Com. v. Vonville, P.

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J-S02028-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
PHILIP VONVILLE :
:
Appellant : No. 873 EDA 2021

Appeal from the Order Entered March 25, 2021
In the Court of Common Pleas of Monroe County
Criminal Division at No(s): CP-45-CR-0001708-2009

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
PHILIP J. VONVILLE :
:
Appellant : No. 908 EDA 2021

Appeal from the Order Entered March 25, 2021
In the Court of Common Pleas of Monroe County
Criminal Division at No(s): CP-45-CR-0001708-2009

BEFORE: OLSON, J., KING, J., and McCAFFERY, J.

MEMORANDUM BY KING, J.: FILED MARCH 11, 2022

Appellant, Philip J. Vonville, appeals pro se from the order entered in

the Monroe County Court of Common Pleas, which denied his request for

nominal bail, request for immediate release, and motions for dismissal on
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double jeopardy grounds.1 We affirm.2

In its opinion, the trial court set forth the relevant facts and procedural

history of these appeals as follows:

In…2009 [Appellant] was arrested and charged with
Homicide in the stabbing death of Christopher Hernandez.
On July 13, 2010, a jury convicted [Appellant] of Third
Degree Murder and acquitted him of First Degree Murder
and Voluntary Manslaughter.

[Appellant] was sentenced to 20 to 40 years’ incarceration.
Post-sentence motions were denied. On direct appeal, the
Superior Court affirmed the judgment of sentence.
[Appellant] did not file a petition for allowance of appeal.

Subsequently, [Appellant] filed a motion seeking relief
under the Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.
Section 9541 et seq. We denied the PCRA motion. The
Superior Court affirmed, and our Supreme Court denied
[Appellant’s] petition for allowance of appeal.

After the order denying his PCRA motion became final,
[Appellant] filed in the Middle District a petition for habeas
corpus relief. On March 5, 2019, the federal habeas petition
was granted. The judgment of sentence was vacated and
the Commonwealth was directed to retry [Appellant]. On
July 8, 2019, Judge Caputo issued an order releasing
____________________________________________

1 The trial court found that the double jeopardy claim based on the court’s sua
sponte declaration of a mistrial arising from juror misconduct was not
frivolous. As such, Appellant’s challenge to that order is immediately
appealable. See Pa.R.Crim.P. 587(B)(6) (stating if judge denies motion to
dismiss but does not find it frivolous, judge shall advise defendant on record
that denial is immediately appealable as collateral order). The trial court
determined that all other double jeopardy arguments were frivolous and not
immediately appealable.

2 The parties each filed a single brief addressing all issues in these appeals,
and the trial court issued one Rule 1925(a) opinion addressing all issues raised
in the appeals. Rather than dismiss one of the appeals as duplicative, we
simply issue one disposition for both appeals.

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[Appellant] from custody.

* * *

Later in July of 2019, [Appellant] was rearrested in
Delaware and extradited to Pennsylvania. An attorney was
appointed to represent him. Appointed counsel represented
[Appellant] from that point until…shortly before the instant
appeals were filed, after [Appellant] opted to represent
himself.

Through counsel, [Appellant] filed a petition seeking release
on nominal bail pursuant to Pa.R.Crim.P. 600. On
September 30, 2019, a hearing on the motion was convened
before the Honorable Margherita Patti-Worthington,
President Judge. At the conclusion of the hearing, Judge
Worthington issued an order denying the request for
nominal bail, stating the reasons for denial on the record.
In summary, bail was denied under the “public safety
exception” to the right to bail set forth in Article 1, Section
14 of Pennsylvania’s Constitution and 42 Pa.C.S.A. Section
5701, based on the finding that no condition or combination
of conditions other than imprisonment would reasonably
assure the safety of persons and the community.

[Appellant] filed a Petition for Review of the bail ruling. On
November 18, 2019, Judge Worthington filed a statement
pursuant to Pa.R.A.P. 1762(e) which incorporated the
reasons for denial recited during the bail hearing and
attached both the bail hearing transcript and the denial
order. On December 3, 2019, the Superior Court issued an
order at No. 149 EDM 2019 denying the Petition for Review.
…

The order denying bail re-assigned this case to the
undersigned to conduct the retrial. After a short pretrial
work-up during which several motions were decided,
[Appellant’s] retrial was scheduled for the February 2020
criminal term.

* * *

A jury and four alternates were selected in early February.
Before trial began, one juror and one of the four alternates

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were excused.

The evidentiary portion of trial began on February 18, 2020
and concluded on February 20, 2021. On February 21,
2020, the attorneys gave their closing arguments, the
[c]ourt gave its final charge, and the jury began
deliberations. The two remaining alternates were relocated
to a different room in the courthouse.

During deliberations, one of the jurors informed a tipstaff
that [J]uror No. 3 had accessed the internet and provided
to the jury information about [Appellant’s] first trial. The
misconduct led to the uncontested disqualification of [J]uror
No. 3 and, ultimately, to the mistrial declaration being
challenged in these appeals.

* * *

In summary, after a period of deliberation, the jury asked
for some of the trial evidence. In response, the audio-
recorded interviews of [Appellant] were played in the
Courtroom, and documentary and photographic evidence
was sent back with the jury when deliberations continued.

Thereafter, a juror reported to a tipstaff that another juror
had looked up information about [Appellant’s] first trial on
the internet and provided information about the matter to
the jury. The infraction occurred in the jury deliberation
room. It is unclear how long the lone juror waited to report
the infraction. What is clear is that there was a delay in
reporting and that none of the other 10 jurors reported the
clear violation of the instructions of the [c]ourt.

The tipstaff immediately reported the misconduct to the
undersigned. Upon hearing the report, the undersigned
immediately directed the tipstaff to instruct the jury to stop
deliberations. The attorneys were summoned and were
advised, at first in chambers, of what the tipstaff reported.
Then, we moved to the courtroom. With [Appellant] present
and the jurors still in the deliberation room, the [c]ourt
placed on the record what the tipstaff had reported and that
the jury had been instructed to stop deliberations.

Through a procedure with which both attorneys agreed,

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Juror No. 3 was brought into the courtroom, outside the
presence of the other jurors, and asked about what had
been reported. Juror No. 3 readily admitted to the
misconduct and acknowledged that her actions violated the
instructions of the [c]ourt, referenced or repeated many
times throughout the trial, directing jurors to avoid outside
influences.

Juror No. 3’s blatant misconduct, which she admitted during
both this initial questioning and later during the contempt
proceedings that ensued,2 is clear from the record. What is
not clear from the two-dimensional transcript is her
demeanor and the manner in which Juror No. 3 made the
admission and reacted to the situation. She was
unabashed, unapologetic, unbothered, and unrepentant,
and her acknowledgement of wrongdoing was delivered
calmly, nonchalantly, and without a hint of remorse or
concern for what she had done. In colloquial terms, her
reaction was, “what’s the big deal?” Frankly, it was
shocking.

2 Juror No. 3 did not contest the contempt. She was
found in contempt and sanctions were imposed.

Upon questioning by the [c]ourt and counsel for both
parties, Juror No. 3 told us that she looked up information
about the first trial because the other jurors, “wanted to
know why we were coming back in here after 11 years to
retry the case, so I told them why.” This, even though the
jury had been told that it should not concern itself about
why a second trial is being conducted.

… Juror No. 3 [told the court and the attorneys] that she
had read what the federal court stated, and said for the
second time that she had told the jury that [Appellant] was
being retried because he did not at the first trial get a chance
to speak his [peace]. Having heard and observed [J]uror
No. 3 as she responded to questions, the undersigned
believes that she understated both what she read and what
she told other jurors.

Although we were unable to determine and view what,
specifically, Juror No. 3 read, it is clear that she read either
the federal habeas decision or an excerpt from or article

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about the decision, and that the source document explained
why [Appellant’s] conviction was overturned and a new trial
was ordered.

* * *

After Juror No. 3 was excused, the [c]ourt and counsel
discussed the matter at length. The possible remedies of a
mistrial, of disqualifying Juror No. 3 and going through the
process of determining if an alternate could properly be
substituted, and attempting through the juror substitution
process to determine whether the misconduct could be
cured as to other jurors, were discussed. At that point, the
attorneys were advised that a recess would be taken so that
they would have the opportunity to do some research,
counsel for [Appellant] would have the opportunity to speak
privately with [Appellant] about the matter and possible
remedies, and the assistant district attorney would have the
opportunity to speak with others of his choosing. Before the
break, the [c]ourt advised the attorneys of its concerns
about what had transpired and said that regardless of how
the matter moved forward [J]uror No. 3 would be
disqualified. While neither party moved for disqualification,
both attorneys agreed that the offending juror should be
disqualified.

After the break, the proceeding was reconvened in the
courtroom with [Appellant] present but not the jury. The
parties were asked for their positions and if there were any
motions. Again, neither party formally moved for
disqualification. However, both were still in agreement that
[J]uror No. 3 should be disqualified. Significantly, counsel
for [Appellant] stated that, “our perception is Juror No. 3 did
[commit] the juror misconduct and we believe that she
would need to be replaced as a juror.” As to the remainder
of remedial action, [defense c]ounsel took the position that
the Juror’s misconduct could be corrected with the
substitution of an alternate juror and a curative instruction
and, therefore, a mistrial was not warranted. The assistant
district attorney indicated that the Commonwealth was not
opposed to the other jurors being colloquied individually.

Thereafter, the [c]ourt on its own motion confirmed that
[J]uror No. 3 would be disqualified and stated that the

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process required by Pa.R.Crim.P. 645 [(discussing seating
and retention of alternate jurors)] and decisional law of
determining whether an alternate could be substituted in
place of [J]uror No. 3 without compromising the jury
function would commence. As discussed prior to and after
the recess, we indicated that questions about the
misconduct and what effect the actions of [J]uror No. 3
might have had on the jury would be folded into the process.

First, we brought in and questioned an alternate. Then, we
brought in and questioned three of the remaining jurors.
Unfortunately, we received inconsistent answers from the
jurors about what Juror No. 3 said and did in the deliberation
room and about who heard what was said. Some of the
answers were inconsistent with what [J]uror No. 3 told us.
The jurors who said that they heard and saw juror No. 3
disclose her research told us that glances were exchanged;
however, even though they knew that what [J]uror No. 3
did was wrong, neither they nor other jurors stopped her or
reported the matter. Based on our observations of the
jurors and their demeanor as they answered questions, we
came to the belief that the jurors’ responses were cautious
and guarded, colored and compromised by the knowledge
that they should have done something when the misconduct
occurred, that we were not getting or going to get straight
or consistent answers from the jurors, and that we would
never know exactly what occurred in the deliberation room.

Neither party asked for a mistrial. However, at that
point…the [c]ourt on its own motion declared a mistrial.

[Appellant] did not at the time formally object to or
challenge the mistrial declaration; however, through
counsel he had prior to commencement of the substitution
process indicated that a mistrial would not be requested. …

(Trial Court Opinion, filed July 23, 2021, at 4-12) (internal record citations

omitted).

Due to the COVID-19 pandemic, pandemic-related emergency orders,

and scheduling requests by the parties, the retrial was continued several

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times. On February 8, 2021, after a proper colloquy, the court granted

Appellant’s request to proceed pro se and appointed prior counsel to act as

stand-by counsel.

On March 1, 2021, Appellant filed a double jeopardy motion titled

“Motion for Dismissal Per Rule 587(B), Request Hearing Per Rule 577, and

Motion for Return of Property Rule 588.” On March 11, 2021, Appellant filed

a “Motion for Nominal Bail Per Rule (600)” and another motion titled

“Motions/Notice of Defense/Immediate Release.” Appellant filed an additional

double jeopardy motion on March 24, 2021.

The court held a hearing on Appellant’s motions on March 25, 2021.

Following the hearing, the court entered a single order denying Appellant’s

motions. With respect to Appellant’s double jeopardy claim premised on the

court’s declaration of a mistrial for Juror No. 3’s misconduct, the court

expressly found Appellant’s claim was not frivolous. The court noted that any

and all other double jeopardy claims were frivolous.

Appellant subsequently filed three separate notices of appeal docketed

at No. 908 EDA 2021 on April 9, 2021, at No. 873 EDA 2021 on Monday, April

26, 2021, and at No. 960 EDA 2021 on May 13, 2021. In response to the

court’s Pa.R.A.P. 1925(b) order, Appellant filed a Rule 1925(b) statement on

April 26, 2021. Thereafter, Appellant requested that this Court consolidate

the appeals. On July 19, 2021, this Court denied the consolidation request

and listed the appeals consecutively. On August 31, 2021, this Court quashed

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the appeal at No. 960 EDA 2021 as untimely filed more than 30 days after the

March 25, 2021 order.

Appellant raises the following issues for our review:

Did the [trial] court err in denying [Appellant] nominal bail?

Did the trial court err in denying [Appellant’s] motion to
dismiss all counts in violation of Double Jeopardy
protections after the trial court sua sponte declared a
mistrial for reasons of manifest necessity or preserving the
ends of public justice?

Did the trial court fail in its duties to act; by not dismissing
the case before this Honorable court on a “myriad” of Double
Jeopardy Clauses that prohibits a 3rd trial?

Did the [trial] court err by denying mental health, expert
testimony from the trial held on February 18-21, 2020?

Does “[e]ach” particular finding which is against the state’s
evidence amount to prosecutorial misconduct, such to
dismiss under the protections of Pa. Const.?

(Appellant’s Brief at 9).

Preliminarily, we observe:

[A]ppellate briefs and reproduced records must materially
conform to the requirements of the Pennsylvania Rules of
Appellate Procedure. This Court may quash or dismiss an
appeal if the appellant fails to conform to the requirements
set forth in the Pennsylvania Rules of Appellate Procedure.
Although this Court is willing to liberally construe materials
filed by a pro se litigant, pro se status confers no special
benefit upon the appellant. To the contrary, any person
choosing to represent himself in a legal proceeding must, to
a reasonable extent, assume that his lack of expertise and
legal training will be his undoing.

Commonwealth v. Adams, 882 A.2d 496, 497-98 (Pa.Super. 2005)

(internal citations omitted). See also Pa.R.A.P. 2114-2119 (addressing

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specific requirements of each subsection of brief on appeal).

With respect to the statement of the case, Rule 2117 provides: “The

statement of the case shall not contain any argument. It is the responsibility

of appellant to present in the statement of the case a balanced presentation

of the history of the proceedings and the respective contentions of the

parties.” Pa.R.A.P. 2117(b). Additionally, regarding the argument section,

Rule 2119 dictates: “The argument shall be divided into as many parts as

there are questions to be argued; and shall have at the head of each part—in

distinctive type or in type distinctively displayed—the particular point treated

therein, followed by such discussion and citation of authorities as are deemed

pertinent.” Pa.R.A.P. 2119(a). Further, the failure to properly develop a claim

on appeal with citations to applicable legal authority constitutes waiver on

appeal. See Commonwealth v. Williams, 959 A.2d 1252 (Pa.Super. 2008).

Instantly, Appellant’s “statement of the case” is replete with argument.

(See Appellant’s Brief at 16-32). In fact, in the last paragraph of this section

of the brief, Appellant states:

I[, Appellant], herein concisely point out the [court’s]
actions that most certainly [are] the very definition of
tyranny (not imagined) prohibited by the law of the land of
Pennsylvania per Constitution and the United States
Constitution. (Reference: Motion; “Notice of Defense,” and
“Motion to Dismiss” under the right to a fair trial, Double
Jeopardy, prior prosecutorial misconduct that prohibits a
retrial).

(Id. at 32). Appellant’s “statement of the case” fails to comply with the

requirements of Rule 2117. See Pa.R.A.P. 2117(b).

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More importantly, however, Appellant provides only one “argument”

section that spans less than two pages, notwithstanding his presentation of

five issues on appeal. (See Appellant’s Brief at 35-36). Appellant cites no

law whatsoever in the argument section to support any of his claims on appeal.

(See id.) Appellant’s failure to divide his argument section into separate

subsections for each question to be argued, and to supply pertinent legal

authority for each issue, violates Rule 2119. See Pa.R.A.P. 2119(a). Although

Appellant cites some law throughout his appellate brief (namely, in the

“statement of the case” section and following the “conclusion” section) he does

not provide a meaningful discussion of the legal authority relied on as applied

to the facts of his case. These significant violations of the briefing

requirements render Appellant’s claims waived on appeal. See Williams,

supra.

In all fairness to Appellant, however, we will review Appellant’s second

issue on appeal, for which Appellant cites some law and provides the clearest

argument of any of his issues raised on appeal. (See Appellant’s Brief at 39-

40, following conclusion section of brief). In this issue, Appellant argues that

under Pa.R.Crim.P. 605, only a defendant may move for a mistrial due to

prejudicial occurrences that take place during trial. Appellant asserts that a

trial judge may declare a mistrial only for reasons of manifest necessity.

Appellant claims that when the trial court declares a mistrial in the absence of

manifest necessity, the Commonwealth is forbidden from retrying the

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defendant. Appellant maintains there was no manifest necessity that

warranted the trial court’s sua sponte declaration of a mistrial, and the

problems caused by Juror No. 3 could have been solved with less drastic

measures such as a curative instruction to the remaining jurors. Appellant

concludes double jeopardy principles bar retrial under these circumstances,

and this Court must grant him appropriate relief. We disagree.

Our review of this issue implicates the following legal principles:

It is within a trial judge’s discretion to declare a mistrial sua
sponte upon the showing of manifest necessity, and absent
an abuse of that discretion, we will not disturb his or her
decision. 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.

In Commonwealth v. Diehl, 532 Pa. 214, [216–17], 615
A.2d 690[, 691 (1992)], our Supreme Court, when
considering whether manifest necessity for the trial court’s
sua sponte declaration of a mistrial existed, stated:

Since Justice Story’s 1824 opinion in United States
v. Perez, 22 U.S. (9 Wheat.) 579, 580, 6 L.Ed. 165,
it has been well settled that the question whether
under the Double Jeopardy Clause there can be a new
trial after a mistrial has been declared without the
defendant’s request or consent depends on [whether]
there is a manifest necessity for the mistrial, or the
ends of public justice would otherwise be defeated. It
is important to note that in determining whether the
circumstances surrounding the declaration of a
mistrial constitute manifest necessity, we apply the
standards established by both Pennsylvania and
federal decisions.

* * *

In accordance with the scope of our review, we must

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take into consideration all the circumstances when
passing upon the propriety of a declaration of mistrial
by the trial court. The determination by a trial court
to declare a mistrial after jeopardy has attached is not
one to be lightly undertaken, since the defendant has
a substantial interest in having his fate determined by
the jury first impaneled. Additionally, 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 is 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. Finally, it is well established that any doubt
relative to the existence of manifest necessity should
be resolved in favor of the defendant.

We do not apply a mechanical formula in determining
whether a trial court had a manifest need to declare a
mistrial. Rather, varying and often unique situations arise
during the course of a criminal trial ... [and] the broad
discretion reserved to the trial judge in such circumstances
has been consistently reiterated[.]

* * *

[Indeed,] there can be no rigid rule for finding manifest
necessity since each case is individual. Moreover, 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, 1254-56 (Pa.Super. 2008) (en

banc), appeal denied, 600 Pa. 762, 967 A.2d 959 (2009) (some internal

citations and quotation marks omitted). See also Pa.R.Crim.P. 605(B)

(stating: “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. Otherwise, the trial judge may declare a mistrial only for

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reasons of manifest necessity”).

Instantly, the trial court explained its reasoning for sua sponte declaring

a mistrial, as follows:

In this case, considering the relevant facts and
circumstances, including how and where the juror
misconduct occurred, how the misconduct came to light, the
discrepancies and inconsistencies between the answers
given by the jurors, our real time observations of events as
they unfolded and of the jurors as they responded to
questions regarding the infraction and the substitution
process, as well as the applicable law, we determined that
an alternate could not be seated without compromising the
jury function, and, for the same reasons, manifest necessity
and the ends of justice called for the mistrial. It was a tough
decision. Nonetheless, it was a decision that we believed at
the time was supported by the facts and the law and,
moreover, was absolutely necessary to ensure the integrity
of the trial process in general and the February 2020 retrial
in particular, and to make sure that justice was served for
all. We still do.

The reasons why the mistrial was properly granted are most
easily explained and understood when viewed in the order
in which the events giving rise to the mistrial occurred:

Initially, it is undisputed and clear from the record that
[J]uror No. 3 committed misconduct while in the jury
deliberation room. Juror No. 3 admitted to the misconduct
both when questioned prior to the mistrial and again during
the subsequent proceeding in which she was found in
contempt and sanctioned. To the extent the misconduct
needs further verification, [J]uror No. 3’s admissions are
supported by the juror who belatedly reported it and two of
the other jurors who were interviewed.

Similarly, it is uncontested that [J]uror No. 3 was properly
disqualified for cause. The facts leading to disqualification
are undisputed and clear from the record, and, no matter
how viewed, objectively support the disqualification.
Moreover, both parties agreed that [J]uror No. 3 should be
disqualified. Significantly, after [Appellant] was given the

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opportunity to confer privately with his attorney about the
matter and possible options, his attorney articulated the
defense position on disqualification by stating, “our
perception is Juror No. 3 did [commit] the juror misconduct
and we believe that she would need to be replaced as a
juror.”

Once [J]uror No. 3 was disqualified for cause, the alternative
to a mistrial of substituting an alternate juror was explored.
Specifically, the process required by [Pa.R.Crim.P. 645 and
relevant case law] was instituted. As discussed, we folded
into that process inquiry into the matters surrounding the
misconduct in an attempt to determine the extent of taint,
harm, or prejudice, and whether, as suggested by
[Appellant’s] attorney, any such harm could be remedied by
a curative instruction so that the trial might continue with a
substitute juror. Unfortunately, the process demonstrated
that substitution could not be accomplished without doing
harm to the jury function.

The facts and circumstances leading to the [c]ourt’s
determination that an alternate could not be substituted
without harming the jury function are clear from the record,
were discussed at the time of the mistrial and again during
the Double Jeopardy Hearing, and are recounted in detail
above. Simply, the nature of the misconduct; the place in
which the conduct occurred; the prejudicial and inadmissible
information known to be included in the source document
researched by [J]uror No. 3; the desire of other jurors to
learn why a second trial was being conducted when they
were told not to concern themselves about the reasons; the
fact that the other jurors were at least tacitly complicit in
that no attempt to stop [J]uror No. 3 from providing outside
information was made, only one juror reported the matter,
and that lone report was belated; and the discrepancies
between the answers given by the jurors who were
questioned as to when the misconduct occurred, the
location, whether [J]uror No. 3 used her phone in the
deliberation room (a fact admitted by [J]uror No. 3), and
who heard what [J]uror No. 3 reported, convinced us that
substitution could not be accomplished without doing harm
to the jury function.

While we believe the relevant facts are clear from the

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record, our determination was based not only on what was
said and done but also on our observations regarding the
demeanor of the jurors as they answered questions and the
manner in which they responded. At the time, it was clear
to us that we were not getting or going to get straight or
consistent answers from the jurors, would never know
exactly what occurred in the deliberation room, and,
critically, that the ability of the jurors to candidly and
truthfully answer questions and follow the [c]ourt’s
instructions had been compromised by their awareness that
what [J]uror No. 3 had done was wrong and that they should
have done something about it or at least reported the
misconduct. It is still just as clear.

Our real time findings, determinations, and observations
were significant given that they were made while we were
engaged in the juror substitution process.

* * *

… Once the events set in motion by the misconduct
demonstrated that the ability of the jurors to candidly and
truthfully answer questions had been compromised and that
the empaneled jury was not capable of following the
instructions of the court, the substitution process could not
be finalized, the jury could not be permitted to continue
deliberations, and the substitution process was no longer a
viable option.

For the same reasons, the alternative suggested by
[Appellant] was not viable. As discussed, [Appellant’s]
solution was to substitute a juror and then have the [c]ourt
give a curative instruction. However, once the juror
substitution process failed, that alternative was no longer
an option. Even if a jury could have been cobbled together,
the fact that we were getting inconsistent reports of what
occurred and had no confidence that we would ever know
exactly what happened or what was said, rendered it
impossible to assess the extent of taint, harm, or prejudice,
and therefore, unfeasible to formulate a curative instruction.
In any event, confidence has also been lost that the jury
would follow any curative instruction that might have been
given.

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(Trial Court Opinion at 29-33) (internal record citations omitted) (emphasis in

original).

The record makes clear the trial court went to great lengths to

investigate the misconduct of Juror No. 3, evaluate the extent of the

misconduct and its impact on the other jurors, and to consider all possible

alternatives before declaring a mistrial. As the trial court indicated, due to

the events that transpired, the “process was tainted.” (N.T. Hearing, 3/25/21,

at 78). The record further shows that the court recognized the seriousness of

its declaration of a mistrial and how the court’s decision would impact the

parties, witnesses, family members of Appellant and the victim, as well as the

residents of the County and citizens of the Commonwealth. (See N.T. Retrial,

2/21/20, pp. 185-88). (See also N.T. Hearing, 3/25/21, at 80).

Appellant cites Commonwealth v. Cobb, 28 A.3d 930 (Pa.Super.

2011), aff’d, 619 Pa. 478, 65 A.3d 297 (2013) (per curiam order), to support

his assertion that no manifest necessity existed in this case. In Cobb, the

trial court sua sponte declared a mistrial, over objections of the appellant and

the Commonwealth, after a witness informed the defense on the second day

of trial that she planned to change her testimony from that which she testified

to at the preliminary hearing. On appeal, this Court decided that the

circumstances did not amount to a manifest necessity where the witness’s

changed testimony still supported the appellant’s theory of the case. Further,

this Court noted that the “record [was] absolutely devoid of any indication

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that the trial court considered any less drastic measures.” Id. at 935. Under

the circumstances present in Cobb, this Court held the trial court had granted

a mistrial prematurely and improperly. Thus, this Court reversed the order

denying the appellant’s motion to dismiss on double jeopardy grounds.

The facts of this case are markedly distinguishable from Cobb. While

in Cobb, this Court noted that the “issue of a defense witness testifying

unfavorably is a common hurdle faced by the defense attorneys of this

Commonwealth” that should not result in the award of a mistrial (see id.),

the case at bar presented a unique case of juror misconduct that might have

infected the entire jury. Additionally, unlike in Cobb, the trial court in this

case carefully considered all available alternatives to granting a mistrial before

doing so. The court’s decision was not premature (as in Cobb) but was made

only after multiple hearings/conferences with counsel to evaluate the extent

of the taint caused by Juror No. 3’s misconduct. For all of these reasons, this

Court’s decision in Cobb affords Appellant no relief.

The record in this case supports the trial court’s finding of a manifest

need to declare a mistrial. See Walker, supra. Given our deferential

standard of review to the trial court, who was in the best position to gauge

and analyze the effect of Juror No. 3’s misconduct, we see no reason to disturb

the court’s declaration of a mistrial. See id. Therefore, Appellant’s re-

prosecution on the charges does not violate double jeopardy principles. Id.

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Accordingly, we affirm.3

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/11/2022

____________________________________________

3 During the pendency of these appeals, Appellant has filed various motions
at each Superior Court docket number on January 18, 2022, February 9, 2022,
and February 14, 2022, respectively. In his motions, Appellant requests, inter
alia, expedited review of his appeals and immediate release. Based on our
disposition, we deny Appellant’s outstanding motions.

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