J-S19009-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : DURAND DAMION LAWSON : : Appellant : No. 193 WDA 2021
Appeal from the Judgment of Sentence Entered January 10, 2021 In the Court of Common Pleas of Lawrence County Criminal Division at No(s): CP-37-CR-0000070-2018
BEFORE: DUBOW, J., MURRAY, J., and PELLEGRINI, J.*
MEMORANDUM BY DUBOW, J.: FILED: October 15, 2021
Appellant, Durand Damion Lawson, appeals as of right from the
Judgment of Sentence imposed after a jury found him guilty of Possession of
Firearm Prohibited, Firearms Not to Be Carried Without a License, and Fleeing
or Attempting to Elude Police Officer.1 After careful review, we affirm.
We glean the following recitation of the factual and procedural history
from the certified record and the trial court’s March 8, 2021 Opinion. On
January 9, 2018, Officer Brian Lombardo of the New Castle Police department
was on patrol when he determined that a passing Chevrolet Caprice, driven
by Appellant, had an expired registration. When Officer Lombardo activated
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. §§ 6105(a)(1) and 6106(a)(1), and 75 Pa.C.S.A. § 3733(a),
respectively. J-S19009-21
his lights and sirens to conduct a traffic stop, Appellant led him on a high-
speed chase, reaching speeds in excess of 70 miles per hour in a residential
zone with a 25 mile per hour speed limit. The car chase ended when Appellant
crashed the car into the side of an apartment building. Appellant, dressed in
a black jacket, yellow shirt, jeans, and Nike shoes, then fled from the vehicle.
Dashcam video recorded the event from its inception to Appellant’s flight.
Officer Lombardo watched Appellant run across a snowy field, observing
Appellant slip and fall. Officer Randall Cook, who had responded to the radio
alert of the chase, arrived and watched Appellant, whom he recognized from
the radio description as the man wearing a yellow shirt, black jacket, and
jeans, force his way into a nearby house. At the same time, Robert Sutton, a
resident of the house, who had seen Appellant driving the Caprice about an
hour and a half earlier, watched Appellant enter through the back door, yell
“police!” and run upstairs.
Officers Lombardo and Cook followed Appellant into the house and
commanded everyone inside to leave. Four members of the household who
were downstairs complied, but Appellant was not among them. The officers
reiterated the command and, after they announced that a search dog was on
its way, Appellant descended the stairs, saying that he had been asleep. He
was breathing heavily, and wearing only wet, muddy jeans. The officers
searched the house, where they found wet Nike shoes, as well as the black
jacket and yellow shirt that they saw Appellant wearing during the foot chase.
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Appellant put the wet shoes on and wore them to the New Castle Police
Station.
As this was happening, Officer Darcell Bouyer arrived at the accident
scene within thirty seconds of the crash and saw a loaded High Point 9-
millimeter pistol lying in plain view on the driver’s side front seat of the
Caprice. He photographed the pistol as he found it.
On January 9, 2018, the Commonwealth charged Appellant with the
above offenses. The court appointed the Newcastle Public Defender’s Office to
represent Appellant.
On May 10, 2018, the Newcastle Public Defender’s Office filed a Petition
to Withdraw its representation based on a conflict engendered by its prior
representation of Appellant in an unrelated matter. On the same day, the trial
court granted the motion and appointed Almon Burke, Esq., as conflict
counsel. The court scheduled trial for June 4, 2018.
Attorney Burke thereafter filed numerous unopposed continuance
motions in this case because he was variously awaiting discovery, negotiating
a plea agreement, or unavailable.2 Trial ultimately commenced on October
16, 2019. ____________________________________________
2 In the meantime, the court separately proceeded with trial, sentencing, and
post-sentence motion in an unrelated matter in which Appellant was defendant. Attorney Burke represented Appellant in that case as well. An appeal in that matter is currently pending before this Court under Docket No. 192 WDA 2021.
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During the pretrial phase, Appellant voiced his displeasure with Attorney
Burke’s representation. First, at a March 5, 2019 hearing, at Appellant’s
request, Attorney Burke orally moved to withdraw.3 After speaking with
Attorney Burke and Appellant, the court denied the motion. Trial Ct. Or., dated
3/6/19. Thereafter, at some point on or before September 30, 2019, the court
received an undated pro se letter from Appellant asking for the removal of
Attorney Burke due to irreconcilable differences. The letter was not styled as
a motion, and did not ask for the appointment of new counsel or to proceed
pro se. The court entered an order attaching the letter and directed counsel
to “take any action that counsel deems appropriate.” Trial Ct. Or., dated
9/30/19.
On the day of trial, before jury selection began, the trial court asked
Appellant if he wanted to represent himself or proceed with Attorney Burke.
Appellant explained that he would prefer to proceed pro se if the court would
not appoint new counsel and asked if he could contact his family to discuss
hiring private counsel. The trial court interpreted this as a request for a
continuance, which the court denied, stating “this really is the time for this
case . . . if you’d chosen that, you should have done that before today.” N.T.
Trial, 10/16/19, at 3.
The court then conducted a counsel waiver colloquy in accordance with
Pa.R.Crim.P. 121. At the close of the colloquy, when the court asked if he ____________________________________________
3 Attorney Burke filed a written Motion to Withdraw the following day, on
March 6, 2019.
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wanted to accept Attorney Burke’s representation or represent himself,
Appellant responded “I want to represent myself.” N.T. Trial, 10/16/19, at 6.
The trial court concluded that Appellant waived his right to counsel knowingly,
voluntarily, and intelligently, and appointed Attorney Burke to serve as
standby counsel, explaining to Appellant that “[y]ou don’t have to use him if
you don’t want to.” Id. at 11.
After accepting Appellant’s waiver of counsel, the court informed
Appellant that he had the right to wear clothes other than his jail jumpsuit
during the trial, and that the court had clothes it could provide to him.
Appellant replied, “I’ll wear this.” Id. at 8. The court sought further
clarification from Appellant by stating, “[y]ou understand that we would
provide you with appropriate clothing, but you don’t want that?” Id.
Appellant replied “[n]o,” indicating that he did not want the change of clothes.
Id.
Jury selection then proceeded. After the court questioned several
members of the panel, Appellant announced that he did not want to continue
participating in jury selection and asked to return to his jail cell. The court
denied Appellant’s request, and jury selection continued. Soon thereafter,
Appellant declared, “[t]his is bullshit. I'm getting angry,” and left the room.
Id. at 34. The court allowed him to leave but instructed the court deputy to
hold him in an empty jury room until the close of proceedings. Jury selection
proceeded with Appellant’s stand-by counsel Burke.
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When jury selection moved to the peremptory strike stage, the court
instructed Attorney Burke to consult with Appellant, explain the striking
process, and either relay Appellant’s strikes to the court or get permission to
exercise strikes on Appellant’s behalf. When Attorney Burke spoke to
Appellant, Appellant interrupted him with profanities, refused to discuss
peremptory strikes with him, and did not ask to return to the courtroom.
Following this exchange, the Commonwealth struck several potential jurors,
the defense struck none, and the court seated the remaining jurors.
Opening arguments took place the next day, and Appellant fully
participated as his own counsel. During its case in chief, the Commonwealth
called Officers Lombardo, Bouyer, and Cook, along with Mr. Sutton, who
testified to the above facts and identified Appellant in dashcam footage. The
Commonwealth also called Daniel Brown, who testified that he owned a 1992
Chevrolet Caprice, he was the registered owner associated with the license
plates found on the car in question, and that he did not own a firearm or leave
a firearm in his Caprice. The Commonwealth also presented evidence through
several witnesses that Appellant was not licensed to carry a firearm and that
the firearm found in the Caprice actually worked. Appellant cross-examined
several of the Commonwealth’s witnesses.
During his case in chief, Appellant re-called Mr. Brown, who testified
that his license plates had disappeared several months before the incident in
question, and that pictures of the car taken at the crime scene were of a
different Caprice than the one he owned. He also called Treyshawn Littles, his
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former cellmate, who testified that he, not Appellant, was the actual driver of
the car who fled police on foot while wearing the shirt, jacket, and shoes that
police found in the house.
The jury found Appellant guilty of the above charges. On October 21,
2019, the court ordered a Pre-Sentence Investigation and scheduled
Appellant’s sentencing hearing for January 10, 2021.
At the outset of the January 10, 2020 sentencing hearing, Appellant
orally moved for the reinstatement of Mr. Burke as his counsel, and the court
granted the motion. At the sentencing hearing, the court sentenced Appellant
to an aggregate term of six to twelve years’ incarceration. Appellant did not
file a post-sentence motion or a direct appeal.
On September 17, 2020, Appellant filed pro se a Petition for Post-
Conviction Relief (“PCRA Petition”) alleging ineffective assistance of counsel
based on Attorney Burke’s failure to file a post-sentence motion or a direct
appeal. The trial court appointed Christopher P. Lacich, Esq. as PCRA Counsel
on September 28, 2020. Attorney Lacich filed an amended PCRA Petition on
October 26, 2020. On January 29, 2021, following a PCRA hearing, the court
reinstated Appellant’s appellate rights nunc pro tunc.
Appellant, still represented by Attorney Lacich, filed a timely Notice of
Appeal on February 3, 2021. Both Appellant and the trial court complied with
Pa.R.A.P. 1925.
Appellant raises the following questions in his counseled brief, reordered
for ease of disposition:
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1. Whether [] Appellant’s election to proceed pro se was knowingly, intelligently, and voluntarily made?
2. Whether the [t]rial [c]ourt erred or abused its discretion when only the Commonwealth selected [] Appellant’s jury at the point of [peremptory] challenges?
3. Whether the [t]rial [c]ourt erred or abused its discretion in denying that Appellant’s verdict was based on evidence insufficient to sustain his convictions beyond a reasonable doubt?
4. Whether the [t]rial [c]ourt erred and abused its discretion by finding that Appellant’s verdicts were not against the weight of the evidence?
5. Whether the [t]rial [c]ourt erred or abused its discretion by not, sua sponte, declaring a mistrial in light of manifest necessity?
Appellant’s Br. at 10-11.
Appellant’s Decision to Proceed Pro Se
In his first issue, Appellant asserts that the trial court erred when it
allowed him to proceed pro se, contending that his waiver was not voluntary
because he had “expressed a desire to hire private counsel and/or requested
a continuance prior to trial . . . to explore such possibility with this family[.]”
Appellant’s Br. at 38. Appellant contends that the court erred “by not granting
him a continuance and in essence forcing him under duress to conduct his own
jury trial in jail clothes and shackles.” Id. at 40-41. Appellant also that asserts
that his waiver was not knowing because he “may not have been in his right
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mind,” emphasizing as an example his “confusion” as to the role of standby
counsel during jury selection. Id. at 39-41.
Preliminarily, we conclude Appellant waived any challenge to the denial
of a continuance by failing to develop his claim with citation to case law and a
factual or legal analysis supporting assertion of error. See Pa.R.A.P. 2119
(a), (b) (requiring argument and citation to supporting authority for point at
issue); Commonwealth v. Kane, 10 A.3d 327, 331 (Pa. Super. 2010) (“it is
an appellant's duty to present arguments that are sufficiently developed for
our review” or risk waiver). Because Appellant only summarily asserts that
the court erred in denying his request for a continuance, we conclude he has
waived any challenge pertaining to the court’s denial of Appellant’s eleventh-
hour continuance request.
With respect to Appellant’s challenge to his waiver of counsel, we note
that both “the right to counsel and the right to self-representation are
guaranteed by the Sixth Amendment to the United States Constitution and by
Article I, Section Nine of the Pennsylvania Constitution. Deprivation of these
rights can never be harmless.” Commonwealth v. Payson, 723 A.2d 695,
699-700 (Pa. Super. 1999) (citations omitted). When a defendant is not
represented by counsel, we must determine whether the defendant validly
waived that constitutional right. Commonwealth v. Murphy, 214 A.3d 675,
678–79 (Pa. Super. 2019). Where a waiver is knowing, voluntarily, and
intelligent, the court may not override a defendant’s “assertion of a vital
constitutional right merely because the trial court thinks it knows what is best
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for the defendant.” Commonwealth v. Starr, 664 A.2d 1326, 1336-37 (Pa.
1995).
To ensure that a waiver is knowing, voluntary, and intelligent, the trial
court must conduct a “probing colloquy” to ensure that the defendant is aware
of both the right to counsel and the significance and consequences of waiving
that right. Id. at 1335. See also Pa.R.Crim.P. 121(A)(2) (detailing
requirements for ensuring a defendant is aware of his right to counsel and the
consequences of waiving that right). In addition, the waiver colloquy must
“contain a clear demonstration of the defendant's ability to understand the
questions posed to him during the colloquy.” Commonwealth v.
McDonough, 812 A.2d 504, 507 n.1 (Pa. 2002). Once we have established
that the trial court met the minimum colloquy requirements of Rule 121, we
determine whether the defendants’ waiver was otherwise knowing, voluntary,
and intelligent based on the totality of the circumstances. Commonwealth
v. Phillips, 93 A.3d 847, 853-54 (Pa. Super. 2014).
Our review of the record establishes that the trial court conducted a
thorough colloquy, explaining each of the enumerated elements of Rule
121(A)(2). In addition, our review confirms that the court established through
an extended colloquy that Appellant understood the consequences of waiving
his right to counsel. Specifically, Appellant affirmed that he understood his
right to counsel. N.T. Trial, 10/16/19, at 3-4. When the court initially asked
Appellant if he understood the charges against him, Appellant said that he did
not, and so the court explained the nature of the charges, including the
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elements of each charge and the range of possible sentences. See id. at 4.
After the extended colloquy, Appellant unequivocally stated, “I want to
represent myself.” Id. at 7. Under the totality of these circumstances, we
reject Appellant’s claims that the trial court “forced [him] under duress” to
proceed pro se or that he was confused. This issue, thus, garners no relief.
Jury Selection
Appellant next argues that the trial court erred when it allowed jury
selection to proceed outside his presence. While Appellant concedes that he
was not present in the courtroom because he “elected not to participate” in
jury selection, he contends, without any citation to supporting authority, that
the court erred in not insisting he return to the court room to exercise his
preemptory challenges. Appellant’s Br. at 43. Ignoring the facts that Appellant
asked to be removed from the courtroom and Mr. Burke consulted with him
regarding the jurors and the exercise of preemptory charges outside of the
courtroom, Appellant contends that he “was precluded from selecting his
jury.” Id. at 44.
It is well settled that a criminal defendant has both the federal and state
constitutional right to be present during all critical phases of the proceedings,
which include the empaneling of the jury. Commonwealth v. Ressler, 798
A.2d 221, 223 (Pa. Super. 2002); Pa.R.Crim.P. 602(A). Thus, Appellant’s
argument raises a question of law, for which our standard of review is de novo
and our scope of review is plenary. Commonwealth v. Tejada, 188 A.3d
1288, 1292-93 (Pa. Super. 2018).
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“[A] defendant may forfeit his right to be present for his trial and his
right of self-representation through his behavior[.]” Id. at 1298. However,
when a court orders a pro se defendant removed from the courtroom, it must
safeguard the defendant’s right to counsel. Id. It can do so by “(1) obtaining
a waiver of the right to representation, or (2) protecting the right to
representation through other means, such as by the substitution of standby
counsel.” Id.
In its 1925(a) Opinion, the trial court observed that Appellant had
waived his right to be present in the courtroom when he disrupted the
proceedings, and noted that the court had preserved his right to counsel by
“having standby counsel present for the remainder of the jury selection
process and then allowing counsel to speak with [Appellant] to exercise his
right to use peremptory strikes.” Tr. Ct. Op. at 11. Thus, the court concluded,
Appellant was not deprived of his constitutional right to be present.
We agree with the trial court’s analysis and thoughtful strategy to deal
with Appellant’s refusal to participate in jury selection. After Appellant exited
the courtroom, the trial court safeguarded Appellant’s right to representation
by instructing Attorney Burke, whom the court had already appointed as
standby counsel, to meet with Appellant and relay both the court’s instructions
to Appellant, and Appellant’s decisions regarding peremptory strikes to the
court. N.T. Trial, 10/16/19, at 43-44. Appellant’s refusal to participate in
jury selection after the trial court attempted to engage him in the process
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establishes that Appellant forfeited his right to be present during the selection.
This issue warrants no relief.
Sufficiency of the Evidence
Appellant argues that the evidence was insufficient to establish that he
was the person who fled police, or to establish that he possessed a firearm.
Appellant’s Br. at 33. We disagree.
“A claim challenging the sufficiency of the evidence is a question of law.”
Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000). Our standard of
review of sufficiency claims requires that we evaluate the record in the light
most favorable to the verdict winner, giving the prosecution the benefit of all
reasonable inferences to be drawn from the evidence. Commonwealth v.
Lynch, 242 A.3d 339, 352 (Pa. Super. 2020). “Further, a conviction may be
sustained wholly on circumstantial evidence, and the trier of fact—while
passing on the credibility of the witnesses and the weight of the evidence—is
free to believe all, part, or none of the evidence.” Commonwealth v. Miller,
172 A.3d 632, 640 (Pa. Super. 2017). “In conducting this review, the appellate
court may not weigh the evidence and substitute its judgment for [that of] the
fact-finder.” Id. Likewise, we may not “give weight to or speculate upon
matters not in evidence[.]” Commonwealth v. Griscavage, 517 A.2d 1256,
1259 (Pa. 1986).
Fleeing a Police Officer
Appellant challenges the sufficiency of the evidence establishing that he
was the person who fled police. “[E]vidence of identification need not be
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positive and certain to sustain a conviction.” Commonwealth v. Jones, 954
A.2d 1194, 1197 (Pa. Super. 2008). “Although common items of clothing and
general physical characteristics are usually insufficient to support a conviction,
such evidence can be used as other circumstances to establish the identity of
a perpetrator.” Commonwealth v. Orr, 38 A.3d 868, 874 (Pa. Super. 2011).
At trial, the Commonwealth presented the testimony of several
eyewitnesses who directly identified Appellant as the driver of the Caprice who
fled on foot. See N.T., Trial, 10/17/19, at 24 (Officer Cook), 78 (Officer
Lombardo). It also presented other circumstantial evidence corroborating their
testimony. For instance, arresting officers found discarded clothes in the house
that matched the driver’s clothing, including a pair of Nike shoes, which were
wet and muddy, consistent with being worn while running in a muddy field;
Appellant subsequently wore those shoes to the police department. See id. at
33-34 (Officer Cook), and 83-91 (Officer Lombardo). The arresting officers
also described Appellant as breathing heavily, in a manner consistent with
having just fled on foot; and wearing wet, muddy jeans, again suggesting that
it was he who fell in the field as officers watched him flee. See id. at 33, 83.
In addition, Robert Sutton’s testimony that he saw Appellant driving the
Caprice an hour and a half before the incident further substantiates the
Commonwealth’s claim that Appellant was the driver who led police on the
chase. See id. at 52.
We conclude that this evidence, found credible by the jury, was sufficient
to identify Appellant as the driver of the Caprice who fled from police on foot.
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Firearms Offenses-Possession
Appellant also challenges the sufficiency of the evidence used to convict
him under the two firearms statutes, contending that no evidence showed that
he “actually possessed a firearm on the day of the incident.” Appellant’s Br.
at 28. This argument merits no relief.
The Commonwealth can meet the possession element of firearms
statutes through evidence proving constructive possession. Commonwealth
v. Hopkins, 67 A.3d 817, 820 (Pa. Super. 2013). Constructive possession “is
an inference arising from a set of facts that possession of the contraband was
more likely than not” and “may be established by the totality of the
circumstances.” Id. at 820 (citation omitted). The Commonwealth may
establish constructive possession with circumstantial evidence that allows the
trier of fact to reasonably infer that the defendant exercised dominion and
control over the contraband at issue. Commonwealth v. Parrish, 191 A.3d
31, 37 (Pa. Super. 2018).
Applying this standard, we have held that evidence establishing that a
defendant was “the sole occupant of the vehicle” in which a weapon was visible
and accessible to the driver is relevant to constructive
possession. Commonwealth v. Parker, 847 A.2d 745, 751 (Pa. Super.
2004). In addition, a defendant’s behavior showing consciousness of guilt
during a traffic stop can also establish constructive possession. See
Commonwealth v. Cruz, 21 A.3d 1247, 1253 (Pa. Super. 2011).
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In its Rule 1925(a) Opinion, the trial court concluded that the
Commonwealth satisfied its burden by establishing that Appellant had
constructive possession of the firearm. See Trial Ct. Op. at 20. The
Commonwealth presented evidence demonstrating that Appellant was the
driver and sole occupant of the Caprice; that the gun was located on the front
seat, a place readily accessible to the driver; and that Appellant exhibited
consciousness of guilt by responding to a routine traffic stop by immediately
leading police on a high-speed chase. See N.T. Trial, 10/17/2021, at 62-75
(location of firearm), 73-75 (initiation of chase). We agree with the trial court
that, viewed under the totality of the circumstances and with all inferences
favorable to the Commonwealth, these facts are sufficient to establish
Appellant’s constructive possession of the firearm.
Weight of the Evidence
Appellant also challenges the weight of the evidence used to convict
him. While he concedes that “[t]his issue was not raised after trial or
sentencing,” he asserts that it “was raised in Appellant's Concise Statement
of Errors and the trial court did not find waiver.” Appellant’s Br. at 36.
Appellant’s challenge is waived.
Issues that appellants do not raise in the lower court are waived and
cannot be raised for the first time on appeal. Pa.R.A.P. 302(a). It is well-
settled that a defendant must preserve a weight claim “either in a post-
sentence motion, by a written motion before sentencing, or orally prior to
sentencing.” Commonwealth v. Thompson, 93 A.3d 478, 490 (Pa. Super.
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2014) (citation omitted); see also Pa.R.Crim.P. 607(A). Failure to properly
preserve a weight claim will result in waiver of the claim, even if the trial court
addresses the issue in its Rule 1925(a) Opinion. See Thompson, 93 A.3d at
490-91 (explaining that a trial court’s addressing an unpreserved weight claim
in its 1925(a) Opinion does not preserve the claim on appeal).
Because Appellant raised his weight claim for the first time in his Rule
1925(b) Statement, Appellant has waived this issue.
Mistrial
Finally, Appellant argues that “the trial court erred or abused its
discretion when it failed to sua sponte declare a mistrial” because Appellant’s
“bouts of anger, misbehavior, absence from the courtroom, and general
disobedience in the form of wearing his jail cloths [sic]” so prejudiced the jury
against him that there was manifest necessity for a mistral. Appellant’s Br. at
47-48.
“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.” Commonwealth v. Kelly,
797 A.2d 925, 936 (Pa. Super. 2002).
When a defendant believes an event at trial resulted in prejudice, the
defendant must move for a mistrial immediately. Pa.R.Crim.P. 605(B). The
failure to do so results in waiver. See, e.g., Commonwealth v. Ables, 590
A.2d 334, 340 (Pa. Super. 1991) (concluding that “[s]ince appellant failed to
move for a mistrial, he cannot now complain that the court erred in failing to
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grant a mistrial when no such motion was made.”). Here, Appellant did not
move for a mistrial.
Absent a motion by a defendant, a “trial judge may declare a mistrial
[sua sponte] only for reasons of manifest necessity.” Rule 605(B) (emphasis
added). Thus, a trial court exercises the power to declare a mistrial sua sponte
“with the greatest caution, under urgent circumstances, and for very plain and
obvious causes[.]” Commonwealth v. Owens, 445 A.2d 117, 120 (Pa.
Super. 1982) (citations omitted).
While the trial court did not directly address its decision not to declare
a mistrial sua sponte in its 1925(a) Opinion, we conclude that it did not err
when it did not do so. Outside of his lone outburst during jury selection,
Appellant cites no examples from the record of any further disruptions and
our review reveals none. In fact, the record establishes that Appellant
appropriately participated in the proceedings after jury selection and that the
trial court consistently maintained control of the proceedings in an orderly
fashion. Accordingly, we find that the trial court did not err in declining to
declare a mistrial sua sponte.
Conclusion
Having found Appellant’s issues either waived or meritless, we affirm
the Judgment of Sentence.
Judgment of Sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 10/15/2021
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