J-S89043-16

                                  2017 PA Super 95

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                        v.

DANIELLE BALDWIN

                             Appellant                No. 2719 EDA 2015


                      Appeal from the Order August 3, 2015
                  in the Court of Common Pleas of Philadelphia
                         Municipal Court - Traffic Division
                       at No(s): MC-51-CR-0035622-2014

BEFORE: SHOGAN, MOULTON, and FITZGERALD,* JJ.

OPINION BY FITZGERALD, J.:                             FILED APRIL 10, 2017

        Appellant, Danielle Baldwin, appeals from the order of the Philadelphia

County Court of Common Pleas reversing the judgment of acquittal entered

in the Philadelphia Municipal Court and remanding the case to the Municipal

Court for a new trial. Appellant contends that double jeopardy prohibits a

new trial. We affirm.

        On the evening of October 16, 2014, Appellant allegedly pointed a gun

at her neighbor, Jamia Williams. Williams contacted the police, who arrested

Appellant, searched her residence and recovered a firearm.       Williams was

arrested and charged with possession of an instrument of crime,1 prohibited




*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 907.
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offensive weapons,2 simple assault,3 reckless endangerment4 and terroristic

threats.5

        Appellant filed a motion in the Municipal Court to suppress the firearm.

On February 11, 2015, following an evidentiary hearing, the Municipal Court

granted the motion to suppress.         The court determined that Appellant

consented to the search of her residence following her arrest, but her

consent was involuntary because the arresting officers failed to give her

Miranda6 warnings. N.T., 2/11/15, at 23.

        Trial commenced immediately after the suppression ruling.        Before

testimony began, the court stated: “Everyone understands the consent is

illegal and the fruits are thrown out . . . . All witnesses are sequestered. If

anyone needs to talk to their witnesses because [of] what just happened in

the motion, I will suspend [the] sequestration order for a [minute] while any

witness is spoken to.” Id. at 24.

        Williams, the Commonwealth’s first trial witness, testified that in the

early evening of October 16, 2014, she was standing outside of her house on

the street, while Appellant was standing in her house across the street in

2
    18 Pa.C.S. § 908.
3
    18 Pa.C.S. § 2701.
4
    18 Pa.C.S. § 2705.
5
    18 Pa.C.S. § 2706.
6
    Miranda v. Arizona, 384 U.S. 436 (1966).



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front of an open window.      Id. at 25-27.    Williams and Appellant were

arguing about the recent arrest of Williams’ baby’s father.    Id. at 25-26.

During the argument, Appellant disappeared from her window but returned

moments later and pointed a gun at Williams. Id. at 28.7

     Defense counsel objected to Williams’ testimony about the gun and

moved for a mistrial. Id. at 28-29. The court sustained defense counsel’s

objection and granted a mistrial.    Id. at 29-30.    Defense counsel then

requested a “judgment of acquittal” based on “prosecutorial misconduct.”

Id. at 30.   The court responded: “The motion is granted and a mistrial is

granted. Jeopardy has attached, and so at this point . . . this case is done.

The motion for judgment of acquittal is granted.” Id. at 33.

     The Commonwealth appealed the judgment of acquittal to the Court of

Common Pleas on March 13, 2015.           On August 3, 2015, the Court of

Common Pleas entered an order reversing the judgment of acquittal and

remanding the case to the Municipal Court for trial. The Court of Common

Pleas determined that Appellant’s double jeopardy rights were not violated,

because the Municipal Court’s ruling “did not constitute an acquittal[,] nor

was there prosecutorial misconduct.” Pa.R.A.P. 1925 Op., 3/9/16, at 5.



7
  Significantly, this incident took place before the police arrived on the
scene. N.T. at 8 (Officer Rios’ testimony during suppression hearing that
police responded to radio call of “a person with a weapon” and “met the
complainant at the corner[,] who stated the female inside the house pointed
a shotgun at her”).



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     Appellant timely appealed to this Court on September 2, 2015. Both

Appellant and the Court of Common Pleas complied with Pa.R.A.P. 1925.

     Appellant raises four issues in this appeal:

        1. Double jeopardy prohibits a new trial in this case; the
        [C]ommon [P]leas [C]ourt erred in allowing the
        [C]ommonwealth to appeal from a judgment of acquittal
        because the government is categorically prohibited from
        appealing judgments of acquittal, even if the lower trial
        court was egregiously wrong to enter the judgment of
        acquittal.

        2. In the alternative event that there are any
        circumstances under which a government can so appeal,
        the judgment of acquittal here was entered by the trial
        judge and is unappealable.

        3. In the alternative event that the appellate courts do not
        so hold, [the] [C]ommon [P]leas [Court] erred here (and
        [the M]unicipal [C]ourt ruled correctly, and retrial is
        prohibited no matter how the [M]unicipal [C]ourt judgment
        is described) because double jeopardy prohibits retrial
        after a mistrial caused by prosecutorial misconduct:
        following the suppression ruling, the [C]ommonwealth
        intentionally elicited testimony about the gun that the
        [M]unicipal [C]ourt had suppressed.

        4. In the alternative event that the appellate courts do not
        so hold, [the C]ommon [P]leas [Court] erred here (and
        [the M]unicipal [C]ourt ruled correctly, and retrial is
        prohibited no matter how the [M]unicipal [C]ourt judgment
        is described) because double jeopardy prohibits retrial
        after a mistrial caused by prosecutorial misconduct: even if
        the [M]unicipal [C]ourt judge erred in her understanding of
        the scope of suppression rulings, once she ordered the
        [C]ommonwealth to inform all of its witnesses about the
        suppression ruling, and warned the [C]ommonwealth that
        jeopardy was about to attach, the [C]ommonwealth was
        bound by her rulings (even if erroneous) absent a pre–trial
        appeal. Because the [C]ommonwealth could have appealed
        her orders, and because her warnings about jeopardy
        attaching made sense only if she were warning against


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         prosecutorial misconduct, and because her inclusion of all
         witnesses (including civilians) could only have anticipated
         the non-police testimony the [C]ommonwealth thinks is
         not normally covered by suppression rulings, the
         [C]ommonwealth’s choice not to warn the civilian
         witness—and the [C]ommonwealth’s eliciting of prohibited
         testimony (even if erroneously prohibited) was an
         intentional act by the [C]ommonwealth in violation of the
         [M]unicipal [C]ourt order, was prosecutorial misconduct
         causing the mistrial, and therefore [was] prohibited[,]
         placing the defendant again in jeopardy.

Appellant’s Brief at 2-3.

      We   address    the    first   two    issues   together,   because   they   are

interrelated.    Appellant     asserts     that   double   jeopardy   prohibits   the

Commonwealth from appealing the judgment of acquittal entered by the

Municipal Court. We disagree. Appellant’s argument rests on the premise

that the Municipal Court entered a judgment of acquittal. We disagree and

conclude that the Municipal Court declared a mistrial instead of entering a

judgment of acquittal.

      “[T]he question of whether a defendant’s constitutional right against

double jeopardy [would be infringed by a successive prosecution] is a

question of law. Hence, [when reviewing this issue,] our scope of review is

plenary and our standard of review is de novo.”                  Commonwealth v.

Hallman, 67 A.3d 1256, 1260 (Pa. Super. 2013) (citation omitted).

      Under the Double Jeopardy Clauses of the United States and

Pennsylvania Constitutions, as well as under the Pennsylvania Crimes Code,

a second prosecution for the same offense after acquittal is prohibited. See



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U.S. Const. Amend. V; Pa. Const. Art. I, § 10; 18 Pa.C.S. § 109(1). This

rule is confined to cases where the prosecution’s failure to meet its burden is

clear, and a second trial would merely afford the prosecution another

opportunity to supply evidence that it failed to submit during the first trial.

See Commonwealth v. Vogel, 461 A.2d 604, 610 (Pa. 1983) (citing Burks

v. United States, 437 U.S. 1, 17 (1978)). “This prohibition . . . prevents

the State from honing its trial strategies and perfecting its evidence through

successive attempts at conviction.     Repeated prosecutorial sallies would

unfairly burden the defendant and create a risk of conviction through sheer

governmental perseverance.”       Id. (citing, inter alia, Green v. United

States, 355 U.S. 184, 187-88 (1957)).

      Double jeopardy bars an appeal by the Commonwealth from an

acquittal, whether based on a verdict of not guilty or a ruling by the court

that the evidence was insufficient to convict.      See Commonwealth v.

Maurizio, 437 A.2d 1195, 1196 (Pa. 1981); see also United States v.

Scott, 437 U.S. 82, 91 (1978).

      Importantly, “the form of the judge’s action is not controlling.”

Commonwealth v. McDonough, 621 A.2d 569, 573 (Pa. 1993) (citations

omitted).   A defendant is “acquitted” only when the “ruling of the judge,

whatever its label, actually represents a resolution [in the defendant’s

favor], correct or not, of some or all of the factual elements of the

offense charged.” Id. (citation omitted).



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      Here, the Court of Common Pleas correctly reasoned that the Municipal

Court entered a mistrial instead of a “judgment of acquittal:”

         It could not be clearer that [the Municipal Court’s] ruling in
         the instant matter did not involve a resolution of the facts.
         Indeed, the first witness had only just begun testifying
         when the judgment of acquittal was declared. Instead,
         [the Court’s] ruling was in response to what [it] perceived
         as a violation of [its] suppression order. This situation had
         nothing to do with culpability or factual elements of the
         offense     charged,      the   touchstone    of     acquittal
         determinations.

Pa.R.A.P. 1925(a) Op. at 4 (citations omitted). Therefore, we conclude that

the Commonwealth had the right to appeal the Municipal Court’s decision to

the Court of Common Pleas.

      We next address Appellant’s third and fourth issues together.

Appellant argues that even if the Municipal Court entered a mistrial, double

jeopardy prohibits a new trial because the mistrial was the result of

prosecutorial misconduct. We disagree.

      Pa.R.Crim.P.   605   provides   in   pertinent   part:   “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.”

Pa.R.Crim.P. 605(B). Our standard of review of an order granting a mistrial

is as follows:

            In criminal trials, declaration of a mistrial serves to
         eliminate the negative effect wrought upon a defendant
         when prejudicial elements are injected into the case or
         otherwise discovered at trial. By nullifying the tainted
         process of the former trial and allowing a new trial to
         convene, declaration of a mistrial serves not only the


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         defendant’s interest but, equally important, the public’s
         interest in fair trials designed to end in just judgments.
         Accordingly, the trial court is vested with discretion to
         grant a mistrial whenever the alleged prejudicial event
         may reasonably be said to deprive the defendant of a fair
         and impartial trial. In making its determination, the court
         must discern whether misconduct or prejudicial error
         actually occurred, and if so, . . . assess the degree of any
         resulting prejudice. Our review of the resulting order is
         constrained to determining whether the court abused its
         discretion. Judicial discretion requires action in conformity
         with the law on facts and circumstances before the trial
         court after hearing and consideration. Consequently, the
         court abuses its discretion if, in resolving the issue for
         decision, it misapplies the law or exercises its discretion in
         a manner lacking reason.

Commonwealth v. Jaynes, 135 A.3d 606, 615 (Pa. Super. 2016), appeal

denied, 145 A.3d 724 (Pa. 2016) (citation omitted).

      Further, the 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 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).

      In this case, the Court of Common Pleas held that the Municipal Court

improperly granted a mistrial, and therefore the Commonwealth was entitled

to retry the case:

         No [prosecutorial] misconduct occurred here. [The
         Municipal Court] suppressed the confiscation of the firearm
         and any fruits thereof. But an observation of the firearm
         by a civilian prior to police involvement in no way
         implicates the search and seizure provisions of our


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        Constitutions. While it is true that the judge invited the
        attorneys to talk to the witnesses in light of her
        suppression order, and while it would have been prudent
        for the Assistant District Attorney to see her invitation as a
        yellow flag, the bottom line is that the judge never ordered
        that the observation of the firearm by a civilian could not
        be elicited at trial. As it is perplexing to this court why she
        had this further prohibition in mind when she ordered
        suppression, it is easy to see how the prosecutor would not
        have given this possibility a second thought—or even a
        first one. This certainly was not prosecutorial misconduct.
        And the Commonwealth is certainly entitled to retry the
        matter.

Pa.R.A.P. 1925(a) Op. at 5.

     We agree with this analysis. When the suppression court determines

that the defendant’s consent to a search is involuntary, the remedy is to

suppress evidence obtained as a result of the invalid consent.            See

Commonwealth v. Moyer, 954 A.2d 659, 670 (Pa. Super. 2008) (en banc)

(“Since Appellee’s consent to search his person and car was tainted by a

detention that was not supported by the existence of reasonable suspicion,

the suppression court properly suppressed the fruits of that search”). The

suppression order does not extend to evidence that precedes the

involuntary consent.

     Here, Williams testified that Appellant pointed a gun at her.        This

incident took place before the police arrived—indeed, this incident triggered

Williams’ report to the police—and was not the product of Appellant’s

consent to search her residence. Thus, Williams’ testimony fell outside the

scope of the Municipal Court’s suppression order, which only suppressed



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evidence obtained as a result of her invalid consent.         Accordingly, we

conclude that (1) the Commonwealth did not commit any misconduct in

eliciting Williams’ testimony, (2) the Municipal Court abused its discretion in

granting defense counsel’s motion for a mistrial on the basis of this

testimony,8 and (3) the Commonwealth is entitled to a new trial against

Appellant in the Municipal Court.

      Order affirmed.     Case remanded for proceedings consistent with this

opinion. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/10/2017

8
  The fact that defense counsel moved for a mistrial is significant. Had the
Municipal Court sua sponte declared a mistrial without manifest necessity,
double jeopardy would have precluded further prosecution of Appellant. See
Commonwealth v. Kelly, 797 A.2d 925, 942 (Pa. Super. 2002)
(notwithstanding trial court’s frustration with prosecutor’s conduct,
“[m]anifest necessity for the declaration of a mistrial sua sponte by the trial
court simply was not present;” thus, “further prosecution of [the defendants]
would violate . . . double jeopardy protections”).

      Conversely, “the law [ordinarily] permits retrial when the defendant
successfully moves for mistrial” unless “the prosecution [has] engage[d] in
certain forms of intentional misconduct.” Commonwealth v. Graham, 109
A.3d 733, 736 (Pa. Super.), appeal denied, 126 A.3d 1282 (Pa. 2015).

      In this case, defense counsel successfully moved for a mistrial, but the
Commonwealth did not engage in any misconduct.            Therefore, double
jeopardy does not prevent further prosecution of Appellant.



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