Com. v. Rue, R.

• Court: Superior Court of Pennsylvania
• Decided: May 9, 2022
• Docket: 415 EDA 2021
• Status: Unpublished

Opinion

J-A07005-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ROBERT RUE : : Appellant : No. 415 EDA 2021

Appeal from the Order Entered January 19, 2021 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): MC-51-CR-0015017-2020

BEFORE: DUBOW, J., McLAUGHLIN, J., and KING, J.

MEMORANDUM BY DUBOW, J.: FILED MAY 9, 2022

Appellant, Robert Rue, appeals from the January 19, 2021 order denying

his Motion to Dismiss on double jeopardy grounds. After careful review, we

affirm.

In 2010, Appellant punched Joseph Roy, causing Roy to fall, hit his head,

and fall into a coma. In 2012, a jury convicted Appellant of Simple Assault and

Recklessly Endangering Another Person (“REAP”) but acquitted him of

Aggravated Assault related to his punching Roy.1

Roy died in May 2020 from his injuries. In August 2020, the

Commonwealth charged Appellant with Involuntary Manslaughter.2 On

September 14, 2020, Appellant filed a Motion to Dismiss, arguing that the

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1 18 Pa.C.S. §§ 2701(a)(1), 2705, and 2702(a), respectively.

2 18 Pa.C.S. § 2504(a). J-A07005-22

criminal collateral estoppel rule precludes Appellant’s prosecution for

Involuntary Manslaughter. He asserted that by acquitting him of Aggravated

Assault, the jury determined that Appellant did not cause Roy to suffer serious

bodily injury and, therefore, a subsequent jury is barred from finding that

Appellant caused Roy’s death.

The trial court denied Appellant’s motion on January 19, 2021. Appellant

filed a timely Notice of Appeal and both he and the trial court complied with

Pa.R.A.P. 1925.3

Appellant raises the following issue for our review:

Does the Double Jeopardy Clause of the Pennsylvania Constitution or the equivalent protections of the federal Constitution (or the statutory codification of that protection at 18 Pa.C.S. § 110(2)) protect [Appellant] from trial on the pending charge of [I]nvoluntary [M]anslaughter, because the jury at [A]ppellant’s 2012 trial, by acquitting him of [A]ggravated [A]ssault while convicting him of [S]imple [A]ssault and [REAP], necessarily determined in his favor a fact which the Commonwealth would have to prove to convict him of the present charge, which is based on the subsequent death of the same victim allegedly caused by [A]ppellant’s acts on the same underlying occasion in 2010?

Appellant’s Br. at 3.

3 On August 17, 2021, this Court remanded the instant appeal to the trial court for it to “render a specific finding on frivolousness pursuant to Pa.R.Crim.P. 587(B)(4).” Order, 8/17/21. On September 10, 2021, the trial court issued a supplemental Rule 1925(a) Opinion finding the appeal not frivolous. As a result, we have jurisdiction to address this appeal. Pa.R.Crim.P. 587(B)(6) (explaining that the denial of a non-frivolous double jeopardy motion is an immediately appealable collateral order).

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The applicability of double jeopardy protection raises a question of law

over which our standard of review is de novo and scope of review is plenary.

Commonwealth v. Jordan, 256 A.3d 1094, 1104-05 (Pa. 2021).

As stated above, the 2012 jury convicted Appellant of Simple Assault

and REAP. A Simple Assault conviction requires proof that the defendant

“recklessly cause[d] bodily injury to another[.]” 18 Pa.C.S. § 2701(a)(1).

REAP requires proof that he “recklessly engage[d] in conduct which place[d]

another person in danger of death or serious bodily injury.” 18 Pa.C.S. § 2705.

The jury acquitted Appellant of Aggravated Assault. A person is guilty of

Aggravated Assault if he “attempts to cause serious bodily injury to another,

or causes such injury intentionally, knowingly or recklessly under

circumstances manifesting extreme indifference to the value of human life.”

18 Pa.C.S. § 2702(a)(1). Aggravated Assault requires proof of malice, a more

culpable state of mind than the recklessness needed to convict a defendant of

Simple Assault, REAP, or Involuntary Manslaughter. See Commonwealth v.

Packer, 168 A.3d 161, 168-69 (Pa. Super. 2017).

The Commonwealth has now charged Appellant with Involuntary

Manslaughter. “A person is guilty of involuntary manslaughter when as a direct

result of the doing of an unlawful act in a reckless[4] manner . . . he causes

the death of another person.” 18 Pa.C.S. § 2504(a). Importantly, “Involuntary ____________________________________________

4 Although the Involuntary Manslaughter statute refers to “a reckless or grossly negligent” state of mind, our Supreme Court has equated these states of mind for the purposes of determining manslaughter. Commonwealth v. Huggins, 836 A.2d 862, 867-68 (Pa. 2003).

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[M]anslaughter is not an intentional killing requiring malice.”

Commonwealth v. Naranjo, 53 A.3d 66, 71 n.3 (Pa. Super. 2012).

Appellant has presented several sub-issues in his single question for

review. We address each sub-issue seriatim.

Appellant first renews the argument he made in his Motion to Dismiss.

He asserts that by acquitting him of Aggravated Assault, the jury found that

he did not cause Roy to suffer serious bodily injury. Appellant’s Br. at 22.

Since Appellant did not cause Roy serious bodily injury, Appellant reasons, the

jury cannot now find that Appellant committed Involuntary Manslaughter by

causing Roy’s death. Id.

Where a fact-finder has already decided a controlling material issue in a

previous prosecution, criminal collateral estoppel functions to preclude

redetermination of that issue in a subsequent prosecution. Commonwealth

v. States, 938 A.2d 1016, 1021 (Pa. 2007). It is a subpart of double jeopardy

protection and applies only “where the first trial ended with a definitive

determination of a controlling material issue.” Commonwealth v. McNeal,

120 A.3d 313, 327 (Pa. Super. 2015) (emphasis added).

To determine “whether or to what extent an acquittal can be interpreted

in a manner that affects future proceedings, . . . [w]e ask whether the fact-

finder, in rendering an acquittal in a prior proceeding, could have grounded

its verdict upon an issue other than that which the defendant seeks to

foreclose from consideration.” States, 938 A.2d at 1021 (citations and

quotation marks omitted). Where a fact-finder, in rendering an acquittal in a

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prior proceeding, necessarily based its verdict “on resolution of an issue in a

manner favorable to the defendant with respect to the [instant] charge,”

double jeopardy precludes the Commonwealth “from attempting to relitigate

that issue in an effort to resolve it in a contrary way.” Id. Conversely, where

a jury’s acquittal may have been based on any one of several factors, the

“acquittal cannot be definitively interpreted as resolving an issue in favor of

the defendant with respect to a remaining charge [and] the Commonwealth is

free to commence with trial as it wishes.” Id.

In the instant case, by convicting Appellant of Simple Assault and REAP,

the 2012 jury must have found that Appellant acted recklessly which (1)

caused Roy to suffer bodily injury, and (2) placed Roy in danger of death or

serious bodily injury, respectively. See 18 Pa.C.S. §§ 2701(a)(1), 2705. By

contrast, a conviction for Aggravated Assault requires proof that Appellant

acted with malice which caused Roy to suffer serious bodily injury. 18 Pa.C.S.

§ 2702(a). Thus, it is possible, as Appellant speculates, that the jury acquitted

him of Aggravated Assault based on a finding that he did not cause Roy serious

bodily injury. It is equally possible, however, that the jury acquitted Appellant

of Aggravated Assault because it determined that Appellant had acted

recklessly in punching Roy, but did not act with malice.

It is, thus, possible that the jury “could have grounded its verdict upon

an issue other than that which the defendant seeks to foreclose from

consideration.” States, 938 A.2d at 1021 (citation omitted). Since the

acquittal on the Aggravated Assault offense could have been based on the

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jury’s conclusion that Appellant did not act with malice in punching Roy, we

cannot say that the verdict necessarily determined the degree of injury

Appellant caused Roy, a material issue in Appellant’s instant prosecution for

Involuntary Manslaughter. Accordingly, the 2012 verdict does not bar the

instant prosecution and Appellant’s first argument garners no relief.

In his second sub-issue, Appellant argues that his acquittal of

Aggravated Assault bars his prosecution for Involuntary Manslaughter because

the jury necessarily determined that Appellant did not act with the requisite

mens rea. See Appellant’s Br. at 12-25. Appellant did not preserve this

argument for appellate review and it is, thus, waived.

Our rules require that a defendant’s “motion to dismiss on double

jeopardy grounds shall state specifically and with particularity the basis for

the claim of double jeopardy[.]” Pa.R.Crim.P. 587(B)(1). The failure to raise

the particular basis results in waiver of the issue. See Commonwealth v.

Jones, 466 A.2d 636, 641 (Pa. Super. 1983) (“an accused who does not act

in a timely manner may waive a double jeopardy issue” by failing to raise it

by pretrial motion); Pa.R.A.P. 302(a) (“Issues not raised in the trial court are

waived and cannot be raised for the first time on appeal.”). Because Appellant

did not raise this argument in his Motion to Dismiss, it is waived.5

5 Even if not waived, this argument would garner no relief. In convicting Appellant of Simple Assault and REAP, the 2012 jury necessarily determined that he acted recklessly in punching Roy. The mens rea element of Involuntary Manslaughter is recklessness. Accordingly, as the trial court observed, “[i]f (Footnote Continued Next Page)

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Within this sub-issue, Appellant argues that the court erred by focusing

on the statutory elements of the crimes rather than the instructions the court

gave to the jury. Appellant’s Br. at 17. Appellant fails to support this assertion

with citation to legal authority and, as a result, it is waived. See Pa.R.A.P.

2119(a) (appellant must support argument with “such discussion and citation

of authorities as are deemed pertinent”); Commonwealth v. Martz, 232

A.3d 801, 811 (Pa. Super. 2020) (“This Court will not act as counsel and will

not develop arguments on behalf of an appellant.”).

Finally, in his third sub-issue, Appellant argues that his prosecution is

barred by the compulsory joinder rule, 18 Pa.C.S. § 110(2). As with his second

sub-issue, Appellant did not raise this claim before the trial court and, as a

result, it is waived. Pa.R.A.P. 302(a).

Since we cannot definitively interpret Appellant’s acquittal of Aggravated

Assault as resolving a material issue in his favor concerning Involuntary

Manslaughter, we conclude double jeopardy principles do not preclude his trial

on the Involuntary Manslaughter charge. Accordingly, we affirm the trial

court’s order denying relief.

Order affirmed.

collateral estoppel precluded the determination of whether the Appellant had the requisite mens rea when he punched [Roy], the outcome would not be in the Appellant’s favor.” Trial Ct. Op., 9/10/21, at 4-5.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 5/9/2022

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