J-S07017-19

                                   2019 PA Super 263

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JEROME ANTHONY KENNEDY, JR.                :
                                               :
                       Appellant               :   No. 1038 MDA 2018

                  Appeal from the Order Entered June 15, 2018
     In the Court of Common Pleas of Lycoming County Criminal Division at
                       No(s): CP-41-CR-0001924-2016


BEFORE:      OLSON, J., McLAUGHLIN, J., and PELLEGRINI*, J.

OPINION BY McLAUGHLIN, J.:                             FILED AUGUST 27, 2019

       Jerome Anthony Kennedy, Jr. appeals from the order denying his motion

to dismiss, which alleged his prosecution violated the Double Jeopardy Clauses

of the United States and Pennsylvania Constitutions.1 He argues the trial court

abused its discretion in finding there was a manifest necessity for a mistrial

during his first trial. We affirm.

       The trial court set forth the following procedural history:

          The Commonwealth charged [Kennedy] with delivery of a
          controlled substance, three counts of possession with intent
          to deliver a controlled substance, two counts of possession
          of a controlled substance, two counts of possession of drug
____________________________________________


*    Retired Senior Judge assigned to the Superior Court.

1 The Fifth Amendment of the United States Constitution provides, in relevant
part, that no person shall “be subject for the same offence to be twice put in
jeopardy of life or limb[.]” U.S. Const. Amend. V. Similarly, Article I, § 10 of
the Pennsylvania Constitution provides that “No person shall, for the same
offense, be twice put in jeopardy of life or limb[.]” Pa. Const. Art. I, § 10.
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          paraphernalia, and one           count of criminal use   of a
          communication facility.[2]

          A jury trial began on December 7, 2017. During the course
          of the trial, jurors reported an incident that happened on the
          elevator when they were leaving for their lunch break.
          Before the elevator doors closed, two of [Kennedy’s] female
          supporters pushed their way onto the already full elevator.
          When the elevator arrived at the lobby, the taller lady (who
          was subsequently identified as [Kennedy’s] girlfriend, Alexis
          Lucas) turned away from the elevator doors and toward the
          six or seven jurors who were on the elevator. Ms. Lucas put
          her arms out, blocking the jurors and other people who were
          on the elevator from exiting. Ms. Lucas did this for
          approximately 15 seconds, and then she turned around,
          walked out of the elevator, and slammed the outside door.

Trial Court Opinion, filed November 8, 2018, at 1-2 (“1925(a) Op.”).

       The court held an in camera hearing, where jurors expressed that they

did not believe they would hold the incident against Kennedy, were unsure

whether they would be able to fairly consider the credibility of Lucas,

questioned whether Lucas would be in the courtroom, and felt that Lucas’s

actions were intimidating:

          THE COURT: Would it – would that intimidate any of you to
          the point that you think it might impact your judgment for
          or against the defendant? One of these women – well that’s
          the first question. Would it, and there’s no right answer to
          this, there’s just an honest one. Would any of you feel that
          because of that it might interfere in your ability to render a
          fair – a decision based on the evidence and the law?

          JUROR: No, I reported it solely because I deal with that
          every single day when I’m at school, and it’s bullying, and I


____________________________________________


2 35 P.S. §§ 780-113(a)(30), 780-113(a)(16), 780-113(a)(32), and 18
Pa.C.S.A. § 7512(a), respectively. The Commonwealth also charged Kennedy
with one count of persons not to possess firearms, 18 Pa.C.S.A. § 6105(a)(1).

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       just – I brought it to the attention of the Court because it’s
       unacceptable.

       THE COURT: Okay. Will you guys hold it against the
       defendant then?

       JUROR: No.

       THE COURT: Okay.

       JUROR: Is there something that we can do that she can’t be
       here?

       THE COURT: Well that’s the next question. What happens if
       she testifies? Are you going to be able to judge her
       credibility fair[ly] and impartially? I am not going to put
       words in your mouth, but it would be tough for me.

       JUROR: Yeah.

       THE COURT: Okay, so we have one yes[. Y]ou can judge it,
       or no?

       JUROR: If she started talking[,] I really don’t know how I
       would feel.

       THE COURT: No, my point is, did what she do at this point
       cause you concern, or can you listen to her testimony and
       judge her credibility and the weight of her testimony the
       same way you would someone else, or would you have –
       would you feel like you –

       JUROR: I just can’t answer that right now.

       THE COURT: Okay.

       JUROR: I don’t know.

       THE COURT: Okay.

       JUROR: I’d have to really think about that.

       THE COURT: All right. How about the rest of you?

       JUROR: I – I think I would – I would have a tough time
       overlooking that, I don’t know.

       THE COURT: Fair enough. And that’s actually what I’m
       asking, you actually said it better than I could. Would you


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        have – we have a couple yeses, and now we have at least
        three yeses. Anybody else? At least three yeses. Okay. Fair
        enough. That would be difficult to – I would think to overlook
        it under these circumstances.

        JUROR: It would certainly be an influence, I would have to
        say. One, I don’t know which way, but again –

        THE COURT: It would be an influence one way of the other?

        JUROR: Probably, yeah.

        JUROR: Because I would be thinking, you know.

        THE COURT: Right, this is the woman that said this and, you
        know – well then let’s go back to question number one.
        Would you be thinking about it when you’re in there
        rendering your verdict, assuming that she doesn’t testify?
        Are you thinking, man she was a real jerk to us and you
        know, she’s obviously with the defendant, and so that guy’s
        guilty, or the opposite?

        JUROR: I think I could put it aside.

        JUROR: What she did is –

        THE COURT: All right. Fair enough.

                                      ...

        [ASSISTANT DISTRICT ATTORNEY]: The only question I
        would have is, I think the tipstaff indicated that somebody
        indicated that they felt as if they were – they were
        intimidated by the action.

        THE COURT: Could be intimidated.

        JUROR: It was intimidating.

        JUROR: That’s what she was – she was trying to be
        intimidating.

        THE COURT: Okay. So she was trying to be intimidating, but
        all – none of you would use that one way or the other . . .
        in reaching your verdict?

N.T., 12/7/17, at 93-99.



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      After the jurors left the courtroom, the court discussed the situation with

counsel. Defense counsel stated there was a 75% chance that he would call

Lucas as a witness. Id. at 100. The trial court noted that as the jurors were

leaving, one juror asked, “[W]ell is she still going to be out there and still

looking at us?” Defense counsel pointed out that the juror did not respond

when the court asked if the jurors would hold the incident against Kennedy.

Id. The trial court declared a mistrial. Neither party had asked it to do so. It

reasoned that the jury was not capable of deciding the case fairly and

impartially. Id. at 102. Kennedy did not object.

      Following the mistrial, defense counsel filed a motion to withdraw. The

trial court granted the motion and appointed an assistant public defender to

represent Kennedy. On April 23, 2018, Kennedy filed a Motion to Dismiss

Pursuant to Pa.R.Crim.P. 587(B), claiming re-prosecution violated the Double

Jeopardy clauses of the United States and Pennsylvania Constitutions.

Kennedy argued that there was not a manifest necessity for the court to

declare a mistrial sua sponte, and it should have considered less drastic

measures, including waiting to see if Kennedy would call Lucas to testify. On

May 31, 2018, following an argument, the court denied the motion. Kennedy

filed a Notice of Appeal.

      Kennedy raises the following issue on appeal: “Whether the trial court

erred in denying [Kennedy’s] motion to dismiss based on [Kennedy’s]

constitutional right against double jeopardy?” Kennedy’s Br. at 7.




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      Before we can reach the merits of Kennedy’s claim, we must determine

whether we have jurisdiction over the order denying his Motion to Dismiss.

      An order denying a motion to dismiss on double jeopardy grounds may

be appealable as a collateral order under Pennsylvania Rule of Appellate

Procedure 313(b), if the trial court has determined that the motion is not

frivolous. See Commonwealth v. Taylor, 120 A.3d 1017, 1021 (Pa.Super.

2015) (citing Commonwealth v. Brady, 508 A.2d 286, 291 (Pa. 1986)).

Here, prior to the filing of the Notice of Appeal, the trial court did not make a

finding as to whether Kennedy’s Motion to Dismiss was frivolous. We therefore

remanded to the trial court for it to make that determination. The trial court

on remand concluded that it was not. Our jurisdiction is therefore proper. See

Taylor, 120 A.3d at 1022-23.

      We next address whether Kennedy has waived his challenge to the grant

of a mistrial because he did not object when the trial court granted the

mistrial. A defendant’s “mere acquiescence to the sua sponte grant of a

mistrial by the trial judge is not sufficient to waive his double jeopardy claims.”

Commonwealth v. McCord, 700 A.2d 938, 942 (Pa.Super. 1997); accord

Commonwealth v. Rivera, 715 A.2d 1136, 1138 (Pa.Super. 1998). We

therefore find that Kennedy did not waive his claim.

      We will now address the merits of Kennedy’s claim. Kennedy argues the

trial court declared the mistrial prematurely. He notes that the jurors stated

that they would not hold Lucas’s behavior against Kennedy when rendering a

verdict, and defense counsel was unsure whether he would call Lucas as a

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witness. He contends the court should have waited to see whether defense

counsel called Lucas before declaring a mistrial, and if she in fact testified, the

trial court could have issued a curative instruction, rather than grant a mistrial.

He maintains that because the court did not take such measures, the double

jeopardy doctrine bars retrial.

      We review a trial court’s decision to declare a mistrial due to a showing

of manifest necessity for an abuse of discretion. Commonwealth v. Walker,

954 A.2d 1249, 1254 (Pa.Super. 2008) (en banc) (citing Commonwealth v.

Kelly, 797 A.2d 925 (Pa.Super. 2002)).

      Pennsylvania Rule of Criminal Procedure 605(B) provides: “(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.” Pa.R.Crim.P. 605(B). “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.” Walker, 954 A.2d at 1254 (quoting Kelly, 797

A.2d at 936). Therefore, to determine whether double jeopardy bars a re-trial

following a sua sponte grant of a mistrial, we must determine whether

manifest necessity existed for the mistrial.

      Courts “do not apply a mechanical formula in determining whether a

trial court had a manifest need to declare a mistrial.” Kelly, 797 A.2d at 937.

Whether a trial court should grant a mistrial after jeopardy has attached is not

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a decision “to be lightly undertaken, since the defendant has a substantial

interest in having his fate determined by the jury first impaneled.” Walker,

954 A.2d at 1254 (quoting Kelly, 797 A.2d at 936). Further, prior to granting

a mistrial, a trial court should consider whether less drastic measures are

available. See id. We have stated that “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 may be 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.” Id. at

1254-55 (quoting Kelly, 797 A.2d at 936). When determining whether

manifest necessity exists any doubt must “be resolved in favor of the

defendant.” Id. at 1255 (quoting Kelly, 797 A.2d at 937).

      “[T]he trial court is in the best position to gauge potential bias” and we

defer to the trial court “when the grounds for the mistrial relate to jury

prejudice.” Id. at 1256 (quoting Arizona v. Washington, 434 U.S. 497, 513–

14 (1978)). We defer to the trial court because it “has had the opportunity to

observe the jurors, the witnesses, and the attorneys and evaluate the scope

of the prejudice.” Id. (quoting Washington, 434 U.S. at 513-514).

      Kennedy relies on Kelly for his contention that the court abused its

discretion when it failed to take a less drastic alternative—waiting to see if

defense counsel would call Lucas as a witness. In Kelly, the trial court granted

a mistrial during a jury trial because the trial court was concerned the court

could not act impartially toward the Commonwealth, as it was frustrated with

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the Commonwealth’s “bombastic” style, and feared that this frustration would

impact the jury. 797 A.2d at 927. We concluded the court acted prematurely,

and that “manifest necessity for a mistrial was not demonstrable at the time

the court sua sponte ended the trial.” Id. at 940. We stated that “less severe

remedies” existed, such as threatening the assistant district attorney with

contempt “should he not curb his ‘volatile’ style of litigation,” or removing him

as the prosecuting attorney. Id. at 942. We concluded that, although the trial

court had a concern about the appearance of its bias and its effect on the jury,

“there remained the real possibility that the negative impact of the court’s

opinion of the Commonwealth’s style of prosecution could have been

prevented and that the jury could have ruled impartially, in spite of the trial

judge’s frustration.” Id. We therefore concluded that the appellants’ “valued

constitutional right to have their trial completed before the first jury

empaneled” should not “have been subordinated to the public interest.” Id.

      Here, the trial court concluded:

         Only one juror indicated that he or she could put the matter
         aside if Ms. Lucas was called as a witness. The other five or
         six jurors either indicated that the incident would influence
         their ability to judge Ms. Lucas’ credibility or they did not
         know if they could consider Ms. Lucas’ credibility fairly and
         impartially. The ones who said it would be an influence could
         not say which way it would influence their decision. Too
         many jurors were impacted by the incident for the court to
         excuse the affected jurors and continue the trial. . . .

         Furthermore, it is clear that several jurors felt unnerved and
         intimidated by Ms. Lucas’ actions. Those jurors were not
         only concerned by the prospect of Ms. Lucas being called as
         a witness, but also by her mere presence. Therefore, waiting


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          to see if Ms. Lucas was called as a witness was not going to
          solve the problem.

          The incident and its impact made declaring a mistrial a
          manifest necessity. The ends of public justice would be
          defeated by proceeding in a trial with a jury whose members
          were unnerved and intimidated by the actions of
          [Kennedy’s] girlfriend. It was unclear which party the
          incident would hurt or hinder, because most of the jurors
          could not overlook the incident but they did not know which
          way it would influence their decision. There were an
          insufficient number of unaffected jurors to proceed with the
          trial. Therefore, the court was left with no choice but to
          declare a mistrial.

1925(a) Op. at 4-5.

      The trial court did not abuse its discretion. Here, unlike in Kelly, the

court knew of the impact the incident had on the jurors. The trial court held a

hearing, in which it learned that jurors felt intimidated by Lucas’s actions and

that they were not sure that they would be able to judge her credibility fairly

and impartially. Although they stated that they would be able to fairly render

a verdict, the jurors were concerned about Lucas’s presence in the courtroom,

and, as the trial court found, the jurors felt “unnerved and intimidated.” Id.

at 4-5.

      Further, the court did not err in finding less drastic alternatives were not

available. The jurors could not fairly and impartially judge the credibility of

Lucas. Such inability would have impacted Kennedy’s decision as to whether

to present her as a witness in his defense. Further, although most jurors stated

they could fairly and impartially render a verdict, their statements establish

that they were intimidated and nervous following the encounter. Due to this



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intimidation and nervousness, it was not an abuse of discretion to conclude

that they could not fairly render a verdict.

      Order affirmed.

Judge Pellegrini joins the Opinion.

Judge Olson files a Concurring Opinion.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 08/27/2019




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