Com. v. Feathers

• Decision Date: 31 May 1995
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. Nancy M. FEATHERS, Appellee.
• Court: Pennsylvania Superior Court

Page 90

660 A.2d 90

442 Pa.Super. 490

COMMONWEALTH of Pennsylvania, Appellant, v. Nancy M. FEATHERS, Appellee.

Superior Court of Pennsylvania.

Argued Feb. 22, 1995.

Filed May 31, 1995.

John M. Daley, Asst. Dist. Atty., Hollidaysburg, for Commonwealth, appellant.

John D. Sisto, Altoona, for appellee.

Before ROWLEY, P.J., and CAVANAUGH, WIEAND, McEWEN, OLSZEWSKI, BECK, TAMILIA, FORD ELLIOTT and SAYLOR, JJ.

WIEAND, Judge.

The principal issue in this appeal is whether a post-verdict judgment of acquittal, entered by a trial court pursuant to Pa.R.Crim.P. 1124(a)(4), is appealable by the Commonwealth. Because we have concluded that a Commonwealth appeal is proper, we will also review the evidence to determine whether it was sufficient to sustain the jury's finding that Nancy M. Feathers, appellee, was guilty of operating a motor vehicle while under the influence of alcohol in violation of 75 Pa.C.S. § 3731(a)(1).

Nancy Feathers was tried by jury and was found guilty on January 21, 1994. After the verdict had been rendered and the jury discharged, Feathers moved orally for the entry of a judgment of acquittal by the trial court on grounds that the evidence had been insufficient to sustain the verdict. When this motion was granted by the trial court, the Commonwealth appealed.

By amendment dated March 22, 1993, and effective as to cases in which a determination of guilt occurs after January 1, 1994, Pa.R.Crim.P. 1124 ¹ permits a defendant in a criminal case to challenge the sufficiency of the evidence in one or more of the ways there set forth. The Rule provides:

Rule 1124. Challenges to Sufficiency of Evidence

(a) A defendant may challenge the sufficiency of the evidence to sustain a conviction of one or more of the offenses charged in one or more of the following ways:

(1) a motion for judgment of acquittal at the close of the Commonwealth's case-in-chief;

(2) a motion for judgment of acquittal at the close of all the evidence;

(3) a motion for judgment of acquittal filed within 10 days after the jury has been discharged without agreeing upon a verdict;

(4) a motion for judgment of acquittal made orally immediately after verdict;

(5) a motion for judgment of acquittal made orally before sentencing pursuant to Rule 1405.B;

(6) a motion for judgment of acquittal made after sentence is imposed pursuant to Rule 1410.B; or

(7) a challenge to the sufficiency of the evidence made on appeal.

(b) A motion for judgment of acquittal shall not constitute an admission of any facts or inferences except for the purpose of deciding the motion. If the motion is made at the close of the Commonwealth's evidence and is not granted, the defendant may present evidence without having reserved the right to do so, and the case shall otherwise proceed as if the motion had not been made.

(c) If a defendant moves for judgment of acquittal at the close of all the evidence, the court may reserve decision until after the jury returns a guilty verdict or after the jury is discharged without agreeing upon a verdict.

This Rule eliminated the use of the terms "demurrer" and "motion in arrest of judgment" and substituted a "motion for judgment of acquittal." The Comment to the Rule states that the purpose of the amendment is to standardize the terminology used for challenges to the sufficiency of the evidence at all stages of the proceeding, consistently with the practice in a majority of the states, as well as under the Federal Rules of Criminal Procedure. ² The Comment cautions, however, that the amendment was not intended to change substantively the law in Pennsylvania regarding a challenge to the sufficiency of the evidence in a criminal case.

The United States Supreme Court has declared that "[p]erhaps the most fundamental rule in the history of double jeopardy jurisprudence has been that '[a] verdict of acquittal ... could not be reviewed, on error or otherwise, without putting [a defendant] twice in jeopardy, and thereby violating the Constitution.' " United States v. Martin Linen Supply Co., 430 U.S. 564, 571, 97 S.Ct. 1349, 1354, 51 L.Ed.2d 642, 651 (1977), quoting United States v. Ball, 163 U.S. 662, 671, 16 S.Ct. 1192, 1195, 41 L.Ed. 300, 303 (1896). See also: Commonwealth v. Tillman, 501 Pa. 395, 461 A.2d 795 (1983); Commonwealth v. Maurizio, 496 Pa. 584, 437 A.2d 1195 (1981). "The fundamental nature of this rule is manifested by its explicit extension to situations where an acquittal is 'based upon an egregiously erroneous foundation.' " Sanabria v. United States, 437 U.S. 54, 64, 98 S.Ct. 2170, 2178, 57 L.Ed.2d 43, 54 (1978), quoting Fong Foo v. United States, 369 U.S. 141, 143, 82 S.Ct. 671, 672, 7 L.Ed.2d 629, 631 (1962). See also: Borough of West Chester v. Lal, 493 Pa. 387, 392, 426 A.2d 603, 605 (1981); Commonwealth v. Walczak, 440 Pa.Super. 339, 440 Pa.Super. 347, 655 A.2d 592, 596 (1995). Under this principle, "[a] judgment of acquittal, whether based on a jury verdict of not guilty or on a ruling by the court that the evidence is insufficient to convict, may not be appealed and terminates the prosecution when a second trial would be necessitated by a reversal." United States v. Scott, 437 U.S. 82, 91, 98 S.Ct. 2187, 2194, 57 L.Ed.2d 65, 74 (1978) (emphasis added) (footnote omitted). See Commonwealth v. Trader, 354 Pa.Super. 583, 512 A.2d 693 (1986). However, "where a Government appeal presents no threat of successive prosecutions, the Double Jeopardy Clause is not offended." United States v. Martin Linen Supply Co., supra, 430 U.S. at 569-570, 97 S.Ct. at 1354, 51 L.Ed.2d at 650. See also: United States v. DiFrancesco, 449 U.S. 117, 132, 101 S.Ct. 426, 434, 66 L.Ed.2d 328, 342 (1980). The Supreme Court has cautioned, "the language of cases in which we have held that there can be no appeal from, or further prosecution after, an 'acquittal' cannot be divorced from the procedural context in which the action so characterized was taken. The word itself has no talismanic quality for purposes of the Double Jeopardy Clause." Serfass v. United States, 420 U.S. 377, 392, 95 S.Ct. 1055, 1064, 43 L.Ed.2d 265, 276 (1975) (citations omitted).

In United States v. Wilson, 420 U.S. 332, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975), the Supreme Court held "that when a judge rules in favor of the defendant after a verdict of guilty has been entered by the trier of fact, the Government may appeal from that ruling without running afoul of the Double Jeopardy Clause." Id. at 352-353, 95 S.Ct. at 1026, 43 L.Ed.2d at 247. The Court said:

[W]here there is no threat of either multiple punishment or successive prosecutions, the Double Jeopardy Clause is not offended. In various situations where appellate review would not subject the defendant to a second trial, this Court has held that an order favoring the defendant could constitutionally be appealed by the Government. Since the 1907 Criminal Appeals Act, for example, the Government has been permitted without serious constitutional challenge to appeal from orders arresting judgment after a verdict has been entered against the defendant. See, e.g., United States v. Bramblett, 348 U.S. 503, 75 S.Ct. 504, 99 L.Ed. 594 (1955); United States v. Green, 350 U.S. 415, 76 S.Ct. 522, 100 L.Ed. 494 (1956); Pratt v. United States, 70 App.D.C. 7, 11, 102 F.2d 275, 279 (1939). Since reversal on appeal would merely reinstate the jury's verdict, review of such an order does not offend the policy against multiple prosecution.

Id. at 344-345, 95 S.Ct. at 1022, 43 L.Ed.2d at 242 (footnote omitted). And in United States v. Jenkins, 420 U.S. 358, 95 S.Ct. 1006, 43 L.Ed.2d 250 (1975), the Court observed by way of dictum as follows:

When a case has been tried to a jury, the Double Jeopardy Clause does not prohibit an appeal by the Government providing that a retrial would not be required in the event the Government is successful in its appeal. United States v. Wilson, 420 U.S., at 344-345, 352-353, 95 S.Ct., at 1022-1023, 1026-1027, 43 L.Ed.2d, at 242, 246-247. When this principle is applied to the situation where the jury returns a verdict of guilt but the trial court thereafter enters a judgment of acquittal, an appeal is permitted. In that situation a conclusion by an appellate court that the judgment of acquittal was improper does not require a criminal defendant to submit to a second trial; the error can be corrected on remand by the entry of a judgment on the verdict. To be sure, the defendant would prefer that the Government not be permitted to appeal or that the judgment of conviction not be entered, but this interest of the defendant is not one that the Double Jeopardy Clause was designed to protect.

Id. at 365, 95 S.Ct. at 1011, 43 L.Ed.2d at 256-257. ³ See also: Arizona v. Rumsey, 467 U.S. 203, 211-212, 104 S.Ct. 2305, 2310, 81 L.Ed.2d 164, 171-172 (1984); United States v. Scott, supra, 437 U.S. at 91 n. 7, 98 S.Ct. at 2194 n. 7, 57 L.Ed.2d at 74 n. 7.

All Courts of Appeal which have considered the issue have followed the Supreme Court and have held uniformly that the government may appeal from a trial court's post-verdict order finding the evidence insufficient to sustain a jury's verdict and entering a judgment of acquittal in favor of the defendant. In the event an appellate court finds that the jury's verdict was supported by sufficient evidence, it may reverse the trial court's ruling and reinstate the jury's verdict without remanding for any further resolution of factual issues. See: United States v. Covino, 837 F.2d 65, 67-68 (2d Cir.1988); United States v. Leal, 781 F.2d 1108, 1110 (5th Cir.1986), cert. denied, 479 U.S. 831, 107 S.Ct. 116, 93 L.Ed.2d 63 (1986); United States v. Martinez, 763 F.2d 1297, 1309-1311 (11th Cir.1985); United States v. Singleton, 702 F.2d 1159, 1161-1162 (D.C.Cir.1983); United States v. Steed, 674 F.2d 284, 285-286 (4th Cir.1982) (en banc), cert. denied, 459 U.S. 829, 103 S.Ct. 67, 74 L.Ed.2d 68 (1982); United States v. Dixon, 658 F.2d 181, 187-188 ...