Com. v. Evans, W. ( 2021 )

J-S30008-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WYATT ALEXANDER EVANS :
:
Appellant : No. 254 MDA 2021
Appeal from the Order Entered January 26, 2021
In the Court of Common Pleas of York County Criminal Division at No(s):
CP-67-CR-0006408-2019
BEFORE: BENDER, P.J.E., McCAFFERY, J., and COLINS, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED OCTOBER 25, 2021
Appellant, Wyatt Alexander Evans, appeals from the trial court’s January
26, 2021 order denying his motion to dismiss the charges of robbery,
conspiracy to commit robbery, and public drunkenness that are pending
against him. After careful review, we affirm.
The facts underlying the present appeal were summarized by the
Commonwealth, as follows:
On July 27, 2019[,] charges were filed against [Appellant]
for the offense of [r]obbery involving a case where [Appellant]
demanded … property [from] the victim[, who] surrendered his
cell phone. When [Appellant] was subsequently captured and
[M]irandized[1] by Officer Brian Lehman, the [o]fficer recovered
the victim’s cell phone and [Appellant] confessed to committing
the robbery. During the pendency of the instant case, the COVID-
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 Miranda v. Arizona, 384 U.S. 436 (1966).
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19 pandemic occurred. Jury trials were stayed pending the end
of the emergency, though the court did engage in experiments to
see if trials could be safely conducted during the state of
emergency.
On October 6, 2020, [Appellant’s] jury trial commenced during
this COVID-19 pandemic state of emergency. N.T. Jury Trial,
10/06/2020[,] at 3. A mistrial was granted on October 6, 2020,
when [Appellant] revealed that on October 5, 2020, he had been
exposed to a coworker diagnosed with COVID-19, but [Appellant]
failed to inform his counsel or the court until the trial had started.
Id. at 144-[]45, 147.[2] [Appellant thereafter] filed a Motion to
Dismiss Pursuant to Pa.[R.]Crim.[]P. 587.[3] [Following a hearing
____________________________________________
2 It was revealed that Appellant’s employer had directed him to self-quarantine
and obtain a COVID-19 test. See Trial Court Opinion (TCO), 4/26/21, at 2.
However, Appellant took no steps to get tested before his trial commenced
the following day. Id. at 10.
3 That rule states, in pertinent part:
(B) Double Jeopardy
(1) A motion to dismiss on double jeopardy grounds shall state
specifically and with particularity the basis for the claim of double
jeopardy and the facts that support the claim.
(2) A hearing on the motion shall be scheduled in accordance with
Rule 577 (Procedures Following Filing of Motion). The hearing shall
be conducted on the record in open court.
(3) At the conclusion of the hearing, the judge shall enter on the
record a statement of findings of fact and conclusions of law and
shall issue an order granting or denying the motion.
(4) In a case in which the judge denies the motion, the findings
of fact shall include a specific finding as to frivolousness.
(5) If the judge makes a finding that the motion is frivolous, the
judge shall advise the defendant on the record that a defendant
has a right to file a petition for review of that determination
pursuant to Rule of Appellate Procedure 1573 within 30 days of
the order denying the motion.
(Footnote Continued Next Page)
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on that motion, it] was denied and [Appellant] … filed the instant
appeal.
Commonwealth’s Brief at 5.
The trial court ordered Appellant to file a Pa.R.A.P. 1925(b) concise
statement of errors complained of on appeal, and he timely complied. The
court thereafter filed its Rule 1925(a) opinion. Herein, Appellant states two
issues for our review:
I. Whether the trial court violated [Appellant’s] constitutional
rights to a fair trial under the United States and Pennsylvania
Constitutions by requiring him to remove his face covering during
a jury trial during the COVID-19 pandemic.
II. Whether the trial court erred by failing to give meaningful
consideration to reasonable alternatives before sua sponte
declaring a mistrial over [Appellant’s] objection without manifest
necessity to do so.
Appellant’s Brief at 4 (bolded emphasis omitted).
Appellant first claims that the trial court violated his constitutional rights
by deciding, prior to declaring a mistrial, that he would be required to remove
his facemask for the remainder of his jury trial. According to Appellant, the
court’s directive for him to remove his facemask impermissibly singled him
out from everyone else in the courtroom and caused him prejudice, thereby
denying him a fair trial.
____________________________________________
(6) If the judge denies the motion but does not find it frivolous,
the judge shall advise the defendant on the record that the denial
is immediately appealable as a collateral order.
Pa.R.Crim.P. 587(B).
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Appellant’s argument is mooted by the fact that he never appeared
before the jury without a mask. Instead, during discussions about Appellant’s
taking off his mask, he revealed to his counsel (who then informed the court)
that Appellant had been exposed to COVID-19 the day before. See N.T. Jury
Trial at 141. In light of this admission, the court declared a mistrial. Id. at
147. Thus, we do not address the propriety of the court’s ordering Appellant
to remove his facemask for trial.
In Appellant’s second issue, he claims that there was no manifest
necessity for the court’s declaring a mistrial. He argues that “[a]n individual’s
possible exposure to COVID-19 is not sufficient to create a manifest necessity
to end a trial.” Appellant’s Brief at 11. Appellant further insists that the court
did not adequately consider alternatives to a mistrial, such as permitting him
to continue to wear his mask or take a rapid COVID-test to determine if he
had the virus. Because there was no manifest necessity for a mistrial,
Appellant avers that double jeopardy bars the Commonwealth from retrying
him a second time.
We disagree. A “trial judge may declare a mistrial only for reasons of
manifest necessity.” Pa.R.Crim.P. 605. Our Supreme Court has explained
that
we must 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
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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.
Commonwealth v. Diehl, 615 A.2d 690, 691 (Pa. 1992) (internal citations
omitted).
Here, in considering Appellant’s arguments, we have reviewed the
certified record, the Commonwealth’s brief, and the detailed opinion by the
Honorable Maria Musti Cook of the Court of Common Pleas of York County.
Contrary to Appellant’s claims on appeal, Judge Musti Cook’s opinion
demonstrates that she carefully considered the alternatives to a mistrial that
were proposed by Appellant. See TCO at 7-13. She also took into account
the COVID-19 safety measures the court was directed to follow, and the
number of positive COVID-19 cases at the county, state, and federal levels at
the time of Appellant’s trial. See id. at 3-7. In light of all of these factors,
Judge Musti Cook concluded that Appellant’s possible exposure to COVID-19
made it manifestly necessary to declare a mistrial. We discern no error in her
decision, and we adopt her rationale in concluding that double jeopardy does
not bar Appellant’s retrial. Thus, we affirm the order denying his motion to
dismiss the charges against him for the reasons set forth in Judge Musti Cook’s
opinion.
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/25/2021
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Circulated 10/15/2021 08:48 AM
IN THE COURT OF COMMON PLEAS OF YORK COUNTY,
PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEALTH OF NO. CP-67-CR-6408-2019
PENNSYLVANIA
V.
WYATT ALEXANDER EVANS
Appellant
STATEMENT OF LOWU COURT, PURSUANT TO
PA.R.A.P. 1925(a)
AND NOW, this 26th day of April, 2021, upon receipt ofa notice that
an appeal has been filed in this matter, and in consideration of the
"Statement of Matters Complained Of filed on behalf of Wyatt Alexander
Evans ("Defendant"), the undersigned files this statement pursuant to
PA-R.A.P. 1925(a).
Defendant asserts anumber of errors by this Court as aresult of the
mistrial that was ordered on October 6, 2020. A trial by jury was
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commenced on October 6, 2020, during the COVID-19 pandemic. The
mistrial was granted on October 6, 2020, after the revelation by defense
counsel that Defendant had been exposed the previous day at his place of
employment to someone who had tested positive for COVID-19. Counsel
reported that Defendant had been directed by his employer to go home and
self-quarantine until he obtained anegative test.' This information was not
shared with defense counsel until after the trial commenced and apparently,
defense counsel made no inquiries of Defendant as to any potential exposure
to COV ID- 19 before the start of trial.
After the declaration of mistrial, Defendant filed aMotion to Dismiss
Pursuant to Pa.Crim. R.P. No. 587. A hearing on the motion to dismiss was
held on January 26, 2021, after which the Motion was denied. Notice of
Appeal was filed by Defendant on February 17, 2019.
'This advice from the employer was indicated by Defendant through his counsel, but fails to comply
with the guidelines from the Pennsylvania Department of Health,
2
COVID-19 Modifications
During the COVID-19 pandemic, jury trials were suspended in York
County from March 16, 2020, to July 6, 2020. The weeks of July 6, 2020,
through July 17, 2020, were basically an "experiment" to return jurors to the
Judicial Center with the hope of developing asafe plan to resume jury trials.
Only two judges, as opposed to five to seven judges, were sitting for jury
trials in the two largest courtrooms in the Judicial Center during this period
in July 2020. Plexiglass partitions were installed in front of counsel tables,
the witness stand and the judge's bench. The courtrooms were re-
configured to take half the jury members out of the jury box and space
seating in the well of the courtroom where defense counsel would normally
be seated. A large plexiglass partition was installed between the jurors and
counsel tables.
Voir dire was conducted in the large jury assembly room so that the
jury panel could be properly social-distanced. All participants were
required to wear masks. Upon entry into the Judicial Center, jurors
answered questionnaires regarding exposure to COVID-19, experience of
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symptoms, pre-existing conditions and general concerns regarding exposure
to the COVID-19 virus. Requests to be excused were liberally granted to
jurors.
In the courtrooms, there was no approaching the witnesses by counsel
or traditional sidebars. Exhibit binders were required or gloved tipstaves
and/or deputies brought physical evidence to the witness. Headsets and
white noise were used by the judge and counsel for any sidebar discussions.
Jurors stayed in the large court room for breaks and jury deliberations, and
counsel and the court vacated the courtroom. Significant efforts were taken
to ensure the safety of all persons present.
After the two-week "experiment", the York County bench held
further discussions to review the results and juror concerns/comments to
develop aplan for the remainder of the pandemic. Prior to March of 2020,
York County conducted six two-week trial terms with five to seven judges
simultaneously presiding over criminal and civil trials. After the July
"experiment", a continuous trial term was developed commencing
September 8, 2020, where two judges per week presided over jury trials.
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Commencing September 8, 2020, each trial judge's court room was
modified along the same lines as the larger courtrooms had been modified
during the July experiment. Social distancing was a primary concern,
although the smaller courtrooms did not permit social distancing to occur to
the same extent as had occurred during the July experiment. Discussion
among the trial judges took place that addressed concerns with being able
to hear and understand witnesses and counsel when each was speaking.
After discussion, apolicy was approved for permission to remove face
masks while conducting direct or cross-examination or while awitness was
testifying, particularly in light of the fact that plexiglass barriers existed in
front of the witness stand, counsel tables, the court reporter, court clerk, the
judge, counsel tables and the sectioned-offjury area.
Further discussion took place as to whether the jury should be able to
view Defendant for identification purposes and to observe his demeanor
throughout the trial while witnesses were testifying. This discussion led to
adecision to ask the Defendant to remove his mask during trial with an
instruction to the jury as to why this was being permitted, and again with
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Defendant separated by two areas of plexiglass from everyone other than
his/her counsel and deputy sheriffs.
COVID-19 continues to be a moving target with policies and
procedures modified as directives from AOPCZ, CDC' and the Governor's
office provide the courts with additional guidance. The Court remained
cognizant of the rates of positive tests within the York community and
within the state to monitor whether it was safe to continue with jury trials.
Ultimately, jury trials were again suspended November 30, 2020, and did
not resume until March 1, 2021.
As of October 6, 2020, the most recent Alert provided by
Pennsylvania Department of Health Secretary Rachel Levine was dated
September 14, 2020. The Alert provided guidance for patients under
quarantine after exposure to the virus. The Alert provided that individuals
coming in close contact with aperson who had COVID-19, must quarantine
zAdministrative Office of Pennsylvania Courts
Center for Disease Control.
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for fourteen (14) days from last contact, even if the person remains
asymptomatic. Transcript of January 26, 2021, Exhibit 2. (emphasis added.)
The Alert further provided that anegative test result obtained while under
quarantine would not release aperson from quarantine. Id.
As of October 1, 2020, Pennsylvania had atotal of 160,123 positive
cases for COVID-19 with 8,160 deaths'. In the United States, as of October
1, 2020, there were 7,266,942 positive cases, and 207,550 deaths attributed
to COVID-19. 1 In York County, Pennsylvania, as of October 1, 2020, there
were 43,072 positive cases and 766 deaths as a result of COVID-19. 1
During the trial week in question, Pennsylvania had experienced its highest
number of COVID-19 cases in six months. 7
Facts Before the Court
On October 6, 2020, after testimony of the first fact witness in the
trial, Defendant indicated through his counsel that he had been exposed the
°www.pennlive.com
sEn.as.com/en/2020/10/01/latestnews
6 LehighValleylive,com
7 PA Reports Highest Number Of New COVID-19 Cases 1n 6Months, www.msn.com/en-
us/health/medical/Pa -10/10/2020. Kara Seymour
7
previous day, in his place of employment, to an individual who tested
positive for COVID-19. Defendant was directed by his employer to go
home and self-
quarantine until he could be tested. Instead, Defendant
appeared for trial the next morning and gave no indication that he had been
exposed until after the jury was sworn in, opening statements had been made
and testimony had commenced. Counsel provided no further specific
information to the Court.
Counsel makes much of the fact that this issue only came to light
because the Court asked Defendant to remove his mask so that the jury could
observe his demeanor. But mask or no mask, Defendant should never have
entered the Judicial Center, the jury assembly room for voir dire, or the
courtroom for the trial. Defendant sat for an extended period of time in
close proximity to his counsel, adeputy sheriff assigned to the court room
and came into close contact with the tipstaff and others in the courtroom.
Defendant had no regard for the safety of anyone in the court room.
When this Court became aware of Defendant's exposure, we
immediately halted the trial, addressed the matter with court administration
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I
and determined for the safety of all persons within the court room that there
was manifest necessity to declare amistrial.
Defendant argues prejudice but cites nothing specific that
demonstrates how he has been prejudiced by the mistrial. Rather, the
Motion to Dismiss centered the argument of prejudice on the Court's request
of the Defendant to remove his mask. Again, that has no relevance to the
information that came to light —ie., the Defendant's exposure to COVID-
19, and the basis for the mistrial. Counsel for Defendant is under the
misguided belief that giving Defendant the opportunity to remain in the
court room with his mask on was aviable solution to avoid other individuals
in the court room from being potentially exposed to adeadly virus. This is
directly contrary to any information available to the Court from the CDC or
Pennsylvania Department of Health.
Defense counsel also asserts that the trial could have been delayed so
that Defendant could have obtained arapid COVID-19 test and received
results within twenty-four (24) hours. This Court does not find that
assertion credible in the York County area in early October 2020. Even
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i
months later, in January 2021, this Court is aware that rapid test results were
taking several days to acquire. Further, Defendant was instructed by his
employer on October 5, 2020, to be tested and took no steps to initiate that
process.
PA. Crim. R.P. No. 605 provides that the trial judge may declare a
mistrial only for reasons of manifest necessity. In reviewing atrial court's
determination of manifest necessity, the appellate courts have indicated:
We do not apply amechanical formula in determining
whether atrial court had amanifest need to declare a
mistrial. Rather, ``varying and often unique situations
arise during the course of acriminal trial ... [and]
the broad discretion reserved to the trial judge in such
circumstances has been consistently reiterated'...
Commonwealth v. Leister, 712 A.2d 332, 335, (Pa.Super. 1998), quoting
Illinois v. Somerville, 410 U.S. 458, 462 [](1973)). (some internal
citations
omitted)
In the present case, in fifteen years on the bench, this Court has had
no more unique or varying circumstance than trying to conduct asafe and
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fair trial during the COVID-19 pandemic. The ever-changing protocols and
precautions necessary to ensure the safety of all participants within the court
room, from juror to defendant to lawyer to court reporter to deputy to clerk
to tipstaff to judge, has been adaily, evolving process. This Court's prime
consideration in the midst of one the worst weeks for reported cases in
Pennsylvania was to assure that everyone was safe in the court room to the
best of the Court's ability.
The jurors were reminded that the Court and court administration had
taken extra precautionary steps, as outlined previously herein, to assure their
safety and peace of mind in carrying out this most important civic duty of
jury service. Defendant sat through this Court's explanations of those safety
precautions before the trial commenced and made no mention of his
exposure to COVID-19 on the previous day. In fact, the Court met with
counsel and Defendant in the court room before jury selection, in the court
room after jury selection and in the court room before the trial proceedings
began after lunch, and at no time did the Defendant ever indicate that he had
been exposed the previous day and directed to self-quarantine.
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Given the deadly nature of the COVID-19 virus, the instructions to
self- quarantine when exposed, even if asymptomatic, and the number of
individuals to potentially be exposed by the continuation of the trial, this
Court remains firm in the decision to declare a mistrial for manifest
necessity. Defendant's request to continue the trial and remain masked was
not areasonable alternative under any health and safety recommendation
available at the time of trial and would not assure the protection of others in
the courtroom. The delay of the trial to await test results would have been
too lengthy and would not have been in accordance with CDC protocols, as
said protocols specifically indicate that "a negative test result obtained while
a close contact is under quarantine does not release the person from
quarantine. Because infection can develop up to 14 days after exposure,
persons with negative test results must still quarantine for the full 14 days."
Transcript of January 26, 2021, Exhibit 2.
Based on the information before this Court on October 6, 2020,
manifest necessity existed to declare amistrial. We have not addressed the
errors asserted by Defendant relating to the request to remove his mask as
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the issue of the mask played no role in the court's declaration of amistrial.
For the reasons stated herein, this Court respectfully requests the denial of
Defendant's appeal.
The Clerk of Courts is directed to provide notice of the entry of this
Statement to the District Attorney's Office and Attorney Alisa Livaditis on
behalf of Defendant, Wyatt Alexander Evans.
BY THE COURT,
MARIA MUSTI COOK, JUDGE
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