J-S44017-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

DALE HODGES

                         Appellant                    No. 1746 WDA 2014


        Appeal from the Judgment of Sentence September 29, 2014
               In the Court of Common Pleas of Erie County
           Criminal Division at No(s): CP-25-CR-0002482-2012
                         CP-25-CR-0002490-2012


BEFORE: LAZARUS, J., STABILE, J., and JENKINS, J.

CONCURRING STATEMENT BY LAZARUS, J.:            FILED SEPTEMBER 24, 2015

      I concur in the result. However, in my opinion, the majority’s focus on

whether Hodges’ motion for a mistrial was untimely and resulted in waiver is

misplaced.

      Pursuant to Pennsylvania Rule of Criminal Procedure 605, “[w]hen 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). Indeed, the remedy of a mistrial “is an

extreme one, and is required only when an incident is of such a nature that

its unavoidable effect is to deprive the appellant of a fair and impartial trial.

Commonwealth v. Johnson, 719 A.2d 778, 787 (Pa. Super. 1998) (en

banc) (citation omitted).
J-S44017-15



      Whether    the   jury   could   adequately   hear   the   testimony   of   a

complaining witness gives rise to a question regarding whether Hodges was

denied a fair and impartial trial, with a unanimous verdict.                 See

Commonwealth v. Brown, 332 A.2d 828, 831-32 (Pa. Super. 1974)

(where juror’s responses were inconclusive regarding whether he heard all

testimony, hearing impairment was significant enough to prevent fair,

impartial trial and mistrial was required). Thus, instantly, the trial court was

obligated to consider whether the jury could render a fair verdict. Had the

trial court determined that the jury’s inability to hear testimony operated to

deny Hodges a fair tribunal, the trial court would have been required to

declare a mistrial sua sponte. Johnson, supra.

      Ultimately, in my view, defense counsel’s delay in requesting a mistrial

should not be dispositive regarding whether the trial court appropriately

refused to grant a mistrial since it was the trial court’s obligation to ensure a

fair tribunal. However, as the record in this matter does not indicate clear

error on which to reverse the trial court for failure to order a mistrial sua

sponte, I concur in the majority’s result.




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