Com. v. Feaser

• Decision Date: 06 January 1999
• Citation: 1999 PA Super 1,723 A.2d 197
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Allen FEASER, Appellant. Commonwealth of Pennsylvania, Appellant, v. Allen Feaser, Appellee.
• Court: Pennsylvania Superior Court

723 A.2d 197

1999 PA Super 1

COMMONWEALTH of Pennsylvania, Appellee, v. Allen FEASER, Appellant.

Commonwealth of Pennsylvania, Appellant, v. Allen Feaser, Appellee.

Superior Court of Pennsylvania.

Submitted September 23, 1998.

Filed January 6, 1999.

John R. Kelsey, III, Lebanon, for Allen Feaser.

Jennifer Wisniewski, Assistant District Attorney, Lebanon, for Commonwealth.

Before JOHNSON, HUDOCK and HESTER, JJ.

HUDOCK, J.:

¶ 1 Allen Feaser (Feaser) and the Commonwealth cross-appeal from the order of the trial court that limited the number of charges upon which Feaser can be retried. As part of his ruling, the trial judge analyzed and applied the principles of double jeopardy. We affirm.

¶ 2 The facts and procedural history can be summarized as follows: In the early morning hours of June 6, 1993, Dwayne Reynolds (Reynolds) and Osvaldo Lopez (Lopez) engaged in a bar brawl. After Reynolds threw Lopez out of the bar, the fight continued outside. Feaser, assisting Reynolds, followed the fight out of the bar, blocked Lopez's escape route and punched and kicked Lopez. Ultimately, Lopez was stabbed and killed. Both Reynolds and Feaser were arrested in connection with Lopez's death. Reynolds later pled guilty to murder.

¶ 3 The Commonwealth charged Feaser with criminal homicide, criminal conspiracy to commit homicide, aggravated assault, criminal conspiracy to commit aggravated assault and hindering apprehension or prosecution.¹ After a jury trial, Feaser was found guilty of third-degree murder, simple assault and hindering apprehension. The jury found him not guilty of both conspiracy counts and of aggravated assault.

¶ 4 After trial, it was discovered that a juror had failed to disclose the fact that he harbored animosity toward Feaser. The trial court held a hearing to investigate the alleged jury taint and granted Feaser's motion for a mistrial. The Commonwealth appealed the trial court's ruling, but this Court affirmed it. Commonwealth v. Feaser, 454 Pa.Super. 703, 685 A.2d 1042 (Pa.Super.1996) (unpublished memorandum). Our Supreme Court then denied the Commonwealth's petition for allowance of appeal. Commonwealth v. Feaser, 548 Pa. 644, 695 A.2d 784 (1997).

¶ 5 The Commonwealth attempted to retry Feaser on all of the original charges, including first-degree murder. In an omnibus pre-trial motion, Feaser challenged, inter alia, the Commonwealth's position regarding which charges may be brought against him at the second trial. He contended that re-prosecution on all counts would subject him to double jeopardy in violation of the Fifth Amendment to the United States Constitution, Article One, Section Ten of the Pennsylvania Constitution and Section 109 of the Crimes Code. The trial court held that the Commonwealth could retry Feaser for third-degree murder on the theory of accomplice liability, but that the principles of double jeopardy barred the Commonwealth from pursuing a conviction for first-degree murder, criminal conspiracy or aggravated assault. These cross-appeals, which have been consolidated for review, followed.²

¶ 6 In these appeals, the Commonwealth argues: (1) that its re-prosecution of Feaser on the homicide count should not be limited to third-degree murder and (2) that it should be allowed to seek a conviction for aggravated assault. Commonwealth's Brief, filed at 1018 Harrisburg 1997, at 3. Feaser also raises two issues for our review: (1) whether the fact that the jury acquitted him of the aggravated assault charge at trial bars his re-prosecution for third-degree murder and (2) whether an acquittal on the charge of criminal conspiracy to commit murder acts to prevent the Commonwealth from seeking a conviction for third-degree murder on a theory of accomplice liability. Feaser's Brief, filed at 934 Harrisburg 1997, at 3.

¶ 7 Initially, we note that the protections afforded by the federal and state double jeopardy clauses are co-extensive under Pennsylvania jurisprudence. Commonwealth v. Lively, 530 Pa. 464, 467, 610 A.2d 7, 8 (1992). While our Supreme Court has concluded that the double jeopardy clause of our constitution provides criminal defendants with broader protection in cases of intentional and egregious prosecutorial misconduct, no such misconduct occurred in the instant case. Compare Commonwealth v. Hockenbury, 549 Pa. 527, 701 A.2d 1334 (1997),

with Commonwealth v. Hogan, 482 Pa. 333, 393 A.2d 1133 (1978). Therefore, we will employ a unitary double jeopardy analysis in these appeals.

¶ 8 Despite the state and federal prohibitions against placing an individual twice in jeopardy, it is well-established that a defendant may be tried twice for the same offense following the successful appeal of a conviction. Hogan at 338, 393 A.2d at 1135; Commonwealth v. Lafferty, 315 Pa.Super. 241, 461 A.2d 1261, 1262 (Pa.Super.1983). "Generally, where the defendant himself urges a new trial on post-trial motions, the double jeopardy clause does not bar a subsequent prosecution...." Lafferty, 461 A.2d at 1262. This general rule, however, is subject to several exceptions.

¶ 9 Pennsylvania has codified the principle of double jeopardy raised in this matter at section 109 of the Crimes Code. That section states, in pertinent part:

§ 109. When prosecution barred by former prosecution for the same offense

When a prosecution is for a violation of the same provision of the statutes and is based upon the same facts as a former prosecution, it is barred by such former prosecution under the following circumstances:

(1) The former prosecution resulted in an acquittal. There is an acquittal if the prosecution resulted in a finding of not guilty by the trier of fact or in a determination that there was insufficient evidence to warrant a conviction. A finding of guilty of a lesser included offense is an acquittal of the greater inclusive offense, although the conviction is subsequently set aside.

18 Pa.C.S.A. § 109(1) (emphasis added). Additionally, the courts of this Commonwealth have had ample opportunity to consider the scope of double jeopardy protections. Regarding the question of when retrial is barred, we have stated:

"[T]he principle of double jeopardy serves not one, but three distinct interests. In ascending degrees of importance, they are: (1) an interest in finality which may be overcome relatively easily; (2) an interest in avoiding double punishment which comes armed with a presumption in the defendant's favor; and (3) an interest in nullification—viz., an interest in allowing the system to acquit against the evidence—which is absolute. These three interests are loosely connected to the notion of ending litigation, and it is this connection that provides textual justification for bringing them under the common `rubric' of double jeopardy."

* * *

"Here we are concerned with that interest of double jeopardy which has been given the highest order of priority. The question presented is whether the allowance of a retrial on the charges ... erodes the original factfinders' absolute right to make the final factual determination on the charges submitted to them. It is, therefore, encumbent [sic] upon us to determine whether the exposure of appellant to the charges the Commonwealth now seeks to proceed to trial, offers to a new tribunal the opportunity to overturn the decision reached by the original finders of fact. If the original decision is not disturbed by the finding of the subsequent tribunal, this interest of double jeopardy is not offended.

If the original decision has foreclosed the question to be decided by the retrial then the retrial cannot be permitted."

Commonwealth v. Hickson, 402 Pa.Super. 53, 586 A.2d 393, 394-95 (Pa.Super.1990) (quoting Commonwealth v. Zimmerman, 498 Pa. 112, 115-16, 445 A.2d 92, 94 (1981)).

¶ 10 With these concepts in mind, we turn now to analyze the Commonwealth's arguments. The Commonwealth first argues that it should be allowed to re-prosecute Feaser for all degrees of homicide based on a theory of accomplice liability. In Feaser's first trial, the court's charge offered the jury the choice of three verdicts with respect to homicide: not guilty, guilty of murder in the first degree or guilty of murder in the third degree. See N.T., 12/10/93, at 573. The jury returned a verdict of guilty of murder in the third degree. Id. at 606. Thus, because the jury convicted Feaser of third-degree murder, a lesser included offense of first-degree murder, it acquitted him of first-degree murder. 18 Pa.C.S.A. § 109(1).

¶ 11 Moreover, pursuant to Hickson, there is no reason to disturb the conclusion of the original factfinders. Feaser's post-trial motion merely succeeded in setting aside the jury's findings regarding guilt. If a second jury were afforded the opportunity to consider a general homicide count, that jury could abrogate facts found by the first jury. The double jeopardy clause is intended to protect against such a result. See generally, Hickson, 586 A.2d at 395

. Essentially, as our Supreme Court noted in Zimmerman, the original jury verdict in Feaser's case, acquitting him of first-degree murder, forecloses the possibility of retrying him on a general count of homicide. 498 Pa. at 116,

445 A.2d at 94. Therefore, considering both the dictates of section 109 and the rationale of Hickson, the Commonwealth is precluded from seeking a first-degree murder conviction in the second trial.

¶ 12 The Commonwealth contends, however, that the so-called "clean-slate" doctrine applies to allow retrial on a general homicide count. This doctrine was first announced by the United States Supreme Court in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). As our Supreme Court noted in adopting the doctrine under Pennsylvania law:

In Pearce, the question arose as to whether [the constitutional guarantee against double jeopardy] precluded imposition of a harsher sentence after conviction upon retrial. The Court held that it did not. It reasoned

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