Com. v. Smalis

• Decision Date: 24 August 1984
• Citation: 480 A.2d 1046,331 Pa.Super. 307
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. Despina SMALIS, a/k/a Pepe Smalis. (Four cases.) COMMONWEALTH of Pennsylvania, Appellant, v. Ernest SMALIS, a/k/a Anatstasios Smalis. (Four cases.)
• Court: Pennsylvania Superior Court

Page 1046

480 A.2d 1046

331 Pa.Super. 307

COMMONWEALTH of Pennsylvania, Appellant, v. Despina SMALIS, a/k/a Pepe Smalis. (Four cases.)

COMMONWEALTH of Pennsylvania, Appellant, v. Ernest SMALIS, a/k/a Anatstasios Smalis. (Four cases.)

Superior Court of Pennsylvania.

Argued Oct. 17, 1983.

Filed June 29, 1984.

Petition for Allowance of Appeal Granted

Aug. 24, 1984.

Melinda G. Tell, Asst. Dist. Atty., Pittsburgh, for Commonwealth, appellant.

Norma Chase, Pittsburgh, for Despina Smalis, appellee.

Thomas A. Livingston, Pittsburgh, for Ernest Smalis, appellee.

Before SPAETH, President Judge and WICKERSHAM, BROSKY, ROWLEY, WIEAND, JOHNSON and HOFFMAN, JJ.

WIEAND, Judge:

The trial court in this criminal action sustained defense demurrers to charges of murder, voluntary manslaughter and causing a catastrophe. The Commonwealth appealed. We do not reach the substantive merits of the appeal. Principles of double jeopardy, as interpreted and applied by recent decisions of the Supreme Court of the United States, bar the Commonwealth's right of appeal and compel us to quash the appeal.

Despina Smalis and Ernest Smalis were the owners of a building in the Oakland section of Pittsburgh which housed a bar and restaurant known as "Chances R" and seven dwelling units. On February 12, 1979, a fire destroyed the building, killing two tenants who were in the dwelling units. The owners were accused of setting the fires or causing them to be set and were charged with criminal homicide, recklessly endangering another person, causing a catastrophe and failing to prevent a catastrophe. Despina Smalis was also charged with theft by deception. The evidence was heard by the court without a jury. At the close of the Commonwealth's case, the trial court sustained a demurrer to the evidence with respect to the charges of murder, voluntary manslaughter and causing a catastrophe. ¹ The court did so because, as the trial court observed in a subsequent opinion, "[a]s the trier of fact and law, the court was not satisfied, after considering all of the facts together with all reasonable inferences which the Commonwealth's evidence tended to prove, that there was sufficient evidence from which it could be concluded that either of the defendants was guilty beyond a reasonable doubt of setting or causing to be set the fire in question." The Commonwealth appealed. ²

Until recent times, a demurrer to the evidence was merely a procedural device, authorized by the Act of June 5, 1937, P.L. 1703, § 1, 19 P.S. § 481 (repealed), by which a criminal defendant might test the sufficiency of the Commonwealth's evidence at the close of the Commonwealth's case. See: Commonwealth v. Heller et al., 147 Pa.Super. 68, 83, 24 A.2d 460, 467 (1942). See also: 10A P.L.E. Criminal Law § 617. Under this practice, it was said, an order sustaining a demurrer to the evidence determined no facts and was purely a question of law. Such an order, the decisions uniformly held, was appealable by the Commonwealth. Commonwealth v. Long, 467 Pa. 98, 100 n. 2, 354 A.2d 569, 570 n. 2 (1976); Commonwealth v. Melton, 402 Pa. 628, 629, 168 A.2d 328, 329 (1961); Commonwealth v. Lewis, 299 Pa.Super. 367, 369, 445 A.2d 798, 799 (1982); Commonwealth v. Matsinger, 288 Pa.Super. 271, 273, 431 A.2d 1043, 1044 (1981); Commonwealth v. Barone, 276 Pa.Super. 282, 289 n. 9, 419 A.2d 457, 461 n. 9 (1980); Commonwealth v. Ferrone, 218 Pa.Super. 330, 333, 280 A.2d 415, 417 (1971).

The practice of demurring to the evidence is now governed by Pa.R.Crim.P 1124(a). This rule equates a demurrer to the evidence with other motions intended to challenge the legal sufficiency of the evidence to support a conviction. The Rule provides:

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

(1) demurrer to the evidence presented by the Commonwealth at the close of the Commonwealth's case-in-chief;

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

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

(4) motion in arrest of judgment filed within ten (10) days after a finding of guilt.

When a court finds the Commonwealth's evidence legally insufficient under this Rule, the evidence has been found to be so lacking in sufficiency that no rational fact finder could base a conviction thereon. When such a determination has been made, the Supreme Court of the United States has held, principles of double jeopardy bar a second trial.

When a trial judge directs a verdict of acquittal, as under Rule 1124(a)(2), that verdict is final. Because a second trial is barred by principles of double jeopardy, the Commonwealth has no right of appeal from an order directing a verdict of acquittal. Fong Foo v. United States, 369 U.S. 141, 82 S.Ct. 671, 7 L.Ed.2d 629 (1962). See also: Finch v. United States, 433 U.S. 676, 97 S.Ct. 2909, 53 L.Ed.2d 1048 (1977)(dismissal of charges prior to entry of verdict on grounds that stipulated facts did not state an offense held unappealable); In The Interest of R.K.K., 112 Ill.App.3d 982, 68 Ill.Dec. 573, 446 N.E.2d 307 (1983)("directed verdict" entered at close of state's case-in-chief based upon state's failure to prove age of victim in statutory rape case held not appealable); State v. Murrell, 54 N.C.App. 342, 283 S.E.2d 173 (1981)(dismissal of charges on insufficiency grounds at close of trial held not appealable). Cf. People v. Casiel, 41 N.Y.2d 945, 394 N.Y.S.2d 630, 363 N.E.2d 354 (1977), reversing 42 A.D.2d 762, 346 N.Y.S.2d 349 (1973); State v. Winborne, 273 S.C. 62, 254 S.E.2d 297 (1979).

When a trial court grants a motion for judgment of acquittal after the jury has been discharged without agreeing upon a verdict, as under Rule 1124(a)(3), the defendant cannot be retried. Such a ruling represents a final determination that the prosecution failed to prove facts sufficient to convict. It is the same determination which is made by a court when it directs a verdict of acquittal at the close of the evidence. Because the federal Double Jeopardy Clause bars a retrial, the Commonwealth has no right of appeal from an order directing a verdict under such circumstances. United States v. Martin Linen Supply Co., 430 U.S. 564, 97 S.Ct. 1349, 51 L.Ed.2d 642 (1977). See also: United States v. Suarez, 505 F.2d 166 (2d Cir.1974).

Principles of double jeopardy are applicable also when a trial court has granted a post-trial motion in arrest of judgment in a manner similar to that provided for in Rule 1124(a)(4) or where an appellate court has reversed a conviction on grounds that the evidence was so inadequate that no rational fact finder could have voted to convict thereon. Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981)(determination by trial court pursuant to post-trial motion that evidence was insufficient to support conviction bars retrial); Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978)(determination by appellate court that evidence was insufficient to support conviction bars retrial); Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978)(determination by appellate court that government failed to introduce sufficient evidence to rebut defendant's proof of insanity, holding in essence that trial court should have directed a verdict in defendant's favor, bars retrial). However, where a trial court has found post-verdict that the evidence was insufficient as a matter of law to support the verdict, that determination is subject to appellate review, for an order by an appellate court reversing such a conclusion and reinstating the verdict does not require a second trial. Therefore, there is no violation of principles of double jeopardy. Commonwealth v. Rawles, 501 Pa. 514, ---, 462 A.2d 619, 621 (1983). See also: United States v. Singleton, 702 F.2d 1159 (D.C.Cir.1983) (collecting cases at 1161-1162 n. 8); Commonwealth v. Macolini, 503 Pa. 201, 469 A.2d 132 (1983) (Superior Court's reversal of judgment of sentence on grounds of insufficiency of evidence reversed by Supreme Court).

The legal principle to be drawn from these decisions was articulated in United States v. Scott, 437 U.S. 82, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978) as follows: "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." Id. at 91, 98 S.Ct. at 2194, 57 L.Ed.2d at 74 (footnote omitted). ³

A demurrer to the evidence requires a court to accept as true the evidence presented by the Commonwealth and view that evidence, together with all reasonable inferences to be drawn therefrom, in the light most favorable to the Commonwealth. See: Commonwealth v. Turner, 491 Pa. 620, 622, 421 A.2d 1057, 1058 (1980); Commonwealth v. Wimberly, 488 Pa. 169, 171, 411 A.2d 1193, 1194 (1979); Commonwealth v. Duncan, 473 Pa. 62, 66 n. 2, 373 A.2d 1051, 1052 n. 2 (1977); Commonwealth v. Long, supra 467 Pa. at 100, 354 A.2d at 570; Commonwealth v. Bastone, 321 Pa.Super. 232, ---, 467 A.2d 1339, 1341 (1983); Commonwealth v. Cugnini, 307 Pa.Super. 113, 115, 452 A.2d 1064, 1065 (1982); Commonwealth v. Gilliard, 300 Pa.Super. 469, 478, 446 A.2d 951, 955 (1982). The court must then determine whether the Commonwealth's evidence, when so considered, is sufficient to permit a rational person to base thereon a finding of guilt beyond a reasonable doubt.

The Supreme Court of the United States has not distinguished and set aside for separate treatment those determinations of evidentiary insufficiency which are made mid-trial. See and compare: Sanabria v. United States, 437 U.S. 54, 98 S.Ct. 2170, 57 L.Ed.2d 43 (1978)(pre-verdict acquittal for insufficient evidence, even though caused by erroneous evidentiary...