Com. v. McMullen

• Decision Date: 17 November 1998
• Citation: 721 A.2d 370
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Kim Lee McMULLEN, Appellant.
• Court: Pennsylvania Superior Court

721 A.2d 370

COMMONWEALTH of Pennsylvania, Appellee, v.Kim Lee McMULLEN, Appellant.

Superior Court of Pennsylvania.

Argued June 17, 1998.

Filed November 17, 1998.

William R. Tressler, Bellefonte, for appellant.

Robert B. Stewart, III, Dist. Atty., Huntingdon, for Com., appellee.

Before McEWEN, President Judge, and DEL SOLE and TAMILIA, JJ.

McEWEN, President Judge:

This appeal has been taken from the order entered February 4, 1997, which denied the pre-trial motion to dismiss, on the ground of double jeopardy, filed by appellant, Kim Lee McMullen, after the record in this homicide case was remanded for a new trial pursuant to the order of the Pennsylvania Supreme Court in Commonwealth v. McMullen,545 Pa. 361, 681 A.2d 717(1996).The Supreme Court vacated the judgment of sentence and remanded for a new trial as a result of finding that the corpus delicti rule had been violated when the trial court permitted the introduction, over objection, of an inculpatory statement made by appellant prior to the introduction of any independent evidence to establish that a crime had actually occurred.The Supreme Court¹ concluded, after review of the entire trial transcript, "that the evidence simply does not indicate that [the victim's] death was more likely caused by criminal means than it was by an accident."Commonwealth v. McMullen, supra at 373, 681 A.2d at 723.

The Supreme Court affirmed the judgment of sentence of not less than eleven months nor more than five years imprisonment which had been imposed upon appellant for the offense of burglary.Appellant, however, had completed the five-year sentence imposed on the burglary conviction on April 1, 1995, more than one year prior to the filing of the Supreme Court opinion which vacated the second degree murder conviction, and thus remained incarcerated solely as a result of the pending murder charges.Appellant then filed an omnibus pre-trial motion to dismiss the murder charges alleging he was entitled to discharge "on grounds of double jeopardy where the Pennsylvania Supreme Court ruled that there was insufficient evidence to warrant a conviction at McMullen's first trial."The trial court disagreed, based in part upon the production by the Commonwealth of a new autopsy report, produced some 12 years after the death of the victim, and this appeal timely followed.

Appellant has not filed a motion for writ of habeas corpus, but rather contends that the ruling of the Supreme Court, in conjunction with the doctrine of double jeopardy, precludes a second trial on the homicide charges.This argument evidences a profound misapprehension of the principles of double jeopardy.A court is precluded from finding that the double jeopardy clause, of either the United States Constitution or the Pennsylvania Constitution, bars a retrial when an appeal from a guilty verdict is successful only when an expurgated record enables a finding that the remaining, admissible evidence is insufficient to sustain the verdict.See, e.g.Commonwealth v. Smith,523 Pa. 577, 582, 568 A.2d 600, 603(1989), reversed on other grounds,532 Pa. 177, 615 A.2d 321(1992);Commonwealth v. Maybee,429 Pa. 222, 226, 239 A.2d 332, 335(1968)."`Where improperly admitted evidence has been allowed to be considered by the jury, its subsequent deletion does not justify a finding of insufficient evidence.The remedy in such a case is the grant of a new trial.'"Commonwealth v. Parker,435 Pa.Super. 81, 644 A.2d 1245, 1247(Pa.Super.1994), allo. denied,540 Pa. 630, 658 A.2d 793(1995), quotingCommonwealth v. Smith, supra at 582, 568 A.2d at 603.

The law is well-settled that the Double Jeopardy Clause does not impose a "limitation upon the power of the government to retry a defendant who has succeeded in persuading a court to set his conviction aside, unless the conviction has been reversed [solely] because of insufficiency of the evidence."[Oregon v.] Kennedy, 456 U.S. [667] at 676 n. 6, 102 S.Ct. [2083] at 2090 n. 6[72 L.Ed.2d 416(1982)].See alsoU.S. v. Leppo,634 F.2d 101(3d Cir.1980)(double jeopardy bars retrial after defendant's conviction has been overturned as a result of insufficient evidence, but does not bar retrial in cases in which the judicial process was defective as a result of improper receipt of evidence);Commonwealth v. Vogel,501 Pa. 314, 461 A.2d 604(1983).In discussing the various contexts in which double jeopardy claims have arisen, the United States Supreme Court opined:

Finally, if the first trial has ended in a conviction, the double jeopardy guarantee `imposes no limitations whatever upon the power to retry a defendant who has succeeded in getting his first conviction set aside.'`It would be a high price indeed for society to pay were every accused granted immunity from punishment because of any defect sufficient to constitute reversible error in the proceedings leading to conviction.'`[T]o require a criminal defendant to stand trial again after he has successfully invoked his statutory right of appeal to upset his first conviction is not an act of governmental oppression of the sort which the Double Jeopardy Clause was intended to protect.'

United States v. DiFrancesco,449 U.S. 117, 131, 101 S.Ct. 426, 434, 66 L.Ed.2d 328(1980)(citations omitted).

Commonwealth v. Green,370 Pa.Super. 343, 536 A.2d 436, 438(Pa.Super.1988).

Since the record from the first trial contained sufficient evidence to support the conviction, we are only able to find that the evidence is insufficient if we ignore the improperly admitted inculpatory statement of appellant, an action which we are not permitted to undertake at this point in the proceedings.

The Commonwealth has the right to insist upon an opportunity to present its entire case, either at a habeas corpus hearing² or at trial, before any review of the sufficiency of the evidence may be undertaken by this Court.While the record presently before this Court strongly suggests that the Commonwealth will not be able to meet its burden of proof under Commonwealth v. Byrd,490 Pa. 544, 417 A.2d 173(1980), see: Commonwealth v. McMullen,545 Pa. 361, 371 n. 5, 681 A.2d 717, 722 n. 5(1996), that issue is not yet ripe for review by this Court.

Therefore, although the evidence presently of record is insufficient to establish the corpus delicti of murder, the trial court properly concluded that retrial is not barred by principles of double jeopardy.We, therefore, affirm the order of the distinguished Judge Keith B. Quigley.

Order affirmed.

TAMILIA, J., files a dissenting opinion.

TAMILIA, Judge, dissenting.

I respectfully dissent.

Appellant, Kim Lee McMullen, challenges the Order of February 4, 1997, whereby the trial court denied appellant's motion to dismiss this action on grounds of double jeopardy.In previous litigation, the Pennsylvania Supreme Court determined that the doctrine of corpus delicti barred the admission of appellant's inculpatory statement because the statement was not corroborated by independent evidence that a crime had actually occurred.In this action, appellant claims that double jeopardy bars his retrial as without the inculpatory statement, the Commonwealth possessed insufficient evidence to convict appellant at his first trial.

The Pennsylvania Supreme Court summarized the facts of this case as follows.

In the late evening or early morning hours of February 23-24, 1985, the Grocery Box, a food store in Orbisonia, Pennsylvania, was burglarized.Eight days later, on March 4, 1985, the body of Dominic Barcelona was recovered from Black Log Creek, not far from the Grocery Box.The body was about 400 to 500 yards downstream from a highway bridge and about 300 yards downstream from a railroad bridge.Barcelona, a 30-year old schizophrenic, was well known throughout the community for his habit of taking extensive walks.He also walked with a limp sustained as a result of being hit by a car during one of these walks.

At the time of these events, the police made no connection between the burglary and Barcelona's death.Instead, police concluded that Barcelona accidentally drowned because neither Barcelona's body nor the location of his death bore evidence of foul play.This conclusion was supported by the pathologist who autopsied Barcelona and also by the county coroner.

However, after rumors surfaced that the burglary and drowning were related, the Pennsylvania State Police reopened both investigations in the latter part of 1989.[Appellant], who was then incarcerated on other charges, gave a statement averring that he and another man, Adam Wiser, burglarized the Grocery Box and, while fleeing, encountered Barcelona on a nearby bridge.McMullen,420 Pa.Super. at 133, 616 A.2d at 15.[Appellant] further stated that Wiser, not he, threw Barcelona into the creek after apparently knocking him to the ground.Id.

Commonwealth v. McMullen,545 Pa. 361, 364-365, 681 A.2d 717, 719(1996).After making the aforementioned inculpatory statement, appellant was charged with criminal homicide³ and burglary.⁴From December 5-8, 1990, appellant was tried before a jury and subsequently found guilty of murder of the second degree and burglary.Appellant filed post-sentence motions, which were denied by the trial court.He then appealed to the Superior Court.

On November 6, 1992, this Court vacated appellant's convictions for second-degree murder and burglary and remanded the case for a new trial.SeeCommonwealth v. McMullen,420 Pa.Super. 130, 616 A.2d 14(1992), rev'd in part,545 Pa. 361, 681 A.2d 717(1996).In doing so, we found that appellant's inculpatory statement was not corroborated by sufficient evidence to establish the corpus delicti for the homicide charge.Thereafter, the Commonwealth filed a petition for allowance of appeal, which was granted.On July 31, 1996, the Pennsylvania Supreme Court affirmed this Court's vacation of appellant's conviction for second-degree murder, but reversed the portion of our...