J-A20018-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

SHAWN EDWARD LEE

Appellant No. 464 WDA 2015

Appeal from the Order February 13, 2015

In the Court of Common Pleas of Mercer County

Criminal Division at No: CP-43-CR-0000967-2014

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

SHAWN EDWARD LEE

Appellant No. 169 WDA 2016

Appeal from the Order January 8, 2016

In the Court of Common Pleas of Mercer County

Criminal Division at No: CP-43-CR-0000967-2014

BEFORE: BOWES, STABILE, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.: FILED FEBRUARY 07, 2017

Appellant, Shawn Edward Lee, appeals from the order entered in the 

Mercer County Court of Common Pleas that denied his motion to dismiss 

based on double jeopardy. This case returns to us after we remanded to 
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have the trial court comply with Pa.R.Crim.P. 587(B), to clarify whether this 

Court had appellate jurisdiction. Appellant contends the trial court erred by 

sua sponte granting a mistrial absent a finding of manifest necessity. We 

conclude we have appellate jurisdiction and reverse. 

We need not discuss the facts underlying Appellant’s alleged offenses 

of, inter alia, murder of the second degree and murder of the third degree. 

On the third day of a jury trial, during the Commonwealth’s case-in-chief, 

the following exchange transpired between Colleen Pritts, Appellant’s 

girlfriend, and the Commonwealth:

[District attorney:] What type of a relationship did you 

have with [Appellant]?

A: He’s my boyfriend.

Q: For how long was he your boyfriend on May 13, 2013?

A: Four years at that point. We had been together since 

he got out of prison in –

[Appellant’s counsel:] Your Honor --

[Trial court:] Granted. Ladies and Gentlemen, I have had 

to grant a mistrial. It means we have to start and do this 

over again. You will be excused from further service. 

We’ll clear the courtroom and I will talk to you. Please 

step down.

N.T. Trial, 2/13/14, at 63-64. The transcript does not reflect any objection 

or other communication by either Appellant’s counsel or the district attorney 

prior to the jury’s dismissal. 
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After the jury was dismissed and the trial court spoke with the jury, 

the following discussion occurred:

The court: Please be seated. [Appellant’s counsel], do you 

wish to put things on the record?

[Appellant’s counsel]: Yes, Your Honor. For the record, 

before the Court came in we did have the court reporter 

read back the testimony from the time that Ms. Pritts was 

asked the last question and responded. The record 

indicates that I said, “Your Honor”; the Court said, 

“granted”, and there was no other discussion and the 

Court cleared the room.

The court: There was an order entered before I did that, 

clearly.

[Appellant’s counsel] I’m sorry, Your Honor?

The court: I entered an order before I cleared the 

courtroom. There has to be an order granting the mistrial.

[Appellant’s counsel]: We didn’t get that far on the 

transcript, apparently, Your Honor. 

At any rate, the defense would cite -- bring the Court’s 

attention to Rule 605(b): 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. 

We note for the record that when Ms. Pritts gave her 

answer to [the district attorney’s] question I stood up and 

said, “Your Honor”. It was my intention, as it normally is 

when these things arise, to request a sidebar or a recess 

to discuss or consider our options. I never got to do so 

because the Court stated “granted”, and in our opinion sua 

sponte declared a mistrial and cleared the courtroom. 

We would note that there was no discussion or 

consideration of any less drastic options. It is our position 

that [Appellant] is prejudiced. In the opinion of the 
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defense team the case was going very well for the 

defense. We have now been deprived of our jury. The 

Commonwealth now knows essentially all of the defense 

strategy, and one key Commonwealth’s witness, as the 

Court is aware, is missing and currently has not been 

found. 

It is our position that Ms. Pritts’ statement could have been 

addressed with a precautionary instruction, as the Court 

had previously suggested, as to the testimony of Mr. Huey 

where he indicated he had been continuously incarcerated 

since his arrest but had spoken to [Appellant]. Therefore, 

we would like to place on the record our objection to the 

Court sua sponte the declaration of a mistrial [sic], and we 

would ask that the Court order that [Appellant] be barred 

from being retried for reasons of double jeopardy.

We cite to the Court the Commonwealth versus Diehl, 615 

A.2d 690, a 1992 Pennsylvania Supreme Court case that 

held the trial court erred in awarding [sic] the appellant 

retried, where doing so impermissibly placed him again in 

jeopardy after the Court declared a mistrial sua sponte. It 

is well settled the declaration of a mistrial sua sponte by 

the trial court is proper only for reasons of manifest 

necessity. If there is any doubt as to the presence of 

manifest necessity to support the trial court’s declaration 

of a mistrial, such doubt is to be resolved in favor of the 

accused, and double jeopardy shall prohibit a retrial.

We have a number of other cases, Judge, but we believe 

that that’s the one that’s on point. We would therefore ask 

the Court that [Appellant] not be retried.

[The court]: The Court will note for the record several 

things:

Number one, Ms. Pritts testified she saw him when he got 

out of prison. That was diametrically different than what 

Mr. Huey testified to. Mr. Huey’s implication was that he 

was in jail. Clearly this was not—at that point in time the 

Court is faced with manifest necessity because if you don’t 

declare a mistrial [Appellant] has an automatic right to a 

new trial for ineffective assistance of counsel. You would 

be per se ineffective. The courts clearly have shown that 
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this is not something to be cured by a cautionary 

instruction.

Two, when I said “granted”, I didn’t say anything other 

than that. You did not seek to clarify. It was done by a 

waiver on your part, clearly.

I’ll enter this order:

AND NOW, 13th day of February, 2015, IT IS HEREBY 

ORDERED [Appellant’s] Motion to Dismiss pursuant to a 

double jeopardy violation is DENIED.

N.T. Post-Trial Hearing, 2/13/15, at 2-6. The district attorney said nothing. 

The trial court’s order was docketed on February 17, 2015, and 

Appellant timely appealed on March 16, 2015. On March 17, 2015,1the trial 

court ordered Appellant to file a Pa.R.A.P. 1925(b) statement prior to March 

31, 2015.2 Appellant filed his Rule 1925(b) statement on March 31, 2015, 

and the court filed a responsive opinion on May 8, 2015. The trial court, in 

justifying its decision, noted the following:

The primary witnesses against [Appellant] were his codefendant’s [sic] Miguel Huey and Zachariah Owens. Both 

defendants had pled guilty pursuant to extremely generous 

plea bargains. Both co-defendant [sic] testified that Huey 

entered [the robbery victim’s residence] to scout out the 

place and then left. Owens and [Appellant] then entered 

the residence to commit the robbery. Owens further 

____________________________________________

1 The order was dated March 16, 2015.

2 We note the trial court’s order contravenes Rule 1925(b)(2), which states 

“The judge shall allow the appellant at least 21 days from the date of the 

order’s entry on the docket for the filing and service of the” Rule 1925(b) 

statement. Pa.R.A.P. 1925(b)(2).
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testified that he [i.e., Appellant,] fired the shot that killed 

[the decedent].

[The robbery victim] and his brother Bradley both testified 

that Huey was an active participant in the robbery. Their 

testimony directly contradicted Huey’s and Owens’ version 

of the incident.

* * *

The sole witnesses to implicate [Appellant] in the murder 

were his co-defendants. Both co-defendants received 

generous plea bargains to testify against [Appellant]. 

Their versions of the incident substantially and 

dramatically [sic] from the testimony of the decedent’s 

sons, [i.e., the robbery victim and his brother,] who 

witnessed the incident.

Trial Court Opinion, 5/8/15, at 2, 5.

On November 23, 2015, this Court remanded to have the trial court 

comply with Pa.R.Crim.P. 587(B), and to file a supplemental Rule 1925(a) 

decision. Appellant formally filed a motion to bar retrial and dismiss the 

case on January 6, 2016. 

On January 11, 2016, the trial court filed an order with findings of fact 

and conclusions of law, in accordance with Rule 587(B). In relevant part, 

the trial court made the following findings of fact:

4. [Appellant’s] [c]ounsel at that point stood up and said, 

“Your Honor.”

5. The [trial] court in one continuous statement said, 

“Granted,” and advised the jury that the court was 

declaring a mistrial and ordered the courtroom cleared.

6. The [trial] court stepped down from the bench so he 

could speak to the jury to explain what had occurred.
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7. As the the [sic] [trial] court was walking toward the jury 

box, counsel for [Appellant] again stated, “Your Honor”.

8. The [trial] court next reaffirmed its order that the 

courtroom be cleared. 

9. When the courtroom reopened, counsel[3]again 

approached the bench and asked the court to reconvene.

10. The [trial] court indicated there would be no court 

reporter available as it was the lunch hour, and we would 

reconvene after the lunch hour.

11. The [trial] court reconvened immediately after the 

lunch hour.

12. [Appellant’s] [c]ounsel at that point in time put on the 

record an objection to the [trial] court sua sponte granting 

a mistrial and made a motion that [Appellant] be barred 

from retrial.

Order, 1/11/16, at 2.

The trial court’s order opined manifest necessity existed for a mistrial:

The [c]ourt finds there was manifest necessity because the 

testimony established that [Appellant] had been in prison 

prior to this incident and it would taint the [j]ury. The 

[c]ourt notes that the case at that point in time was 

favorable to [Appellant] and the Commonwealth was, in 

this [c]ourt’s opinion, losing; and as a result, this [c]ourt 

believes that any conviction would have been based upon 

that taint. 

Id. at 3. The trial court also held Appellant’s motion for mistrial was not 

frivolous, id. at 3, notified Appellant that the order was immediately 

appealable, see generally Pa.R.Crim.P. 587(B), and filed a supplemental 

____________________________________________

3 Apparently, the trial court was referencing Appellant’s counsel.
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Rule 1925(a) decision. We are satisfied the trial court complied with our 

prior mandate to comply with Rule 587(B), and that we have jurisdiction to 

entertain Appellant’s appeal. Accordingly, we address the merits. 

Appellant raises the following issue:

Whether the [t]rial [c]ourt erred when the [t]rial [c]ourt 

denied Appellant’s motion to dismiss and to bar retrial 

based upon a double jeopardy violation, in contravention 

of [s]tate and/or [f]ederal constitutional safeguards, when 

the [t]rial [c]ourt declared a mistrial sua sponte, which 

declaration was not supported by manifest necessity.

Appellant’s Brief at ii. 

Appellant contends the trial court failed to consider any alternatives to 

a mistrial before declaring a mistrial. He points out that the Commonwealth 

did not deliberately elicit Ms. Pritts’s statement. Appellant maintains that a 

cautionary instruction would have cured any prejudice from her comment. 

He opines the trial was going favorably for him prior to the trial court’s 

order. Appellant asserts the Commonwealth has knowledge of his entire 

defense strategy and additional time to locate a witness who was missing at 

the time of trial. 

In response, the Commonwealth observes, “[t]here are no bright-line 

rules or mechanical formulas for determining whether manifest necessity 

existed for” a mistrial. Commonwealth’s Brief at 11. In the 

Commonwealth’s view, however, the trial court’s order granting a mistrial 

was a foregone conclusion “wholly consistent with case law that has found 

even a single reference to a defendant’s having been incarcerated on an 
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unrelated charge fatal to the prosecution.” Id. at 12. We hold Appellant is 

due relief.

We review the trial court’s decision to declare a mistrial sua sponte for 

abuse of discretion. The trial court’s decision to declare a mistrial rests on 

the trial court’s “sound, and conscientious exercise of [] discretion,” but “the 

power ought to be used with the greatest caution, under urgent 

circumstances, and for very plain and obvious causes.” United States v. 

Perez, 22 U.S. 579, 580 (1824).4 While the trial court’s decision to declare 

mistrial is accorded broad deference, 

[t]his is not to say that we grant absolute deference to trial 

judges in this context. Perez itself noted that the judge’s 

exercise of discretion must be “sound,” [id.], and we have made 

clear that “[i]f the record reveals that the trial judge has failed to 

exercise the ‘sound discretion’ entrusted to him, the reason for 

such deference by an appellate court disappears.” [Arizona v. 

Washington, 434 U.S. 497, 510 n.28 (1978)]. Thus “if the trial 

judge acts for reasons completely unrelated to the trial problem 

which purports to be the basis for the mistrial ruling, close 

appellate scrutiny is appropriate.” Ibid. Similarly, “if a trial 

judge acts irrationally or irresponsibly, . . . his action cannot be 

condoned.” Id., at 514 [] (citing United States v. Jorn, 400 

U.S. 470 [] (1971), and [Illinois v. Somerville, 410 U.S. 458, 

469 (1973)]. 

Renico v. Lett, 559 US 766, 775 (2010) (emphasis in original). 

As our Supreme Court noted: 

____________________________________________

4

In determining whether the declaration of mistrial is supported by 

“manifest necessity,” we apply the standards set forth in both Pennsylvania 

and federal case law. Commonwealth v. Diehl, 615 A.2d 690, 691 (Pa. 

1992); Commonwealth v. Mitchell, 410 A.2d 1232, 1233 (Pa. 1980). 
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in the final analysis, the judge must always temper the decision 

whether or not to abort the trial by considering the importance 

to the defendant of being able, once and for all, to conclude his 

confrontation with society through the verdict of a tribunal he 

might believe to be favorably disposed to his fate.

Commonwealth ex rel. Walton v. Aytch, 352 A.2d 4, 8 (Pa. 1976) (citing 

Jorn, 400 U.S. at 486)).

In determining whether the trial court abused its discretion by 

declaring a mistrial sua sponte, we are guided by the following principles.

Pennsylvania Rule of Criminal Procedure 605(B) provides that “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.” Pa.R.Crim. 605(B). 

The words “manifest necessity” appropriately characterize the 

magnitude of the prosecutor’s burden. For that reason Mr. 

Justice Story’s classic formulation of the test has been quoted 

over and over again to provide guidance in the decision of a wide 

variety of cases. Nevertheless, those words do not describe a 

standard that can be applied mechanically or without attention 

to the particular problem confronting the trial judge. Indeed, it 

is manifest that the key word “necessity” cannot be interpreted 

literally; instead, contrary to the teaching of Webster, we 

assume that there are degrees of necessity and we require a 

“high degree” before concluding that a mistrial is appropriate. 

The question whether that “high degree” has been reached is 

answered more easily in some kinds of cases than in others. At 

one extreme are cases in which a prosecutor requests a mistrial 

in order to buttress weaknesses in his evidence. . . . At the other 

extreme is the mistrial premised upon the trial judge’s belief that 
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the jury is unable to reach a verdict, long considered the classic 

basis for a proper mistrial.

Washington, 434 U.S. at 505-6 (footnotes omitted).5

Similarly, while our courts have refrained from “establishing a catalog 

of situations in which a mistrial is dictated by manifest necessity, and has 

instead stated that each case must turn on the particular facts,” 

Commonwealth v Balog, 576 A.2d 1092, 1095 (Pa. Super. 1990), we have 

established certain significant factors to consider in determining whether the 

trial court abused its discretion in declaring sua sponte a mistrial. For 

example, the Supreme Court held that the failure on the part of the trial 

court to consider less drastic alternatives to a mistrial “creates doubt about 

the propriety of the exercise of the trial judge’s discretion and is grounds for 

____________________________________________

5

Justice Story articulated the “manifest necessity” standard as follows:

We think, that in all cases of this nature, the law has invested 

Courts of justice with the authority to discharge a jury from 

giving any verdict, whenever, in their opinion, taking all the 

circumstances into consideration, there is a manifest necessity 

for the act, or the ends of public justice would otherwise be 

defeated. They are to exercise a sound discretion on the 

subject; and it is impossible to define all the circumstances, 

which would render it proper to interfere. To be sure, the power 

ought to be used with the greatest caution, under urgent 

circumstances, and for very plain and obvious causes[.] But, 

after all, they have the right to order the discharge; and the 

security which the public have for the faithful, sound, and 

conscientious exercise of this discretion, rests, in this, as in other 

cases, upon the responsibility of the Judges, under their oaths of 

office.

Perez, 22 U.S. at 580. 
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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.” Diehl, 615 A.2d at 691 (citation omitted); see also, e.g.,

Commonwealth v. Kelly, 797 A.2d 925 (Pa. Super. 2002);6

Commonwealth v. McCord, 700 A.2d 938 (Pa. Super. 1997);7

Commonwealth v. Hatten, 496 A.2d 837 (Pa. Super. 1985).8 

____________________________________________

6 The Kelly Court held double jeopardy applied to bar a subsequent 

prosecution because the trial court failed to consider alternative options prior 

to sua sponte ordering a mistrial:

Upon review, we conclude that the trial court acted prematurely 

in ordering a mistrial. In other words, manifest necessity for a 

mistrial was not demonstrable at the time the court sua sponte

ended the trial. We do not believe the trial court adequately 

considered other less severe options before compelling [the 

defendants] to forfeit their right to have the trial completed and 

to undergo another prosecution.

Kelly, 797 A.2d at 940 (emphasis added).

7

In McCord, this Court noted:

A failure of the lower court to consider less drastic alternatives 

before declaring a mistrial creates doubt about the exercise of 

the court’s discretion and may bar re-prosecution because of 

double jeopardy. The determination of whether to declare a 

mistrial after jeopardy has attached is one of utmost importance 

since the defendant has a substantial interest in having his fate 

determined by the jury first impaneled.

McCord, 700 A.2d at 943.

8

In Hatten, 

(Footnote Continued Next Page)
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The failure to consult with parties regarding the propriety of declaring 

a mistrial also has been viewed by our Supreme Court as a factor tending to 

demonstrate an abuse of discretion. See Walton, supra. In Walton, 

during the course of the trial, the trial judge decided that the 

jury had to be sequestered because of the surrounding publicity. 

Two of the jurors asked to be excused because of the hardship 

this would cause, with the result that there were no alternate 

jurors available. Subsequently, the judge was informed that one 

of the twelve remaining jurors was very distressed because she 

had been unable to find a baby-sitter for her children. As a 

result, without consulting either counsel, the trial judge allowed 

the juror to go home without requesting her to return the next 

day, and the trial was aborted

Balog, 576 A.2d at 1096 (discussing Walton, 352 A.2d at 9).

Our Supreme Court noted: 

The trial court could have at least attempted to contact both 

attorneys involved in the case to ascertain if they had any 

suggestions. In order to properly exercise his discretion, the 

trial judge should have sought out such suggestions, particularly 

those of defense counsel, in order to indicate that the 

(Footnote Continued) _______________________

we held that a prosecutor’s disclosure in a joint trial of defendant 

and her co-defendant, that co-defendant had threatened the 

complaining witness, did not justify a declaration of a mistrial, 

when the mistrial was requested only by the co-defendant and 

the defendant requested a severance of the two cases in order to 

proceed with the trial. Apart from failing to consider the 

alternatives to declaring a mistrial, this [C]ourt noted that 

disclosure of the defendant’s threat would not have necessarily 

required reversal on appeal had appellant been convicted. 

Therefore, it was held that a mistrial was not manifestly 

necessary, and the trial court should have severed the two 

cases.

Balog, 576 A.2d at 1096-97. 
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determination was tempered by a consideration of Walton’s 

interest.

Walton, 352 A.2d at 8. 

Similarly, in Commonwealth v. Bartolomucci, 362 A.2d 234 (Pa. 

1976), our Supreme Court found that the trial court failed to inquire directly 

of the jury about the “hopeless deadlock” and that such failure “made the 

necessity of the mistrial not manifest and thus open to doubt.” Id. at 239. 

To this end, the Court noted: 

The doubt stems from the trial court’s failure to inquire directly 

of the jury, either individually or through the foreman, about the 

possibility of the deadlock being overcome by further 

deliberations. Such an inquiry would have served to remove any 

doubt, and thus, would have provided greater certainty as to the 

existence of a deadlock and the hopelessness of breaking it. If 

an individual inquiry were made, the trial court would have then 

had the opinion of each juror as to the existence and 

hopelessness of the deadlock.

Id.

In light of the foregoing, the Supreme Court ultimately concluded that 

the trial court’s declaration of a mistrial was not manifestly necessary, thus 

subject to doubt regarding its propriety. Id. at 239-40. 

Finally, we note that if the trial court’s decision to sua sponte declare a 

mistrial is not supported by manifest necessity double jeopardy principles 

preclude a new prosecution. See, e.g., Washington, 434 U.S. at 505; 

Jorn, 400 U.S. at 484-85; Kelly, 797 A.2d at 942; Commonwealth v. 

Rivera, 715 A.2d 1136, 1140 (Pa. Super. 1998); Balog, 576 A.2d at 1098. 
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A review of the record reveals the trial court hastily declared a 

mistrial, providing no explanation as to the reasons for its decision.9 

Additionally, there is no record of an attempt by the trial court to consult 

with the parties or consideration of less drastic alternatives to mistrial, 

following the statement proffered by the witness. The trial court declared a 

mistrial and released the jury without giving the parties an opportunity to 

address its decision. In light of the foregoing, we are constrained to 

conclude that these failures “made the necessity of the mistrial not manifest 

and thus open to doubt.” Bartolomucci, 363 A.2d at 239; see also

Walton, 352 A.2d at 8.10 Because any doubt regarding the propriety of the 

____________________________________________

9 We are not suggesting that the trial court at the time it declared a mistrial 

“was required to make explicit findings of ‘manifest necessity’ [or] to 

articulate on the record all the factors which informed the deliberate exercise 

of his discretion.” Washington, 434 U.S. at 517. However, the record 

should adequately disclose the basis for the trial court’s mistrial order. Id. 

Here, the record is barren of reasons for the mistrial. To the extent that one 

could surmise the trial court’s reasons for declaring a mistrial, after defense 

counsel merely proffered “Your Honor,” following the witness’ statement, 

there is no indication that said reasons were “plain” and “obvious,” Perez, 

supra, such as to justify a sua sponte declaration of a mistrial for manifest 

necessity. Indeed, if defense counsel would not have a problem with a 

cautionary a jury instruction, then the reasons for mistrial were not so plain 

and obvious as to warrant a sua sponte declaration of mistrial.

10 In United States v. Sanders, 591 F.2d 1293 (9th Cir. 1979), the Court 

of Appeals noted:

When the record is barren of reasons for the mistrial . . . or 

reveals that the judge failed adequately to consider feasible 

alternatives to a mistrial, then the decision to declare a mistrial 

may be reversed by a reviewing court, despite the high degree 

(Footnote Continued Next Page)
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exercise of discretion of manifest necessity must be be resolved in favor of 

defendant, Bartolomucci, 33 A.2d at 239, we must conclude the mistrial 

was not manifestly necessary and reverse the order of the trial court 

denying Appellant’s motion to dismiss on double jeopardy grounds. 

The reasons behind the trial court’s decision were disclosed only after 

the trial court declared a mistrial and subsequent to the release of the jury. 

In its post facto explanation of the basis for its decision, the trial court 

suggested that the witness’s comment was prejudicial to Appellant, 

insomuch that it even speculated that if Appellant were found guilty, the 

conviction rested solely upon the comment. Trial Court Order, 1/11/16, at 

2-3.

There is no per se rule that any mention of a defendant’s prior criminal 

activity warrants a mistrial. Commonwealth v. Morris, 519 A.2d 374, 377 

(Pa. 1986) (“There is no per se rule that requires a new trial for a defendant 

every time there is a reference to prior criminal activity” (citing 

Commonwealth v. Heaton, 472 A.2d 1068 (Pa. 1984)); Commonwealth 

v. Richardson, 437 A.2d 1162, 1165 (Pa. 1981) (“Our decisions have 

indicated that there are situations where the taint, resulting from an 

(Footnote Continued) _______________________

of deference to be accorded the conclusions of the trial judge in 

such cases. 

Sanders, 591 F.2d at 1299.
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improper reference to an unrelated criminal act, may be expunged without 

resort to the extreme remedy of aborting an otherwise fair trial.”); 

Commonwealth v. Williams, 368 A.2d 249, 252 (Pa. 1977) (“We have 

never ascribed to the view that all improper references to prior criminal 

activities necessarily require the award of a new trial as the only effective 

remedy”); Commonwealth v. Valerio, 712 A.2d 301, 303 (Pa. Super. 

1998) (holding, “there is no ‘per se’ rule requiring a new trial for every 

reference” to a defendant’s prior criminal activity); Commonwealth v. 

Colon, 399 A.2d 1068, 1071 (Pa. Super. 1979) (same).11 

Moreover, “[a]n immediate curative instruction to the jury may 

alleviate any harm to the defendant that results from reference to prior 

____________________________________________

11 In its brief, the Commonwealth cites to a number of cases apparently for 

the proposition that a single reference to a defendant having previously been 

incarcerated constitutes reversible error. A closer review of these cases, 

however, reveals a more nuanced articulation of the principle of law relied 

upon by the Commonwealth. Indeed, “reversal is not warranted unless the 

record indicates that prejudice RESULTED from the remark.” 

Commonwealth v. Bricker, 548 A.2d 604, 607 (Pa. Super. 1988) 

(emphasis in original). “Further, ‘passing references’ to prior criminal 

activity do not warrant reversal.” Commonwealth v. Nichols, 400 A.2d 

1281, 1282 (Pa. 1979) (citing Commonwealth v. Irwin, 381 A.2d 444 (Pa. 

1977); Commonwealth v. McFadden, 346 A.2d 550 (Pa. 1975); 

Commonwealth v. Sharpe, 296 A.2d 519 (Pa. 1972)). “Moreover, 

whether the remark was intentionally elicited by the Commonwealth, and 

whether cautionary instructions were given, are considerations relevant to 

the determination of whether a mistrial is required. In certain situations, 

curative instructions may suffice to remove the taint of unintentional and 

innocuous references to prior criminal activity.” Commonwealth v. Ford, 

607 A.2d 764, 766-67 (Pa. Super. 1992).
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criminal conduct.” Morris, 519 A.2d at 377 (citing Commonwealth v. 

Whitfield, 376 A.2d 617 (Pa. 1977) (jury was instructed to disregard a 

witness’s testimony that he had previously seen defendant “work people 

over”)); Williams, 368 A.2d at 252 (jury was instructed to disregard a 

witness’s testimony concerning defendant’s unrelated use of drugs); 

Commonwealth v. Povish, 387 A.2d 1282 (Pa. 1978) (jury instructed to 

disregard testimony concerning a robbery for which defendant was charged

but not then being tried); and Richardson, supra, (jury instructed to 

disregard a witness’s testimony concerning a prior burglary of the same 

residence for which defendant was then on trial)). 

It should be noted that in the above cited cases, the defendants 

requested a mistrial,12 rather than the court declaring one sua sponte. In 

each of those cases, the trial court’s decision to deny a motion for a mistrial 

was upheld on appeal. In the matter sub judice, not only there was no 

request from Appellant for a mistrial or new trial, it is clear that the trial 

court was operating under the mistaken belief that there is a per se rule that 

any mention of Appellant’s criminal activity warrants a mistrial. See N.T. 

Post-Trial Hearing, 2/13/15, at 5. Therefore, as in Balog and Hatten, the 

fact that the witness statement would not necessarily warrant reversal upon 

____________________________________________

12 In Morris and Whitfield, the defendants requested a new trial instead of 

a mistrial. 
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appeal, is further evidence that the declaration of a mistrial here was not 

manifestly necessary. See Balog, 576 A.2d at 1097. 

Furthermore, the trial court’s speculation that Appellant would be 

convicted based on the statement made by the witness was in error. 

“[S]peculation . . . cannot serve as a basis for manifest 

necessity.” United States v. Allen, 984 F.2d 940, 942 (8th Cir. 

1993). Thus, ‘[e]ven if the trial judge believes in subjective 

good faith that a mistrial is called for,’ an appellate court ‘must 

reverse if the record belies his concerns.’ United States v. 

Meza-Soria, 935 F.2d 166, 171 (9th Cir. 1991). As the 

Supreme Court has explained, when ‘the record reveals that the 

trial judge has failed to exercise the “sound discretion” entrusted 

to him, the reason for deference [to his discretion] by an 

appellate court disappears.’ Washington, 434 U.S. at 510 

n.28[.] 

United States v. Sloan, 36 F.3d 386, 400-401 (4th Cir. 1994). While the 

trial court genuinely believed that the witness’s comment warranted a sua 

sponte declaration of mistrial, as explained herein, the record and the law do 

not support the court’s ruling. 

The trial court’s speculation that defense counsel was about to ask for 

a mistrial following the witness’s statement in open court also was in error. 

Indeed, the trial court stated: “[Defense counsel] stood up and said “Your 

Honor.” Rather than let counsel continue, this [c]ourt, anticipating counsel 

was asking for a mistrial, stated “Granted[.]”. Trial Court Opinion, 5/8/15, 

at 2. The trial court “conced[ed] there was no specific request for mistrial 

and better practice would have been to have waited for a specific request for 

a mistrial. Under the circumstances, however, this [c]ourt genuinely 
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believed [Appellant] was seeking a mistrial.” Id. at 3. To the contrary, 

defense counsel later indicated it would have been his desire to discuss other 

options. 

Finally, it appears the trial court assumed that the jury “will disregard 

judicial instructions admonishing them to disregard improper evidence[.]” 

Balog, 576 A.2d at 1098. “Whether the exposure of the jury to improper 

evidence can be cured by an instruction depends upon a consideration of all 

circumstances.” Richardson, 437 A.2d at 1165. Here, there is no 

indication whether the trial court considered less drastic measures, such as a 

curative instruction, or why a curative instruction would not have cured the 

prejudice, or considered “the importance to the defendant of being able, 

once and for all, to conclude his confrontation with society through the 

verdict of a tribunal[.]” Walton, 352 A.2d at 8. Accordingly, we must

conclude the mistrial was not manifestly necessary. 

Lastly, the trial court suggested that Appellant waived his double 

jeopardy claim for failure to raise it promptly. We disagree. As noted 

above, Appellant’s counsel did not have an opportunity to object until after 

the court cleared the courtroom. Order, 1/11/16, at 2; N.T. Post-Trial 

Hearing, 2/13/15, at 5. Nonetheless, even if Appellant did not object or 

specifically raise the double jeopardy ground, he would not have waived his 

double jeopardy claim. See, e.g., Bartolomucci, 362 A.2d at 239 (mere 

silence by a defendant or lack of specific objection to the sua sponte
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declaration of mistrial by the trial court is not sufficient to waive defendant’s 

“very important constitutional right” of protection from double jeopardy). 

The trial court also opined that Appellant’s conduct following the 

declaration of mistrial should be construed as a waiver because he 

essentially acquiesced to the trial court’s decision. Trial Court Opinion, 

5/8/15, at 4. As noted above, however, the record shows that Appellant 

objected to the ruling as soon as feasible under the circumstances. Order, 

1/11/16, at 2; N.T. Post-Trial Hearing, 2/13/15, at 5. 

As discussed above, the trial court made the following findings:

4. [Appellant’s] [c]ounsel at that point stood up and said, 

“Your Honor.”

5. The [trial] court in one continuous statement said, 

“Granted,” and advised the jury that the court was 

declaring a mistrial and ordered the courtroom cleared.

6. The [trial] court stepped down from the bench so he 

could speak to the jury to explain what had occurred.

7. As the the [sic] [trial] court was walking toward the jury 

box, counsel for [Appellant] again stated, “Your Honor”.

8. The [trial] court next reaffirmed its order that the 

courtroom be cleared. 

9. When the courtroom reopened, counsel[13]again 

approached the bench and asked the court to reconvene.

____________________________________________

13 Apparently, the trial court was referencing Appellant’s counsel.
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10. The [trial] court indicated there would be no court 

reporter available as it was the lunch hour, and we would 

reconvene after the lunch hour.

11. The [trial] court reconvened immediately after the 

lunch hour.

12. [Appellant’s] [c]ounsel at that point in time put on the 

record an objection to the [trial] court sua sponte granting 

a mistrial and made a motion that [Appellant] be barred 

from retrial.

Order, 1/11/16, at 2.

Appellant attempted to obtain the court’s attention immediately after 

the trial court ordered a mistrial sua sponte; however, the trial court did not 

respond. “One must object to errors, improprieties or irregularities at the 

earliest possible stage of the criminal . . . adjudicatory process to afford the 

jurist hearing the case the first occasion to remedy the wrong and possibly 

avoid an unnecessary appeal to complain of the matter.” Commonwealth 

v. Rosser, 135 A.3d 1077, 1086 (Pa. Super. 2016) (quoting 

Commonwealth v. Strunk, 953 A.2d 577, 580 (Pa. Super. 2008)). 

Appellant’s delay in raising such an objection was beyond his control and he 

raised it as soon as practical. Therefore, Appellant did not waive his double 

jeopardy challenge based upon the timeliness of his objection.

Because no manifest necessity existed warranting a mistrial, we are 

constrained to hold that the trial court abused its discretion. Therefore, we 

reverse the order denying Appellant’s motion to dismiss the charges based 

on double jeopardy.
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Order reversed. Case remanded. Jurisdiction relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/7/2017