*1 See, al. e.g., Laudenberger, Uncertainty A.2d at 147. a procedural procedural, outcome in matter is not substantive. Thus, majority’s argument, final like its others overrul- Woods, ing fails. me, our analysis
For in Woods regarding language, operation correct, history and 238 is not only Rule but is as compelling today as it was in when we the case. decided salutary purposes settlements, encourage of the Rule—to courts, compensate unclutter and to plaintiff delay in receiving recovery his worthwhile and must —remain would, therefore, be actively promoted., continue to I uphold Woods,' our keeping decision with the doctrine of stare decisis, which repeatedly we have termed a “wise course of action”, Lenker, judicial Fadgen v. 469 Pa. (1976), and which disregarded only we have when faced prior holdings
with clearly support. that we were unable to Educ., Ayala Philadelphia Pub. Bd. Pa. A.2d 888-89 Accordingly, would affirm the order of the Commonwealth Court, affirming order, the trial court’s but for different reasons.
Mr. Justice NIGRO and Madame join Justice NEWMAN concurring opinion. dissenting
Argued Jan. Nov. Decided *3 Haimowitz, Stuart L. appellant, Edward Gibbons Greenlee, Packel, T. Ellen John Philadelphia, appellant, Clare Gibbons. Marshall, Burns,
Catherine J. Hugh Philadelphia, for the Com. of PA. FLAHERTY, C.J., ZAPPALA, CAPPY,
Before and CASTILLE, SAYLOR, NIGRO and JJ.
OPINION Justice NIGRO. argue appeal, Edward and Clare Gibbons Appellants
In this to consider the was for the trial court improper that granting a of a court order Commonwealth’s therefore reverse. agree, of and judgment acquittal. We charged endangerment reckless with Appellants were assault,2 conspiracy3 and criminal as person,1 simple another on neighbors had with their they result of altercation trial in munici- Appellants’ bench During 1997. December court, testimony three pal presented the Commonwealth altercation Two of the witnesses testified witnesses. one testified took on December while witness place place on March After the Common- it took 1997. rested, for a Appellants wealth moved 1124(a)(1).4 Appellants argued pursuant Pa.R.Crim.P. proof had to meet its burden failed with complaint charged Appellants acts committed because witnesses had on but the Commonwealth’s December 12, 1997 only occurring acts on December testified to either motion, to Appellants’ on March In response attorney mistake district asserted that she made a assistant eliciting when the Common- the date the altercation testimony requested permission wealth’s witnesses’ transcript. court refused re- amend quest granted Appellants’ Subsequently, motion. with petition for writ of certiorari Commonwealth filed 1. 18 Pa.C.S. *4 § 18 Pa.C.S. 2701.
2. § Pa.C.S. 903. 18 April 1124 became Pa.R.Crim.P. 606. Effective Pa.R.Crim.P. However, change. provides not The rule texl of rule did pertinent part: (A) sufficiency may challenge of the evidence to A defendant charged in one of offenses or a convidion of one or more sustain ways: following of the more (1) acquittal judgment at the close of the Common- a motion for of case-in-chief[.] wealth's Pa.R.Crim.P. 606. court, trial seeking a new trial. oral Following argument on 24, September 1998, granted the trial court the Common- reversing petition, judgment acquittal wealth’s of a remanding appeal, Superior new trial. On Court Judge affirmed with President McEwen dissenting. Jeopardy Under the Double Clauses of both the Unit Constitutions, Pennsylvania ed States and as well as under the Code, Pennsylvania prosecution Crimes a second for the same CONST, acquittal prohibited. offense after is See U.S. CONST, V; I, 10; 109(1).5 § amend. art. § PA. 18 Pa.C.S. This is barring prose rule retrial to confined cases where the cution’s its is failure meet burden clear and a second merely prosecution would afford the opportunity another supply put evidence that it failed to forth in proceed the first ing. 604, Vogel, Pa. (1984) U.S., (citing 609-610 Burks v. 437 U.S. 98 S.Ct. (1978)). prohibition prevents L.Ed.2d “This from honing strategies State its trial and perfecting its evi through dence attempts Repeated successive conviction. prosecutorial unfairly sallies would burden the defendant and a of through governmental create risk conviction sheer persev States, (citing erance.” Id. Green United 355 U.S. 187-188, (1957)). S.Ct. L.Ed.2d 199 Jeopardy
Double
also necessarily
by
bars an appeal
acquittal.
a state from a verdict of
See Smalis v. Pennsylva
nia,
(1986);
U.S.
106 S.Ct.
When a a is for violation the same upon prosecution, based statutes and is same facts as a former prosecution following barred such former under circumstances: (1) prosecution acquittal. former resulted There is an acquittal prosecution finding guilty by if the resulted of not trier of or in a fact determination that there was insufficient evidence guilty A finding warrant conviction. aof lesser included offense, greater although offense is an inclusive subsequently conviction is set aside. 109(1). 18 Pa.C.S. *5 convict, appealed. See United may not be insufficient L.Ed.2d 65 Scott, S.Ct. U.S. States (1978). of its action does court’s characterization The action. classification of the Common necessarily control the 533 Pa. 621 A.2d McDonough, wealth v.
Rather,
“ruling of the
“acquitted” when the
a defendant
label,
actually represents
[in
resolution
judge, whatever its
not,
favor],
or all of
correct or
of some
the defendant’s
Id.
charged.”
offense
at
factual elements
Linen
Supply,
v. Martin
U.S.
(quoting
United States
(1977)).
L.Ed.2d 642
97 S.Ct.
Here,
Superior
trial court and the
Court
both the
munici
acquittal
entered
concluded that the verdict
acquittal
instant
did not constitute an
pal court
case
jeopardy.
Superior
of double
Court reasoned
purposes
indi
[municipal] judge’s
hearing
comments at the
that “[t]he
grant Appellants’
did not
motion because he
cated
he
Rather,
they
charges.
of the
determined that
were innocent
testimony
support
that the
did not
judge
determined
charges set forth in the criminal information because
Gibbons,
Nos.
discrepancy in the dates.” Commonwealth
slip op. at
A review of the record reveals granted Appellants’ motion for court on had failed to meet based the fact the Commonwealth record, pertinent part, reads: its burden. The Respectfully, ATTORNEY]: DISTRICT [ASSISTANT asking am able to and I am Your Honor to move to amend 27th, detail, a minor transcript change the date to the was, If ask what we respectfully like a date. we them is no specifically happened, question them what there asked Honor, mind, your something happened Your time, and I am correcting my minor clerical mistake on part reading my on from notes. *6 Well,
THE COURT: counsel— And [ASSISTANT DISTRICT the incident ATTORNEY]: happened. still It still happened you December. Are saying— saying
THE I’m not that COURT: the incident didn’t is, but happen, thing duty-bound the the Commonwealth is beyond 12/27/97, to that establish reasonable doubt on your this event occurred. You have rested case. There you has not been an iota of evidence to establish that your made burden out for this incident on 12/27/97. Well, respectfully, [ASSISTANT ATTORNEY]: DISTRICT Honor, Your I think that the right now and victims, I question, day, date, the misread the the the time, location, facts, year, specific no there’s question Your Honor’s mind happened as to what on that time, material, period, my path not even a month is 15-day period on or about December 1997. you I’m asking
[ASSISTANT DISTRICT to ATTORNEY]: any transcript. let me amend reference in the THE COURT: No.
[ASSISTANT DISTRICT To 27th. ATTORNEY]: No, closed, THE I will put you you COURT: not. You on— rested, that’s it. Honor, DISTRICT
[ASSISTANT Your ATTORNEY]: making counsel is on a technicality. [the motion] Counsel would like-— Yes, is,
THE thing COURT: but the that why is is counsel is they get there. Counsel there to make sure a fair trial. Honor, [ASSISTANT DISTRICT Your ATTORNEY]: this for, is what a acquittal you motion for is know it. A acquittal motion for is not a typographical for error on Commonwealth’s notes. There not an nothing
THE But there is else. is COURT: this iota, of evidence that indicated that not a scintilla was, happened on 27th of happened, this even acquittal granted. Judgment December. added). 5/22/98, In
N.T.,
(emphasis
light of this
at 79-87
discussion,
granted
court
clear
seems
that the Com-
judgment
on the basis
motion
convict
to
present
to
sufficient evidence
monwealth failed
charged.
Since the
Appellants
the offenses
ruling by municipal
on a
court that
acquittal was based
convict,
was
the Commonwealth
was insufficient
evidence
109(1);
from
Pa.C.S.
appealing
order.
precluded
Scott,
Thus,
improper
it was
Justice NEWMAN or decision this case. concurring opinion. files a
Justice SAYLOR dissents. Justice CASTILLE SAYLOR, concurring.
Justice I Although join majority’s disposition, empha- would the jeopardy appellate that there no absolute double bar to size is judgments acquittal; availability of such review of the character of the court’s dependent upon review is the essential viability prosecution appeal depends and judgment; question is one of law or fact.1 upon whether the issue Lynch, 732, (2nd Cir.1998) (citing United 162 F.3d 1. See States Scott, 437 U.S. 98 S.Ct. 57 L.Ed.2d United States Co., (1978); Supply v. Martin 430 U.S. United States Linen 1349, 1354-55, (1977)); A. 97 S.Ct. L.Ed.2d 642 15B Charles Wright, Cooper, Federal Arthur R. Miller & Edward H. Practice and (herein (1992) Procedure, and Reiated Matters 2d 3919.5 Jurisdiction "Wright, 2d"); Alogna, Forrest G. and after Federal Practice Procedure Distinction, Note, Jeopardy, Acquittal Appeals, Double and the. Law-Fact (2001). allowing The rationale 86 Cornell L.Rev. that, prosecution appeals is a defendant seeks to termi- certain where Differentiating 'questions questions fact from of law has courts, proven difficult with the characterization “as much Fenton, Miller v. a analysis.” matter of allocation as it is. of U.S. S.Ct. L.Ed.2d 405 As jeopardy jurisprudence, concerns double I view the question circumstances of this as unique. presented case The here, Commonwealth, posed is whether the trial ruling court’s a concerned factual element of its or case represented legal According a determination. to the Com- monwealth, is not an the date essential element as to the (criminal assault, charged simple offenses here conspiracy, and endangerment); reckless court’s conclusion to the and, contrary merely represented legal ruling; erroneous therefore, no bar jeopardy precepts pose double to its appeal. In making argument, such the Commonwealth characterizes involving issue as one between complaint variance trial, and proof maintains that the court in denying abused its prosecutor discretion leave to amend compláint.2 innocence, grounds nate guilt underlying a trial on unrelated to or Scott, purpose jeopardy prohibition implicated. of the double is 95-96, 437 U.S. at S.Ct. at 2196. (criminal general, charging In complaint document or informa- tion) defendant, alia, must advise the the date inter when the offense 504(4), alleged (b) (pro- have been committed. See Pa.R.Crim.P. alia, offense, viding, the;date complaint inter shall set forth the date of the week if it is an essential element of the 560(A)(3) charged); (setting offense Pa.R.Crim.P. forth a similar re- information). quirement purpose for a require- criminal of such provide ment is defendant with notice sufficient to meet the *8 Alston, charges prepare generally a defense. See Commonwealth v. 202, 209-10, 1092, 539 Pa. 651 A.2d 1095 Variance issues typically charging arise in the context of a mistake or error in the See, Ohle, 566, 589, e.g., document. Commonwealth v. 503 Pa. 470 A.2d (1983) (involving an to incorrect citation the Crimes as Code Code); 424, 428, opposed Gray, to the Penal v. Commonwealth Pa. (1977) (concerning killing 374 A.2d a date of the different circumstances, examiner). than that testified to the medical In such a only discrepancy defendant is to relief entitled if the him at misled trial, defense, surprise prejudicial preclud- involved an of to element his anticipating prosecution's proof, impaired ed him from the or a sub- 384, 391, right. Pope, stantial See Commonwealth v. 455 Pa. 317 A.2d (1974). Parenthetically, a should variance be differentiated prosecute from the in which the situation Commonwealth seeks to a however, In the not, typical a situation. variance This was case, to motion a response Appellee’s present com- did to amend the prosecutor not seek acquittal, the rather, trial contended proofs; to with the she plaint conform a complaint was correct but defect existed that the date in the Indeed, proof. the Commonwealth’s in the Commonwealth’s not only varied the date the offense proofs concerned internally complaint, they were also that in the from asserted degree. prosecutor therefore inconsistent to a substantial to leave amend the very step requesting took the unusual or, alternative, reopen case in the the testimony notes of case. rectify witnesses to her and re-call the that I with the Commonwealth the variance Although agree inconsistency in the complaint proofs and the between a implicate not factual element the offenses proofs did involved, discrepancies given character of charged, a that did concern support court’s conclusion note requirement proof. supra of the Commonwealth’s therefore, unique presented, and where In the circumstances suffi- ruling court couched its terms of the alleging proving specific date was defendant without a the offense 508, 513, Devlin, v. 460 Pa. 333 A.2d committed. Cf. (1975) (concluding proof crime some- that the occurred during span fundamentally a a unfair time fourteen-month constituted defend). ability upon burden defendant's legal charging may A as a issue for defect document be Ireated purposes jeopardy depend upon where does double its resolution See, Kehoe, e.g., prosecution’s an assessment of the evidence. U.S. v. (5th Cir.1975) (concluding judgment of 516 F.2d 85-86 acquittal granted upon failure of mid-trial and based the indictment legal jeopardy purely an did not bar state offense was and double Evans, proceedings); State 205 Conn. 534 A.2d further accord (1987) (holding (plurality opinion) jeopardy double preclude prosecution appealing a based does not from dismissal offense); upon specify date of the information to failure James, (Del.1991); Pusey, 36-37 Florida State v. 1993). in (Fla.App. discrepancy So.2d Where the has 261-62 trial, proven the offense as it has been treated volved element of See, Hunt, (10th e.g., 212 F.3d as factual. Cir.2000) United States v. government (holding jeopardy that double barred mail, alleged proof theft and the estab where the indictment from theft). only lished *9 evidence, ciency of the I am join able to the majority’s order enforcing a jeopardy double bar.
No. 42 DB RST Supreme Pennsylvania. Court of
Sept. PETITION FOR REINSTATEMENT
FROM INACTIVE STATUS
ORDER PER CURIAM. NOW,
AND this 6th September, Report and Recommendations of The Disciplinary Board of the Su- preme Pennsylvania Court of August dated ap- are proved and IT IS ORDERED that JOHN THEODORE HAMMER, status, who has been on inactive has never been disbarred, suspended or and has demonstrated that he has the qualifications, moral competency learning required law for admission to practice Commonwealth, in the shall be and is, hereby reinstated to active status as a member of the Bar of this expenses Commonwealth. The by incurred the Board in the investigation and processing of the Petition for Rein- paid statement shall be the Petitioner.