Commonwealth v. VogelCommonwealth v. Vogel
- Reporters:
- , ,
- Before:
- Nix
OPINION
NIX, Justice.
This is a cross appeal from an order entered in a post conviction proceeding pursuant to the Post Conviction Hearing Act, Act of January 25, 1966, P.L. (1965) 1580,
as
At the outset it must be emphasized that it has never been questioned that Mr. Vogel caused the death of two individuals in the course of a robbery of the store where they were employed. The fruits of that robbery — cash, money bags and green stamps — were secreted in the trunk of his car when he and his family left this country and travelled to Canada shortly after the crime. The crux of the controversy has been whether the record has established his legal culpability for the consequences of this conduct. It is appropriate for us first to consider the asserted double jeopardy violation, for if it is established Mr. Vogel may not be retried and is entitled to an immediate discharge. Commonwealth v. Meadows, 471 Pa. 201, 369 A.2d 1266 (1977); see generally Illinois v. Vitale, 447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980); Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977); United States v. Wilson, 420 U.S. 332, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975); North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969).
I. MR. VOGEL’S APPEAL
[1] It is argued on Mr. Vogel’s behalf that the convictions in the first and second trials were set aside because of the failure of the prosecution to present sufficient evidence to
The Double Jeopardy Clause forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding. This is central to the objective of the prohibition against successive trials. The Clause does not allow “the State ... to make repeated attempts to convict an individual for an alleged offense,” since “[t]he constitutional prohibition against ‘double jeopardy’ was designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense.” [Footnote omitted; citations omitted.]Burks v. U.S., supra, 437 U.S. at 11, 98 S.Ct. at 2147, 57 L.Ed.2d at 9-10 (1978).
Despite this well-recognized constitutional policy against successive trials for the same offense, the United States Supreme Court candidly admitted that its prior decisions as to whether an appellate court after a finding of insufficiency in the proof was required to bar retrial could not “be characterized as models of consistency and clarity.” Burks v. U.S., supra at 9, 98 S.Ct. at 2146, 57 L.Ed.2d at 8. See, e.g., Forman v. United States, 361 U.S. 416, 80 S.Ct. 481, 4 L.Ed.2d 412 (1960); Yates v. United States, 354 U.S. 298, 77 S.Ct. 1064,1 L.Ed.2d 1356 (1957); Sapir v. United States, 348 U.S. 373, 75 S.Ct. 422, 99 L.Ed. 426 (1955); Bryan v. United States, 338 U.S. 552, 70 S.Ct. 317, 94 L.Ed. 335 (1950). The Burks Court, after recognizing a need to reassess its earlier decisions in this area concluded that double jeopardy precludes a retrial once an appellate court has found the evidence legally insufficient. 4 See also Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978).
The Burks Court was careful to limit its holding to instances where the state had failed to sustain its burden of proof and reaffirmed the validity of U.S. v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896) where the reversal is based upon trial error. Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978). It is also clear that the holding in Burks is only applicable where the state has had a “fair opportunity to offer whatever proof it could assemble.” Hudson v. Louisiana, 450 U.S. 40, 43, 101 S.Ct. 970, 972, 67 L.Ed.2d 30, 33 (1981) quoting Burks v. U.S., supra 437 U.S. at 16, 98 S.Ct. at 2150, 57 L.Ed.2d at 12. 5
Mr. Vogel was convicted in his first trial of two counts of murder in the second degree and of armed robbery. On appeal to this Court the judgments of sentence were reversed and a new trial awarded. Commonwealth v. Vogel [Vogel I] 440 Pa. 1, 268 A.2d 89 (1970). The order in that appeal was supported by five members of the Court; two members dissented and would have affirmed the judgments of sentence. See Commonwealth Vogel, supra, 440 Pa. at 21, 268 A.2d at 96 (Bell, C.J., dissenting, joined by Eagen, J.). Of the members joining the order of reversal, only one member, Mr. Justice, now Chief Justice, Roberts premised his conclusion upon a finding of evidentiary insufficiency. See Commonwealth v. Vogel, supra, 440 Pa. at 14, 268 A.2d at 90 (Roberts, J., concurring in Order Per Curiam).
As indicated by the facts in the instant case, legal insanity in this Commonwealth may or may not bear on the question of intent. The prosecution presented ample evidence that Vogel planned his crime, from which evidence intention might be inferred, but no evidence that Vogel could appreciate the character of his actions. An individual may intentionally kill someone, with malice aforethought, but be incapable of distinguishing right from wrong in so doing. Under such circumstances, the elements of murder would be met (Commonwealth v. Kirkland, 413 Pa. 48, 195 A.2d 338 (1963)), but the individual’s legal insanity would properly necessitate a verdict of not guilty by reason of insanity. This is the type of situation which is demonstrated on the face of the instant record.
Commonwealth v. Vogel, supra, 440 Pa. at 10-11, 268 A.2d at 94.
The distinction between a determination of an evidentiary insufficiency in proving an element of the crime and a decision as to the appropriate allocation of the burdens of persuasion and proof to flow from an evidentiary presumption was further reflected in the following observations of Mr. Justice Jones:
I cannot accept the premise that sanity is necessarily an element of every crime. To the contrary, I view insanity as being the basis upon which society offers treatmentrather than punishment to one who has committed a crime. [Citation omitted.] Although every element of a crime can be established beyond a reasonable doubt, including the element of intent to do the act, insanity may still be asserted as a defense in Pennsylvania. Commonwealth v. Vogel, supra, 440 Pa. at 11, 268 A.2d at 94 (emphasis in original).
The. opinion of Mr. Justice Pomeroy also clearly indicates that his joinder in the order of reversal was as a result of his concern for the proper effect to be given to the “presumption of sanity.” Commonwealth v. Vogel, supra, 440 Pa. at 17, 268 A.2d at 102 (Pomeroy, J., concurring in Order Per Curiam).
To summarize, I believe that the presumption of sanity relieves the Commonwealth of the necessity of establishing the defendant’s sanity, unless and until the defendant introduces evidence sufficient to create a reasonable doubt as to the existence of sanity. Such evidence having been here presented, the burden of persuasion that the defendant was sane was in my view properly with the Commonwealth. ’
Id., 440 Pa. at 21, 268 A.2d at 104.
Thus we must reject Mr. Vogel’s contention that the reversal in
Vogel I
was a judicial determination due to a failure of proof at trial where the State had received a fair opportunity to offer whatever proof it could assemble. At least three of the members of the Court joining in the order of reversal did so on the basis of a change in the law as to the effect to be given to the presumption of sanity.
6
Two of the members supporting the order of reversal expressly found that the Commonwealth had presented sufficient evidence to establish a malicious killing and armed robbery.
7
Only one member of the Court in
Vogel I
articulated a view
The decision of this Court in Commonwealth v. Vogel, (Vogel II), 458 Pa. 200, 321 A.2d 633 (1974), also fails to support the position urged. At the second trial appellant was again convicted of all of the charges by a jury. As noted in our per curiam opinion in Vogel II following the second trial, the trial court granted a motion for a new trial on the ground that the verdicts were against the weight of the evidence. The distinction between a determination of the weight of the evidence, which allows the trial court to make an independent assessment of the credibility of the prosecution’s case, see, e.g., Commonwealth v. Pronkoskie, 498 Pa. 245, 445 A.2d 1203 (1982); Commonwealth v. Hinchcliffe, 479 Pa. 551, 388 A.2d 1068, cert, denied, 439 U.S. 989, 99 S.Ct. 588, 58 L.Ed.2d 663 (1978); Commonwealth v. Jackson, 457 Pa. 237, 324 A.2d 350 (1974); Commonwealth v. Zapata, 447 Pa. 322, 290 A.2d 114 (1972), and a sufficiency determination, which confines the reviewing tribunal to accepting the evidence produced by the prosecution in the most favorable light, see, e.g., Commonwealth v. Scudder, 490 Pa. 415, 416 A.2d 1003 (1980); Commonwealth v. Smith, 490 Pa. 329, 416 A.2d 494 (1980); Commonwealth v. Skarica, 489 Pa. 636, 414 A.2d 1390 (1980); Commonwealth v. Joyner, 489 Pa. 502, 414 A.2d 1003 (1980), is well established. The precise nature of that distinction was cogently stated in United States v. Lincoln, 630 F.2d 1313 (8th Cir.1980):
The court reviewing the sufficiency of the evidence, whether it be the trial or appellate court, must apply familiar principles. It is required to view the evidence in the light most favorable to the verdict, giving the prosecution the benefit of all inferences reasonably to be drawn in its favor from the evidence. The verdict may be based in whole or in part on circumstantial evidence. The evidence need not exclude every reasonable hypothesis except that of guilt. .. .
When a motion for new trial is made on the ground that the verdict is contrary to the weight of the evidence, the issues are far different.... The district court need not view the evidence in the light most favorable to the verdict; it may weigh the evidence and in so doing evaluate for itself the credibility of the witnesses. If the court concludes that, despite the abstract sufficiency of the evidence to sustain the verdict, the evidence preponderates sufficiently heavily against the verdict that a serious miscarriage of justice may have occurred, it may set aside the verdict, grant a new trial, and submit the issues for determination by another jury.
Id. at 1316, 1319, quoted in Tibbs v. Florida, supra, 457 U.S. at 39, 102 S.Ct. at 2217, 72 L.Ed.2d at 659 (1982).
We have long recognized that an adverse ruling to the prosecution on the question of the weight of the evidence is remedied by the award of a new trial. See Commonwealth v. Davis, 477 Pa. 197, 383 A.2d 891 (1978); Commonwealth v. Meadows, 471 Pa. 201, 369 A.2d 1266 (1977); Commonwealth v. Bowermaster, 297 Pa.Super. 444, 444 A.2d 115 (1982). In contrast, where there is an insufficiency of evidence determination, the only remedy is the discharge of the defendant for the crime or crimes charged. See Commonwealth v. Flowers, 479 Pa. 153, 387 A.2d 1268 (1978); Commonwealth v. Todd, 477 Pa. 529, 384 A.2d 1215 (1978); Commonwealth v. Eberle, 474 Pa. 548, 379 A.2d 90 (1977); Commonwealth v. Chenet, 473 Pa. 181, 373 A.2d 1107 (1977).
In Tibbs v. Florida, supra, the United States Supreme Court made it clear that a precise understanding of the distinction between the weight and the sufficiency of evidence is crucial in determining whether ■ double jeopardy considerations bar retrial:
Burks v. United States and Greene v. Massey carved a narrow exception from the understanding-that a defendant who. successfully appeals a conviction is subject to retrial. In those cases, we held that the Double Jeopardy Clause precludes retrial “once the reviewing court has found the evidence legally insufficient” to support conviction. Burks, supra, [437 U.S.] at 18 [98 S.Ct. at 2150]; Greene, supra, [437 U.S.] at 24 [98 S.Ct. at 2154], This standard, we explained, “means that the government’s ease was so lacking that it should not have even been submitted to the jury.” Burks, supra, [437 U.S.] at 16 [98 S.Ct. at 2149] (emphasis original). A conviction will survive review, we suggested, whenever “the evidence and inferences therefrom most favorable to the prosecution would warrant the jury’s finding the defendant guilty beyond a reasonable doubt.” Ibid. See also Greene, supra, [437 U.S.] at 25 [98 S.Ct. at 2154]. In sum, we noted that the rule barring retrial would be “confined to cases where the prosecution’s failure is clear.” Burks, supra, [437 U.S.] at 17 [98 S.Ct. at 2150].
So defined, the exception recognized in Burks and Greene rests upon two closely related policies. First, the Double Jeopardy Clause attaches special weight to judgments of acquittal. A verdict of not guilty, whether rendered by the jury or directed by the trial judge, absolutely shields the defendant from retrial. A reversal based on the insufficiency of the evidence has the same effect because it means that no rational factfinder could have voted to convict the defendant.
Second, Burks and Greene implement the principle that “[t]he Double Jeopardy Clause forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding.” Burks, supra, at 11 [98 S.Ct. at 2147]. This prohibition, lying at the core of the Clause’s protections, 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 governmental perseverance. See Green v. United States, 355 U.S. 184, 187-188 [78 S.Ct. 221, 223, 2 L.Ed.2d 199] (1957); United States v. DiFrancesco, supra, [449 U.S.] at 130 [101 S.Ct. at 433]. For this reason, when a reversal rests upon the ground that the prosecution hasfailed to produce sufficient evidence to prove its case, the Double Jeopardy Clause bars the prosecutor from making a second attempt at conviction.
As we suggested just last Term, these policies do not have the same force when a judge disagrees with a jury’s resolution of conflicting evidence and concludes that a guilty verdict is against the weight of the evidence. See Hudson v. Louisiana, 450 U.S. 40, 44-45 n. 5 [101 S.Ct. 970, 973 n. 5, 67 L.Ed.2d 30] (1981). A reversal on this ground, unlike a reversal based on insufficient evidence, does not mean that acquittal was the only proper verdict. Instead, the appellate court sits as a “thirteenth juror” and disagrees with the jury’s resolution of the conflicting‘testimony. This difference of opinion no more signifies acquittal than does a disagreement among the jurors themselves. A deadlocked jury, we consistently have recognized, does not result in an acquittal barring retrial under the Double Jeopardy Clause. Similarly, an appellate court’s disagreement with the jurors’ weighing of the evidence does not require the special deference accorded verdicts of acquittal.
A reversal based on the weight of the evidence, moreover, can occur only after the State both has presented sufficient evidence to support conviction and has persuaded the jury to convict. The reversal simply affords the defendant a second opportunity to seek a favorable judgment.
Tibbs v. Florida, supra 457 U.S. at 39-43, 102 S.Ct. at 2217-19, 72 L.Ed.2d at 660-662 (footnotes omitted).
In
Vogel II,
in addition to affirming the court’s exercise of its discretion in “second guessing” the jury’s evaluation of the weight of the evidence, we also justified the award of the new trial because of an intervening change in our view as to the allocation of the burden of proof where a defense is raised by the defendant.
See Commonwealth
v.
Demmitt,
456 Pa. 475, 321 A.2d 627 (1974) (defense of insanity);
Commonwealth v. Rose,
457 Pa. 380, 321 A.2d 880 (1974) (defense of intoxication). However, in both
Vogel I
American jurisprudence has been immeasurably enriched by its constant effort to refine its process to insure its fairness. This salutary objective would be severely impeded if we were to gratuitously engraft upon it the bar of retrial which would preclude a readjudication of guilt or innocence under the refinement developed. Commonwealth v. Hogan, 482 Pa. 333, 393 A.2d 1133 (1978).
It would be a high price indeed for society to pay were every accused granted immunity from punishment because of any defect sufficient to constitute reversible error in the proceedings leading to conviction.
U.S. v. Tateo, 377 U.S. 463, 466, 84 S.Ct. 1587, 1589, 12 L.Ed.2d 448 (1964).
Where double jeopardy concerns, such as an unjust second bite of the apple, are not present we serve no legitimate purpose by attempting to expand the bar of retrial under a misguided sense of “fairness.”
The third trial was properly allowed and also resulted in a verdict of guilt.
Commonwealth v. Vogel, (Vogel III),
468 Pa. 438, 364 A.2d 274 (1976). With our affirmance after a direct appeal, the judgments of sentence became final.
See Commonwealth v. Ellsworth,
421 Pa. 169, 218 A.2d 249 (1966);
Commonwealth v. Negri,
419 Pa. 117, 213 A.2d 670 (1965);
Commonwealth ex rel. Wilson v. Rundle,
412 Pa. 109,
II. THE COMMONWEALTH’S APPEAL
It is appropriate at this point in our analysis to turn to the P.C.H.A. court’s ruling that yet a fourth trial must be given. The proffered basis for this decision was prior defense counsel’s failure to vigorously pursue the motion for change of venue. This collateral attack upon a final judgment of sentence, which has undergone the intense scrutiny uniquely demonstrated in the procedural history of this case, is based upon the unsupported assumption that there was justification for the change of venue request.
The collateral attack focused upon the failure of counsel to seek a hearing to establish a record in support of the motion. What has been ignored is that in the post conviction proceedings Mr. Vogel has not provided a record to indicate the evidence that might have been garnered in support of such a position but for the asserted ineffectiveness of counsel.
Much emphasis has been placed upon the size of Clinton County and the prior history of the case. However, it must be remembered that the incident occurred in 1962 and the third trial took place in 1974.
Cf. Commonwealth v. Hoss,
445 Pa. 98, 283 A.2d 58 (1971);
Commonwealth v.
Finally, even if we accept as inadequate counsel’s reasons for failing to pursue the motion for change of venue with more vigor, that fact alone would not justify a disturbance of a final judgment absent a further showing that the asserted dereliction deprived Mr. Vogel of a fair trial. See Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977); Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975); Commonwealth v. Hoss, supra. This was certainly not a situation that would justify a presumption of prejudice. Cf. Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966); Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965); Commonwealth v. Pierce, 451 Pa. 190, 303 A.2d 209, cert, denied, 414 U.S. 878, 94 S.Ct. 164, 38 L.Ed.2d 124 (1973).
Accordingly, the Order of the post conviction hearing court denying relief on double jeopardy grounds is affirmed;
Notes
. This Court has jurisdiction pursuant to the Act of July 31, 1970, P.L. 673, No. 223, art. II, § 202(1),
. The instant double jeopardy claim was raised for the first time in Mr. Vogel’s P.C.H.A. petition. Mr. Vogel argues that the attorney who represented him at his second and third trials was ineffective in failing to raise a double jeopardy issue at either trial. It is well established that counsel will not be deemed ineffective for failing to preserve a meritless claim. Commonwealth v. Penn, 497 Pa. 232, 439 A.2d 1154, cert, denied, 456 U.S. 980, 102 S.Ct. 2251, 72 L.Ed.2d 857 (1982); Commonwealth v. Ciotti, 496 Pa. 232, 436 A.2d 983 (1981); Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977). Since we conclude that the double jeopardy claim is without merit, this ineffective assistance contention cannot be sustained. Additionally, in view of our conclusion that Mr. Vogel is not entitled to a fourth trial, we need not address the question of whether that trial would violate the Double Jeopardy Clause.
. Since Mr. Vogel has limited his double jeopardy complaint to an asserted violation of the Federal Constitution, we will not consider the prohibition against double jeopardy as prescribed under the Constitution of this Commonwealth. See generally Commonwealth v. Hogan, 482 Pa. 333, 393 A.2d 1133 (1978).
. The Commonwealth raises the difficult question as to whether the Burks decision must apply to retrials granted and tried prior to that decision. In view of our disposition we need not attempt to anticipate the U.S. Supreme Court on the question of the retroactive application to be given to their Burks holding. But see, Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981).
. The Court in Hudson concluded that where state law permits the trial judge to second guess the jury on the question of guilt, i.e., to serve as the 13th juror, double jeopardy would not preclude retrial. Hudson v. Louisiana, supra 450 U.S. at 44 n. 5, 101 S.Ct. at 973 n. 5, 67 L.Ed.2d at 34 n. 5.
. Mr. Justice Cohen joined in the order without stating his reasons.
. It is also to be remembered the two dissenting members would have affirmed the convictions. Thus a majority of the Court in Vogel I concluded that the Commonwealth did in fact prove all of the essential elements of the crimes charged.