Com. v. Hickson

• Decision Date: 21 February 1991
• Citation: 402 Pa.Super. 53,586 A.2d 393
• Parties: COMMONWEALTH of Pennsylvania v. Samuel HICKSON, Appellant.
• Court: Pennsylvania Superior Court

Page 393

586 A.2d 393

402 Pa.Super. 53

COMMONWEALTH of Pennsylvania v. Samuel HICKSON, Appellant.

Superior Court of Pennsylvania.

Argued June 12, 1990.

Filed Dec. 14, 1990.

Reargument Denied Feb. 21, 1991.

LeRoy G. Levan, Reading, for appellant.

Mark C. Baldwin, Asst. Dist. Atty., Reading, for Com., appellee.

Before WIEAND, DEL SOLE and MONTEMURO, JJ.

WIEAND, Judge:

Where a jury finds a defendant not guilty of third degree murder but is unable to reach a verdict on charges of first degree murder and aggravated assault, is a retrial on the charges of first degree murder and aggravated assault barred by principles of double jeopardy? After careful review, we conclude that retrial is barred. Therefore, the order of the trial court refusing to dismiss such charges must be reversed.

Samuel Hickson was charged with criminal responsibility in the shooting death of Michael Auchenbach. The Commonwealth contended that Hickson had conspired with a person known as "Deep" to kill Auchenbach and had participated as principal or accomplice in the shooting. The jury which tried Hickson found him guilty of criminal conspiracy to commit murder of the first degree and two counts of conspiracy to commit aggravated assault. The same jury found Hickson not guilty of second degree murder, third degree murder, voluntary manslaughter and involuntary manslaughter. The jury was unable to reach agreement on whether Hickson should be found guilty or not guilty of first degree murder and on two counts of aggravated assault. When the Commonwealth attempted to retry Hickson for first degree murder and aggravated assault, Hickson moved to dismiss the charges on grounds that a retrial was barred by the double jeopardy clauses of the United States and Pennsylvania Constitutions.

As a general rule, reprosecution is not barred by principles of double jeopardy after a jury has been discharged because of an inability to reach a verdict. Commonwealth v. McCane, 517 Pa. 489, 499, 539 A.2d 340, 346 (1988). See: Richardson v. United States, 468 U.S. 317, 104 S.Ct. 3081, 82 L.Ed.2d 242 (1984); United States v. Perez, 9 Wheat 579, 6 L.Ed. 165 (1824); Commonwealth v. James, 506 Pa. 526, 531, 486 A.2d 376, 378-379 (1985). However, principles of collateral estoppel are a necessary part of a double jeopardy analysis. Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970); Commonwealth v. Crenshaw, 504 Pa. 33, 37, 470 A.2d 451, 453 (1983); Commonwealth v. Hude, 492 Pa. 600, 425 A.2d 313 (1980) (plurality opinion). Therefore, a person cannot be tried a second time if the jury has decided in his or her favor an issue of ultimate fact essential to a conviction of the offense on which the jury was unable to agree.

In Commonwealth v. Zimmerman, 498 Pa. 112, 445 A.2d 92 (1981), the Pennsylvania Supreme Court determined that a defendant's retrial on charges of third degree murder, voluntary manslaughter and involuntary manslaughter, on which the jury had deadlocked, was barred by principles of double jeopardy where the defendant had also been acquitted by the same jury of simple assault and first degree murder. The issue before the Court in Zimmerman was framed as follows:

The underlying question is whether the principle of double jeopardy would permit a retrial for the remaining degrees of homicide where appellant has been found not guilty of committing a simple assault upon the deceased victim.

Commonwealth v. Zimmerman, supra at 114, 445 A.2d at 93. The Court held that retrial was barred, reasoning as follows:

We have had occasion to express the essence of the double jeopardy protection as follows:

It has been stated that "the 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."

Commonwealth v. Tabb, supra [491 Pa. 372] at 379, 421 A.2d at 187

[ (1980) ] (quoting from Weston and Drubel, "Towards a General Theory of Double Jeopardy", The Supreme Court Review 1978, p. 81).

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 in question 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.

Id. at 115-116, 445 A.2d at 94. Under this approach, it was clear that simple assault is a constituent element of all grades of homicide. Because the first jury had found the defendant not guilty of assault, therefore, a second jury was precluded from finding that defendant had committed any degree of homicide. See also and compare: Commonwealth v. McCane, supra; Commonwealth v. Pounds, 281 Pa.Super. 19, 421 A.2d 1126 (1980); Commonwealth v. Jones, 274 Pa.Super. 162, 418 A.2d 346 (1980).

These cases teach that the constitutional bar against double jeopardy will preclude retrial of a criminal charge upon which a jury has deadlocked if the same jury has also acquitted the defendant of a constituent offense. In such cases, the acquittal of the constituent offense necessarily prevents retrial of the offense on which the jury could not agree upon a verdict.

In the instant case, the jury found appellant not guilty of third degree murder. Third degree murder is an unlawful killing of another with malice. Commonwealth v. Young, 494 Pa. 224, 227, 431 A.2d 230, 232 (1981); Commonwealth v. Carter, 481 Pa. 495, 498-499, 393 A.2d 13, 15 (1978). "Murder of the third degree is a killing done with legal malice but without specific intent to kill." 17 P.L.E., Homicide § 14. It seems clear, therefore, that third degree murder is a constituent offense of first degree murder. "Malice aforethought is the general intent prerequisite to a finding of murder" in any degree. Commonwealth v. Weinstein, 499 Pa. 106, 115, 451 A.2d 1344, 1348 (1982). First degree murder is an unlawful killing committed not only with malice but also with a specific, fully formed intent to kill. See: Commonwealth v. Reilly, 519 Pa. 550, 564, 549 A.2d 503, 510 (1988); Commonwealth v. Weinstein, supra; Commonwealth v. Holzer, 480 Pa. 93, 98, 389 A.2d 101, 104 (1978).

In the instant case, when the jury found appellant not guilty of third degree murder it found that he was not guilty of committing a malicious killing. A second jury could not find appellant guilty of first degree murder without overturning the decision of the original fact finder. To permit the Commonwealth to seek such a result in a second trial would be to contravene the constitutional guarantees against double jeopardy. Commonwealth v. Zimmerman, supra. We hold, therefore, that the jury's finding that appellant did not commit the crime of third degree murder bars retrial on a charge of first degree murder.

The Supreme Court's decision in Commonwealth v. Terry, 513 Pa. 381, 521 A.2d 398 (1987), upon which the Commonwealth relies, is inapposite. In Terry, the Supreme Court exercised its supervisory power to establish a policy requiring, in homicide cases, that a trial court not record verdicts of not guilty on lesser included degrees of homicide after the jury has returned a verdict of guilty on a higher degree of homicide. The purpose of this policy was to limit the Court's previous holding in Commonwealth v. Beck, 502 Pa. 78, 464 A.2d 316 (1983), ¹ to non-capital cases and to ...