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Commonwealth v. Kennedy

Superior Court of Pennsylvania

August 27, 2019

COMMONWEALTH OF PENNSYLVANIA
v.
JEROME ANTHONY KENNEDY, JR. Appellant

          Appeal from the Order Entered June 15, 2018 In the Court of Common Pleas of Lycoming County Criminal Division at No(s): CP-41-CR-0001924-2016

          BEFORE: OLSON, J., McLAUGHLIN, J., and PELLEGRINI [*] , J.

          OPINION

          MCLAUGHLIN, J.

         Jerome 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.[1] 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 communication facility.[2]
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.

         Trial Court Opinion, filed November 8, 2018, at 1-2 ("1925(a) Op.").

         The 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 law?
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 then?
JUROR: No.
THE COURT: Okay.
JUROR: Is there something that we can do that she can't be here?
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.
JUROR: Yeah.
THE COURT: Okay, so we have one yes[. Y]ou can judge it, or no?
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 ...

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