Com. v. Johnson, J.

Superior Court of Pennsylvania·Decided December 27, 2016·No. 2454 EDA 2015·Unpublished

Opinion

J-A19031-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant

JAMIL JOHNSON

No. 2454 EDA 2015

Appeal from the Order July 15, 2015 in the Court of Common Pleas of Philadelphia County Criminal Division at No(s):CP-51-CR-0011362-2014

BEFORE: FORD ELLIOTT, P.J.E., OTT, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.: FILED DECEMBER 27, 2016

The Commonwealth appeals from the order entered in the Philadelphia

County Court of Common Pleas granting Appellee’s, Jamil Johnson, motion

for judgment of acquittal for conspiracy. We reverse and remand for

reinstatement of the jury verdict and for sentencing.

The trial court summarized the procedural posture of this case as

follows:

Defendants, Derrick Harling1 and [Appellee], were arrested on September 18, 2014, and charged with robbery, conspiracy, theft by unlawful taking, receiving stolen property, simple and aggravated assault and recklessly endangering another person. [Defendant Harling and Appellee] were held for court on all charges

* Former Justice specially assigned to the Superior Court. 1 The Commonwealth’s appeal of the trial court’s grant of relief to Appellee’s codefendant, Derrick Harling, is listed at 2453 EDA 2015. J-A19031-16

after a preliminary hearing on October 6, 2014. A joint jury trial commenced July 9, 2015. A motion for acquittal was presented at the conclusion of the prosecution’s case[2] and held in abeyance until after the jury returned a verdict. On July 14th, the jury found [Appellee and Harling] guilty of conspiracy to commit aggravated assault, but acquitted both [of them] of all other charges, including aggravated assault. On July 15th, the motion for acquittal was granted as to the charge of criminal conspiracy to commit aggravated assault.

Trial Ct. Op., 10/28/15, at 1-2. This timely appeal followed. The

Commonwealth filed a Pa.R.A.P. 1925(b) statement of errors complained of

on appeal and the trial court filed a responsive opinion.

Preliminarily, we consider whether an appeal properly lies from the

trial court’s order granting judgment of acquittal. Appellee argues that the

order constituted an acquittal for double jeopardy purposes and that the

Commonwealth’s appeal should be barred. Appellee’s Brief at 10-13 (citing,

inter alia, Commonwealth v. Gibbons, 784 A.2d 776 (Pa. 2001)). The

Commonwealth responds that its appeal is proper because there is no

possibility of a successive prosecution implicating the double jeopardy

clause.3 Commonwealth’s Reply Brief at 4-6. We agree with the

Commonwealth.

2 Counsel for Appellee moved for judgment of acquittal. See R.R. at 82. Defendant Harling’s counsel joined in the motion. See id. For the parties’ convenience we refer to the reproduced record where applicable. 3 The Fifth Amendment provides, in pertinent part, that no person “Shall be subject for the same offence to be twice put in jeopardy of life or limb.” U.S. Const. amend. V. Article 1, Section 10, of the Pennsylvania

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In Gibbons, the defendant moved for a judgment of acquittal after the

Commonwealth presented its case, and the trial court granted the motion

before the defense’s case-in-chief. Gibbons, 784 A.2d at 777. Our

Pennsylvania Supreme Court held that double jeopardy precluded an appeal

of a judgment of acquittal granted before a verdict was rendered. Id. at

778.

This Court in Commonwealth v. Feathers, 660 A.2d 90 (Pa. Super.

1995) (en banc) opined:

In United States v. Wilson, [ ] 95 S. Ct. 1013 [ ] (1975), the Supreme Court held “that when a judge rules in favor of the defendant after a verdict of guilty has been entered by the trier of fact, the Government may appeal from that ruling without running afoul of the Double Jeopardy Clause.” Id. [ ] at 1026 [ ]. The Court said:

[W]here there is no threat of either multiple punishment or successive prosecutions, the Double Jeopardy Clause is not offended. In various situations where appellate review would not subject the defendant to a second trial, this Court has held that an order favoring the defendant could constitutionally be appealed by the Government. Since the 1907 Criminal Appeals Act, for example, the Government has been permitted without serious constitutional challenge to appeal from orders arresting judgment after a verdict has been entered against the defendant. Since reversal on appeal would merely reinstate the jury’s verdict, review of such an order does not offend the policy against multiple prosecution.

Constitution provides, in relevant part, that “no person shall, for the same offense, be twice put in jeopardy of life or limb.” Pa. Const. art. 1, § 10.

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Id. [ ] at 1022 [ ] (footnote omitted).

* * *

[W]here a court finds as a matter of law the evidence is not sufficient to support the verdict, that, like any other ruling on a question of law, is subject to review, and an order by the reviewing court reversing that conclusion and reinstating the jury verdict does not offend the proscription against double jeopardy.

Id. at 93-94 (emphases added).

Instantly, although Appellee raised his motion for judgment of

acquittal at the close of the Commonwealth’s case, the trial court reserved

its ruling on the motion until after the defense presented its evidence and

the jury reached a verdict.4 See Pa.R.Crim.P. 606(A)(1), (B). Thus, an

appellate reversal would not necessitate a retrial. On the contrary, the jury

verdict would be reinstated. Feathers, 660 A.2d at 93-94; cf. United

States v. Scott, 437 U.S. 82, 100 n.13 (1978) (discussing balancing of

interest in the government’s right to appeal an erroneous conclusion of law

with the defendant’s in avoiding subsequent prosecutions). Accordingly, the

trial court’s order is appealable and we address the substantive issue raised

by the Commonwealth. See id.

The Commonwealth raises the following issue for our review:

4 We note that Appellee renewed the motion following the jury verdict. Counsel for Appellee stated: “This is a continued motion for directed verdict of acquittal.” R.R. at 124.

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Did the lower court improperly grant [Appellee’s] motion for a judgment of acquittal from his conspiracy conviction where the evidence established that [Appellee] and his codefendant, joined by three other men, approached the victim [Martin Samuel Byng] together, beat the victim together, fled the scene together, and, a short time later, were arrested together?

Commonwealth’s Brief at 2.

The Commonwealth contends “[t]he evidence, which established that

[Appellee] and four conspirators viciously beat [Mr. Byng] for fifteen

minutes, was sufficient to support [Appellee’s] conviction of conspiracy to

commit aggravated assault.” Id. at 8. The Commonwealth argues that the

trial court erred in granting Appellee’s motion for judgment of acquittal

based “on its belief that [Mr. Byng] had not testified credibly.” Id. at 12.

We are constrained to agree.

Our review is governed by the following principles.

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