J-S05024-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

FRANKIE WILLIE MAINES,

                            Appellant                No. 584 MDA 2015


                     Appeal from the Order March 27, 2015
                In the Court of Common Pleas of Centre County
              Criminal Division at No(s): CP-14-CR-0001399-2014


BEFORE: BENDER, P.J.E., SHOGAN, and PLATT,* JJ.

MEMORANDUM BY SHOGAN, J.:                              FILED MAY 02, 2016

       Appellant, Frankie Willie Maines, brings this interlocutory appeal from

the order of the Court of Common Pleas of Centre County that denied her

motion to bar retrial on double jeopardy grounds after the trial court granted

a mistrial. This case returns to us after we remanded to have the trial court

comply with Pa.R.Crim.P. 587(B) to clarify whether this Court has appellate

jurisdiction. We conclude that we have appellate jurisdiction and affirm.

       The trial court summarized the procedural history of this case as

follows:

             [Appellant] was charged with one count of Criminal
       Conspiracy to Commit Burglary (graded as a second degree
       felony); three counts of Criminal Conspiracy to Commit Criminal
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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       Trespass (graded as a second degree felony); two counts of
       Criminal Conspiracy to Commit Burglary (graded as a third
       degree felony); one count of Corruption of Minors (graded as a
       first degree misdemeanor); one count of Receiving Stolen
       Property (graded as a second degree misdemeanor); three
       counts of Criminal Conspiracy to Commit Theft (graded as
       second degree misdemeanors); and one count of Driving While
       Operating Privilege is Suspended or Revoked (graded as a
       summary offense). On December 8, 2014, [Appellant] selected
       a jury in this matter. [Appellant and the Commonwealth] filed
       pre-trial Motions in Limine, and a hearing was held on January 5,
       2015. [On January 6, 2015, the trial court issued an order
       pertaining to the motions in limine.1]

             Trial commenced on January 8, 2014. During [Appellant’s]
       cross-examination, the Commonwealth engaged in a line of
       questioning designed to bring out information regarding
       [Appellant’s] pending Driving Under Suspension charge and/or
       the status of her operating privileges, a violation of a ruling
       issued by this Court. [Appellant] moved for a mistrial, which this
       Court granted.

            [Appellant] filed the instant Motion[2] on January 29, 2015.
       A hearing was held on March 12, 2015.

Trial Court Opinion, 3/27/15, at 1-2 (footnotes added).


____________________________________________


1
   The trial court’s order of January 6, 2015, addressed the motions in limine
filed by both the Commonwealth and Appellant. Of interest in this appeal is
the granting of a motion in limine precluding the Commonwealth from any
mention or use of Appellant’s pending charge of the summary offense of
driving with a suspended license.
2
  Appellant’s motion was titled: “Motion to Bar Re-Trial/Motion to Dismiss
(Violation of Double Jeopardy Protections)/Motion for Judgment of Acquittal
After Discharge of Jury Without Agreeing Upon a Verdict Pursuant to
Pennsylvania Rules of Criminal Procedure 606(a)(3) Nunc Pro Tunc/Motion
for Judgment of Acquittal After Discharge of Jury Without Agreeing Upon a
Verdict Pursuant to Pennsylvania Rules of Criminal Procedure 608(a)(2)
Nunc Pro Tunc.”



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        On March 27, 2015, the trial court denied Appellant’s motion in a

single order and accompanying opinion.            This appeal followed.        Both

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

        On March 16, 2016, this Court filed a judgment order that remanded

this matter to have the trial court comply with Pa.R.Crim.P. 587(B), and to

file a supplemental Pa.R.A.P. 1925(a) opinion.3 On April 1, 2016, the trial

court filed an order in accordance with our directive and specifically

determined “that [Appellant’s] Motion to Dismiss is not frivolous.” Order,

4/1/16, at 1 (emphasis added). In addition, the April 1, 2016 order advised

Appellant of her appellate rights. Also on April 1, 2016, the trial court filed a

supplemental Pa.R.A.P. 1925(a) opinion. We are satisfied that the trial court

has fulfilled our prior mandate to comply with Pa.R.Crim.P. 587(B), and we

have jurisdiction to entertain Appellant’s appeal.     See Commonwealth v.
____________________________________________


3
    Specifically, our judgment order directed the following:

               Here, our review of the record reveals 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 Pa.R.Crim.P. 587(B)(4) through (6).
        Because the trial court failed to fully comply with Pa.R.Crim.P.
        587(B), we are unable to determine whether we may exercise
        jurisdiction over this appeal. Therefore, we remand this matter
        to the trial court for compliance with Pa.R.Crim.P. 587(B) and
        preparation of a supplemental Pa.R.A.P. 1925(a) opinion within
        sixty days of the date of this judgment order. Upon the filing of
        a supplemental opinion, the certified record is to be promptly
        returned to this Court.

Judgment Order, 3/16/16, at 2.



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Taylor, 120 A.3d 1017, 1021 (Pa. Super. 2015) (stating “orders denying a

defendant’s motion to dismiss on double jeopardy grounds are appealable as

collateral orders, so long as the motion is not found to be frivolous”).

       Appellant presents the following issue for our review:

       I. Should re-Trial be barred under the Fifth Amendment of the
       United States Constitution and Article I, Section 10 of the
       Pennsylvania Constitution because the prosecution intentionally
       and deliberately violated a pre-Trial ruling on a Motion in Limine,
       attempted to elicit testimony that Appellant’s driving privileges
       were under suspension at the time of the alleged incident when
       she was driving, and provoked Appellant into moving for a
       mistrial, which the Trial Court granted?

Appellant’s Brief at 4 (verbatim).

       In her sole issue, Appellant argues that the trial court erred in denying

her motion to bar her retrial. Appellant’s Brief at 11-20. Appellant contends

that because her first trial ended in mistrial after the prosecutor asked

Appellant a question during cross-examination, which was precluded by the

granting of a motion in limine, a retrial would be a violation of her rights

against double jeopardy.

       Appellant’s issue invokes the protections afforded by the Double

Jeopardy Clause of the Fifth Amendment to the United States Constitution as

well as Article I, Section 10 of the Pennsylvania Constitution.4 As such, our

scope and standard of review are as follows:

____________________________________________


4
  The Double Jeopardy Clause of the Fifth Amendment provides that no
person shall “be subject for the same offense to be twice put in jeopardy of
(Footnote Continued Next Page)


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      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.

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

omitted).

      “The Double Jeopardy Clause of the Fifth Amendment protects a

criminal defendant from repeated prosecutions for the same offense.”

Oregon v. Kennedy, 456 U.S. 667, 679 (1982).               The United States

Supreme Court has long explained that this policy of finality in criminal

proceedings is based upon the concept that:

      [t]he State with all its resources and power should not be
      allowed to make repeated attempts to convict an individual for
      an alleged offense thereby subjecting him to embarrassment,
      expense and ordeal and compelling him to live in a continuing
      state of anxiety and insecurity, as well as enhancing the
      possibility that even though innocent he may be found guilty.

Green v. United States, 355 U.S. 184, 187 (1957).

      The Pennsylvania Supreme Court has explained that the Pennsylvania

Constitution provides parallel protections:

      [T]he double jeopardy clause of the Pennsylvania Constitution
      prohibits retrial of a defendant not only when prosecutorial
      misconduct is intended to provoke the defendant into moving for
      a mistrial, but also when the conduct of the prosecutor is

                       _______________________
(Footnote Continued)

life or limb.” Similarly, Article I, Section 10 of the Pennsylvania Constitution
states in relevant part, “No person shall, for the same offense, be twice put
in jeopardy of life or limb[.]”



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       intentionally undertaken to prejudice the defendant to the point
       of the denial of a fair trial.

Commonwealth v. Smith, 615 A.2d 321, 325 (Pa. 1992).5

       As a general rule, when an event prejudicial to the defendant occurs

during trial, a defendant may move for a mistrial at the time the prejudicial

event is disclosed.       Commonwealth v. Kelly, 797 A.2d 925, 936 (Pa.

Super. 2002). Indeed, it has long been recognized that “[t]he 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.” Commonwealth v.

Stewart, 317 A.2d 616, 619 (Pa. 1974).

       “The double jeopardy proscription does not mean . . . that the

government is barred from retrying an accused every time an earlier

proceeding is terminated prior to judgment.”      Commonwealth v. Clark,

430 A.2d 655, 659 (Pa. Super. 1981) (citation omitted). Likewise, “[w]hen

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5
  In Commonwealth v. Hockenbury, 701 A.2d 1334 (Pa. 1997), the
Pennsylvania Supreme Court noted that Smith “supports the proposition
that the double jeopardy clause of the Pennsylvania Constitution provides
broader protections than provided by the Double Jeopardy Clause of the
United States Constitution . . . .” Hockenbury, 701 A.2d at 1339 n.9.
However, the Hockenbury Court clarified that Smith involved a case where
“the defendant’s first trial was rife with intentional and egregious
prosecutorial misconduct.” Id. at 1339. The Hockenbury Court explained
that because it was not clear that the defendant would be protected under
the Fifth Amendment, the Court in Smith determined “that in that particular
instance the [C]onstitution of our Commonwealth provided broader
protection . . . .” Id. at 1339.



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a mistrial is granted on the motion of a defendant, the principles of double

jeopardy do not bar a subsequent prosecution even though the motion is

prompted by prosecutorial error.” Commonwealth v. Miele, 446 A.2d 298,

299 (Pa. Super. 1982). “However, when the motion of the defendant for a

mistrial is compelled by intentional error by the prosecutor aimed at inducing

defendant to move for a mistrial and, the prosecution is thereby afforded

another possibly more favorable opportunity to convict the defendant, the

double jeopardy clause will bar a retrial.” Id.

      Indeed, the United States Supreme Court has recognized the following

relevant exception to the rule against double jeopardy:

      [T]he circumstances under which such a defendant may invoke
      the bar of double jeopardy in a second effort to try him are
      limited to those cases in which the conduct giving rise to the
      successful motion for a mistrial was intended to provoke the
      defendant into moving for a mistrial.

Kennedy, 456 U.S. at 679.

      Furthermore, as our Supreme Court stated,

      The United States Supreme Court has enunciated principally two
      types of prosecutorial overreaching.        First there is the
      prosecutorial misconduct which is designed to provoke a mistrial
      in order to secure a second, perhaps more favorable, opportunity
      to convict the defendant. Second, there is the prosecutorial
      misconduct undertaken in bad faith to prejudice or harass the
      defendant. In contrast to prosecutorial error, overreaching is
      not an inevitable part of the trial process and cannot be
      condoned. It signals the breakdown of the integrity of the
      judicial proceeding, and presents the type of prosecutorial tactic
      which the double jeopardy clause was designed to protect
      against.




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

omitted).

     In addition, this Court has also recognized the following:

     Prosecutorial misconduct includes actions intentionally designed
     to provoke the defendant into moving for a mistrial or conduct
     by the prosecution intentionally undertaken to prejudice the
     defendant to the point where he has been denied a fair trial.
     The double jeopardy clause of the Pennsylvania Constitution
     prohibits retrial of a defendant subjected to the kind of
     prosecutorial misconduct intended to subvert a defendant’s
     constitutional rights. However, Smith did not create a per se
     bar to retrial in all cases of intentional prosecutorial
     overreaching. Rather, the Smith Court primarily was concerned
     with prosecution tactics, which actually were designed to
     demean or subvert the truth seeking process.               The Smith
     standard precludes retrial where the prosecutor’s conduct
     evidences intent to so prejudice the defendant as to deny him a
     fair trial. A fair trial, of course is not a perfect trial. Errors can
     and do occur. That is why our judicial system provides for
     appellate review to rectify such errors. However, where the
     prosecutor’s conduct changes from mere error to intentionally
     subverting the court process, then a fair trial is denied. A fair
     trial is not simply a lofty goal, it is a constitutional mandate, . . .
     [and w]here that constitutional mandate is ignored by the
     Commonwealth, we cannot simply turn a blind eye and give the
     Commonwealth another opportunity.

Commonwealth v. Chmiel, 777 A.2d 459, 463-464 (Pa. Super. 2001)

(citations and quotation marks omitted).

     Our review of the certified record reveals that on December 31, 2014,

Appellant filed a motion in limine seeking to preclude, among other items,

testimony or evidence pertaining to Appellant’s summary offense of driving

under suspension or the status of her operating privileges. Motion in Limine,

12/31/14, at 5-6. In an order dated January 6, 2015, the trial court granted


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Appellant’s motion in limine.     Specifically, the trial court’s order states,

“[Appellant’s] Motion in Limine (Alleged Criminal Record) is hereby GRANTED

. . .” Order, 1/6/15, at 1.

      In addition, our review of the certified record reflects the following

transpired during the prosecution’s cross-examination of Appellant:

      [ASSISTANT DISTRICT ATTORNEY]: All right. Now, . . . I’ve got
      a copy of your certified driver’s record here. It looks like you got
      your driver’s license back in February – I think it was February
      19, 1992. Does that sound about right?

      [APPELLANT]: You mean, got them for the first time?

      [ASSISTANT DISTRICT ATTORNEY]:           For the first time, that’s
      right.

      [APPELLANT]: Yes.

      [ASSISTANT DISTRICT ATTORNEY]: So, you’ve been driving for
      a while, right?

      [APPELLANT]: Yes.

      [ASSISTANT DISTRICT ATTORNEY]: All right. Did you have a
      driver’s license --

            [DEFENSE COUNSEL]: Objection, Your Honor.

            THE COURT: Sustained.

            [DEFENSE COUNSEL]: May we approach?

            THE COURT: You may. We’ll have a sidebar if you
            want to stretch.

N.T., 1/8/15, at 212-213.

      The record further reveals that, at the sidebar immediately after

defense counsel objected, the prosecutor explained that he initiated the line

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of questioning when “the trooper leaned over and . . . said look, you need to

ask her about her driver’s license.” N.T., 1/8/15, at 213. The prosecutor

then stated, “[I]t’s a mistake. It’s a mistake. I shouldn’t have asked the

question.”    Id.    The trial court declared a mistrial upon the motion of

defense counsel. Id. at 214.

      At the subsequent hearing to address Appellant’s motion to bar retrial,

the prosecutor made the following apologetic statement:

            This was my first trial ever. And I was very nervous. And
      I am professionally and personally mortified and embarrassed to
      even be in this situation right now. And it’s embarrassing to me,
      I shouldn’t even be in this situation. I apologize to everybody
      involved. I’m embarrassed to even have the law clerks, the
      Judge, the defense counsel, the court reporters have seen [sic]
      this. I certainly did not intend for this to be a mistrial. This
      being my first trial ever, I actually couldn’t even really tell if it
      was going [Appellant’s] way or not.

N.T., 3/12/15, at 8-9.

      The    trial   court   found   that   the   prosecutor’s   questioning   “was

attributable to sheer inadvertence” and was not an intentional effort to

procure a mistrial.    Trial Court Opinion, 3/27/15, at 5. The trial court set

forth the following reasoning in support of its decision to deny Appellant’s

motion to bar retrial:

            In the instant case, the Commonwealth began a line of
      questioning designed to bring out information regarding
      [Appellant’s] pending Driving Under Suspension charge and/or
      the status of her operating privileges, a violation of a pre-trial
      ruling issued by this Court. Immediately after the prosecutor
      started to ask [Appellant] a question regarding the status of her
      operating privileges, counsel for [Appellant] properly objected


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      and requested a mistrial.       The Court granted [Appellant’s]
      request.

            However, the Court does not find this to rise to the level of
      misconduct that would bar retrial.          The prosecutor for the
      Commonwealth indicated at sidebar immediately after the
      objection that he had asked about the status of [Appellant’s]
      license at the prompting of the trooper seated next to him, and
      acknowledged it was a mistake for him to do so. At argument
      on the instant motions, the prosecutor for the Commonwealth
      indicated this was his first jury trial and repeatedly apologized to
      the Court and [Appellant], indicating he had not intentionally or
      maliciously violated the pretrial Order. He also indicated to the
      Court he was unable to gauge the jury’s inclination to either
      convict or acquit [Appellant], as it was only his first jury trial.
      The Court is satisfied the Commonwealth’s violation of this
      Court’s pretrial ruling was attributable to sheer inadvertence,
      rather than fear that the jury was likely to acquit [Appellant],
      and thus does not bar retrial.

Trial Court Opinion, 3/27/15, at 4-5. We agree with the trial court’s finding

that the prosecutor’s error was unintentional, and we discern no error on the

part of the trial court in denying Appellant’s motion to bar retrial pursuant to

double jeopardy grounds. Accordingly, we affirm the order of the trial court.

      Order affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/2/2016




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