J-S31023-17
2017 PA Super 195
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RICCARIO J. JONES, :
:
Appellant : No. 1330 WDA 2016
Appeal from the Order Dated May 3, 2016
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0003518-2014
BEFORE: PANELLA, J., DUBOW, J., and FORD ELLIOTT, P.J.E.
OPINION BY DUBOW, J.: FILED JUNE 21, 2017
Appellant, Riccario J. Jones, appeals from the May 3, 2016 Order
denying his Motion to Dismiss.1 After careful review, we affirm.
We summarize the facts and procedural history, as gleaned from the
certified record, as follows. Police arrested Appellant following a shooting on
November 5, 2014, in Erie, Pennsylvania. The Commonwealth charged
Appellant with Aggravated Assault, Discharge of a Firearm into an Occupied
Structure, Receiving Stolen Property, Persons Not to Possess a Firearm,
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1
On May 6, 2016, the trial court granted Appellant’s Motion to Certify this
Order for immediate appellate review pursuant to 42 Pa.C.S. § 702(b),
concluding that the issue raised by Appellant includes “a controlling question
of law as to which there is substantial ground for difference of opinion and
that an immediate appeal from the Order of May 3, 2016[,] may materially
advance the ultimate determination of the matter[.]” Trial Ct. Order,
5/6/17. Thereafter, Appellant filed a timely Petition for Permission to
Appeal, which this Court granted on September 8, 2016.
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Firearms Not to be Carried without a License, Possession of an Instrument of
a Crime, Recklessly Endangering Another Person (“REAP”), Terroristic
Threats, and Attempted Murder.2
On September 18, 2015, following a four-day trial, the jury convicted
Appellant of Discharge of a Firearm into an Occupied Structure, Persons Not
to Possess a Firearm, Firearms Not to be Carried without a License,
Possession of an Instrument of a Crime, REAP, and Terroristic Threats. The
jury was deadlocked on the Aggravated Assault and Attempted Murder
charges; therefore, the court declared a hung jury as to those counts. The
court recorded the guilty verdicts on the remaining counts.3
On April 18, 2016, Appellant filed a Motion to Dismiss pursuant to
Pa.R.Crim.P. 648 wherein he requested that the court issue an order barring
retrial on the deadlocked counts of Aggravated Assault and Attempted
Murder. In support, he asserted, inter alia, that “the jury’s finding of guilt
on lesser included offense of REAP results, for purposes of retrial, [in] an
acquittal” of the deadlocked offenses of Aggravated Assault and Attempted
Homicide. Appellant’s Motion to Dismiss, at ¶ 10.
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2
18 Pa.C.S. §§ 2702(a)(1), 2707.1, 3925, 6105(a), 6106(a), 907(a), 2705,
2706, and 901/2501, respectively.
3
The court also entered a Judgment of Acquittal on the Receiving Stolen
Property Charge.
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On May 3, 2016, the trial court denied Appellant’s Motion. Appellant
thereafter sought permission to Appeal to this Court, which this Court
granted on September 8, 2016.
Appellant raises the following issue for our review:
Whether the [t]rial [c]ourt committed an error of law in denying
Appellant[’s] Motion to Dismiss as the Commonwealth is barred
by the Double Jeopardy Clause as well as Pa.R.Crim.P. 648 from
retrying [] Appellant for Aggravated Assault and Criminal
Attempt – Homicide where the jury reached a verdict as to a
lesser included offense thereof.
Appellant’s Brief at 3.
In his sole issue on appeal, Appellant argues that the trial court erred
in denying his Motion to Dismiss because Article 1, Section 10 of the
Pennsylvania Constitution, pertaining to double jeopardy, and Pa.R.Crim.P.
648 bar his subsequent retrial. Appellant’s Brief at 7-10. Appellant avers
that the jury’s guilty verdict on the REAP charge precludes the
Commonwealth from retrying him on the Aggravated Assault and Attempted
Murder charges because REAP is a lesser included offense of Aggravated
Assault and Attempted Murder. Id. at 7-8. Without citation to any
authority, Appellant claims that “the jury’s agreement as to [the REAP
charge], as a lesser included offense, operates as an acquittal of the charges
of Aggravated Assault and [Attempted Murder], as a matter of law.” Id. at
8-9. Appellant further argues, again without citation to any authority, that
18 Pa.C.S. § 109(1) also “bars re-prosecution for Aggravated Assault and
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[Attempted Murder] due to the jury’s finding of guilt as to the [REAP] count,
which constitutes an acquittal of all greater included offenses.” Id. at 9.
Appellant’s challenge raises a question of law. As with all legal
questions, our standard of review is de novo. See generally
Commonwealth v. Mattis, 686 A.2d 408, 410 (Pa. Super. 1996).
Retrial after a hung jury normally does not violate the Double Jeopardy
Clause. Sattazahn v. Pennsylvania, 537 U.S. 101, 109 (2003);
Commonwealth v. Harris, 582 A.2d 1319, 1321 (Pa. Super. 1990).
Pa.R.Crim.P. 648(D), pertaining to jury verdicts generally, permits retrial on
the charges upon which the jury could not agree when those charges are not
“included offenses” of the charges for which the jury could agree:
(D) If there are two or more counts in the information or
indictment, the jury may report a verdict or verdicts with respect
to those counts upon which it has agreed, and the judge shall
receive and record all such verdicts. If the jury cannot agree
with respect to all the counts in the information or indictment if
those counts to which it has agreed operate as an acquittal of
lesser or greater included offenses to which they cannot agree,
these latter counts shall be dismissed. When the counts in
the information or indictment upon which the jury cannot
agree are not included offenses of the counts in the
information or indictment upon which it has agreed, the
defendant or defendants may be retried on those counts
in the information or indictment.
Pa.R.Crim.P. 648(D) (emphasis added).
Additionally, this Court has held that “retrial of charges on which a jury
has been unable to agree is not barred unless the jury made findings on one
or more other charges which must be interpreted as an acquittal of the
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offense for which the defendant is to be retried.” Harris, 582 A.2d at 1322
(emphasis added) (concluding that a guilty verdict on a simple assault
charge did not preclude retrial on aggravated assault charge where the jury
was unable to reach a verdict).
It is well-settled that where a person is tried and acquitted of a crime
which is a constituent of another crime, he may not be prosecuted for the
greater crime. See, e.g., Commonwealth v. Thatcher, 71 A.2d 796, 798
(Pa. 1950) (emphasis added). Appellant, relying on 18 Pa.C.S. § 109(1),4
argues that his conviction of REAP, as a constituent or lesser-included
crime, operates as an acquittal to the greater offenses of Aggravated Assault
and Attempted murder, thus precluding his re-prosecution for those charges.
This argument lacks merit.
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4
18 Pa.C.S. § 109 provides, in relevant part:
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).
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In the instant case, the jury found Appellant guilty of REAP, but could
not reach a verdict on Aggravated Assault or Attempted Murder. To analyze
the double jeopardy implications of this, we must review the statutes to
determine whether the charge of REAP is an included offense of Aggravated
Assault or Attempted Murder.
REAP is defined at 18 Pa.C.S. § 2705 as follows:
A person commits a misdemeanor of the second degree if he
recklessly engages in conduct which places or may place another
person in danger of death or serious bodily injury.
18 Pa.C.S. § 2705.
Aggravated Assault is defined at 18 Pa.C.S. § 2702(a)(1) as follows:
(a) Offense defined.--A person is guilty of aggravated assault
if he:
(1) attempts to cause serious bodily injury to another, or
causes such injury intentionally, knowingly or recklessly
under circumstances manifesting extreme indifference to
the value of human life[.]
18 Pa.C.S. § 2702(a)(1).
Attempted Murder is as defined at 18 Pa.C.S. §§ 2501 and 901 as
follows:
(a) Offense defined.--A person is guilty of criminal homicide if
he intentionally, knowingly, recklessly or negligently causes the
death of another human being.
18 Pa.C.S. § 2501(a).
(a) Definition of attempt.--A person commits an attempt
when, with intent to commit a specific crime, he does any act
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which constitutes a substantial step toward the commission of
that crime.
18 Pa.C.S. § 901(a).
By its verdict, the jury concluded that Appellant had recklessly
engaged in conduct that placed or might have placed another person in
danger of death or serious bodily injury. The REAP conviction, however,
does not operate as an acquittal with respect to Aggravated Assault and
Attempted Murder. While the Aggravated Assault and Attempted Murder
statutes contain the word “reckless,” these statutes also contain elements
not present in the definition of REAP, upon which the jury could not reach a
conclusion.
Accordingly, we disagree with Appellant that a hung jury on his
Aggravated Assault and Attempted Murder charges operates as an acquittal
on those counts, or that his conviction of REAP operates as an acquittal to
the Aggravated Assault and Attempted Murder charges. Neither Section 109
nor principles of double jeopardy preclude the Commonwealth from retrying
Appellant on the charges for which the jury was unable to reach a verdict.
Order affirmed.
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J-S31023-17
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/21/2017
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