Commonwealth, Aplt. v. Ball III, J.

[J-16-2016]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT

SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, JJ.

COMMONWEALTH OF PENNSYLVANIA, : No. 23 MAP 2015
:
Appellant : Appeal from the Order of the Superior
: Court dated July 24, 2014,
: Reconsideration Denied September 3,
v. : 2014, at No. 2086 MDA 2013,
: Reversing the Judgment of Sentence of
: the Cumberland County Court of
JAMES ARTHUR BALL, III, : Common Pleas, Criminal Division, dated
: October 22, 2013, at No. CP-21-SA-
Appellee : 0000133-2013.
:
: ARGUED: November 17, 2015

REARGUED: May 10, 2016

OPINION

JUSTICE WECHT DECIDED: September 28, 2016
James Arthur Ball III was charged with and tried for a summary offense before a

Magisterial District Judge (“MDJ”). The MDJ convicted Ball of a lesser included offense,

implicitly acquitting him of the greater charged offense. Ball appealed his conviction to

the court of common pleas (“the trial court”) for a de novo trial pursuant to Pa.R.Crim.P.

462(A),1 whereupon the Commonwealth sought to re-try him on the greater offense.

1
Rule 462(A) provides:
(A) When a defendant appeals after the entry of a guilty plea or a
conviction by an issuing authority in any summary proceeding, upon the
filing of the transcript and other papers by the issuing authority, the case
(continued?)
The trial court allowed the Commonwealth to try Ball on the original charge,

notwithstanding Ball’s objection that reinstating that charge violated the double jeopardy

clauses of the United States and Pennsylvania Constitutions.

Ball was convicted of the greater offense, and he appealed to the Superior Court.

Finding merit in Ball’s double jeopardy claim, the Superior Court reversed the trial court

and discharged Ball. We granted allocatur to determine whether the constitutional

prohibition on double jeopardy barred the Commonwealth from reinstating Ball’s

implicitly-acquitted greater offense. We now hold that the Commonwealth may not

prosecute a defendant for the greater offense under these circumstances. Accordingly,

we affirm the Superior Court on this issue.

We also granted allocatur to decide whether the Superior Court erred when it

discharged Ball after having found that the prohibition on double jeopardy precluded his

retrial on the greater summary offense. On this issue, we conclude that the Superior

Court did err. A MDJ has the authority, sua sponte, to convict a defendant of an

uncharged, lesser included offense, and the defendant has a right to have that

conviction reviewed by a court of record. Therefore, we reverse the Superior Court’s

order in part, and remand the case to the trial court for a trial de novo limited only to the

lesser included offense.

The history of this case may be summarized briefly. On January 14, 2013, a

Mechanicsburg police officer stopped Ball for speeding. Upon reviewing Ball’s driver’s

history, the officer learned that Ball’s license had been suspended as a result of prior

convictions for driving-under-the-influence (“DUI”). The officer cited Ball for driving

(?continued)
shall be heard de novo by the judge of the court of common pleas sitting
without a jury.
Pa.R.Crim.P. 462(A).

[J-16-2016] - 2
while operating privileges were suspended related to the DUI convictions (“DUS-DUI”),

75 Pa.C.S. 1543(b)(1).2 Ball proceeded to a summary trial before a Cumberland

County MDJ, where he was found guilty of driving while his operating privileges were

suspended (“DUS”), 75 Pa.C.S. 1543(a),3 indisputably a lesser included offense of

DUS-DUI. See, e.g., Commonwealth v. Cunningham, 551 A.2d 288 (Pa. Super. 1988)

(DUS is a lesser included offense of DUS-DUI). The MDJ sentenced Ball to thirty days’

imprisonment and a $1000 fine.4

2
Subsection 1543(b)(1) provides:
A person who drives a motor vehicle on a highway or trafficway of this
Commonwealth at a time when the person’s operating privilege is
suspended or revoked as a condition of acceptance of Accelerated
Rehabilitative Disposition for a violation of section 3802 (relating to driving
under influence of alcohol or controlled substance) or the former section
3731, because of a violation of section 1547(b)(1) (relating to suspension
for refusal) or 3802 or former section 3731 or is suspended under section
1581 (relating to Driver’s License Compact) for an offense substantially
similar to a violation of section 3802 or former section 3731 shall, upon
conviction, be guilty of a summary offense and shall be sentenced to pay
a fine of $500 and to undergo imprisonment for a period of not less than
60 days nor more than 90 days.
75 Pa.C.S. § 1543(b)(1).
3
Subsection 1543(a) provides:
Except as provided in subsection (b), any person who drives a motor
vehicle on any highway or trafficway of this Commonwealth after the
commencement of a suspension, revocation or cancellation of the
operating privilege and before the operating privilege has been restored is
guilty of a summary offense and shall, upon conviction, be sentenced to
pay a fine of $200.
75 Pa.C.S. § 1543(a).
4
Ball’s sentence exceeded the penalty prescribed by section 1543(a) because he
was a habitual offender, and was sentenced accordingly pursuant to 75 Pa.C.S. §
6503(a.1) (“A person convicted of a sixth or subsequent offense under section 1543(a)
shall be sentenced to pay a fine of not less than $1,000 and to imprisonment for not less
than 30 days but not more than six months.”).

[J-16-2016] - 3
 Ball appealed to the trial court for a de novo trial pursuant to Rule 462(A). Before

the trial court, the Commonwealth sought to reinstate the DUS-DUI charge. Ball

objected, arguing that allowing the Commonwealth to re-try him on DUS-DUI would

subject him to double jeopardy because he had already been acquitted of that charge

before the MDJ and was appealing only the DUS conviction. The trial court disagreed.

Relying upon Commonwealth v. Lennon, 64 A.3d 1092 (Pa. Super. 2013), the court

held that Ball had waived his double jeopardy protections by appealing for a de novo

trial.

In Lennon, the defendant voluntarily entered a guilty plea to disorderly conduct in

exchange for the Commonwealth’s withdrawal of the remaining charges. Following his

guilty plea, the defendant appealed to the court of common pleas.5 In response to the

defendant’s appeal, the Commonwealth sought to reinstate the withdrawn charges so

that it could try the defendant on all charges. The defendant argued that he could not

be re-tried on the dismissed charges without being put twice in jeopardy. The trial court

rejected both parties’ arguments and ordered specific performance of the plea

agreement. The defendant appealed to the Superior Court, which held that the trial

court erred in preventing the defendant from exercising his rule-based right to have his

case reviewed at a de novo trial. However, the Superior Court also held that the

defendant had waived his double jeopardy protections by voluntarily opting for a new

trial instead of accepting the terms of his plea agreement. The Superior Court

remanded the case, informing the defendant that he either could accept the plea

5
Although the defendant in Lennon originally was before the court of common
pleas when he pleaded guilty, the Commonwealth agreed to “log” his disorderly conduct
conviction with the district court. It appears this was done so that the defendant later
could seek expungement of his arrest record. Lennon, 64 A.3d at 1093.

[J-16-2016] - 4
agreement or proceed to a new trial on the full panoply of charges originally lodged

against him.

In the present case, the trial court concluded that, although Ball was appealing

from a conviction and not a guilty plea, his case was indistinguishable from Lennon

because Rule 462(A) allows for appeals from both convictions and guilty pleas.

Accordingly, the trial court overruled Ball’s objections and reinstated the DUS-DUI

charge. Following the de novo trial, Ball was convicted of DUS-DUI, and sentenced to

sixty days’ imprisonment and a $1000 fine. Ball then appealed this conviction to the

Superior Court.

Ball presented three issues to the Superior Court:
I. Whether the Double Jeopardy Clause[s] of the United States and
Pennsylvania Constitutions prevent the Commonwealth from retrying [Ball]
after an acquittal by the Magisterial District Judge?
II. Whether [Ball’s] appeal of a verdict of guilt from a Magisterial
District Judge includes offenses for which [Ball] was found not guilty?
III. Whether a Magisterial District Judge may find [Ball] guilty of an
offense for which [he] has not been charged?
Commonwealth v. Ball, 97 A.3d 397, 399 (Pa. Super. 2014).

The Superior Court addressed only the double jeopardy issue. The court began

by recognizing that both the United States and Pennsylvania Constitutions prohibit a

person from being “twice put in jeopardy of life or limb.” See Pa. Const. art. I, § 10; U.S.

Const. amend. V. The court explained that this prohibition was designed to protect

individuals from being tried or punished more than once for the same allegation or

offense. Specifically, the court recognized that the double jeopardy clauses protect

against a second prosecution following an acquittal or conviction, see Commonwealth v.

Young, 35 A.3d 54, 58-59 (Pa. Super. 2011), and that, “[i]n Pennsylvania, jeopardy

attaches when a defendant stands before a tribunal where guilt or innocence will be

determined.” Ball, 97 A.3d at 400 (quoting Young, 35 A.3d at 58-59). The court also

[J-16-2016] - 5
made clear that the protection against double jeopardy applies with full force in

summary cases. See Commonwealth v. Walczak, 655 A.2d 592, 596 (Pa. Super. 1995)

(stating that, in a criminal proceeding before a MDJ, “jeopardy attaches ... when the

court begins to hear evidence. Thus, where a defendant has been found not guilty at

trial, he may not be retried on the same offense.”).

Turning to the present case, the Superior Court determined that, after a fact-

finding hearing, the MDJ had acquitted Ball of DUS-DUI, the offense for which he was

charged. Therefore, the court held, “it was impermissible to retry Ball, and the trial

court’s adjudication of guilt at the de novo bench trial was a legal nullity.” Ball, 97 A.3d

at 400. The Superior Court emphasized that Ball’s voluntary appeal for a trial de novo

had no bearing upon its holding because Ball’s acquittal by the MDJ constitutes an

unassailable legal finality. See Walczak, 655 A.2d at 596 (stating that “a fact-finder’s

verdict of not guilty is accorded absolute finality. It is completely insulated from

appellate review.”) (citation omitted). The Superior Court disavowed the trial court’s

reliance upon Lennon, opining that Lennon was inapposite because the defendant in

that case had appealed from a guilty plea, after entering a negotiated plea agreement,

thereby validly waiving his double jeopardy challenge, whereas here, Ball had pled not

guilty to DUS-DUI, and was acquitted of that offense. Ball, 97 A.3d at 400 (citing

Lennon, 64 A.3d at 1101). Finally, without citing precedent, the Superior Court held that

Ball’s conviction for DUS by the MDJ was “of no moment” because Ball had not been

charged with that offense. Without addressing either of the remaining issues raised by

Ball, the Superior Court reversed Ball’s judgment of sentence, and discharged him. The

Commonwealth sought reargument, which was denied.

We subsequently granted allowance of appeal in order to address the following

issues (quoted verbatim from the Commonwealth’s petition):

[J-16-2016] - 6
 (1) Given the extensive impact the Superior Court’s published opinion
could have on the lower courts and prosecution offices in situations where
a defendant initiates a statutory summary appeal from a Magisterial
District Judge’s sua sponte finding of guilt on an uncharged, lesser-
included offense, should this Honorable Court grant review because the
purpose for double jeopardy protections are not implicated, or implicated
minimally, when the defendant appeals his conviction for a trial de novo?
(2) Should this Honorable Court exercise its supervisory authority over the
Superior Court’s erroneous discharge of defendant and remand his case
for sentencing on the lesser-included offense he appeals and necessarily
was found guilty of committing?
Commonwealth v. Ball, 111 A.3d 745 (Pa. 2015).

The core premise of the Commonwealth’s argument before this Court is that the

prohibition against double jeopardy is not implicated where a defendant voluntarily

subjects himself to further prosecution. The Commonwealth contends that the two-

tiered de novo review system provides criminal defendants with “an abundance of extra

protections” such that a waiver of double jeopardy protections is manifest (and

manifestly reasonable) in this scenario. Commonwealth Br. at 11.

The Commonwealth emphasizes that the MDJ gave Ball a “break” by sua sponte

charging and convicting him of DUS instead of DUS-DUI, which it argues is akin to a

plea offer. The Commonwealth explains that Ball had an opportunity to choose to

accept the lesser conviction or to proceed to a de novo trial and risk being convicted of

any of the crimes that were originally charged. As support for this position, the

Commonwealth cites Colten v. Kentucky, 407 U.S. 104 (1972), where the Supreme

Court of the United States reviewed similar issues in the context of Kentucky’s two-

tiered summary appeal system. There, the Supreme Court stated that a sentence

imposed by the lower court “in effect is no more than an offer in settlement.” Id. at 119.

The Commonwealth differentiates these so-called “breaks” from “legitimate lesser

included offense findings,” although it maintains that its argument is equally valid

[J-16-2016] - 7
regardless of which label best characterizes the MDJ’s decision. Commonwealth Br. at

10-11.

The Commonwealth also cites Serfass v. United States, 420 U.S. 377 (1975), in

which the Supreme Court stated that “[t]he constitutional prohibition against ‘double

jeopardy’ was designed to protect an individual from being subjected to the hazards of

trial and possible conviction more than once for an alleged offence [sic].” Id. at 387-88

(quoting Green v. United States, 355 U.S. 184, 187-88 (1957)). The Commonwealth

claims that this policy embodies an overarching interest of promoting “finality” in judicial

proceedings. See United States v. Jorn, 400 U.S. 470, 479 (1971) (“The Fifth

Amendment’s prohibition against [double jeopardy] represents a constitutional policy of

finality for the defendant’s benefit in federal criminal proceedings”). The Commonwealth

argues that, if finality is the primary concern, its importance is diminished when the

defendant himself initiates the second proceeding.

Although the Commonwealth acknowledges that it could not “unilaterally

resurrect an implied acquittal for de novo review” and that “courts have used strong

language against retrials following an acquittal,” Commonwealth Br. at 18, it argues that

limited exceptions to this rule exist. See Commonwealth v. Gibbons, 784 A.2d 776 (Pa.

2001) (Saylor, J., concurring) (emphasizing that “there is no absolute double jeopardy

bar to appellate review of judgements of acquittal,” and explaining that appeal is allowed

for pure issues of law); see also People v. Aleman, 667 N.E.2d 615, 625

(Ill. App. Ct. 1996) (recognizing an exception to double jeopardy bar of appellate review

of acquittal where trial proceedings are a “sham” or otherwise infected with fraud or

collusion). Specifically, the Commonwealth stresses that the Superior Court has held

that waiver of double jeopardy protections is possible. See Commonwealth v. Larkins,

829 A.2d 1203 (Pa. Super. 2003) (recognizing that defendant could waive double

[J-16-2016] - 8
jeopardy when second prosecution on lesser included offense would be to his benefit,

but holding that defendant had failed to preserve such argument).6 The Commonwealth

urges that Larkins established that waiver is at least possible in situations where the

purposes of double jeopardy protections are not implicated.

Finally, the Commonwealth suggests that the Supreme Court of Virginia has

addressed the precise issue presented in this case, and urges this Court to adopt the

approach of the dissent in that case. In Buck v. Danville, 192 S.E.2d 758 (Va. 1972),

the Supreme Court of Virginia held that double jeopardy precluded retrial on an implicitly

acquitted, greater offense of driving under the influence in the context of a similar, two-

tiered de novo review system. The dissent, relying upon Colten v. Kentucky, 407 U.S.

at 104, would have found that double jeopardy should not apply when a defendant

subjects himself to the hazards of a second trial. The dissent considered the first trial to

be a “dry run” that becomes a nullity when the defendant opts to have a subsequent de

novo trial, and therefore the hazards of the first trial disappear. Relying upon the Buck

6
In 1981, Larkins was convicted of first-degree murder and acquitted of the lesser
included offenses of third-degree murder and voluntary manslaughter. Larkins, 829
A.2d at 1203. Larkins’ direct appeal was unsuccessful, but, in 1995, he sought post-
conviction relief and was granted a new trial. At his retrial for first-degree murder,
Larkins requested a jury instruction also on third-degree murder and voluntary
manslaughter. The trial court denied Larkins’ request on grounds that it would put him
twice in jeopardy for charges of which he had been acquitted. Larkins appealed a
second time, arguing that the jury should have been instructed on the lesser charges at
his second trial. The Superior Court recognized that the double jeopardy clauses did
not bar the jury from being instructed on the lesser included offenses because waiver or
double jeopardy is theoretically possible, but held that Larkins had failed to preserve the
argument that he could waive double jeopardy. Notably, in order to avoid such
anomalies, the practice of acquitting a defendant of lesser degrees of murder when the
defendant is convicted of the higher degree has been disapproved by this Court. See
Commonwealth v. Terry, 521 A.2d 398, 410 (Pa. 1987), (ordering trial judges “to adopt
and enforce procedures in all homicide cases which will prevent the recording of a jury
verdict of not guilty on lesser included degrees of homicide when the jury returns a
guilty verdict on a higher degree”).

[J-16-2016] - 9
dissent, the Commonwealth concludes by reiterating that the voluntary nature of a

defendant’s de novo appeal undermines the significance of double jeopardy protections.

On the strength of this reasoning, the Commonwealth requests that we reverse the

Superior Court.

Ball begins his argument by recounting the well-settled principle that the double

jeopardy clauses of both the Pennsylvania and United States Constitutions prohibit the

Commonwealth from appealing an acquittal, including in summary cases. See Gibbons,

784 A.2d at 776 (holding that the double jeopardy clauses prohibit a second prosecution

following an acquittal); Walczak, 655 A.2d 592 (holding that the Commonwealth could

not appeal from an acquittal before MDJ because a judgment of acquittal is “completely

insulated from appellate review”). Ball also cites Commonwealth v. Edwards, 594 A.2d

720 (Pa. Super. 1991), which involved a defendant who was convicted of harassment

and acquitted of disorderly conduct before the MDJ. Although only the harassment

conviction was at issue in Edwards, the Superior Court stated that Rule 462(A) clearly

allows only for appeals from convictions, as any appeal of an acquittal would violate

double jeopardy principles. Id. at 723 (citing Commonwealth Dep’t of Transp. v.

Springbrook Transp., Inc., 568 A.2d 667, 669 (Pa. Super. 1990)). Ball argues that this

line of cases clearly precludes the Commonwealth from being afforded an opportunity to

re-try him on his DUS-DUI charge. See Gibbons, 784 A.2d at 777 (explaining that,

where Commonwealth fails to meet its burden, it is not afforded another opportunity to

put forth evidence it failed to supply during the first proceeding).

Ball distinguishes his case from Lennon, largely tracking the analysis of the

Superior Court. He explains that his conviction of DUS was not the result of

negotiations or agreement between himself and the Commonwealth. He maintained

innocence before the MDJ, who unilaterally found him guilty. Hence, there was no

[J-16-2016] - 10
bargained-for exchange. Ball argues that, in exercising his right to appeal, he did not

forfeit any benefit that he had agreed to accept.

Ball rejects the Commonwealth’s position that the purposes of double jeopardy

protections are not implicated in this case. He maintains that a criminal defendant’s

interest in finality is so great that the prohibition on double jeopardy has been found to

preclude multiple prosecutions even where an acquittal is clearly erroneous. See

Borough of West Chester v. Lal, 426 A.2d 603 (Pa. 1981) (applying double jeopardy

where acquittal is based upon “egregiously erroneous foundation”) (citations to federal

cases omitted); Commonwealth v. Wimberly, 411 A.2d 1193 (Pa. 1979) (holding that,

where trial court erred in passing on credibility of witnesses at demurrer stage, court’s

granting demurrer was a de facto acquittal and thus, insulated from appellate review);

Commonwealth v. Kerr, 29 A.2d 340 (Pa. Super. 1942) (applying double jeopardy

where court erroneously enters judgment of not guilty).

Ball also urges the Court to reject the Commonwealth’s suggestion that we adopt

the approach of the Buck v. Danville dissent. Ball proposes that, if this Court is inclined

to look to Virginia for guidance, we should employ a more recent case with more similar

facts. In Commonwealth v. Dipietro, 79 Va. Cir. 55 (2009), the defendant was tried in a

district court for various traffic offenses, acquitted of those offenses, and convicted of an

uncharged offense. On appeal, the appellate court held that, because the defendant

had been acquitted of the traffic offenses, he could not be retried on them even though

he requested the trial de novo. Ball also notes that other states have upheld double

jeopardy protections in the context of similar two-tiered, de novo review systems. See,

e.g., Kansas City v. Bott, 509 S.W.2d 42 (Mo. 1974).

Ball criticizes the Commonwealth’s reliance upon Colten v. Kentucky, finding it

distinguishable from the present case. Ball explains that, in Colten, the defendant was

[J-16-2016] - 11
convicted before the lower tribunal of the crime for which he was charged. After his de

novo trial on appeal, he again was convicted of the same offense but received a harsher

sentence. The Supreme Court held that the prohibition on double jeopardy did not bar

Colten from receiving a harsher sentence. Ball argues that the Supreme Court’s

rejection of Colten’s double jeopardy argument is inapplicable to the present case

because Ball’s double jeopardy arguments apply to a charge for which he was

acquitted, whereas Colten’s argument was made only in regard to sentencing.

Finally, Ball argues that, in addition to his constitutional rights, the rules of

criminal procedure also mandate a ruling in his favor. Most prominently, Ball notes that

Rule 462(A) only allows a defendant to appeal from a guilty plea or conviction before

the MDJ. He emphasizes that there is no rule allowing the Commonwealth to appeal

the MDJ’s decision, and that acquittals are not included in the list of appealable orders.

Therefore, Ball argues, the trial court was prohibited from considering his acquitted

DUS-DUI charge.

We turn now to the merits of the double jeopardy issue.

The prohibition on double jeopardy was an ancient aspect of the common law. It

grew out of the maxim: “nemo debet bis vexari pro una et eadem causa,” United States

v. Sanges, 144 U.S. 310, 315 (1892), which translates to “no man shall be twice vexed

for one and the same cause.” Ex parte Lange, 85 U.S. 163, 168 (1873). This

safeguard is enshrined in the Fifth Amendment to the United States Constitution as “[n]o

person shall . . . be subject for the same offence to be twice put in jeopardy of life or

limb. . .” U.S. Const. amend. V, and in the Pennsylvania Constitution as “[n]o person

shall, for the same offense, be twice put in jeopardy of life or limb.” Pa. Const. art. I, §

10. We have interpreted the rights provided by the two clauses as coextensive.

Commonwealth v. States, 938 A.2d 1016, 1019 (Pa. 2007).

[J-16-2016] - 12
 “Perhaps the most fundamental rule in the history of double jeopardy

jurisprudence has been that ‘[a] verdict of acquittal . . . could not be reviewed, on error

or otherwise, without putting [a defendant] twice in jeopardy, and thereby violating the

Constitution.’” United States v. Martin Linen Supply Co., 430 U.S. 564, 571 (1977)

(quoting United States v. Ball, 163 U.S. 662, 671 (1896)). “It is laid down in 3 Whart.

Crim. L., last ed., § 3250, that ‘where there has been an acquittal on one count, and a

conviction on another, a new trial can be granted only on the count on which there has

been a conviction; and it is error on a second trial to put the defendant on trial on the

former.’” Hollister v. Commonwealth, 60 Pa. 103, 106 (1869). These well-settled and

long-standing precedents compel a ruling in Ball’s favor.

“The double jeopardy prohibition is often described as a universal principle of

reason, justice and conscience.” Commonwealth v. Bolden, 373 A.2d 90, 103 (Pa.

1977) (citations omitted). The United States Supreme Court has described it as a

“fundamental ideal in our constitutional heritage.” Benton v. Maryland, 395 U.S. 784,

794 (1969). It exists because “criminal prosecution imposes severe psychological,

physical and economic burdens on the accused[, and i]t 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, 373 A.2d at 104. In Green v. United States, 355

U.S. 184, 187-88 (1957), the Supreme Court expanded upon this rationale as follows:
The underlying idea, one that is deeply ingrained in at least the Anglo-
American system of jurisprudence, is that the State with all its resources
and power should not be allowed to make repeated attempts to convict an
individual for an alleged offense, thereby subjecting him to
embarrassment, expense and ordeal and compelling him to live in a
continuing state of anxiety and insecurity, as well as enhancing the
possibility that even though innocent he may be found guilty.
Id. The prohibition on double jeopardy is a pillar of American criminal law.

[J-16-2016] - 13
 The principle that an acquittal “is an absolute bar to any subsequent prosecution

for the same offense . . . is fundamental and is part of the fabric which forms the basis

of the double jeopardy prohibition.” Commonwealth v. Beck, 464 A.2d 316, 317 (Pa.

1983) (citations omitted). American double jeopardy jurisprudence affords the utmost

finality to acquittals. In Commonwealth v. Tillman, 461 A.2d 795 (Pa. 1983), this Court

explained the finality that follows an acquittal as follows:
[T]he Supreme Court of the United States has recently observed [that] “the
fact[-]finder in a criminal case has traditionally been permitted to enter an
unassailable but unreasonable verdict of ‘not guilty.’” Jackson v. Virginia,
443 U.S. 307, 317 n.10 (1979). “‘[W]e necessarily accord absolute finality
to a jury's verdict of acquittal—no matter how erroneous its decision.’”
Bullington v. Missouri, 451 U.S. 430, 442 (1981) (quoting Burks v. United
States, 437 U.S. 1, 16 (1978)); accord Commonwealth v. Mitchell, 438
A.2d 596, 597 (Pa. 1981). Thus, where a defendant has been found not
guilty at trial, he may not be retried on the same offense, “even if the legal
rulings underlying the acquittal were erroneous.” Sanabria v. United
States, 437 U.S. 54, 64 (1978). . . . “[T]he law attaches particular
significance to an acquittal. To permit a second trial after an acquittal,
however mistaken the acquittal may have been, would present an
unacceptably high risk that the Government, with its vastly superior
resources, might wear down the defendant so that ‘even though innocent,
he may be found guilty.’” United States v. Scott, 437 U.S. 82, 91 (1978)
(quoting Green, 355 U.S. at 188); see also Tibbs v. Florida, 457 U.S. 31,
41 (1982) (verdict of not guilty “absolutely shields the defendant from
retrial”). So, too, no prosecution appeal lies from a not guilty verdict, even
where that verdict is “based upon an ‘egregiously erroneous foundation.’”
[Borough of West Chester, 426 A.2d at 605] (quoting Sanabria, 437 U.S.
at 64).
Tillman, 461 A.2d at 796-97 (citations modified). Additionally, “[the Supreme] Court has

consistently refused to rule that jeopardy for an offense continues after an acquittal,

whether that acquittal is express or implied by a conviction on a lesser included

offense. . . .” Price v. Georgia, 398 U.S. 323, 329 (1970).

Green v. United States provides an application of these principles that is most

analogous to the circumstances before us. In Green, the defendant was tried for both

first and second-degree murder in the United States District Court for the District of

[J-16-2016] - 14
Columbia.7 355 U.S. at 185. The jury found him guilty of second-degree murder and

arson, but its verdict was silent as to first-degree murder. Id. at 186. Green appealed

his conviction, which the United States Court of Appeals for the District of Columbia

Circuit reversed and remanded for a new trial. On remand, Green again was tried on

the first-degree murder charge, notwithstanding his double jeopardy objection.

Following his second trial, Green was convicted of first-degree murder and sentenced to

death. Green appealed this conviction, arguing that it was precluded by the double

jeopardy clause. A split panel of the Court of Appeals affirmed. Id. Green petitioned

the United States Supreme Court for a writ of certiorari, and the Court granted review

solely upon Green’s double jeopardy claim. Id. at 186-87.

The Supreme Court began its analysis by recognizing the venerable history of

the prohibition on double jeopardy in our legal system. Id. at 187 (citing 4 Blackstone's

Commentaries 335; Ex parte Lange, 85 U.S. at 169; Ball, 163 U.S. at 67). The Court

affirmed that it long has been settled that an acquittal is final and is a bar to subsequent

prosecution on the same offense. Green, 355 U.S. at 188. The Court determined that

the jury’s silence regarding the first-degree murder charge while rendering its verdict

following Green’s first trial constituted an acquittal of that charge. Id. at 190-91. Thus,

the government could not retry Green for first-degree murder after he was awarded a

new trial following his successful appeal. Id.

The Supreme Court rejected the government’s contention that Green had waived

his constitutional defense of double jeopardy by appealing his conviction of second-

7
The applicable statute in force at the time provided that “[w]hoever, being of
sound memory and discretion . . . without purpose so to do kills another in perpetrating
or in attempting to perpetrate any arson, as defined in section 22-401 . . . is guilty of
murder in the first degree.” D.C. Code § 22-2401 (1951). The D.C. Code further
provided that “[w]hoever with malice aforethought, except as provided in [§] 22-2401 . . .
kills another, is guilty of murder in the second degree.” D.C. Code § 22-2403 (1951).

[J-16-2016] - 15
degree murder and requesting a new trial. The Court similarly rejected the

government’s argument that Green’s first jeopardy had not yet terminated as a result of

his appeal. The Court explained that adopting either of these theories “would unduly

impair the constitutional prohibition against double jeopardy.” Id. at 198. The Court

continued as follows:
The right not to be placed in jeopardy more than once for the same
offense is a vital safeguard in our society, one that was dearly won and
one that should continue to be highly valued. If such great constitutional
protections are given a narrow, grudging application they are deprived of
much of their significance.
Id. The Supreme Court concluded that Green’s second trial for a charge of which he

had been acquitted “was contrary to both the letter and spirit of the Fifth Amendment.”

Id. Thus, the Supreme Court held that Green could not be retried on an acquitted

offense at a new trial following a successful appeal of a conviction for a lesser included

offense.

In light of Green, the case before us is straightforward. Ball was charged with

DUS-DUI, proceeded to a summary trial before a MDJ, and was convicted of the lesser

included offense of DUS. He exercised his right to have that conviction reviewed in a

new trial before the court of common pleas pursuant to Pa.R.Crim.P. 462(A). These

facts are nearly identical to those in Green; both defendants received a new trial

following a successful appeal from a conviction of a lesser included offense, which

reflected an implicit acquittal of the defendants for the greater offense.8 The Supreme

Court held that the government could not retry the acquitted charge at Green’s second

trial, and we hold that the same rule applies to Ball. Accordingly, we affirm the Superior

8
The Commonwealth concedes that conviction of a lesser included offense is an
implicit acquittal of the greater offense. See Commonwealth Br. at 13; see also Green,
355 U.S. at 190-91.

[J-16-2016] - 16
Court’s holding that the double jeopardy clauses of the United States and Pennsylvania

Constitutions prohibit the Commonwealth from re-trying Ball on DUS-DUI.

We reject the Commonwealth’s argument that Ball waived his right not to be put

twice in jeopardy by exercising his right to appeal his DUS conviction pursuant to Rule

462(A). We recognize that the Superior Court’s dictum in Larkins implies that double

jeopardy protections may be waived by criminal defendants in situations where the

protections actually harm their interests. See Larkins, 829 A.2d at 1203 (opining that

defendant could waive double jeopardy in order to have jury instructed on lesser offense

as to which he had previously been acquitted). However, Larkins is not binding upon

this Court, and addressed a situation that is no longer applicable in Pennsylvania. See

supra 9 n.6. In any event, this case does not present a scenario in which Ball would

benefit from waiving his double jeopardy rights. While the rights can be waived, Ball

has never voluntarily attempted to do so.

Furthermore, Green directly undermines the Commonwealth’s waiver argument.

In Green, the government took the same position, and the Supreme Court responded as

follows:
We cannot accept this paradoxical contention. ‘Waiver’ is a vague term
used for a great variety of purposes, good and bad, in the law. In any
normal sense, however, it connotes some kind of voluntary knowing
relinquishment of a right. Cf. Johnson v. Zerbst, 304 U.S. 458 [(1938)].
When a man has been convicted of second[-]degree murder and given a
long term of imprisonment it is wholly fictional to say that he ‘chooses’ to
forego his constitutional defense of former jeopardy on a charge of murder
in the first degree in order to secure a reversal of an erroneous conviction
of the lesser offense. In short, he has no meaningful choice. And as Mr.
Justice Holmes observed, with regard to this same matter in Kepner v.
United States, 195 U.S. 100, [135 (1904)]: ‘Usually no such waiver is
expressed or thought of. Moreover, it cannot be imagined that the law
would deny to a prisoner the correction of a fatal error unless he should
waive other rights so important as to be saved by an express clause in the
Constitution of the United States.’

[J-16-2016] - 17
Green, 355 U.S. at 191-92 (emphasis added). Constitutional rights can be waived. But,

as Green made clear, such a waiver must be knowing and voluntary.

We cannot assume that Ball had cause to believe that filing a summary appeal

would result in waiver of his constitutional right against double jeopardy. The

Commonwealth contends that Ball volunteered to be subjected to a second prosecution,

which he could have avoided by merely accepting the MDJ’s ruling. Essentially, the

Commonwealth argues that Ball was in the same position as a defendant who enters a

guilty plea. In doing so, the Commonwealth overlooks an important distinction between

a guilty plea and a conviction: A guilty plea is a knowing and voluntary relinquishment

of rights, always preceded by an extensive colloquy that is undertaken specifically to

ascertain and confirm that the defendant understands the constitutional rights that he is

waiving in exchange for his admission of guilt. Conversely, a conviction follows a trial

where the defendant has challenged the prosecution’s charges and no inquiry into the

defendant’s acceptance and understanding of a voluntary plea has been made. The

notice form that a defendant must complete in order to appeal from a conviction before

a MDJ includes the name and contact information of the defendant, his attorney, and

the issuing judge as well as inquiries into the nature of the offense, the sentence, and

the grounds for appeal. See Notice of Appeal from Summary Criminal Conviction,

7/24/2013 at 1. Importantly, that form does not include any waiver provision, nor any

notice of constitutional rights. Choosing to complete this form is not the same as

making a knowing and intelligent waiver, particularly when Ball was not instructed in any

way of such a consequence. Ball did not enter a voluntary plea in exchange for a lesser

sentence. Instead, the MDJ elected to convict him of an uncharged, lesser included

offense, and Ball exercised his right to have that conviction reviewed by a court of

record pursuant to the procedure established by Rule 462(A).

[J-16-2016] - 18
 To conclude that Ball waived his double jeopardy protections in this scenario

would require us to interpret Rule 462(A) as a de facto waiver provision, which

constructively informed Ball that he would waive his double jeopardy rights by opting for

a trial de novo. Rule 462(A) says nothing about double jeopardy or waiver, and we

decline to read such language into the rule. We are unaware of any constitutional right

that can be waived by operation of a rule of procedure that does not explicitly provide

for the waiver. It is of no moment that Ball chose to pursue a trial de novo instead of

accepting his lesser conviction. The Commonwealth tried him twice for DUS-DUI, and

our Constitutions prohibit the prosecution from doing so.

On this point, Green again is instructive:
Reduced to plain terms, the Government contends that in order to secure
the reversal of an erroneous conviction of one offense, a defendant must
surrender his valid defense of former jeopardy not only on that offense but
also on a different offense for which he was not convicted and which was
not involved in his appeal. Or stated in the terms of this case, he must be
willing to barter his constitutional protection against a second prosecution
for an [acquitted] offense punishable by death as the price of a successful
appeal from an erroneous conviction of another offense for which he has
been sentenced to five to twenty years' imprisonment . . . a defendant
faced with such a ‘choice’ takes a ‘desperate chance’ in securing the
reversal of the erroneous conviction. The law should not, and in our
judgment does not, place the defendant in such an incredible dilemma.
Conditioning an appeal of one offense on a coerced surrender of a valid
plea of former jeopardy on another offense exacts a forfeiture in plain
conflict with the constitutional bar against double jeopardy.
Green, 355 U.S. at 193-94 (emphasis added). It is plain that Ball’s potential punishment

pales in comparison to the sentence at stake in Green. Yet, as a matter of

constitutional law, this difference is inconsequential; “the Double Jeopardy Clause of the

Fifth Amendment is written in terms of potential or risk of trial and conviction, not

punishment.” Price, 398 U.S. at 329. The Commonwealth’s proposed interpretation of

Rule 462(A) presents defendants with the same structural dilemma that the Green Court

held intolerable in view of the constitutional prohibition against double jeopardy.

[J-16-2016] - 19
 The Commonwealth attempts to distinguish Green by arguing that a defendant’s

interest in finality is minimized in a two-tiered summary offense system. This is a

distinction without a difference, and is premised upon the faulty conclusion that the rule

provides constitutionally adequate notice. Rule 462(A) does not address double

jeopardy or any other constitutional right. The rule merely lays out the procedure that is

to be followed in summary proceedings. It is no different materially from the rules of

appellate procedure followed by the federal courts in Green’s appeal. Every jurisdiction

has rules that provide for how a case is to proceed. In Pennsylvania, we have decided

to forego the typical appellate procedure in the context of summary proceedings,

instead providing that an appeal from a summary conviction automatically results in a

new trial.9 That new trial is no different from a new trial that is awarded after a

successful appeal, in which retrial on acquitted claims indisputably is prohibited. See

Price, 398 U.S. at 327; Green, 355 U.S. at 190-91; Tillman, 461 A.2d at 796-97.

Moreover, the language of Rule 462(A) is insufficient to distinguish this case from

Green. The term trial de novo has been defined as a “new trial on the entire case . . .

conducted as if there had been no trial in the first instance.” Black’s Law Dictionary

1544 (8th ed. 2004). Although a trial de novo typically means that a case starts again

“from the beginning,” it cannot be interpreted to allow for a second prosecution of an

acquitted charge and remain faithful to the double jeopardy clauses. If that was the

case, then the Rule necessarily would be unconstitutional because it would permit

double jeopardy without a valid waiver.10 The double jeopardy clauses of the United

9
Various values may be served by this choice, including maximizing judicial
economy, while preserving the fundamental rights to a speedy trial and appellate
review. There is no textual support from which to assume that this is a concession or
benefit provided to defendants in exchange for waiver of their double jeopardy defense.
10
Cf. Pa.R.Crim.P. 590 (requiring judge to conduct inquiry of defendant in order to
determine that guilty plea is entered voluntarily and understandingly); Commonwealth v.
(continued?)

[J-16-2016] - 20
States and Pennsylvania Constitutions do not allow a rule of procedure to vitiate a

constitutional right, especially sub silentio.

A plain reading of Rule 462(A) supports our position that acquittals before an

MDJ are final. The rule provides that a defendant may appeal a “conviction or guilty

plea.” It does not provide for, or permit, an appeal of an acquittal. The inclusion of the

term “trial de novo” merely establishes that the court of common pleas is hearing the

case for the first time, as if it had originated there. When a case originates in the court

of common pleas, a defendant may raise a double jeopardy defense if he has already

been acquitted of that charge. Although the de novo standard establishes that the court

of common pleas is not bound by the MDJ’s findings of fact or law, the court

nonetheless remains bound by the Constitution, and, therefore, the acquittal. A trial de

novo can concern only those charges that resulted in convictions before the MDJ.

Having determined that the Commonwealth was prohibited from reinstating Ball’s

DUS-DUI charge, we now consider the second issue: whether the Superior Court erred

in discharging Ball completely. Ball sought a retrial on his conviction for DUS. Pursuant

to Rule 462(A), he was entitled to have that conviction reviewed de novo in the court of

common pleas. He was not, however, entitled to a total discharge as to his duly

convicted offense. For the following reasons, we reverse the Superior Court’s order of

discharge.

The Commonwealth argues that, after ruling in Ball’s favor in regard to the

double jeopardy issue, we should remand the case for resentencing or retrial of the

(?continued)
Willis, 369 A.2d 1189, 1190 (Pa. 1977) (questions enumerated in comment to rule
governing plea agreements are mandatory in order for plea colloquy to be valid,
including, inter alia, inquiry into defendant’s awareness of right to trial by jury,
presumption of innocence).

[J-16-2016] - 21
lesser included offense of DUS. First, the Commonwealth presumes that the Superior

Court discharged the MDJ’s conviction because the court reasoned that the MDJ did not

have the authority to sua sponte charge and convict Ball on the lesser included offense.

The Commonwealth believes that there is no dispute that a common pleas judge can

find a defendant guilty of an uncharged, lesser included offense in a bench trial, and

suggests that the same rules should apply to MDJs based upon Pa.R.Crim.P. 454(B)

(“[T]he issuing authority shall try the case in the same manner as trials in criminal cases

are conducted in the courts of common pleas when jury trial has been waived[.]”).

The Commonwealth argues that, even if it was error to re-try Ball on DUS-DUI,

by convicting Ball of DUS-DUI the trial court necessarily, if not expressly, found Ball

guilty of DUS. Therefore, the Commonwealth contends that only resentencing on the

DUS conviction is required. Alternatively, the Commonwealth asks that we remand the

case for a re-trial only on the DUS charge because that is what Ball originally sought by

appealing the MDJ’s decision.

Ball argues that the MDJ lacked statutory authority to charge and convict him sua

sponte of a lesser included offense. Ball claims that the trial court’s reliance upon

Cunningham, 551 A.2d at 288, is misplaced. In Cunningham, the Superior Court held

that the court of common pleas could find a defendant guilty of a lesser included offense

even when only the greater offense is charged. Id. Without citing to additional

precedent, Ball claims that this rule is limited to the court of common pleas and does not

apply to MDJs. Thus, Ball argues that his case should have been dismissed once the

MDJ acquitted him of DUS-DUI, and that the Superior Court was correct to discharge

him.

On this issue, the Commonwealth is correct. While there is no statutory provision

addressing a court’s or MDJ’s authority sua sponte to find a defendant guilty of a lesser

[J-16-2016] - 22
included offense, the law is well-settled that trial judges in the court of common pleas

have this authority. See Commonwealth v. Sims, 919 A.2d 931, 933 (Pa. 2007)

(holding that an attempt crime is a lesser included offense of the substantive crime, and

thus a defendant may be convicted of an attempted crime even if the Commonwealth

charged only the substantive offense and not attempt). The case law emphasizes that

the important inquiry is whether a defendant has been put on notice of the charges

against him and can adequately prepare a defense. See Commonwealth v. Reese, 725

A.2d 190, 191 (Pa. Super. 1999), appeal denied, 740 A.2d 1146 (Pa. 1999);

Cunningham, 551 A.2d at 289 (citing Commonwealth v. Stots, 324 A.2d 480, 481 n.3

(Pa. Super. 1974)). This notice may be either express, i.e. charged, or implied where

the uncharged offense is a lesser included offense and all of the elements of the lesser

offense are included in the greater. Commonwealth v. Pemberth, 489 A.2d 235, 237

(Pa. Super. 1985); Commonwealth v. Gouse, 429 A.2d 1129, 1132 (Pa. Super. 1981).

The parties do not dispute that the court of common pleas has this authority, nor do they

dispute that DUS is a lesser included offense of DUS-DUI.

Because Rule 454(B) clearly provides that the MDJ “shall try the case in the

same manner as trials in criminal cases are conducted in the courts of common pleas

when jury trial has been waived,” there is no reason that the MDJ would not have the

same authority as a common pleas judge to sua sponte convict a defendant of a lesser

included offense. Therefore, the Superior Court’s conclusion that “it is of no moment”

that the MDJ convicted Ball of DUS is erroneous. That conviction was valid under the

law, and it was that conviction that Ball sought to have the trial court review de novo.

Ball never received his new trial on his DUS conviction. Although the

Commonwealth is likely correct that the trial court necessarily found all of the elements

of DUS by convicting Ball of DUS-DUI, the court did not try Ball for DUS. Instead, the

[J-16-2016] - 23
court tried him for DUS-DUI, which includes the additional DUI element. Ball was

entitled by right to have the trial court weigh the evidence specifically in regard to the

conviction he was appealing without the specter of double jeopardy clouding the trial.

Therefore, we reverse the Superior Court with regard to this issue and remand the case

to the trial court with instructions to conduct a de novo trial on the DUS charge only.

In sum, we affirm the order of the Superior Court with respect to the double

jeopardy issue, reverse the Superior Court’s order of discharge, and remand the case to

the trial court for a de novo trial on the charge of DUS only.

Chief Justice Saylor and Justices Todd, Donohue and Dougherty join the opinion.

Justice Wecht files a concurring opinion.

Justice Baer files a dissenting opinion.

[J-16-2016] - 24