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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JULIO GONZALEZ :
:
Appellant : No. 714 MDA 2022
Appeal from the Order Entered May 5, 2022
In the Court of Common Pleas of Union County
Criminal Division at No: CP-60-CR-0000225-2020
BEFORE: STABILE, J., NICHOLS, J., and STEVENS, P.J.E.*
MEMORANDUM BY STABILE, J.: FILED: JULY 24, 2023
Appellant, Julio Gonzalez, appeals from the May 5, 2022 order denying
his motion to dismiss the remaining charges against him on grounds of Double
Jeopardy. We affirm.
The Commonwealth commenced this action on September 28, 2020, in
a criminal complaint charging Appellant with two counts of attempted
homicide, seven counts of aggravated assault, conspiracy, and discharging a
firearm into an occupied structure. The charges arose from a June 1, 2020
drive-by shooting of a house, in which Appellant allegedly was the shooter.
Two of the victims—Daevon Bodden and Jaheem Lewis—were sitting outside
on the porch at the time of the shooting and sustained nonfatal gunshot
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* Former Justice specially assigned to the Superior Court.
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wounds. Five others present inside the house were unharmed. The
Commonwealth charged Appellant with one count of aggravated assault for
each of the seven persons present either inside or outside the home at the
time of the shooting. The attempted homicide charges pertained to Bodden
and Lewis.
The parties proceeded to trial on March 28 and 29, 2022. During
deliberations, the jury sent several written notes to the trial court. The first
of these pertained to the conspiracy charges. The Commonwealth moved to
nolle prose those charges, and the trial court granted the motion without
objection from Appellant. Eventually, the jurors informed the trial court that
they had reached verdicts of not guilty for five of the aggravated assault
charges but were deadlocked as to the remaining two. Likewise, the jury was
deadlocked as to the two charges of attempted homicide and one count of
discharging a firearm into an occupied structure. The deadlocked homicide
and aggravated assault charges pertained to Bodden and Lewis. The jury
returned acquittals on the counts of aggravated assault of the five persons
inside the home. In summary, the Commonwealth dismissed the conspiracy
charges, the jury returned acquittals on five of the aggravated assault
charges, and the jury’s deadlock resulted in a mistrial on the remaining
charges.
Subsequently, Appellant filed a motion to dismiss the remaining counts
on grounds of double jeopardy. The trial court denied that motion without
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finding it to be frivolous.1 This timely appeal followed. The sole issue before
us is whether the trial court erred in finding that Double Jeopardy and
collateral estoppel do not bar retrial on the deadlocked charges. Appellant’s
Brief at 20.
Appellant presents a question of law for which our standard of review is
de novo. Commonwealth v. States, 938 A.2d 1016, 1019 (Pa. 2007). The
United States and Pennsylvania Constitutions provide that no person may be
tried twice for the same offense. U.S. CONST. amend. V.; PA. CONST. art. I,
§ 10. The federal and Pennsylvania constitutions are coextensive on this
point. States, 938 A.2d at 1019. Criminal collateral estoppel is a subpart of
double jeopardy protection. Id. at 1020.
“Collateral estoppel … does not automatically bar subsequent
prosecutions[,] but does bar redetermination in a second prosecution of those
issues necessarily determined between the parties in a first proceeding which
has become a final judgment.” Id. (quoting Commonwealth v. Smith, 540
A.2d 246, 251 (Pa. 1988)). In other words, criminal collateral estoppel applies
where the jury’s verdict “reflects a definitive finding respecting a material
element of the prosecution’s subsequent case.” Commonwealth v.
Buffington, 828 A.2d 1024, 1032 (Pa. 2003).
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1 An order that denies a double jeopardy motion without finding the motion
frivolous is an appealable collateral order under Pa.R.A.P. 313.
Commonwealth v. Gross, 232 A.3d 819, 832-33 (Pa. Super. 2020), appeal
denied, 242 A.3d 307 (Pa. 2020).
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Pennsylvania courts have employed a three-part analysis in determining
whether subsequent prosecution is barred:
1) an identification of the issues in the two actions for the
purpose of determining whether the issues are sufficiently similar
and sufficiently material in both actions to justify invoking the
doctrine;
2) an examination of the record of the prior case to decide
whether the issue was "litigated" in the first case; and
3) an examination of the record of the prior proceeding to
ascertain whether the issue was necessarily decided in the first
case.
States, 938 A.2d at 1021.
In employing the three-part test, we are mindful of the following
guidance from our Supreme Court:
[T]he rule of collateral estoppel in criminal cases is not to
be applied with [a] hypertechnical and archaic approach … but
with realism and rationality. Where a previous judgment of
acquittal was based upon a general verdict, as is usually the case,
this approach requires a court to examine the record of a prior
proceeding, taking into account the pleadings, evidence, charge,
and other relevant matter, and conclude whether a rational jury
could have grounded its verdict upon an issue other than that
which the defendant seeks to foreclose from consideration. The
inquiry must be set in a practical frame and viewed with an eye to
all the circumstances of the proceedings. Any test more
technically restrictive would, of course, simply amount to a
rejection of the rule of collateral estoppel in criminal proceedings,
at least in every case where the first judgment was based upon a
general verdict of acquittal.
Commonwealth v. Jordan, 256 A.3d 1094, 1099-100 (Pa. 2021) (quoting
Ashe v. Swenson, 397 U.S. 436 (1970)).
As explained above, the jury found Appellant not guilty of aggravated
assault with respect to uninjured parties inside the home. They were
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deadlocked on two counts of attempted homicide and two counts of
aggravated assault regarding Bodden and Lewis. The jury sent the following
notes to the trial court:
The third note read, ‘We have debated and we are
deadlocked and we have all felt that we have looked at the
evidence, and no one feels more deliberation will change their
decision.’ See Court’s Exhibit 2; see also N.T. 3/29/22, p. 189.
The fourth note read in pertinent parts, the following: ‘[W]e
don’t have any disagreement with the individual counts as
to guilt or innocence of the shooter. That is not our issue.
Our issue is we cannot reach a unanimous agreement that
[Appellant] was the shooter. We have had intelligent, lively
discussion and have debated the available evidence, and we
honestly feel that no amount of further deliberation is going to
change any of our minds.’ The note then read, ‘We have agreed
on a not guilty verdict for [five aggravated assault counts relating
to the five uninjured persons inside the home]. See Court’s
Exhibit 3; see also N.T. 3/29/22, p. 187.
Trial Court Opinion, 7/11/22, at 3-4 (emphasis added).
Appellant argues there is no meaningful distinction between the
Commonwealth’s case against Bodden and Lewis and its case against the other
five alleged victims who were inside the house. Appellant argues that his
retrial and conviction on charges stemming from the alleged attempted
homicide and aggravated assault of Bodden and Lewis could only be the result
of a verdict that is inconsistent with the jury’s verdict in this case.
We disagree. All seven counts of aggravated assault arose under the
same subsection, which provides that “A person is guilty of aggravated assault
if he […] attempts to cause serious bodily injury to another, or causes such
injury intentionally, knowingly or recklessly under circumstances manifesting
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extreme indifference to the value of human life[.]” 18 Pa.C.S.A. § 2702(a)(1).
The jury’s notes to the trial court make clear that the jury was deadlocked on
the identity of the shooter. The notes also state that the jury was not split as
to the guilt or innocence of the shooter. Thus, the jury believed the shooter—
whoever it was—was guilty of attempted homicide and aggravated assault of
Bodden and Lewis but not guilty of aggravated assault of the five persons
inside the home. Considering the elements of § 2702(a)(1), the jury could
have found, and presumably did find, that the shooter did not attempt to cause
serious bodily injury to the persons inside the house. There is no inconsistency
between that finding and a finding that the shooter attempted to cause or
actually caused serious bodily injury to Bodden and Lewis.
Thus, Appellant has failed to establish that the jury, in returning
acquittals on five of seven aggravated assault charges, necessarily resolved
all issues pertaining to the remaining two aggravated assault charges. In fact,
that is obviously not the case. The five acquittals pertained to persons who
were unharmed and not visible to the shooter at the time of the shooting. The
remaining charges pertain to Bodden and Lewis, who were outside the home,
visible to the shooter, and sustained gunshot wounds. The jury was unable
to agree on whether Appellant was the shooter. And the disagreement on
that issue also explains the jury’s deadlock on the charges of attempted
homicide and discharge of a firearm into an occupied structure. The doctrines
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of double jeopardy and collateral estoppel pose no bar to retrial on the
remaining counts.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/24/2023
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