J-S44017-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DALE HODGES
Appellant No. 1746 WDA 2014
Appeal from the Judgment of Sentence September 29, 2014
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0002482-2012
CP-25-CR-0002490-2012
BEFORE: LAZARUS, J., STABILE, J., and JENKINS, J.
CONCURRING STATEMENT BY LAZARUS, J.: FILED SEPTEMBER 24, 2015
I concur in the result. However, in my opinion, the majority’s focus on
whether Hodges’ motion for a mistrial was untimely and resulted in waiver is
misplaced.
Pursuant to Pennsylvania Rule of Criminal Procedure 605, “[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). Indeed, the remedy of a mistrial “is an
extreme one, and is required only when an incident is of such a nature that
its unavoidable effect is to deprive the appellant of a fair and impartial trial.
Commonwealth v. Johnson, 719 A.2d 778, 787 (Pa. Super. 1998) (en
banc) (citation omitted).
J-S44017-15
Whether the jury could adequately hear the testimony of a
complaining witness gives rise to a question regarding whether Hodges was
denied a fair and impartial trial, with a unanimous verdict. See
Commonwealth v. Brown, 332 A.2d 828, 831-32 (Pa. Super. 1974)
(where juror’s responses were inconclusive regarding whether he heard all
testimony, hearing impairment was significant enough to prevent fair,
impartial trial and mistrial was required). Thus, instantly, the trial court was
obligated to consider whether the jury could render a fair verdict. Had the
trial court determined that the jury’s inability to hear testimony operated to
deny Hodges a fair tribunal, the trial court would have been required to
declare a mistrial sua sponte. Johnson, supra.
Ultimately, in my view, defense counsel’s delay in requesting a mistrial
should not be dispositive regarding whether the trial court appropriately
refused to grant a mistrial since it was the trial court’s obligation to ensure a
fair tribunal. However, as the record in this matter does not indicate clear
error on which to reverse the trial court for failure to order a mistrial sua
sponte, I concur in the majority’s result.
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