Commonwealth v. DeLong

879 A.2d 234, 2005 Pa. Super. 243, 2005 Pa. Super. LEXIS 1591
CourtSuperior Court of Pennsylvania
DecidedJune 30, 2005
StatusPublished
Cited by17 cases

This text of 879 A.2d 234 (Commonwealth v. DeLong) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. DeLong, 879 A.2d 234, 2005 Pa. Super. 243, 2005 Pa. Super. LEXIS 1591 (Pa. Ct. App. 2005).

Opinion

STEVENS, J.:

¶ 1 This is an interlocutory appeal as of right from the order1 entered by the Court of Common Pleas of Berks County, which denied Appellant’s motion to dismiss Possession With the Intent to Deliver (PWID) and Delivery of Methamphetamine charges on grounds of double jeopardy, collateral estoppel, and autrefois acquit. We affirm.

¶ 2 The pending jury trial will be Appellant’s second on the above offenses. In Appellant’s first trial, a jury convicted him of PWID and Delivery, and acquitted him of the lesser included charge of simple possession.2 The trial court set aside the convictions, however, when it discovered the jury foreperson had tainted deliberations by discussing his unauthorized internet research on the legal definition of “entrapment,” which was an issue in the case.

¶ 3 The Commonwealth reinstated charges only on the PWID and Delivery offenses that had resulted in convictions, and dismissed the simple possession charge on double jeopardy grounds. Appellant filed a pre-trial motion, however, for dismissal of the remaining charges as well on double jeopardy and related grounds. Specifically, he argued that dismissal was required because all charges stemmed from the same incident, and if the jury had acquitted him of lesser included offense possession, then a conviction on greater inclusive PWID and Delivery offenses must have been error. The court denied Appellant’s motions, and this interlocutory appeal as of right followed.

¶4 Appellant reprises his argument that acquittal of lesser included offense simple possession must place a double jeopardy, estoppel, or autrefois acquit bar on a second prosecution of the greater inclusive offenses PWID and Delivery, even if the jury convicted him on the greater offenses in the first trial. Appellant admits that he could find no case directly on point mandating or endorsing this novel preclusion argument. Nor does he gather support from inapposite decisions invoking double jeopardy protections to bar second prosecutions of greater inclusive offenses where the first trial resulted in (1) acquittal of the greater inclusive offense altogether, (2) acquittal of the lesser included offense coupled with an inability to agree upon the greater inclusive offense,3 or (3) acquittal of a lesser included offense which was the only offense charged to the jury at the first trial.4 In each of these scenarios, double jeopardy precluded a second prosecution on the greater inclusive offense either because the former ver-[238]*238diet denoted insufficient evidence with respect to the greater inclusive offense or a component part thereof, the Commonwealth had the obligation of prosecuting the greater inclusive offense at the first trial but failed to do so, or the defendant had the right of finality in the criminal judgment. The inconsistent verdicts in Appellant’s first trial do not raise these concerns, for Appellant was convicted of the greater inclusive offenses which are now refiled against him. The source of Appellant’s convoluted argument, therefore, seems to lie in his misapprehension of how the inconsistent verdicts in his first trial bear on his second trial.

Consistency in verdicts in criminal cases is not necessary.... When an acquittal on one count in an indictment is inconsistent with a conviction on a second count, the court looks upon the acquittal as no more than the jury’s assumption of a power which they had no right to exercise, but to which they were disposed through lenity. The rule that inconsistent verdicts do not constitute reversible error applies even where the acquitted offense is a lesser included offense of the charge for which a defendant is found guilty.

Commonwealth v. Petteway, 847 A.2d 713, 718 (Pa.Super.2004).

¶ 5 Read in this light, the jury’s decision to acquit Appellant of the simple possession charge but convict on PWID and Delivery charges is understood as an act of lenity in a case where the evidence focused, in any event, predominantly on Appellant’s act of delivery during a controlled buy of methamphetamine. The inconsistent verdict, therefore, does not imply error, mistake, or inability to agree as to the two greater inclusive offenses.

¶ 6 Nor is there, therefore, a double jeopardy, estoppel, or autrefois acquit problem with a second prosecution of the greater inclusive offenses in this case. Though conceptual and practical differences exist with each principle, they share the purpose of barring retrial for the same offense.

¶ 7 The double jeopardy prohibition “is often described as a universal principle of reason, justice and conscience.” Commonwealth v. Bolden, 472 Pa. 602, 373 A.2d 90 (1977) (citations omitted). Bolden continues:

Double jeopardy policy is implicated in a variety of procedural contexts. In each of these contexts, the policy against multiple trials has been recognized as central to the double jeopardy clause. The critical consideration is that a defendant should be forced to ‘run the gauntlet’ of a criminal prosecution only once for a single offense. A criminal prosecution imposes severe psychological, physical and economic burdens on the accused. It is morally wrong for the government to impose these hardships on an individual more than once for a single offense. The double jeopardy prohibition stems from this moral judgment which is deeply held by our society.

Bolden, 472 Pa. at 631, 373 A.2d at 104.

¶ 8 “Under the Double Jeopardy Clauses of both the United States and Pennsylvania Constitutions, as well as under the Pennsylvania Crimes Code, a second prosecution for the same offense after acquittal is prohibited.” Commonwealth v. Gibbons, 567 Pa. 24, 784 A.2d 776 (2001) (citing U.S. Const, amend. V; Pa. Const, art. I, § 10; 18 Pa. Cons.Stat. § 109(1)5).

[239]*239This rule barring retrial is confined to cases where the prosecution’s failure to meet its burden is clear and a second trial would merely afford the prosecution another opportunity to supply evidence that it failed to put forth in the first proceeding.
The rationale is that ‘this prohibition prevents the State from honing its trial strategies and perfecting its evidence through successive attempts at conviction. Repeated prosecutorial sallies would unfairly burden the defendant and create a risk of conviction through sheer governmental perseverance.’

Gibbons, 567 Pa. at 28, 784 A.2d at 778 (citations omitted).

¶ 9 Appellant’s retrial on PWID and Delivery charges is not based on an inadequate evidentiary proffer in the first prosecution, for the Commonwealth obtained convictions on both charges. Moreover, retrial follows what the trial court determined was a necessary, post-verdict declaration of a mistrial caused by juror misconduct. The necessity of the court’s ruling is not in dispute. This Court has specifically found that double jeopardy preclusion of “successive prosecutions” for the same offense did not apply to such a retrial. Commonwealth v. Vincent,

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Com. v. Austion, R.
Superior Court of Pennsylvania, 2020
Com. v. Noble, P.
Superior Court of Pennsylvania, 2019
Com. v. McCrae, R.
Superior Court of Pennsylvania, 2017
Com. v. Peoples. R., Jr.
Superior Court of Pennsylvania, 2017
Com. v. Bundy, J.
Superior Court of Pennsylvania, 2017
Com. v. Jerome, J.
Superior Court of Pennsylvania, 2017
Com. v. Johnson, W.
Superior Court of Pennsylvania, 2016
Com. v. Rodriguez, J.
Superior Court of Pennsylvania, 2015
Commonwealth v. Burton
121 A.3d 1063 (Superior Court of Pennsylvania, 2015)
Com. v. Burton, S.
Superior Court of Pennsylvania, 2015
Com. v. Ross, P.
Superior Court of Pennsylvania, 2015
Com. v. Walton, C.
Superior Court of Pennsylvania, 2014
Commonwealth v. Hallman
67 A.3d 1256 (Superior Court of Pennsylvania, 2013)
Commonwealth v. Cobb
28 A.3d 930 (Superior Court of Pennsylvania, 2011)
Commonwealth v. Orie
33 A.3d 17 (Superior Court of Pennsylvania, 2011)
Commonwealth v. Schmidt
919 A.2d 241 (Superior Court of Pennsylvania, 2007)

Cite This Page — Counsel Stack

Bluebook (online)
879 A.2d 234, 2005 Pa. Super. 243, 2005 Pa. Super. LEXIS 1591, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-delong-pasuperct-2005.