J-A21020-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

LOUIS NICHOLAS PAHOUNTIS,

                        Appellant                  No. 1555 WDA 2016


               Appeal from the Order Entered October 5, 2016
            In the Court of Common Pleas of Washington County
            Criminal Division at No(s): CP-63-CR-0001469-2014


BEFORE: BENDER, P.J.E., OLSON, J., and STABILE, J.

MEMORANDUM BY OLSON, J.:                      FILED NOVEMBER 14, 2017

      Appellant, Louis Nicholas Pahountis, appeals from the order entered on

October 5, 2016, denying his motion to dismiss the charges filed against him

based upon double jeopardy. Upon careful consideration, we affirm.

      The trial court summarized the facts and procedural history of this

case as follows:

      [Appellant] was charged with two counts of aggravated assault
      of a child, and one count each of indecent assault of a person
      less than 13 years of age and endangering the welfare of
      children[,] arising from allegations that between 2000 and 2003,
      [Appellant] had on several occasions sexually assaulted the
      victim, his daughter, C.P., then a minor child between [four] and
      [six] years old.

      The Commonwealth filed the instant charges against [Appellant]
      on April 7, 2014. [Appellant] had his preliminary hearing on
      June 17, 2014, and all charges were held for court. [Appellant]
      waived his formal arraignment, and on August 1, 2014, the
      Commonwealth filed the criminal information, charging
J-A21020-17


        [Appellant] with the same offenses as were in the criminal
        complaint.

        [Appellant’s] jury trial was held from September 15, 2015
        through September 17, 2015. After counsel presented their
        closing arguments and the court delivered its instructions, the
        jury retired to deliberate. Following approximately four hours of
        deliberation, the jury asked for clarification on the instructions
        relating to the charge of endangering the welfare of children.
        The court reinstructed the jury on that charge, and the jury
        returned to its deliberations. A short time after returning to its
        deliberations, the jury delivered a note to the court staff stating
        that it was unable to reach a decision on any of the charges.
        The court brought the jury back into the courtroom, and
        questioned the foreperson on the record as to whether further
        deliberations would be helpful in reaching a verdict. The jury
        foreperson answered that no amount of deliberations would aid
        the jury in reaching a verdict. The court then consulted counsel,
        and defense counsel stated that the defense “would yield to the
        court’s decision.” The court then proceeded to question the
        foreperson further, and after the foreperson reiterated that no
        amount of further deliberation would aid the jury in coming to a
        unanimous decision, the court declared a mistrial and dismissed
        the jurors.

        [After the Commonwealth refiled the original charges, Appellant]
        then filed [a] motion to dismiss on September 28, 2015, and
        subsequently filed briefs in support of the motion on February 8,
        2016 and July 14, 2016, claiming that the trial court’s
        declaration of a mistrial was improper and that retrying
        [Appellant] on these charges would violate his constitutional
        right against “double jeopardy.”

Trial Court Opinion, 10/6/2016, at 1-2 (superfluous capitalization omitted).

        On October 3, 2016, Appellant filed a motion for a hearing on his

motion to dismiss. The trial court held a hearing on October 6, 2016. The

trial court denied Appellant relief by order and opinion entered on October 6,

2016.    Appellant thereafter filed a timely notice of appeal on October 12,

2016. On December 23, 2016, the trial court issued a second opinion which


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also explained that Appellant was not entitled to relief on his motion to

dismiss, but also declared for the first time that Appellant’s double jeopardy

argument was frivolous.

    On appeal, Appellant presents the following issues for our review:

       I.     Whether the trial court improperly denied [Appellant’s]
              motion to dismiss on double jeopardy grounds where the
              trial court sua sponte granted a mistrial late at night, after
              only four hours of heavily-interrupted jury deliberation and
              without considering less drastic alternatives?

       II.    Whether this Court should consider the trial court’s
              December 23, 2016 opinion, where the trial court lacked
              jurisdiction to enter such opinion, and where the interests
              of justice require this Court to consider the merits of
              [Appellant’s] claim regardless of which opinion controls?

Appellant’s Brief at 3 (superfluous capitalization omitted).

       We will examine Appellant’s second issue first, because it implicates

our jurisdiction.    Appellant argues that this Court should not consider the

trial court’s second opinion that was issued on December 23, 2016 because

the trial court lacked jurisdiction to enter it. Id. at 35. Appellant posits that

“[a] defendant can immediately appeal as of right from an order denying a

non-frivolous motion to dismiss on double jeopardy grounds” but, “if the trial

court enters a finding that the defendant’s double jeopardy claim is frivolous,

the defendant may seek preliminary review of that determination via a

petition filed under [Pa.R.A.P.] 1573.”1 Id., citing Commonwealth v. Orie,
____________________________________________


1
  Pennsylvania Rule of Appellate Procedure 1573 provides, “[a]ny party
seeking review of a frivolousness determination by a court of common pleas
(Footnote Continued Next Page)


                                           -3-
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33 A.3d 17 (Pa. Super. 2011); Pa.R.Crim.P. 587(B); Pa.R.A.P. 313;

Pa.R.A.P. 1511-1573. In this case, Appellant maintains that the trial court’s

“second opinion [declared Appellant’s] motion [to dismiss] frivolous and




                       _______________________
(Footnote Continued)

under Pennsylvania Rule of Criminal Procedure 587 shall file a petition for
review in the appellate court having jurisdiction over the matter.” Pa.R.A.P.
1573(a). The Rule also sets forth the content requirements of a petition for
review, the effect of filing the petition, and the effects of granting or denying
a petition for review. The note to Pa.R.A.P. 1573 states:

      The trial court's determination and the procedure for determining
      a motion to dismiss on double jeopardy grounds is set forth in
      Pa.R.Crim.P. 587. If a trial court denies such a motion without
      expressly finding that the motion is frivolous, the order is
      immediately appealable by means of a notice of appeal under
      Pa.R.A.P. 313. If, however, the trial court finds the motion to be
      frivolous, appellate review can be secured only if the appellate
      court grants a petition for review. If the Superior Court does not
      grant the petition for review, the defendant may file a petition
      for allowance of appeal with the Supreme Court.

      Where the petition for review of the determination of
      frivolousness is granted, the grant automatically initiates a
      separate appeal on the merits from the order denying the
      pretrial motion seeking dismissal of criminal charges on double
      jeopardy grounds.

      A party may seek (or a court may sua sponte issue) a stay of the
      trial court proceedings pending review of the frivolousness
      determination. Otherwise, the trial court may proceed while the
      petition for review is pending. See Pa.R.A.P. 1701(d). Where the
      petition for review of the determination of frivolousness is
      granted, the grant automatically stays further proceedings in the
      trial courts.

Pa.R.A.P. 1573 note (case citations omitted).



                                            -4-
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made a belated effort to comply with [the rules of court].” Id.         Appellant

contends that he is entitled to relief for the following reasons:

      First, the [t]rial [c]ourt lacked jurisdiction to file the December
      23 opinion, and justice requires that the [t]rial [c]ourt not be
      given multiple opportunities to comply with the Rules of Criminal
      Procedure. Second, courts have consistently acknowledged that
      an explicit frivolous finding is not necessary to secure appellate
      review. Third, even if this Court does consider the December 23
      opinion, the record is sufficient to treat [Appellant’s] brief as a
      petition for review, find that his claims are not frivolous, and
      consider the merits of his appeal.

Id. at 36.

      Upon our review, the trial court’s December 23, 2016 opinion states:

      Although the court did not expressly state that [Appellant’s]
      motion [to dismiss] was frivolous in its original order denying the
      motion, the court asserts that it is clear by the very nature of
      [his] claim that it is frivolous.

                           *            *            *

      While the trial court also did not specifically state the
      requirements of Rule of Appellate Procedure 1573 following the
      denial of [Appellant’s] motion [to dismiss], including informing
      [Appellant] of his appellate rights, [Appellant] immediately
      appealed the court’s decision, and the court asserts that based
      on the frivolous nature of [Appellant’s] original motion, that
      [Appellant] is not entitled to direct review, and asserts that he
      should be required to file a petition for review to the Superior
      Court complying with the requirements of Pa.R.A.P. [] 1573.

Trial Court Opinion, 12/23/2017, at 4.

      Initially we note that the trial court did not follow the rules of court, or

explain them to Appellant, and then left Appellant in a situation of guessing

which appellate procedure to follow.        We caution the trial court to comply

with the procedural rules to ensure that litigants may properly perfect their

                                      -5-
J-A21020-17



appeals. We agree with Appellant that the trial court’s December 23, 2016

opinion was filed after the notice of appeal divested the trial court of

jurisdiction. “[A]fter an appeal is taken or review of a quasi[-]judicial order

is sought, the trial court or other government unit may no longer proceed

further in the matter.” Pa.R.A.P. 1701. “The effect of this provision is that

once a party has properly appealed a decision of the trial court, the trial

court lacks jurisdiction to act further on the case.”     Commonwealth v.

Moore, 715 A.2d 448, 453 (Pa. Super. 1998). Thus, we will not consider the

December 23, 2016 opinion.

      Furthermore, this Court’s decision in Moore is instructive herein:

      [T]he Supreme Court of Pennsylvania held that an order denying
      a motion to dismiss on double jeopardy grounds is immediately
      appealable, and thus will stay the proceedings in the trial court,
      unless, “the hearing court has considered the motion and made
      written findings that the motion is frivolous.” [Commonwealth
      v. Brady,      508    A.2d    286,   341     (Pa.   1986).]   See
      also Commonwealth v. Breeland, 664 A.2d 1355, n.1 (Pa.
      Super. 1995)(noting that orders denying claims seeking to
      dismiss on double jeopardy grounds are immediately appealable,
      but such appeals will be quashed after the hearing court has
      made a written finding that the appeal is frivolous).

                          *            *           *

      Contrary to the Commonwealth's suggestion, the requirement of
      such a finding is not a mere formality. It is a “specific procedure,
      designed to balance the double jeopardy rights of a criminal
      defendant with the significant interest of the public in securing
      prompt trials for the criminally accused.” Commonwealth v.
      Gains, 556 A.2d 870, 874 (Pa. Super. 1984)(en banc)(holding
      that where the trial court made no written finding that
      appellant's double jeopardy claim was frivolous, this Court would
      exercise its jurisdiction over the appeal without remanding to


                                     -6-
J-A21020-17


      afford the trial court an opportunity to determine whether such a
      finding should be made on the record).

Moore, 715 A.2d at 453 (emphasis in original). “In the absence of an

‘express determination’ by the trial court that an appeal based on double

jeopardy grounds is clearly and obviously without merit, the order denying

such relief is appealable.” Id.

      Having determined that we will not consider the trial court’s December

23, 2016 opinion, we are left with no express, written determination by the

trial court that Appellant’s motion to dismiss was frivolous.    Thus, for the

same reasons this Court stated in Moore, we conclude that the order

denying Appellant relief herein was immediately appealable and that we

have jurisdiction to entertain his claim. Thus, we now turn to the merits of

Appellant’s first issue.

      In his first issue presented, Appellant argues that “[t]he trial court

erred when it sua sponte declared a mistrial after jurors had deliberated for

fewer than four hours, late into the evening, and without utilizing less drastic

methods for obtaining a verdict.”       Appellant’s Brief at 14.      Appellant

maintains that manifest necessity (as required when the trial court declares

a mistrial sua sponte) did not exist, in light of the complexity of the case,

the time of day [when deliberations were terminated], and the [trial court’s]

actions immediately before [t]he declared mistrial.”     Id. at 18.   Appellant

claims that actual deliberations were potentially cut short by all of the

interruptions and that the long day on the last day of trial and immediate

start of deliberations “well after normal working hours” left jurors fatigued

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J-A21020-17



“to the point where they were unable to properly exercise their duties.” Id.

at 22-23. Appellant further contends there were less drastic alternatives to

declaring a mistrial, “including giving a deadlocked jury instruction, allowing

the jurors to start fresh in the morning, individually polling the jurors about

the extent of the deadlock, or engaging in a thorough analysis of the facts.”

Id. at 24.    Appellant claims that after jeopardy attached, the trial court

failed to find a manifest necessity and that Appellant did not consent when

the trial court declared a mistrial. Id. at 14.       According to Appellant, “the

[t]rial [c]ourt never indicated that it intended to declare a mistrial, and as

such never solicited the parties’ opinions about doing so.”              Id. at 29.

Appellant argues that when he said he would yield to the trial court’s

decision on how to handle the deadlocked jury, the parties had only

contemplated giving a deadlocked jury              charge   and ordering further

deliberations.   Id. at 34.       Appellant also takes issue with the trial court’s

subsequent “attempt[] to blame [Appellant] for failing to object to the

court’s sua sponte decision” to declare a mistrial.         Id. at 31.     In sum,

Appellant alleges, “the [t]rial [c]ourt acted in a hasty manner that resulted

in reversible error” and, therefore, “all charges against [Appellant] should be

dismissed.” Id. at 35.

      Our standard of review regarding a mistrial is as follows:

      [The declaration of] a mistrial is within the discretion of the trial
      court.

                              *            *           *


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J-A21020-17


      On appeal, our standard of review is whether the trial court
      abused that discretion.

                           *            *            *

      When the discretion exercised by the trial court is challenged on
      appeal, the party bringing the challenge bears a heavy burden.
      It is not sufficient to persuade the appellate court that it might
      have reached a different conclusion if, in the first place, it was
      charged with the duty imposed on the court below; it is
      necessary to go further and show an abuse of discretionary
      power. An abuse of discretion is not merely an error of
      judgment, but if in reaching a conclusion the law is overridden or
      misapplied,     or   the   judgment    exercised    is   manifestly
      unreasonable, or the result of partiality, prejudice, bias or ill-will
      as shown by the evidence of record, discretion is abused. We
      emphasize that an abuse of discretion may not be found merely
      because the appellate court might have reached a different
      conclusion.

Commonwealth v. Tejeda, 834 A.2d 619, 623–624 (Pa. Super. 2003)

(internal citations, quotations, and brackets omitted).

      Regarding double jeopardy,

      The Fifth Amendment to the United States Constitution and
      Article I, § 10 of the Pennsylvania Constitution provide that no
      person shall, for the same offense, be twice put in jeopardy of
      life or limb.    The constitutional prohibition against double
      jeopardy was designed to protect an individual from being
      subjected to the hazards of trial and possible conviction more
      than once for an alleged offense.

      The Double Jeopardy Clause protects against a second
      prosecution for the same offense after an acquittal, a second
      prosecution for the same offense after a conviction and multiple
      punishments for the same offense. However, the constitutional
      prohibition against double jeopardy does not apply unless
      jeopardy attaches. In Pennsylvania, jeopardy attaches when a
      defendant stands before a tribunal where guilt or innocence will
      be determined.     In a criminal jury trial, this occurs when
      the jury is sworn.



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J-A21020-17


     Although jeopardy attaches, and the constitutional protection
     against double jeopardy applies when a jury is sworn, our courts
     have held that the protection against double jeopardy does not
     apply when the trial court grants a proper mistrial upon motion
     of defense counsel, or by manifest necessity. This rule has been
     codified in Pa.R.Crim.P. 605, which provides, in relevant part:

          Rule 605. Mistrial

                         *           *           *

          (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.

     Pa.R.Crim.P. 605 (emphasis added).

     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 fate
     determined by the jury first impaneled. A failure of the lower
     court to consider less drastic alternatives before declaring
     a mistrial creates doubt about the exercise of the court's
     discretion and may bar re-prosecution because of double
     jeopardy.

                         *           *           *

     Mere silence by a defendant or lack of specific objection does not
     amount to a waiver of the defendant’s constitutional protection
     from double jeopardy.

                         *           *           *

     There is no established test for determining the existence of a
     manifest necessity. It is, however, recognized that a genuine
     inability of a jury to agree constitutes a manifest necessity to
     declare a mistrial over a defendant's objection without offending
     the defendant's Fifth Amendment rights. A genuine inability of
     a jury to agree upon a verdict occurs if it appears to the trial
     court that there is no reasonable probability of agreement.

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J-A21020-17



Commonwealth v. Young, 35 A.3d 54, 58–60 (Pa. Super. 2011) (internal

case citations, quotations, footnote, and some emphasis in the original

omitted).    We have previously determined that “the primary element in

judging whether a jury is really deadlocked is the firmness of its

communication to the court that it is deadlocked and the judge's belief that

such is the case.”     Commonwealth v. Hoover, 460 A.2d 814, 816 (Pa.

Super. 1983) (citation omitted).

       Our Supreme Court has stated that “the use of supplemental charges

to the jury has long been sanctioned.” Commonwealth v. Greer, 951 A.2d

346,   355   (Pa.    2008).        Our    Supreme        Court    “in    [Commonwealth

v. Spencer, 275 A.2d 299 (Pa. 1971)] recognized that deadlocked juries are

a matter of concern to both the bench and bar[, but also] emphasized that a

conviction [could be coerced] by the court’s [supplemental deadlock]

charge.”     Id.    (original     citation,   brackets,     and     quotations      omitted).

“In [] Spencer, []     our      Supreme       Court     addressed       judicial   interaction

with deadlocked juries       []   and    cited   with    approval       the   American    Bar

Association (“ABA”) guidelines governing jury deadlock.”                  Commonwealth

v. Marion, 981 A.2d 230, 235, (Pa. Super. 2009).                        The ABA guidelines

provide:

       LENGTH OF DELIBERATIONS; DEADLOCKED JURY

       (a) Before the jury retires for deliberation, the court may give an
       instruction which informs the jury:




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J-A21020-17


            (1) that in order to return a verdict, each juror must agree
            thereto;

            (2) that jurors have a duty to consult with one another and
            to deliberate with a view to reaching an agreement, if it
            can be done without violence to individual judgment;

            (3) that each juror must decide the case for himself, but
            only after an impartial consideration of the evidence with
            his fellow jurors;

            (4) that in the course of deliberations, a juror should not
            hesitate to re-examine his own views and change his
            opinion if convinced it is erroneous; and

            (5) that no juror should surrender his honest conviction as
            to the weight or effect of the evidence solely because of
            the opinion of his fellow jurors, or for the mere purpose of
            returning a verdict.

      (b) If it appears to the court that the jury has been unable to
      agree, the court may require the jury to continue their deliberations
      and may give or repeat an instruction as provided in subsection (a).
      The court shall not require or threaten to require the jury to deliberate
      for an unreasonable length of time or for unreasonable intervals.

      (c) The jury may be discharged without having agreed upon a verdict
      if it appears that there is no reasonable probability of agreement.

Id. at 235-236 (emphasis omitted), citing ABA Standards for Criminal

Justice 15–5.4.

      The parties have not cited, and we have not independently discovered,

case law requiring a trial court to issue a supplemental jury charge on

deadlocked juries as a prerequisite to declaring a mistrial on grounds that

there is no reasonable probability of agreement. In fact, the language in the

ABA guidelines plainly state that the trial court “may” give a deadlock

instruction “[b]efore the jury retires.”     Id. (emphasis added). Thereafter,


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J-A21020-17



“[i]f it appears to the court that the jury has been unable to agree, the court

may require the jury to continue their deliberations and may give or repeat

an instruction[.]” Id. (emphasis added).

      Upon review of the record, we discern no error or abuse of discretion

in granting a mistrial based upon the deadlocked jury and, thus, there was

no infringement upon Appellant’s constitutional double jeopardy rights. The

record reveals that at 5:30 p.m., on the last day of trial, the trial court sent

the jury out for deliberations. N.T., 1/25/2016, at 466. However, prior to

deliberations, the trial court gave its general charge to the jury which

included the five factors as set forth in the deadlocked jury instruction. In

particular, the trial court stated:

      Your verdict must be unanimous. That means, in order to return
      a verdict, each of you must agree. You have the duty to consult
      with each other and deliberate with a view toward reaching an
      agreement, if it can be done without doing any violence to your
      independent judgment. Each of you must decide the case for
      yourself, but only after there has been impartial consideration
      with your fellow jurors.

      In the course of your deliberations, each of you should not
      hesitate to re-examine your own views and change your opinion
      if you are convinced it is erroneous. However, no juror should
      surrender an honest conviction as to the weight or the effect of
      the evidence solely because of the opinion of your fellow jurors
      or for the mere purpose of returning a verdict.

Id. at 463-464. Accordingly, the trial court had already properly instructed

the jury on how to handle a deadlock. See Marion, 981 A.2d at 235, citing

ABA Standards for Criminal Justice 15–5.4(a)(1-5). The jury was instructed

on dealing with deadlock and the jury is presumed to follow the court’s


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J-A21020-17



instructions.     See    Commonwealth         v.   Scott,   146   A.3d    775,   780

(Pa.   Super.   2016) (citation omitted) (“Juries are presumed to follow the

trial court's instructions.”)

       Moreover, in other contexts, this Court has not hesitated to find that

the timing of a jury instruction is immaterial if the trial court gave the

content of the instruction to the jury at some point during trial.               See

Commonwealth v. Harley, 418 A.2d 1354, 1360 (Pa. Super.                   1980) (in

prosecution     for   homicide   and    related      offenses,    court    properly

charged jury with respect to right of self–defense and there was no need for

trial court to repeat instruction or give instruction at a different time); see

also Commonwealth v. Enders, 595 A.2d 600, 605 (Pa. Super. 1991)

(trial court's failure to give cautionary instructions at time of introduction of

codefendant's inculpatory statement, which implicated all defendants, was

not abuse of discretion, where trial court gave general cautionary instruction

to jury during testimony of victim and gave two instructions at close of all

evidence with respect to limitations of use of defendant's inculpatory

statement); see also Commonwealth v. Covil, 378 A.2d 841, 846 (Pa.

1977) (limiting instruction may be given either as evidence is admitted or as

part of the general charge). Hence, we reject Appellant’s claim that the jury

was not properly instructed.

       Turning back to the facts of this case, at 6:55 p.m., after deliberating

for one hour and twenty-five minutes, the jury asked for clarification about

the endangering the welfare of a child charge, specifically asking whether

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J-A21020-17



they were only to consider the charge in the context of alleged sexual

contact or if they could consider other trial testimony of physical contact

with the child victim.   N.T., 1/25/2016, at 469.    At 9:20 p.m., the jurors

returned to the courtroom where the trial court told them that the

endangering the welfare of a child charge “ar[o]se out of the context of the

sexual assault” but reminded them that they were the sole judge of the facts

and had to decide what evidence to consider.        Id. at 472.   The jury was

excused to continue deliberations at 9:22 p.m. Id. at 473. At 9:30 p.m.,

the trial court received a note from the jury stating, “we cannot reach a

unanimous decision on any of the three charges [and] we do not see a

likelihood of reaching a unanimous decision given the time for further

deliberations.” Id. at 474. The trial court suggested that it would give the

jury “the instruction on a deadlock[ed] jury and ask the foreperson, is there

any additional instruction that will help and their reasonable probability of

reaching a verdict.” Id. at 473-474. The trial court then stated that “none

of us want to end up with no verdict” and then hesitated, ostensibly

contemplating that a mistrial might be warranted. Id. at 474.

      However, when the jury was brought back into the courtroom at 9:55

p.m., the trial court did not read the deadlocked jury instruction as set forth

in the ABA guidelines above. Instead, the following exchange occurred:

      The court:              Good evening, ladies and gentlemen.
                              Good evening, counsel.    Ladies and
                              gentlemen, you passed out this note at
                              9:30 p.m. stating, we cannot reach a
                              unanimous decision on any of the three

                                    - 15 -
J-A21020-17


                  charges.    Further, we do not see a
                  likelihood of reaching a unanimous
                  decision    given   time  for  further
                  deliberations.

                  And, I remind you that in order to return
                  a verdict on any charge, you must agree
                  unanimously.

                       *            *         *

                  Mr. Foreperson, does the jury think that
                  any additional instructions or clarifying
                  instructions on the law, as it applies to
                  this case, would help?

     Foreman:     We do not believe so.

     The court:   In your judgment, is there a reasonable
                  probability of the jury reaching a
                  unanimous verdict tonight or with further
                  deliberations?

     Foreman:     No, Your Honor.

     The court:   The jury does understand that it must be
                  unanimous?

     Foreman:     Correct.

                        *           *          *

     The court:   […D]o you feel further deliberations
                  would be helpful? I don’t need you to
                  elaborate on i[t] better [-] it would or
                  wouldn’t be?

     Foreman:     No we do not.

     The court:   But you are satisfied that you are not
                  going to reach a verdict?

     Foreman:     That’s correct.


                        - 16 -
J-A21020-17


     The court:              Regardless of how long you deliberate?

     Foreman:                That’s correct.

     The court:              Thank you, sir. Counsel?

     [Defense counsel]:      Obviously, your Honor, [w]e would
                             certainly like a verdict, but I would yield
                             to the [c]ourt’s direction. We would yield
                             to the [c]ourt’s decision.

     The court:              [Commonwealth?]

     The Commonwealth:       If the jury is convinced they are not
                             going to reach a verdict – would the jury
                             believe if we start fresh in the morning,
                             fresh and clear-minded, perhaps?

     The court:              Mr. Foreperson, do you think returning
                             tomorrow would be helpful?

     Foreman:                I do not believe so.      We, specifically,
                             discussed that.

     The court:              That was discussed among the jurors?

     Foreman:                It was, yes.

                                   *            *           *

     The court:              The [c]ourt then finds that the jury is
                             hopelessly deadlocked and declares a
                             mistrial.

Id. at 474-477.

     Established law allows the trial court to grant a mistrial when there is a

manifest necessity or when it appears to the trial court that there is no

reasonable probability of juror agreement. See Young, 35 A.3d at 59-60.

Here, the jury foreman, in the presence of the other jurors, firmly



                                   - 17 -
J-A21020-17



communicated to the court that the jury was deadlocked and, after

additional questioning by the trial court, the judge believed that to be the

case and declared a mistrial.     We discern no error or abuse of discretion.

See Hoover, 460 A.2d at 816; see also Marion, 981 A.2d at 236, citing

ABA Standards for Criminal Justice 15–5.4(c) (“The jury may be discharged

without having agreed upon a verdict if it appears that there is no

reasonable probability of agreement.”).         The jury foreman indicated the jury

was deadlocked by written note to the court and then upon the record

following additional questioning by the trial judge.        The foreman indicated

that there was no reasonable probability of unanimous jury agreement even

with further deliberations. The trial court agreed and then properly declared

a mistrial.   We discern no abuse of discretion and there is no merit to

Appellant’s claim.

      For all of the foregoing reasons, we discern no abuse of discretion in

granting a mistrial because the jury was deadlocked. Accordingly, there was

no abuse of discretion in subsequently denying Appellant’s motion to

dismiss.

      Order affirmed.

      Bender, J. joins this memorandum.

      Stabile, J. concurs in result.



Judgment Entered.



                                       - 18 -
J-A21020-17




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/14/2017




                          - 19 -
