Commonwealth v. Goods

265 A.3d 662

COMMONWEALTH of Pennsylvania

v.Ernest GOODS, Appellant

No. 55 EDA 2020

Superior Court of Pennsylvania.

Argued July 20, 2021

Filed: October 13, 2021

Isla A. Fruchter, Public Defender, Philadelphia, for appellant.

Aaron J. Marcus, Public Defender, Philadelphia, for appellant.

Owen W. Larrabee, Public Defender, Philadelphia, for appellant.

Keir N. Barros-Bradford, Public Defender, Philadelphia, for appellant.

Matthew H. Davis, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Lawrence J. Goode, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

BEFORE: BOWES, J., STABILE, J., and MUSMANNO, J.

OPINION BY BOWES, J.:

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 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

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 which the defendant consented or the declaration of a mistrial was manifestly necessary." Commonwealth v. Wardlaw , ––– Pa. ––––, 249 A.3d 937, 949 (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 , 635 Pa. 451, 137 A.3d 1262, 1273 (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 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 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.

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....