Commonwealth of Pa. v. Andre

• Decision Date: 29 March 2011
• Citation: 2011 PA Super 65,17 A.3d 951
• Parties: COMMONWEALTH of Pennsylvania, Appellantv.Saphira ANDRE, Appellee.
• Court: Pennsylvania Superior Court

17 A.3d 951

2011 PA Super 65

COMMONWEALTH of Pennsylvania, Appellant

v.Saphira ANDRE, Appellee.

Superior Court of Pennsylvania.

Argued Sept. 21, 2010.Filed March 29, 2011.

John M. Morganelli, Assistant District Attorney, Easton, for Commonwealth, appellant.Dennis G. Charles, Allentown, for appellee.BEFORE: BOWES, DONOHUE, and OLSON, JJ.OPINION BY BOWES, J.:

The Commonwealth appeals the trial court's November 6, 2009 order declaring a mistrial after the jury, in the second phase of a bifurcated trial, could not determine whether Saphira Andre was legally insane. After careful review, we affirm.

The salient factual and procedural background is as follows. The Commonwealth originally charged Appellee with arson endangering persons,¹ arson endangering property,² criminal mischief ³ and risking catastrophe.⁴ Subsequently, the Commonwealth dropped the charges of arson endangering property and risking catastrophe. The charges arose from a February 9, 2008 fire at a residence in Upper Mount Bethel Township, Northampton County.

Following the unsuccessful litigation of an omnibus pre-trial motion, new counsel entered an appearance on behalf of Appellee. Thereafter, on March 3, 2009, counsel filed a notice of defense of insanity and notice of expert evidence of mental condition. According to Appellee, she suffered from post-traumatic stress disorder, major depressive disorder with psychotic features, anxiety and panic attacks, and dissociative disorder. The trial court provided the Commonwealth with an opportunity to obtain an independent psychiatric examination within thirty days of April 13, 2009, and to submit a report within fifty days of that order.

Subsequently, Appellee filed a supplemental omnibus pre-trial motion seeking a bifurcated trial and the exclusion of admissions she made during a police interrogation while allegedly suffering from carbon monoxide poisoning, hypoglycemia, and mental infirmity. Appellee based her request for a bifurcated trial on 50 P.S. § 7404(c). That statute provides:

(c) Bifurcation of Issues or Trial.—Upon trial, the court, in the interest of justice, may direct that the issue of criminal responsibility be heard and determined separately from the other issues in the case and, in a trial by jury, that the issue of criminal responsibility be submitted to a separate jury. Upon a request for bifurcation, the court shall consider the substantiality of the defense of lack of responsibility and its effect upon other defenses, and the probability of a fair trial.

50 P.S. § 7404(c). In support of her position to bifurcate, Appellee averred several defenses. First, she argued that the fire at issue was the result of an electrical wire insulation failure. In the alternative, she alleged that she was involuntarily intoxicated due to carbon monoxide poisoning and did not have the requisite mens rea to commit the crime. Finally, she asserted that she was legally insane at the time of the fire. The trial court granted the motion to bifurcate. Thereafter, the first jury found that Appellee committed the act of setting the fire.

A second jury was impaneled to determine Appellee's criminal responsibility at the time of the act. Following the second trial, the trial court presented the jury with a verdict slip with two questions. The first inquiry was whether Appellee was not guilty by reason of legal insanity.⁵ The trial court instructed the jury that if it determined Appellee was not guilty due to legal insanity, it need not reach the second query. However, if the jury unanimously agreed that Appellee failed to prove she was legally insane, it was to determine if she was guilty but mentally ill.

The jury was unable to reach a unanimous verdict on the issue of insanity and the trial court declared a mistrial and excused the jury. Nevertheless, a handwritten note from the jury included statements that the entire jury agreed that Appellee was mentally ill and that she wanted to commit suicide. The jury in its note further indicated that it could not agree if Appellee “knew what she was doing was wrong” or “knew she was starting fires [.]” Jury Note, Exhibit 4, 11/6/09.

Despite the jury's indication that it could not agree on Appellee's criminal responsibility, i.e., whether she knew that she was starting a fire, and if she did know, did not understand that it was wrong, the Commonwealth contended that the court should proceed to sentence Appellee as though she were guilty, or in the alternative, guilty but mentally ill. The Commonwealth based its position on the second jury's handwritten note that Appellee was mentally ill and on the first jury's determination that she committed arson and criminal mischief. The trial court refused to proceed in that manner and indicated that it would schedule a new trial to determine Appellee's criminal responsibility.

Before that trial occurred, the Commonwealth filed the instant notice of appeal, pursuant to Pa.R.A.P. 311(d), asserting that the order declaring the mistrial substantially handicapped its prosecution. The trial court directed the Commonwealth to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. The Commonwealth complied, and the trial court prepared a Pa.R.A.P. 1925(a) opinion. The matter is now ready for our review. The Commonwealth raises the following four issues.

A. Whether the trial court, in a bifurcated trial pursuant to 50 P.S. [§ ] 7404(c), erred in failing to enter a verdict of “guilty” where the first jury unanimously found the defendant guilty, and the second jury was deadlocked on the issue of the defendant's criminal responsibility.

B. In the alternative, whether the trial court erred in failing to enter a verdict of “guilty but mentally ill” where the first jury in a bifurcated trial pursuant to 50 P.S. [§ ] 7404(c) unanimously found the defendant guilty and the second jury unanimously found the defendant to be mentally ill.

C. Whether the trial court, in a bifurcated trial pursuant to 50 P.S. [§ ] 7404(c), abused its discretion in excluding evidence that the defendant had been found guilty of the crimes charged in the first trial.

D. Whether the trial court abused its discretion in preparing and submitting to the jury an improper verdict slip.

Commonwealth's brief at 7.

Before we address the Commonwealth's issues, we must first decide whether this Court has jurisdiction. As noted, the Commonwealth filed the instant appeal pursuant to Pa.R.A.P. 311(d), which permits a Commonwealth appeal from an interlocutory order in a criminal action “where the Commonwealth certifies in the notice of appeal that the order will terminate or substantially handicap the prosecution.” Pa.R.A.P. 311(d).

Our Supreme Court has consistently held that the rule applies to pretrial rulings that result in the suppression, preclusion, or exclusion of Commonwealth evidence. Commonwealth v. Shearer, 584 Pa. 134, 882 A.2d 462, 467 (2005); Commonwealth v. Cosnek, 575 Pa. 411, 836 A.2d 871, 877 (2003); see also Commonwealth v. Minich, 4 A.3d 1063 (Pa.Super.2010). Accordingly, the rule is ordinarily invoked following a trial court's suppression order or an order excluding evidence based on a motion in limine.

We acknowledge that when the Commonwealth objects to the declaration of a mistrial or to the crafting of a jury verdict slip, the issue will not be reviewable if the case proceeds to final judgment. This position flows from the fact that the Commonwealth cannot appeal the decision if they sustain a conviction, as it will not be an aggrieved party. See Commonwealth v. Dellisanti, 831 A.2d 1159, 1164 n. 7 (Pa.Super.2003), reversed on separate grounds, 583 Pa. 106, 876 A.2d 366 (2005). Furthermore, it would not be permitted to appeal from Appellee's acquittal due to double jeopardy implications. Minich, supra.

Nevertheless, this Court has found no Pennsylvania case law to support the granting of a Commonwealth appeal under Pa.R.A.P. 311(d) from an order declaring a mistrial after a jury deadlocked, nor has the Commonwealth supplied any support for that position. Indeed, Pa.R.A.P. 311(d) has been limited to pre-trial rulings precisely because to hold otherwise would permit the Commonwealth to appeal mid-trial from adverse rulings entered by the trial court that might hamper the prosecution.

Instantly, the trial court's November 6, 2009 ruling was not a pre-trial decision or a determination that precluded the Commonwealth from introducing certain evidence. Thus, the November 6, 2009 order does not fall within the parameters of Rule 311(d) as delineated by our Supreme Court. Hence, insofar as the Commonwealth challenges the trial court's tailoring of the jury verdict slip and its decision to grant a mistrial rather than proceeding to sentence Appellee, we decline to extend Pa.R.A.P. 311(d) to such a situation.⁶

However, this does not end our jurisdictional inquiry. The Commonwealth's first two issues and its final claim pertain to an order that awarded a new trial and Pa.R.A.P. 311(a)(6) confers this Court with jurisdiction in those circumstances. Pa.R.A.P. 311(a)(6) states that in a criminal proceeding, the Commonwealth may appeal from the decision to grant a new trial when “the Commonwealth claims that the lower court committed an error of law.” ⁷ While we are cognizant that the Commonwealth neglected to invoke this rule, the issue is jurisdictional and we may raise it sua sponte. Estate of Considine v. Wachovia Bank, 966 A.2d 1148, 1151 (Pa.Super.2009). Accordingly, we have jurisdiction over this appeal pursuant to Pa.R.A.P. 311(a)(6). See Commonwealth v. Dorm, 971 A.2d 1284 (Pa.Super.2009).

Preliminarily, we find it helpful to carefully delineate the difference between the Commonwealth's burden of proving the mens rea element of an offense and a defendant's burden of proving a lack of criminal responsibility when the defense of insanity is advanced. We do so due to the confusion created in this case as to what the...