not want that [sic].”). (Id. at 130) (emphases added).

        Shortly thereafter, the trial court declared a mistrial, sua sponte. (See

id. at 131).    Defense counsel filed a motion to dismiss.      On November 3,

2016, after a hearing, the trial court denied the motion to dismiss, citing




____________________________________________


7
    Brady v. Maryland, 373 U.S. 83 (1963).




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manifest necessity as the basis for the mistrial.8         This timely appeal

followed.9

       Appellant presents one compound question for our review:

             [Should] Appellant’s charges . . . be dismissed based on
       double jeopardy because the trial court erred in declaring a
       mistrial sua sponte when (1) Appellant did not request a mistrial
       as a remedy, (2) there were no “extraordinary and striking
       circumstances” making a mistrial a manifest necessity, and (3)
       there were less drastic alternatives to a mistrial, including
       Appellant’s request for a missing witness instruction[?]

(Appellant’s Brief, at 4) (quotation marks in original).

       Our standard and scope of review for a challenge to the denial of a

motion to dismiss on double jeopardy grounds following a declaration of a

mistrial sua sponte is well-settled.

             It is within a trial judge’s discretion to declare a mistrial
       sua sponte upon the showing of manifest necessity, and absent
       an abuse of that discretion, we will not disturb his or her
       decision. Where there exists manifest necessity for a trial judge
       to declare a mistrial sua sponte, neither the Fifth Amendment to
       the United States Constitution, nor Article I, § 10 of the
       Pennsylvania Constitution will bar retrial.

             In Commonwealth v. Diehl, 532 Pa. 214, [216–17], 615
       A.2d 690[, 691 (1992)], our Supreme Court, when considering
       whether manifest necessity for the trial court’s sua sponte
       declaration of a mistrial existed, stated:
____________________________________________


8
  The trial court also found that the motion was not frivolous and declared
that [Appellant] could file an interlocutory appeal on the issue. (See N.T.
Hearing, 11/03/16, at 7-8; see also Order, dated November 3, 2016).
9
 Appellant filed a timely court-ordered statement of errors on December 28,
2016. The trial court filed an opinion on January 25, 2017. See Pa.R.A.P.
Rule 1925.



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               Since Justice Story’s 1824 opinion in United
         States v. Perez, 22 U.S. (9 Wheat.) 579, 580, 6 L.Ed.
         165, it has been well settled that the question whether
         under the Double Jeopardy Clause there can be a new
         trial after a mistrial has been declared without the
         defendant’s request or consent depends on [whether]
         there is a manifest necessity for the mistrial, or the ends
         of public justice would otherwise be defeated. It is
         important to note that in determining whether the
         circumstances surrounding the declaration of a mistrial
         constitute manifest necessity, we apply the standards
         established by both Pennsylvania and federal decisions.

             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.

            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. The
     determination by a trial court to declare a mistrial after jeopardy
     has attached is not one to be lightly undertaken, since the
     defendant has a substantial interest in having his fate
     determined by the jury first impaneled. Additionally, failure to
     consider if there are less drastic alternatives to a mistrial creates
     doubt about the propriety of the exercise of the trial judge’s
     discretion and is grounds for 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. Finally, it is well established that any doubt relative to the
     existence of manifest necessity should be resolved in favor of the
     defendant.

           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 . . . .

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      [Commonwealth v.] Leister, 712 A.2d [332,] at 335 (quoting
      Illinois v. Somerville, 410 U.S. 458, 462 [ ] (1973));
      Commonwealth v. Morris, 773 A.2d 192 (Pa. Super. 2001).

Commonwealth v. Kelly, 797 A.2d 925, 936–37 (Pa. Super. 2002) (some

citations and internal quotation marks omitted) (emphases added).

      Here, after independent review, in consideration of all of the

circumstances in this case, we conclude under our standard and scope of

review, that the trial court had more than ample reason to find manifest

necessity. Its decision to declare a mistrial sua sponte was well within the

scope of its judicial discretion, and free of legal error.

      At the outset, we note that both Appellant’s statement of questions

involved and his argument fail to comply with our Rules of Appellate

Procedure. See Pa.R.A.P. 2116; Pa.R.A.P. 2119.

      Specifically, in his “Question(s) Involved” [sic], Appellant makes three

more or less inter-related claims, but fails to state concisely any other claims

of error to be resolved. (See Appellant’s Brief, at 4). “No question will be

considered unless it is stated in the statement of questions involved or is

fairly suggested thereby.” Pa.R.A.P. 2116(a).

      Furthermore, in the argument section of his brief, Appellant fails to

develop a coordinated argument in support of the three claims made in the

statement of questions involved. (Compare “Questions Involved” at 4, with

Appellant’s Brief, at 13-20). Rather, Appellant substitutes a string of loosely

associated legal principles, without developing a corresponding argument


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that applies those general principles to the claims of error expressly raised,

or to any companion claims fairly suggested by them.

       We could find all of Appellant’s issues waived on this basis alone.

However, in the interest of judicial economy we decline to do so. Instead, to

the extent possible, we will review the merits of the primary issues Appellant

purports to raise, and explain why under our standard of review the trial

court’s decision is proper and legally correct. Accordingly, we will focus on

the repeated themes of Appellant’s principal claims without attempting to

respond to each and every undeveloped claim in the remainder of his brief.

       Appellant’s first sub-issue, (mistrial not requested), is easily resolved.

There is no question that Appellant did not formally request a mistrial (even

though defense counsel may have hinted at it). But the assertion that the

mistrial was not requested is irrelevant. As acknowledged by Appellant, the

trial court declared a mistrial sua sponte.10        (See Order, 11/03/16 (filed

11/18/16), at 1; see also N.T. Trial, 9/16/16, at 132). There is plainly no

requirement that a trial court obtain the permission of a defendant to

declare a mistrial sua sponte.             Lacking support in law or the facts,

Appellant’s claim is frivolous. His first claim fails.

       Next, Appellant postulates that there were no “extraordinary and

striking circumstances,” to constitute a manifest necessity for a mistrial sua
____________________________________________


10
   Appellant acknowledges this fact in the question itself. (See Appellant’s
Brief, at 4).



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sponte. (Appellant’s Brief at 4; see also id. at Appendix B, Statement of

Errors, 12/28/16).         However, other than raising the issue, as noted,

Appellant utterly fails to address, let alone develop, an argument for this

claim.      (See id. at 12-20).    Accordingly, Appellant has waived this issue.

See Commonwealth v. Wilson, 147 A.3d 7, 14 (Pa. Super. 2016) (noting

appellant waives issue on appeal if he fails to present claim with citations to

relevant authority or develop issue in meaningful fashion capable of review).

          Moreover, Appellant’s mere citation of the catch phrase, with no

further development, ignores the much broader context of our scope and

standard of review, which recognize that we do not apply a mechanical

formula in determining whether a trial court had a manifest need to declare

a mistrial.       Rather, we afford the trial court a broad discretion to

accommodate the varying and unique situations which can arise during the

course of a criminal trial. See Kelly, supra at 936–37. Appellant’s second

sub-claim fails.

          Appellant characterizes the third sub-issue (trial court consideration of

less drastic alternatives to mistrial), as “[t]he primary issue in this appeal[.]”

(Appellant’s Brief, at 14). He posits two alternatives to a mistrial: a missing

witness instruction, and a dismissal for prosecutorial misconduct, the

purported Brady violation. (See id. at 12). Appellant’s claims do not merit

relief.




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      Preliminarily, we observe that Appellant’s claim on appeal that there

were less drastic alternatives to a mistrial that the trial court failed to

consider stands in stark contrast to the opposite position taken by defense

counsel at trial.

      As already noted, defense counsel initially argued in the sidebar

conference, that “I don’t think a curative instruction can fix it because my

client has already testified.”   (N.T. Trial, 9/16/16, at 127).   Counsel also

argued against a mistrial for a similar reason (“I don’t think a mistrial will

cure it[.]”). (Id.).

      Nevertheless, a few minutes later, in the same on-the-record hearing,

counsel stated, “The only remedy at this time, Your Honor, would be to

issue a mistrial on prosecutorial misconduct, which I would not want that

[sic][.]”). (Id. at 130) (emphases added). Understandably, counsel would

have preferred a dismissal. We also understand the obligations of zealous

advocacy. Nevertheless, counsel’s insistence on appeal that there were less

drastic alternatives to a mistrial stands in stark contrast to the near-

categorical denial of such alternatives at trial.

      Furthermore, it is beyond dispute that, contrary to the claim on

appeal, dismissal of charges is not a “less drastic alternative.”    Appellant

himself acknowledges this. (See Appellant’s Brief, at 19).

      Moreover, “[a] mere finding of willful prosecutorial misconduct will not

necessarily warrant dismissal of charges.”      Wilson, supra at 13 (citations


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omitted). Prosecutorial misconduct is precisely what defense counsel alleged

here. (See N.T. Trial, 9/16/16, at 130).

      Even assuming for the sake of argument that defense counsel could

have proved, not merely asserted, prosecutorial misconduct, dismissal would

not have been automatic or required. It certainly would not have been “less

drastic.”    The trial court considered, but properly rejected, dismissal as a

“less drastic alternative” to mistrial.

      Appellant also complains that the trial court should have given a

missing witness instruction instead of declaring a mistrial.      The trial court

reasons that a missing witness instruction was not appropriate. We agree.

      The missing witness adverse inference rule may be summarized as

follows:

                  When a potential witness is available to only one of
            the parties to a trial, and it appears this witness has
            special information material to the issue, and this person’s
            testimony would not merely be cumulative, then if such
            party does not produce the testimony of this witness, the
            jury may draw an inference that it would have been
            unfavorable.

      Commonwealth v. Manigault, 501 Pa. 506, 510-11, 462 A.2d
      239, 241 (1983)(quotations, citations and emphasis omitted).
      This Court has delineated the circumstances which preclude
      issuance of the instruction.

            1. The witness is so hostile or prejudiced against the party
            expected to call him that there is a small possibility of
            obtaining unbiased truth;

            2. The testimony of such a witness is comparatively
            unimportant, cumulative, or inferior to that already
            presented;

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          3. The uncalled witness is equally available to both parties;

          4. There is a satisfactory explanation as to why the party
          failed to call such a witness;

          5. The witness is not available or not within the control of
          the party against whom the negative inference is desired;
          and

          6. The testimony of the uncalled witness is not within the
          scope of the natural interest of the party failing to produce
          him.

       Commonwealth v. Evans, 444 Pa. Super. 545, 664 A.2d 570,
       573-74 (1995).    To invoke the missing witness instruction
       against the Commonwealth, the witness must only be available
       to the Commonwealth and no other exceptions must apply.
       Commonwealth v. Culmer, 413 Pa. Super. 203, 604 A.2d
       1090, 1098 (1992).

Commonwealth v. Boyle, 733 A.2d 633, 638–39 (Pa. Super. 1999).

       Here, it is worth noting that Officer Ebersole was at least theoretically

available to both parties, subject to the physical limitations his injuries and

the requirements of his recuperation may have imposed. There is certainly

nothing in the record and no offer of proof by Appellant that he was only

available to the Commonwealth. Similarly, there is no showing that he was

not available or not within the control of the Commonwealth as the party

against whom the negative inference is desired. The trial court concluded

that   any   testimony   Officer   Ebersole    could   give   would   be   “merely

cumulative.” (N.T. Trial, 9/15/16, at 121).

       On independent review, we agree with the trial court’s assessment.

There was no evidence, contrary to Appellant’s claim on appeal, that Officer

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Ebersole took any written statement from Appellant.            (See N.T. Trial,

9/16/16, at 131).        Testimony about his conversation with Appellant, on

available evidence, would be merely cumulative of Appellant’s statement to

Officer Kelly (and his trial testimony). On our review of the record, there is

nothing to suggest that any testimony Officer Ebersole could give would be

either adverse to the Commonwealth or helpful to Appellant.         Similarly, in

the absence of any evidence to the contrary, we find that Officer Ebersole’s

testimony (which in context could only have been comprised of his

conversation with Appellant) would have been “comparatively unimportant,

cumulative, or inferior to that already presented.”       Boyle, supra at 638.

The trial court properly found that Appellant was not entitled to a missing

witness instruction.

          In the face of the claims defense counsel was making, in the middle of

a jury trial, with no practical way to ascertain what relevant information

Officer Ebersole actually had, we conclude that the trial court properly

declared a mistrial on the basis of manifest necessity.

          Furthermore, the trial court did consider alternatives to a mistrial.

The trial court entertained extensive argument from both counsel on the

propriety of a missing witness instruction, as well as dismissal. (See N.T.

Trial, 9/15/16, at 118-122).        Appellant’s third sub-claim does not merit

relief.

          Order affirmed.


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     Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/26/2017




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