Does PA.R.A.P. 311(a)(6) permit an interlocutory appeal as of right when the basis for a new trial is a hung jury?
Commonwealth v. Wardlaw, 2019 WL 6792750 (Pa. Super. 2019) (unreported), allocatur granted June 8, 2020, appeal docket 15 WAP 2020
The Pennsylvania Supreme Court granted allocatur in this case to determine whether the Superior Court erred in quashing Wardlaw’s interlocutory appeal from an order denying a motion for judgment of acquittal filed after the trial court declared a mistrial based upon a deadlocked jury, even though Pa.R.A.P. 311(a)(6) permits 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….”
As the Superior Court held in Commonwealth v. Williams, 516 A. 2d 352, 353-354 (Pa. Super. 1986), an interlocutory appeal as of right in a criminal case under Pa. R.A.P. 311(a)(6) is permitted if an order denies a motion in arrest of judgment following a trial that results in a hung jury; the rationale for the rule:
[I]s based on Commonwealth v. Gabor, 209 Pa. 201, 58 A. 278 (1904) in which the defendant appealed from an order granting a new trial. The Commonwealth sought to quash the appeal because there was no final judgment. The Supreme Court rejected this argument, stating that: “as the appellant claims to be entitled on the record to an absolute discharge, 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 on its merits.” Id. at 203, 58 A. 278. Similarly, in Commonwealth v. Liddick, 471 Pa. 523, 370 A.2d 729 (1977) the Supreme Court permitted defendant to appeal a post-verdict order granting a new trial but denying a motion in arrest of judgment. The Court rejected the Commonwealth’s argument that defendant’s appeal should be quashed as interlocutory, finding that Pa.R.A.P. 311(b) (which contained language similar to the present rule) permitted such an appeal and that “[t]o require such a defendant to stand trial again, if the already completed trial demonstrates his innocence, is a needless hardship.” Id. at 527 n. 2, 370 A.2d at 731 n. 2 (quoting comment d to § 1.3 of the A.B.A. Standards on Criminal Appeals [Approved Draft, 1970]).
In quashing the appeal in this case, the Superior Court failed to cite Commonwealth v. Williams, or the Supreme Court precedent in Commonwealth v. Liddick, 370 A.2d 729 (Pa. 1977) on which Commonwealth v Williams relied, and instead relied on Commonwealth v. McPherson, 533 A. 2d 1060,1062 (Pa. Super. 1987), where the Superior Court rejected the argument that the grant of a mistrial due to a hung jury is the equivalent of an award of a new trial that implicates Pa. R.A.P. 311(a)(6):
This [Rule] provides that 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. Such is not the case here as there is no order awarding a new trial. We must disagree with appellant’s argument that the grant of a mistrial due to a deadlocked jury is the equivalent of an award of a new trial. When a mistrial is declared due to a deadlocked jury, no award of a new trial is necessary as retrial follows as of course.
The Supreme Court granted allocatur to examine:
Whether the Superior Court erred as a matter of law in quashing as interlocutory Mr. Wardlaw’s appeal where it was properly taken as of right pursuant to Pa.R.A.P. 311(a)(6); Commonwealth v. Chenet, 373 A.2d 1107 (Pa. 1977) and Commonwealth v. Liddick, 370 A.2d 729 (Pa. 1977) make clear than 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 immediately appealable; and Commonwealth v. McPherson, 533 A.2d 1060 (Pa. Super. 1987)(Per curiam), relied upon by the Superior Court, is plainly inapposite.