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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                            Appellee        :
                                            :
                    v.                      :
                                            :
SHAWN EDWARD LEE,                           :
                                            :
                            Appellant       :     No. 464 WDA 2015

                    Appeal from the Order February 13, 2015
                In the Court of Common Pleas of Mercer County
               Criminal Division No(s).: CP-43-CR-0000967-2014

BEFORE: BOWES, DONOHUE, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                    FILED NOVEMBER 23, 2015

        Appellant, Shawn Edward Lee, appeals from the order entered in the

Mercer County Court of Common Pleas that denied his motion to dismiss

based on double jeopardy. Appellant contends the court erred by sua sponte

granting a mistrial absent a finding of manifest necessity.    We remand to

have the trial court comply with Pa.R.Crim.P. 587(B).

        We need not discuss the facts underlying Appellant’s alleged offenses

of, inter alia, murder of the second degree,1 and murder of the third

degree.2 On the third day of a jury trial, during the Commonwealth’s case-


*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 2502(b).
2
    18 Pa.C.S. § 2502(c).
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in-chief,    the   following   exchange   transpired   between   Colleen   Pritts,

Appellant’s girlfriend, and the Commonwealth:

            [District attorney:] What type of a relationship did you
            have with [Appellant]?

            A He’s my boyfriend.

            Q For how long was he your boyfriend on May 13, 2013?

            A Four years at that point. We had been together
            since he got out of prison in –

            [Appellant’s counsel:] Your Honor --

            [Trial court:] Granted. Ladies and Gentlemen, I have had
            to grant a mistrial. It means we have to start and do this
            over again. You will be excused from further service. We’ll
            clear the courtroom and I will talk to you. Please step
            down.

N.T. Trial, 2/13/15, at 63-64. The transcript does not reflect any objection

or other communication by either counsel.

      After the jury was dismissed and the court spoke with the jury, the

following discussion occurred:

            The court: Please be seated. [Appellant’s counsel], do you
            wish to put things on the record?

            [Appellant’s counsel]: Yes, Your Honor. For the record,
            before the Court came in we did have the court reporter
            read back the testimony from the time that Ms. Pritts was
            asked the last question and responded.       The record
            indicates that I said, “Your Honor”; the Court said,
            “granted”, and there was no other discussion and the
            Court cleared the room.

            The court: There was an order entered before I did that,
            clearly.



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J.S59033/15

       [Appellant’s counsel] I’m sorry, Your Honor?

       The court: I entered an order before I cleared the
       courtroom. There has to be an order granting the mistrial.

       [Appellant’s counsel]: We didn’t get that far on the
       transcript, apparently, Your Honor.

          At any rate, the defense would cite -- bring the Court’s
       attention to Rule 605(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.

          We note for the record that when Ms. Pritts gave her
       answer to [the district attorney’s] question I stood up and
       said, “Your Honor”. It was my intention, as it normally is
       when these things arise, to request a sidebar or a recess
       to discuss or consider our options. I never got to do so
       because the Court stated “granted”, and in our opinion sua
       sponte declared a mistrial and cleared the courtroom.

          We would note that there was no discussion or
       consideration of any less drastic options. It is our position
       that the [Appellant] is prejudiced. In the opinion of the
       defense team the case was going very well for the
       defense. We have now been deprived of our jury. The
       Commonwealth now knows essentially all of the defense
       strategy, and one key Commonwealth’s witness, as the
       Court is aware, is missing and currently has not been
       found.

          It is our position that Ms. Pritts’ statement could have
       been addressed with a precautionary instruction, as the
       Court had previously suggested, as to the testimony of Mr.
       Huey where he indicated he had been continuously
       incarcerated since his arrest but had spoken to
       [Appellant]. Therefore, we would like to place on the
       record our objection to the Court sua sponte the
       declaration of a mistrial, and we would ask that the
       Court order that [Appellant] be barred from being
       retried for reasons of double jeopardy.



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          We cite to the Court the Commonwealth versus Diehl,
       615 A.2d 690, a 1992 Pennsylvania Supreme Court case
       that held the trial court erred in awarding the appellant
       retried, where doing so impermissibly placed him again in
       jeopardy after the Court declared a mistrial sua sponte. It
       is well settled the declaration of a mistrial sua sponte by
       the trial court is proper only for reasons of manifest
       necessity. If there is any doubt as to the presence of
       manifest necessity to support the trial court’s declaration
       of a mistrial, such doubt is to be resolved in favor of the
       accused, and double jeopardy shall prohibit a retrial.

          We have a number of other cases, Judge, but we
       believe that that’s the one that’s on point. We would
       therefore ask the Court that Mr. Lee not be retried.

          [The court]: The Court will note for the record several
       things:

          Number one, Ms. Pritts testified she saw him when he
       got out of prison. That was diametrically different than
       what Mr. Huey testified to. Mr. Huey’s implication was that
       he was in jail. Clearly this was not—at that point in time
       the Court is faced with manifest necessity because if you
       don’t declare a mistrial [Appellant] has an automatic right
       to a new trial for ineffective assistance of counsel. You
       would be per se ineffective. The courts clearly have shown
       that this is not something to be cured by a cautionary
       instruction.

          Two, when I said “granted”, I didn’t say anything other
       than that. You did not seek to clarify. It was done by a
       waiver on your part, clearly.

          I’ll enter this order:

         AND NOW, 13th day of February, 2015, IT IS HEREBY
       ORDERED [Appellant’s] Motion to Dismiss pursuant to a
       double jeopardy violation is DENIED.

          By the Court, line for signature.

          We’ll look to June probably to try this. You’ve got
       Wilder in April and the Grove City murder case in May.


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N.T. Post-Trial Hr’g, 2/13/15, at 2-6 (emphases added).             The district

attorney said nothing.

        The court’s order was docketed on February 17, 2015, and Appellant

timely appealed on March 16, 2015. On March 17, 2015,3 the court ordered

Appellant to file a Pa.R.A.P. 1925(b) statement prior to March 31, 2015.4

Appellant filed his Rule 1925(b) statement on March 31, 2015, and the court

filed a responsive opinion.

        Appellant raises the following issue:

           Whether the trial court erred when the trial court denied
           Appellant’s motion to dismiss and to bar retrial based upon
           a double jeopardy violation, in contravention of state
           and/or federal constitutional safeguards, when the trial
           court declared a mistrial sua sponte, which declaration was
           not supported by manifest necessity?

Appellant’s Brief at 4.

        Appellant contends the trial court failed to consider any alternatives to

a mistrial before declaring a mistrial. He points out that the Commonwealth

did not deliberately elicit Pritts’s statement.     Appellant maintains that a

cautionary instruction would have cured any prejudice from her comment.

He opines the trial was going favorably for him prior to the court’s order.

3
    The order was dated March 16, 2015.
4
  We note the court’s order contravenes Rule 1925(b)(2), which states “The
judge shall allow the appellant at least 21 days from the date of the order’s
entry on the docket for the filing and service of the” Rule 1925(b)
statement. Pa.R.A.P. 1925(b)(2) (emphasis added).




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Appellant asserts the Commonwealth has knowledge of his entire defense

strategy and additional time to locate a witness who was missing at the time

of trial. We remand as set forth below.

      As a prefatory matter, we examine whether we have jurisdiction over

this appeal.   See Commonwealth v. Taylor, 120 A.3d 1017, 1021 (Pa.

Super. 2015). The Taylor Court, faced with a similar situation, initially held

that it could not exercise appellate jurisdiction under Pa.R.A.P. 311(a)(6), as

the defendant did not appeal from an order granting a new trial. See id.

The Taylor Court then observed the following:

            We, nonetheless, may be able to exert jurisdiction over
         this appeal to the extent the order denying [the
         defendant’s] pretrial motion to dismiss on double jeopardy
         grounds qualifies as a collateral order under Pa.R.A.P. 313.
         Rule 313 provides in part:

               A collateral order is an order separable from and
               collateral to the main cause of action where the
               right involved is too important to be denied
               review and the question presented is such that
               if review is postponed until final judgment in the
               case, the claim will be irreparably lost.

         Pa.R.A.P. 313(b). The comment to Rule 313 specifically
         cites as an example of a collateral order an order denying
         a pre-trial motion to dismiss on double jeopardy grounds.
         Indeed, our Supreme Court has held that 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. See Commonwealth v.
         Brady, 510 Pa. 336, 508 A.2d 286, 291 (1986)
         (concluding “appeal from the denial of a motion to dismiss
         on double jeopardy grounds should not be permitted where
         the hearing court has considered the motion and made
         written findings that the motion is frivolous. Absent such a



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       finding, an appeal may be taken from the denial of the
       motion.”) . . . .

          Years after Brady, in 2013, the Pennsylvania Rules of
       Criminal Procedure were amended to codify the common
       law framework for motions to dismiss on double jeopardy
       grounds. In particular, effective July 4, 2013, Rule 587(B)
       was added to govern pretrial double jeopardy motions.
       Specifically, Rule 587(B) provides in pertinent part:

          (1) A motion to dismiss on double jeopardy grounds
          shall state specifically and with particularity the basis
          for the claim of double jeopardy and the facts that
          support the claim.

          (2) A hearing on the motion shall be scheduled in
          accordance with Rule 577 (Procedures Following Filing
          of Motion). The hearing shall be conducted on the
          record in open court.

          (3) At the conclusion of the hearing, the judge shall
          enter on the record a statement of findings of fact and
          conclusions of law and shall issue an order granting or
          denying the motion.

          (4) In a case in which the judge denies the motion, the
          findings of fact shall include a specific finding as to
          frivolousness.

          (5) If the judge makes a finding that the motion is
          frivolous, the judge shall advise the defendant on the
          record that a defendant has a right to file a petition for
          review of that determination pursuant to Rule of
          Appellate Procedure 1573 within 30 days of the order
          denying the motion.

          (6) If the judge denies the motion but does not find it
          frivolous, the judge shall advise the defendant on the
          record that the denial is immediately appealable as a
          collateral order.

       Pa.R.Crim.P. 587(B) (emphasis added).           To establish
       whether a motion to dismiss on double jeopardy grounds
       qualifies as a collateral order, trial courts must now, inter


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         alia, satisfy Rule 587(B)(3), (4), (5), and (6). Subsection
         (B)(3) requires the trial court, following a hearing, to enter
         on the record a statement of findings of fact and
         conclusions of law and its disposition of the double
         jeopardy motion. Subsection (B)(4) requires the trial court
         to render a specific finding on frivolousness in the event
         the court denies the double jeopardy motion. Subsection
         (B)(5) requires the trial court, if it finds frivolous the
         double jeopardy motion, to inform on the record a
         defendant of his or her right to petition for review under
         Pa.R.A.P. 1573 within 30 days of the order denying the
         motion. Subsection (B)(6) requires the court to advise a
         defendant of his immediate right to a collateral appeal if
         the court does not find the double jeopardy motion to be
         frivolous.

Taylor, 120 A.3d at 1021-23 (footnotes, emphases, and some citations

omitted). The Taylor Court held that the trial court failed to comply with

Pa.R.Crim.P. 587(B)(3)-(6), and remanded to have the trial court comply

with Rule 587(B).

      Because the instant appeal is not from an order granting a new trial,

appellate jurisdiction does not arise under Pa.R.A.P. 311(a)(6), which

governs interlocutory appeals as of right. See Pa.R.A.P. 311(a)(6); Taylor,

120 A.3d at 1021. We note that the district attorney did not formally move

to retry Appellant, but did not comment when (1) Appellant asked the court

to bar Appellant from being retried, N.T. Post Trial Hr’g at 4, or (2) when the

court scheduled the new trial for June. N.T. Post Trial Hr’g at 6. Thus, we

construe Appellant’s motion as a “pretrial” motion to dismiss on double

jeopardy grounds. See Taylor, 120 A.3d at 1021. It is evident, however,

that the instant trial court, like the trial court in Taylor, also failed to comply



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with Pa.R.Crim.P. 587(B).        The trial court entered no findings of fact or

conclusions of law and did not issue a finding regarding frivolousness, all of

which would have clarified whether this Court had appellate jurisdiction.

See N.T. Post-Trial Hr’g at 2-6; Taylor, 120 A.3d 1021-23.              Given the

instant jurisdictional and procedural morass, we paraphrase from Taylor:

            Specifically, as required under Rule 587(B)(3), following
         oral argument, the trial court failed to enter on the record
         a statement of findings of fact and conclusions of law.
         Moreover, in denying Appellant’s motion to dismiss on
         double jeopardy grounds, the trial court also failed to
         render a specific finding on frivolousness, as required
         under Rule 587(B)(4). The trial court did not find whether
         Appellant’s motion to dismiss was or was not frivolous.
         Given the trial court’s failure to comply with Rule 587[(B)],
         we are unable to decide whether we may exercise
         jurisdiction over this appeal. Consequently, we remand
         this matter to the trial court for compliance with Rule
         587[(B)] and preparation of a supplemental Rule 1925(a)
         opinion within sixty days of the date of this opinion.

Taylor, 120 A.3d at 1023.

      Case    remanded    with    instructions   to   comply   with   Pa.R.Crim.P.

587(B)(2)-(6), and a supplemental Pa.R.A.P. 1925(a) decision within sixty

days of the date of this decision. Panel jurisdiction retained.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/23/2015




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