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NON-PRECEDENTIAL DECISION SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. : No. 857 EDA 2013
:
ERIC LOWRY :
Appeal from the Order Entered February 15, 2013,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0013931-2011
BEFORE: FORD ELLIOTT, P.J.E., BOWES AND SHOGAN, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.:FILED SEPTEMBER 19, 2014
The Commonwealth appeals from the order of February 15, 2013,
finding appellant not guilty of all charges. Procedurally, this is a rather
unusual case; however, after careful review, we are compelled to conclude
that a retrial would violate the rule against double jeopardy. The
Commonwealth cannot appeal a verdict of acquittal. Therefore, this court
we quash the instant appeal.
Following a traffic stop on the evening of May 6, 2011, appellee,
Eric charged with two counts of violating the Uniform
1
and one count of possession of a small amount of
1
18 Pa.C.S.A. §§ 6106 (firearms not to be carried without a license) and
6108 (carrying firearms on public streets or public property in Philadelphia).
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marijuana.2
evidence was granted as to the marijuana and denied as to the firearm.
Lowry waived his right to a jury trial, and the matter proceeded to a bench
trial on the remaining VUFA charges before the Honorable Ann M. Butchart.
A non-jury trial was held on January 18, 2013. Police Officer
Justin y 6, 2011, at approximately 7:28 p.m., he
observed Lowry make two turns without signaling. (Notes of testimony,
1/18/13 at 13-
(Id. owry
reach into the center console area, grab a black handgun, and place it into
the glove compartment. (Id.
Officer MacConnell, ordered Lowry out of the vehicle at gunpoint. (Id. at
ack Glock semi-automatic handgun from
the glove compartment. (Id. at 16.) The firearm was loaded with one
cartridge in the chamber and eight in the magazine. (Id.) Lowry did not
produce a license to carry firearms, and a computer check with PCIC/NCIC
did not indicate that Lowry possessed a valid license. (Id. at 16-17.)
On cross-
December 19, 2013. (Id. knowledged that it
looked like a valid permit, but reiterated that PCIC/NCIC indicated that
2
35 P.S. § 780-113(a)(31).
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Lowry did not have a license to carry firearms. (Id. at 18-19.)
Officer Id.)
The Commonwealth next called Officer Vargas, who testified that on
July 26, 2009, he confiscated a license to carry firearms from Lowry. (Id. at
21.) Officer Vargas placed the license on a property receipt which Lowry
signed. (Id. at 22.) On cross-examination, Officer Vargas acknowledged
that placing the license on a property receipt was improper police procedure.
(Id. at 25.) Rather, the license is supposed to be forwarded via police mail
to the Gun Permit Tracking Unit. (Id. at 27.) Officer Vargas admitted that
he did not do that in this case. (Id.) Officer Vargas also agreed that Lowry
appeared to have a license to carry firearms in his name. (Id. at 28-29.)
items into evidence, including a certificate of non-licensure. (Id. at 32-34.)
The Commonwealth then rested its case. (Id. at 34.) At that point, Lowry
made a motion for judgment of acquittal, arguing, inter alia, that the
Commonwealth failed to prove he did not have a valid license to carry
firearms on May 6, 2011.3
judgment of acquittal. (Id. at 37.)
permission to bring in an additional witness from the Gun Permit Unit. (Id.
3
Lowry also argued that the Commonwealth failed to prove he was properly
notified that his license was revoked. (Id. at 36-37.)
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at 41.) According to the Commonwealth, this witness could testify regarding
the issue of Lowry allegedly having multiple licenses to carry firearms. (Id.
at 46-48, 50.) Judge Butchart indicated she would take the matter under
advisement. (Id. at 53.)
On January
i.e., a
counterfeit gun permit. (Motion to dismiss, 1/23/13, Docket #5 at 2 ¶9.)
(See
also continued to argue that he was not provided proper notice of revocation
as required by 18 Pa.C.S.A. § 6109(i).
On January 25, 2013, a hearing was held before Judge Butchart. The
trial judge denied the Commonwealth permission to reopen the case to
present a witness from the Gun Permit Unit. (Notes of testimony, 1/25/13
at 6.
believe it would prejudice the defendant and would outweigh any other
Id.) Judge Butchart also indicated she
Commonwealth has not at the time that it closed its case proven that the
Id.) The trial court also
entered an order to that effect, dismissing all charges. (Docket #6.)
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Another hearing was held on February 15, 2013, at which the trial
court indicated that it wished to clarify the record. (Notes of testimony,
6108, I find the defendant in this ca Id.) The
Commonwealth then protested that the trial court had already denied
motion to dismiss4:
[Assistant District Attorney Whitney Golden, Esq.]:
Your Honor --
[THE COURT]: Hold on.
[MS. GOLDEN]: If I may. Your Honor did grant a
motion to dismiss these charges.
[THE COURT]: Correct.
[MS. GOLDEN]: If I may ask you, are you
overturning that ruling?
[THE COURT]: We are clarifying. When I reread the
motion, and I reread what had transpired on that
date. I thought for purposes of clarity and simplicity
it would be better to, in fact, just re[-]characterize it.
Does that answer your question?
[MS. GOLDEN]: It does. But, Your Honor, defense
know how a ruling of guilt or not guilty could be
made.
4
Ordinarily, granting a defendan
government from appealing or seeking retrial. Commonwealth v. Roche,
675 A.2d 341, 343 (Pa.Super. 1996), citing Commonwealth v. Adams,
502 A.2d 1345, 1350 (Pa.Super. 1986).
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[THE COURT]: Basically, because the
Commonwealth did not prove its case.
[MS. GOLDEN]: So would it be a motion for
judgment of acquittal?
[THE COURT]: We already had a motion for
judgement [sic] of acquittal and I denied that
motion.
[MS. GOLDEN]: Just procedurally, Your Honor, I just
[THE COURT]:
could, if we wish, to dial it back a little bit. Defense
could rest and then we could proceed. But I think
that will be even more complicated given the status
of this case. If there are any questions that either
coun
this.
[MS. GOLDEN]: Yes, Your Honor.
[Defense counsel]: Thank you, Judge.
[THE COURT]: Thank you.
Id. at 4-6.
The Commonwealth filed a timely notice of appeal, together with a
concise statement of errors complained of on appeal pursuant to Pa.R.A.P.,
Rule 1925(b), 42 Pa.C.S.A., on March 14, 2013. On October 25, 2013, the
trial court filed an opinion, clarifying, once again, that it found the
Commonwealth presented insufficient proof to convict Lowry of the VUFA
charges. (Trial court opinion, 10/25/13 at 7.) The trial court stated that in
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however, it ultimately resolved the matte
(Id. at 7-8.)
acquittal and granted his motion for dismissal, did it err twenty-one days
States and Pennsylvania constitutions are
coextensive and prohibit repeated prosecutions for
Commonwealth v. Lively, 530
Pa. 464, 467, 610 A.2d 7, 8 (1992) (citations
omitted). If a former prosecution results in either
acquittal or conviction, statutory law explicitly
precludes the Commonwealth from trying a
defendant a second time. Commonwealth v.
Bracalielly, 540 Pa. 460, 470, 658 A.2d 755, 760
(1995) (citing 18 Pa.C.S.A. § 110). Thus, if the
Commonwealth loses in a case, double jeopardy
considerations preclude appeal. In contrast, a
defendant convicted under an erroneous pre-trial
ruling retains the right to cure the defect on appeal.
Commonwealth v. Stevenson, 829 A.2d 701, 704 (Pa.Super. 2003).
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. See U.S. CONST. amend. V; PA. CONST.
art. I, § 10; 18 Pa.C.S. § 109(1).[Footnote 5] This
rule barring retrial is confined to cases where the
second trial would merely afford the prosecution
another opportunity to supply evidence that it failed
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to put forth in the first proceeding. See
Commonwealth v. Vogel, 501 Pa. 314, 461 A.2d
604, 609-610 (1984) (citing Burks v. U.S., 437 U.S.
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
Id. (citing
Green v. United States, 355 U.S. 184, 187-188, 78
S.Ct. 221, 2 L.Ed.2d 199 (1957)).
[Footnote 5] Section 109 provides:
When a prosecution is for a violation of
the same provision of the statutes and is
based upon the same facts as a former
prosecution, it is barred by such former
prosecution under the following
circumstances:
(1) The former prosecution
resulted in an acquittal.
There is an acquittal if the
prosecution resulted in a
finding of not guilty by the
trier of fact or in a
determination that there was
insufficient evidence to
warrant a conviction. A
finding of guilty of a lesser
included offense is an
acquittal of the greater
inclusive offense, although
the conviction is
subsequently set aside.
18 Pa.C.S. § 109(1).
Commonwealth v. Gibbons, 784 A.2d 776, 777-778 (Pa. 2001).
Double Jeopardy also necessarily bars an appeal by a
state from a verdict of acquittal. See Smalis v.
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Pennsylvania, 476 U.S. 140, 106 S.Ct. 1745, 90
L.Ed.2d 116 (1986); Commonwealth v. Maurizio,
496 Pa. 584, 437 A.2d 1195 (1981). A judgment of
acquittal, whether based on a verdict of not guilty or
on a ruling by the court that the evidence was
insufficient to convict, may not be appealed. See
United States v. Scott, 437 U.S. 82, 91, 98 S.Ct.
characterization of its action does not necessarily
control the classification of the action.
Commonwealth v. McDonough, 533 Pa. 283, 621
A.2d 569, 573 (1993). Rather, a defendant is
its label, actually represents a resolution [in the
rect or not, of some or all of
Id. at
97, 621 A.2d 569 (quoting United States v. Martin
Linen Supply, 430 U.S. 564, 571, 97 S.Ct. 1349, 51
L.Ed.2d 642 (1977)).
Id. at 778.
n the history of
verdict of acquittal . . . could not be reviewed, on
error or otherwise, without putting [a defendant]
twice in jeopardy, and thereby violating the
United States v. Martin Linen
Supply Co., 430 U.S. 564, 572, 97 S.Ct. 1349,
1354, 51 L.Ed.2d 642 (1977), quoting United
States v. Ball, 163 U.S. 662, 671, 16 S.Ct. 1192,
1195, 41 L.Ed. 300 (1896). As the Supreme Court
factfinder in a criminal case has traditionally been
permitted to enter an unassailable but unreasonable
Jackson v. Virginia, 443
U.S. 307, 317 n. 10, 99 S.Ct. 2781, 2788 n. 10, 61
absolute final -
no matter how erroneous its decision . . .
Bullington v. Missouri, 451 U.S. 430, 442, 101
S.Ct. 1852, 1860, 68 L.Ed.2d 270 (1981), quoting
Burks v. United States, 437 U.S. 1, 16, 98 S.Ct.
2141, 2150, 57 L.Ed.2d 1 (1978). Accord,
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Commonwealth v. Mitchell, 497 Pa. 14, 17, 438
A.2d 596, 597 (1981). Thus, where a defendant has
been found not guilty at trial, he may not be retried
underlying the acquittal were erroneous. Sanabria
v. United States, 437 U.S. 54, 64, 98 S.Ct. 2170,
2179, 57 L.Ed.2d 43 (1978).
Commonwealth v. Tillman, 461 A.2d 795, 796-797 (Pa. 1983).
See also Tibbs v. Florida, 457 U.S. 31, 41, 102
S.Ct. 2211, 2218, 72 L.Ed.2d 652 (1982) (verdict of
not gu
Borough of West Chester v. Lal, 493 Pa. 387,
392, 426 A.2d 603, 605 (1981), quoting Sanabria
v. United States, supra, 43 U.S. at 64, 98 S.Ct. at
2178; see Fong Foo v. United States, 369 U.S.
141, 82 S.Ct. 671, 7 L.Ed.2d 629 (1962).
Id. at 797.
to dismiss on purely legal grounds, i.e., that the Commonwealth alleged
Lowry presented a counterfeit gun permit, and this allegation so prejudiced
ismiss did not provide the basis therefore;
however, it should be noted that Lowry also argued in his motion to dismiss
that the Commonwealth failed to prove he had notice of revocation. The
Commonwealth argues that notice of revocation is not an element of the
offenses charged. Regardless, the trial court made it explicitly clear at the
February 15, 2013 hearing that the Commonwealth failed to prove its case,
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court found that the Commonwealth failed to prove some or all of the factual
elements of the offenses charged. While the Commonwealth may disagree
ppeal and terminates
any subsequent prosecution under the principles of double jeopardy. Cf.
Commonwealth v. Micklos, 672 A.2d 796 (Pa.Super. 1996), appeal
denied, 686 A.2d 1309 (Pa. 1996) (where the trial court improvidently
dismissed the charges after finding that the police lacked probable cause to
be excluded, the dismissal was predicated on wholly legal rather than factual
grounds and was not the functional equivalent of an acquittal);
Commonwealth v. Adams
order dismissing the charges against the defendant was not the functional
equivalent of an acquittal, where the trial court dismissed the charges on the
ground that the Commonwea
innocence).
The Commonwealth also argues that once Judge Butchart had denied
onal
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original, January 25 order and instead enter a verdict of not guilty.
According to the Commonwealth, the February 15 order finding Lowry not
guilty is a legal nullity.
the parties may modify or rescind any order within 30 days after its entry,
notwithstanding the prior termination of any term of court, if no appeal from
Judge Butchart lacked the authority to clarify her January 25 order. We also
obse
motion, Judge Butchart specifically found, on the record, that the
Commonwealth had failed to prove the charges. (Notes of testimony,
1/25/13 at 6.)
The cases relied on by the Commonwealth for the proposition that
Cf. Commonwealth v. Robinson, 33 A.3d 89 (Pa.Super. 2011), appeal
denied, 42 A.3d 292 (Pa. 2012) (trial court, sitting as fact-finder, originally
found the defendant guilty of theft by unlawful taking and sentenced him to
hearing, sua sponte
verdict of not guilty, stating that it had failed to give due consideration to
character evidence); Commonwealth v. McDaniels, 886 A.2d 682
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(Pa.Super. 2005), appeal denied, 903 A.2d 537 (Pa. 2006), cert. denied,
third-degree murder was a legal nullity, where it was entered after the jury
announced it was unable to reach a verdict, they were discharged and a
mistrial declared); Commonwealth v. Stark, 584 A.2d 289 (Pa. 1990)
nullity where it had initially
found the defendant guilty, but then changed its verdict during sentencing to
one of not guilty after arguing with the assistant district attorney about the
Instantly, Judge Butchart never
not guilty or vice versa. Rather, she granted his motion to dismiss, stating
in open court that the Commonwealth failed to prove its case, and then later
clarified her order to reflect a verdict of not guilty. In hindsight,
Judge Butchart acknowledged that the more proper course of action would
Commonwealth to be inapposite.
The Commonwealth also complains that the evidence was sufficient to
support a conviction. The Commonwealth states that it presented a
certificate of non-licensure establishing that Lowry did not have a valid
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22 n.5.) The Commonwealth also argues that there was sufficient evidence
to establish Lowry knew his license had been revoked, including his attempt
to con
Id.)
fact- lated
from appellate review, whether or not it was erroneous. United States v.
Scott
an acquittal . .
Green v. United States, 355 U.S. 184, 188 (1957). The bottom line is that
even if proper procedure was not followed, the trial court had jurisdiction to
render the verdict that it did and its decision was unquestionably made on
the facts, not merely legal grounds. The trial c
this case absolutely shields the defendant from retrial. For these reasons,
we are compelled to quash the appeal.
Appeal quashed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/19/2014
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