March 7, 2014
COMMONWEALTH OF PENNSYLVANIA
DONALD CHANEY, JR., Appellant
Appeal from the Judgment of Sentence, January 3, 2013, in the Court of Common Pleas of Erie County Criminal Division at No. CP-25-CR-0000067-2012.
BEFORE: FORD ELLIOTT, P.J.E., DONOHUE AND PLATT, [*] JJ.
FORD ELLIOTT, P.J.E.:
Donald Chaney, Jr. appeals from the judgment of sentence of January 3, 2013, following his conviction of simple assault, aggravated assault (two counts), and possessing instruments of crime. We affirm.
The genesis of these charges occurred the evening of December 12, 2011 at the Knotty Pine Tavern in Erie, Pennsylvania when Appellant entered the Knotty Pine Tavern and approached Nathaniel Overton, who was sitting at the bar watching television. Appellant pulled out a knife, a scuffle ensued and Appellant stabbed and cut Overton multiple times in the left hand, arm and chest. Bar patrons assisted in breaking up the altercation. Appellant and Nathaniel Overton are brothers-in-law. Their relationship had been strained prior to the incident.
Trial court opinion, 6/12/13 at 1.
Following a jury trial, appellant was found guilty of the above charges. On January 3, 2013, appellant received an aggregate sentence of 6½ to 13 years' imprisonment. Post-sentence motions were denied, and this timely appeal followed. Appellant has complied with Pa.R.A.P. Rule 1925(b), and the trial court has filed an opinion.
Appellant has raised the following issue for this court's review: "Whether the trial court erred in denying appellant's motion for a mistrial after evidence of witness tampering had been revealed to the court[?]" (Appellant's brief at 3.)
With regard to the denial of mistrials, the following standards govern our review:
In criminal trials, the declaration of a mistrial serves to eliminate the negative effect wrought upon a defendant when prejudicial elements are injected into the case or otherwise discovered at trial. By nullifying the tainted process of the former trial and allowing a new trial to convene, declaration of a mistrial serves not only the defendant's interests but, equally important, the public's interest in fair trials designed to end in just judgments. Accordingly, the trial court is vested with discretion to grant a mistrial whenever the alleged prejudicial event may reasonably be said to deprive the defendant of a fair and impartial trial. In making its determination, the court must discern whether misconduct or prejudicial error actually occurred, and if so, . . . assess the degree of any resulting prejudice. Our review of the resulting order is constrained to determining whether the court abused its discretion.
Commonwealth v. Hogentogler, 53 A.3d 866, 877-878 (Pa.Super. 2012), appeal denied, ___ Pa. ___, 69 A.3d 600 (2013) (citations omitted). "The remedy of a mistrial is an extreme remedy required 'only when an incident is of such a nature that its unavoidable effect is to deprive the appellant of a fair and impartial tribunal.'" Id. at 878 (citations omitted).
According to appellant, one of his witnesses, Delmar Moore ("Moore"), reported that he overheard a conversation at the Knotty Pine Tavern between a bartender, Tamika Simms ("Simms"), and a bar patron, Samuel Jones, Jr. ("Jones"). (Notes of testimony, 11/9/12 at 16.) Both Simms and Jones testified for the Commonwealth. Moore related that, "She asked Sam if he got his money, Sam said yes, and she said that she had gotten hers too, for testifying." (Id.) Appellant requested that the trial court interrupt the trial to investigate possible witness tampering, which the court refused to do. (Id. at 17, 19.) The Commonwealth represented that it had no information that Simms and Jones were paid to give false testimony. (Id. at 18-19.) In addition, in the trial court's opinion, it was inadmissible hearsay. (Id. at 20.)
First, we agree with the trial court that appellant never actually moved for a mistrial. Rather, he requested that the trial court stop the proceedings to give him time to investigate the matter. The only reference to a mistrial in the record is when defense counsel remarked that if, in fact, Simms and Jones were paid to lie under oath, "That would be a mistrial." (Id. at 18.)
"When an event prejudicial to the defendant occurs during trial only the defendant may move for a mistrial; the motion shall be made when the event is disclosed. Otherwise, the trial judge may declare a mistrial only for reasons of manifest necessity." Pa.R.Crim.P. Rule 605(B). See also Commonwealth v. McAndrews, 494 Pa. 157, 163, 430 A.2d 1165, 1167 (1981) (failure to make a timely request for mistrial waives the issue) (citation omitted); Pa.R.A.P. 302(a) ("Issues not raised in the lower court are waived and cannot be raised for the first time on appeal."). We determine that appellant's failure to make a formal motion for mistrial waives the issue on appeal.
Furthermore, there was no manifest necessity for a mistrial which would allow the trial court to act on its own motion. See Commonwealth v. Kelly, 797 A.2d 925, 936 (Pa.Super. 2002) ("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.") (citations omitted). As the trial court states, this was a conversation allegedly overheard in a bar by a defense witness. The statement is inadmissible hearsay unless it comes within some exception to the hearsay rule, such as a statement against penal interest. At any rate, the trial court offered to allow appellant to recall Simms and Jones and cross-examine them about the matter, and appellant declined. (Notes of testimony, 11/9/12 at 19-20.) There was no credible evidence that Simms and Jones were paid for their testimony, and no reason for the trial court to declare a mistrial.
Judgment of sentence affirmed.