Summary
In Commonwealth v. Wardlaw, 249 A.3d 937 (Pa. 2021), the Supreme Court considered whether an order declaring a mistrial was included within the scope of Pa.R.A.P. 311(a)(6), which provides for an interlocutory appeal as of right for new trials.
Summary of this case from In re Order Amending Rule 311 & 312 of the Pa. Rules of Appellate ProcedureOpinion
No. 15 WAP 2020
04-29-2021
COMMONWEALTH of Pennsylvania, Appellee v. Joshua WARDLAW, Appellant
Brandon Paul Ging, Esq, Allegheny County Public Defender's Office, for Appellant. Michael Wayne Streily, Esq., Allegheny County Public Defender's Office, Pittsburgh, for Appellee.
Brandon Paul Ging, Esq, Allegheny County Public Defender's Office, for Appellant.
Michael Wayne Streily, Esq., Allegheny County Public Defender's Office, Pittsburgh, for Appellee.
BAER, C.J., SAYLOR, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
OPINION
JUSTICE WECHT
In this criminal case, jurors could not reach a unanimous verdict on some counts, and the trial court sua sponte declared a mistrial. The defendant, Joshua Wardlaw, objected to the mistrial, and sought a judgment of acquittal on the unresolved charges. The trial court denied Wardlaw's motion. Wardlaw filed an interlocutory appeal in the Superior Court, claiming a right to do so pursuant to Pennsylvania Rule of Appellate Procedure 311(a)(6), which permits an appeal from a non-final order "awarding a new trial where the defendant claims that the proper disposition of the matter would be an absolute discharge." Pa.R.A.P. 311(a)(6). The Superior Court quashed the appeal, holding that Rule 311(a)(6) did not apply because the trial court's declaration of a mistrial was not an "award" of a new trial. We granted Wardlaw's request for discretionary review to consider whether the Superior Court's interpretation of Rule 311(a)(6) was erroneous.
I.
On August 6, 2016, Jonathan Minnie, Amanda Smith, and Alyssa Madison were shot in the parking lot of a bar in Forward Township, Allegheny County. Minnie died within thirty minutes of the shooting. Smith and Madison survived the shooting and identified Joshua Wardlaw as the assailant. The Commonwealth charged Wardlaw with one count of criminal homicide, and two counts each of attempted homicide, aggravated assault, and recklessly endangering another person. At Wardlaw's preliminary hearing on November 16, 2016, Smith and Madison identified Wardlaw as the shooter.
Beginning on October 23, 2018, Wardlaw was tried before a jury over the course of four days. During the trial, the Commonwealth called Smith and Madison to testify, presumably expecting that they would identify Wardlaw as the shooter, as each had done on at least two prior occasions. However, under direct examination, both Smith and Madison testified that they were uncertain that it was Wardlaw who had shot them. In response to these recantations, the Commonwealth confronted each witness with her testimony from the preliminary hearing, at which each affirmatively had identified Wardlaw as the shooter. Though faced with these prior inconsistent statements, Smith and Madison nonetheless maintained that they could not identify the shooter. After the Commonwealth rested its case, the defense moved for a judgment of acquittal on all counts. The trial court denied the motion.
On October 29, 2018, the trial court instructed the jury, and the jury commenced deliberations. The following day, the jury returned a partial verdict. The jury unanimously found Wardlaw not guilty of the attempted homicide counts but indicated that it was deadlocked with respect to the remaining charges. The trial court gave the jury an Allen charge, directing the jurors to continue deliberating and to attempt to reach a unanimous verdict. Approximately two hours later, the jury returned to the courtroom and announced that it was hopelessly deadlocked on all but the attempted homicide charges.
See Allen v. United States , 164 U.S. 492, 501-02, 17 S.Ct. 154, 41 L.Ed. 528 (1896) (holding that a trial court may instruct a deadlocked jury to continue the deliberations, with an open mind to reconsideration of the jurors’ individual views, but without giving up their firmly held convictions).
Without a request from either party, the trial court declared a mistrial on the hung charges. Wardlaw objected, maintaining that the jury did not deliberate long enough and, thus, that no "manifest necessity" warranted a mistrial under the circumstances. Implicitly overruling Wardlaw's objection, the trial court reiterated its declaration of a mistrial. The consequence of the court's sua sponte order of mistrial was that Wardlaw was required to face a second trial on the hung charges.
See Pa.R.Crim.P. 605(b) (providing, in relevant part, that a "trial judge may declare a mistrial only for reasons of manifest necessity").
On November 5, 2018, Wardlaw filed a motion for judgment of acquittal, wherein he argued that the evidence was insufficient to prove that he was the shooter, which insufficiency necessitated dismissal of all of the remaining charges. Wardlaw asserted that, because the only eyewitnesses to the shooting failed to identify him at trial as the perpetrator, the Commonwealth failed to satisfy its burden of proof. After reviewing the evidence in the light most favorable to the Commonwealth, the trial court denied the motion. Wardlaw filed a notice of appeal, exclusively referencing the order denying his motion for judgment of acquittal as the order being appealed. See Notice of Appeal, 12/4/2018.
The parties and the courts below oscillated between characterizing Wardlaw's motion as a motion for a judgment of acquittal and a motion in arrest of judgment. Because Wardlaw challenged the sufficiency of the evidence, in substance, his motion was one for a judgment of acquittal. See Pa.R.Crim.P. 606(A)(3). A motion in arrest of judgment can be used to challenge the court's jurisdiction based upon double jeopardy or based upon the statute of limitations. Id. , Cmt. Any misnomer on the part of the parties or the courts below has no bearing upon the present matter.
On November 5, 2018, Wardlaw also filed a motion to dismiss the case on double jeopardy grounds, arguing that the trial court's sua sponte declaration of a mistrial was not supported by manifest necessity. The trial court denied Wardlaw's double jeopardy motion. Wardlaw timely filed a petition for review, which the Superior Court denied by per curiam order. See Commonwealth v. Wardlaw , 22 WDM 2019 (Pa. Super. July 12, 2019) (per curiam ). Wardlaw filed a petition for allowance of appeal, which this Court denied. See Commonwealth v. Wardlaw , 224 A.3d 362 (Pa. 2020) (per curiam ).
Given that Wardlaw faced a new trial, the denial order was not a final order, and his appeal to the Superior Court was interlocutory. Before the Superior Court, Wardlaw argued that he had a right to file an interlocutory appeal pursuant to Pa.R.A.P. 311(a)(6), which provides:
(a) General rule .—An appeal may be taken as of right and without reference to Pa.R.A.P. 341(c) from:
...
(6) New trials .—An order in a civil action or proceeding awarding a new trial, or an order in a criminal proceeding awarding a new trial where the defendant claims that the proper disposition of the matter would be an absolute discharge or where the Commonwealth claims that the trial court committed an error of law.
Pa.R.A.P 311(a)(6) (emphasis added).
The Superior Court disagreed, and quashed Wardlaw's appeal. Commonwealth v. Wardlaw , 1716 WDA 2018, 2019 WL 6792750 (Pa. Super. Dec. 12, 2019) (unpublished). The panel held that it lacked jurisdiction over the appeal because Rule 311(a)(6) does not provide for interlocutory appeals as of right where a new trial results from the declaration of a mistrial. Id. at *2.
In support of its holding, the intermediate panel relied upon Kronstain v. Miller , 19 A.3d 1119 (Pa. Super. 2011). In that case, the Superior Court reasoned that, because the plain language is limited to orders "awarding a new trial," Rule 311(a)(6) distinguishes "between (1) orders that grant a request for a new trial and (2) new trials that follow from the declaration of a mistrial." Id. at 1124. In proffering that distinction, the Kronstain Court opined that, when a trial court grants a motion for a new trial—i.e ., "awards" a new trial—a judgment already has been rendered but is later set aside; conversely, when the trial court declares a mistrial, an error or irregularity prevents the factfinder from rendering a judgment. Id. In other words, the Superior Court determined that the rule hinged upon the entry of a judgment, even though the rule does not expressly so state.
Additionally, the Superior Court analogized the procedural posture of Wardlaw's case to the procedural occurrences in Commonwealth v. McPherson , 368 Pa.Super. 274, 533 A.2d 1060, 1061-62 (1987) (per curiam ). In McPherson , the trial court declared a mistrial following a hung jury, and defendant McPherson filed a motion seeking to preclude a second trial upon speedy trial grounds, which motion the trial court denied. Id. at 1061. McPherson appealed the denial of his speedy trial motion, alleging that he had a right to an interlocutory appeal under Pa.R.A.P. 311(a)(5), a predecessor to Rule 311(a)(6). Id. The Superior Court quashed the appeal, explaining that, under Rule 311(a)(5), "an interlocutory appeal as of right may be taken where an order awards a new trial and the defendant claims that the proper disposition of the matter would be absolute discharge." Id. at 1062. The court reasoned that, because the second trial resulted from a mistrial, a new trial was not "awarded," and the rule thus did not afford McPherson an interlocutory appeal as of right. Id .
According to the Superior Court's precedent, a new trial only is "awarded" when the trial court grants a party's motion for a new trial. Here, neither party filed a motion requesting that the court order a new trial. Rather, the jury's inability to reach a verdict resulted in a mistrial, and a new trial was the natural and necessary consequence of that failure. The trial court never entered an order "awarding a new trial," which is a prerequisite to an appeal under Rule 311(a)(6). For these reasons, the intermediate panel quashed Wardlaw's interlocutory appeal.
II.
To resolve Wardlaw's challenge to the Superior Court's disposition, we must decide whether a new trial is "awarded" only when the order directing a new trial resulted from a party's motion for a new trial. Because this appeal calls for an interpretation of Rule 311(a)(6) ’s language, it "presents a question of law, [and] our scope of review is plenary and the standard of review is de novo ." Commonwealth v. Walker , 646 Pa. 456, 185 A.3d 969, 974 (2018). With these standards in mind, we turn to Wardlaw's argument.
Notably, the Commonwealth also asserts that Wardlaw retained a right to file an interlocutory appeal pursuant to Pa.R.A.P. 311(a)(6). Because the Commonwealth's argument aligns largely with Wardlaw's, it is unnecessary to recount the Commonwealth's position.
Wardlaw maintains that our decisions in Commonwealth v. Liddick , 471 Pa. 523, 370 A.2d 729 (1977), and Commonwealth v. Chenet , 473 Pa. 181, 373 A.2d 1107 (1977), compel the conclusion that he is entitled to an appeal under Rule 311(a)(6). He argues that those precedents indicate that Rule 311(a)(6) aims to prevent the erroneous retrial of a defendant and, further, that subjecting him to a new trial would amount to such an error. In furtherance of that position, Wardlaw reasons that his sufficiency of the evidence claim should have caused the trial court to discharge the matter absolutely because, in his view, double jeopardy categorically precludes retrial of a defendant when the Commonwealth fails to adduce sufficient evidence at the first trial. Wardlaw further posits that, in such circumstances, any distinction between a new trial that results from a motion for a new trial and one that results from a mistrial flagrantly defeats the purpose of Rule 311(a)(6). Instead, he asks us to interpret Rule 311(a)(6) as providing a right to an interlocutory appeal to any defendant who faces a new trial but claims that retrial is barred.
When we interpret our Rules of Appellate Procedure, we rely upon the rules of statutory construction "to the same extent as if these rules were enactments of the General Assembly." Pa.R.A.P. 107. Generally, our interpretive task seeks to reveal and effectuate the intent of the drafters. Commonwealth v. Cooper , 611 Pa. 437, 27 A.3d 994, 1003 (2011). To that end, we view the language selected by the drafters as the paramount factor. Id . If the language of the provision is unambiguous, "the letter of it is not to be disregarded under the pretext of pursuing its spirit." 1 Pa.C.S. § 1921(b) ; see also Commonwealth v. McClelland , ––– Pa. ––––, 233 A.3d 717, 734 (2020). Only when the language is ambiguous will we resort to other approaches of discerning the intent of the provision at issue. See McClelland , 233 A.3d at 734 ; see also Walker , 185 A.3d at 974.
The relevant portion of Rule 311(a)(6) affords an interlocutory appeal as of right from "an order in a criminal proceeding awarding a new trial where the defendant claims that the proper disposition of the matter would be an absolute discharge." Pa.R.A.P. 311(a)(6). As the rule is triggered only upon an "order awarding a new trial," the question becomes whether the rule applies only to those orders that fulfill a specific request by a party for a new trial or whether a sua sponte declaration of a mistrial, where there is no specific request by a party, also constitutes an order "awarding" a new trial. In interpreting this term, we must ascribe to the term "award" its common and everyday meaning. See 1 Pa.C.S. § 1903(a). Moreover, we will interpret the term in a manner consistent with any technical, legal meaning that it has. See Bayview Loan Servicing, LLC v. Lindsay , 646 Pa. 381, 185 A.3d 307, 313 (2018) ("Words that have [ ] precise and settled meanings in the legal realm must be interpreted consistently therewith.")
Although we are not bound to do so, we may attempt to discern a word's common meaning through "an examination of its dictionary definition." Chamberlain v. Unempl. Compen. Bd. of Rev. , 631 Pa. 489, 114 A.3d 385, 394 (2015). Per Black's Law Dictionary, the verb "award" means "[t]o grant by formal process or by judicial decree." Award , BLACK'S LAW DICTIONARY (11th ed. 2019). Thus, "award" ordinarily is synonymous with the verb "grant," but only to the extent that these two words logically overlap. "Grant" most often means "[t]o permit or agree to [or] to approve, warrant, or order." Grant , BLACK'S LAW DICTIONARY (11th ed. 2019). Typically, "award" is a ditransitive verb; it indicates that the subject acts upon an object and that another object benefits from the action. In Rule 311(a)(6), "an order" is the subject; "a new trial" is the direct object; and a party to the action is the implied indirect object that receives the benefit of the action. Accordingly, only those definitions of "grant" that contemplate such a beneficiary relationship also serve to define "award."
The learned Dissent suggests that "award" reasonably can be viewed as a noun because, in Rule 311(a)(6), " ‘appeal’ is the subject, ‘taken’ is the verb, and the orders appealed from are the direct objects, i.e., the orders that qualify for an appeal as of right." Dissenting Op. at 956. Respectfully, while creative, this interpretation is strained and incorrect. The Dissent notes that that the noun phrase "an order awarding a new trial" is a direct object under its syntactical arrangement. However, the Dissent's arrangement neither converts the nonfinite verb "awarding" into a noun, nor prevents "an order" from operating as both the subject in the clause "an order awarding a new trial" and as the direct object of the full sentence . In Rule 311(a)(6), "awarding" is describing the noun "order," making "awarding" an adjective. Therefore, the rule's text plainly uses "awarding" as a present participle, which is the nonfinite form of the verb, not the noun, "award." See David Crystal, A Dictionary of Linguistics and Phonetics 376 (2008) (explaining that a participle is "a word derived from a verb and used as an adjective"). The subject of the participle—i.e ., the doer of the action—is the noun that it modifies, thereby rendering "an order" the subject of the verb "award." Because reasonable interpretations do not include grammatically incorrect interpretations, the Dissent's view of "awarding" in the rule does not render "awarding" reasonably susceptible to more than one interpretation. See 1 Pa.C.S. 1903(a) ("Words and phrases shall be construed according to rules of grammar."). The Dissent's linguistic approach as to "awarding" arises from a syntactical error, ultimately leading to the Dissent's offer of an unreasonable interpretation of "awarding." Put simply, the Dissent mistakenly concludes that "awarding" is a noun and that "order" is not the subject engaged in the act of "awarding." Consequently, the remainder of its proffered textual interpretation is linguistically unsound.
See generally Joybrato Makherjeem, English Ditransitive Verbs: Aspects of Theory, Description and a Usage-based Model 5 (2005) (explaining that a verb is ditransitive when it necessarily has two objects, even if one of the objects is not explicitly mentioned in the sentence.); see also 1 Pa.C.S. § 1923(c) ("Words and phrases which may be necessary to the proper interpretation of a statute and which do not conflict with its obvious purpose and intent, nor in any way affect its scope and operation, may be added in the construction thereof.").
"Warrant" and "order" do not entail a beneficiary to the action and, thus, fail to impart meaning to the term "award." Conversely, "permit," "approve," and "agree" contemplate the fulfillment of a desired result, thereby providing the necessary beneficiary relationship. As such, those words supply meaning in the interpretation of "award." Logically, "grant," "permit," "approve," and "agree" require the fulfillment of a preceding request. Because "award" is reasonably synonymous with "grant," "permit," "approve," and "agree," the word "award" also commonly describes an action that specifically fulfills a preceding request. This common meaning of "award" aligns with its usage in the legal realm.
We may glean the legal meaning of a word from its use in the corpus juris . Commonwealth v. Hicks , 365 Pa. 153, 74 A.2d 178 (1950) (per curiam ). The usage of "award" in other rules of court demonstrates that, in its technical sense, the term expresses an action that fulfills a preceding request. For example, an appellate court "may award as further costs damages as may be just," Pa.R.A.P. 2744, provided that, inter alia , the party receiving such damages makes "[a]n application for further costs and damages." Id . 2751. Likewise, the rule of civil procedure that requires additional damages for the delayed payment of compensatory damages provides that, "[a]t the request of the plaintiff in a civil action ... [d]amages for delay shall be awarded." Pa.R.C.P. 238(a)(1)-(2). Similarly, Pennsylvania Orphans’ Court Rule 5.3 provides that "[t]he court may, at the request of the surviving spouse, award specific real estate." Pa.O.C.R. 5.3(c). Correspondingly, numerous statutory provisions condition a decision to "award" a particular benefit to a party making a specific request for that benefit. See , e.g. , 35 P.S. § 4013.6(c) ("any person may request the court to award civil penalties"); 62 Pa.C.S. § 512(a) ("Contracts shall be awarded by competitive sealed bidding."); 64 Pa.C.S. § 1552 ("the department may request that the authority finance the loan ..., and, if approved, the authority shall award a loan"). These provisions militate in favor of the conclusion that, as a legal term, the verb "award" expresses an action that fulfills a request for a particular benefit. We are obligated to use that meaning in interpreting Rule 311(a)(6). Both the common meaning and the technical usage of "award" require that interpretive approach. Accordingly, Rule 311(a)(6) ’s plain and unambiguous language affords an interlocutory appeal as of right only when the order emanates from a party's request for a new trial (and when the defendant claims that the charges should have been dismissed). Neither a request for a mistrial, nor the trial court's sua sponte declaration of the same, constitutes a request for new trial.
The Dissent insists that the "meaning of ‘awarding’ is not limited to something conferred only upon request." Dissenting Op. at 957. The Dissent premises this conclusion on its comment that "a person can be ‘awarded’ something they do not want." Id . As an example, the Dissent references Jean-Paul Sartre's refusal to accept the Nobel Prize. Outside of the legal realm, one can be "awarded" that which he or she does not request personally. But, in those circumstances, the verb "award" means that an ordinarily desirable thing (i.e., international acclaim along with a large sum of money) was conferred upon an individual (i.e. , Sartre) because that individual engaged in conduct that deserved or merited that which was conferred (i.e. , Sartre's authorship of philosophical works that rejected limitations on free choice and that disavowed institutions that subject persons and ideologies to unequal treatment). See Award , Merriam-Webster Online Dictionary ("to confer or bestow as being deserved or merited or needed").
As such, in its non-legal usage, the conduct of the individual precedes the action of "awarding" something that typically would appear desirous to that individual, even if the beneficiary of the action does not desire the benefit in fact. The Dissent overlooks the necessity of an action that precedes the conferral of the benefit and that was performed by the person upon which the benefit was conferred. Here, neither of the parties performed any act that merited a conferral of a benefit upon them. The only conduct a party to litigation can engage in that merits, deserves, or demonstrates a need for the conferral of a new trial is conduct that offers a legally sufficient request for the desired benefit—i.e ., a new trial. Obviously, if a party's conduct results in a mistrial, that illegal conduct precludes a construction of a new trial's conferral upon that party "as being deserved, merited, or needed" by that party.
Additionally, taking the Dissent's example seriously, a request does in any event predicate the act of "awarding" the Nobel Prize. Consider, for example, the fact that "[t]he candidates eligible for the Literature Prize are those nominated by qualified persons." Nomination and selection of Literature Laureates , The Nobel Prize , https://www.nobelprize.org/nomination/literature/. In other words, the Nobel Committee for Literature awards the Nobel Prize exclusively to those persons whom a "qualified individual" has requested the Committee to select as the recipient, i.e. , through a nomination. As such, the highly selective and unusual use of the verb "award" offered by the Dissent fails to demonstrate that the act of "awarding" is unconnected to any request. To the contrary, the Dissent's example demonstrates that the word typically is used in circumstances where there was a request to confer a benefit to an individual and where that individual's conduct warranted the conferral of the benefit.
From its incomplete analysis, the Dissent concludes that, "awards may be given based purely on circumstances as decided by the entity with the power to award." Dissenting Op. at 957. This phrasing is too broad, leaving the term "award" meaningless. Under that suggested construction, there is no distinction between the verb "award" and the verb "give." The particular circumstances that factor into that entity's decision are limited when "award" describes the entity's action. Specifically, the decision-maker who is "awarding" a benefit considers whether the recipient's actions merit the benefit. A request for the benefit initiates that deliberative process. Accordingly, the Dissent's proffered interpretation is unreasonable, and it fails to render Rule 311(a)(6) ambiguous.
The Dissent maintains that our interpretation will leave Rule 311(a)(6) inoperable as it concerns criminal defendants because, "if the defendant requests a new trial ... but does not request total discharge, then his appeal will doubtlessly fail." Dissenting Op. at 960–61 n.7. In making this argument, the Dissent presents a false dichotomy, improperly characterizing two compatible modes as mutually exclusive. A criminal defendant can request a new trial while claiming simultaneously that he or she is entitled to absolute dismissal of the charges. There is no irreconcilable contradiction. For example, a defendant may claim that the erroneous admission of evidence warrants a new trial while arguing simultaneously that, absent the erroneously admitted evidence, the Commonwealth failed to satisfy its burden of proof and that he or she is entitled to dismissal. If the trial court agrees that the evidence was inadmissible but finds that the Commonwealth satisfied its burden of proof otherwise, then the defendant would retain a right to appeal under the rule. See, e.g ., Liddick, 370 A.2d at 730. Moreover, we are not suggesting, as the Dissent appears to believe, that the portion of Rule 311(a)(6) sub judice applies only when the defendant requests a new trial. The rule, in relevant part, is triggered: (1) upon the court granting a party's request for a new trial and (2) upon the defendant asserting a right to absolute discharge. The first condition is met if the trial court grants either the Commonwealth's request for a new trial or the defendant's request for a new trial.
The necessary request plainly is absent when the court acts on its own volition. Still, a party's request for a mistrial also is not a request for a new trial. A mistrial is a step removed from a new trial, precluding the inference that a request for a mistrial is a request for a new trial. Often, a mistrial results in an order for a new trial, but that is not categorically true. We have stated that, "[i]n some circumstances , a defendant may be retried following a mistrial. However, because of the double jeopardy clause's policy of prohibiting multiple trials, retrial is ‘only grudgingly allowed,’ and is limited to cases in which the defendant consented or the declaration of a mistrial was manifestly necessary." Commonwealth v. Bolden , 472 Pa. 602, 373 A.2d 90, 101 (1977) (plurality) (emphasis added) (quoting United States v. Wilson , 420 U.S. 332, 343, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975) ). Even when a defendant requests a mistrial, a new trial is not guaranteed. See Commonwealth v. Smith , 532 Pa. 177, 615 A.2d 321 (1992) (holding that retrial is barred where prosecutor engaged in misconduct with the intent to coax the defendant into moving for a mistrial.).
However, an order granting a motion for a new trial always results in an order for a new trial. Moreover, in deciding whether a mistrial is warranted, the court is not inquiring whether the asserted basis for relief warrants a new trial. Instead, the court inquires whether the alleged prejudicial event deprived the defendant of a fair trial. Commonwealth v. Jones , 542 Pa. 464, 668 A.2d 491, 503 (1995). Conversely, when ruling upon a motion for a new trial, the court's inquiry asks specifically whether the asserted basis for relief entitles the movant to a new trial. Given these distinctions, only a motion for a new trial equates to a request for a new trial.
The Dissent asserts that this distinction is illusory because, "even if the Commonwealth were to somehow seek and receive a new trial, ... retrial is not a fait accompli as the Commonwealth could decide that a retrial is not worth pursuing for whatever reason." Dissenting Op. at 960–61 n.7. But, the Commonwealth's after-the-fact decision to nolle prosequi charges in an exercise of prosecutorial discretion does not make the order for a new trial anything less. In this scenario, nolle prosequi occurs when the Commonwealth opts to exercise its discretion to drop a case after the court orders a new trial. When the trial court grants a motion for new trial, it is always ordering a new trial, regardless of whether the new trial ultimately does or does not occur. However, an order declaring a mistrial, standing alone, is not an order directing a new trial.
As such, a court enters an order "awarding a new trial" for purposes of Rule 311(a)(6) only when it grants a party's motion for a new trial. The converse is true as well: absent a motion for a new trial, the court has not entered "an order awarding a new trial." The rule's plain and unambiguous language mandates this conclusion.
Wardlaw fails to offer a contrary interpretation. In fact, he fails to confront the text of Rule 311(a)(6) at all. Instead, he insists that our decisions in Liddick and Chenet require that we effectively relegate "award" to a status of mere surplusage. We are not permitted to interpret provisions of our law (be they statute or rule) in such a way. But, just as importantly, neither of the cited precedents can bear the weight that Wardlaw places upon it.
See McClelland , 233 A.3d at 734 ; 1 Pa.C.S. § 1922(2) (providing that "the General Assembly intends the entire statute to be effective and certain").
In Liddick , the Commonwealth charged Wayne Liddick with murder. Liddick , 370 A.2d at 730. At a jury trial, the Commonwealth introduced unduly prejudicial photographs of the victim, and the jury found Liddick guilty. Id. After sentencing, Liddick filed a motion for a new trial. Id . He also sought a judgment of acquittal, claiming that the Commonwealth's evidence was insufficient to support his murder conviction. Id. The trial court concluded that the admission of the prejudicial photographs warranted a new trial but held that the Commonwealth otherwise presented sufficient evidence to support the charge. Id. Thus, the court entered an order awarding a new trial but denying the motion in arrest of judgment. Id .
The parties cross-appealed. Id . Regarding Liddick's appeal of the denial of his motion in arrest of judgment, the Commonwealth maintained that the Court should quash the appeal. Id. at 731 n.2. The Commonwealth reasoned that, because a new trial had been granted, the order was interlocutory and non-appealable pursuant to the final judgment rule, which permits appeals only from the entry of a final judgment of sentence. Id. This Court disagreed, stating:
It is true that as a general rule a defendant may take an appeal only from judgment of sentence. See , e.g. , Commonwealth v. Pollick , 420 Pa. 61, 215 A.2d 904 (1966). However, Rule 311(b) of the Pennsylvania Rules of Appellate Procedure recognizes an exception to that rule: an appeal may be taken from an order in a criminal proceeding awarding a new trial where the defendant claims that the proper disposition of the matter would be an absolute discharge. This language closely parallels that of § 1.3 of the ABA Standards on Criminal Appeals (Approved Draft, 1970). Comment D to § 1.3 of the ABA Standards reasons that to require such a defendant to stand trial again, if the already completed trial demonstrates his innocence, is a needless hardship. That observation is particularly apt in this situation where the case is already before us because of the Commonwealth's cross appeal.
Rule 311(b) was one of several prior versions of Rule 311(a)(6). The various prior versions of the rule either renumbered or restructured the rule, but did not make any substantive changes. The rule, in relevant part, has always stated that a criminal defendant has a right to an interlocutory appeal upon the court awarding a new trial when the defendant raised a claim that would result in a complete dismissal of the charges against him.
Id. (cleaned up) (emphasis added).
In Chenet, this Court merely applied Liddick . There, Richard Chenet was convicted of possession of a controlled substance. Chenet , 373 A.2d at 1108. After the jury rendered its verdict, he filed a motion for a new trial and a motion in arrest of judgment. Id . The trial court granted the motion for a new trial but denied the motion in arrest of judgment. Id . Chenet appealed, claiming that the evidence was insufficient to support a finding of guilt. Id. Before this Court, the parties did not appear to dispute the appealability of the order. Nevertheless, this Court stated, "[w]e have recently made clear that an interlocutory order denying a motion in arrest of judgment, based on a claim of insufficient evidence, when a new trial has been granted , is appealable." Id . at 1108 n.1 (emphasis added).
Undeniably, Liddick and Chenet support the proposition that Rule 311(a)(6) aims to prevent the needless hardship that would arise from retrying a defendant when retrial is in fact barred. However, those decisions are distinguishable from the instant case in the most salient respect. In both of those precedents, the defendant filed a motion for a new trial, the trial court granted the motion, and, thus, the court "awarded" a new trial. There was no declaration of a mistrial in either case. As such, Liddick and Chenet support our holding that Rule 311(a)(6) only applies to those orders granting a motion for a new trial. The rule does not apply when a trial court declares a mistrial. Under such circumstances, no party has been "awarded" a new trial, differing substantively from the circumstances in Liddick and Chenet .
The Dissent assails this distinction as irrelevant because "Liddick was not appealing the order awarding him a new trial but rather was appealing the court's failure to grant his request for total discharge." Dissenting Op. at 960. The Dissent's disagreement flows from an incomplete characterization of the order that Liddick appealed. While Liddick did not contest the trial court's decision to grant his motion for a new trial, he nevertheless appealed from the order that awarded the new trial. In Liddick , the trial court entered a single "order that both granted Liddick's motion for a new trial and denied his motion in arrest of judgment." Liddick , 370 A.2d at 730. Therefore, unlike the present case, Liddick appealed from "an order awarding a new trial" within the meaning of Rule 311(a)(6). Further, the rule plainly does not require the defendant to appeal from an order denying a motion for absolute discharge. It affords appeals from "an order in a criminal proceeding awarding a new trial where the defendant claims that the proper disposition of the matter would be an absolute discharge." Pa.R.A.P. 311(a)(6). Although the defendant must claim an entitlement to absolute discharge to avail herself or himself of the rule, the order appealed from need not deny such a claim.
Wardlaw contends nonetheless that any differentiation between the circumstances that give rise to a new trial is a distinction without a difference, serving only to defeat the purpose of Rule 311(a)(6). Wardlaw correctly notes that, when a defendant faces retrial but claims that double jeopardy bars retrial, the new trial presents a potentially needless hardship, regardless of whether the retrial results from a mistrial or from a motion for a new trial. Contrary to Wardlaw's claim, however, the rule's distinction between new trials that are "awarded" upon a party's motion for a new trial and new trials that result from a mistrial is not a sheer exercise in formalism.
By focusing exclusively upon Rule 311(a)(6) ’s purpose, Wardlaw not only ignores the plain and unambiguous language of the rule, but also erroneously decontextualizes the rule, losing sight of how the distinction advances judicial economy. Rule 311 provides exceptions to the final judgment rule, which aims to create a clear division of labor between our Commonwealth's trial and appellate courts. Shearer v. Hafer , 644 Pa. 571, 177 A.3d 850, 855 (2018). In drawing that line, the rule encourages judicial economy by precluding piecemeal determinations and by preventing unjustifiably prolonged litigation. Jenkins v. Hosp. of Med. Coll. of Pa. , 535 Pa. 252, 634 A.2d 1099, 1102 (1993). To prevent undue erosion of the boundary set by the final judgment rule, we must construe its exceptions narrowly, never losing sight of its salutary goals. See In re Twenty-Fourth Statewide Investigating Grand Jury , 589 Pa. 89, 907 A.2d 505, 510 (2006).
To be sure, rigid application of the final judgment rule can undercut the rule's underlying principles and unjustly deny litigants prompt review of erroneous interlocutory orders. But our view of Rule 311(a)(6) does not amount to such an unduly narrow and unjust application of the rule. In holding that Rule 311(a)(6) distinguishes between new trials that result from a mistrial and those that result from a motion for a new trial, we uphold the careful balance between the Commonwealth's interest in judicial economy and the defendant's interest in prompt review of erroneous interlocutory orders. That balance results from the simple fact that defendants are more likely to prevail on a claim for absolute discharge when the new trial results from a motion for a new trial than when it results from a mistrial. Indeed, "[w]hen a mistrial is granted at the defendant's request, there is usually no bar to reprosecution." Commonwealth v. Potter , 478 Pa. 251, 386 A.2d 918, 920 (1978) (emphasis added). Moreover, it is well settled that, generally, a defendant may be retried, without violating double jeopardy principles, after a first trial yields a deadlocked jury. Commonwealth v. Buffington , 574 Pa. 29, 828 A.2d 1024, 1029 (2003). Relatedly, the Supreme Court of the United States has held that a federal double jeopardy claim does not lie where a deadlocked jury necessitates a retrial, "[r]egardless of the sufficiency of the evidence at [the] first trial." Richardson v. United States , 468 U.S. 317, 326, 104 S.Ct. 3081, 82 L.Ed.2d 242 (1984) (emphasis added). Although these principles are not inviolable, they demonstrate the difficulty in preventing retrial following a mistrial. Put simply, injustice is less likely to result from delayed resolution of an appeal premised upon a claim that a retrial following a mistrial is barred.
This is not to say that a mistrial always permits retrial. Indeed, as explained supra , the fact that a new trial does not automatically follow a mistrial is vital to our interpretation of the rule. Nor are we expressing our view as to whether retrial of Wardlaw, in fact, is barred. That question is beyond the scope of this appeal. We are recognizing merely that, in defining exceptions to the final judgment rule, this Court has weighed judicial economy against the likelihood that harm will result from protracted appellate review of the challenged interlocutory order. The law as it stands provides limited avenues to contest retrial when the new trial flows from a mistrial. Because the exceptions to the final judgment rule aim to abate likely injustices associated with delayed appellate review, Rule 311(a)(6) does not concern appeals from an order declaring a mistrial.
Because barring retrial is unlikely when there is a mistrial, Rule 311(a)(6) sensibly excludes mistrials from its reach. In doing so, the rule achieves a balance between judicial economy and securing prompt justice for defendants. Wardlaw would have us adopt a broad view of the rule that would ensure the promptest resolution of erroneous interlocutory orders. However, to focus solely upon ensuring swift resolution of erroneous trial court decisions would open the floodgates to a host of interlocutory appeals, unduly eroding the final judgment rule and overwhelming an already inundated Superior Court. We cannot disregard such practical considerations in the face of the rule's unambiguous language.
The Dissent does not share this concern inasmuch as "many defendants facing serious charges are likely to remain incarcerated pending appeal and the retrial. Thus, the delays caused by pursuing an appeal and the fact that such appeals will rarely succeed will serve to disincentivize frivolous appeals." Dissenting Op. at 961 n.8. This criticism overlooks two critical points. First, Rule 311(a)(6) is not limited to cases involving "serious" charges, to defendants held in pretrial incarceration, or to cases in which defendants seek to appeal. The rule affords an appeal as of right to all defendants, regardless of the charges they face, and to the Commonwealth as well.
Second, our interpretation of what amounts to an "order awarding a new trial" will affect the appealability of certain interlocutory orders in civil cases as well. Rule 311(a)(6) further provides an appeal as of right from "an order in a civil action or proceeding awarding a new trial. " Pa.R.A.P. 311(a)(6) (emphasis added). Unlike the portion of the rule concerning appeals in criminal cases, this part of the rule does not limit the right to those appellants seeking discharge of the matter or those appellants claiming that the trial court committed an error of law. If we were to interpret the phrase "awarding a new trial" in the context of criminal proceedings as encompassing both mistrial orders and orders granting a motion for a new trial, that interpretation would also afford civil litigants an appeal as of right from all orders declaring a mistrial. To hold that Rule 311(a)(6) ’s phrase "an order awarding a new trial" bears two different meanings as it applies to civil and criminal cases would be to contravene the basic interpretive canon that provisions of law which concern the same subject shall bear consistent meanings. See 1 Pa.C.S. § 1932(a) ("Statutes or parts of statutes are in pari materia when they relate to the same persons or things or to the same class of persons or things."). An interpretation of Rule 311(a)(6) that includes a right to appeal from mistrials would depart from the Superior Court's longstanding application of the rule in both the criminal and civil contexts, and would doubtless increase that busy court's caseload substantially. See Yon v. Yarus, 700 A.2d 545, 546 (Pa. Super. 1997) (holding the grant of a mistrial in a civil case is not an appealable order under Rule 311(a)(6) ); McPherson , 533 A.2d at 1062 (holding that an appeal from an order granting a mistrial in a criminal case "must be quashed as interlocutory.").
We recognize that Rule 311(a)(6) is integral to the fundamental and deeply cherished philosophy that "the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity." Green v. United States , 355 U.S. 184, 187, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957) ; see also Liddick , 370 A.2d at 731 n.2. But the rule sub judice is merely one procedural protection against such injustice. A distinct procedural rule allows for interlocutory appeals for those who claim that double jeopardy bars retrial.
Specifically, Pennsylvania Rule of Criminal Procedure 587(B) offers such protection. When a trial court denies a motion to dismiss on double jeopardy grounds and finds the motion to be frivolous, "a defendant has a right to file a petition for review of that determination pursuant to Rule of Appellate Procedure 1573 within 30 days of the order denying the motion." Pa.R.Crim.P 587(B)(5). If the court determines that the motion was not frivolous, then "the denial is immediately appealable as a collateral order." Id. (B)(6). Indeed, Wardlaw attempted to seek interlocutory review of his double jeopardy claim through Rule 587, but his attempt failed. We decline to use his failure as a reason to disregard the plain and unambiguous mandate of Rule 311(a)(6).
See supra n.4.
The Dissent contends that "[w]e should allow this appeal precisely because there is no other viable avenue to present" Wardlaw's claim "that his retrial is barred under double jeopardy for failure to present sufficient evidence during the first trial." Dissenting Op. at 962. The Dissent maintains that such a claim is barred by the Supreme Court of the United States’ decision in Richardson , which held that a federal double jeopardy claim does not lie where a deadlocked jury necessitates a retrial, "[r]egardless of the sufficiency of the evidence at [the] first trial." See Richardson , 468 U.S. at 326, 104 S.Ct. 3081. The Richardson decision makes it more difficult to bring a non-frivolous claim that double jeopardy bars retrial under Rule 587(B), but that decision does not make it impossible to do so. Rule 587(B) is not limited to double jeopardy claims asserting a violation of federal constitutional rights; it also encompasses double jeopardy claims brought under Pennsylvania's own Constitution. Richardson does not, and cannot, compel the conclusion that state law double jeopardy claims are frivolous. Further, Richardson does not prohibit defendants from presenting a non-frivolous argument that retrial is barred because the jury did not deliberate long enough and the trial court prematurely concluded that manifest necessity warranted the declaration of a mistrial. See, e.g., Commonwealth v. Bartolomucci , 468 Pa. 338, 362 A.2d 234, 239-40 (1976). While the lower courts found that Wardlaw's claim was frivolous for purposes of Rule 587(B), neither his failure to secure review under Rule 587(B), nor Richardson , prevents similarly situated defendants from presenting non-frivolous claims and seeking immediate review of the trial court's denial of any such claims. Finally, a defendant's inability to secure interlocutory review of a double jeopardy claim does not preclude that defendant from raising the claim in a post-sentence appeal.
In sum, per its plain and unambiguous language, Rule 311(a)(6) affords an interlocutory appeal as of right from orders that award a new trial. One cannot award that which is not sought. Consequently, a new trial is awarded only when the court grants a party's motion for a new trial. When the new trial flows from the declaration of a mistrial, the court has not awarded a new trial. Here, the trial court declared a mistrial; it did not grant a motion for a new trial. Accordingly, Wardlaw did not appeal from an order awarding a new trial, and the Superior Court correctly determined that Wardlaw was not entitled to an interlocutory appeal under Pennsylvania Rule of Appellate Procedure 311(a)(6). The Superior Court's order quashing the appeal is affirmed.
Chief Justice Baer and Justices Saylor, Todd, Dougherty and Mundy join the opinion.
Justice Dougherty files a concurring opinion in which Justice Wecht joins.
Justice Donohue files a dissenting opinion.
JUSTICE DOUGHERTY, concurring
I join the majority's well-reasoned opinion in its entirety. I write only to suggest it may be prudent to instruct our rules committees — more specifically, our Appellate and Criminal Procedural Rules Committees — to consider devising some mechanism for providing notice to the Attorney General in cases, like this one, where a county district attorney seeks to concede a legal issue before an appellate court.
Our Constitution and statutory laws provide for the election of a district attorney in each of our Commonwealth's sixty-seven counties. See, e.g. , PA. CONST. art. IX, § 4 (county officers shall consist of, inter alia , district attorneys); 71 P.S. § 732-206(a) ("the district attorney shall be the chief law enforcement officer for the county in which he is elected"). These district attorneys and their assistants generally prosecute criminal cases which arise in the county from which the district attorney is elected, and they do so "in the name of the Commonwealth[.]" 16 P.S. § 1402(a). However, it is solely the Attorney General who acts as "the chief law enforcement officer of the Commonwealth[,]" 71 P.S. § 732-206(a), and he is the only prosecutor elected on a statewide basis, see PA. CONST. art. IV, § 4.1 ("[a]n Attorney General shall be chosen by the qualified electors of the Commonwealth").
Ordinarily, the interests of county district attorneys and the Attorney General are in alignment, such that the representation by one prosecutorial body in a criminal appeal naturally serves the interests of the others. But experience has taught us that this is not always the case. District attorneys, who in theory represent the Commonwealth as a whole but in reality are answerable for their prosecutorial decisions only to their county constituents, may at times adopt a position that is not shared by other district attorneys or the Attorney General. This incongruity can become problematic when the effect of the resolution of a legal issue in an appeal will extend beyond the physical boundaries of any one county. In these instances, a district attorney's outlier position on a legal issue, if accepted by the appellate court, will bind all other prosecutorial entities throughout the Commonwealth regardless of whether they agreed with that position.
This case serves as just one recent example of the potential harm that can arise under the current system. In its brief and at oral argument, the district attorney in this matter joined the appellant in asking us to reverse the Superior Court on the discrete legal issue presented. Had we adopted this shared position — rather than overwhelmingly rejected it — we would have tied the hands of all other prosecutors across the Commonwealth. It seems to me that, to ensure the Commonwealth's interests are adequately represented when a legal issue in an appeal has statewide implications and a county district attorney does not intend to advocate in opposition to the defense position, the district attorney should be required to communicate that decision to the Attorney General. Such a process would afford the Attorney General the opportunity to make a more timely and reasoned assessment of whether his involvement in the case is warranted, either by means of intervention or as an amicus curiae . And, such a process would be neither novel within this Commonwealth, see, e.g. , Pa.R.A.P. 521 (imposing a duty on a party who draws into question the constitutionality of a statute in any matter in an appellate court "to give immediate notice in writing to the Attorney General ... of the existence of the question"), nor outside of it, see generally Katherine Shaw, Friends of the Court: Evaluating the Supreme Court's Amicus Invitations , 101 CORNELL L. REV. 1533, 1565 (2016) (describing the United States Supreme Court's practice of appointing amici and observing that "[m]any amicus invitations involve what can be broadly described as confessions of error — either an error by the government itself, as where the Solicitor General's office decides to disavow a position taken by litigators below, or an error by the lower court or courts").
The dissent believes we should not be concerned when a county district attorney's views on a legal issue in an appeal align with the defense, because "[t]he prosecutor's duty to seek justice trumps his or her role as an advocate to win cases for the Commonwealth." Dissenting Opinion at 959 n.6 (internal quotations and citation omitted). Respectfully, the issue is not about winning cases or criticizing prosecutors who make good-faith concessions in the interests of justice; it's about ensuring an adequate opportunity for the presentment of competing sides to a legal issue before the appellate tribunal that must decide it, as contemplated by our adversary system's design.
The Majority maintains that this interpretation is grammatically unsound because "awarding" functions as an adjective under this structure. Majority Op. at 946 n.6. The Majority misapprehends the significance of my observation in this regard. The Majority finds that "award" contemplates an action that fulfills a preceding request because under Rule 311(a)(6) "an order" is the subject, with "a party to the action ... the implied indirect object that receives the benefit of the action." Id . at 947.
But by examining the "order" as the subject of the relevant sentence, the Majority loses sight of what Rule 311(a) does. It states that "An appeal may be taken from" qualifying orders. The Rule establishes the circumstances in which a party may take an interlocutory appeal as of right from a non-final order. As further discussed in the body of this opinion, focusing on the perceived need for a "beneficiary" relationship with respect to the parties at the trial court level serves to diminish the fact that from Wardlaw's perspective it does not matter how a new trial is "awarded."
Furthermore, nothing in my analysis requires "awarding" to be something other than a verb. Indeed, as noted infra at n.4, the Majority cites a definition of the verb "to award" that includes something that is "needed." By narrowly focusing on whether one of the parties requested a new trial, the Majority loses sight of the fact that the trial judge determined that a new trial was "needed" and hence was "awarded." As a result, Wardlaw may take an appeal from that order.
I recognize there already exists an avenue through which the Attorney General, or any interested party, such as the Pennsylvania District Attorneys Association, may participate as amicus curiae in an appeal. See Pa.R.A.P. 531. However, this rule requires that the amicus brief "must be filed on or before the date of the appellant's filing" where it does "not support the position of any party[.]" Pa.R.A.P. 531(b)(4). If the Attorney General is not aware that a county district attorney intends to concede a legal issue in a given appeal, and the Attorney General disagrees with that position (i.e. , he "will not support the position of any party"), the deadline for filing a timely amicus brief may very well pass before the Attorney General even realizes his involvement was necessary.
Nobel Prize Facts , THE NOBEL PRIZE, https://www.nobelprize.org/prizes/facts/nobelprize-facts.
Accordingly, while I join the majority's excellent opinion in full, I would also take the opportunity to formally invite the relevant rules committees to give this matter due consideration.
Justice Wecht joins this concurring opinion.
JUSTICE DONOHUE, dissenting
My learned colleagues in the Majority present a compelling argument that the term "awarded" usually contemplates a benefit conferred upon request. But that usage is by no means universal as the term is readily understood to encompass something that the recipient neither wanted nor requested. In context of this dispute, where the trial court ordered a mistrial based on the jury's acquittal of the attempted homicide counts and failure to reach a verdict on the remaining charges, I would hold that a new trial was "awarded" in lieu of granting Wardlaw's objection to the mistrial. Additionally, the Majority's assertion that Wardlaw has another avenue to litigate his claim that the Commonwealth failed to present sufficient evidence at his first trial is a remedy that exists only in theory. Rule 311(a)(6) is the only mechanism available for Wardlaw to present his claim because the United States Supreme Court holds that the government's asserted failure to present sufficient evidence at trial does not implicate double jeopardy when the trial court declares a mistrial. Thus, Rule 311(a)(6) provides a remedy that otherwise would not exist. We should employ the interpretation of its language that gives effect to its purpose.
I.
As the Majority explains, neither party has offered a textual analysis of the plain language. For ease of reference, I reproduce the relevant text.
(a) General rule. --An appeal may be taken as of right and without reference to Pa.R.A.P. 341(c) from:
....
(6) New trials .--An order in a civil action or proceeding awarding a new trial, or an order in a criminal proceeding awarding a new trial where the defendant claims that the proper disposition of the matter would be an absolute discharge or where the Commonwealth claims that the trial court committed an error of law.
Pa.R.A.P. 311.
The Majority observes that Rule 311(a)(6)
is triggered only upon an "award" [and] the question becomes whether the rule applies only to those orders that fulfill a specific request by a party for a new trial or whether a sua sponte declaration of a mistrial, where there is no specific request by a party, also constitutes an order "awarding" a new trial.
....
Per Black's Law Dictionary, the verb "award" means "[t]o grant by formal process or by judicial decree." Award , BLACK'S LAW DICTIONARY (11th ed. 2019). Thus, "award" ordinarily is synonymous with the verb "grant," but only to the extent that these two words logically overlap. "Grant" most often means "[t]o permit or agree to [or] to approve, warrant, or order." Grant , BLACK'S LAW DICTIONARY (11th ed. 2019). Typically, "award" is a ditransitive verb; it indicates that the subject acts upon an object and that another object benefits from the action. In Rule 311(a)(6), "an order" is the subject; "a new trial" is the direct object; and a party to the action is the implied indirect object that receives the benefit of the action. Accordingly, only those definitions of "grant" that contemplate such a beneficiary relationship also serve to define "award."
Majority Op. at 945–47 (footnote omitted).
This analysis effectively ignores the Rule's prefatory language. We could just as easily say that the sentence at issue is: "An appeal may be taken as of right ... from an order in a criminal proceeding awarding a new trial[.]" Thus, "appeal" is the subject, "taken" is the verb, and the orders appealed from are the direct objects, i.e., the orders that qualify for an appeal as of right.
Accordingly, I do not find it helpful to view this issue in syntactical terms.1 And "award" can clearly function as both verb and noun. For the latter usage, there is an obvious parallel to arbitration. See, e.g. , 42 Pa.C.S. § 7321.25(a) ( "Upon motion made ... after the movant receives notice of the award under section 7321.20 (relating to award) or within 90 days after the movant receives notice of a modified or corrected award under section 7321.21 ... the court shall modify or correct the award..."). An "award awarding" is perhaps not pleasing to the eye, but it is a perfectly valid phrase. See, e.g. , Duncan v. State, Dep't of Transp. & Dev. , 615 So. 2d 305, 308 (La. 1993) ("This ‘award awarding compensation’ element may be satisfied by ...."). A party dissatisfied with an arbitrator's award has still been "awarded" something, even if it is not exactly what the party wanted. The same is true here. Wardlaw wanted the jury to continue deliberating, but instead a new trial was awarded.
Furthermore, the everyday meaning of "awarding" is not limited to something conferred only upon request. As a matter of common parlance, a person can be "awarded" something they do not want. For example, the Nobel Prize website states, "Jean-Paul Sartre, awarded the 1964 Nobel Prize in Literature, declined the prize because he had consistently declined all official honours."2 The organization lists another recipient who declined the prize: "Le Duc Tho, awarded the 1973 Nobel Peace Prize jointly with US Secretary of State Henry Kissinger." As these examples show, it is readily understood that something can be "awarded" notwithstanding the fact that the recipients did not want it, did not request it, and refuse to accept it. That awards can be conferred (or "awarded") posthumously further demonstrates the point that someone can be "awarded" something without any input whatsoever from the recipient. Therefore, awards may be given based purely on circumstances as decided by the entity with the power to award. The new trial awarded here falls into that category: it resulted from the trial judge's power to do so, based on his own opinion, and without reference to what the participants wanted. "[T]rial judges may declare a mistrial whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for doing so." Renico v. Lett , 559 U.S. 766, 773–74, 130 S.Ct. 1855, 176 L.Ed.2d 678 (2010) (quotation marks and citation omitted).
Responding to this example, the Majority acknowledges that "Outside of the legal realm, one can be ‘awarded’ that which he or she does not request personally." Majority Op. at 947 n.8. The fact that the ordinary usage encompasses this situation goes a long way towards establishing an ambiguity. 1 Pa.C.S. § 1903(a) ("Words and phrases shall be construed according to rules of grammar and according to their common and approved usage[.]").
The Majority additionally observes that in this case "neither of the parties performed any act that merited a conferral of a benefit upon them." Majority Op. at 948 n.8. Furthermore, in the Nobel Prize example a request precedes the act of "awarding," because a qualified person must request that its committee award the Prize. Id . These responses overlook the precipitating act that justified the award: the jury informing the judge that it could not reach a consensus on the remaining counts. Based on this act, the judge then assumed the role of both nominator and awarder, serving as the party that "initiates th[e] deliberative process." Id . The fact that the only entity with the power to "nominate" and "award" rested in one person is not dispositive.
The Majority cites a dictionary definition of the verb "award" to mean "to confer or bestow as being deserved or merited or needed". Award , Merriam-Webster Online Dictionary . And as the definition of award includes that which is needed, the fact that the trial judge initiated a deliberative process and determined that a mistrial was manifestly necessary, i.e. needed, establishes that a new trial was awarded.
Thus, I conclude that the language "an order in a criminal proceeding awarding a new trial" when read in conjunction with the prefatory language is ambiguous. It is susceptible to the construction employed by the Majority and it is likewise amenable to the construction that the trial court "awarded" a new trial notwithstanding the fact Wardlaw did not want it and tried to refuse it. Snyder Bros., Inc. v. Pa. Pub. Util. Comm'n , 650 Pa. 49, 198 A.3d 1056, 1073 (2018) ("If a statutory term, when read in context with the overall statutory framework in which it appears, has at least two reasonable interpretations, then the term is ambiguous."). I would therefore hold that Rule 311(a)(6) is ambiguous.
The Majority suggests that our interpretation of the phrase "order awarding a new trial" "will affect the appealability of certain interlocutory orders in civil cases as well." Majority Op. at 952 n.15. The Majority's belief that the same analysis would apply to civil and criminal cases alike is undermined by the fact that the language at issue here applies only where the defendant "claims that the proper disposition of the matter would be an absolute discharge[.]" Pa.R.A.P. 311(a)(6). The language applicable to new trials in a civil case does not contain that qualification, and statutory construction principles require a court to presume that the drafters "intended to avoid mere surplusage," Allegheny Cty. Sportsmen's League v. Rendell , 580 Pa. 149, 860 A.2d 10, 19 (2004). Thus, I do not share the assumption that "interpret[ing] the phrase ‘awarding a new trial’ in the context of criminal proceedings as encompassing both mistrial orders and orders granting a motion for a new trial ... would also afford civil litigants an appeal as of right from all orders declaring a mistrial." Majority Op. at 952–53 n.15.
As the Rule separates civil and criminal cases, and further qualifies criminal cases by reference to "absolute discharge," that language is presumed to serve some purpose. I note that this Court has stated that the purpose of the Rule is to ensure that a defendant does not "stand trial again, if the already completed trial demonstrates his innocence" because to do so would be "a needless hardship." Commonwealth v. Liddick , 471 Pa. 523, 370 A.2d 729, 731 n.2 (1977) (citation omitted). By declaring a mistrial sua sponte over the defendant's objection, the jury did not render a decision on whether the defendant is guilty or not guilty. By permitting an appeal as of right the Rule seeks to prevent the hardship of a second trial where the Commonwealth failed to present sufficient evidence the first time. In this regard, the liberty interests at stake in criminal trials versus civil trials are so disparate that I do not agree that the provisions "concern the same subject[.]" Majority Op. at 953 n.15.
II.
Having concluded that the term is ambiguous, other considerations must be taken into account to determine the intent of the Rule. As with statutes enacted by the General Assembly, we employ the Statutory Construction Act by considering, among other things, the following:
(1) The occasion and necessity for the statute.
(2) The circumstances under which it was enacted.
(3) The mischief to be remedied.
(4) The object to be attained.
(5) The former law, if any, including other statutes upon the same or similar subjects.
(6) The consequences of a particular interpretation.
(7) The contemporaneous legislative history.
(8) Legislative and administrative interpretations of such statute.
1 Pa.C.S. § 1921(c)(1)–(8). See Pa.R.A.P. 107 (stating that the statutory rules of construction are applicable to interpretation of the Rules of Appellate Procedure).
The occasion and necessity for the operative language, as well as the mischief to be remedied, are particularly apt considerations. The two are linked because, absent proceeding to the merits of his appeal, the Commonwealth will be permitted to retry Wardlaw even if it failed to present sufficient evidence during the first trial. As the Majority recognizes, that is what Rule 311(a)(6) is designed to prevent. Majority Op. at 950–51 (agreeing that " Rule 311(a)(6) aims to prevent the needless hardship that would arise from retrying a defendant when retrial is in fact barred."). Notably, both the Commonwealth and Wardlaw agree that the Superior Court erred in quashing this appeal.
I do not share the criticism of the Commonwealth raised at oral arguments and as reflected in Justice Dougherty's concurring opinion. See Concurring Op. (Dougherty, J.) (suggesting that the Commonwealth should be required to inform the Attorney General when it is not in opposition to the defense position). "The prosecutor's duty to seek justice trumps his or her role as an advocate to win cases for the Commonwealth." Commonwealth v. Chmiel , 643 Pa. 216, 173 A.3d 617, 631 (2017) (Donohue, J., concurring). The Commonwealth plainly believes that the just and legally proper result is to allow this appeal. We should not criticize their efforts to seek justice. The Commonwealth's position was not a secret and this Court has, on other occasions, invited the Attorney General to file amicus briefs. See Commonwealth v. Brown , 649 Pa. 293, 196 A.3d 130, 143 (2018) ("In accordance with our invitation to do so, the Attorney General filed an amicus brief.").
Simultaneously, as we noted in Brown , a concession of error is not dispositive. However, I stress here that the Commonwealth is not confessing any error. The Commonwealth vigorously maintains that Wardlaw must lose on the merits. Commonwealth's Brief at 12 ("[T]he Commonwealth provided extensive analysis as to why appellant should be subject to retrial on the charges for which the jury deadlocked."). The Commonwealth simply believes, as I do, that the Superior Court erroneously quashed Wardlaw's appeal.
This policy goal is evident in the history of Rule 311(a)(6). The Superior Court has remarked that the former version was "based on Commonwealth v. Gabor, 209 Pa. 201, 58 A. 278 (1904)." Commonwealth v. Williams , 357 Pa.Super. 462, 516 A.2d 352, 353 (1986). In Gabor the appellant was indicted for murder but convicted of manslaughter. However, the verdict was entered and the jury discharged in Gabor's absence. At sentencing, Gabor moved for an arrest of judgment and discharge from custody. "The court refused the motion, but set aside the verdict and ordered a new trial. This action is the ground of the appeal." Gabor , 58 A. at 279. The Commonwealth moved to quash, arguing there was not a final judgment. We disagreed, as "the order for another trial is so far in the nature of a final judgment that we think it best to consider and determine the appeal upon its merits." Id . ; see also Commonwealth v. Chenet , 473 Pa. 181, 373 A.2d 1107, 1108 n.1 (1977) ("We have recently made clear that an interlocutory order denying a motion in arrest of judgment, based on a claim of insufficient evidence, when a new trial has been granted, is appealable.") (citing Commonwealth v. Liddick , 471 Pa. 523, 370 A.2d 729, n.2 (1977) ).
I agree with Wardlaw and the Commonwealth that Liddick is instructive. In that case, Liddick was found guilty of murder. Following post-trial motions, the court granted Liddick's motion for a new trial but denied his motion seeking arrest of judgment. Cross appeals were taken. We refused the Commonwealth's request to quash Liddick's appeal from the denial of his motion in arrest of judgment.
The Majority distinguishes the case by noting that Liddick requested a new trial. However, that point would appear to be of limited relevance because Liddick was not appealing the order awarding him a new trial but rather was appealing the court's failure to grant his request for total discharge. The Commonwealth separately appealed from the order granting a new trial, which it is permitted to do per Rule 311(a)(6). See Commonwealth v. Andre , 17 A.3d 951, 957–58 (Pa. Super. 2011) (noting that the Commonwealth may appeal as of right an order awarding a new trial when claiming that the court committed an error of law). Indeed, in addressing the Commonwealth's attempt to quash Liddick's appeal, we remarked:
The Commonwealth seeks to have defendant's appeal quashed on the basis that, new trial having been granted and hence judgment of sentence not yet having been entered, the order below is interlocutory and non-appealable. ... ‘(t)o require such a defendant to stand trial again, if the already completed trial demonstrates his innocence, is a needless hardship.’ That observation is particularly apt in this situation where the case is already before us because of the Commonwealth's cross appeal.
Liddick , 370 A.2d at 731 n.2 (citation omitted).
Our reference to ameliorating the potential "needless hardship" caused by subjecting a defendant to a second trial as being "particularly apt" because the case was already before the Court suggests that Liddick would have otherwise been entitled to an appeal. The Commonwealth's separate appeal was simply an additional reason to review Liddick's claims beyond the "needless hardship," which itself constituted a sufficient reason to consider the merits of the appeal.
But even setting that point aside, the Majority does not dispute that the mischief to be remedied is ensuring that a defendant is not forced to go through another trial when he or she contends that discharge is warranted. "Undeniably, Liddick and Chenet support the proposition that Rule 311(a)(6) aims to prevent the needless hardship that would arise from retrying a defendant when retrial is in fact barred." Majority Op. at 950. This raises two further points. First, the "needless hardship" exists regardless of how it comes to be that a new trial takes place. By whatever means a mistrial is entered, the defendant ends up being forced to participate in another trial despite a claim that he or she should be discharged due to the prosecution's failure to produce sufficient evidence. I fail to see how it is any less of a hardship when the trial court, over the defendant's objections, declares a mistrial. Indeed, to the extent that appellate courts exist in part to provide a check on trial courts, it is counterproductive to allow a trial judge to evade appellate review by declaring a mistrial over the defendant's objections.
The Majority is correct to say that a new trial will not necessarily follow a mistrial. See Majority Op. at 952 n.14. But that same point applies even if the Commonwealth were to somehow seek and receive a new trial. In this latter circumstance retrial is not a fait accompli as the Commonwealth could decide that a retrial is not worth pursuing for whatever reason. Yet in the latter case the Majority holds that an appeal may proceed under Rule 311(a)(6) because a party requested the new trial, even though the trial may never happen.
Furthermore, I note that the probable result of the Majority's holding is that this provision will apply only where the Commonwealth has requested a new trial. If a defendant requests total discharge but the judge decides that only a new trial is warranted, then the defendant has not been "awarded" anything per the Majority's analysis. And, of course, if the defendant requests a new trial—thereby creating the conditions to permit an appeal under the Majority's interpretation of Rule 311(a)(6) —but does not request total discharge, then his appeal will doubtlessly fail: how did the trial court err by giving the defendant exactly what he requested? In that circumstance, the very condition that authorizes the appeal dooms his claim. By receiving what was requested, there is nothing to appeal. As a result, the Majority's interpretation largely renders that part of Rule 311(a)(6) inoperable.
The Majority argues that Liddick establishes that the language at issue in Rule 311(a)(6) will continue to have some force because in Liddick the defendant sought both a new trial and total discharge. However, Liddick did not involve the defendant asserting that discharge was warranted in lieu of the court declaring a mistrial, as Liddick was found guilty. Thus, there was no impediment to Liddick seeking both avenues of relief following his conviction; the new trial simply represented the less preferable option from Liddick's perspective. The same does not apply here, as once the judge stated his intent to declare a mistrial Wardlaw could either consent to the mistrial or object and ask the court to instruct the jury to keep deliberating.
This is obviously not a suggestion that trial judges would declare a mistrial to prevent a defendant from appealing. But I do not think it is controversial to state that the cases in which a defendant intends to proceed with an appeal under Rule 311(a)(6) are likely to be cases that prompt the court to grant a mistrial sua sponte. Discharge is an extreme remedy and trial judges are, and should be, wary of taking that drastic step.
Relatedly, I do not share the Majority's fear that reversing the Superior Court will result in a torrent of litigation. It will presumably be the rare case where a defendant elects to delay retrial by pursuing an appeal, given that the relevant standard is quite forgiving to the Commonwealth. Additionally, many defendants facing serious charges are likely to remain incarcerated pending appeal and the retrial. Thus, the delays caused by pursuing an appeal and the fact that such appeals will rarely succeed will serve to disincentivize frivolous appeals.
Finally, the fact that few precedents are directly on point is itself probative. Any swell of litigation would have likely happened long ago given that the rule traces its roots to a case decided over 115 years ago. Along these same lines, the parties do not cite Commonwealth v. Stahl , 175 A.3d 301 (Pa. Super. 2017), wherein the Superior Court noted, albeit without explication of Rule 311(a)(6) ’s text, that the appellant's appeal "from [the] trial court's order denying his motion for judgment of acquittal following the court's declaration of a mistrial after Appellant's trial for rape and related offenses" was properly before the Court. Id. at 302. As in this case, "After determining that the jury was hopelessly deadlocked, the trial court declared a mistrial." Id . Without further comment or citation, the panel noted, "Under Pa.R.A.P. 311(a)(6), the order denying Appellant's motion for judgment of acquittal was appealable by right." Id . at 303. The Stahl case did not open the floodgates as the case has been cited only ten times, none of which involved an interlocutory appeal.
Instead of addressing the limited empirical evidence we have, the Majority responds that the Rule is not limited to serious charges or incarcerated defendants, thereby suggesting that this case will result in significantly more appeals. It is true that the Rule applies regardless of the severity of charges, but that has always been the case. Why would we only now see a large increase in litigation? In any event, even if the Majority's predictions would come to pass the solution is to amend the Rule, not ignore it.
Second, the Majority claims that Rule 311(a)(6) "is merely one procedural protection against such injustice. A distinct procedural rule allows for interlocutory appeals for those who claim that double jeopardy bars retrial." Majority Op. at 953. The Majority points to Pa.R.A.P. 587(b), which permits a defendant to seek dismissal on double jeopardy grounds. The Majority seemingly suggests that Wardlaw could attempt to invoke Rule 587(b) as an adequate substitute for an appeal as of right. See id .
However, as the Majority recognizes elsewhere, the United States Supreme Court has held that a double jeopardy claim does not exist where the prosecution fails to present sufficient evidence at the first trial; more precisely, the jury's inability to reach a verdict is deemed a "nonevent" because it is impossible to determine why the jury could not reach a verdict. In Richardson v. United States , 468 U.S. 317, 104 S.Ct. 3081, 82 L.Ed.2d 242 (1984), the Court related the procedural history as follows:
The jury trying petitioner acquitted him of one of several counts, but was unable to agree as to the others. The District Court declared a mistrial as to these counts of the indictment and set them down for retrial. Petitioner moved to bar his retrial, claiming that a second trial would violate the Double Jeopardy Clause of the Fifth Amendment because evidence sufficient to convict on the remaining counts had not been presented by the Government at the first trial.
Id . at 318, 104 S.Ct. 3081.
The high Court first held that under the relevant statute, 28 U.S.C. § 1291, the District Court's ruling denying the motion to bar retrial was not final and thus had to fall under the collateral order doctrine. This meant that the double jeopardy claim had to be at least "colorable." In a footnote, the Court stated:
It follows logically from our holding today that claims of double jeopardy such as petitioner's are no longer "colorable" double jeopardy claims which may be appealed before final judgment. A colorable claim, of course, presupposes that there is some possible validity to a claim. Since no set of facts will support the assertion of a claim of double jeopardy like petitioner's in the future , there is no possibility that a defendant's double jeopardy rights will be violated by a new trial, and there is little need to interpose the delay of appellate review before a second trial can begin.
Id . at 326 n.6, 104 S.Ct. 3081 (citations omitted, emphasis added).
Thus, Richardson had a "colorable" double jeopardy claim only because there was not a definitive high Court ruling on the legal question. But post- Richardson , a claim that the prosecution failed to present sufficient evidence is not a colorable claim because the prosecution's failure to present sufficient evidence does not violate double jeopardy. As the high Court has stated in another case, a jury's failure to reach a verdict is deemed a "nonevent." See Yeager v. United States , 557 U.S. 110, 120, 129 S.Ct. 2360, 174 L.Ed.2d 78 (2009) ("[F]or double jeopardy purposes, the jury's inability to reach a verdict on the insider trading counts was a nonevent[.]"). How, then, can Wardlaw invoke Rule 587 and present a non-frivolous argument that his retrial is barred under double jeopardy for failure to present sufficient evidence during the first trial?
The answer is that he cannot. Thus, in discerning the drafters’ intent in authorizing an appeal from "an order in a criminal proceeding awarding a new trial where the defendant claims that the proper disposition of the matter would be an absolute discharge," I would hold that in resolving the ambiguity we must follow the interpretation that gives the language teeth. We should allow this appeal precisely because there is no other viable avenue to present this type of claim. Rule 311(a)(6) permits the defendant to appeal where, as here, he claims he was entitled to total discharge. That language supplies a remedy that would not otherwise exist, and which does not currently apply under Rule 587. The ambiguity should be resolved in favor of the relief requested by both Wardlaw and the Commonwealth and the case should be remanded to the Superior Court to decide the merits of Wardlaw's sufficiency claim. I therefore respectfully dissent.
The Majority observes that Rule 587 could apply under the Pennsylvania Constitution. See, e.g. , Commonwealth v. Johnson , ––– Pa. ––––, 231 A.3d 807, 819 (2020) ("Before September 1992, Pennsylvania's double jeopardy protections had been viewed as coextensive with those of the Fifth Amendment in light of identical textual and policy considerations.") (quotation marks and citations omitted). However, I view the rule-based right to an appeal as supplying a remedy notwithstanding whether the Pennsylvania Constitution's double jeopardy protections would otherwise require the same.
Furthermore, even if this Court were to hold that the Pennsylvania Constitution offered more protection in this situation than its federal counterpart, the fact that the defendant could theoretically achieve relief through that motion or "in a post-sentence appeal," Majority Op. at 954 n.17, would frustrate the Rule's purpose. The Rule is designed to eliminate the "needless hardship" caused by subjecting the defendant to a retrial. A defendant who successfully persuades an appellate panel that the evidence at the first trial was insufficient and thus retrial was in fact barred under our charter's double jeopardy protections has gone through the ordeal of a new trial, conviction, and sentencing, not to mention the time and expense it takes to prepare for trial and litigate any subsequent appeal. To say that this Rule is "merely one procedural protection against such injustice," Majority Op. at 953, is true only to the extent that we ignore those hardships.