J-A15007-21
2021 PA Super 206
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ERNEST GOODS :
:
Appellant : No. 55 EDA 2020
Appeal from the Order Entered November 21, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0001306-2017
BEFORE: BOWES, J., STABILE, J., and MUSMANNO, J.
OPINION BY BOWES, J.: Filed: October 13, 2021
Ernest Goods appeals from the order that denied his motion to dismiss
based upon double jeopardy.1 We reverse the order and remand with
directions that Appellant be discharged.
The trial court offered the following summary of the history of this case.
On January 12, 2017, Appellant was arrested and charged
with possessing with the intent to deliver a controlled substance,
knowingly and intentionally possessing a controlled substance,
illegally possessing marijuana, illegally possessing a firearm,
carrying a firearm without a license, and carrying a firearm on the
public streets of Philadelphia.
On February 26, 2019, trial commenced on the above
charges. On February 27, 2019, this court granted Appellant
judgment of acquittal on the charge of possessing with the intent
to deliver a controlled substance. On February 28, 2019, this
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1 Since the trial court did not make a finding that Appellant’s motion was
frivolous, the interlocutory order was immediately appealable as a collateral
order. See Commonwealth v. Gross, 232 A.3d 819, 832 (Pa.Super. 2020)
(en banc); Pa.R.Crim.P. 587(B)(6).
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court granted Appellant a directed verdict on the charge of
knowingly and intentionally possessing a controlled substance,
marijuana, and [the jury] was unable to reach a unanimous
verdict on the firearms charges. This court therefore declared a
mistrial on the firearms charges and ordered a new trial for these
alleged crimes. On August 13, 2019, Appellant’s retrial began on
the sole charge of illegally possessing a firearm . . . . During
defense counsel’s cross-examination of the Commonwealth’s first
witness, this court declared a mistrial.
On September 6, 2019, Appellant filed a motion to dismiss
the case on grounds of double jeopardy. On November 21, 2019,
following a hearing, this court entered an order denying
Appellant’s motion. On December 16, 2019, Appellant filed a
notice of appeal of this court’s order, and on February 27, 2020,
Appellant filed a statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b).
Trial Court Opinion, 6/11/20, at 1-2 (citations and unnecessary capitalization
omitted). Thereafter, the trial court authored a Pa.R.A.P. 1925(a) opinion
supplying the reasoning for its denial of Appellant’s motion that it failed to put
on the record at the time of the decision as required by Pa.R.Crim.P. 587(B)(3)
and (4).2
____________________________________________
2 The trial court also neglected to advise Appellant of his appellate rights in
accordance with Pa.R.Crim.P. 587(B)(5) and (6). See Trial Court Opinion,
6/11/20, at 11-12 n.2. However, as noted in its opinion, Appellant was not
prejudiced by this error, as he timely filed the appropriate appeal.
We further note that Appellant does not claim that the trial court denied him
the opportunity to present evidence at the hearing, or that he was prejudiced
by the trial court’s failure to comply with the requirements of Rule 587(B)(3)
directing that it enter on the record a statement of findings of fact and
conclusions of law. Cf. Commonwealth v. Kemick, 240 A.3d 214, 221
(Pa.Super. 2020) (vacating order and remanding for a new hearing where the
trial court did not allow the defendant to put on his witnesses or otherwise
create a record, which precluded this Court from conducting a merits review
(Footnote Continued Next Page)
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Appellant presents the following question for our consideration:
Did the lower court abuse its discretion when it denied Appellant’s
motion to dismiss for double jeopardy grounds as there was no
manifest necessity to abort a (second) trial over the defense
objection where the ostensible reason for the declaration of
mistrial was two likely proper questions posed by the defense
during cross, objections to the questions were sustained and
never answered, and where the court failed to fashion a less
drastic and detrimental remedy?
Appellant’s brief at 4.
We begin with a review of the applicable legal principles. “The question
of whether a defendant’s constitutional right against double jeopardy would
be infringed by a successive prosecution is a question of law. When presented
with a question of pure law, our standard of review is de novo and our scope
of review is plenary.” Commonwealth v. Gross, 232 A.3d 819, 834-35
(Pa.Super. 2020) (en banc) (cleaned up).
Both the federal and state constitutions contain double jeopardy clauses
that are “grounded on the concept that no person should be harassed by
successive prosecutions for a single wrongful act and that no one should be
punished more than once for the same offense.” Commonwealth v. Banks,
253 A.3d 768, 777 (Pa.Super. 2021) (cleaned up). Our Supreme Court has
explained that, “because of the double jeopardy clause’s policy of prohibiting
multiple trials, retrial is only grudgingly allowed, and is limited to cases in
____________________________________________
of the double jeopardy issue). Furthermore, our review of Appellant’s claim
is not impeded by this oversight by the trial court.
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which the defendant consented or the declaration of a mistrial was manifestly
necessary.” Commonwealth v. Wardlaw, 249 A.3d 937, 949 (Pa. 2021)
(cleaned up). “A mistrial is an extreme remedy only warranted when the
prejudice to the movant cannot be ameliorated to ensure a fair trial.”
Commonwealth v. Risoldi,
238 A.3d 434, 458 (Pa.Super. 2020).
Consequently, “to determine whether double jeopardy bars a re-trial
following a . . . grant of a mistrial, we must determine whether manifest
necessity existed for the mistrial.” Commonwealth v. Kennedy, 218 A.3d
420, 424 (Pa.Super. 2019). Manifest necessity exists “only where the incident
upon which the motion is based is of such a nature that its unavoidable effect
is to deprive the [non-moving party] of a fair trial by preventing the jury from
weighing and rendering a true verdict.” Commonwealth v. Cash,
137 A.3d
1262, 1273 (Pa. 2016) (internal quotation marks omitted). Hence, before
deciding whether a mistrial is necessary, “the court must discern whether
misconduct or prejudicial error actually occurred[.]” Commonwealth v.
Baldwin,
158 A.3d 1287, 1293 (Pa.Super. 2017). “A mistrial is not necessary
where cautionary instructions are adequate to overcome prejudice.”
Cash,
supra at 1273 (cleaned up).
We have observed that, “as a general rule, the trial court is in the best
position to gauge potential bias and deference is due the trial court when the
grounds for the mistrial relate to jury prejudice.” Commonwealth v.
Walker, 954 A.2d 1249, 1256 (Pa.Super. 2008). This is because “the trial
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judge is the best arbiter of prejudice, because he or she has had the
opportunity to observe the jurors, the witnesses, and the attorneys and
evaluate the scope of the prejudice.” Id.
In conducting our review of the trial court’s determination, we “do not
apply a mechanical formula in determining whether a trial court had a manifest
need to declare a mistrial.” Kennedy, supra at 424.
Whether a trial court should grant a mistrial after jeopardy has
attached is not a decision to be lightly undertaken, since the
defendant has a substantial interest in having his fate determined
by the jury first impaneled. Further, prior to granting a mistrial,
a trial court should consider whether less drastic measures are
available. We have stated that 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 may be 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. When determining whether
manifest necessity exists any doubt must be resolved in favor of
the defendant.
Id. (cleaned up).
With these principles in mind, we next examine the events leading to
the declaration of a mistrial. The Commonwealth explained to the jury in its
opening statement that the incident in question began when the police
received a radio call that a man who was dressed in dark clothing had a gun
in the area of a certain intersection in the City of Philadelphia. Officers Joseph
DiGangi and John Duaime of the Philadelphia Police Department went to the
scene and saw Appellant there with three other men. When Appellant spied
the officers, he fled on foot. Officer Duaime chased Appellant and eventually
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tackled him, observing a firearm magazine fall from Appellant’s pocket.
Officers subsequently recovered a gun with an extended magazine into which
the magazine recovered from Appellant also fit. See N.T. Trial, 8/13/19, at
22-24.
Appellant’s version of events, as explained in his opening statement,
was that he was walking to his sister’s house, minding his own business, when,
right before he reached his destination he was tackled, handcuffed, and
“stomped” by police, resulting in a broken leg. Appellant’s theory of the case
was that he was on trial because he just happened to meet the general
description and location of the man the police were looking for, and was just
close enough to the gun that was later found 200 feet away, in another yard,
on the other side of an eight-foot-high fence. Id. at 28-29.
The Commonwealth’s first witness was Officer Duaime, who testified on
direct examination consistent with the Commonwealth’s opening statement.
Id. at 32-48. Officer Duaime further explained that, since he had sustained
some cuts and scrapes during the arrest, as a result of employing force against
Appellant, he prepared a use of force memorandum following the incident.
That writing reflected that Appellant was transported to the hospital following
the arrest due to injuries to his legs. Id. at 53. Officer Duaime also testified
as to a number of the Commonwealth’s exhibits, including images of the
scenes of the encounter and chase. Id. at 54-60.
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Appellant’s counsel began the cross-examination of Officer Duaime by
delving into whether the initial radio call had been based upon a verified or
anonymous tip, and the fact that Officer Duaime had been with the force for
barely one year before Appellant’s arrest. Id. at 62-68. Thereafter, the
defense elicited testimony indicating that the radio alert that brought the
officers to Appellant referenced merely a black male in dark clothes at a certain
intersection, and did not offer specifics concerning the suspect’s clothing,
height, complexion, facial hair, or other identifying characteristics that
described Appellant at the time the officers encountered him. Id. at 74-76,
87. Officer Duaime was then walked through the series of events, from his
initial encounter with Appellant to the discovery of the firearm, through
detailed questioning and the use of a map. Id. at 77-100.
Defense counsel also reviewed officer Duaime’s use of force
memorandum and confirmed that Appellant had sustained a broken leg during
this encounter. Id. at 100-03. Officer Duaime was twice asked if he had
stomped on Appellant, but the Commonwealth’s objections were sustained
and the questions were left unanswered. Id. at 103. Next, counsel
questioned Officer Duaime concerning the absence from the file of a form that
was supposed to be created when someone was transported to a hospital, and
some of the information about Appellant that was contained in forms that were
included. Id. at 103-08. Then, the following exchange occurred:
Q. And finally, Officer Duaime, you’re currently under IA
investigation for your Facebook post?
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[COMMONWEALTH]: Objection, Your Honor.
THE COURT: Sustained.
May I see counsel at sidebar?
[Whereupon the jurors and Officer Duaime left the courtroom.]
[COMMONWEALTH]: Your Honor, my request at this point is for
this to be declared a mistrial.
THE COURT: And your grounds?
[COMMONWEALTH]: Your Honor, based on the blatant use of
the Facebook questioning, the fact that this is a direct
assassination on the character of this particular officer, we
did pass over all of the disclosure for all of the officers that
required disclosure from my office and he was not one of
those people. The fact that the defense did not have a
motion to bring in this -- this prior bad acts testimony under
404(b) Character Evidence and the fact that it was not
brought in a motion in limine at all to include this type of
evidence.
THE COURT: Who did you pass the disclosures to?
[COMMONWEALTH]: I passed those directly to Miss Sen.
THE COURT: And was that regarding officers who were on the
witness list?
[COMMONWEALTH]: There was one officer that is on the
witness list that had a disclosure that has nothing to do with
any -- any relevant portion of this trial.
THE COURT: [Defense counsel].
[DEFENSE COUNSEL]: Thank you, Your Honor.
As Your Honor is aware, under Pennsylvania Rule of Criminal
Procedure 404, the defense does not have to file a motion when
talking about other acts. The only people that have to file a
motion and give notice are, in fact, the government.
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In addition, the government was on notice because, by [the
Commonwealth]’s own admission, she told me yesterday that she
believed that I would be receiving information about Officer
Duaime[‘s] Facebook post in the Plain View Project.
Further, what the case law says when referring to any other
act that would make a fact more probable than not from the side
of the defense and in which we opened on, they broke
[Appellant’s] leg, which is a fact.
That any relevant fact which would include Officer Duaime’s
public statements endorsing violence against criminal defendants
and making racially tinged remarks, I should be allowed to ask
those questions.
I do not believe that my asking a question that was never
answered requires a mistrial.
It is my belief that because Officer Duaime didn’t answer
and the Commonwealth had asked for a curative and simply
saying disregard that question, we’re not here to discuss Facebook
post or whatever it is, that would be fine. But the fact of the
matter is, Commonwealth is aware of these posts, Your Honor,
and –
THE COURT: Aware of what posts?
[DEFENSE COUNSEL]: The posts that Officer Duaime made.
THE COURT: What posts are those?
[DEFENSE COUNSEL]: So there are several posts, it is on the
Plain View Project, made by Officer Duaime, under his own
name, attributed to him. And we can call in [an attorney]
from [the District Attorney’s] Conviction Integrity Unit in
SIU to explain that, in fact, they are aware of these posts –
THE COURT: Is he part of the Facebook, the racial group –
[DEFENSE COUNSEL]: Yes. He is part of the 323 [active-duty
group participants].
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THE COURT: Okay. And what is the -- some of those people
were fired?
[DEFENSE COUNSEL]: So two were fired. Seven resigned, 72 are
on desk duty.
THE COURT: Okay.
[DEFENSE COUNSEL]: The rest are being investigated.
THE COURT: So his investigation is pending?
[DEFENSE COUNSEL]: Well, he is probably currently under
investigation.
THE COURT: Okay.
[DEFENSE COUNSEL]: And that was my only question.
THE COURT: Okay. And you didn’t raise this pretrial because
you didn’t think you had to, correct, based on 404?
[DEFENSE COUNSEL]: Yes, Your Honor.
THE COURT: Anything else?
[DEFENSE COUNSEL]: No.
THE COURT: Okay. Motion granted.
Id. at 109-13.
The trial court did not elaborate upon its ruling when issued. Nor did it
offer an explanation on the record when it denied Appellant’s motion to
dismiss. See N.T. Motion, 11/21/19, at 14. However, the court offered the
following rationale in its Pa.R.A.P. 1925(a) opinion:
Here, defense counsel intended to use the widespread
investigation of police officers’ Facebook posts as evidence that
Officer Duaime arrested and beat Appellant because of his race.
However, there is no connection whatever between this case and
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any Internal Affairs investigation involving Officer Duaime’s social
media use. The investigation was completely irrelevant. It does
not remotely establish that Officer Duaime had a “bias” or
“motive” to falsely arrest or beat Appellant.
Appellant’s motion to dismiss confirmed the complete
irrelevance of Officer Duaime’s Facebook posts. Appellant
attached merely five Facebook comments to his motion. Officer
Duaime purportedly made two posts on April 13, 2013, in
response to a news story of a bomb-strapped person who was
surrounded in his home by police officers. Officer Duaime
purportedly criticized the media coverage in one comment, and in
another comment he expressed his desire “to get just 10 mins
with” presumably the suspect whom he could use as “a good
punching bag.” In the next Facebook post, dated July 8, 2014,
Officer Duaime purportedly responded to a news story in which
the mother of a “cop-killer” blamed the deceased officer for
getting shot. Officer Duaime purportedly called the cop-killer and
his defenders “scumbags” and wrote that if the killer’s mother
believed her son was “a good person after what he did,” then she
could “burn in hell with him.”
In the final Facebook post, dated April 26, 2017 - i.e., after
Appellant’s arrest in this case - Officer Duaime responded to a
news report that someone shot a State Trooper outside a Wawa
and then barricaded himself inside a home. Officer Duaime
purportedly remarked that he was “praying” for the victim and
“everyone else still out there with this animal,” and to “[p]lease
be safe.” Officer Duaime also purportedly wrote, “Damm this
makes me so angry.”
The above social media posts plainly have no relevance to
this case under Rule 404(b) or any other rule of evidence. They
have no bearing on Officer Duaime’s arrest of Appellant.
Moreover, defense counsel already knew that Officer Duaime was
not even a police officer when he purportedly made the Facebook
posts from 2013 and 2014, as the officer testified on cross
examination that he did not join the force until June 2015. The
officer purportedly made the remaining two posts after he already
arrested Appellant.
There simply is no nexus, let alone a “close factual nexus,”
between the Facebook posts and Officer Duaime’s conduct in
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arresting Appellant or testifying at trial. Defense counsel’s
needless raising of the issue was therefore wholly unjustified.
....
By the time of trial in this case, the Plain View Project had
received nationwide media coverage. The endeavor resulted in
the termination and other sanctioning of multiple Philadelphia
police officers for making Facebook posts that were racist,
homophobic, bigoted, and/or in support of police brutality. As
reported by the media, the exposure prompted the Philadelphia
District Attorney’s Office to place several officers on its “do not
call to testify” list. Critically, however, Officer Duaime received no
such sanction or reprimand for his Facebook posts. The
Commonwealth’s claim that he was “cleared” of any wrongdoing
was not rebutted by defense counsel.
The widespread media attention given to the investigation
of the overtly racist Facebook posts of other police officers, many
of whom were terminated or otherwise punished, created a
“manifest necessity” for declaring a mistrial when defense counsel
invoked the issue against Officer Duaime. The jury’s central duty
in this case was to determine Officer Duaime’s credibility. He was
the arresting officer and the Commonwealth’s primary witness.
By bringing attention to the Facebook investigation, defense
counsel intended to imply that Officer Duaime is a violent racist
who falsely arrested and beat Appellant because of his skin color.
However, the Internal Affairs investigation could not justify
defense counsel’s implication, as Officer Duaime was cleared of
wrongdoing. After sidebar discussions with counsel, this Court
determined that a curative instruction could not rectify the
potential for unfounded jury bias against the Commonwealth’s
central witness, and that a mistrial was therefore warranted.
Defense counsel’s raising of the issue unduly tarnished
Officer Duaime as a rogue, racist cop whose testimony merited no
credibility. The potential that jurors formulated a bias by
connecting Officer Duaime to the overt racism and improprieties
of other officers under investigation, created a “manifest
necessity” for a mistrial in these specific circumstances. . . .
Trial Court Opinion, 6/11/20, at 7-8, 10-11 (citations and footnotes omitted).
Notably, while the trial court found the question at issue to be “wholly
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unjustified,” it did not make a finding that counsel asked the question to
provoke the Commonwealth to seek a mistrial.
With this background established, we turn to Appellant’s arguments.
Appellant first contends that the questioning at issue was not even
objectionable, let alone grounds for declaring a mistrial. Rather, he maintains,
the cross-examination was a proper exploration of the officer’s bias against
accused individuals in general, and Appellant in particular. See Appellant’s
brief at 16-18. Appellant further argues that even if the questioning was
improper, there was no manifest necessity to declare a mistrial, because the
questions were not answered and the trial court failed to consider less drastic
alternatives, such as a curative instruction, which would have ameliorated any
prejudice. Id. at 19-24.
The Commonwealth responds that the questions asked by defense
counsel were inappropriate, as they were designed to elicit other-bad-acts
evidence that is inadmissible pursuant to Pa.R.E. 404(b). See
Commonwealth’s brief at 8-11. Further, it asserts the question about the
investigation concerning the officer’s Facebook post created a manifest
necessity for a mistrial because it “signaled to the jury that the officer was
part of the widely publicized exposé on racist and corrupt police officers,
especially where the question followed multiple suggestions that the officer
had stomped on him.” Id. at 12. Finally, the Commonwealth claims that the
trial court did consider alternatives to a mistrial during an off-the-record
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sidebar prior to its ruling, as Appellant acknowledged in his motion to dismiss.
The Commonwealth posits that the court’s failure to memorialize that
consideration on the record did not evidence a neglect to undertake the proper
deliberation which entitles Appellant to relief. Id. at 13-14 (citing Appellant’s
Motion to Dismiss, 9/16/19, at ¶ 6).
We need not resolve the issue of the admissibility of the evidence.
Rather, we hold that, even assuming the question asked by defense counsel
was wholly inappropriate, the record does not support the trial court’s
representation that it properly rejected less drastic corrective measures and
concluded that a mistrial was manifestly necessary.
We first observe that the trial court’s assessment of the prejudice
suffered by the Commonwealth appears to be based upon the assumption that
the jury not only has a full awareness of the Plain View Project and the
disturbing subset of law enforcement culture it revealed, but also necessarily
associated a question about an “IA investigation” concerning Officer Duaime’s
“Facebook post” with the Project. However, there is no suggestion in the
certified record that the Plain View Project was a topic addressed during voir
dire, and the trial court did not undertake any questioning of the jury, as a
group or individually, to ascertain whether any such awareness existed in
these particular individuals. Cf. Commonwealth v. Bycer, 401 A.2d 740,
742 (Pa. 1979) (holding mistrial was not necessary where the trial court’s
questioning of jurors established that the jurors did not see or did not
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comprehend the import of improper conduct). Instead, the trial court merely
offered links in its Pa.R.A.P. 1925(a) to several internet articles about the
discovery of the Facebook group and the fact that some of its members were
Philadelphia police and were being investigated. See Trial Court Opinion,
6/11/20, at 10 n.1. Consequently, the certified record bespeaks only the mere
potential of prejudice to the Commonwealth, not a factual finding that
Appellant’s jurors understood the question to insinuate the full extent of what
the trial court suggests.
Given what appears to be an unduly dire assessment of prejudice, given
the dearth of evidentiary support in the certified record, it is not at all clear
that a cautionary instruction would not have sufficed to remedy the situation.
We find this Court’s decision in Commonwealth v. Rivera, 715 A.2d 1136,
1139 (Pa.Super. 1998), instructive. In that case, this Court was tasked with
determining whether manifest necessity existed to grant the Commonwealth’s
motion for a mistrial where the defense asked the victim, who was the
Commonwealth’s only witness, if he “h[u]ng out in the bar called The Village.”
Id. at 1137. The defense intended to later impeach the victim with a witness
who twice had conversations about the incident in question with the victim at
that establishment. The Commonwealth objected and moved for a mistrial at
a sidebar conference. The trial court granted the Commonwealth’s motion,
stating “the only inference this Court can draw is that he is a drunkard, and
that is not proper. It is too prejudicial for me to permit it to go on.”
Id. at
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1138 (cleaned up). After the trial court denied the defendant’s motion to
dismiss the subsequent prosecution based upon double jeopardy, this Court
reversed, explaining as follows:
[W]e conclude that manifest necessity did not exist to justify
the trial court’s declaration of a mistrial. . . . [W]e find no
evidence of intentional conduct on the part of defense counsel to
provoke the Commonwealth to request a mistrial. . . .
It may well be true that defense counsel could have phrased
the question in a more appropriate manner. However, we cannot
agree that the question was so highly prejudicial as to give rise to
a finding of manifest necessity. Here, the Commonwealth’s
objection was to the form and content of the question and not to
any response by the witness. The sidebar discussion took place
without any response having been given by the witness to the
question. Here, [the victim] was never given the opportunity to
respond to the question. Had he answered “No,” there could not
have been any negative inference. Our Supreme Court has
declared: “It is well settled in the law that attorneys’ statements
or questions at trial are not evidence.” Thus, had the trial court
given a curative instruction in the face of no response by the
witness, any possible negative inference by a juror would surely
have been overcome.
Id. at 1139 (cleaned up).
The Commonwealth maintains that “[t]he powerful and readily apparent
context of the question [asked by Appellant’s counsel] distinguishes this case
from [Rivera].” Commonwealth’s brief at 13. Had Appellant’s counsel
actually referenced the Plain View Project, intimated that Officer Duaime was
part of a larger investigation into impropriety, or revealed to the jury the
content of Officer Duaime’s posts, we might agree, and conclude that the trial
court would have been justified in determining that Appellant sought to
provoke the Commonwealth to request a mistrial and that there was no other
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means for curing the damage. However, the question asked was merely
whether Officer Duaime was “currently under IA investigation for [his]
Facebook post,” Officer Duaime did not answer the question, and the jury
neither saw nor heard anything about any of the social media posts referenced
by the trial court. For all the jury knew, based upon the certified record before
us, counsel may have been speaking of a Facebook post about Appellant in
particular, or about a matter wholly unrelated to his police work.
Furthermore, immediately following the question the Commonwealth
maintained that Officer Duaime had been cleared of any wrongdoing before
he testified at Appellant’s trial. Yet, the trial court did not take steps to confirm
whether any investigation was undertaken or concluded in Officer Duaime’s
favor. If the trial court had taken a recess to determine the facts, any
potential for prejudice may have been able to be remedied by allowing the
Commonwealth to elicit on re-direct the fact that Officer Duaime had been
cleared of any Facebook-related wrongdoing. In any event, as Appellant notes
in his brief, the trial court had the power to strike the question and instruct
the jury to ignore it, reminding them that questions are not evidence. See
Appellant’s brief at 19. Indeed, the trial court had instructed the jury as
follows before Officer Duaime testified:
Statements made by counsel are not evidence. The
questions that counsel put to the witness are not evidence.
It is the answers to those questions by the witness that provide
the evidence for you.
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You should not speculate or guess that a fact may be
true merely because one of the lawyers asks a question
which assumes or suggests that a fact is true.
Sometimes there will be objections to the questions that are
asked by counsel. If I overrule the objection to the question, you
may consider the answer. If, however, I sustain the objection to
the question, that means that I will not allow an answer to be
given. And if one has already been given, I will most likely direct
you to disregard it and you must do so.
N.T. Trial, 8/13/19, at 17 (emphases added).
It is well-settled that jurors are presumed to follow the trial court’s
cautionary instructions. See, e.g., Risoldi, supra at 458. See also
Commonwealth v. Cole,
167 A.3d 49, 77 (Pa.Super. 2017) (concluding
mistrial was not warranted by prosecutor’s comments because a cautionary
instruction was presumably followed). The certified record in the case sub
judice does not evince what consideration, if any, the trial court gave to
employing the less-drastic measure of a cautionary instruction.
Even if such an instruction were pondered and rejected in an off-the-
record discussion, we cannot conclude that the certified record reflects that
the trial court offered a sound and reasonable basis for inferring that a
cautionary instruction to the jury would not be sufficient. As such, the certified
record does not support that the trial court engaged in a proper use of its
discretion before declaring a mistrial. Accord Commonwealth v. Cobb, 28
A.3d 930, 935 (Pa.Super. 2011), aff’d,
65 A.3d 297 (Pa. 2013) (per curiam
order) (“[W]e are convinced that less severe remedies than a mistrial existed
in this case at the time the mistrial was declared. The record is absolutely
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devoid of any indication that the trial court considered any less drastic
measures.”).
Significantly, this Court and our Supreme Court have repeatedly held
that the extreme remedy of a mistrial was unwarranted when an improper
question went unanswered by the witness. For example, in Risoldi, the
prosecution asked a question of a defense witness which arguably suggested
that the defense had the responsibility to produce evidence, shifting the
burden of proof from the Commonwealth to the defense. The defense
objected before the witness answered. The trial court declined to grant the
defense’s request for a mistrial, instead concluding that a cautionary
instruction reminding the jury that the defense had no obligation to call any
witnesses was sufficient to cure any prejudice. On appeal, we rejected the
defendant’s claim that the trial court was compelled to declare a mistrial
following the improper question by the prosecution, highlighting that the
defendant immediately objected and the witness did not answer the question.
We held that the cautionary “instruction, coupled with the instructions given
at the beginning of the trial and in the final charge, was sufficient to allay any
prejudice that may have arose from the question[.]” Risoldi, supra at 460.
In Commonwealth v. Jones, 668 A.2d 491 (Pa. 1995), the prosecution
attempted to impeach a defense witness by referencing prior convictions, but
improperly included non-crimen falsi convictions. Specifically, the jury heard
the following before the defense objected: “Now, you in fact—let’s see, were
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convicted of robbery, robbery, robbery, three counts of robbery, assault,
reckless endangering—.” Id. at 509. The defense moved for a mistrial, the
motion was denied, and our Supreme Court affirmed, explaining that although
the prosecutor behaved improperly, no “mistrial was warranted since the
question was not answered. The jury was instructed in opening and closing
that the prosecution’s statements were not to be considered by the jury as
evidence.”
Id.
Similarly, in Commonwealth v. Baranyai, 419 A.2d 1368 (Pa.Super.
1980), the prosecution attempted to impeach the defendant by asking him if
he remembered telling a witness that he would press charges against all the
prosecution’s witnesses if he were acquitted. The trial court sustained a
defense objection and instructed the jury to disregard the question, but denied
the defense’s request for a mistrial. This Court affirmed, ruling as follows:
“we need not decide whether the inquiry proposed by the prosecuting attorney
was a bona fide attempt to show such intimidation, for the trial court sustained
an objection thereto and instructed the jury to disregard the question. A
mistrial, therefore, was not warranted.”
Id. at 1371.
As noted above, this Court must err on the side of the defense in
determining whether a mistrial was manifestly necessary. See Kennedy,
supra at 424 (“When determining whether manifest necessity exists any
doubt must be resolved in favor of the defendant.” (cleaned up)). Given that
this Court and our Supreme Court have held that unanswered questions did
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not require a mistrial when the defense actually wanted one, it follows that
granting a mistrial based upon similar misconduct is even less warranted in
the instant case where the defendant opposed the motion.
In sum, we conclude that, resolving all doubts in favor of the defendant,
it is not manifest from the certified record that the declaration of a mistrial
was necessary here, where the trial court took no measures to alleviate any
potential for prejudice, and instead merely assumed there had been extreme
prejudice. As such, a third trial of Appellant on the charge at issue is
impermissible pursuant to the Double Jeopardy clauses of the state and
federal constitutions, and the trial court erred in denying Appellant’s motion
to dismiss. We therefore reverse the trial court’s November 21, 2019 order
and discharge Appellant.
Order reversed. Remanded with directions that Appellant be
discharged. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/13/21
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