J. A15038/18
2018 PA Super 351
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. : No. 1785 MDA 2017
:
WILLIAM R. LANDIS, JR. :
Appeal from the Order Entered October 24, 2017,
in the Court of Common Pleas of Berks County
Criminal Division at No. CP-06-CR-0005405-2009
BEFORE: PANELLA, J., MURRAY, J., AND FORD ELLIOTT, P.J.E.
OPINION BY FORD ELLIOTT, P.J.E.: FILED DECEMBER 24, 2018
The Commonwealth appeals from the October 24, 2017 order denying
its petition to reinstate Counts 2 through 4 (third-degree murder and
aggravated assault)1 of the underlying criminal information, on the basis it
was barred on retrial by double jeopardy or laches. After careful review, we
are constrained to affirm.
A prior panel of this court summarized the relevant facts of this case as
follows:
On October 28, 2009, at approximately 9:20 p.m.,
Berks County Radio dispatched Spring Township
Police officers to the residence of [William R.
Landis, Jr. (hereinafter, “Landis”)] to investigate a
possible shooting. A man had called to report that a
woman had been shot. It was later discovered that
the caller was [Landis]. [Landis’] wife, Sharon Landis,
1 18 Pa.C.S.A. §§ 2502(c), 2702(a)(1), and 2702(a)(4), respectively.
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was found dead from a gunshot wound to the head on
the second floor of the residence. The victim also had
other nonfatal gunshot wounds on her body. While
performing a clearing operation of the residence,
officers discovered [Landis] barricaded in the
basement. [Landis] had a knife and two guns in his
possession and threatened to shoot anyone who came
down into the basement. While in the basement,
[Landis] made several telephone calls to family and
friends and mentioned his dead wife. [Landis]
became increasingly intoxicated as the evening
progressed. The Berks County Emergency Response
Team was called to the scene, and [Landis] was
eventually taken into custody after several hours had
elapsed.
Commonwealth v. Landis, 102 A.3d 528 (Pa.Super. 2014) (unpublished
memorandum at *1, citing trial court opinion, 8/2/13 at 1-2).
The trial court summarized the procedural history of this case as follows:
The Commonwealth charged [Landis] with one count
of First Degree Murder (Count 1), one count of Third
Degree Murder (Count 2), two counts of Aggravated
Assault (Counts 3 and 4), Assault on a Law
Enforcement Officer (Count 5), seven counts of
Aggravated Assault (Counts 6 to 10, 14, 17), four
counts of Simple Assault (Counts 11, 12, 15, 18),
eleven counts of Reckless Endangerment (Counts 13,
16, 20 to 28), one count of Terroristic Threats
(Count 19), and two counts of Possessing an
Instrument of Crime (Counts 29-30).[2] [Landis]
moved to sever Counts 5 through 30, which involved
the standoff between the police and [Landis] during
the period the police officers were negotiating
[Landis’] surrender when [Landis] was in the
basement. This court granted [Landis’] motion to
sever the charges.[3]
218 Pa.C.S.A. §§ 2502(a), 2502(c), 2702.1, 2702, 2701, 2705, 2706, and
907, respectively.
3 Landis proceeded to a jury trial on April 1, 2013.
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At the trial that ended on April 5, 2013, the jury found
[Landis] guilty of only Count 1, Murder in the First
Degree. The jury found [Landis] not guilty of Count 2,
Murder in the Third Degree, Count 3, Voluntary
Manslaughter, and Count 4, Involuntary
Manslaughter. Prior to the closing arguments, the
counts for Voluntary Manslaughter and Involuntary
Manslaughter replaced the two counts of Aggravated
Assault. This court polled the jury, and . . . recorded
the verdicts.
The Commonwealth did not file any post-trial motion
to correct the Verdict as permitted by the
Pennsylvania Rules of Criminal Procedure.4 At
[Landis’] sentencing, the Commonwealth agreed to
withdraw Counts 5 through 30 with the understanding
that if [Landis’] first[-]degree murder conviction was
overturned, the Commonwealth would be able to
reinstate those charges.
Trial court opinion, 1/26/18 at 1-2.
On June 10, 2013, Landis filed a timely notice of appeal. On April 10,
2014, a panel of this court affirmed Landis’ judgment of sentence, and no
further review was sought with our supreme court. See Landis, 102 A.3d
528. On December 22, 2014, Landis filed a timely petition pursuant to the
Post Conviction Relief Act (“PCRA”),5 raising multiple claims of trial and
appellate counsels’ ineffectiveness. (See PCRA petition, 12/22/14, at 3-4.)
On June 29 and 30, 2015, the PCRA court held evidentiary hearings on this
matter. Thereafter, on December 18, 2015, the PCRA court entered an
4 On May 15, 2013, the trial court sentenced Landis to a mandatory term of
life imprisonment.
5 42 Pa.C.S.A. §§ 9541-9546.
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opinion and order granting Landis a new trial based on trial counsel’s failure
to call expert witness, Dr. Larry A. Rotenberg, to testify in support of a
diminished capacity defense. (PCRA opinion, 12/18/15 at 10-17.) The
Commonwealth filed a notice of appeal that same day. On November 30,
2016, a panel of this court affirmed the PCRA court’s order and our supreme
court denied the Commonwealth’s petition for allowance of appeal on July 24,
2017. See Commonwealth v. Landis, 159 A.3d 603 (Pa.Super. 2016)
(unpublished memorandum), appeal denied, 169 A.3d 1059 (Pa. 2017).
Thereafter, on August 28, 2017, the Commonwealth filed a petition to
reinstate Counts 2 through 4 of the underlying criminal information,
third-degree murder and aggravated assault. As noted, the trial court entered
an order on October 24, 2017 denying the Commonwealth’s petition. The
Commonwealth filed a timely notice of appeal on November 21, 2017. On
December 1, 2017, the trial court directed the Commonwealth to file a concise
statement of errors complained of on appeal, in accordance with
Pa.R.A.P. 1925(b). The Commonwealth filed a timely Rule 1925(b) statement
on December 6, 2017. On January 26, 2018, the trial court filed its
Rule 1925(a) opinion.
The Commonwealth raises the following issues for our review:
[1.] Did the trial court err by ruling that
reinstatement of the charge of third-degree
murder is barred on retrial by double jeopardy
and/or laches?
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[2.] Alternatively, did the trial court err by ruling
that [Landis] is permitted to present a
diminished capacity defense where the
Commonwealth is barred from retrying [Landis]
on the charge of third-degree murder?
Appellant’s brief at 5 (full capitalization omitted). The Commonwealth has
abandoned its claim that the trial court erred in determining that the
reinstatement of the aggravated assault charges is barred by laches. (See
id. at n.1).
An appeal grounded in double jeopardy raises a
question of constitutional law. This court’s scope of
review in making a determination on a question of law
is, as always, plenary. As with all questions of law,
the appellate standard of review is de novo. To the
extent that the factual findings of the trial court
impact its double jeopardy ruling, we apply a more
deferential standard of review to those findings:
Where issues of credibility and weight of
the evidence are concerned, it is not the
function of the appellate court to
substitute its judgment based on a cold
record for that of the trial court. The
weight to be accorded conflicting evidence
is exclusively for the fact finder, whose
findings will not be disturbed on appeal if
they are supported by the record.
Commonwealth v. Kearns, 70 A.3d 881, 884 (Pa.Super. 2013) (citations
omitted), appeal denied, 84 A.3d 1063 (Pa. 2014).
The Commonwealth first argues that the trial court erred in concluding
that double jeopardy bars the reinstatement of the third-degree murder
charge on retrial because the underlying verdict was “incorrect” as a matter
of law. (Commonwealth’s brief at 16.) The Commonwealth avers that,
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[a]lthough the jury in the first trial returned a verdict
of not guilty to the third-degree murder charge, the
jury found [Landis] guilty of first-degree murder, an
offense which contains all the elements of
third-degree murder with the added element of
specific intent to kill[.]
Id. at 21.
The Commonwealth maintains that this is not a case where it is simply
seeking “another opportunity to supply evidence that it failed to put forth
previously[.]” (Id.) Rather, the Commonwealth contends that it has already
proven “all the elements of third-degree murder as evidenced by the verdict.”
(Id. at 14, 18.) Thus, “double jeopardy should not bar reinstatement of
third-degree murder.” (Id.) In support of this conclusion, the Commonwealth
relies on Commonwealth v. Larkins, 829 A.2d 1203 (Pa.Super. 2003),
appeal denied, 870 A.2d 321 (Pa. 2005).
Upon review, we find that Larkins is distinguishable from the instant
matter and that the Commonwealth’s reliance on it is misplaced. Larkins
involved a defendant who was convicted of, inter alia, the first-degree
murder of his wife’s alleged paramour and acquitted of the lesser-included
offenses of third-degree murder and voluntary manslaughter of said
paramour. Larkins, 829 A.2d at 1203. Larkins’ direct appeal was
unsuccessful, but he was granted a new trial after he sought post-conviction
relief. Id. at 1204. At his retrial for first-degree murder, Larkins requested
an additional jury instruction on third-degree murder and voluntary
manslaughter. Id. The trial court denied Larkins’ request on grounds that it
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would put him twice in jeopardy for charges of which he had been acquitted.
Id. Larkins appealed a second time, arguing that the jury should have been
instructed on the lesser charges at his second trial. Id. The Larkins court
recognized that the double jeopardy clauses did not bar the jury from being
instructed on the lesser-included offenses because waiver of double jeopardy
protections is theoretically possible, but held that Larkins had failed to
preserve the argument that he could waive double jeopardy. Id. at
1205-1206.
We recognize that the holding in Larkins implies that a defendant may
waive his double jeopardy rights in situations where the protections actually
harm his or her interests. See id. 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, unlike Larkins, this case does
not present a scenario in which Landis would benefit from waiving his double
jeopardy rights, and Landis did not voluntarily attempt to do so merely by
filing a petition for relief pursuant to the PCRA.
On the contrary, we find that the reinstatement of the third-degree
murder charge in this case is clearly barred by double jeopardy. “The Double
Jeopardy Clauses of the Fifth Amendment to the United States Constitution
and Article 1, § 10 of the Pennsylvania Constitution protect a defendant from
repeated criminal prosecutions for the same offense.” Commonwealth v.
Adams, 177 A.3d 359, 371 (Pa.Super. 2017) (citation omitted). Our supreme
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court has summarized the rationale behind the protections afforded by the
Double Jeopardy Clause as follows:
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.
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. [W]e necessarily accord
absolute finality to a jury’s verdict of
acquittal—no matter how erroneous its
decision. 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. [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. So, too, no
prosecution appeal lies from a not guilty
verdict, even where that verdict is based
upon an egregiously erroneous
foundation.
[Id. at 767-797.]
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Commonwealth v. Ball, 146 A.3d 755, 763-764 (Pa. 2016) (additional
citations and quotation marks omitted; some brackets in original).
Here, Landis was tried before a jury on first-degree murder,
third-degree murder, voluntary manslaughter, and involuntary manslaughter.
The jury found Landis guilty of first-degree murder but acquitted him of the
remaining charges, including third-degree murder. (Notes of testimony,
4/1-5/13 at 1176.) The jury’s verdict was accepted and properly recorded
after the jury was polled at the request of Landis’ counsel. (Id. at 1176-1179,
1181.) See also Pa.R.Crim.P. 648(D), (G). The Commonwealth never
objected to the verdict or its recordation, and it failed to file a post-trial motion
challenging the verdict. Once a verdict has been recorded, it is generally not
subject to alteration or correction, and the protections afforded by double
jeopardy attach. See Commonwealth v. McDaniels, 886 A.2d 682, 686-
687 (Pa.Super. 2005) (stating, “[i]t cannot be disputed that a jury’s recorded
verdict is inviolate. The established rule is that the verdict as recorded is the
verdict of the jury and the latter shall not be permitted to impeach or to alter
or amend it after their separation or discharge[]” (citation and internal
quotation marks omitted)), appeal denied, 903 A.2d 537 (Pa. 2006), cert.
denied, 549 U.S. 960 (2006); see also Commonwealth v. Petteway, 847
A.2d 713, 717 (Pa.Super. 2004) (holding that a defendant’s constitutional
protection against double jeopardy was violated when trial judge commanded
the jury to return to deliberations after it rendered inconsistent verdicts).
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We emphasize that “inconsistent verdicts, while often perplexing, are
not considered mistakes and do not constitute a basis for reversal.”
Petteway, 847 A.2d at 718 (citations omitted). Rather, “[t]he rationale for
allowing inconsistent verdicts is that it is the jury’s sole prerogative to decide
on which counts to convict in order to provide a defendant with sufficient
punishment.” Kearns, 907 A.2d at 659 n.10 (citations omitted). “When an
acquittal on one count in an indictment is inconsistent with a conviction on a
second count, the court looks upon the acquittal as no more than the jury’s
assumption of a power which they had no right to exercise, but to which they
were disposed through lenity.” Petteway, 847 A.2d at 718 (citations and
internal quotations omitted). Based on the foregoing, the Commonwealth’s
claim that double jeopardy did not bar reinstatement of the third-degree
murder charge must fail.6
In an alternative argument, the Commonwealth next contends that
Landis should be barred from presenting a diminished capacity defense on
6 In reaching this decision, we are cognizant of our supreme court’s decision
in Commonwealth v. Terry, 521 A.2d 398 (Pa. 1987), cert. denied, 482
U.S. 920 (1987), overruled on other grounds, Commonwealth v. Frey,
554 A.2d 27 (Pa. 1989), cert. denied, 494 U.S. 1038 (1990). In that case,
our supreme court, in an exercise of its supervisory powers, expressly
disapproved of the practice of acquitting a defendant of lesser degrees of
murder when the defendant is convicted of the higher degree. See Terry,
521 A.2d at 410 (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[]”). Instantly, neither the trial court nor the district
attorney followed the direction from our supreme court; and as a result, the
Commonwealth has no recourse.
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retrial absent an express waiver of his double jeopardy protections.
(Commonwealth’s brief at 22.) In support of this contention, the
Commonwealth maintains that,
[t]he affirmative defense of diminished capacity due
to voluntary intoxication requires that a criminal
defendant concede liability for third-degree murder.
By pursuing a diminished capacity defense, [Landis]
is asking the jury to find him guilty of third-degree
murder. However, by asserting that third-degree
murder is barred by double jeopardy, [Landis]
endeavors to circumvent the requirements for
advancing a defense of diminished capacity.
Id. at 14-15.
Our supreme court has long recognized that the question of “whether a
defendant has established that his faculties and sensibilities were so
overwhelmed with drugs so that he could not form the specific intent to kill is
a question of fact solely within the province of the jury[.]” Commonwealth
v. VanDivner, 962 A.2d 1170, 1177 (Pa. 2009) (citations and internal
quotation marks omitted), cert. denied, 559 U.S. 1038 (2010). “[T]he
defense of diminished capacity is a matter for a jury to believe or disbelieve
as it sees fit.” Id. (citation omitted).
Upon careful review, we find that discussion of this particular issue
would be premature at this point and defer to the trial court on retrial as to
whether the parties may present evidence on Landis’ diminished capacity and
the extent to which the jury should be instructed as to its admissibility. A new
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trial was granted on the basis of the ineffectiveness of original trial counsel.
This ruling does not predispose any evidentiary issue on retrial.
For all the foregoing reasons, we affirm the trial court’s October 24,
2017 order denying the Commonwealth’s petition to reinstate Counts 2
through 4 (third-degree murder and aggravated assault) of the underlying
criminal information.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/24/2018
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