from the Order Entered June 15, 2018 In the Court of Common
Pleas of Lycoming County Criminal Division at No(s):
BEFORE: OLSON, J., McLAUGHLIN, J., and PELLEGRINI
[*] , J.
Anthony Kennedy, Jr. appeals from the order denying his
motion to dismiss, which alleged his prosecution violated the
Double Jeopardy Clauses of the United States and Pennsylvania
Constitutions. He argues the trial court abused its
discretion in finding there was a manifest necessity for a
mistrial during his first trial. We affirm.
The trial court set forth the following procedural history:
The Commonwealth charged [Kennedy] with delivery of a
controlled substance, three counts of possession with intent
to deliver a controlled substance, two counts of possession
of a controlled substance, two counts of possession of drug
paraphernalia, and one count of criminal use of a
A jury trial began on December 7, 2017. During the course of
the trial, jurors reported an incident that happened on the
elevator when they were leaving for their lunch break. Before
the elevator doors closed, two of [Kennedy's] female
supporters pushed their way onto the already full elevator.
When the elevator arrived at the lobby, the taller lady (who
was subsequently identified as [Kennedy's] girlfriend,
Alexis Lucas) turned away from the elevator doors and toward
the six or seven jurors who were on the elevator. Ms. Lucas
put her arms out, blocking the jurors and other people who
were on the elevator from exiting. Ms. Lucas did this for
approximately 15 seconds, and then she turned around, walked
out of the elevator, and slammed the outside door.
Court Opinion, filed November 8, 2018, at 1-2 ("1925(a)
court held an in camera hearing, where jurors
expressed that they did not believe they would hold the
incident against Kennedy, were unsure whether they would be
able to fairly consider the credibility of Lucas, questioned
whether Lucas would be in the courtroom, and felt that
Lucas's actions were intimidating:
THE COURT: Would it - would that intimidate any of you to the
point that you think it might impact your judgment for or
against the defendant? One of these women - well that's
the first question. Would it, and there's no right answer
to this, there's just an honest one. Would any of you
feel that because of that it might interfere in your ability
to render a fair - a decision based on the evidence and the
JUROR: No, I reported it solely because I deal with that
every single day when I'm at school, and it's
bullying, and I just - I brought it to the attention of the
Court because it's unacceptable.
THE COURT: Okay. Will you guys hold it against the defendant
THE COURT: Okay.
JUROR: Is there something that we can do that she can't
THE COURT: Well that's the next question. What happens if
she testifies? Are you going to be able to judge her
credibility fair[ly] and impartially? I am not going to put
words in your mouth, but it would be tough for me.
THE COURT: Okay, so we have one yes[. Y]ou can judge it, or
JUROR: If she started talking[, ] I really don't know how
I would feel.
THE COURT: No, my point is, did what she do at this point
cause you concern, or can you listen to her testimony and
judge her credibility and the weight of her testimony the
same way you would someone else, or would you have - would
you feel like you -
JUROR: I just can't answer that right now.
THE COURT: Okay.
JUROR: I don't know.
THE COURT: Okay.
JUROR: I'd have to really think about that.
THE COURT: All right. How about the rest of you?
JUROR: I - I think I would - I would have a tough time
overlooking that, I don't know.
THE COURT: Fair enough. And that's actually what I'm
asking, you actually said it better than I could. Would you
have - we have a couple yeses, and now we have at least three
yeses. Anybody else? At least three yeses. Okay. Fair enough.
That would be difficult to - I would think to overlook it
under these circumstances.
JUROR: It would certainly be an influence, I would have to
say. One, I don't know ...