J-S89043-16
2017 PA Super 95
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
DANIELLE BALDWIN
Appellant No. 2719 EDA 2015
Appeal from the Order August 3, 2015
in the Court of Common Pleas of Philadelphia
Municipal Court - Traffic Division
at No(s): MC-51-CR-0035622-2014
BEFORE: SHOGAN, MOULTON, and FITZGERALD,* JJ.
OPINION BY FITZGERALD, J.: FILED APRIL 10, 2017
Appellant, Danielle Baldwin, appeals from the order of the Philadelphia
County Court of Common Pleas reversing the judgment of acquittal entered
in the Philadelphia Municipal Court and remanding the case to the Municipal
Court for a new trial. Appellant contends that double jeopardy prohibits a
new trial. We affirm.
On the evening of October 16, 2014, Appellant allegedly pointed a gun
at her neighbor, Jamia Williams. Williams contacted the police, who arrested
Appellant, searched her residence and recovered a firearm. Williams was
arrested and charged with possession of an instrument of crime,1 prohibited
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. § 907.
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offensive weapons,2 simple assault,3 reckless endangerment4 and terroristic
threats.5
Appellant filed a motion in the Municipal Court to suppress the firearm.
On February 11, 2015, following an evidentiary hearing, the Municipal Court
granted the motion to suppress. The court determined that Appellant
consented to the search of her residence following her arrest, but her
consent was involuntary because the arresting officers failed to give her
Miranda6 warnings. N.T., 2/11/15, at 23.
Trial commenced immediately after the suppression ruling. Before
testimony began, the court stated: “Everyone understands the consent is
illegal and the fruits are thrown out . . . . All witnesses are sequestered. If
anyone needs to talk to their witnesses because [of] what just happened in
the motion, I will suspend [the] sequestration order for a [minute] while any
witness is spoken to.” Id. at 24.
Williams, the Commonwealth’s first trial witness, testified that in the
early evening of October 16, 2014, she was standing outside of her house on
the street, while Appellant was standing in her house across the street in
2
18 Pa.C.S. § 908.
3
18 Pa.C.S. § 2701.
4
18 Pa.C.S. § 2705.
5
18 Pa.C.S. § 2706.
6
Miranda v. Arizona, 384 U.S. 436 (1966).
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front of an open window. Id. at 25-27. Williams and Appellant were
arguing about the recent arrest of Williams’ baby’s father. Id. at 25-26.
During the argument, Appellant disappeared from her window but returned
moments later and pointed a gun at Williams. Id. at 28.7
Defense counsel objected to Williams’ testimony about the gun and
moved for a mistrial. Id. at 28-29. The court sustained defense counsel’s
objection and granted a mistrial. Id. at 29-30. Defense counsel then
requested a “judgment of acquittal” based on “prosecutorial misconduct.”
Id. at 30. The court responded: “The motion is granted and a mistrial is
granted. Jeopardy has attached, and so at this point . . . this case is done.
The motion for judgment of acquittal is granted.” Id. at 33.
The Commonwealth appealed the judgment of acquittal to the Court of
Common Pleas on March 13, 2015. On August 3, 2015, the Court of
Common Pleas entered an order reversing the judgment of acquittal and
remanding the case to the Municipal Court for trial. The Court of Common
Pleas determined that Appellant’s double jeopardy rights were not violated,
because the Municipal Court’s ruling “did not constitute an acquittal[,] nor
was there prosecutorial misconduct.” Pa.R.A.P. 1925 Op., 3/9/16, at 5.
7
Significantly, this incident took place before the police arrived on the
scene. N.T. at 8 (Officer Rios’ testimony during suppression hearing that
police responded to radio call of “a person with a weapon” and “met the
complainant at the corner[,] who stated the female inside the house pointed
a shotgun at her”).
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Appellant timely appealed to this Court on September 2, 2015. Both
Appellant and the Court of Common Pleas complied with Pa.R.A.P. 1925.
Appellant raises four issues in this appeal:
1. Double jeopardy prohibits a new trial in this case; the
[C]ommon [P]leas [C]ourt erred in allowing the
[C]ommonwealth to appeal from a judgment of acquittal
because the government is categorically prohibited from
appealing judgments of acquittal, even if the lower trial
court was egregiously wrong to enter the judgment of
acquittal.
2. In the alternative event that there are any
circumstances under which a government can so appeal,
the judgment of acquittal here was entered by the trial
judge and is unappealable.
3. In the alternative event that the appellate courts do not
so hold, [the] [C]ommon [P]leas [Court] erred here (and
[the M]unicipal [C]ourt ruled correctly, and retrial is
prohibited no matter how the [M]unicipal [C]ourt judgment
is described) because double jeopardy prohibits retrial
after a mistrial caused by prosecutorial misconduct:
following the suppression ruling, the [C]ommonwealth
intentionally elicited testimony about the gun that the
[M]unicipal [C]ourt had suppressed.
4. In the alternative event that the appellate courts do not
so hold, [the C]ommon [P]leas [Court] erred here (and
[the M]unicipal [C]ourt ruled correctly, and retrial is
prohibited no matter how the [M]unicipal [C]ourt judgment
is described) because double jeopardy prohibits retrial
after a mistrial caused by prosecutorial misconduct: even if
the [M]unicipal [C]ourt judge erred in her understanding of
the scope of suppression rulings, once she ordered the
[C]ommonwealth to inform all of its witnesses about the
suppression ruling, and warned the [C]ommonwealth that
jeopardy was about to attach, the [C]ommonwealth was
bound by her rulings (even if erroneous) absent a pre–trial
appeal. Because the [C]ommonwealth could have appealed
her orders, and because her warnings about jeopardy
attaching made sense only if she were warning against
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prosecutorial misconduct, and because her inclusion of all
witnesses (including civilians) could only have anticipated
the non-police testimony the [C]ommonwealth thinks is
not normally covered by suppression rulings, the
[C]ommonwealth’s choice not to warn the civilian
witness—and the [C]ommonwealth’s eliciting of prohibited
testimony (even if erroneously prohibited) was an
intentional act by the [C]ommonwealth in violation of the
[M]unicipal [C]ourt order, was prosecutorial misconduct
causing the mistrial, and therefore [was] prohibited[,]
placing the defendant again in jeopardy.
Appellant’s Brief at 2-3.
We address the first two issues together, because they are
interrelated. Appellant asserts that double jeopardy prohibits the
Commonwealth from appealing the judgment of acquittal entered by the
Municipal Court. We disagree. Appellant’s argument rests on the premise
that the Municipal Court entered a judgment of acquittal. We disagree and
conclude that the Municipal Court declared a mistrial instead of entering a
judgment of acquittal.
“[T]he question of whether a defendant’s constitutional right against
double jeopardy [would be infringed by a successive prosecution] is a
question of law. Hence, [when reviewing this issue,] our scope of review is
plenary and our standard of review is de novo.” Commonwealth v.
Hallman, 67 A.3d 1256, 1260 (Pa. Super. 2013) (citation omitted).
Under the Double Jeopardy Clauses of the United States and
Pennsylvania Constitutions, as well as under the Pennsylvania Crimes Code,
a second prosecution for the same offense after acquittal is prohibited. See
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U.S. Const. Amend. V; Pa. Const. Art. I, § 10; 18 Pa.C.S. § 109(1). This
rule is confined to cases where the prosecution’s failure to meet its burden is
clear, and a second trial would merely afford the prosecution another
opportunity to supply evidence that it failed to submit during the first trial.
See Commonwealth v. Vogel, 461 A.2d 604, 610 (Pa. 1983) (citing Burks
v. United States, 437 U.S. 1, 17 (1978)). “This prohibition . . . prevents
the State from honing its trial strategies and perfecting its evidence through
successive attempts at conviction. Repeated prosecutorial sallies would
unfairly burden the defendant and create a risk of conviction through sheer
governmental perseverance.” Id. (citing, inter alia, Green v. United
States, 355 U.S. 184, 187-88 (1957)).
Double jeopardy bars an appeal by the Commonwealth from an
acquittal, whether based on a verdict of not guilty or a ruling by the court
that the evidence was insufficient to convict. See Commonwealth v.
Maurizio, 437 A.2d 1195, 1196 (Pa. 1981); see also United States v.
Scott, 437 U.S. 82, 91 (1978).
Importantly, “the form of the judge’s action is not controlling.”
Commonwealth v. McDonough, 621 A.2d 569, 573 (Pa. 1993) (citations
omitted). A defendant is “acquitted” only when the “ruling of the judge,
whatever its label, actually represents a resolution [in the defendant’s
favor], correct or not, of some or all of the factual elements of the
offense charged.” Id. (citation omitted).
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Here, the Court of Common Pleas correctly reasoned that the Municipal
Court entered a mistrial instead of a “judgment of acquittal:”
It could not be clearer that [the Municipal Court’s] ruling in
the instant matter did not involve a resolution of the facts.
Indeed, the first witness had only just begun testifying
when the judgment of acquittal was declared. Instead,
[the Court’s] ruling was in response to what [it] perceived
as a violation of [its] suppression order. This situation had
nothing to do with culpability or factual elements of the
offense charged, the touchstone of acquittal
determinations.
Pa.R.A.P. 1925(a) Op. at 4 (citations omitted). Therefore, we conclude that
the Commonwealth had the right to appeal the Municipal Court’s decision to
the Court of Common Pleas.
We next address Appellant’s third and fourth issues together.
Appellant argues that even if the Municipal Court entered a mistrial, double
jeopardy prohibits a new trial because the mistrial was the result of
prosecutorial misconduct. We disagree.
Pa.R.Crim.P. 605 provides in pertinent part: “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.”
Pa.R.Crim.P. 605(B). Our standard of review of an order granting a mistrial
is as follows:
In criminal trials, declaration of a mistrial serves to
eliminate the negative effect wrought upon a defendant
when prejudicial elements are injected into the case or
otherwise discovered at trial. By nullifying the tainted
process of the former trial and allowing a new trial to
convene, declaration of a mistrial serves not only the
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defendant’s interest but, equally important, the public’s
interest in fair trials designed to end in just judgments.
Accordingly, the trial court is vested with discretion to
grant a mistrial whenever the alleged prejudicial event
may reasonably be said to deprive the defendant of a fair
and impartial trial. In making its determination, the court
must discern whether misconduct or prejudicial error
actually occurred, and if so, . . . assess the degree of any
resulting prejudice. Our review of the resulting order is
constrained to determining whether the court abused its
discretion. Judicial discretion requires action in conformity
with the law on facts and circumstances before the trial
court after hearing and consideration. Consequently, the
court abuses its discretion if, in resolving the issue for
decision, it misapplies the law or exercises its discretion in
a manner lacking reason.
Commonwealth v. Jaynes, 135 A.3d 606, 615 (Pa. Super. 2016), appeal
denied, 145 A.3d 724 (Pa. 2016) (citation omitted).
Further, the Double Jeopardy Clause of the Pennsylvania Constitution
“prohibits retrial of a defendant not only when prosecutorial misconduct is
intended to provoke the defendant into moving for a mistrial, but also when
the conduct of the prosecutor is intentionally undertaken to prejudice the
defendant to the point of the denial of a fair trial.” Commonwealth v.
Smith, 615 A.2d 321, 325 (Pa. 1992).
In this case, the Court of Common Pleas held that the Municipal Court
improperly granted a mistrial, and therefore the Commonwealth was entitled
to retry the case:
No [prosecutorial] misconduct occurred here. [The
Municipal Court] suppressed the confiscation of the firearm
and any fruits thereof. But an observation of the firearm
by a civilian prior to police involvement in no way
implicates the search and seizure provisions of our
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Constitutions. While it is true that the judge invited the
attorneys to talk to the witnesses in light of her
suppression order, and while it would have been prudent
for the Assistant District Attorney to see her invitation as a
yellow flag, the bottom line is that the judge never ordered
that the observation of the firearm by a civilian could not
be elicited at trial. As it is perplexing to this court why she
had this further prohibition in mind when she ordered
suppression, it is easy to see how the prosecutor would not
have given this possibility a second thought—or even a
first one. This certainly was not prosecutorial misconduct.
And the Commonwealth is certainly entitled to retry the
matter.
Pa.R.A.P. 1925(a) Op. at 5.
We agree with this analysis. When the suppression court determines
that the defendant’s consent to a search is involuntary, the remedy is to
suppress evidence obtained as a result of the invalid consent. See
Commonwealth v. Moyer, 954 A.2d 659, 670 (Pa. Super. 2008) (en banc)
(“Since Appellee’s consent to search his person and car was tainted by a
detention that was not supported by the existence of reasonable suspicion,
the suppression court properly suppressed the fruits of that search”). The
suppression order does not extend to evidence that precedes the
involuntary consent.
Here, Williams testified that Appellant pointed a gun at her. This
incident took place before the police arrived—indeed, this incident triggered
Williams’ report to the police—and was not the product of Appellant’s
consent to search her residence. Thus, Williams’ testimony fell outside the
scope of the Municipal Court’s suppression order, which only suppressed
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evidence obtained as a result of her invalid consent. Accordingly, we
conclude that (1) the Commonwealth did not commit any misconduct in
eliciting Williams’ testimony, (2) the Municipal Court abused its discretion in
granting defense counsel’s motion for a mistrial on the basis of this
testimony,8 and (3) the Commonwealth is entitled to a new trial against
Appellant in the Municipal Court.
Order affirmed. Case remanded for proceedings consistent with this
opinion. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/10/2017
8
The fact that defense counsel moved for a mistrial is significant. Had the
Municipal Court sua sponte declared a mistrial without manifest necessity,
double jeopardy would have precluded further prosecution of Appellant. See
Commonwealth v. Kelly, 797 A.2d 925, 942 (Pa. Super. 2002)
(notwithstanding trial court’s frustration with prosecutor’s conduct,
“[m]anifest necessity for the declaration of a mistrial sua sponte by the trial
court simply was not present;” thus, “further prosecution of [the defendants]
would violate . . . double jeopardy protections”).
Conversely, “the law [ordinarily] permits retrial when the defendant
successfully moves for mistrial” unless “the prosecution [has] engage[d] in
certain forms of intentional misconduct.” Commonwealth v. Graham, 109
A.3d 733, 736 (Pa. Super.), appeal denied, 126 A.3d 1282 (Pa. 2015).
In this case, defense counsel successfully moved for a mistrial, but the
Commonwealth did not engage in any misconduct. Therefore, double
jeopardy does not prevent further prosecution of Appellant.
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