Com. v. Kelley, M.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MARLIN J. KELLEY,
Appellant No. 278 WDA 2015
Appeal from the Order February 13, 2015
In the Court of Common Pleas of Greene County
Criminal Division at No(s): CP-30-CR-0000443-2013
BEFORE: SHOGAN, OTT, and STABILE, JJ.
MEMORANDUM BY SHOGAN, J.: FILED MAY 10, 2016
Marlin J. Kelley (“Appellant”) appeals from the February 13, 2015
order denying his motion to prohibit retrial on double jeopardy grounds.
We affirm.
While driving routine patrol on Locust Avenue at 2:30 a.m. on July 13,
2013, in Mount Morris, Greene County, Officer John L. Lingo observed a
Chevrolet Cavalier approaching his marked police car. To avoid a head-on
collision with the Cavalier, Officer Lingo was forced “to go up on a sidewalk
to get away from it.” N.T., 11/25/14, at 19–20, 22–23, 45. Within a few
minutes, Officer Lingo stopped the Cavalier, which was driven by Appellant;
the officer did not see anyone else in the car. Id. at 23–26, 46. After
speaking with Appellant, Officer Lingo noticed the odor of alcohol coming
from Appellant’s breath and that his speech was slurred. Id. at 28. Based
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on these observations, Appellant’s reckless driving, and Appellant’s
admission that he had had “two shots of whiskey,” Officer Lingo placed
Appellant under arrest for suspicion of driving under the influence of alcohol.
Id. at 28–29. Because there was no one available to drive Appellant’s
vehicle, Officer Lingo called his local 911 center and requested a towing
company; he then transported Appellant to the Waynesburg Police Station.
Id. at 29, 82. After observing Appellant for twenty minutes, Patrolman
Shawn Wood gave Appellant a breathalyzer test. Id. at 63–65. Appellant’s
blood alcohol content (“BAC”) was recorded at .196%. Id. at 70,
Commonwealth Exhibit 5.
Appellant was charged with driving under the influence (“DUI”) of
alcohol in violation of 75 Pa.C.S. § 3802(a)(1) and (c) and reckless driving in
violation of 75 Pa.C.S. § 3736. He proceeded to trial in November of 2014.
On the morning of trial, before the jury was sworn, defense counsel
announced that a witness, Mr. Jeff Mullenax, who was offered as the driver
of the Cavalier, had been contacted the day before about testifying at trial,
but his whereabouts that morning were unknown. N.T., 11/25/14, at 3–4.
Defense counsel unsuccessfully moved for a continuance, and the trial
commenced. Id. at 4.
After the Commonwealth rested, Appellant testified that he was not
the driver; Mr. Mullenax was. N.T., 11/25/14, at 75. On cross-examination,
the prosecutor inquired as to why Appellant had not identified his “buddy”
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sooner. Id. at 85. Defense counsel objected. Id. at 85–86. At sidebar,
defense counsel recalled that, on the day of jury selection, November 17 or
18, 2014, he had informed the Commonwealth that he intended to call
Mr. Mullenax during trial to prove that Appellant was not the person driving
the Cavalier. Id. at 86–89. The prosecutor recalled that she was given a
name with an incorrect spelling and, therefore, could not locate the witness.
Id. at 86–87. As the argument escalated at sidebar, defense counsel
suggested a mistrial based on the prosecutor’s violation of Appellant’s
constitutional rights. Id. at 89. In response, the prosecutor asked for a
missing-witness instruction, contending: “[T]his is a major lie. . . . [T]here
was no Jeff Mullenax present there. In fact, I agree, maybe we need a
mistrial so I can call the tow truck driver who can say there was no other
person there.” Id. at 89. Defense counsel moved for a mistrial, and the
prosecutor consented with the qualification that “this is not on the
Commonwealth” and, therefore, “[t]his is not double jeopardy.” Id. at 90.
Following a lunch recess, the trial court reconvened. N.T., 11/25/14,
at 92. Defense counsel submitted a memorandum discussing the bases for a
mistrial. Id. at 92; Defense Exhibit (unnumbered). In response, the
prosecutor argued the lack of an alibi notice from the defense in violation of
the Pennsylvania Rules of Criminal Procedure. Id. at 93.
The trial court granted Appellant a mistrial “due in part to the
impaneled jury overhearing the ‘aggressive side bar argument between
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counsel’ and due to . . . potential eye witnesses and the possibility of alibi
witnesses necessary to both defense and prosecution in the pursuit of
justice. . . .” Id. at 94–95. The trial court specifically found no bad faith or
misconduct by either counsel; it also determined that jeopardy did not
attach. Id. Thereafter, the trial court directed the court administrator to
schedule a new trial for the February 2015 term. Id. at 95–96.
On December 5, 2014,1 Appellant filed a motion to prohibit retrial on
double jeopardy grounds, which the trial court denied. Order, 2/13/15. A
timely appeal followed.
Upon initial review of Appellant’s appeal, we observed sua sponte that
we could exercise jurisdiction only to the extent that the order denying
Appellant’s pretrial motion to dismiss qualified as a collateral order under
Pa.R.A.P. 313.2 Our concern was informed by recent precedent:
To establish whether a motion to dismiss on double jeopardy
grounds qualifies as a collateral order, trial courts must now,
inter alia, satisfy [Pa.R.Crim.P.] 587(B)(3), (4), (5), and (6).
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1
The prosecutor, Assistant District Attorney Linda Chambers, retired in
December of 2014.
2
Pa.R.A.P. 313 provides, in relevant part, as follows:
A collateral order is an order separable from and collateral to the
main cause of action where the right involved is too important to
be denied review and the question presented is such that if
review is postponed until final judgment in the case, the claim
will be irreparably lost.
Pa.R.A.P. 313(b).
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Subsection (B)(3) requires the trial court, following a hearing, to
enter on the record a statement of findings of fact and
conclusions of law and its disposition of the double jeopardy
motion. Subsection (B)(4) requires the trial court to render a
specific finding on frivolousness in the event the court denies the
double jeopardy motion. Subsection (B)(5) requires the trial
court, if it finds frivolous the double jeopardy motion, to inform
on the record a defendant of his or her right to petition for
review under Pa.R.A.P. 1573 within [thirty] days of the order
denying the motion. Subsection (B)(6) requires the court to
advise a defendant of his immediate right to a collateral appeal if
the court does not find the double jeopardy motion to be
frivolous.
Commonwealth v. Taylor, 120 A.3d 1017, 1022–1023 (Pa. Super. 2015).
We found that the trial court failed to render a specific finding on the
record regarding frivolousness, as required under Pa.R.Crim.P. 587(B)(4).
Thus, the trial court failed to comply with Rule 587(B)(4) through (6).
Because the trial court failed to fully comply with Rule 587(B), we entered a
judgment order, remanding this matter to the trial court for compliance with
Rule 587(B) and preparation of a supplemental Pa.R.A.P. 1925(a) opinion.
Judgment Order, 11/25/15, at 2.
The trial court complied with our judgment order and Rule 587(B) and
issued the following conclusion:
Pursuant to the requirement set out in Rule 587
Subsection (B) (4) regarding a specific finding of frivolousness,
we make a finding for the record that the Defendant’s motion to
dismiss on double jeopardy grounds was non-frivolous and
advise the Defendant that the denial is immediately appealable
as a collateral order.
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Supplemental Trial Court Opinion, 3/14/16, at unnumbered 3. Thus, we
conclude that we have jurisdiction to entertain this matter as an appeal from
a collateral order under Pa.R.A.P. 313.
Appellant presents the following question for our consideration:
Did the trial judge err and apply incorrect standards when
it failed to find that retrial of the defendant was barred by double
jeopardy after a motion for mistrial based on the
Commonwealth’s declarations (1) that it was “ridiculous” and “a
waste of time” for a defendant to insist that the BAC datamaster
operator testify at trial of a DUI case, (2) that trial counsel was
planning to improperly insinuate the officer was incompetent
“based on years of experience” with the named counsel, and (3)
questioning the defendant on cross-examination why he did not
tell the name of the driver until “yesterday” when the
Commonwealth knew that the appellant had made a denial at
the stop, was arrested, was never questioned about the denial,
had actually revealed the name of the potential witness at jury
selection seven days earlier, and provided the precise name and
contact telephone number the day before jury selection when
there was no prior order compelling the defendant to do so, and
(4) the offensive comments were broadcast by the prosecutor
within earshot of the jury, all of which provoked the motion for
mistrial and were undertaken to prevent the fair trial of the
defendant?
Appellant’s Brief at 12.
Our scope and standard of review are as follows: “An appeal grounded
in double jeopardy raises a question of constitutional law. This court’s scope
of review in making a determination on a question of law is, as always,
plenary. As with all questions of law, the appellate standard of review is de
novo.” Taylor, 120 A.3d at 1021 (quoting Commonwealth v. Vargas, 947
A.2d 777, 780 (Pa. Super. 2008) (citations and quotation marks omitted)).
Moreover:
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[a]ppellate review of the trial court’s findings of fact in a double
jeopardy matter further implicates the following: Where issues
of credibility and weight of the evidence are concerned, it is not
the function of the appellate court to substitute its judgment
based on a cold record for that of the trial court. The weight to
be accorded conflicting evidence is exclusively for the fact finder,
whose findings will not be disturbed on appeal if they are
supported by the record.
Commonwealth v. Anderson, 38 A.3d 828, 834 (Pa. Super. 2011)
(quoting Commonwealth v. Wood, 803 A.2d 217, 220 (Pa. Super. 2002)
(internal citations omitted)).
Double jeopardy protection applies where the prosecution engages in
conduct intended to provoke the defendant’s motion for mistrial.
Commonwealth v. Starks, 416 A.2d 498, 500 (Pa. 1980). Additionally,
double jeopardy applies in the event of prosecutorial misconduct
“undertaken in bad faith to prejudice or harass the defendant.” Id.; see
also Commonwealth v. Martorano, 741 A.2d 1221 (Pa. 1999) (affirming
the two-part analysis of prosecutorial misconduct set forth in Starks).
The appropriate mechanism to challenge prosecutorial misconduct is
through a motion for mistrial. Pa.R.Crim.P 605(B).3 The following standards
govern our review:
In criminal trials, declaration of a mistrial serves to
eliminate the negative effect wrought upon a defendant when
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3
Pa.R.Crim.P. 605(B) provides: “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 reasons of manifest necessity.”
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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 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, ___ A.3d ___, 2016 Pa. Super. 55 at *6 (Pa.
Super. filed Mar. 1, 2016) (quoting Commonwealth v. Lettau, 955 A.2d
360, 363 (Pa. Super. 2008), reversed on other grounds, 986 A.2d 114 (Pa.
2009) (citations, quotations, and quotation marks omitted)).
The trial court disposed of Appellant’s motion to bar retrial as follows:
During trial, several conversations occurred at sidebar
between former First Assistant Linda Chambers and
Mr. Cancelmi. During these conversations, Mr. Cancelmi accused
the Commonwealth of prosecutorial misconduct and moved for a
mistrial based on statements made by Ms. Chambers that could
potentially have been heard by several jurors. The
Commonwealth consented but stated on the record that she felt
that no misconduct had occurred. After a brief recess, this
[c]ourt granted the mistrial.
* * *
In this case, the [c]ourt clearly stated, on the record, that,
given that the physical limitations of the Courtroom, jurors could
easily overhear the conversations that occurred at sidebar. The
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[c]ourt recognized the need for eyewitnesses for both the
Defendant and the Commonwealth, and that it was in the
interest of justice that a mistrial be declared. This [c]ourt also
recognized on the record that neither defense counsel nor the
prosecutor took any action that rose to the level of bad faith,
misconduct or actions specifically intended to cause a mistrial.
Further, this [c]ourt found that a retrial was not barred by
Double Jeopardy and ordered a new trial date to be set by the
Court Administrator.
Order, 2/13/15, at unnumbered 2–3, 4.
On appeal, Appellant asserts that a “criminal defendant has no
mandatory duty to disclose the name of eyewitnesses known to the
defendant.” Appellant’s Brief at 31 (citing Pa.R.Crim.P. 573). According to
Appellant, Mr. Mullenax was an eyewitness, not an alibi witness, and,
therefore, Appellant did not have to identify him. Appellant’s Brief at 34.
We disagree. In doing so, we are persuaded by the Commonwealth’s
position: “In Commonwealth v. Chamberlain, the Superior Court held that a
defense that places another individual in the driver’s seat in a DUI case
constitutes an alibi defense.” Commonwealth’s Brief at 14 (citing
Commonwealth v. Chamberlain, 658 A.2d 395, 399 (Pa. Super. 1995)).
The Chamberlain Court addressed this issue in the context of a
missing witness instruction:
An “alibi” is “a defense that places the defendant at the
relevant time in a different place than the scene involved and so
removed therefrom as to render it impossible for [her] to be the
guilty party.” Commonwealth v. Roxberry, 529 Pa. 160, 163,
602 A.2d 826, 827 (1992) (citations omitted). If the defendant
presents evidence which covers the time period when the crime
was committed and which puts her at a different location than
that of the crime scene, she has presented an alibi. See
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Commonwealth v. Jones, 529 Pa. 149, 150-54, 602 A.2d 820,
821-22 (1992) (acknowledging alibi charge to jury as accurately
stating the law: “whether the testimony given covers the entire
time the offense is shown to have been committed and whether
it precludes the possibility of defendant’s presence at the
scene”). The evidence presented, taken as true, must make it
impossible for the defendant to have committed the crime. Id.,
529 Pa. at 152-54, 602 A.2d at 822. Commonwealth v.
Repaci, 419 Pa.Super. 591, 594-95, 615 A.2d 796, 798 (1992).
According to appellant, [her husband] would have testified that
she was not in the driver’s seat at the time of the infraction.
Instead, [her husband’s] testimony would place appellant in the
passenger seat at the crucial point in time. Although [her
husband’s] testimony would place appellant at the scene of the
infraction, his testimony precluded the possibility that she was
driving the vehicle.
Chamberlain, 658 A.2d at 399.
Applying Chamberlain to this case, we conclude that Mr. Mullenax
was an alibi witness. According to Appellant, Mr. Mullenax would have
testified that Appellant was not in the driver’s seat at the time of the
infraction. Instead, Mr. Mullenax’s testimony would place Appellant in the
passenger seat at the crucial point in time. Although Mr. Mullenax’s
testimony would place Appellant at the scene of the infraction, his testimony
precluded the possibility that Appellant was driving the vehicle. Because
Mr. Mullenax was an alibi witness, Appellant was required to identify him and
file a notice of alibi, as the Commonwealth contends. Commonwealth’s Brief
at 14–15. Appellant’s contrary claim lacks merit.
Next, Appellant complains that the trial court erred in ruling that
“there being eyewitnesses that neither party could obtain at trial, . . . the
interest of justice necessitated the cessation of the trial.” Appellant’s Brief
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at 32. According to Appellant, “This was clearly not a manifest necessity.”
Id. However, we need not address manifest necessity. That standard
applies when the trial court declares a mistrial, not when—as here—the
defense moves for one. Pa.R.Crim.P. 605(B).
Lastly, Appellant argues that retrial is warranted due to prosecutorial
misconduct. Appellant’s Brief at 35–36. We disagree.
Upon plenary and de novo review of the certified record, we find
support therein for the trial court’s findings and, therefore, will not disturb
them on appeal. Nor will we substitute our judgment regarding credibility
and weight based on a cold record for that of the trial court. Anderson, 38
A.3d at 834. Our review reveals that Appellant moved for a mistrial during a
heated exchange after the Commonwealth asked Appellant about failing to
identify Mr. Mullenax until the day before trial. N.T., 11/25/14, at 85, 86–
90.4 The trial court observed from the bench that, given the design of the
courtroom, “the jury members could easily overhear the details of the
argument at side bar.” Id. at 94–95. Additionally, the trial court
determined that Appellant and the Commonwealth each had an additional
eyewitness who, in the interest of justice, should be heard. Id. at 95.
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4
Appellant previously moved for a mistrial during a sidebar at which the
Commonwealth asked defense counsel about stipulating to Appellant’s BAC.
N.T., 11/25/14, at 17. The trial court denied the motion and issued a
cautionary instruction to the jury regarding the attorney’s arguments, to
which Appellant did not object. Id. at 18–19. That ruling is not before us.
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We observe that two seasoned and well-acquainted attorneys argued
multiple times at sidebar in a small courtroom with the jury present. N.T.,
11/25/14, at 17–18, 26–27, 35–36, 52–53, 66, 68, 86–90. Although the
attorneys were patently frustrated with each other’s advocacy, we agree
with the trial court that the prosecutor did not provoke Appellant into
requesting a mistrial. Starks, 416 A.2d at 500. Indeed, nothing in the
record supports the conclusion that the prosecutor acted in bad faith to
prejudice or harass Appellant or to deny him a fair trial. Martorano, 741
A.2d 1221.
Thus, we conclude that the trial court did not abuse its discretion.
Accordingly, we affirm the order denying Appellant’s motion to prohibit
retrial on double jeopardy grounds.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/10/2016
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