Commonwealth v. Kennedy
Decision Date | 27 August 2019 |
Docket Number | No. 1038 MDA 2018,1038 MDA 2018 |
Citation | 218 A.3d 420 |
Parties | COMMONWEALTH of Pennsylvania v. Jerome Anthony KENNEDY, Jr., Appellant |
Court | Pennsylvania Superior Court |
Nicole J. Spring, Public Defender, Williamsport, for appellant.
Nicole M. Ippolito, Assistant District Attorney, Williamsport, for Commonwealth, appellee.
BEFORE: OLSON, J., McLAUGHLIN, J., and PELLEGRINI,* J.
OPINION BY McLAUGHLIN, J.:
Jerome Anthony Kennedy, Jr. appeals from the order denying his motion to dismiss, which alleged his prosecution violated the Double Jeopardy Clauses of the United States and Pennsylvania Constitutions.1 He argues the trial court abused its discretion in finding there was a manifest necessity for a mistrial during his first trial. We affirm.
The trial court set forth the following procedural history:
Trial Court Opinion, filed November 8, 2018, at 1-2 ("1925(a) Op.").
The court held an in camera hearing, where jurors expressed that they did not believe they would hold the incident against Kennedy, were unsure whether they would be able to fairly consider the credibility of Lucas, questioned whether Lucas would be in the courtroom, and felt that Lucas's actions were intimidating:
After the jurors left the courtroom, the court discussed the situation with counsel. Defense counsel stated there was a 75% chance that he would call Lucas as a witness. Id. at 100. The trial court noted that as the jurors were leaving, one juror asked, "[W]ell is she still going to be out there and still looking at us?" Defense counsel pointed out that the juror did not respond when the court asked if the jurors would hold the incident against Kennedy. Id. The trial court declared a mistrial. Neither party had asked it to do so. It reasoned that the jury was not capable of deciding the case fairly and impartially. Id. at 102. Kennedy did not object.
Following the mistrial, defense counsel filed a motion to withdraw. The trial court granted the motion and appointed an assistant public defender to represent Kennedy. On April 23, 2018, Kennedy filed a Motion to Dismiss Pursuant to Pa.R.Crim.P. 587(B), claiming re-prosecution violated the Double Jeopardy clauses of the United States and Pennsylvania Constitutions. Kennedy argued that there was not a manifest necessity for the court to declare a mistrial sua sponte, and it should have considered less drastic measures, including waiting to see if Kennedy would call Lucas to testify. On May 31, 2018, following an argument, the court denied the motion. Kennedy filed a Notice of Appeal.
Kennedy raises the following issue on appeal: "Whether the trial court erred in denying [Kennedy's] motion to dismiss based on [Kennedy's] constitutional right against double jeopardy?" Kennedy's Br. at 7.
Before we can reach the merits of Kennedy's claim, we must determine whether we have jurisdiction over the order denying his Motion to Dismiss.
An order denying a motion to dismiss on double jeopardy grounds may be appealable as a collateral order under Pennsylvania Rule of Appellate Procedure 313(b), if the trial court has determined that the motion is not frivolous. See Commonwealth v. Taylor , 120 A.3d 1017, 1021 (Pa.Super. 2015) (citing Commonwealth v. Brady , 510 Pa. 336, 508 A.2d 286, 291 (1986) ). Here, prior to the filing of the Notice of Appeal, the trial court did not make a finding as to whether Kennedy's Motion to Dismiss was frivolous. We therefore remanded to the trial court for it to make that determination. The trial court on remand concluded that it was not. Our jurisdiction is therefore proper. See Taylor , 120 A.3d at 1022-23.
We next address whether Kennedy has waived his challenge to the grant of a mistrial because he did not object when the trial court granted the mistrial. A defendant's "mere acquiescence to the sua sponte grant of a mistrial by the trial judge is not sufficient to waive his double jeopardy claims." Commonwealth v. McCord , 700 A.2d 938, 942 (Pa.Super. 1997) ; accord Commonwealth v. Rivera , 715 A.2d 1136, 1138 (Pa.Super. 1998). We therefore find that Kennedy did not waive his claim.
We will now address the merits of Kennedy's claim. Kennedy argues the trial court declared the mistrial prematurely. He notes that the jurors stated that they would not hold Lucas's behavior against Kennedy when rendering a verdict, and defense counsel was unsure whether he would call Lucas as a witness. He contends the court should have waited to see whether defense counsel called Lucas before declaring a mistrial, and if she in fact testified, the trial court could have issued a curative instruction, rather than grant a mistrial. He maintains that because the court did not take such measures, the double jeopardy doctrine bars retrial.
We review a trial court's decision to declare a mistrial due to a showing of manifest necessity for an abuse of discretion. Commonwealth v. Walker , 954 A.2d 1249, 1254 (Pa.Super. 2008) (en banc ) (citing Commonwealth v. Kelly , 797 A.2d 925 (Pa.Super. 2002) ).
Pennsylvania Rule of Criminal Procedure 605(B) provides: Pa.R.Crim.P. 605(B). "Where there exists manifest necessity for a trial judge to declare a mistrial sua sponte , neither the Fifth Amendment to the United States Constitution, nor Article I, § 10 of the Pennsylvania Constitution will bar retrial." Walker , 954 A.2d at 1254 (quoting Kelly , 797 A.2d at 936 ). Therefore, to determine whether double jeopardy bars a re-trial following a sua sponte grant of a mistrial, we must determine whether manifest necessity...
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