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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

ALEXANDER FLORES

                         Appellant                   No. 1816 EDA 2017


                Appeal from the Order entered May 31, 2017
            In the Court of Common Pleas of Philadelphia County
              Criminal Division at No: CP-51-CR-0003501-2015


BEFORE: OTT, STABILE, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.:                                FILED MAY 17, 2018

      Appellant, Alexander Flores, appeals from the May 31, 2017 order

entered in the Court of Common Pleas of Philadelphia, denying his motion to

bar re-trial on double jeopardy grounds. Appellant contends the trial court

erred in finding manifest necessity for a mistrial based on the prosecutor’s

heart attack during trial. Following review, we affirm.

      The trial court provided the following procedural history:

      [Appellant] was arrested on October 21, 2014, and charged with
      murder, conspiracy, violations of the Uniform Firearms Act and
      possessing an instrument of crime. [Appellant] was held for court
      on all of the charges following a preliminary hearing on April 3,
      2015. A jury trial commenced August 22, 2016 until August [25]
      at which time, the sole prosecutor trying the case suffered a heart
      attack. Having continued the matter for a day to obtain medical
      confirmation of the attorney’s condition, the court considered the
      available alternatives and then declared a mistrial. A motion to
      bar re-trial on double jeopardy grounds was filed on behalf of
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        [Appellant] on April 16, 2017 and following a hearing on May 31,
        2018 denied. Timely appeal was made to the Superior Court.

Trial Court Rule 1925(a) Opinion, 8/22/17, at 1 (some capitalization omitted).1

        The trial court further explained that a jury was selected on August 22.

“The lone prosecutor presented the Commonwealth’s case through August

24th.” Id. at 2. The assigned homicide detective was scheduled to testify on

August 25, but the prosecutor suffered a massive heart attack in the early

morning hours of August 25, was rushed to the hospital, and was confined to

the intensive care unit. Id. The trial court continued the proceeding until the

following day in order to obtain an update on counsel’s condition. On Friday,

August 26, the trial court learned that the attorney was still in intensive care

and would not return to work for at least six weeks.

        The Commonwealth requested a thirty-day continuance in hopes that

another attorney could review the file, including the transcripts from the first

three days of trial, and be ready to finish the trial.    Counsel for Appellant

objected, contending that another prosecutor should be able to finish the trial

after the weekend. Id. at 2-3. By order entered May 31, 2017, the trial court

denied Appellant’s motion.

        Appellant asks us to consider one issue in this appeal:

        I.    Should [Appellant’s] re-trial be barred on double jeopardy
              grounds due to the fact that the lower court erred when it
              sua sponte found a manifest necessity for a mistrial without

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

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            first exploring possible alternatives that would have
            permitted [Appellant’s] original trial to continue to proceed?

Appellant’s Brief at 3.

      Our rules of criminal procedure govern mistrials and provide, in relevant

part, that “[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) (emphasis

added).

      In Commonwealth v. Walker, 954 A.2d 1249 (Pa. Super. 2008) (en

banc), this Court reiterated that “[i]t is within a trial judge’s discretion to

declare a mistrial sua sponte upon the showing of manifest necessity, and

absent an abuse of that discretion, we will not disturb his or her decision.” Id.

at 1254 (quoting Commonwealth v. Kelly, 797 A.2d 925, 936 (Pa. Super.

2002) (additional citations omitted)). Further,

      the 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 or her fate
      determined by the jury first impaneled. Kelly, 797 A.2d at [936]
      (citing Commonwealth v. Stewart, 456 Pa. 447, 452, 317 A.2d
      616, 619 (1974)). Additionally, 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 is 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. (quoting Commonwealth ex
      rel. Walton v. Aytch, 466 Pa. 172, 352 A.2d 4 (1976)).
      However, there can be no rigid rule for finding manifest necessity
      since each case is individual. Commonwealth v. Rivera, 715
      A.2d 1136, 1138 (Pa. Super. 1998).

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Id. at 1255-56. See also Gori v. United States, 367 U.S. 364, 368 (1961)

(Supreme Court has “long favored the rule of discretion in the trial judge to

declare a mistrial and to require another panel to try the defendant if the ends

of justice will be served . . . and [has] consistently declined to scrutinize with

sharp surveillance the exercise of that discretion”).

       Appellant contends there was no manifest necessity for granting a

mistrial.   He notes that the Commonwealth did not request a mistrial and

claims the trial court did not adequately consider alternatives to a mistrial.

Citing Commonwealth v. Bradley, 457 A.2d 911 (Pa. Super. 1983),2 he

suggests that the trial court’s failure to consider alternatives before declaring

a mistrial is grounds for barring retrial.

       Here, the trial court clearly considered alternatives. As the trial court

explained:

       First, the case was continued for a day until an exact diagnosis
       and prognosis of the attorney could be obtained. Then multiple
       alternatives were considered by the court, including a thirty day
       continuance and the possibility of assigning another assistant
       prosecutor to the case. [Appellant’s] counsel objected to these
       alternatives.   After reviewing the available alternatives, and
       receiving a diagnosis and prognosis of the ill assistant prosecutor
       the court declared a mistrial. The prosecutor was currently
       confined to the intensive care unit of the hospital and was
       precluded from returning to work for an undetermined amount of
       time but for a minimum of at least several weeks. Although the
____________________________________________


2 In his brief, Appellant indicates that Bradley is a decision from our Supreme
Court. In fact, the opinion he quotes is an opinion from this Court. However,
that decision was affirmed per curiam by our Supreme Court.                 See
Commonwealth v. Bradley, 470 A.2d 524 (Pa. 1984).

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      trial court did consider other alternatives, none were plausible. As
      such [Appellant’s] reliance on Bradley is misplaced.

Trial Court Opinion, 8/22/17, at 5 (citation to notes of testimony omitted)

(some capitalization omitted). Further,

      [t]he case was not uncomplicated. The allegations were that on
      the evening of December 15, 2011 a group of men, including
      [Appellant], were hanging out in a school parking lot on the corner
      of East Somerset Street and Coral Street in Philadelphia.
      Supposedly, [Appellant], “Big Al”—Alexander Flores, was the boss
      of a drug organization to which the other men were connected.
      The conversation turned to who owed money to [Appellant]. The
      exchange ended with [Appellant] handing Randy Diaz a gun and
      ordering Diaz to kill Juan Modesto Cruz[.] Diaz in return, directed
      Christopher Martinez to drive him around the block and when Diaz
      exited the vehicle for Martinez to wait for him, leaving the car in
      gear for a quick getaway. Having spotted Cruz in the 2000 block
      of east Auburn Street, Diaz exited the vehicle, shot Cruz five
      times, killing him, and then he jumped back in the car, fleeing the
      area with Martinez.

Id. at 3 (citation to notes of testimony omitted). As the trial court explained:

      Three days of trial had been completed [when the prosecutor
      suffered his heart attack]. It was not known if [Appellant]
      intended to present any evidence. The ill prosecutor was the only
      government attorney familiar with the case. He had handled the
      matter since the beginning, was the sole attorney who prepared
      the case and the only attorney presenting the case in the
      courtroom. There was additional testimony to be presented by
      the assigned homicide detective and exactly what testimony
      needed to be solicited was only known to the ill prosecutor. If
      [Appellant] chose to present any evidence or testify himself, there
      was no attorney able to adequately cross-examine any defense
      witness. The Commonwealth requested a one-month continuance
      to allow another Assistant District Attorney to read the notes of
      testimony and prepare to represent the state throughout the rest
      of the case. [Appellant] objected to a thirty-day continuance,
      claiming there was no reason the matter could not resume
      following the weekend.

Id. at 3-4 (citation to notes of testimony omitted).

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      In support of his contention that the trial court erred in finding “manifest

necessity” for granting the mistrial, Appellant cites four cases, only one of

which involved the illness of a prosecuting attorney. Appellant’s Brief at 8-9.

In one of those cases, Commonwealth v. Brooks, 310 A.2d 338 (Pa. Super.

1973), this Court found there was no manifest necessity for declaring two

mistrials, the first when the prosecutor became ill and the second when the

jury was unable to reach a verdict after deliberating for nine hours. A third

trial resulted in a conviction, which this Court affirmed per curiam on direct

appeal. Commonwealth v. Brooks, 231 A.2d 337 (Pa. Super. 1967).

      The case returned to this Court on appeal from denial of post-conviction

relief, with the sole issue being “whether the third trial of the defendant was

in violation of the double jeopardy clause of the Constitution of the United

States.” Brooks, 310 A.2d at 338.

      The Court considered the first two mistrials, including the mistrial for

prosecutorial illness, but did not discuss the nature of the prosecutor’s illness

or when he might be able to resume trial, and did not mention whether or not

the trial court considered alternatives to declaring a mistrial. The Court simply

noted that the “reason for the first mistrial was that the prosecuting attorney

was ill.” Id. at 339. The Court continued, stating that “[r]ecent decisional

law leads us to the inexorable conclusion that such a reason for subjecting a

defendant to a second trial can hardly be considered tantamount to ‘manifest




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necessity’.”   Id. (citing Commonwealth v. Ferguson, 285 A.2d 189 (Pa.

1971)).

      In Ferguson, another case cited by Appellant, our Supreme Court

determined there was no manifest necessity for granting a mistrial when a

witness became ill. The Court determined that the trial court failed to consider

other alternatives before granting a mistrial, including sending “the jury home

early for the day until more was known about [the witness’] health.”

Ferguson, 285 A.2d at 191.        “[A]nything less than a definite diagnosis,

introduced with more formality than merely the introduction into evidence of

the fact of the telephone call of the undoubtedly nervous wife of the

prosecution witness, does not give the trial court ample grounds for subjecting

appellant to the continuing ordeal of a pending trial.” Id.

      Here, the trial court did precisely what our Supreme Court found lacking

in Ferguson. The trial judge sent the jury home for the day and investigated

the prosecutor’s condition and prognosis. After obtaining information about

the massive heart attack, confinement to intensive care, and counsel’s

inability to return to work for an extended period of time, the trial court

entertained the Commonwealth’s request for a thirty-day continuance, a

request that drew an objection from Appellant’s counsel. Only then did the

trial court conclude that manifest necessity existed warranting a mistrial. As

the trial court observed, “the trial court complied with the mandates of

Ferguson.” Trial Court Opinion, 8/22/17, at 6.


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        Appellant contends that the trial court was obligated to “exhaust all

other reasonable alternatives.” Appellant’s Brief at 9. In particular, Appellant

argues that the record is devoid of any indication the trial court attempted to

determine if the jurors could return thirty days later.           Id.   In light of

Appellant’s objection to the Commonwealth’s request for a thirty-day

continuance, we find Appellant’s assertion disingenuous. Further, because it

was uncertain when the prosecutor could return to work, there was no point

in asking if the jurors would be available to return at some unknown future

date.

        Although our courts have not discussed in any depth the propriety of a

mistrial based on prosecutorial illness, courts in several of our sister states

have had that opportunity. See, e.g., State v. Anderson, 988 A.2d 276 (Ct.

2010) (finding trial court did not abuse its discretion in declaring mistrial when

prosecutor became seriously ill).              In that case, the Supreme Court of

Connecticut noted decisions from Arkansas, Iowa, New Mexico and South

Carolina, all of which involved the illness or death of the prosecutor. 3 The

Court concluded:

        The general consensus that emerges from these cases is that a
        court properly exercises its discretion in declaring a mistrial when
____________________________________________


3In the New Mexico case, a one-week continuance was actually necessitated
by defense counsel’s illness but was followed by the prosecutor’s scheduled
back surgery. Because neither the defendant nor the state could obtain
substituted counsel due to the complexity of the case, the mistrial was
determined to be reasonable. State v. Saavedra, 108 N.M. 38, 766 P.2d
298 (1988).

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      a prosecutor becomes seriously ill during trial such that he
      requires a lengthy absence, and no other prosecutor is able to
      step in to resume the trial within a reasonable period.

Id. at 286. While none of the cases from outside this jurisdiction is binding

on this Court, we do find them supportive of our conclusion that the trial court

in the instant case did not abuse its discretion in declaring a mistrial sua

sponte under the circumstances of this case. More importantly, we conclude

that the trial court took the measures outlined in Ferguson before declaring

a mistrial. Finding no abuse of discretion in the trial court’s decision to declare

a mistrial sua sponte, we shall not disturb the trial court’s order.

      Order affirmed. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/17/18




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