NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 
 

COMMONWEALTH OF PENNSYLVANIA 

  IN THE SUPERIOR COURT OF 
           PENNSYLVANIA 

             

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J-S39025-22  

v. 

 

 

AUL SOLURI, JR.       

 

Appellant 

 No. 662 MDA 2022 

Appeal from the Order Entered April 20, 2022 
In the Court of Common Pleas of Lackawanna County Criminal Division at 
No(s):  CP-35-CR-0002944-2019 

EFORE:  PANELLA, P.J., BENDER, P.J.E., and NICHOLS, J. 

MEMORANDUM BY BENDER, P.J.E.:         FILED: MARCH 21, 2023 

Appellant, Paul Soluri, Jr., appeals as of right from the trial court’s denial 

of  his  motion  seeking  to  bar  retrial.    Appellant  requested  and  received  a 

mistrial after a police officer informed the jury, in response to a question by 

the prosecutor on re-direct examination, that Appellant was a convicted felon.  

Appellant contends that the prosecutor acted recklessly, thus placing this case 

within  the  ambit  of  the  Pennsylvania  Supreme  Court’s  holding 

in 

Commonwealth  v.  Johnson,  231  A.3d  807,  826  (Pa.  2020),  that 

“prosecutorial  overreaching  sufficient  to  invoke  double  jeopardy  protections 

includes misconduct which not only deprives the defendant of his right to a 

fair trial, but is undertaken recklessly, that is, with a conscious disregard for 

a substantial risk that such will be the result.”  We conclude that a remand to 

the  trial  court  for  compliance  with  Pa.R.Crim.P.  587(b),  which  specifically 

addresses  motions  to  bar  retrial  on  double  jeopardy  grounds,  is  warranted 

     

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because there is an outstanding credibility determination that is critical to the 

parties’ legal arguments. 

We  are  mindful  that  the  current  procedural  posture  involves  untested 

factual  allegations  by  the  Commonwealth.    However,  the  Commonwealth’s 

theory  is  relevant  to  the  events  preceding  the  mistrial,  and  we  therefore 

discuss the facts adduced at Appellant’s jury trial.  Officer Chris Mazzucca was 

surveilling  a  housing  development  when  an  individual  named  Jason  Cole 

aroused his suspicion after entering and exiting apartment 3-B in short order.  

Cole left the development in a vehicle, and Officer Mazzucca and his partner 

pulled  him  over  for  failing  to  use  his  turn  signal.    During  the  traffic  stop, 

officers recovered a firearm, which Cole was prohibited from possessing.  Cole 

was arrested and told investigators that Appellant had recently sold Cole the 

firearm from apartment 3-B.  With Cole’s cooperation, authorities arranged a 

wiretap,  with  Cole  contacting  Appellant  to  purchase  another  gun.1    The 

authorities then procured a search warrant for apartment 3-B.   

When  authorities  arrived  to  serve  the  warrant,  Appellant,  Appellant’s 

paramour  Renita  Shilling,  and  Appellant’s  young  daughter  were  all  present.  

In  the  master  bedroom,  authorities  recovered  six  firearms.    Appellant  was 

thereafter  charged  with  eight  total  counts.    The  first  six  counts  charged  a 

violation of 18 Pa.C.S. § 6105(a)(1), which prohibits persons from possessing 

____________________________________________ 

1  The  Commonwealth  filed  charges  against  Cole,  which  were  severed  from 
Appellant’s trial.  Cole testified at Appellant’s trial.   

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a  firearm  based  on,  inter  alia,  certain  prior  felony  convictions.2    At  count 

seven,  the  Commonwealth  charged  Appellant  with  violating  18  Pa.C.S.  § 

6111(c),  pertaining  to  the  illegal  sale  of  firearms.    The  last  count  was  the 

criminal use of a communication facility, 18 Pa.C.S. § 7512(a), which prohibits 

the use of certain devices, including telephones, to commit felony offenses.   

The mistrial involves the reason that Appellant  was unable to lawfully 

possess  the  six  firearms:  a  prior  felony  conviction.    To  prove  the  charged 

Section 6105 violations, the Commonwealth must establish, as an element of 

the crimes, that Appellant was previously convicted of one of the enumerated 

offenses.  The Commonwealth is not required to accept a stipulation that the 

defendant  has  been  convicted  of  one  of  the  enumerated  offenses.  

Commonwealth v. Jemison, 98 A.3d 1254, 1256 (Pa. 2014) (holding that 

possibility of unfair prejudice is greatly mitigated by a cautionary instruction 

to the jury stating that the prior conviction is admitted only for purposes of 

proving  the  prior-conviction  element).    The  Commonwealth  also  charged 

Appellant  with  other  firearm  offenses  that  do  not  involve  a  prior  criminal 

conviction  as  an  element  of  those  crimes.    Accordingly,  the  Commonwealth 

and  Appellant  agreed  to  sever  the  first  six  counts  from  the  remaining  two 

charges.    See  Commonwealth  v.  Carroll,  418  A.2d  702,  704  (Pa.  Super. 

1980) (severance of Section 6105 charges was required; “Clearly the fact that 

[the] appellant committed the former violent crime[] is of no evidentiary value 

____________________________________________ 

2 The individual counts each pertain to one of the six firearms recovered from 
the master bedroom.    

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firearm’”). 

to the proof of any of the other crimes with which he is so charged; its only 

relevance  is  to  satisfy  the  requirements  of  ‘Former  convict  not  to  own  a 

The  jury,  however,  learned  of  Appellant’s  conviction  during  the 

testimony of Officer Mazzucca, who testified about the bedroom search.  On 

cross-examination,  Appellant  probed  whether  the  officers  attempted  to 

determine if the firearms belonged to Renita Shilling.  Officer Mazzucca replied 

that authorities had run the serial numbers, which did not reflect any owner 

as  there  was  no  record  of  sale  for  the  firearms.    On  re-direct,  the 

Commonwealth  asked,  “Why  didn’t  you  ask  Renita  if  the  guns  belonged  to 

her?”  The officer replied, “Renita didn’t really have anything to do with this.  

We knew [Appellant] was a convicted felon after the --”.  N.T., 2/15/22, at 

207.  The answer was interrupted by Appellant, who requested and received 

a mistrial. 

On  March  18,  2022,  Appellant  filed  a  motion  seeking  to  bar  the 

Commonwealth  from  proceeding  with  a  second  jury  trial  pursuant  to  the 

Pennsylvania Constitution’s double jeopardy protections.  See PA. CONST. art. 

1, § 10 (“[N]o person shall, for the same offense, be twice put in jeopardy of 

life or limb[.]”).  The trial court held a hearing on April 12, 2022, followed by 

an order denying relief on April 20, 2022.  Appellant filed a notice of appeal 

and complied with the trial court’s order to file a Pa.R.A.P. 1925(b) statement.  

The trial court filed an opinion, and Appellant raises one issue for our review: 

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Whether  [the]  trial  court  abused  its  discretion  in  denying 
Appellant’s motion to dismiss and bar retrial on the basis of double 
jeopardy when the prosecutor acted in a reckless manner and with 
reckless  indifference  amounting  to  prosecutorial  overreaching 
sufficient  to  invoke  double  jeopardy  protections  under  Article  1, 
Section 10 of the Pennsylvania Constitution[.] 

Appellant’s Brief at 2. 

 

Our standard of review is well-settled: 

An  appeal  grounded  in  double  jeopardy  raises  a  question  of 
constitutional  law.    This  [C]ourt’s  scope  of  review  in  making  a 
determination on a question of law is, as always, plenary.  As with 
all questions of law, the appellate standard of review is de novo.  
To the extent that the factual findings of the trial court impact its 
double jeopardy ruling, we apply a more deferential standard of 
review to those findings. 

Where  issues  of  credibility  and  weight  of  the  evidence  are 
concerned, it is not the function of the appellate court to substitute 
its judgment based on a cold record for that of the trial court.  The 
weight  to  be  accorded  conflicting  evidence  is  exclusively  for  the 
fact finder, whose findings will not be disturbed on appeal if they 
are supported by the record. 

Commonwealth  v.  Sanchez,  262  A.3d  1283,  1288  (Pa.  Super.  2021) 

(cleaned up). 

As  previously  stated,  Appellant  heavily  relies  upon  Johnson,  wherein 

our  Supreme  Court  again  extended  the  scope  of  Article  I,  Section  10  in 

comparison to its federal counterpart.3  Appellant’s fundamental argument is 

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3 Generally stated, as applied to situations where the defendant requests and 
receives  a  mistrial  due  to  prosecutorial  acts,  the  United  States  Constitution 
bars retrial only if the prosecutor “overreached” in the sense of “goading” the 
defendant into requesting the mistrial.  Oregon v. Kennedy, 456 U.S. 667 
(1982).  Our Supreme Court departed from Kennedy in Commonwealth v. 
Smith,  615  A.2d  321,  325  (Pa.  1992),  which  held  that  our  Constitution 
“prohibits  retrial  of  a  defendant  not  only  when  prosecutorial  misconduct  is 
(Footnote Continued Next Page) 

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that the Commonwealth acted recklessly for purposes of the Johnson holding 

because  the  prosecutor  did  not  inform  Officer  Mazzucca  of  the  parties’ 

agreement to sever the Section 6105 counts.  In support of this factual claim, 

Appellant  cites  the  trial  judge’s  comment  at  the  hearing,  which  established 

that  Officer  Mazzucca  asked  the  trial  judge  after  the  mistrial  was  declared 

what  he  did  wrong.    Appellant  argues  that  this  demonstrates  that  the 

Commonwealth  failed  to  adequately  prepare  its  witness.    In  terms  of 

Johnson, Appellant submits that the failure to do so constituted a conscious 

disregard  of  the  substantial  risk  that  Appellant  would  be  deprived  of  a  fair 

trial.  As to the requirement to show that the reckless acts deprived Appellant 

of a fair trial, Appellant avers that the charges were severed precisely because 

introducing the criminal history is so unduly prejudicial that a fair trial cannot 

occur if the jury is made aware of the defendant’s criminal history.  Appellant’s 

Brief at 22 (“It is unfathomable that a prosecutor would agree to a bifurcated 

trial to assure no mention of Appellant’s criminal history in front of a jury, but 

then fail to tell her witnesses not to bring it up.”). 

The  Commonwealth  responds  that  there  is  no  evidence  to  support 

Appellant’s  assertion  that  it  failed  to  tell  Officer  Mazzucca  not  to  mention 

Appellant’s  criminal  history.    The  Commonwealth  cites  its  prosecutor’s 

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intended to provoke the defendant into moving for a mistrial, but also when 
the  conduct  of  the  prosecutor  is  intentionally  undertaken  to  prejudice  the 
defendant to the point of the denial of a fair trial.”  In Johnson, our Supreme 
Court  extended  this  rule  to  encompass  reckless  acts  that  deprive  the 
defendant of a fair trial.  

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statements to the court at the hearing on Appellant’s motion to dismiss that 

she  did,  in  fact,  tell  Officer  Mazzucca  not  to  disclose  Appellant’s  criminal 

history.  The Commonwealth argues that Appellant’s claim to the contrary is 

purely  speculative.    Additionally,  the  Commonwealth  contends  that,  in  any 

event, Appellant was not deprived of a fair trial. 

We conclude that a remand is warranted for further factual findings, and 

we direct the trial court to follow the dictates of Rule of Criminal Procedure 

587 on remand.  As this Court explained in Commonwealth v. Gross, 232 

A.3d 819 (Pa. Super. 2020) (en banc), “an order denying a double jeopardy 

motion, that makes no finding that the motion is frivolous, is a collateral order 

under Rule 313 of the Pennsylvania Rules of Appellate Procedure[.]”  Id. at 

832.  Rule 313 is jurisdictional, and collateral orders are separable from the 

main cause of action and thus appealable as of right.  Id. at 833.  As a result, 

if the court makes no finding that a motion to bar retrial on double jeopardy 

grounds is frivolous, the order is immediately appealable.  The court did not 

find that Appellant’s motion was frivolous, and Appellant properly appealed as 

of right on this basis. 

 

Separately,  Rule  of  Criminal  Procedure  587  establishes  the  procedure 

for  the  trial  court  to  follow  when  deciding  a  motion  to  dismiss  on  double 

jeopardy  grounds.    Among  other  requirements,  Rule  587  requires  the  trial 

court to make findings of fact, including a specific finding as to whether the 

claim is frivolous when the motion is denied.  This procedure does not govern 

or control our appellate jurisdiction.  Id. at 833 n.1.  Thus, failures to follow 

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Rule 587 are subject to waiver.  Id. at 848 (“If a trial court violates Rule 587, 

the parties are free to raise this issue on appeal.”) (Olson, J., concurring). 

Appellant  claims  that  the  trial  court  abused  its  discretion  in  not 

specifically  addressing  his  argument  concerning  the  prosecution’s  failure  to 

prepare Officer Mazzucca.  “The opinion also failed to address or even mention 

the fact that Officer Mazzucca told the court that the prosecutor did not inform 

him that he could not testify about Appellant’s criminal record.”  Appellant’s 

Brief at 23.  While Appellant does not specifically cite the trial court’s failure 

to  follow  Rule  587,  we  agree  that  the  court  abused  its  discretion  in 

determining, as a matter of law, that Appellant’s claim fails without  making 

specific  factual  findings  regarding  what  Officer  Mazzucca  was  told  before 

testifying.  Cf. Sanchez, 262 A.3d at 1288  (“To the extent that the factual 

findings of the trial court impact its double jeopardy ruling, we apply a more 

deferential standard of review….  [Credibility] findings will not be disturbed on 

appeal if they are supported by the record.”). 

At this juncture, we discuss the state of the record on that point.  After 

Appellant filed his motion to dismiss, which also included a motion to dismiss 

under  Rule  600  and  a  motion  for  nominal  bail,  the  trial  court  ordered  the 

Commonwealth  to  reply  and  show  cause  why  the  motions  should  not  be 

granted.  Following the Commonwealth’s reply, the court apparently ordered 

a  hearing,4  which  took  place  via  video  conference  on  April  14,  2022.  

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4 The docket does not reflect any order scheduling the hearing.   

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Significantly,  as  it  pertains  to  Appellant’s  double  jeopardy  claim,  Appellant 

made the following legal argument: 

[APPELLANT]: The Commonwealth and I, the prosecutors and I, 
had  a  conversation  that  we  were  concerned  regarding  the 
codefendant and whether or not that would come up on the stand 
and it was a real concern that they were worried about because 
they understood that that would be a problem. 

So we go through the questioning, all of these questions, ‘How do 
you know the defendant?  Have you ever been in contact with the 
defendant?  Have you seen him multiple times?  Do you recognize 
his voice?  Have you had conversations with him?’  

And then they’re surprised when he says he has a criminal record.  
They say they are surprised.  What they also say, your Honor, in 
their answer is that they instructed him that that could not come 
up.  Now, the [c]ourt will recall that after the mistrial was granted 
that Officer Mazzucca asked the [c]ourt, ‘What did I do wrong?’”   

And  the  [c]ourt  explained  to  him  at  that  point  that  he  couldn’t 
bring out his criminal record. 

THE COURT: But that was – that was after the jury was excused 
or whatever else.  Officer Mazzucca -- 

[APPELLANT]: Okay. 

THE  COURT:  Officer  Mazzucca  asked  me  there  because  he  was 
sitting next to me on the witness stand –  

[APPELLANT]: No doubt, and I’m not taking – I’m not making any 
–  

THE COURT: Okay, I just want to say that he said to me after he 
was packing up all of the exhibits that he was testifying to[,] he 
said, ‘What did I do wrong?’ 

And I explained it to him. 

[APPELLANT]:  And, yeah, I’m not  – I’m not saying that  you did 
anything wrong and I didn’t mean to indicate that at all, but what 
you may also recall [is] Office [sic] Mazzucca[’s] saying … 
that no one ever told him that.  So that’s in direct conflict with 
the  answer  that  the  Commonwealth  gave  because  Officer 

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Mazzucca said that he was never informed that he could not bring 
out the criminal record. 

And  it’s  for  that  reason,  your  Honor  …  that  we  seek  to  bar  the 
retrial. 

N.T., 4/14/22, at 5-7 (emphasis added). 

 

The  court  did  not  address  the  bolded  allegation.    With  respect  to  the 

foregoing argument, the prosecutor who tried the case replied, “Attorney Grill 

and  I  will  represent  again[,]  as  officers  of  the  court[,]  that  based  on  our 

recollection[,]  we  had  discussions  with  Officer  Mazzucca  relative  to  the  fact 

that  the  case  was  being  bifurcated  and  he  was  present,  in  fact,  for  the 

preparation of the codefendant in this case who we bent [sic] over, you know, 

multiple things that could and could not be brought up at that time.”  Id. at 

9. 

 

The court did not make any findings of fact or conclusions of law at the 

close of this hearing.  The court stated it will “take it under advisement and 

issue a ruling in the near future.”  Id. at 10.  On April 20, 2022, the trial court 

entered  an  order  denying  all  three  motions.    With  respect  to  the  double 

jeopardy  claim,  the  order  states:  “[Appellant]’s  Motion  to  Dismiss  and  Bar 

Retrial  Pursuant  to  Double  Jeopardy  is  DENIED  as  this  [c]ourt  finds  the 

prosecution did not act with intent to bring about a mistrial.”  Order, 4/20/22, 

at 1 (single page order).   

 

Crucially, the parties offer competing interpretations of what credibility 

findings,  if  any,  the  court  made.    While  we  appreciate  the  prosecutor’s 

willingness to represent, as an officer of the court, her version of events, that 

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testimony was not offered under oath, was not subject to any kind of cross-

examination, and was not specifically credited or discredited by the trial court.  

Additionally, Officer Mazzucca was not called by either party.  The record also 

does not indicate if the hearing was intended to include the presentation of 

witnesses.   

To be clear, we do not suggest that Appellant’s double jeopardy claim is 

meritorious if the prosecution did, in fact, fail to inform Officer Mazzucca that 

Appellant’s prior criminal history was not at issue due to the severance of the 

Section 6105 charges.  We may, of course, affirm on any ground supported 

by  the  record.    Gross,  supra  at  846  (affirming  order  denying  motion  to 

dismiss on double jeopardy grounds on alternative basis).  However, Johnson 

is  of  recent  vintage  and  none  of  the  precedents  is  directly  on  point.    In 

Commonwealth v. Krista, 271 A.3d 465 (Pa. Super. 2022), we examined a 

motion  to  bar  retrial  involving  a  prosecutor’s  commenting,  during  a  heated 

argument  with  opposing  counsel,  “[i]f  [Krista]  wants  to  take  the  stand  and 

explain what happened, he can.”  Id. at 471.  The trial court determined that 

the  prosecutor’s  comment  was  spontaneous  and  therefore  was  not  an 

intentional  act  designed  to  goad  Krista  into  requesting  a  mistrial.    In  the 

course of our opinion, we explained the types of reckless acts that have been 

found to constitute “overreaching,” i.e., reckless acts that serve to deprive the 

defendant of a fair trial:   

[O]verreaching is conduct that reveals a fundamental breakdown 
in the judicial process where “the prosecutor, as representative of 
an  impartial  sovereign,  is  seeking  conviction  at  the  expense  of 

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justice.”    Examples  of  overreaching,  in  addition  to  the  farcical 
string of errors and omissions in Johnson, are the prosecution’s 
“consistently making reference to evidence that the trial court had 
ruled inadmissible, continually defying the trial court’s rulings on 
objections, and ... repeatedly insisting that there was fingerprint 
evidence  linking  [the  defendants]  to  the  crime  when  the 
prosecutor  knew  for  a  fact  that  no  such  evidence  existed,” 
Commonwealth  v.  Martorano,  …  741  A.2d  1221, 1223 ([Pa.] 
1999);  and  contacting  a  defense  witness  to  intimidate  her  and 
prevent her from testifying, [Commonwealth v. Byrd, 209 A.3d 
351, 359 (Pa. Super. 2019)].  In such scenarios, it is clear that 
the  prosecutor  made  conscious  decisions,  be  they  intentional 
malfeasance  or  a  failure  to  heed  red  flags  signaling  an 
unintentional error, to place getting a favorable verdict ahead of 
the defendant’s rights. 

Id. at 473–74 (citation omitted). 

 

Fairly read, Appellant’s argument suggests that the prosecutor “fail[ed] 

to heed red flags” through a combination of (1) not informing Officer Mazzucca 

that the charges had been severed and, thus, Appellant’s prior criminal history 

was not an element of the  crimes at issue, and (2)  asking questions  in  the 

lead up to the question and answer that prompted the mistrial which made it 

likely that the officer would cite Appellant’s criminal history.5  Perhaps these 

arguments are compelling.  Perhaps not.  We simply decline to affirm on the 

alternative basis that the Commonwealth did not deprive Appellant of a fair 

trial, even if the two foregoing points are true.  That would amount to a per 

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5 Appellant argues that the prosecution failed to request any type of records 
that would establish it was Appellant who received the recorded phone call.  
Instead,  according  to  Appellant,  the  Commonwealth  relied  on  Officer 
Mazzucca’s  testimony  that  he  recognized  Appellant’s  voice  from  prior 
interactions.  Appellant essentially argues that this primed Officer Mazzucca 
to disclose his criminal history, as the questioning intimated that the officer 
knew Appellant from prior criminal cases.  Appellant’s Brief at 17.  

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se rule that the Commonwealth does not act recklessly in failing to inform its 

witnesses that certain evidence is inadmissible, and, further, that even if the 

Commonwealth were reckless in the failure to prepare a witness, it does not 

deprive a defendant of a fair trial.   It would be inappropriate to  develop an 

argument  along  those  lines  on  the  Commonwealth’s  behalf  and  without  the 

benefit  of  advocacy  from  the  opposing  side.    Relatedly,  the  parties  have 

crafted  their  arguments  to  account  for  disparate  views  of  what  the 

Commonwealth  told  (or  did  not  tell)  Officer  Mazzucca.6    For  instance,  the 

Commonwealth  offers  the  following  argument  as  to  why  the  prosecutor’s 

question was not reckless: 

The prosecutor, in asking this question, had no way of knowing, 
or even suspecting, that the question would elicit a response with 
regards  to  [Appellant’s]  prior  criminal  record.    Rather,  the 
prosecutor indicated at a hearing on [Appellant’s] motion that she 
expected  that  the  response  would  be  that  it  was  because 
[Appellant] was the one who was recorded on the wire.  This would 
have been the logical response to the question asked.  There is 
simply no indication that, in asking the question, the prosecutor 
“overreached  to  the  point  of  denying  [Appellant]  a  fair  trial”  by 
“seeking conviction at the expense of justice.”   

Commonwealth’s Brief at 16 (citation to transcript omitted).  Obviously, the 

Commonwealth’s  argument  that  its  prosecutor  had  no  reason  to  suspect 

Officer  Mazzucca  would  cite  Appellant’s  criminal  history  has  much  greater 

force if Officer Mazzucca was told not to do so.  As Appellant offers in response, 

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6  We  offer  no  opinion  on  the  issue  of  whether  Appellant’s  requested  relief 
would apply to the entire criminal information or only the charges that were 
presented to the jury at the first proceeding. 

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“[T]he fact that the prosecutor did not anticipate her witness’s response does 

not mean she [was] not reckless.  What made her reckless [was] her failure 

to properly prepare her case for trial.”  Appellant’s Brief at 22.      

In this regard, we add that both parties make unwarranted assumptions 

about  what  the  trial  court  necessarily  found.    In  its  opinion,  the  trial  court 

concludes that the prosecutor credibly “explained that she did not anticipate 

Officer  Mazzucca  would  comment  on  Appellant’s  prior  felony  conviction  in 

response to her question.”  Trial Court Opinion, 7/11/22, at 4.  But this does 

not adequately address Appellant’s overarching claim that the prosecutor had 

reason  to  expect  Officer  Mazzucca  would  cite  Appellant’s  criminal  history 

based on the alleged failure to discuss the matter with Officer Mazzucca.  See 

Appellant’s Brief at 14 (explaining that the question was asked “with conscious 

disregard  of  the  substantial  risk  that  the  Commonwealth’s  witnesses  would 

testify about Appellant’s criminal record and mistrial would be declared, which 

is exactly what occurred.”).   Thus,  the Commonwealth’s claim  that  the trial 

court deemed the prosecutor credible is only partially correct.  The trial court’s 

finding  certainly  represents  a  conclusion  that  the  prosecutor  did  not 

intentionally goad Appellant into requesting a mistrial, but its opinion does not 

address whether the question was recklessly asked under the circumstances.  

Cf.  Order,  4/20/22,  at  1  (single  page  order)  (concluding  only  that  the 

prosecutor  “did  not  act  with  intent  to  bring  about  a  mistrial”).    Conversely, 

Appellant  cites  his  own  argument  that  the  trial  court  overheard  Officer 

Mazzucca’s contradicting the prosecutor’s representations.  Appellant’s Brief 

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at 14 n.1 (“Officer Mazzucca informed the trial court that no one ever informed 

him that he couldn’t testify about his record.”) (citing N.T., 4/14/22, at 5-6).  

The trial court did not address this claim.   

 

In  sum,  we  cannot  conclude  that  the  trial  court  credited  the 

prosecution’s  representations,  even  accepting  arguendo  that  a  credibility 

finding  is  warranted  in  the  absence  of  testimony  under  oath.    Nor  can  we 

conclude that the trial court heard Officer Mazzucca say that he was never told 

not to disclose Appellant’s criminal history.  The trial judge neither agreed nor 

disagreed  with  Appellant’s  assertion  that  Officer  Mazzucca  made  that 

comment.    The  only  fact  supported  by  the  record  is  that  Officer  Mazzucca 

asked the court what he did wrong. 

 

Returning to our standard of review, we agree with Appellant that the 

trial court abused its discretion in ruling on Appellant’s Johnson claim without 

making  adequate  factual  findings.    On  remand,  we  direct  the  trial  court  to 

follow the Rule 587 procedure, which includes making specific findings of fact 

concerning  these  issues  after  an  evidentiary  hearing,  and  findings  as  to 

whether  Appellant’s  claim  is  frivolous.7    We  therefore  vacate  the  order  and 

remand for further proceedings consistent with this memorandum.   

____________________________________________ 

7 Our remand does not suggest that the underlying claim is non-frivolous.  If, 
for example, the facts establish that Officer Mazzucca was instructed by the 
prosecutor  not  to  discuss  Appellant’s  criminal  history  and  was  reminded  of 
that  fact  immediately  before  testifying,  that  would  go  a  long  way  towards 
establishing that the mistrial was due to mere prosecutorial error.  Appellant 
would,  of  course,  be  entitled  to  file  a  petition  for  review  if  the  trial  court 
concludes  on  remand  that  the  motion  is  frivolous.    See  Pa.R.Crim.P. 
587(b)(5).    

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Order vacated.  Remanded for further proceedings consistent with this 

memorandum.  Jurisdiction relinquished. 

udgment Entered. 

oseph D. Seletyn, Esq. 
Prothonotary 

ate: 3/21/2023 

 

  J

    J

  D

 

J-S39025-22 

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