Com. v. Wardlaw, J. ( 2019 )

J-S64004-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOSHUA WARDLAW :
:
Appellant : No. 1716 WDA 2018
Appeal from the Order Dated November 5, 2018
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0013708-2016
BEFORE: BOWES, J., LAZARUS, J., and PELLEGRINI, J.*
MEMORANDUM BY BOWES, J.: FILED DECEMBER 12, 2019
Joshua Wardlaw appeals from the order that denied his motion for
judgment of acquittal filed after the trial court declared a mistrial based upon
a deadlocked jury. We quash the appeal.
The trial court summarized the history of the case as follows.
[Appellant] was charged with one count of criminal
homicide, two counts of criminal attempt — criminal homicide, two
counts of aggravated assault, and two counts of recklessly
endangering another person (REAP), in connection with a shooting
that occurred in the early morning hours on August 6, 2016. The
victims of the shooting included Amanda Smith, Alyssa Madison
and Jonathan Minnie. Minnie died as a result of his injuries, and
Smith and Madison sustained significant life threatening injuries.
[Appellant]’s jury trial began on Tuesday, October 23, 2018,
and the jury heard the case over the next four days. The jury
returned a verdict of not guilty with respect to the two counts of
attempted homicide and indicated to the court that it was
deadlocked with respect to the remaining counts. This court
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
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declared a mistrial with respect to the counts on which the jury
was deadlocked.
On November 5, 2018, [Appellant] filed a motion in arrest
of judgement/judgment of acquittal with respect to the
deadlocked charges. . . . Appellant’s motion of arrest of
judgment/judgment of acquittal allege[d] the evidence presented
at trial was insufficient to prove that [Appellant] was the shooter
and as such he was entitled to a dismissal of the charges.
Trial Court Opinion, 3/28/19, at 2-3 (citations and unnecessary capitalization
omitted omitted). The trial court denied Appellant’s motion on November 5,
2018, and Appellant filed a notice of appeal from that order on December 4,
2018. Both Appellant and the trial court complied with Pa.R.A.P. 1925.
Appellant presents the following question for this Court’s review:
Whether the trial court erred in denying [Appellant]’s motion in
arrest of judgment/judgment of acquittal on the hung charges of
criminal homicide, aggravated assault (four counts), and [REAP]
(two counts) when the Commonwealth’s evidence presented at
trial failed to prove that [Appellant] was the shooter; under such
circumstances, [Appellant] was entitled to an absolute discharge,
not merely a new trial?
Appellant’s brief at 6 (unnecessary capitalization omitted).
Before we consider the merits of Appellant’s claim, we must determine
whether the trial court’s November 5, 2018 order is appealable. See, e.g.,
Commonwealth v. Horn, 172 A.3d 1133, 1135 (Pa.Super. 2017) (providing
that, as appealability implicates this Court’s jurisdiction, “prior to reaching the
merits of any appeal, this Court must first ascertain whether the order
appealed from is properly appealable”) (cleaned up).
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“It is well-established that a criminal defendant may take an appeal only
from the judgment of sentence. An appeal from any prior order must be
quashed.” Commonwealth v. McPherson, 533 A.2d 1060, 1061–62
(Pa.Super. 1987) (citations omitted). However, Appellant claims this Court
has jurisdiction over the instant appeal pursuant to Pa.R.A.P. 311(a)(6), which
provides for an interlocutory appeal as of right from:
An order in a civil action or proceeding awarding a new trial, or an
order in a criminal proceeding awarding a new trial where the
defendant claims that the proper disposition of the matter would
be an absolute discharge or where the Commonwealth claims that
the trial court committed an error of law.
Pa.R.A.P. 311(a)(6).
This Court has repeatedly held that a new trial following the declaration
of a mistrial upon a hung jury is not immediately appealable under Rule
311(a)(6). As we explained,
By limiting the scope of the rule to those orders “awarding a new
trial,” the plain language draws a distinction between (1) orders
that grant a request for a new trial and (2) new trials that follow
from the declaration of a mistrial. . . . (emphasis added). In
Johnson v. Frazier, 787 A.2d 433, 435 (Pa.Super. 2001), we
explained this distinction in greater detail as follows.
There is a marked difference between a court’s
granting a motion for a new trial and declaring a
mistrial; the former contemplates that a case has
been tried, a judgment rendered, and on motion
therefor, said judgment set aside and a new trial
granted, while the latter results where, before a trial
is completed and judgment rendered, the trial court
concludes that there is some error or irregularity that
prevents a proper judgment being rendered in which
event a mistrial may be declared.
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After a mistrial due to a deadlocked jury, a new trial follows as of
course. Conversely, when a court awards a new trial, that trial
occurs only because the court issued an order granting it.
Importantly, while an award of a new trial is immediately
appealable under Pa.R.A.P. 311(a)(6), a mistrial and any new trial
arising therefrom is not.
Kronstain v. Miller, 19 A.3d 1119, 1124 (Pa.Super. 2011) (some internal
citations and quotation marks omitted).
In MacPherson, supra, this Court rejected Rule 311(a)(6) as a basis
for jurisdiction in a case procedurally similar to the case sub judice. In
MacPherson, the defendant invoked the Rule as the basis of jurisdiction for
his appeal from the denial of his application for discharge which he filed after
his first trial resulted in a hung jury and a new trial was scheduled. We
rejected the defendant’s “argument that the grant of a mistrial due to a
deadlocked jury is the equivalent of an award of a new trial.” McPherson,
supra at 1062. Consistent with the law quoted above, we indicated that
“[w]hen a mistrial is declared due to a deadlocked jury, no award of a new
trial is necessary as retrial follows as of course.” Id. Therefore, Rule
311(a)(6) was not implicated and we quashed the appeal.
Applying the above precedent, we hold that Appellant’s appeal from the
denial of his motion for judgment of acquittal must be quashed as
interlocutory.
Appeal quashed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/12/2019
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