Commonwealth v. Smalis

480 A.2d 1046, 331 Pa. Super. 307

• Court: Supreme Court of Pennsylvania
• Decided: August 24, 1984
• Docket: 12 to 15, 45 to 48
• Status: Published

Opinions

WIEAND, Judge:

The trial court in this criminal action sustained defense demurrers to charges of murder, voluntary manslaughter and causing a catastrophe. The Commonwealth appealed. We do not reach the substantive merits of the appeal. Principles of double jeopardy, as interpreted and applied by recent decisions of the Supreme Court of the United States, bar the Commonwealth’s right of appeal and compel us to quash the appeal.

Despina Smalis and Ernest Smalis were the owners of a building in the Oakland section of Pittsburgh which housed a bar and restaurant known as “Chances R” and seven dwelling units. On February 12, 1979, a fire destroyed the building, killing two tenants who were in the dwelling units. The owners were accused of setting the fires or causing them to be set and were charged with criminal homicide, recklessly endangering another person, causing a catastrophe and failing to prevent a catastrophe. Despina Smalis was also charged with theft by deception. The evidence was heard by the court without a jury. At the close of the Commonwealth’s case, the trial court sustained a demurrer to the evidence with respect to the charges of murder, voluntary manslaughter and causing a catastrophe.¹ The court did so because, as the trial court observed in a subsequent opinion, “[a]s the trier of fact and law, the court was not satisfied, after considering all of the facts together with all reasonable inferences which the Commonwealth’s evidence tended to prove, that there was sufficient evidence from which it could be concluded that either of the defendants was guilty beyond a reasonable doubt of setting or causing to be set the fire in question.” The Commonwealth appealed.²

Until recent times, a demurrer to the evidence was merely a procedural device, authorized by the Act of June 5, 1937, P.L. 1703, § 1, 19 P.S. § 481 (repealed), by which a criminal defendant might test the sufficiency of the Commonwealth’s evidence at the close of the Commonwealth’s case. See: Commonwealth v. Heller et al., 147 Pa.Super. 68, 83, 24 A.2d 460, 467 (1942). See also: 10A P.L.E. Criminal Law § 617. Under this practice, it was said, an order sustaining a demurrer to the evidence determined no facts and was purely a question of law. Such an order, the decisions uniformly held, was appealable by the Commonwealth. Commonwealth v. Long, 467 Pa. 98, 100 n. 2, 354 A.2d 569, 570 n. 2 (1976); Commonwealth v. Melton, 402 Pa. 628, 629, 168 A.2d 328, 329 (1961); Commonwealth v. Lewis, 299 Pa.Super. 367, 369, 445 A.2d 798, 799 (1982); Commonwealth v. Matsinger, 288 Pa.Super. 271, 273, 431 A.2d 1043, 1044 (1981); Commonwealth v. Barone, 276 Pa.Super. 282, 289 n. 9, 419 A.2d 457, 461 n. 9 (1980); Commonwealth v. Ferrone, 218 Pa.Super. 330, 333, 280 A.2d 415, 417 (1971).

The practice of demurring to the evidence is now governed by Pa.R.Crim.P. 1124(a). This rule equates a demurrer to the evidence with other motions intended to challenge the legal sufficiency of the evidence to support a conviction. The Rule provides:

(a) A defendant may challenge the sufficiency of the evidence to sustain a conviction of one or more of the offenses charged by a:

(1) demurrer to the evidence presented by the Commonwealth at the close of the Commonwealth’s case-in-chief;

(2) motion for judgment of acquittal at the close of all the evidence;

(3) motion for judgment of acquittal filed within ten (10) days after the jury has been discharged without agreeing upon a verdict; or

(4) motion in arrest of judgment filed within ten (10) days after a finding of guilt.

When a court finds the Commonwealth’s evidence legally insufficient under this Rule, the evidence has been found to be so lacking in sufficiency that no rational fact finder could base a conviction thereon. When such a determination has been made, the Supreme Court of the United States has held, principles of double jeopardy bar a second trial.

When a trial judge directs a verdict of acquittal, as under Rule 1124(a)(2), that verdict is final. Because a second trial is barred by principles of double jeopardy, the Commonwealth has no right of appeal from an order directing a verdict of acquittal. Fong Foo v. United States, 369 U.S. 141, 82 S.Ct. 671, 7 L.Ed.2d 629 (1962). See also: Finch v. United States, 433 U.S. 676, 97 S.Ct. 2909, 53 L.Ed.2d 1048 (1977)(dismissal of charges prior to entry of verdict on grounds that stipulated facts did not state an offense held unappealable); In The Interest of R.K.K., 112 Ill.App.3d 982, 68 Ill.Dec. 573, 446 N.E.2d 307 (1983)(“directed verdict” entered at close of state’s case-in-chief based upon state’s failure to prove age of victim in statutory rape case held not appealable); State v. Murrell, 54 N.C.App. 342, 283 S.E.2d 173 (1981)(dismissal of charges on insufficiency grounds at close of trial held not appealable). Cf. People v. Casiel, 41 N.Y.2d 945, 394 N.Y.S.2d 630, 363 N.E.2d 354 (1977), reversing 42 A.D.2d 762, 346 N.Y.S.2d 349 (1973); State v. Winborne, 273 S.C. 62, 254 S.E.2d 297 (1979).

When a trial court grants a motion for judgment of acquittal after the jury has been discharged without agreeing upon a verdict, as under Rule 1124(a)(3), the defendant cannot be retried. Such a ruling represents a final determination that the prosecution failed to prove facts sufficient to convict. It is the same determination which is made by a court when it directs a verdict of acquittal at the close of the evidence. Because the federal Double Jeopardy Clause bars a retrial, the Commonwealth has no right of appeal from an order directing a verdict under such circumstances. United States v. Martin Linen Supply Co., 430 U.S. 564, 97 S.Ct. 1349, 51 L.Ed.2d 642 (1977). See also: United States v. Suarez, 505 F.2d 166 (2d Cir.1974).

Principles of double jeopardy are applicable also when a trial court has granted a post-trial motion in arrest of judgment in a manner similar to that provided for in Rule 1124(a)(4) or where an appellate court has reversed a conviction on grounds that the evidence was so inadequate that no rational fact finder could have voted to convict thereon. Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981)(determination by trial court pursuant to post-trial motion that evidence was insufficient to support conviction bars retrial); Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978)(determination by appellate court that evidence was insufficient to support conviction bars retrial); Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978)(determination by appellate court that government failed to introduce sufficient evidence to rebut defendant’s proof of insanity, holding in essence that trial court should have directed a verdict in defendant’s favor, bars retrial). However, where a trial court has found post-verdict that the evidence was insufficient as a matter of law to support the verdict, that determination is subject to appellate review, for an order by an appellate court reversing such a conclusion and reinstating the verdict does not require a second trial. Therefore, there is no violation of principles of double jeopardy. Commonwealth v. Rawles, 501 Pa. 514, 519-520, 462 A.2d 619, 621 (1983). See also: United States v. Singleton, 702 F.2d 1159 (D.C.Cir.1983) (collecting cases at 1161-1162 n. 8); Commonwealth v. Macolini, 503 Pa. 201, 469 A.2d 132 (1983) (Superior Court’s reversal of judgment of sentence on grounds of insufficiency of evidence reversed by Supreme Court).

The legal principle to be drawn from these decisions was articulated in United States v. Scott, 437 U.S. 82, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978) as follows: “A judgment of acquittal, whether based on a jury verdict of not guilty or on a ruling by the court that the evidence is insufficient to convict, may not be appealed and terminates the prosecution when a second trial would be necessitated by a reversal.” Id. at 91, 98 S.Ct. at 2194, 57 L.Ed.2d at 74 (footnote omitted).³

A demurrer to the evidence requires a court to accept as true the evidence presented by the Commonwealth and view that evidence, together with all reasonable inferences to be drawn therefrom, in the light most favorable to the Commonwealth. See: Commonwealth v. Turner, 491 Pa. 620, 622, 421 A.2d 1057, 1058 (1980); Commonwealth v. Wimberly, 488 Pa. 169, 171, 411 A.2d 1193, 1194 (1979); Commonwealth v. Duncan, 473 Pa. 62, 66 n. 2, 373 A.2d 1051, 1052 n. 2 (1977); Commonwealth v. Long, supra 467 Pa. at 100, 354 A.2d at 570; Commonwealth v. Bastone, 321 Pa.Super. 232, 236-237, 467 A.2d 1339, 1341 (1983); Commonwealth v. Cugnini, 307 Pa.Super. 113, 115, 452 A.2d 1064, 1065 (1982); Commonwealth v. Gilliard, 300 Pa.Super. 469, 478, 446 A.2d 951, 955 (1982). The court must then determine whether the Commonwealth’s evidence, when so considered, is sufficient to permit a rational person to base thereon a finding of guilt beyond a reasonable doubt.

The Supreme Court of the United States has not distinguished and set aside for separate treatment those determinations of evidentiary insufficiency which are made mid-trial. See and compare: Sanabria v. United States, 437 U.S. 54, 98 S.Ct. 2170, 57 L.Ed.2d 43 (1978)(pre-verdict acquittal for insufficient evidence, even though caused by erroneous evidentiary ruling, held not appealable); Finch v. United States, supra (dismissal of charges prior to entry of verdict on grounds that stipulated facts did not state an offense held unappealable); Fong Foo v. United States, supra (order directing verdict of acquittal entered during government’s case-in-chief held not appealable). The Supreme Court has said, rather, that in determining whether action taken by the trial court has constituted an “acquittal” for double jeopardy purposes, the form of the judge’s action is not controlling. “[W]e must determine whether the ruling of the judge, whatever its label, actually represents a resolution, correct or not, of some or all of the factual elements of the offense charged. ” United States v. Martin Linen Supply Co., supra, 430 U.S. at 571, 97 S.Ct. at 1354-1355, 51 L.Ed.2d at 651 (emphasis added). See: United States v. Scott, supra, 437 U.S. at 97, 98 S.Ct. at 2197, 57 L.Ed.2d at 78; Burks v. United States, supra, 437 U.S. at 10, 98 S.Ct. at 2147, 57 L.Ed.2d at 9; United States v. Genser, 710 F.2d 1426, 1427-1428 (10th Cir.1983); United States v. Allison, 555 F.2d 1385, 1387 (7th Cir.1977); Commonwealth v. Ward, 493 Pa. 115, 425 A.2d 401 (plurality opinion), cert. denied, 451 U.S. 974, 101 S.Ct. 2055, 68 L.Ed.2d 354 (1981); Commonwealth v. Tabb, 491 Pa. 372, 421 A.2d 183 (1980), cert. denied, 450 U.S. 1000, 101 S.Ct. 1708, 68 L.Ed.2d 202 (1981); Commonwealth v. Wimberly, supra; Commonwealth v. Dincel, 311 Pa.Super. 470, 457 A.2d 1278 (1983).

In view of recent Supreme Court decisions, a growing number of jurisdictions has held that a judicial determination of insufficient evidence, when made mid-trial, is not subject to appeal. See: Miller v. State, 648 P.2d 1015 (Alaska 1982)(charges dismissed after state’s case-in-chief on insufficiency grounds due to inability of witness to testify held not subject to reinstatement); State v. Smith, 164 Ga.App. 598, 298 N.E.2d 583 (1982)(no right of appeal from “directed verdict” entered at close of case-in-chief); In The Interest of R.K.K., supra (same); State v. Whorton, 225 Kan. 251, 589 P.2d 610 (1979)(dismissal of charges during state’s case-in-chief on sufficiency grounds held unappealable); State v. Shaw, 282 Md. 231, 383 A.2d 1104 (1978)(dismissal of charges upon submitted facts not appeal-able where trial court held that alleged criminal conduct did not constitute crime); People v. Anderson, 409 Mich. 474, 295 N.W.2d 482 (1980), cert. denied, 449 U.S. 1101, 101 S.Ct. 896, 66 L.Ed.2d 827 (1981)(determination that evidence was insufficient to sustain charge of first degree murder after presentation of some, but not all, of state’s case-in-chief held unappealable); State v. Greenwalt, Mont., 663 P.2d 1178 (1983) (no appeal from dismissal of charges on insufficiency grounds after state’s case-in-chief); People v. Brown, 40 N.Y.2d 381, 386 N.Y.S.2d 848, 353 N.E.2d 811 (1976), cert. denied, 433 U.S. 913, 97 S.Ct. 2986, 53 L.Ed.2d 1099 (1977), followed as stated in People v. Key, 45 N.Y.2d 111, 408 N.Y.S.2d 16, 379 N.E.2d 1147 (1978)(same); State v. Musselman, 667 P.2d 1061 (Utah 1983)(same); In the Matter of Dowling, 98 Wash.2d 542, 656 P.2d 497 (1983)(same).

An order sustaining a demurrer to the evidence under current Pennsylvania practice is a mid-trial determination that the prosecution’s evidence is legally insufficient to support a conviction. Pa.R.Crim.P. 1124(a)(1). For double jeopardy purposes it has precisely the same effect as a directed verdict of acquittal. A court has made a determination that upon the evidence presented no rational fact finder could vote to convict the defendant. This is a termination of the trial on a basis related to a factual determination of guilt or innocence. “Under the dispositive [decisions of the Supreme Court] such a ruling of insufficiency, no matter how labeled, represents a conclusion that there has been a failure of proof: that is, there has been an acquittal which is to be accorded the special significance of finality and unreviewability.” Strazzella, Commonwealth Appeals and Double Jeopardy, 4 Pa.L.J. 11, 12 (1981).

In a case in which a trial court based an order granting a demurrer upon a comparison of the relative credibility of witnesses, this Court held that the Commonwealth had no right of appeal. Commonwealth v. Stumpo, 306 Pa.Super. 447, 452 A.2d 809 (1982). Accord: Commonwealth v. Wimberly, supra. We have also held that the Commonwealth has no right of appeal where the trial court has sustained a demurrer to the evidence and, in addition, has entered a finding of not guilty. Commonwealth v. Thinnes, 263 Pa.Super. 79, 397 A.2d 5 (1979). Accord: Commonwealth v. Haines, 410 Pa. 601, 190 A.2d 118 (1963). For double jeopardy purposes, there is no practical distinction to be drawn between the determinations made in these cases and a determination that the evidence, when considered in the light most favorable to the Commonwealth, is so lacking in sufficiency that no rational fact finder can rest a conviction thereon. In either situation, there has been a termination of the trial on a basis related to a factual determination of guilt or innocence. In either situation, a second trial is necessary in the event of reversal.

How, then, can an order sustaining a demurrer to the evidence under Pennsylvania practice be distinguished from other insufficiency determinations which'are not appealable? If it cannot be so distinguished, how can we refuse to follow the decisions of the Supreme Court of the United States which define and apply the Double Jeopardy Clause of the United States Constitution? The answer is that we cannot. Prior Pennsylvania decisions holding that orders sustaining demurrers are appealable by the Commonwealth can no longer be followed. They are at variance with decisions of the Supreme Court of the United States. We hold, therefore, that a mid-trial order holding the evidence insufficient to support a conviction is not appealable by the Commonwealth.⁴

Where the trial court’s determination constitutes an “acquittal” within the definition of Martin Linen, an appeal is barred not only when it might result in a second trial, but also if reversal would translate into “ 'further proceedings of some sort, devoted to the resolution of factual issues going to the elements of the offense charged. United States v. Martin Linen Supply Co., supra, 430 U.S. at 570, 97 S.Ct. at 1354, 51 L.Ed.2d at 650, quoting with approval from United States v. Jenkins, 420 , 95 S.Ct. 1006, 1013, 43 L.Ed.2d 250, 259 (1975).⁵ See also: United States v. Harvey, 377 A.2d 411, 414 (D.C.App.1977); State v. Shaw, supra 282 Md. at 232, 383 A.2d at 1106; People v. Brown, supra, 40 N.Y.2d at 389-390, 386 N.Y.S.2d at 854, 353 N.E.2d at 818; Commonwealth v. Bolden, 472 Pa. 602, 630, 373 A.2d 90, 103 (1977) (plurality opinion); State v. Musselman, supra at 1066 & n.5. In the instant case, even if it were feasible to resume the pending trial in the event of appellate reversal of the trial court’s determination, further proceedings devoted to the resolution of substantive, factual issues would most certainly be necessary.

The trial court in the instant case granted a defense demurrer to charges of murder and voluntary manslaughter and also to counts of causing a catastrophe. Its decision was based upon a determination that the evidence adduced by the Commonwealth was legally insufficient to enable a rational person to find the defendants guilty of those charges. This was a decision factually related to guilt or innocence. If it were reversed, further proceedings devoted to the resolution of factual issues would be necessary. Such proceedings, however, are barred by principles of double jeopardy. Under these circumstances, the Commonwealth has no right of appeal.

Appeal quashed.

JOHNSON, J., filed a dissenting opinion.

1 . Trial on the remaining charges of involuntary manslaughter, recklessly endangering, failing to prevent a catastrophe, and theft by deception, was continued and held in abeyance to permit the Commonwealth to appeal the order sustaining demurrers to the charges of murder, voluntary manslaughter and causing a catastrophe. This procedure is not recommended. After a criminal trial has been commenced, it should not be delayed by piecemeal appeals from orders which do not terminate the proceedings finally. Because we conclude that the Commonwealth in any event has no right of appeal from a mid-trial determination that the evidence is insufficient to sustain a conviction, we do not decide whether the court’s order in this case was interlocutory or sufficiently final to permit appeal.

2 . The trial court granted a Commonwealth petition for reconsideration, but after reconsidering, the court confirmed its prior order sustaining the demurrers. The Commonwealth filed a second appeal from this order.

3 . This rule has no application to cases where a trial judge has terminated a criminal proceeding favorably to the defendant on a basis not related to factual guilt or innocence (United States v. Scott, supra) or where a retrial has been granted at the instance of the defendant because a court found a verdict of guilty contrary to the weight of the evidence (Tibbs v. Florida, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982)).

4 . Our holding will increase the responsibility vested in trial courts. It should encourage trial judges to exercise even greater care and caution in sustaining defense demurrers to the evidence.

5 . The decision in United States v. Jenkins was overruled on other grounds in United States v. Scott, supra, holding that the government has a right of appeal from pre-verdict orders entered pursuant to defense motions for dismissal of charges unrelated to "factual guilt or innocence.” See: Lee v. United States, 432 U.S. 23, 29-30 & n.7, 97 S.Ct. 2141, 2145 & n.7, 53 L.Ed.2d 80, 86-87 & n.7 (1977).