Com. v. Vogel

• Decision Date: 27 April 1983
• Citation: 501 Pa. 314,461 A.2d 604
• Parties: COMMONWEALTH of Pennsylvania, Appellee-Appellant, v. Dennis VOGEL, Appellant-Appellee.
• Court: Pennsylvania Supreme Court

Page 604

461 A.2d 604

501 Pa. 314

COMMONWEALTH of Pennsylvania, Appellee-Appellant, v. Dennis VOGEL, Appellant-Appellee.

Supreme Court of Pennsylvania.

Argued March 9, 1983.

Decided April 27, 1983.

[501 Pa. 316] Frederick D. Lingle, Dist. Atty., for appellant at No. 626 and for appellee at No. 627.

Alfred S. Pelaez, Pittsburgh, for appellant at No. 627 and for appellee at No. 626.

Before ROBERTS, C.J., and NIX, LARSEN, FLAHERTY, McDERMOTT, HUTCHINSON and ZAPPALA, JJ.

OPINION

NIX, Justice.

This is a cross appeal from an order entered in a post conviction proceeding pursuant to the Post Conviction Hearing Act, Act of January 25, 1966, P.L. (1965) 1580, as amended; reenacted as 42 Pa.C.S. §§ 9541-9551, wherein the Commonwealth seeks reversal of the award of a new trial based upon the ineffective assistance of counsel and Mr. Vogel seeks his discharge contending that the constitutional prohibition against double jeopardy requires such a result. ¹ For the reasons that follow we hold that the learned court below was in error in concluding that a new trial was warranted. We also are of the view that there is no merit in Mr. Vogel's claimed double jeopardy violations. Hopefully, this matter which arose on August 1, 1962 will at long last be put to rest.

At the outset it must be emphasized that it has never been questioned that Mr. Vogel caused the death of two individuals in the course of a robbery of the store where they were employed. The fruits of that robbery--cash, money bags and green stamps--were secreted in the trunk of his car when he and his family left this country and travelled to Canada shortly after the crime. The crux of the controversy has been whether the record has established his legal culpability for the consequences of this conduct. It is appropriate for us first to consider the asserted double jeopardy violation, for if it is established Mr. Vogel may not be retried and is entitled to an immediate discharge. Commonwealth v. Meadows, 471 Pa. 201, 369 A.2d 1266 (1977); see generally Illinois v. Vitale, 447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980); Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977); United States v. Wilson, 420 U.S. 332, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975); North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969).

I. MR. VOGEL'S APPEAL

It is argued on Mr. Vogel's behalf that the convictions in the first and second trials were set aside because of the failure of the prosecution to present sufficient evidence to establish his guilt of the crimes charged. ² It is well settled that the double jeopardy clause of the Federal Constitution, U.S. Const., amend. 5, prohibits a retrial for the purpose of permitting the prosecution a second opportunity to muster sufficient evidence to convict where it failed to do so at the first trial. ³ Bullington v. Missouri, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981); United States v. DiFrancesco, 449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980); Swisher v. Brady, 438 U.S. 204, 98 S.Ct. 2699, 57 L.Ed.2d 705 (1978); Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); Commonwealth v. Mitchell, 497 Pa. 14, 438 A.2d 596 (1981).

The Double Jeopardy Clause forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding. This is central to the objective of the prohibition against successive trials. The Clause does not allow "the State ... to make repeated attempts to convict an individual for an alleged offense," since "[t]he constitutional prohibition against 'double jeopardy' was designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense." [Footnote omitted; citations omitted.]

Burks v. U.S., supra, 437 U.S. at 11, 98 S.Ct. at 2147, 57 L.Ed.2d at 9-10 (1978).

Despite this well-recognized constitutional policy against successive trials for the same offense, the United States Supreme Court candidly admitted that its prior decisions as to whether an appellate court after a finding of insufficiency in the proof was required to bar retrial could not "be characterized as models of consistency and clarity." Burks v. U.S., supra at 9, 98 S.Ct. at 2146, 57 L.Ed.2d at 8. See, e.g., Forman v. United States, 361 U.S. 416, 80 S.Ct. 481, 4 L.Ed.2d 412 (1960); Yates v. United States, 354 U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356 (1957); Sapir v. United States, 348 U.S. 373, 75 S.Ct. 422, 99 L.Ed. 426 (1955); Bryan v. United States, 338 U.S. 552, 70 S.Ct. 317, 94 L.Ed. 335 (1950). The Burks Court, after recognizing a need to reassess its earlier decisions in this area concluded that double jeopardy precludes a retrial once an appellate court has found the evidence legally insufficient. ⁴ See also Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978).

The Burks Court was careful to limit its holding to instances where the state had failed to sustain its burden of proof and reaffirmed the validity of U.S. v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896) where the reversal is based upon trial error. Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978). It is also clear that the holding in Burks is only applicable where the state has had a "fair opportunity to offer whatever proof it could assemble." Hudson v. Louisiana, 450 U.S. 40, 43, 101 S.Ct. 970, 972, 67 L.Ed.2d 30, 33 (1981) quoting Burks v. U.S., supra 437 U.S. at 16, 98 S.Ct. at 2150, 57 L.Ed.2d at 12. ⁵

The weakness in the argument attempting to equate the Burks analysis to the instant appeal is that the two reversals in this case did not result from a legal determination that the evidence of the Commonwealth was insufficient to sustain the verdicts of guilt returned by the jury. To the contrary, Mr. Vogel has had the benefit of the metamorphosis in the law of this jurisdiction relating to the proper allocation of the burden of proof of the "sanity" of one who commits a criminal act. The element of "a second bite of the apple" is not in this case. Questions relating to the reallocation of burdens of proof have their underpinnings in the constitutional guarantee of due process. See Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975); In Re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); Commonwealth v. Moyer, 466 Pa. 464, 353 A.2d 447 (1976); Commonwealth v. McNeil, 461 Pa. 709, 337 A.2d 840 (1975). This basis for appellate intervention must be distinguished from a finding that the inadequacy of the proof establishes that the matter should never have been submitted to a jury for a determination. Tibbs v. Florida, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982).

Mr. Vogel was convicted in his first trial of two counts of murder in the second degree and of armed robbery. On appeal to this Court the judgments of sentence were reversed and a new trial awarded. Commonwealth v. Vogel [Vogel I] 440 Pa. 1, 268 A.2d 89 (1970). The order in that appeal was supported by five members of the Court; two members dissented and would have affirmed the judgments of sentence. See Commonwealth Vogel, supra at 21, 268 A.2d at 96 (Bell, C.J., dissenting, joined by Eagen, J.). Of the members joining the order of reversal, only one member, Mr. Justice, now Chief Justice, Roberts premised his conclusion upon a finding of evidentiary insufficiency. See Commonwealth v. Vogel, supra at 14, 268 A.2d at 90 (Roberts, J., concurring in Order Per Curiam ).

Mr. Justice, later Chief Justice, Jones joined by Mr. Justice, later Chief Justice, O'Brien expressly concluded that the Commonwealth's evidence had in fact established the elements of the offenses. See Commonwealth v. Vogel, supra at 10-11, 268 A.2d at 94 (Jones, J., concurring in Order Per Curiam, joined by O'Brien, J.). Adopting the view that sanity was not necessarily an element of the crime, but may relate solely to whether the accused possessed sufficient awareness to be deemed criminally responsible for the conduct, these Justices reached the conclusion that the presumption of sanity alone did not overcome direct and uncontradicted evidence of insanity.

As indicated by the facts in the instant case, legal insanity in this Commonwealth may or may not bear on the question of intent. The prosecution presented ample evidence that Vogel planned his crime, from which evidence intention might be inferred, but no evidence that Vogel could appreciate the character of his actions. An individual may intentionally kill someone, with malice aforethought, but be incapable of distinguishing right from wrong in so doing. Under such circumstances, the elements of murder would be met (Commonwealth v. Kirkland, 413 Pa. 48, 195 A.2d 338 (1963)), but the individual's legal insanity would properly necessitate a verdict of not guilty by reason of insanity. This is the type of situation which is demonstrated on the face of the instant record.

Commonwealth v. Vogel, supra at 10-11, 268 A.2d at 94.

The distinction between a determination of an evidentiary insufficiency in proving an element of the crime and a decision as to the appropriate allocation of the burdens of persuasion and proof to flow from an evidentiary presumption was further reflected in the following observations of Mr. Justice Jones:

I cannot accept the premise that sanity is necessarily an element of every crime. To the contrary, I view insanity as being the basis upon which society offers treatment rather than punishment to one who has committed a crime. [Citation omitted.] Although every element of a crime can be established beyond a reasonable doubt, including the element of intent to do the act, insanity may still be asserted as a defense in Pennsylvania.

Commonwealth v. Vogel, supra at 11, 268 A.2d at 94 (emphasis in original).

The opinion of Mr. Justice Pomeroy also clearly indicates that his joinder in...