¶ 1 This is an interlocutory appeal as of right from the order
¶ 2 The pending jury trial will be Appellant’s second on the above offenses. In Appellant’s first trial, a jury convicted him of PWID and Delivery, аnd acquitted him of the lesser included charge of simple possession.
¶ 3 The Commonwealth reinstated charges only on the PWID and Delivery offenses that had resulted in convictions, and dismissed the simple possession charge on double jeopardy grounds. Appellant filed a pre-trial motion, however, for dismissal of the remaining charges as well on double jeopardy and related grounds. Specificаlly, he argued that dismissal was required because all charges stemmed from the same incident, and if the jury had acquitted him of lesser included offense possession, then a conviction on greater inclusive PWID and Delivеry offenses must have been error. The court denied Appellant’s motions, and this interlocutory appeal as of right followed.
¶4 Appellant reprises his argument that acquittal of lesser included offense simрle possession must place a double jeopardy, estoppel, or autrefois acquit bar on a second prosecution of the greater inclusive offenses PWID and Delivery, even if the jury convicted him on the greater offenses in the first trial. Appellant admits that he could find no case directly on point mandating or endorsing this novel preclusion argument. Nor does he gather support from inapposite decisions invoking double jeopardy protections to bar second prosecutions of greater inclusive offenses where the first trial resulted in (1) acquittal of the greater inclusive offense altogether, (2) acquittal of thе lesser included offense coupled with an inability to agree upon the greater inclusive offense,
Consistency in verdicts in criminal cases is not necessary.... 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 assumрtion of a power which they had no right to exercise, but to which they were disposed through lenity. The rule that inconsistent verdicts do not constitute reversible error applies even where the acquitted offense is a lesser included offense of the charge for which a defendant is found guilty.
Commonwealth v. Petteway,
¶ 5 Read in this light, the jury’s decision to acquit Appellant of the simple possession charge but convict on PWID and Delivery charges is understоod as an act of lenity in a case where the evidence focused, in any event, predominantly on Appellant’s act of delivery during a controlled buy of methamphetamine. The inconsistent verdict, thеrefore, does not imply error, mistake, or inability to agree as to the two greater inclusive offenses.
¶ 6 Nor is there, therefore, a double jeopardy, estoppel, or autrefois acquit problem with a second prosecution of the greater inclusive offenses in this case. Though conceptual and practical differences exist with each principle, they share the purpose of barring retrial for the same offense.
¶ 7 The double jeopardy prohibition “is often described as a universal principle of reason, justice and conscience.” Commonwealth v. Bolden,
Double jeopardy policy is implicated in a variety of procedural contexts. In each of these contexts, the policy against multiple trials has been recognized as central to the double jeopardy clause. The critical consideratiоn is that a defendant should be forced to ‘run the gauntlet’ of a criminal prosecution only once for a single offense. A criminal prosecution imposes severe psychological, physical and economic burdens on the accused. It 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 judgmеnt which is deeply held by our society.
Bolden,
¶ 8 “Under the Double Jeopardy Clauses of both the United States and Pennsylvania Constitutions, as well as under the Pennsylvania Crimes Code, a second prosecution for the same offеnse after acquittal is prohibited.” Commonwealth v. Gibbons,
*239 This rule barring retrial is confined to cases where the prosecution’s failure to meet its burden is clear and a second trial would merely аfford the prosecution another opportunity to supply evidence that it failed to put forth in the first proceeding.
The rationale is that ‘this prohibition prevents the State from honing its trial strategies and perfecting its evidence through successive attempts at conviction. Repeated prosecutorial sallies would unfairly burden the defendant and create a risk of conviction through sheer governmentаl perseverance.’
Gibbons,
¶ 9 Appellant’s retrial on PWID and Delivery charges is not based on an inadequate evidentiary proffer in the first prosecution, for the Commonwealth obtained convictions on both сharges. Moreover, retrial follows what the trial court determined was a necessary, post-verdict declaration of a mistrial caused by juror misconduct. The necessity of the court’s ruling is not in dispute. This Court has sрecifically found that double jeopardy preclusion of “successive prosecutions” for the same offense did not apply to such a retrial. Commonwealth v. Vincent,
¶ 10 Appellant also raises a similar aspect of double jeopardy jurisprudence involving elements of issue preclusion, also called collateral estoppel. Under the principle of collateral estoppel:
a jury’s verdict may, in certain circumstances, be viewed as a finding that forecloses consideration of an issue of fact in a subsequent prosecution. In order for this to occur, the jury’s verdict must be of such a character that it reflects a definitive finding respecting a material element of the prosecution’s subsequent case.... The party seeking to invoke preclusion principles, however, bears the burden of establishing that the issue he seeks to foreclose from consideration in a subsequent prosecution was necessarily resolved in his favor in the prior proceeding.
Commonwealth v. Buffington,
¶ 11 With no double jeopardy, estoppel, or autrefois acquit bar to a second prosecution on the greater inclusive offense charges raised against Appellant, we affirm the order entered below.
Notes
. In Pennsylvania “a defendant is entitled to an immediate interlocutory appeal as of right from an order denying a non-frivolous motion to dismiss on state or federal double jeopardy grounds.” Commonwealth v. Savage,
. The crime of simple рossession is a lesser-included offense of both possession with the intent to deliver a controlled substance, Commonwealth v. Rippy, 732 A.2d 1216 (Pa.Super.1999), and delivery of a controlled substance, Commonwealth v. Harris,
. Commonwealth v. Zimmerman,
.Commonwealth v. Thatcher, 364 Pa. 326,
. Section 109 provides:
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:
*239 (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). In the cаse at bar, the first prosecution of the PWID and Delivery greater inclusive charges resulted in a finding of guilt, which takes the second prosecution on such charges outside the scope of Section 109(1).
. Our decision on the double jeopardy claim necessarily defeats Appellant’s claim based on the common law principle of autrefois acquit, which bars prosecution of a charge where the defendant was previously acquitted of the same charge in a previous trial.