Commonwealth v. Wardlaw, J., Aplt., 249 A.3d 937

Background

Defendant Joshua Wardlaw was tried; the jury acquitted him of attempted homicide counts but deadlocked on remaining charges, and the trial judge declared a mistrial over Wardlaw's objection.
The trial court's mistrial effectively resulted in a new trial being set; Wardlaw moved to appeal under Pa.R.A.P. 311(a)(6), arguing retrial is barred because the Commonwealth failed to present sufficient evidence and the proper disposition would be discharge.
The Superior Court quashed Wardlaw’s interlocutory appeal. The Commonwealth agreed the quash was erroneous; the Pennsylvania Supreme Court majority nonetheless treated the rule narrowly.
Justice Donohue’s dissent argues Rule 311(a)(6)’s phrase “an order in a criminal proceeding awarding a new trial” is ambiguous and should be read to include sua sponte mistrial orders entered over a defendant’s objection.
Donohue emphasizes policy: Rule 311(a)(6) exists to prevent the “needless hardship” of retrial when retrial is barred by insufficiency of evidence, and no adequate alternative (e.g., a colorable double jeopardy claim under Rule 587) exists because federal precedent treats a hung jury/mistrial as a “nonevent.”

Issues

Issue	Plaintiff's Argument (Wardlaw)	Defendant's Argument (Opposing view / Majority)	Held (Justice Donohue, dissenting)
Does “an order … awarding a new trial” in Pa.R.A.P. 311(a)(6) include a trial court’s sua sponte mistrial declared over the defendant’s objection?	Yes — “awarded” covers a new trial conferred by the court even if not requested; ordinary usage supports this.	No — the phrase contemplates orders granting a requested new trial; appeal-as-of-right limited to awards following a party’s motion.	Rule 311(a)(6) is ambiguous; interpreted to include sua sponte mistrials so the defendant may appeal as of right.
Is Rule 587 (double jeopardy motion) an adequate alternative remedy for a sufficiency claim after mistrial?	No — U.S. Supreme Court precedent (Richardson/Yeager) makes insufficiency claims non‑colorable double jeopardy claims after a mistrial, so no viable path under Rule 587.	Yes — Rule 587 provides an interlocutory vehicle for double jeopardy claims, so 311(a)(6) is not the only protection.	There is no realistic alternative remedy; Rule 311(a)(6) must be construed to provide relief in these circumstances.
Should policy concerns (avoid “needless hardship” of retrial when evidence was insufficient) influence construction of Rule 311(a)(6)?	Yes — the Rule’s purpose is to prevent needless retrial hardship regardless of how mistrial arises.	Caution — broader reading risks increased interlocutory appeals and burdens on courts.	Policy favors allowing the appeal; the risk of overuse is remote and Rule amendment — not restrictive interpretation — is the proper fix if needed.

Key Cases Cited

Renico v. Lett, 559 U.S. 766 (2010) (trial judges may declare mistrials when manifest necessity exists; context on mistrial authority)
Richardson v. United States, 468 U.S. 317 (1984) (holding insufficiency claims after mistrial are not colorable double jeopardy claims for immediate appeal)
Yeager v. United States, 557 U.S. 110 (2009) (describing a jury’s inability to reach verdict as a “nonevent” for double jeopardy purposes)
Commonwealth v. Liddick, 370 A.2d 729 (Pa. 1977) (discussing interlocutory appeals where new trial granted and potential needless hardship from retrial)
Commonwealth v. Gabor, 58 A. 278 (Pa. 1904) (historical precursor recognizing appealability of order granting new trial)
Commonwealth v. Chenet, 373 A.2d 1107 (Pa. 1977) (noting appealability of interlocutory order denying arrest of judgment when a new trial has been granted)