Commonwealth v. Hallman, 67 A.3d 1256

Appellant Hallman, an inmate, was charged with aggravated assault under 18 Pa.C.S.A. § 2702(a)(2) and (a)(3) for an inmate-officer assault.
Trial occurred March 17, 2011; officer testified Hallman punched him, breaking a rib and causing serious injuries.
The court gave an acquittal-first progression instruction directing the jury to consider the greater offense first and not to reach the lesser unless acquitting the greater.
The jury found Hallman guilty on Count I (a(2)); no verdict was rendered on Count II (a(3)) due to the instruction.
After sentencing, Hallman’s arrest-of-judgment on the a(2) charge was granted for evidentiary insufficiency; Commonwealth did not appeal.
Commonwealth sought retrial on the a(3) charge; Hallman moved to dismiss on double jeopardy grounds; trial court denied; appeal followed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Does double jeopardy bar retrial on the lesser charge 2702(a)(3)?	Hallman argues retrial on a(3) violates double jeopardy since jeopardy terminated.	Commonwealth contends continuation of jeopardy did not terminate for a(3) because jury could not verdict on that count due to progression instruction.	No; retrial on a(3) is permissible because the jury was prevented from rendering a verdict on that count.
Did the progression instruction affect the jeopardy analysis?	Hallman asserts the instruction unjustly precluded verdict on the lesser count.	Commonwealth argues progression charge is proper to prevent inconsistent verdicts.	Yes; the progression instruction did not violate double jeopardy and allowed retrial on the unresolved lesser offense.

Commonwealth v. Hart, 388 Pa. Super. 484, 565 A.2d 1212 (1989) (Pa. Super. 1989) (approval of acquittal-first progression in certain multiple-offense cases)
Commonwealth v. Loach, 421 Pa. Super. 527, 618 A.2d 463 (1992) (Pa. Super. 1992) (en banc discussion of progression charges for multiple forms of the same crime)
Commonwealth v. Sneeringer, 447 Pa. Super. 241, 668 A.2d 1167 (1995) (Pa. Super. 1995) (recognition of progression charges as a structure for jury deliberations)
Buffington, 828 A.2d 1024 (Pa. 2003) (Pa. 2003) (rule on implicit acquittal where lesser offenses are before the jury)
Green v. United States, 355 U.S. 184, 78 S.Ct. 221 (1957) (U.S. 1957) (implicit acquittal when jury fully considers charge but is silent on it)
Richardson v. United States, 468 U.S. 317, 104 S.Ct. 3081 (1984) (U.S. 1984) (mistrial rule; continuing jeopardy on unresolved counts)
United States v. Scott, 437 U.S. 82, 98 S. Ct. 2187 (1978) (U.S. 1978) (arrest of judgment constitutes acquittal when final)