Commonwealth v. Wallace
602 A.2d 345
Pa. Super. Ct.
1992
Check Treatment

*1 Pennsylvania COMMONWEALTH of WALLACE, Appellant. Richard Superior Pennsylvania. Court of

Argued Nov. 1991. Filed Jan. *2 Brown, H. Upper Darby, appellant. Howard for Chester, J. Dist. Wagner, Atty., Thomas Asst. West Com., appellee. McEWEN, BROSKY,

Before POPOVICH JJ. BROSKY, Judge. an appeal

This is order denying appellant’s pretrial charges. motion to dismiss all Appellant raises two one, disposition, issues for whether appellant waived the defense of collateral estoppel requesting severance of others, two, one count from several whether collateral prosecution on the precludes after acquitted he was of all trial. preceding We *3 reverse. 30, 1990, on

Appellant April was arrested and charged variety including attempted homicide, with a of offenses charges assault and All charges firearm offenses. arose single episode out of a April which occurred on there were Although competing episode versions of that was alleged appellant driving was a a rapid vehicle fashion approached complainant’s and vehicle. Com- plainant right moved his vehicle into the hand lane at which time while appellant sped by making gestures. him obscene then Appellant slowed his which allegedly vehicle enabled the complainant up pass to catch and As appellant. com- plainant passed appellant, appellant had allegedly words with and complainant’s nephew son who also in the were Appellant vehicle. allegedly then drove in front of com- plainant off, cut him forcing stop and him to his vehicle. got Complainant out of the vehicle and what was the asked problem at which time appellant allegedly brandished a chrome revolver and fired one shot at complainant. Appel- got lant then back into his vehicle off at sped and which time complainant get followed until he appel- was able from garnered appel- A statement license number. lant’s complainant’s. Appellant of quite contrary that lant was road when the driving he was down the indicated that him made an of and obscene cut front complainant appellant stopped also. and stopped The van gesture. his got into exchanged appellant were after which Words appellant some time. and left. The van followed car gun. a denied even Appellant many years had conviction appellant previous Because a carrying for both charged he with firearm offenses ago was and one a former preventing firearm without license defense counsel owning a firearm. Because convict had appellant previ- that not wish a know did been neces- convicted, which disclosure would have ously offense, counsel prove weapons requested the one sary This separately. be severed to trial on the appellant went granted trial on other charges. After other charges. acquitted Subsequently, of all appellant remaining charge notified that the appellant filing omnibus Appellant responded by be tried. would estoppel. motion for dismissal based pretrial on the acquittal previ- contention was that Appellant’s remaining charge trial on the which precluded ous same incident. trial court denied and arose indicating a belief that the defense dismissed the motion grant- had been waived virtue This followed. ing request. appeal severance granting mere agree We with *4 protec cannot work to waive the request his for severance conclusion, the arriving In at its estoppel. tion of collateral involving chal trial court examined cases double had, claim in ef which were defeated because the lenges fect, own actions produced by the defendant’s However, it to us a is clear requesting severance. reading. an For given

trial court has these cases overbroad instance, points language the trial court to Common 134, (1975), Green, 232 Pa.Super. wealth v. waiver, a regarding virtue of for severance of a charges, statutory right charges to have tried single proceeding support conclusion that his has waived claim of collateral There we estoppel. stated:

It is that a defendant apparent who is aware of the him charges against can thus waive statutory right his all brought have them in a If prosecution. he requests himself trials and separate obtains court order effect, to that or if he knowingly acquiesces what appears advantageous to be separation, he cannot later an objection claiming raise protection from statutory multiple trials.

Id., Pa.Superior 142-143, Ct. at at A.2d 497. The States, trial court then cites to v. United 432 U.S. Jeffers 2207, (1977) 97 S.Ct. 53 L.Ed.2d 168 to indicate that the applies same rule to the constitutional protections. In Jeffers, petitioner one of several defendants who jointly opposed governments motion to charges try together two in one trial. The motion was government denied. attempted try When the peti- tioner on second charge objected he on double jeopardy grounds. Petitioner’s motion dismiss denied and he convicted, was tried and appealed. which conviction he In affirming the conviction United Supreme States “although stated: defendant entitled to normally have greater on a and a lesser resolved in offense there is no violation of the Double Jeopardy Clause he when elects to have the two offenses separately persuades the trial court to honor his elec- tion.” 432 U.S. at 97 S.Ct. 2217. The trial court also cites to other cases from various jurisdictions making holding same and expressing general the same com- ments.

The above cases clearly proposition stand for demand, or, an accused cannot acquiesce in, perhaps, separation complain, then when on prosecution imminent, that precluded him trying on charge because *5 togeth- him tried against have all right accused’s and are proposition with this agreement full er. We are of the law. is accurate statement that an convinced however, here, request- asserting Appellant, cannot now severance, remaining charge the ed the required try because the Commonwealth prosecuted a claim of a double together. This would be clearly by has forfeited the jeopardy violation that the jury’s His assertion is severance. remaining the trial on precludes in the first case verdict represents a factual verdict of the charge because the remaining charge. of the viability finding that defeats just happens claim that altogether different This the double encompassed jeopardy found within have been by afforded Although protections one of protections. clause, entirely it is also an different than the one above. proposition relitigation estoppel prevents of collateral

The doctrine issue has been of an issue where parties between The by legal forum. doc- competent decided previously as to civil prosecutions to criminal as well applicable trine Indeed, the doctrine of collateral matters. loosely somewhat protection a constitutional

deemed to be the federal embodied Swenson, 436, 90 In Ashe v. 397 U.S. S.Ct. constitution. (1970), Supreme 1189, 25 L.Ed.2d 469 the United States poker of six involving robbery considered a case charged of four men with petitioner The was one players. on count of brought and was trial the robberies However, prosecution’s robbery of of the men. four not clear as to whether there were witnesses were posi- only three, and none the victims could robbers or identify petitioner perpetrators. as one tively undaunted, but, the State acquitted petitioner to trial for of one brought petitioner robbery time, however, This case was players. other State’s identify who could not decidedly stronger. Witnesses first time were to do so the second petitioner the able Further, trial. a prosecution witness whose identification negative had been the first testimony time was not called in *6 the second trial. This the petitioner time was convicted and sentenced a 35 year imprisonment. term of The petition- claiming er appealed a violation jeopardy. of double Even- the case was tually argued before the United States Su- preme discussing In Court. the doctrine of estop- pel protection anas incidental jeopardy clause, the said: question is not whether Missouri could validly charge petitioner with six offenses for the robbery separate poker

of the six It players. whether he could have received a total of six if punishments he had been convict- ed in a trial of six robbing the victims. It is simply whether, after a determined by its verdict that the petitioner robbers, was not one of the the State could constitutionally hale him before new litigate that again. issue 446,

397 atU.S. 90 S.Ct. at 1195. The Court concluded that the second trial was a violation a collateral estoppel aspect of the double clause. Essential to the decision found, was fact that the jury had by effect verdict, its petitioner (Or not one of the robbers. at least State had not proven him to beyond be doubt.) If case, reasonable petitioner then the could not be convicted of robbery of one of the other victims disregarding without the factual finding made the first prosecution.

Acknowledging that the double jeopardy clause would not allow State a second trial for the robbery of the same victim hopes that different jury might find the evidence more convincing, the Court found trial for robbery one of the other victims constitutionally no different. “For victim, name of the case, in the circumstances of this had no bearing upon whatever issue whether the petitioner Id., 446, was one of the robbers.” 397 at U.S. S.Ct. above, but

As stated There clause. by afforded protection separate and many of that clause many aspects are being the prominent most two protections, different protection and the multiple punishment against protection which was protection It the latter trials. against multiple and the cited the Commonwealth in the cases at issue Generally particular this speaking, trial court. in single prosecute, government require

will often wish the defendant charges they factual scenario. a common particular upon based Corbin, 110 S.Ct. (See, Grady v. 495 U.S. explanation for of what constitutes (1990) L.Ed.2d 548 effect, In purposes.) multiple prosecution same offense standing prevent the defendant *7 will protection this conduct, criminal the same trial, charges for based however, If, defendant himself time. more than one trial of opposes or separately, demands the be claim that he cannot turn around and together, the charges togeth failure to them try trial is barred for second er. sup- to

However, authority has no advanced there been aspect or of one proposition a that waiver port will act to waive the other clause jeopardy the double clause, are uncon- and we embodied within protections sup- logical exists sound reason any vinced that there instance, For proposition. of that port to a retrial encompass a bar clause also has been found supported by necessity. is not manifest after a mistrial that Wilson, 1013, L.Ed.2d 232 v. 95 S.Ct. U.S. U.S. 504, 447 A.2d 612 Murry, (1975), 498 Pa. a defen- (1982). argue that when Would the Commonwealth severance, jeopar- a “waiving” thus dant a requests if it did not like claim, free to cause mistrial dy it would be be from a double going and free way trial was two.protections, not. The hope We jeopardy challenge? scope of double although encompassed within the broad no and there is are different protections, quite S84

reason conclude that request for severance would act protections. Thus, although to waive the mistrial appellant certainly right complain waived his the severed trial, in charge should have been tried the first there is no reason to protections, conclude that the other included, estoppel were waived. likewise charge regarding former convicts not to own weap- ons was severed from other in an effort prevent jury being prejudiced by knowledge that had, time, appellant convicted a crime. However, if we can conclude from the jury’s verdict that it appellant would have found guilty of the charge severed it been had submitted with the others had remained unprejudiced, would seem to be a injus- severe tice to allow the Commonwealth another chance to convict in simply a second trial because that order to insure an unprejudiced This is the jury. Swenson, Ashe v. major premise gleaned that can supra, that the defendant is entitled to the favorable finding having run the gauntlet previous the real faced possibility punish- criminal ment. not, fact,

We next must determine whether or the doctrine of precludes prosecution charge.1 the severed Fortunately, this task made rather easy by the Commonwealth’s own assertion. In argument on this issue, precise following took exchange place: *8 Wagner: (For

Mr. Commonwealth) the I agree Mr. with Brown that under the in “Ash versus principles as stated Swenson," (sic) that appear it would that this deter- mined that the defendant did not gun have a or they To applies general determine if collateral from a verdict of acquittal, prior proceed court must examine the record from the evidence, ing, taking pleadings, into account and other matter, relevant and conclude whether rational could have grounded its verdict an issue other than one the defendant is seeking to inquiry foreclose from consideration. The must be set in a practical eye frame and viewed with toward all of the circum Swenson, Schomaker, supra. stances. Ashe Commonwealth v. (1983). Pa. that he had reasonable doubt beyond convinced weren’t gun. at he did no trial that real contention there was

Because gun. carry Now— have a license not have a fact, that he didn’t In Mr. Brown said The Court: gun. carry license Wagner: Exactly.

Mr. trial, during but up He stood only The Court: a li- he didn’t have said, agree “We closing argument, cense.” The percent. I And with that Wagner: agree

Mr. this____does a trial double bar jeopardy question then count or original of a count request trial the defendant? original from the this, no, if question the prosecutor’s The answer to charges were re- lodged is that all claim the so-called quired clearly this prosecution protection, multiple trials; but, if yes, separate forfeited In is meritorious. applicable protections of the other has been raised estoppel protection the collateral this case Thus, the con- meritorious. is, from all appearances, is offensive to templated prosecution Supreme interpreted by clause as United States place. and cannot take is re- reasons, the order appealed

For the above granted. have motion to dismiss should versed. Order reversed.

McEWEN, concurring statement. J. files POPOVICH, J. concurs the result.

McEWEN, concurring. Judge, colleagues respect insight my I such for the Since have I I join hasten to declare compose majority, who of the trial ruling reverses the them in the order which *9 586 convinced, however, I

court. am not that we need here extended an proceed so illumination of the as issues provided by majority. Thus it is that I simply observe I agree cannot appellant be found to have right of his effected waiver to raise the bar because he estoppel simply requested and was granted a I severance. also share the that the view Commonwealth is barred, by principles of estoppel, from relitigating the common issue of ultimate fact essential to appellant's previous acquittal, namely, whether in pos- 22, April session of a firearm on 1990.

Ashe established that once acquitted, an accused has been prosecute state cannot him a second time for related offense a common issue of ultimate fact essential to conviction which the previous had acquittal determined See, e.g., Peluso, his favor. Commonwealth v. 481 Pa. 641, v. (1978); 393 A.2d 344 Commonwealth Klinger, 264 21, Pa.Super. (1979). 398 A.2d 1036 Harris, v. 12, 18, Pa.Super. A.2d 1319, (1990). Smith, Commonwealth v. 518 Pa. Cf: 27-29, 15, 246, (1988). 540 A.2d 252-253 Thus I preclude would prosecu- Commonwealth from further of appellant. tion Pennsylvania

COMMONWEALTH of WILLIAMS, Joseph Appellant.

Superior Pennsylvania. Court of Aug.

Submitted 1991. Filed Jan.