Commonwealth v. Klinger

398 A.2d 1036, 264 Pa. Super. 21, 1979 Pa. Super. LEXIS 2219

• Court: Superior Court of Pennsylvania
• Decided: February 23, 1979
• Docket: 490
• Status: Published

Opinions

HESTER, Judge:

On June 7, 1976, the lifeless body of Hazel Pulaski was discovered in a remote, mountainous region known as Lambs Gap, in Perry County. She had been missing for ten days and was the object of an intensive search by family, friends, and police. Her son, appellant Dennis Klinger, was formally charged with her murder and, following an eight day jury trial, during which over 30 witnesses testified, including appellant, he was found not guilty. Eight months later, the Perry County District Attorney charged appellant with various counts of perjury, false swearing, and conspiracy¹ relative to appellant’s trial testimony. At a preliminary hearing on June 20, 1977, appellant was ordered held for court on four counts of perjury and one count each of false swearing and conspiracy. A motion to dismiss, contending the prosecution is barred by double jeopardy and collateral estoppel, was denied. This appeal followed.²

Whether a prosecution is barred by a former verdict of acquittal on a different charge is determined by Section 110 of the Crimes Code, 18 C.P.S.A. §§ 110. That section provides in pertinent part:

§ 110. When prosecution barred by former prosecution for different offense

Although a prosecution is for a violation of a different provision of the statutes than a former prosecution or is based on different facts, it is barred by such former prosecution under the following circumstances:

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(2) The former prosecution was terminated, after the indictment was found, by an acquittal or by a final order or judgment for the defendant which has not been set aside, reversed or vacated and which acquittal, final order or judgment necessarily required a determination inconsistent with a fact which must be established for conviction of the second offense.

We have recognized that Sec. 110(2), although a “cumbersome statute”, does no more than codify settled principles of collateral estoppel in criminal cases: That once a former prosecution necessarily establishes an ultimate fact in favor of a defendant, then a subsequent prosecution depending upon a contrary finding must be barred. Commonwealth v. Shelhorse, 252 Pa.Super. 475, 381 A.2d 1305, 1308 (1977).³ In Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 409 (1970), the Supreme Court found the collateral estoppel doctrine is embraced by the federal constitutional proscription against double jeopardy and stated the reviewing court’s approach as follows:

“Collateral estoppel” is an awkward phrase, but it stands for an extremely important principle in our adversary system of justice. It means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.

The federal decisions have made clear that the rule of collateral estoppel in criminal cases is not to be applied with the hypertechnical and archaic approach of a 19th century pleading book, but with realism and rationality. Where a previous judgment of acquittal was based upon a general verdict, as is usually the case, this approach requires a court to “examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.” The inquiry “must be set in a practical frame and viewed with an eye to all the circumstances of the proceedings.” Sealfon v. United States, 332 U.S. 575, 579, 68 S.Ct. 237, 240, 92 L.Ed. 180. Any test more technically restrictive would of course, simply amount to a rejection of the rule of collateral estoppel in criminal proceedings, at least in every case where the first judgment was based upon a general verdict of acquittal. [Footnote omitted].

397 U.S. at 443-4, 90 S.Ct. at 1194; Commonwealth v. Grazier v. Studebaker, 481 Pa. 622, 393 A.2d 335; See also Commonwealth v. Campana (I), 452 Pa. 233, 304 A.2d 432, vacated, 414 U.S. 808, 94 S.Ct. 73, 38 L.Ed.2d 44 (1973), reinstated, 455 Pa. 622, 314 A.2d 854 (Campana II), cert. den., 417 U.S. 969, 94 S.Ct. 3172, 41 L.Ed.2d 1139 (1974). Commonwealth v. DeVaughn, 221 Pa.Super. 410, 292 A.2d 444 (1972).⁴ Accordingly, we now turn to a consideration of appellant’s murder trial. We will then construe each perjury charge to determine if the general verdict of acquittal in the murder trial will necessarily foreclose any issues sought to be proven in the perjury trial.

The commonwealth’s case against appellant was entirely circumstantial, as there were no eyewitnesses to the killing. Undisputed testimony showed that on Friday, May 28, 1976, at approximately 7:20 A.M., appellant walked into the West Shore Youth Counseling Center in Camp Hill, Pa., and was met by Vincent O’Reilly, a counselor. Appellant informed O’Reilly that he wanted to “turn himself in” to his parole officer because he had been in violation of his parole conditions.⁵ Appellant called his mother from O’Reilly’s office and asked her to pick him up at a nearby shopping center and to drive him to his parole officer. The deceased, Hazel Pulaski, was seen meeting appellant in her brown Pinto at the shopping center about 7:40 A.M., and the two drove away. Appellant was not seen again by a Commonwealth witness until 9:00 or 9:15 A.M. the same morning at the home of his friend Carol Durkin, in Camp Hill. Appellant at that time was driving the Pinto and was not accompanied by his mother. Mrs. Pulaski was not seen alive again. The critical time period, then, was between 7:40 A.M. and 9:15 A.M. on May 28, 1976. It was stipulated by counsel, and the jury was advised, that if appellant murdered his mother, it had to have occurred within that time slot. (Trans., 10/12/76, Daytime, p. 31). The events transpiring within that gap were much in dispute.

The Commonwealth proceeded on the theory that appellant drove his mother from the Camp Hill shopping center to a damp, wooded area known as Lambs Gap, where he killed her⁶ and left her face down near a small stream.⁷ Appellant then proceeded to Carol Durkin’s home, in whose company he spent the remainder of the morning. Friday evening, appellant took his girlfriend Allyson Weiss, to the Maryland shore, where the two remained until Monday evening, May 31. By that time, intensive search efforts had been launched for Mrs. Pulaski and suspicion of foul play had centered on appellant. He eluded authorities until his arrest on Wednesday, June 2.

Much of the Commonwealth’s evidence focused on appellant’s motive and opportunity to kill his mother. It was shown Mrs. Pulaski had recently preferred charges against her son for forging and cashing her checks and that appellant was bitter toward her for refusing to post bail for him on several occasions. Further, the Commonwealth established appellant was very familiar with the Lambs Gap region, having travelled there “every weekend” with friends. (Trans. 10/13/76, Daytime, pp. 57-8). Commonwealth evidence also stressed appellant’s weekend flight to the shore following his mother’s disappearance and his furtive activity up to the day of his arrest.

The defense presented a different version of the events of May 28. Appellant stated he was not in the Lambs Gap area that morning, but drove his mother to a site some 3/4 miles distant therefrom, a region known as Millers Gap. There, appellant requested his mother’s aid in locating camping equipment he had left there the previous day.⁸ Appellant parked the car and he and his mother walked along a fire trail for some distance before splitting up, at appellant’s behest, to search the area for the equipment. Once appellant lost sight of his mother, he doubled back to the car and drove away. Appellant explained this deceit by stating he needed his mother’s car to spend “one last weekend” with Allyson Weiss before he went to jail for parole violations.⁹ (Trans. 10/11/76, Evening, p. 47). Appellant was confident his mother could seek refuge at Tillie Miller’s, whose home was in Millers Gap.

As he drove from Millers Gap that morning, appellant made a brief detour up Lambs Gap road in an effort to locate two individuals from whom he wished to purchase marijuana.¹⁰ He spotted and waved to these two along the side of the road, but did not stop since there was traffic behind him. Appellant then proceeded to Carol Durkin’s home.

He returned Monday night from Maryland and soon learned his mother was missing and that he was the focus of investigation. He eluded authorities until June 2, he explained, because he had heard the police would shoot him.

The defense repeatedly stressed that appellant’s version of the events of May 28 and the period thereafter remained consistent from the day of his arrest to the time of trial and that he was, in large part, corroborated by Commonwealth witnesses. The defense also attempted to divert suspicion to the deceased’s husband, Robert, appellant’s stepfather. It was shown Robert Pulaski was continually upset with Hazel for her refusal to amend the deed on the house to include his (Robert’s) name. Further, cross-examination of Mr. Pulaski elicited several inconsistencies in what he was doing and where he was the morning of his wife’s disappearance.

Commonwealth and defense witnesses both testified to “timed runs” they had made, tracing the alleged routes of appellant the morning of the 28th. The conclusion was drawn that appellant could have travelled from Camp Hill to either Lambs or Millers Gap, and then to Carol Durkin’s home, consistent with the 7:40 A.M.-9:15 A.M. framework.

The court’s charge to the jury properly stressed the Commonwealth’s burden of proof and mentioned specifically several factors for the jury to consider: whether another person may be responsible for the death, whether the killing occurred in an area other than where the body was found (see n. 7., supra), the effect of prior inconsistent and consonant statements, and how the jury should construe evidence of motive and flight.

We will now turn to the specific perjury crimes, all of which emanated from appellant’s trial testimony. Count I charges appellant lied when he stated on cross-examination that he did not kill his mother and does not know who killed his mother, the count averring that appellant did kill his mother. Count II charges appellant lied when he stated on direct that he saw and waved to Christ and Duncan on Lambs Gap road after leaving Millers Gap, the count averring he never saw them that morning. Count III charges appellant lied when he stated on direct that the last time he saw his mother was when he lost sight of her on Millers Gap and doubled back to the car, the count averring that the last time he saw his mother was when he struck her. Count V¹¹ charges appellant lied when he stated on cross that one Nielson was the first person to whom he related the events of Millers Gap,¹² the count averring that appellant had earlier told one Sue Ann Guise that he had struck his mother and left her on the mountain. Count VI charges appellant lied when he detailed the route taken with his mother from Camp Hill to the mountain, the count averring the two had stopped at a manufacturing plant to ask about employment. Count VII charges appellant conspired with his defense attorney to commit the foregoing crimes of perjury.

Following a plenary review of the proceedings below, we are of the opinion that only the ultimate fact of Count I is barred from being litigated again. Whatever else the jury may have decided by its general verdict of acquittal, it is clear that it necessarily determined appellant did not murder his mother. To hold otherwise would distort the plain meaning of the jury’s “not guilty” verdict. Hence, appellant cannot be tried for falsely denying he killed his mother, the jury having clearly resolved that question in his favor.

Counts II through VII, however, deal with collateral portions of appellant’s testimony which, although important for the jury to consider, were not necessarily passed upon in reaching the verdict. The jury was not required to believe, for example, that appellant did see Christ and Duncan on the mountain (Count II). A rational jury could find appellant did not kill his mother and then saw no one at all on his route to Miss Durkin’s. Nor was the jury required to find appellant never struck his mother or never told anyone he struck his mother (Counts III and V). Thus, the jury could find appellant struck his mother, out of hostility proven at trial, but did not kill her. Further, a verdict of not guilty does not also require a finding that appellant pursued the course to Millers Gap to which he testified (Count VI). The Commonwealth made repeated attempts to shake this portion of appellant’s testimony and a rational jury could find appellant not guilty of murder without also deciding he took this route or that. Finally, the conspiracy charge (Count VII) was not conclusively determined by the jury.¹³

We think it clear that, based upon this voluminous record and the large number of factual issues submitted, a “rational jury could have grounded its verdict upon [issues] other than [those] which the defendant seeks to foreclose from consideration.” Ashe, supra. A general finding of not guilty of murder is not “inconsistent with . . . faet[s] which must be established for conviction” of the perjury counts. Sec. 110(2).

Our Court has, on two prior occasions, considered the question of perjury prosecutions following acquittal¹⁴ and, in each case, found the charges permissible since “the acquitting fact-finder was not required to rule upon the truth or falsity of the challenged statement in order to reach the verdict.” Commonwealth v. Rose, supra, reversed in other grounds, 437 Pa. 30, 261 A.2d 586 (1970). And in Commonwealth v. Mervin, 230 Pa.S. 552, 326 A.2d 602 (1974), we said, “[I]t is manifestly clear that the ultimate issues of fact involved in the two proceedings [assault v. perjury] were entirely different, thus precluding the applicability of collateral estoppel ... To sustain appellant’s argument . would be to allow the concept of collateral estoppel, which is designed to protect an accused from prosecutorial harassment to be used as a shield to insulate a defendant from his own wrongdoing in fraudulently obtaining a favorable result in a criminal case.” id., 230 Pa.Super. at 560, 326 A.2d at 606-7.¹⁵

As this case illustrates, collateral estoppel, because of its “inherent limitations” affords only limited protection to a defendant from successive prosecution. See Campana I, 452 Pa. at 246-7, 304 A.2d at 438. Where a jury has a multitude of issues to consider in its deliberations and the verdict on its face does not reflect on what the decision is based, the court cannot say with certainty that any one issue is conclusively adjudicated. Simply stated, neither the Double Jeopardy Clause nor Sec. 110(2) provide appellant the relief he seeks. See also, Commonwealth v. Hogan, 482 Pa. 333, 393 A.2d 1133.

Accordingly, we reverse that portion of the lower court’s order which directs appellant to be tried on Count I and that part of Count VII relating to Count I. In all other respects we affirm and remand for trial.

Affirmed in part and reversed in part.

HOFFMAN, J., files a dissenting opinion.

1 . Act of Dec. 6, 1976, P.L. 1482, No. 334, §§ 1, 18 C.P.S.A. §§ 4902, 4902, 903, respectively.

2 . Jurisdiction rests in this Court pursuant to the Appellate Court Jurisdiction Act, 17 P.S. §§ 211.302. Denial of a pre-trial application seeking discharge on double jeopardy grounds is a “final order” for purpose of §§ 211.302 and is thus appealable prior to trial. Commonwealth v. Bronson, 482 Pa. 207, 393 A.2d 453; Commonwealth v. Bolden, 472 Pa. 602, 373 A.2d 90 (1977); Commonwealth v. Haefner, 473 Pa. 154, 373 A.2d 1094 (1977).

3 . Courts of this Commonwealth applied collateral estoppel in the criminal context long before the enactment of Sec. 110(2). See e. g. Dinkey v. Commonwealth, 17 Pa. 126 (1851). More recently, see Commonwealth v. Rose, 214 Pa.Super. 50, 251 A.2d 815 (1969), reversed on other grounds, 437 Pa. 30, 261 A.2d 586 (1970).

4 . The Double Jeopardy Clause is applicable to the states through the Due Process Clause of the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). Grazier, supra. Pennsylvania’s double jeopardy clause is found in Art. 1, Sec. 10, and differs “only stylistically” from the parallel federal provision. Campana I, supra.

5 . Appellant had served four months in jail for forging several of his mother’s checks and had been paroled in April, 1976.

6 . Cause of death was determined to be asphyxia. The victim had inhaled a large quantity of foreign material, principally sand, gravel, small twigs, and plants. It was not disputed that cause of death and the pathologist’s findings were consistent with a homicide.

7 . The Commonwealth’s case left open the possibility that Mrs. Pulaski was killed somewhere else, and then taken to Lambs Gap. There was conflicting testimony on whether the foreign material found in her lungs came from Lambs Gap or from some nearby region.

8 . Appellant admitted at trial there was in fact no camping equipment at Millers Gap, as he had removed it the day before.

9 . Appellant stated he thought he had violated his parole by failing to keep steady employment.

10 . These two fellows later turned out to be, apparently, Christ and Duncan.

11 . Count IV was dismissed at the preliminary hearing.

12 . Nielson was an Outreach worker at the West Shore Youth Center.

13 . Count VII alleges appellant conspired to lie about all the issues in Counts I through VI. Since we hold the fact sought to be proven in Count I is now foreclosed, appellant may not be tried for conspiracy as to Count I.

14 . Other jurisdictions have likewise confronted the problem and have undertaken an analysis similar to ours. Because each case turns on an examination of the former proceeding, the results go both ways. See, U. S. v. Williams, 341 U.S. 58, 71 S.Ct. 595, 95 L.Ed. 747 (1950) (perjury prosecution not barred); U. S. v. Gugliaro, 501 F.2d 68 (2nd Cir., 1974) (perjury prosecution not barred); Adams v. U. S., 287 F.2d 701 (5th Cir., 1981) (not barred); U. S. v. Drevetzki, 338 F.Supp. 403 (N.D.Ill.1972) (barred); State v. DeSchepper, 304 Minn. 399, 231 N.W.2d 294 (1975) (not barred); People v. Houseman, 44 Cal.App.2d 619, 112 P.2d 944 (1941), cert. den. 314 U.S. 660, (1941) (not barred).

15 . “Double jeopardy does not bar the perjury prosecution since the offenses are different and honest testimony under oath must be insisted upon even in the case of persons defending themselves against charges of crime ... In such a situation [estoppel v. perjury], one may legitimately prefer to preserve the sanction against perjury, which is always an evil, rather than be moved by the mere opportunity for abuse, which conscientious prosecutors would reject. [R]arely, if ever, does a general verdict of not guilty ‘necessarily require a determination’ on any particular fact asserted by the defendant”. Comments, Model Penal Code, Tent. Draft No. 6 (1956), p. 122-3. We also reject the notion that a verdict of acquittal means the jury believed all of a defendant’s testimony and that of his witnesses. “The theory that when a jury acquits a defendant in a criminal proceeding, it thereby finds to be true the testimony of all witnesses called upon his behalf is not supported by reason or the common knowledge of mankind.” People v. Houseman, supra, 44 Cal.App.2d 619, 623, 112 P.2d 944, 947, (1941), cert. den. 314 U.S. 660, 62 S.Ct. 114, 86 L.Ed. 529 (1941).