J-S11022-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT

OF

PENNSYLVANIA

Appellee

v.

ALEXANDER FLORES

Appellant No. 1816 EDA 2017

Appeal from the Order entered May 31, 2017

In the Court of Common Pleas of Philadelphia County

Criminal Division at No: CP-51-CR-0003501-2015

BEFORE: OTT, STABILE, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.: FILED MAY 17, 2018

Appellant, Alexander Flores, appeals from the May 31, 2017 order 

entered in the Court of Common Pleas of Philadelphia, denying his motion to 

bar re-trial on double jeopardy grounds. Appellant contends the trial court 

erred in finding manifest necessity for a mistrial based on the prosecutor’s 

heart attack during trial. Following review, we affirm.

The trial court provided the following procedural history:

[Appellant] was arrested on October 21, 2014, and charged with 

murder, conspiracy, violations of the Uniform Firearms Act and 

possessing an instrument of crime. [Appellant] was held for court 

on all of the charges following a preliminary hearing on April 3, 

2015. A jury trial commenced August 22, 2016 until August [25] 

at which time, the sole prosecutor trying the case suffered a heart 

attack. Having continued the matter for a day to obtain medical 

confirmation of the attorney’s condition, the court considered the 

available alternatives and then declared a mistrial. A motion to 

bar re-trial on double jeopardy grounds was filed on behalf of 
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[Appellant] on April 16, 2017 and following a hearing on May 31, 

2018 denied. Timely appeal was made to the Superior Court.

Trial Court Rule 1925(a) Opinion, 8/22/17, at 1 (some capitalization omitted).1 

The trial court further explained that a jury was selected on August 22. 

“The lone prosecutor presented the Commonwealth’s case through August 

24th.” Id. at 2. The assigned homicide detective was scheduled to testify on 

August 25, but the prosecutor suffered a massive heart attack in the early 

morning hours of August 25, was rushed to the hospital, and was confined to 

the intensive care unit. Id. The trial court continued the proceeding until the 

following day in order to obtain an update on counsel’s condition. On Friday, 

August 26, the trial court learned that the attorney was still in intensive care 

and would not return to work for at least six weeks. 

The Commonwealth requested a thirty-day continuance in hopes that 

another attorney could review the file, including the transcripts from the first 

three days of trial, and be ready to finish the trial. Counsel for Appellant 

objected, contending that another prosecutor should be able to finish the trial 

after the weekend. Id. at 2-3. By order entered May 31, 2017, the trial court 

denied Appellant’s motion.

Appellant asks us to consider one issue in this appeal:

I. Should [Appellant’s] re-trial be barred on double jeopardy 

grounds due to the fact that the lower court erred when it 

sua sponte found a manifest necessity for a mistrial without 

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1 Both Appellant and the trial court complied with Pa.R.A.P. 1925. 
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first exploring possible alternatives that would have 

permitted [Appellant’s] original trial to continue to proceed? 

Appellant’s Brief at 3.

Our rules of criminal procedure govern mistrials and provide, in relevant 

part, that “[w]hen 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.P. 605(B) (emphasis 

added).

In Commonwealth v. Walker, 954 A.2d 1249 (Pa. Super. 2008) (en 

banc), this Court reiterated that “[i]t 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.” Id. 

at 1254 (quoting Commonwealth v. Kelly, 797 A.2d 925, 936 (Pa. Super. 

2002) (additional citations omitted)). Further, 

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 or her fate 

determined by the jury first impaneled. Kelly, 797 A.2d at [936] 

(citing Commonwealth v. Stewart, 456 Pa. 447, 452, 317 A.2d 

616, 619 (1974)). 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. Id. (quoting Commonwealth ex 

rel. Walton v. Aytch, 466 Pa. 172, 352 A.2d 4 (1976)). 

However, there can be no rigid rule for finding manifest necessity 

since each case is individual. Commonwealth v. Rivera, 715 

A.2d 1136, 1138 (Pa. Super. 1998). 
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Id. at 1255-56. See also Gori v. United States, 367 U.S. 364, 368 (1961) 

(Supreme Court has “long favored the rule of discretion in the trial judge to 

declare a mistrial and to require another panel to try the defendant if the ends 

of justice will be served . . . and [has] consistently declined to scrutinize with 

sharp surveillance the exercise of that discretion”).

Appellant contends there was no manifest necessity for granting a 

mistrial. He notes that the Commonwealth did not request a mistrial and 

claims the trial court did not adequately consider alternatives to a mistrial. 

Citing Commonwealth v. Bradley, 457 A.2d 911 (Pa. Super. 1983),2 he 

suggests that the trial court’s failure to consider alternatives before declaring 

a mistrial is grounds for barring retrial. 

Here, the trial court clearly considered alternatives. As the trial court 

explained:

First, the case was continued for a day until an exact diagnosis 

and prognosis of the attorney could be obtained. Then multiple 

alternatives were considered by the court, including a thirty day 

continuance and the possibility of assigning another assistant 

prosecutor to the case. [Appellant’s] counsel objected to these 

alternatives. After reviewing the available alternatives, and 

receiving a diagnosis and prognosis of the ill assistant prosecutor 

the court declared a mistrial. The prosecutor was currently

confined to the intensive care unit of the hospital and was 

precluded from returning to work for an undetermined amount of 

time but for a minimum of at least several weeks. Although the 

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2

In his brief, Appellant indicates that Bradley is a decision from our Supreme 

Court. In fact, the opinion he quotes is an opinion from this Court. However, 

that decision was affirmed per curiam by our Supreme Court. See 

Commonwealth v. Bradley, 470 A.2d 524 (Pa. 1984).
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trial court did consider other alternatives, none were plausible. As 

such [Appellant’s] reliance on Bradley is misplaced.

Trial Court Opinion, 8/22/17, at 5 (citation to notes of testimony omitted) 

(some capitalization omitted). Further, 

[t]he case was not uncomplicated. The allegations were that on 

the evening of December 15, 2011 a group of men, including 

[Appellant], were hanging out in a school parking lot on the corner 

of East Somerset Street and Coral Street in Philadelphia. 

Supposedly, [Appellant], “Big Al”—Alexander Flores, was the boss 

of a drug organization to which the other men were connected. 

The conversation turned to who owed money to [Appellant]. The 

exchange ended with [Appellant] handing Randy Diaz a gun and 

ordering Diaz to kill Juan Modesto Cruz[.] Diaz in return, directed 

Christopher Martinez to drive him around the block and when Diaz 

exited the vehicle for Martinez to wait for him, leaving the car in 

gear for a quick getaway. Having spotted Cruz in the 2000 block 

of east Auburn Street, Diaz exited the vehicle, shot Cruz five 

times, killing him, and then he jumped back in the car, fleeing the 

area with Martinez.

Id. at 3 (citation to notes of testimony omitted). As the trial court explained:

Three days of trial had been completed [when the prosecutor 

suffered his heart attack]. It was not known if [Appellant] 

intended to present any evidence. The ill prosecutor was the only 

government attorney familiar with the case. He had handled the 

matter since the beginning, was the sole attorney who prepared 

the case and the only attorney presenting the case in the 

courtroom. There was additional testimony to be presented by 

the assigned homicide detective and exactly what testimony 

needed to be solicited was only known to the ill prosecutor. If 

[Appellant] chose to present any evidence or testify himself, there 

was no attorney able to adequately cross-examine any defense 

witness. The Commonwealth requested a one-month continuance 

to allow another Assistant District Attorney to read the notes of 

testimony and prepare to represent the state throughout the rest 

of the case. [Appellant] objected to a thirty-day continuance, 

claiming there was no reason the matter could not resume 

following the weekend. 

Id. at 3-4 (citation to notes of testimony omitted).
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In support of his contention that the trial court erred in finding “manifest 

necessity” for granting the mistrial, Appellant cites four cases, only one of 

which involved the illness of a prosecuting attorney. Appellant’s Brief at 8-9. 

In one of those cases, Commonwealth v. Brooks, 310 A.2d 338 (Pa. Super. 

1973), this Court found there was no manifest necessity for declaring two 

mistrials, the first when the prosecutor became ill and the second when the 

jury was unable to reach a verdict after deliberating for nine hours. A third 

trial resulted in a conviction, which this Court affirmed per curiam on direct 

appeal. Commonwealth v. Brooks, 231 A.2d 337 (Pa. Super. 1967). 

The case returned to this Court on appeal from denial of post-conviction 

relief, with the sole issue being “whether the third trial of the defendant was 

in violation of the double jeopardy clause of the Constitution of the United 

States.” Brooks, 310 A.2d at 338. 

The Court considered the first two mistrials, including the mistrial for 

prosecutorial illness, but did not discuss the nature of the prosecutor’s illness 

or when he might be able to resume trial, and did not mention whether or not 

the trial court considered alternatives to declaring a mistrial. The Court simply 

noted that the “reason for the first mistrial was that the prosecuting attorney 

was ill.” Id. at 339. The Court continued, stating that “[r]ecent decisional 

law leads us to the inexorable conclusion that such a reason for subjecting a 

defendant to a second trial can hardly be considered tantamount to ‘manifest 
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necessity’.” Id. (citing Commonwealth v. Ferguson, 285 A.2d 189 (Pa. 

1971)).

In Ferguson, another case cited by Appellant, our Supreme Court 

determined there was no manifest necessity for granting a mistrial when a 

witness became ill. The Court determined that the trial court failed to consider 

other alternatives before granting a mistrial, including sending “the jury home 

early for the day until more was known about [the witness’] health.” 

Ferguson, 285 A.2d at 191. “[A]nything less than a definite diagnosis, 

introduced with more formality than merely the introduction into evidence of 

the fact of the telephone call of the undoubtedly nervous wife of the 

prosecution witness, does not give the trial court ample grounds for subjecting 

appellant to the continuing ordeal of a pending trial.” Id.

Here, the trial court did precisely what our Supreme Court found lacking 

in Ferguson. The trial judge sent the jury home for the day and investigated 

the prosecutor’s condition and prognosis. After obtaining information about 

the massive heart attack, confinement to intensive care, and counsel’s 

inability to return to work for an extended period of time, the trial court 

entertained the Commonwealth’s request for a thirty-day continuance, a 

request that drew an objection from Appellant’s counsel. Only then did the 

trial court conclude that manifest necessity existed warranting a mistrial. As 

the trial court observed, “the trial court complied with the mandates of 

Ferguson.” Trial Court Opinion, 8/22/17, at 6.
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Appellant contends that the trial court was obligated to “exhaust all 

other reasonable alternatives.” Appellant’s Brief at 9. In particular, Appellant 

argues that the record is devoid of any indication the trial court attempted to 

determine if the jurors could return thirty days later. Id. In light of 

Appellant’s objection to the Commonwealth’s request for a thirty-day 

continuance, we find Appellant’s assertion disingenuous. Further, because it 

was uncertain when the prosecutor could return to work, there was no point 

in asking if the jurors would be available to return at some unknown future 

date. 

Although our courts have not discussed in any depth the propriety of a 

mistrial based on prosecutorial illness, courts in several of our sister states 

have had that opportunity. See, e.g., State v. Anderson, 988 A.2d 276 (Ct. 

2010) (finding trial court did not abuse its discretion in declaring mistrial when 

prosecutor became seriously ill). In that case, the Supreme Court of 

Connecticut noted decisions from Arkansas, Iowa, New Mexico and South 

Carolina, all of which involved the illness or death of the prosecutor.3 The 

Court concluded:

The general consensus that emerges from these cases is that a 

court properly exercises its discretion in declaring a mistrial when 

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3

In the New Mexico case, a one-week continuance was actually necessitated 

by defense counsel’s illness but was followed by the prosecutor’s scheduled 

back surgery. Because neither the defendant nor the state could obtain 

substituted counsel due to the complexity of the case, the mistrial was 

determined to be reasonable. State v. Saavedra, 108 N.M. 38, 766 P.2d 

298 (1988).
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a prosecutor becomes seriously ill during trial such that he 

requires a lengthy absence, and no other prosecutor is able to 

step in to resume the trial within a reasonable period.

Id. at 286. While none of the cases from outside this jurisdiction is binding 

on this Court, we do find them supportive of our conclusion that the trial court 

in the instant case did not abuse its discretion in declaring a mistrial sua 

sponte under the circumstances of this case. More importantly, we conclude 

that the trial court took the measures outlined in Ferguson before declaring 

a mistrial. Finding no abuse of discretion in the trial court’s decision to declare 

a mistrial sua sponte, we shall not disturb the trial court’s order.

Order affirmed. Case remanded. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/17/18