J-S02027-22

J-S02028-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

Appellee

v.

PHILIP VONVILLE

Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

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

Appellee

v.

PHILIP J. VONVILLE

Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

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 audiorecorded 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,2is 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 reprosecution 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.