J-S35011-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : v. : : RASHUN MAURICE AUSTION : : Appellee : No. 1167 EDA 2018
Appeal from the Order April 9, 2018 in the Court of Common Pleas of Pike County Criminal Division at No(s): CP-52-CR-0000297-2015 CP-52-CR-0000659-2016
BEFORE: OLSON, J., STABILE, J. and STRASSBURGER, J.*
DISSENTING MEMORANDUM BY STRASSBURGER, J.:
FILED MARCH 13, 2020
Because I believe it is just plain common sense that if Appellant did not
possess the glassine packets, Appellant could not have possessed the heroin
inside of the glassine packets, I respectfully dissent. In my view, under these
circumstances, the Commonwealth is collaterally estopped from retrying
Appellant for possession with intent to deliver (PWID) heroin and possession
of heroin, and cannot retry him on these charges without running afoul of
double jeopardy principles.
As the Majority recognizes, the applicable standard for collateral
estoppel is to determine whether a rational jury could have grounded its
verdict in the first trial upon an issue other than that which is sought to be
foreclosed in the second trial. Commonwealth v. Smith, 615 A.2d 321 (Pa.
*Retired Senior Judge assigned to the Superior Court. J-S35011-19
1992). When making this inquiry, we must consider the issues from a practical
perspective and with an eye to all circumstances, and apply the doctrine of
collateral estoppel with “realism and rationality.” Id. at 251.
Guided by these instructions, I turn to the facts of this case. The
paraphernalia at issue are glassine packets, packaging material, a glass pipe,
and cigars. There is no dispute that the heroin at issue was contained in the
very glassine envelopes of which the jury found Appellant not guilty of
possessing. Despite the jury’s determining that Appellant was not guilty of
possessing paraphernalia at his first trial, and delivering of a hung verdict on
the PWID and simple possession of heroin charges, the Commonwealth seeks
to prosecute Appellant a second time for PWID and possession of heroin.
The Majority offers several explanations to justify its decision. It first
speculates that the jury may have determined that the Commonwealth did
not prove that glassine packets were paraphernalia as statutorily defined.
Majority Memorandum at 13-14. I do not buy this. While theoretically
possible, given the broad definition of paraphernalia, the straightforward
nature of glassine packets, and the heroin’s presence inside the packets, any
such determination would not have been rational.
The Majority next speculates that the jury may have been confused.
Again, I am not convinced. The Majority points out that the Commonwealth
lumped together multiple types of paraphernalia in a single charge in the
information, and did not amend the information after Appellant’s co-defendant
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pleaded guilty to possession of marijuana and marijuana-related
paraphernalia found in her purse. Because pipes and cigars are typically used
to consume marijuana, but the glassine packages at issue are used for
packaging and storing narcotics, the Majority deems the single paraphernalia
charge lumping together multiple items of paraphernalia to be “carelessly
confusing.” Majority Memorandum at 14-15 n.6. The Majority concludes the
jury must have been confused by the lack of evidence regarding the
marijuana-related paraphernalia seized from the co-defendant’s purse, and
therefore rationally concluded Appellant did not possess any paraphernalia.
Id.
I find this argument to be a red herring. The bottom line is that if the
Commonwealth attempted to prove that Appellant possessed the glassine
envelopes and the heroin within the glassine envelopes, the Commonwealth’s
failure to offer evidence regarding paraphernalia of a different variety should
not have been a factor to a rational jury. Moreover, even if the jury was
confused, any confusion simply was not rational, considering that the verdict
slip specifically broke down the various items of paraphernalia and permitted
the jury to find Appellant guilty of possession of the glassine envelopes without
finding Appellant guilty of the marijuana-related paraphernalia.
The Majority then uses the doctrine of inconsistent verdicts to justify a
second trial in this case. To me, this doctrine is inapplicable in double jeopardy
jurisprudence. Juries are sometimes strange creatures, and of course they
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may make a mistake or exercise lenity in any given case. But that should not
override the double jeopardy clause. Otherwise, we will have to throw the
baby out with the bathwater, rendering the protections against double
jeopardy meaningless in many cases.
The two cases relied upon by the trial court and the Majority regarding
inconsistent verdicts do not compel the result the Majority reaches. In
Commonwealth v. DeLong, 879 A.2d 234 (Pa. Super. 2005), DeLong was
found guilty of PWID and delivery of narcotics, and not guilty of the lesser
included offense of simple possession of narcotics. Following the jury’s
verdict, the trial court declared a mistrial due to jury misconduct, and the
Commonwealth sought to retry DeLong on the PWID and delivery charges
notwithstanding the acquittal for simple possession. In other words, the
Commonwealth sought to retry DeLong on the greater charges even though
the first jury found DeLong not guilty of the lesser included charge. After
DeLong filed and lost a motion to dismiss based on double jeopardy and
collateral estoppel principles, he appealed.
On appeal, this Court was not troubled in a general sense by the jury’s
rendering of inconsistent verdicts; it noted that they are permissible due to
the jury’s right to exercise lenity, and the inconsistent verdict on the lesser
offense “does not imply error, mistake, or inability to agree as to the two
greater inclusive offenses.” Id. at 238. But the Court stressed that the
inconsistent verdicts in DeLong’s first trial do not implicate double jeopardy or
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collateral estoppel in Appellant’s second trial because “Appellant was convicted
of the greater inclusive offenses which are now refiled against him.” Id. Since
Appellant was convicted of PWID and delivery charges in the first trial, he
could be tried on those charges again. The Commonwealth proved both
beyond a reasonable doubt in his first trial, avoiding any concern that there
was “an inadequate evidentiary proffer in the first prosecution.” Id. at 239.
Furthermore, because nothing was resolved in Appellant’s favor as to the
PWID and delivery charges in his first trial, there is no concern that the
Commonwealth had failed to make a case or that the jury had disagreed over
the greater inclusive offenses. Id. Therefore, the Commonwealth could retry
Appellant on the same charges without having the issue of Appellant’s
possession and delivery precluded. Id. DeLong has no bearing on the instant
case, where the jury decided the possession of paraphernalia charge in
Appellant’s favor.
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J-S35011-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : v. : : RASHUN MAURICE AUSTION : : Appellee : No. 1167 EDA 2018
Appeal from the Order April 9, 2018 in the Court of Common Pleas of Pike County Criminal Division at No(s): CP-52-CR-0000297-2015 CP-52-CR-0000659-2016
BEFORE: OLSON, J., STABILE, J. and STRASSBURGER, J.*
DISSENTING MEMORANDUM BY STRASSBURGER, J.:
FILED MARCH 13, 2020
Because I believe it is just plain common sense that if Appellant did not
possess the glassine packets, Appellant could not have possessed the heroin
inside of the glassine packets, I respectfully dissent. In my view, under these
circumstances, the Commonwealth is collaterally estopped from retrying
Appellant for possession with intent to deliver (PWID) heroin and possession
of heroin, and cannot retry him on these charges without running afoul of
double jeopardy principles.
As the Majority recognizes, the applicable standard for collateral
estoppel is to determine whether a rational jury could have grounded its
verdict in the first trial upon an issue other than that which is sought to be
foreclosed in the second trial. Commonwealth v. Smith, 615 A.2d 321 (Pa.
*Retired Senior Judge assigned to the Superior Court. J-S35011-19
1992). When making this inquiry, we must consider the issues from a practical
perspective and with an eye to all circumstances, and apply the doctrine of
collateral estoppel with “realism and rationality.” Id. at 251.
Guided by these instructions, I turn to the facts of this case. The
paraphernalia at issue are glassine packets, packaging material, a glass pipe,
and cigars. There is no dispute that the heroin at issue was contained in the
very glassine envelopes of which the jury found Appellant not guilty of
possessing. Despite the jury’s determining that Appellant was not guilty of
possessing paraphernalia at his first trial, and delivering of a hung verdict on
the PWID and simple possession of heroin charges, the Commonwealth seeks
to prosecute Appellant a second time for PWID and possession of heroin.
The Majority offers several explanations to justify its decision. It first
speculates that the jury may have determined that the Commonwealth did
not prove that glassine packets were paraphernalia as statutorily defined.
Majority Memorandum at 13-14. I do not buy this. While theoretically
possible, given the broad definition of paraphernalia, the straightforward
nature of glassine packets, and the heroin’s presence inside the packets, any
such determination would not have been rational.
The Majority next speculates that the jury may have been confused.
Again, I am not convinced. The Majority points out that the Commonwealth
lumped together multiple types of paraphernalia in a single charge in the
information, and did not amend the information after Appellant’s co-defendant
-2- J-S35011-19
pleaded guilty to possession of marijuana and marijuana-related
paraphernalia found in her purse. Because pipes and cigars are typically used
to consume marijuana, but the glassine packages at issue are used for
packaging and storing narcotics, the Majority deems the single paraphernalia
charge lumping together multiple items of paraphernalia to be “carelessly
confusing.” Majority Memorandum at 14-15 n.6. The Majority concludes the
jury must have been confused by the lack of evidence regarding the
marijuana-related paraphernalia seized from the co-defendant’s purse, and
therefore rationally concluded Appellant did not possess any paraphernalia.
Id.
I find this argument to be a red herring. The bottom line is that if the
Commonwealth attempted to prove that Appellant possessed the glassine
envelopes and the heroin within the glassine envelopes, the Commonwealth’s
failure to offer evidence regarding paraphernalia of a different variety should
not have been a factor to a rational jury. Moreover, even if the jury was
confused, any confusion simply was not rational, considering that the verdict
slip specifically broke down the various items of paraphernalia and permitted
the jury to find Appellant guilty of possession of the glassine envelopes without
finding Appellant guilty of the marijuana-related paraphernalia.
The Majority then uses the doctrine of inconsistent verdicts to justify a
second trial in this case. To me, this doctrine is inapplicable in double jeopardy
jurisprudence. Juries are sometimes strange creatures, and of course they
-3- J-S35011-19
may make a mistake or exercise lenity in any given case. But that should not
override the double jeopardy clause. Otherwise, we will have to throw the
baby out with the bathwater, rendering the protections against double
jeopardy meaningless in many cases.
The two cases relied upon by the trial court and the Majority regarding
inconsistent verdicts do not compel the result the Majority reaches. In
Commonwealth v. DeLong, 879 A.2d 234 (Pa. Super. 2005), DeLong was
found guilty of PWID and delivery of narcotics, and not guilty of the lesser
included offense of simple possession of narcotics. Following the jury’s
verdict, the trial court declared a mistrial due to jury misconduct, and the
Commonwealth sought to retry DeLong on the PWID and delivery charges
notwithstanding the acquittal for simple possession. In other words, the
Commonwealth sought to retry DeLong on the greater charges even though
the first jury found DeLong not guilty of the lesser included charge. After
DeLong filed and lost a motion to dismiss based on double jeopardy and
collateral estoppel principles, he appealed.
On appeal, this Court was not troubled in a general sense by the jury’s
rendering of inconsistent verdicts; it noted that they are permissible due to
the jury’s right to exercise lenity, and the inconsistent verdict on the lesser
offense “does not imply error, mistake, or inability to agree as to the two
greater inclusive offenses.” Id. at 238. But the Court stressed that the
inconsistent verdicts in DeLong’s first trial do not implicate double jeopardy or
-4- J-S35011-19
collateral estoppel in Appellant’s second trial because “Appellant was convicted
of the greater inclusive offenses which are now refiled against him.” Id. Since
Appellant was convicted of PWID and delivery charges in the first trial, he
could be tried on those charges again. The Commonwealth proved both
beyond a reasonable doubt in his first trial, avoiding any concern that there
was “an inadequate evidentiary proffer in the first prosecution.” Id. at 239.
Furthermore, because nothing was resolved in Appellant’s favor as to the
PWID and delivery charges in his first trial, there is no concern that the
Commonwealth had failed to make a case or that the jury had disagreed over
the greater inclusive offenses. Id. Therefore, the Commonwealth could retry
Appellant on the same charges without having the issue of Appellant’s
possession and delivery precluded. Id. DeLong has no bearing on the instant
case, where the jury decided the possession of paraphernalia charge in
Appellant’s favor.
The second case, Commonwealth v. Moore, 103 A.3d 1240, 1246 (Pa.
2014), is even more inapposite, as it is not a double jeopardy case. Instead,
Moore examined whether one could interpret a jury’s acquittal on one charge
as a factual finding affecting a second charge in the same trial, such that a
reviewing court must overturn the inconsistent finding of guilt on the second
charge. The Moore Court concluded that one could not, and permitted the
inconsistent verdicts to stand.
-5- J-S35011-19
Thus, neither DeLong nor Moore supports the notion that following a
first trial with inconsistent verdicts, the Commonwealth may retry a defendant
without facing issue preclusion or double jeopardy restrictions in the second
trial simply because of the mere possibility that the jury may have acquitted
the defendant on one or more charges in the first trial due to lenity, mistake,
or compromise. Stated another way, neither case holds that the doctrine of
inconsistent verdicts overrides constitutional double jeopardy protections.
When I consider the facts of the instant case from a practical perspective
and with an eye to all circumstances, and apply the doctrine of collateral
estoppel with “realism and rationality,” see Smith, 540 A.2d at 251, I am
compelled to reverse the trial court’s decision to permit the second trial to
proceed. The trial court claims the jury’s finding that Appellant did not possess
paraphernalia is not specific enough to conclude that Appellant did not possess
the heroin contained within the glassine packets. But if one uses “realism and
rationality” as our Supreme Court has instructed, how can one ignore the plain
and obvious fact that it would have been impossible for Appellant to have
possessed the heroin inside the glassine packets if he did not possess the
glassine packets themselves?
Moreover, I am troubled by the suggestion of the trial court and the
Majority that because possession of glassine packets is not an element of
simple heroin possession and PWID, the Commonwealth could prove the
charges of heroin possession and PWID in a second trial without reference to
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the glassine packages. An issue need not be an element of the re-tried crimes
to have preclusive effect. The issues merely need be sufficiently similar and
material; actually litigated in the first action; and a final judgment on the
specific issue exists. Commonwealth v. Brockington-Winchester, 205
A.3e 1279-1283-84 (Pa. Super. 2019). Even if the Commonwealth could
prove its case as to possession and PWID without referencing the glassine
envelopes, this means Appellant could be convicted of possessing drugs inside
the envelopes despite being not guilty of possessing the envelopes
themselves. In my view, the constitutional protections against double
jeopardy prohibit such a result. Accordingly, I dissent.
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