COMMONWEALTH of Pennsylvania v. Danielle BALDWIN, Appellant
No. 2719 EDA 2015
Superior Court of Pennsylvania
April 10, 2017
1287
I agree with the Majority that the trial judge, having reached the issue of goal change, erred in his determination.
Issue C is what I considеr the essence of this case. That is, recognizing the importance of achieving permanency as quickly as possible, the change of goal to adoption in this case was simply too fast. The Majority quotes with approval a portion of the brief filed by L.T.‘s GAL:
As Guardian Ad Litem for the minor child, I am not clearly convinced that reunifiсation is not a viable option in this case. Mother had made some progress in the two months between the Dispositional Hearing and the Permanency Hearing, and it is worth noting that during those two months, she herself was injured and she was struggling to cope with a traumatically injured child.
Given the circumstances, I cannot, as Guardian Ad Litem state that changing thе goal to adoption is in the child‘s best interests. That is a determination that will come with time; adequate time to determine whether Mother is genuinely motivated and capable. Two months is simply not enough time to make that determination.
Majority Opinion at 1282 (quoting L.T.‘s Brief at 13-14). Like the Majority, I fully agree with that.
I also agree with the Majority regarding Issue D. The termination of Mother‘s visitation with L.T. under a best interest standard was a consequence of the trial court‘s erroneous determination that the goal should be changed to adoption. Since this Court has reversed that determination, we must concomitantly remand for reconsideration of the visitation under a “grave threat” standard.
I turn now to Issuеs A and E, both of which involve the mootness doctrine. In Issue E, the Majority holds that the issue of whether the trial court erred when it deprived Mother of input into the end-of-life decision regarding D.T. is moot. Since D.T. has died, I agree that this issue is moot. While the issue is capable of repetition, it will not evade review.
Finally, I turn to Issue A. Over the objection of all parties, the trial judge declined to close the courtroom to the media. The Majority holds this was error. I would not address this issue. Because the hearing has taken place, this issue is moot. In footnote 5, the Majority rejects such a result. It holds that because there will be permanency review hearings at least every six months, we should decide the issue now. Yet six months from now, the issue may be entirely different. We know that one major difference is that D.T. has died. There may be other differences. We should not be in the business of rendering advisory opinions. See Majority Opinion at 1284 (“[A]ny decision rendered in this appeal would be entirely advisory.“).
Hugh J. Burns, Jr., Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
BEFORE: SHOGAN, MOULTON, and FITZGERALD,* JJ.
OPINION BY FITZGERALD, J.:
Appellant, Danielle Baldwin, appeals from the order of the Philadelphia County Court of Common Pleas reversing the judgment of acquittal entered in the Philadelphia Municipal Court and remanding the case to the Municipal Court for a new trial. Appellant contends that double jeopardy prohibits a new trial. We affirm.
On the evening of October 16, 2014, Appellant allegedly pointed a gun at her neighbor, Jamia Williams. Williams contacted the police, who arrested Appellant, searched her residence and recovered a firearm. Williams was arrested and charged with possession of an instrument of crime,1 prohibited offensive weapons,2 simple assault,3 reckless endangerment4 and terroristic threats.5
Appellant filed а motion in the Municipal Court to suppress the firearm. On February 11, 2015, following an evidentiary hearing, the Municipal Court granted the motion to suppress. The court determined that Appellant consented to the search of her residence following her arrest, but her consent was involuntary because the arresting officers failed to give hеr Miranda6 warnings. N.T., 2/11/15, at 23.
Trial commenced immediately after the suppression ruling. Before testimony began, the court stated: “Everyone understands the consent is illegal and the fruits are thrown out .... All witnesses are sequestered. If anyone needs to talk to their witnesses because [of] what just happened in the motion, I will suspend [the] sequestration order for a [minute] whilе any witness is spoken to.” Id. at 24.
Williams, the Commonwealth‘s first trial witness, testified that in the early evening of October 16, 2014, she was standing outside of her house on the street, while Appellant was standing in her house across the street in front of an open window. Id. at 25-27. Williams and Appellant were arguing about the recent arrest of Williams’ baby‘s father. Id. at 25-26. During the argument, Apрellant disappeared from her window but returned moments later and pointed a gun at Williams. Id. at 28.7
Defense counsel objected to Williams’ testimony about the gun and moved for a mistrial. Id. at 28-29. The court sustained defense counsel‘s objection and granted a mistrial. Id. at 29-30. Defense counsel then requested a “judgment of acquittal” based on “prosecutorial misconduct.” Id. at 30. The court responded: “The motion is granted and a mistrial is granted. Jeopardy has attached, and so at this point ... this case is done. The motion for judgment of acquittal is granted.” Id. at 33.
The Commonwealth appealed the judgment of acquittal to the Court of Common Pleas on March 13, 2015. On August 3, 2015, the Court of Common Pleas entered an order reversing the judgment of acquittal and remanding the case to the Municipal Court for trial. The Court of Common Pleas determined that Appellant‘s double jeopardy rights were not violated, because the Municipal Court‘s ruling “did not constitute an acquittal[,] nor was there prosecutorial misconduct.” Pa.R.A.P. 1925 Op., 3/9/16, at 5.
Appellаnt timely appealed to this Court on September 2, 2015. Both Appellant and the Court of Common Pleas complied with Pa.R.A.P. 1925.
Appellant raises four issues in this appeal:
- Double jeopardy prohibits a new trial in this case; the [C]ommon [P]leas [C]ourt erred in allowing the [C]ommonwealth to appeal from a judgment of acquittal because the government is categorically prohibited from appealing judgments of acquittal, even if the lower trial court was egregiously wrong to enter the judgment of acquittal.
- In the alternative event that there are any circumstances under which a government can so appeal, the judgment of acquittal here was entered by the trial judge and is unappealable.
In the altеrnative event that the appellate courts do not so hold, [the] [C]ommon [P]leas [Court] erred here (and [the] Municipal [C]ourt ruled correctly, and retrial is prohibited no matter how the [M]unicipal [C]ourt judgment is described) because double jeopardy prohibits retrial after a mistrial caused by prosecutorial misconduct: following thе suppression ruling, the [C]ommonwealth intentionally elicited testimony about the gun that the [M]unicipal [C]ourt had suppressed. - In the alternative event that the appellate courts do not so hold, [the C]ommon [P]leas [Court] erred here (and [the] M]unicipal [C]ourt ruled correctly, and retrial is prohibited no matter how the [M]unicipal [C]ourt judgment is desсribed) because double jeopardy prohibits retrial after a mistrial caused by prosecutorial misconduct: even if the [M]unicipal [C]ourt judge erred in her understanding of the scope of suppression rulings, once she ordered the [C]ommonwealth to inform all of its witnesses about the suppression ruling, and warned the [C]ommonwealth that jeopardy was about to attach, the [C]ommonwealth was bound by her rulings (even if erroneous) absent a pre-trial appeal. Because the [C]ommonwealth could have appealed her orders, and because her warnings about jeopardy attaching made sense only if she were warning against prosecutorial misconduct, and because her inclusion of all witnesses (including civilians) could only have anticipated the non-police testimony the [C]ommonwealth thinks is not normally covered by suppression rulings, the [C]ommonwealth‘s choice not to warn the civilian witness—and the [C]ommonwealth‘s eliciting of prohibited testimony (even if erroneously prohibited) was an intentional act by the [C]ommonwealth in violation of the [M]unicipal [C]ourt order, was prosecutorial misconduct causing the mistrial, and therefore [was] prohibited[,] placing the defendant again in jeopardy.
Appellant‘s Brief at 2-3.
We address the first two issues together, because they are interrelated. Appellant asserts that double jeopardy рrohibits the Commonwealth from appealing the judgment of acquittal entered by the Municipal Court. We disagree. Appellant‘s argument rests on the premise that the Municipal Court entered a judgment of acquittal. We disagree and conclude that the Municipal Court declared a mistrial instead of entering a judgment of acquittal.
“[T]he quеstion of whether a defendant‘s constitutional right against double jeopardy [would be infringed by a successive prosecution] is a question of law. Hence, [when reviewing this issue,] our scope of review is plenary and our standard of review is de novo.” Commonwealth v. Hallman, 67 A.3d 1256, 1260 (Pa. Super. 2013) (citation omitted).
Under the Double Jeopardy Clauses of the United States and Pennsylvania Constitutions, as well as under the Pennsylvania Crimes Code, a second prosecution for the same offense after acquittal is prohibited. See
Double jeopаrdy bars an appeal by the Commonwealth from an acquittal, whether based on a verdict of not guilty or a ruling by the court that the evidence was insufficient to convict. See Commonwealth v. Maurizio, 496 Pa. 584, 437 A.2d 1195, 1196 (1981); see also United States v. Scott, 437 U.S. 82, 91, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978).
Importantly, “the form of the judge‘s action is not controlling.” Commonwealth v. McDonough, 533 Pa. 283, 621 A.2d 569, 573 (1993) (citations omitted). A defendant is “acquitted” only when the “ruling of the judge, whatever its label, actually represents a resolution [in the defendant‘s favor], correct or not, of some or all of the factual elements of the offense charged.” Id. (citation omitted).
Here, the Court of Common Pleas correctly reasoned that the Municipal Court entered a mistrial instead of a “judgment of acquittal:”
It could not be clearer that [the Municipal Court‘s] ruling in the instant matter did not involve a resolution of the facts. Indeed, the first witness had only just begun testifying when the judgment of acquittal was declared. Instead, [the Court‘s] ruling was in response to what [it] perceived as a violation of [its] suppression order. This situation had nothing to do with culpability or factual elements of the offense charged, the touchstone of acquittal determinations.
Pa.R.A.P. 1925(a) Op. at 4 (citations omitted). Therefore, we conclude that the Com-
We next address Appellant‘s third and fourth issues together. Appellant argues that even if the Municipal Court entered a mistrial, double jeopardy prohibits a new trial because the mistrial was the result of prosecutorial misconduct. We disagree.
In criminal trials, declaration of a mistrial serves to eliminate the negative effect wrought upon a defendant when prejudicial elements are injected into the case or otherwise discovered at trial. By nullifying the tainted process of the former trial and allowing a new trial to convene, declaration of a mistrial serves not only the defendant‘s interest but, equally important, the public‘s interest in fair trials designed to end in just judgments. Accordingly, the trial court is vested with discretion to grant a mistrial whenever the alleged prejudicial event may reasonably be said to deprive the defendant of a fair and impartial trial. In making its determination, the court must disсern whether misconduct or prejudicial error actually occurred, and if so, ... assess the degree of any resulting prejudice. Our review of the resulting order is constrained to determining whether the court abused its discretion. Judicial discretion requires action in conformity with the law on facts and circumstances before the trial court after hearing and consideration. Consequently, the court abuses its discretion if, in resolving the issue for decision, it misapplies the law or exercises its discretion in a manner lacking reason.
Commonwealth v. Jaynes, 135 A.3d 606, 615 (Pa. Super. 2016), appeal denied, 145 A.3d 724 (Pa. 2016) (citation omitted).
Further, the Double Jeopardy Clause of the Pennsylvania Constitution “prohibits retrial of a defendant not only when prosecutorial misconduct is intended to provoke the defendant into moving for a mistrial, but also when the conduct of the prosecutor is intentionally undertaken to prejudice the defendant to the point of the denial of a fair trial.” Commonwealth v. Smith, 532 Pa. 177, 615 A.2d 321, 325 (1992).
In this case, the Court of Common Pleas held that the Municipal Court improperly granted a mistrial, and therefore the Commonwealth was entitled to retry the case:
No [prosecutorial] misconduct occurred here. [The Municipal Court] suppressed the confiscation of the firearm and any fruits thereof. But an observation of the firearm by a civilian prior to police involvement in no way implicates the search and seizure provisions of our Constitutions. While it is truе that the judge invited the attorneys to talk to the witnesses in light of her suppression order, and while it would have been prudent for the Assistant District Attorney to see her invitation as a yellow flag, the bottom line is that the judge never ordered that the observation of the firearm by a civilian could not be elicited at trial. As it is perplexing to this court why she hаd this further prohibition in mind when she ordered suppression, it is easy to see how the prosecutor would not have given this possibility a second thought—or even a first one. This certainly was not prosecutorial misconduct.
And the Commonwealth is certainly entitled to retry the matter.
Pa.R.A.P. 1925(a) Op. at 5.
We agree with this analysis. When the suppression court determines that thе defendant‘s consent to a search is involuntary, the remedy is to suppress evidence obtained as a result of the invalid consent. See Commonwealth v. Moyer, 954 A.2d 659, 670 (Pa. Super. 2008) (en banc) (“Since Appellee‘s consent to search his person and car was tainted by a detention that was not supported by the existence of reasonable suspicion, the suрpression court properly suppressed the fruits of that search“). The suppression order does not extend to evidence that precedes the involuntary consent.
Here, Williams testified that Appellant pointed a gun at her. This incident took place before the police arrived—indeed, this incident triggered Williams’ report to the police—and was not the product of Appellant‘s consent to search her residence. Thus, Williams’ testimony fell outside the scope of the Municipal Court‘s suppression order, which only suppressed evidence obtained as a result of her invalid consent. Accordingly, we conclude that (1) the Commonwealth did nоt commit any misconduct in eliciting Williams’ testimony, (2) the Municipal Court abused its discretion in granting defense counsel‘s motion for a mistrial on the basis of this testimony,8 and (3) the Commonwealth is entitled to a new trial against Appellant in the Municipal Court.
Order affirmed. Case remanded for proceedings consistent with this opinion. Jurisdiction relinquished.