*1 filing sepa- a another without instituted appeal already that, to respect with We also believe appeal. rate joined defend- over Court’s jurisdiction Common Pleas contravene 1007B does not of Rule ant, this application case, Coryea because In the instant 3005(b). Pa.C.S.A. § timely responded and Maybee No. 1165 appeal filed timely Coryea both against of a filing complaint with the express the court’s obtained and soon thereafter McKnight the Common we conclude join McKnight, approval That McKnight. Maybee’s over jurisdiction has Pleas Court irrelevant. untimely on No. notice of appeal McKnight free join 1007B Maybee Rule Under timely appeal. Coryea’s affirmed.
Order opinion. WIEAND, J., concurring files WIEAND, concurring: Judge, to affirm decision majority’s fully I concur action as a joined party to be causing order unnecessary find it Therefore, I trial court. in the pending order, one whether, absence of such in the to determine carry would magistrate’s decision defendant’s appeal liability. defendant’s issue of another A.2d 1036 Pennsylvania COMMONWEALTH KLINGER, Appellant. Eugene Dennis Superior Pennsylvania. Court Argued Sept. 23, 1979.
Decided Feb. *3 appellant. Lemoyne, C. Costopoulos, William General, for Reihart, Assistant Special Attorney Donald L. Rehkamp, Dis- Joseph and him C. the Commonwealth brief on behalf of submitted a Attorney, Perry County, trict Commonwealth, appellee. HOFFMAN, JJ. PRICE, HESTER and Before HESTER, Judge: 7, 1976,
On June of Hazel body lifeless Pulaski remote, was in a region discovered mountainous as known Lambs Gap, Perry had been County. missing She for ten and days object was the an intensive search by family, friends, son, Her police. Dennis Klinger, and, with her formally murder charged following eight trial, testified, which day jury during over witnesses he was including found not appellant, guilty. Eight months later, the County Attorney District Perry charged appellant with various of perjury, swearing, counts false and conspira relative to trial cy1 appellant’s At a testimony. prelimi 20, 1977, on June nary hearing was ordered held for court on four counts of and one perjury count each false dismiss, A motion to swearing conspiracy. con tending the is prosecution barred double by jeopardy and estoppel, denied. This appeal followed.2 a prosecution
Whether is aby barred former ver dict of on a acquittal charge different by determined Code, Section 110 of the Crimes 18 C.P.S.A. 110. That §§ section provides pertinent part: 110. When prosecution by barred former prosecution
§
for different offense is for Although prosecution a violation of a different provision of statutes than prosecution a former isor facts, based on different it is barred such former prosecution under the circumstances: following
¡f<
sj«
¤
$
[*]
>!<
*4
(2) The
prosecution
terminated,
former
after
in-
the
found,
dictment
by
an
or
a
or
acquittal
by final order
6, 1976,
1482,
1,
334,
4902,
1. Act of Dec.
P.L.
No.
18
§§
C.P.S.A. §§
4902, 903, respectively.
pursuant
Appellate
2.
Jurisdiction
in this
rests
Court
to the
Court
Act,
pre-trial application
Jurisdiction
17 P.S.
211.302. Denial of a
§§
seeking discharge
jeopardy grounds
on double
is a “final order” for
purpose
appealable prior
of
211.302 and is thus
to trial. Com-
§§
Bronson,
207,
453;
monwealth
Bolden,
v.
482
Commonwealth v.
Pa.
393 A.2d
Haefner,
602,
(1977);
472 Pa.
v.
25 aside, set which has not been for the defendant judgment or and which final order acquittal, or vacated reversed a determination inconsist- required judgment necessarily of for conviction with must be established ent a fact which offense. the second a “cumber- 110(2), although that Sec. recognized
We have of statute”, principles more settled codify does no than some a That once former criminal cases: estoppel collateral in favor ultimate fact in establishes an necessarily prosecution defendant, depending subsequent prosecution a of a then v. barred. Commonwealth a must be upon contrary finding 1305, (1977).3 In 1308 475, 381 A.2d Shelhorse, Pa.Super. 252 1189, Swenson, 436, 25 L.Ed.2d 90 S.Ct. v. 397 U.S. Ashe estoppel the Court found the collateral (1970), Supreme proscrip- is the federal constitutional by doctrine embraced reviewing double and stated against jeopardy tion as follows: approach court’s awkward is an but estoppel” phrase,
“Collateral
in our adver-
principle
an extremely important
stands for
an
that when
justice.
simply
of
It means
system
sary
a valid
of
has once been determined
issue
ultimate fact
be
again
litigated
that issue cannot
and final judgment,
any
future lawsuit.
parties
between the same
made clear that
rule
The federal decisions have
is not to be applied
in criminal cases
estoppel
collateral
of a 19th
approach
archaic
with the
hypertechnical
book,
rationality.
but
realism and
century pleading
upon
was based
acquittal
Where a previous judgment
verdict,
case,
re-
approach
this
usually
as
proceed-
of a prior
court
“examine
record
quires
evidence, charge,
into
taking
pleadings,
account
ing,
a ration-
matter, and conclude whether
and other relevant
issue other
upon
its verdict
grounded
al
could have
to foreclose
than that which the defendant seeks
estoppel
applied
Courts of this Commonwealth
g.
110(2).
e.
long
of Sec.
See
criminal context
before the enactment
Commonwealth,
recently,
Dinkey
(1851).
see
More
v.
Pa.
(1969),
Rose,
Pa.Super.
consideration.” The “must be set in a practical and frame viewed to all the eye circumstances of States, Sealfon v. proceedings.” 575, United 332 U.S. 240, 579, 237, 68 92 S.Ct. L.Ed. 180. test more Any course, restrictive would of technically amount to a simply rejection of the rule in estoppel criminal at least in where first proceedings, case every judg- ment was upon based verdict of general acquittal. [Footnote omitted]. 1194; 443-4,
397
at
90
U.S.
S.Ct. at
Commonwealth v.
Studebaker,
622,
335;
v.
481
Grazier
Pa.
393 A.2d
See also
233,
432,
Commonwealth v.
Pa.
Campana (I), 452
304 A.2d
vacated,
808,
73,
414
94
(1973),
U.S.
The commonwealth’s case
against appellant
entirely
circumstantial, as
were no
eyewitnesses
killing.
there
28,
1976,
showed that
Undisputed testimony
Friday, May
A.M.,
7:20
into the
approximately
appellant walked
West
Pa.,
Counseling
Hill,
Youth
Center in
Shore
met
Vincent
O’Reilly,
counselor.
informed
Appellant
that he
himself
his parole
wanted
“turn
in” to
O’Reilly
officer because he had been in violation of his
condi-
parole
Appellant
O’Reilly’s
tions.5
called his mother from
office
her to
him
pick
up
asked
at a
center
nearby shopping
Jeopardy
applicable
through
4. The Double
Clause is
to the states
Mary-
Due Process
Clause of
Fourteenth Amendment. Benton v.
land,
2056,
784,
Grazier,
(1969).
395 U.S.
89 S.Ct.
witness 9:00 Durkin, Hill. Camp Appellant his friend home of Carol by Pinto was not driving accompanied was and that time The was seen alive again. mother. Mrs. Pulaski his then, was 7:40 A.M. and 9:15 time between period, critical counsel, It was and May stipulated A.M. on 1976. mother, advised, if murdered appellant was that his (Trans., within that time slot. had to have occurred 10/12/76, 31). events within p. transpiring The Daytime, dispute. were gap that much theory appel- on the that proceeded
The Commonwealth to his from the Hill center shopping lant drove mother as he killed Gap, area known Lambs where damp, wooded left down Appel- and her face near a small stream.7 her6 home, in com- then to Carol Durkin’s whose proceeded lant eve- morning. Friday he remainder of the spent the pany Weiss, his to the girlfriend Allyson took ning, shore, Monday where the two remained until Maryland time, intensive search efforts had evening, May 31. By suspicion launched Mrs. Pulaski and of foul play been for until his had centered on He eluded authorities appellant. 2. on June arrest Wednesday, on appel-
Much of the evidence focused Commonwealth’s was motive kill his mother. It lant’s and opportunity preferred against shown Mrs. Pulaski had recently charges appel- her checks and that forging cashing her son for him refusing post bitter her for bail lant was toward asphyxia. victim had determined to be The 6. Cause death was material, sand, gravel, large foreign principally quantity inhaled twigs, disputed plants. death and small It was not that cause of findings pathologist’s were consistent with a homicide. open possibility Mrs. Pula- The case left 7. Commonwealth’s else, Gap. There ski was killed and then taken Lambs somewhere foreign conflicting testimony found in on whether material nearby region. lungs Gap Lambs from some her came from or Further, several occasions. the Commonwealth estab- lished familiar with very the Lambs region, having travelled there “every weekend” with friends. (Trans. 10/13/76, 57-8). Daytime, pp. Commonwealth evi- dence also stressed appellant’s weekend flight the shore following his mother’s disappearance and his furtive activity to the of his up arrest. day
The presented defense a different version of the events of May Appellant stated he was not in the Lambs Gap area that morning, but drove his mother to a site some 3/4 therefrom, miles distant a region known as Millers Gap. There, appellant requested mother’s aid in locating camp- ing he equipment had left there the previous day.8 Appel- *7 parked lant the car he his and and mother walked along fire trail for some distance before splitting up, appellant’s behest, to search the area the equipment. appel- Once lant mother, lost of his he sight doubled back to the car and drove away. Appellant this deceit explained he by stating needed his mother’s car spend to “one last weekend” with Allyson Weiss before he jail went to for parole violations.9 10/11/76, (Trans. 47). Evening, p. was Appellant confident his mother Miller’s, could seek at Tillie refuge whose home was in Gap. Millers
As he drove from Millers that morning, appellant made a brief detour Lambs up Gap road in an effort to locate two individuals from whom he purchase wished to He marijuana.10 spotted and waved to along these two side road, of the but did not since there was traffic stop behind him. Appellant proceeded then to Carol Durkin’s home.
He returned Monday night from and Maryland soon learned his mother missing was and that he was the focus of Appellant camping equipment 8. admitted at trial there was in fact no Gap, day at Millers as he had removed it the before. Appellant thought by parole failing stated he he had violated his keep steady employment. be, apparently, 10. These two fellows later turned out to Christ Duncan. ex- June he authorities until He eluded investigation. would shoot him. police heard the he had because plained, version of appellant’s stressed repeatedly defense The remained thereafter 28 and the period of May the events of trial and to the time of his arrest day from consistent Commonwealth was, corroborated large part, he suspicion to divert attempted The defense also witnesses. It husband, Robert, stepfather. appellant’s deceased’s with Hazel upset continually Pulaski was shown Robert include on the house to to amend the deed for her refusal Pulaski Further, of Mr. cross-examination name. (Robert’s) doing in what he was inconsistencies several elicited disappearance. of his wife’s morning he was the where testified to witnesses both and defense routes of made, alleged tracing had runs” they “timed 28th. The conclusion of the morning Hill to have travelled could drawn that Durkin’s to Carol Millers and then Gap, Lambs or either A.M.-9:15 A.M. framework. with the 7:40 home, consistent stressed the Com- the jury properly court’s charge The specifically and mentioned burden of proof monwealth’s another consider: whether for the several factors death, whether the killing for the responsible be person may was found body than where in an area other occurred *8 and conso- effect of inconsistent 7., prior n. (see supra), evidence should construe statements, jury and how the nant flight. of motive and crimes, all of perjury the specific
We will now turn to I trial Count testimony. from appellant’s which emanated stated on cross-examination lied when he appellant charges killed not know who his mother and does he did not kill that kill his did mother, averring appellant that his the count on when he stated lied charges appellant II mother. Count and Duncan on to Christ he saw and waved direct that aver Millers the count Gap, leaving road after Gap Lambs charges III morning. that Count he never saw them ring time he that the last when he stated on direct lied appellant Millers sight saw his mother was when he lost her on car, back to the the count that the last averring doubled he struck her. V11 time he saw his mother was when Count lied when he stated on cross that one charges appellant he Nielson was the first to whom related the events person averring appellant of Millers count that had Gap,12 earlier told one Sue Ann Guise that he had struck his mother and left her the mountain. VI charges appellant Count lied when he detailed the route taken with his mother from mountain, Hill to the the count the two had averring manufacturing plant at a to ask about stopped employment. VII charges conspired Count defense appellant to commit the crimes of attorney foregoing perjury. below, a review of the we Following plenary proceedings are of the that the ultimate fact of I is opinion only Count again. barred from Whatever else the being litigated jury have decided its verdict of it is may acquittal, appellant clear that it determined did not murder necessarily his mother. To otherwise would distort the plain hold Hence, of the “not verdict. meaning jury’s guilty” appellant mother, he falsely denying cannot be tried for killed his resolved that in his favor. jury having clearly question VII, however, II deal with collateral through Counts which, important portions appellant’s testimony although consider, passed upon for the were jury necessarily believe, the verdict. The was not reaching jury required did see Christ and Duncan on example, appellant (Count II). the mountain A rational could find jury appel lant did not kill his mother and then saw no one at all on his route to Miss Durkin’s. Nor was the to find jury required never struck his mother or never told he anyone Thus, (Counts V). struck his mother III and could mother, out of hostility proven find struck his Further, trial, of not guilty but did not kill her. verdict require finding appellant pursued does not also preliminary hearing. IV was dismissed at the Count *9 at the Shore Youth 12. Nielson was an Outreach worker West Center.
31 (Count VI). testified The which he Millers course to to shake this attempts por- repeated made find a rational could jury testimony of appellant’s tion he took deciding without also of murder guilty not (Count conspiracy charge Finally, or that. this route jury.13 determined conclusively not VII) was record that, this voluminous upon based We it clear think submitted, a “ration- of factual issues number large and the other upon its verdict have grounded could al [issues] seeks to foreclose which the defendant than [those] of not Ashe, finding A supra. consideration.” with . . . not “inconsistent of murder is guilty faet[s] of the perjury for conviction” be established which must 110(2). counts. Sec. occasions, considered has, on two prior
Our Court
and,
following acquittal14
of perjury prosecutions
question
since “the
case,
permissible
acquit-
the charges
in
found
each
to rule
the truth or
upon
required
fact-finder was not
ting
in order to reach the
statement
challenged
of the
falsity
in other
Rose,
reversed
supra,
v.
verdict.” Commonwealth
in
(1970).
586
And
Common-
30, 261 A.2d
437 Pa.
grounds,
said,
(1974), we
552,
602
Mervin,
326 A.2d
230 Pa.S.
wealth v.
issues of fact
the ultimate
clear
manifestly
“[I]t
were
v. perjury]
proceedings
in the two
involved
[assault
of collat-
different,
applicability
thus precluding
entirely
appellant’s argument
sustain
To
eral
...
estoppel
estop-
concept
be to allow
. would
conspired
alleges appellant
lie about all the issues
VII
13. Count
proven
sought
to be
through
hold the fact
I
VI. Since we
Counts
foreclosed,
conspiracy
appellant may
not be tried
I is now
Count
I.
as to Count
problem and have
jurisdictions
likewise confronted
have
Other
turns on
analysis
Because each case
to ours.
undertaken an
similar
go
ways.
proceeding,
both
the results
of the former
an examination
58,
595,
(1950)
See,
Williams,
L.Ed. 747
71 S.Ct.
95
v.
341 U.S.
U. S.
(2nd
Gugliaro,
barred);
prosecution
As this case
collateral
because of
to a
only
protection
its “inherent
limitations” affords
limited
I,
prosecution.
Campana
defendant
successive
See
246-7,
Pa. at
Affirmed in
part
HOFFMAN, J.,
dissenting opinion.
files a
perjury prosecution
jeopardy
15. “Double
does not bar the
since the
testimony
offenses are different and honest
under oath must be
defending
upon
persons
even in the case of
themselves
insisted
against charges
[estoppel v.
of crime ...
In such a situation
prefer
preserve
against
perjury],
perjury,
opportunity
may legitimately
one
the sanction
evil,
by
always
rather than be moved
the mere
which is
abuse,
prosecutors
reject.
for
ever,
which conscientious
would
[R]arely,
general
guilty ‘necessarily
of
if
does a
verdict
not
any particular
by
require a determination’ on
fact asserted
Comments,
Code,
(1956),
Model Penal
Tent. Draft No. 6
defendant”.
p.
acquittal
reject
means
122-3. We also
the notion that a verdict
testimony
and that of his
the
witnesses. “The
believed all of a defendant’s
theory
jury acquits
that when a
a defendant
thereby
testimony
proceeding,
criminal
finds to be true the
of all
by
upon
supported
reason or the
witnesses called
his behalf
Houseman, supra,
knowledge
People
common
of mankind.”
619, 623,
947,
(1941),
Cal.App.2d
660,
112 P.2d
cert. den. 314 U.S.
(1941).
62 S.Ct.
However, distinguished has not majority opinion —in estoppel lumped together statutory fact has —state re- 110) and the Fifth Amendment constitutional (Section *11 in estoppel jeopar- of collateral found the double quirements clause, Swenson, 443, 1189, v. 397 90 25 Ashe U.S. S.Ct. dy (1970). L.Ed.2d While our statute a collateral permits 469 defense when the seeks to re-liti- estoppel only prosecution trial, in prior facts decided a defendant’s gate “necessarily” decisions have made clear that the rule of federal “[t]he in cases is not to be estoppel applied criminal the and archaic of a 19th approach century hypertechnical book, pleading rationality. but with realism and . The must be set in a frame and viewed inquiry practical of proceedings.” with an to all the circumstances the eye Swenson, 444, Indeed, Ashe v. at 90 at 1194. supra S.Ct. that constitutional collateral estop- federal decisions indicate pel is not limited to ultimate issues of fact necessarily trial, decided at a but also extends to facts prior evidentiary which are when the evidence litigated, presented both trials will be the same. Government substantially “[T]he
. relitigate not in a second trial an issue of may either ultimate fact or fact which the evidentiary upon defendant was in an earlier trial.” v. acquitted U. S. 1265, 418 1268 F.Supp. (M.D.Fla.1966). See also Gurney, 209, (5th 213 Wingate 1972) v. 464 F.2d Cir. Wainwright, offense after (government charge acquittal second may against first which would force a defense the same are though they only evidentiary). factual even allegations, Drevetzski, 403, As F.Supp. the Court U. S. v. 409 (N.D.Ill.1972)said in after the barring perjury prosecution ‘if previous defendant’s in his trial: “While at first acquittal be a may lofty worthy don’t try, try again’ succeed you no area place it has in the public for the ideal success where first at has prosecution attempt criminal that where adjudicated the issues and fully completely rehashes old evidence.” Un- prosecution merely second for this Fifth Amendment doubtedly protection the reason else that constitutional guarantee may whatever “[f]or embrace, a man who has been surely protects ... gantlet’ to ‘run the having a second time.” acquitted at Swenson, The federal supra Ashe S.Ct. been of the cognizant danger courts have therefore potential subsequent prosecutions abusive and perjury allowing prosecutors a second shot at taking acquitted vindictive S., the same v. U. defendants with evidence. See Adams also, Toll, (5th 1961). Pennsylvania F.2d Cir. See Code Annotated 537. Crimes indicates, As the recitation of facts majority’s had showed that a motive and an trial to commit murder. at the “in opportunity Looking to all frame,” and “with an the circumstanc- practical eye es,” likely I would most say acquitted his testimony because believed and found alibi they *12 case, the would being That I the permit credible. prove appellant’s a second chance to that Commonwealth in its any was false of details. All testimony evidentiary can do is all the that their case-in-chief re-hash old possibly the in surrounding appellant’s evidence details of alibi hope now him or part that a will disbelieve in whole jury second However, when the first found him credible. this jury and federal cited that Ashe the other cases here precisely forbid, on grounds. constitutional
Moreover, the review of the averments in Common- information, evidence compared pro- wealth’s when the trial, that duced at the murder indicates the Commonwealth case, major- even though has an weak extremely perjury allows to be tried. ity instance, II that lied when he charges appellant
For Count he Gap he saw friends on when was said two Lambs Road The question. Hill on the Com- day returning was not on the appellant not contend that monwealth does were not on the road at the road, that the two friends or called fact, the Commonwealth these two (In time. same and their proved presence murder trial individuals at the the Commonwealth intends road). somehow Apparently two friends were on the road and that while the prove them, to see he did not in fact had an opportunity appellant averments on these Bringing perjury charge see them! can be described as childish. lied when said appellant III avers that the he that
Count last his mother was when he deserted her at time he saw the last time he saw her was Gap, actually Millers because acquitted appellant when he struck her. jury Since murder, prove the Commonwealth will thus have to that delivered some non-lethal blow to his mother on appellant at a other than Millers and day question place deserted her. We can mental gymnastics conjure up then but how can the this possibility, possibly this averment? there were no prove eyewitnesses, Since no chance unless the himself appellant Commonwealth has his himself. changes testimony inculpates Count IV lied he charges appellant when stated that he didn’t think he had told of his mother’s where- anybody time, abouts to a in fact up certain when he earlier told one Sue Ann that he had struck his mother left Guise her on all, the mountain. First of was uncertain this point his the Commonwealth will testimony. Secondly, have to a conversation in which prove appellant confesses to a crime which the murder said he did not commit. since it is not overheard this Lastly, alleged anyone Guise, alleged admission to Ms. the two witness rule appears to be a difficult obstacle to the Commonwealth in proving averment, this induce they change unless *13 himself. testimony inculpate VI lied charges appellant
Count when he recounted his route taken to Miller because he omitted Gap, making In stop Manufacturing at the Valk the murder Company. testified, and the Commonwealth trial, witnesses three Hill to round from trip that a stipulated, therefore half, took a full hour and Gap or Lambs Millers either and his departure appellant’s time between elapsed For the Com- Durkin’s house. seen at Carol return when excursion five to ten additional prove monwealth they allegedly where place to a way, minutes out of minutes, an unbearable strain puts to fifteen ten stayed question. of the events in framework time stipulated of the Commonwealth’s weakness of the extreme Because the information here whether it is case, questionable I think view that the Fifth my It is faith.1 brought good Swenson, supra, pro- Ashe v. Amendment, construed as of hardship endure the having tects the a second time. charges criminal defending the informa- below and dismiss reverse the order I would tion. A.2d 1044 Pennsylvania
COMMONWEALTH COLLINI, Appellant. Joseph Superior Pennsylvania. Court
Argued Sept. 1978.
Decided Feb. trial, Quigley, Keith B. judge appellant’s the Hon. murder 1. The charge appellant Attorney’s learning intent District of the Attorney to the perjury, requested his case the D.A. to submit Deputy assigned impartial review. The case for an General Seigel, evidence and Attorney who reviewed Bernard L. General prosecuted. be should not concluded that