Com. v. Wallace

• Decision Date: 12 December 1996
• Citation: 455 Pa.Super. 45,686 A.2d 1337
• Parties: COMMONWEALTH of Pennsylvania v. Larry WALLACE, Appellee.
• Court: Pennsylvania Superior Court

Page 1337

686 A.2d 1337

455 Pa.Super. 45

COMMONWEALTH of Pennsylvania v. Larry WALLACE, Appellee.

Superior Court of Pennsylvania.

Argued May 22, 1996.

Filed Dec. 12, 1996.

Robert A. Willig, Assistant District Attorney, Pittsburgh, for Commonwealth, appellant.

Christine M. Guthrie, Pittsburgh, for appellee.

Before CIRILLO, DEL SOLE and OLSZEWSKI, JJ.

DEL SOLE, Judge:

This is an appeal by the Commonwealth from a trial court order which found Appellee "Not Guilty" of one count of disorderly conduct "upon complaint's [sic] failure to appear."

Appellee was convicted before a magistrate of disorderly conduct and appealed this conviction to the Court of Common Pleas. A trial de novo was scheduled for October 10, 1995 at which time the prosecutor advised the court that Officer Cavanaugh, who was involved in the alleged altercation with Appellee, was unavailable because of a car accident. The prosecutor requested a postponement to have Officer Cavanaugh present and noted that he was a "necessary" witness. The court remarked on the fact that Appellee as well as a number of other witnesses were present and prepared to proceed, denied the Commonwealth's request and declared Appellee "not guilty." The prosecutor stated that the Commonwealth would elect to proceed with the police officer who was in attendance, at which time the following dialogue occurred:

THE COURT: You said that other witness is essential, indispensable.

Ms. Cassidy: This police officer was also there and also made most of the observations.

I can probably prove my case without the other guy.

Mr. Patberg: Then it is a misrepresentation to the court that this witness is indispensable. That is what she said--that is what is on the record, that this witness is indispensable and we have to have them. Now they say maybe we don't have to have them. This guy is here and let us go ahead.

Ms. Cassidy: Judge, both police officers were at the scene of this incident. The Commonwealth's case would be a thousand times stronger if we had the other police officer and prove this case beyond a reasonable doubt. In my professional opinion I might be able to prove this case with this sole police officer. I don't know what the court will decide. I have a duty--

THE COURT: What officer?

Ms. Cassidy: This officer right here.

THE COURT: Just a minute now. Which officer filed the citation?

Ms. Cassidy: It was filed by complaint.

The defendant: Officer Cavanaugh.

THE COURT: He is not the officer present.

* * * * * * * *

Mr. Patberg: Your Honor, this is a criminal complaint. This started as a resisting arrest. Ninety percent of it was thrown out. It was a summary on a disorderly. That is all we are here for. The representation by the Commonwealth's attorney that this witness is indispensable to their case I think is--

Ms. Cassidy: Judge, it is my decision as a district attorney. If I need two witnesses to proceed forward, then that is my decision. If I ask the court and I do not have one of them, I have a duty as a district attorney to proceed on the remaining witness that I have. Just because I would prefer to have two witnesses, it is not for the court to decide whether my case is fatal or the defense attorney to say that my case is fatally flawed.

THE COURT: Initially you stated to the court that it was necessary to have this witness present and that we cannot proceed without him.

Ms. Cassidy: That's correct.

THE COURT: All right. So I accepted that.

Ms. Cassidy: My first preference is to have that other witness here who is necessary to the Commonwealth's case. However, my only choice is to proceed--

THE COURT: If he is necessary to the Commonwealth's case then this other officer won't be able to help you.

Ms. Cassidy: He was at the scene also. He saw what happened.

THE COURT: I am going to take your first word on this matter. I'm sorry for this officer who has to leave under the circumstances. I find the defendant not guilty as I first indicated.

Despite the Commonwealth's attempt to proceed, the court once again found Appellee not guilty, without receiving any evidence.

The Commonwealth now takes this appeal in which it asks whether the trial court erred in finding Appellee not guilty without receiving any evidence and whether it was an abuse of discretion for the court to refuse the Commonwealth's request for a continuance. Appellee argues that we cannot consider these matters and must dismiss this appeal because the double jeopardy clause of the Fifth Amendment to the United States Constitution bars his retrial once he has been acquitted.

We cannot accept Appellee's argument that a not-guilty finding entered without the receipt of evidence, and despite the Commonwealth's repeated attempts to bring forth such evidence, implicates double jeopardy.

In instances where a defendant appeals a summary conviction, and the Commonwealth fails to produce a police officer as a witness at the time set for a de novo hearing, the appropriate action for the court to take is to dismiss the charges. Reprosecution on charges which have been dismissed due to the failure of prosecution witnesses to appear is not barred by double jeopardy considerations. Commonwealth v. Adams, 349 Pa.Super. 200, 502 A.2d 1345 (1986). This is so because in such instances there has been no factual determination of guilt or innocence made by the court. In contrast, where a determination of guilt or innocence is made by the court, it is deciding the strength or relative weakness of the evidence presented. In this case no evidence was heard by the court. Thus, although mislabeled a not-guilty determination, the court, in fact, sought to dismiss the charges for failure of the Commonwealth to produce a witness.

The error which occurred in this case, in mislabeling the disposition, is compounded by the fact that the Commonwealth was ready to present a witness to the court, whose testimony the court refused. As the record shows, the Commonwealth was unable to produce a critical witness, thus it sought a continuance. When it was apparent that the court would not grant a continuance, the Commonwealth was prepared to present its case with another witness who was at the scene. Although its case may not have been as strong with this fall-back witness, it was nevertheless the Commonwealth's choice to go forward. The court's refusal to hear such evidence and its decision based upon the fact that the Commonwealth did not produce a witness, certainly cannot be said to be a ruling on the merits which should implicate double jeopardy concerns.

The underlying purpose of the constitutional prohibition against 'double jeopardy' is to prevent an individual from being subjected to trial and possible conviction more than once for an alleged offense. Commonwealth v. Block, 322 Pa.Super. 340, 469 A.2d 650 (1983). The Commonwealth in this case was not given even one chance to convict Appellee.

It would be wrong for this court not to look beyond the words "not-guilty" and see that, in this case, such a ruling was erroneously entered. It would be unjust to not examine the circumstances which caused the ruling to be entered and to evaluate the matter for what it is, instead of what it appears to be. The decision by the trial court in this case based upon the Commonwealth's failure to produce a witness, can, at most, be a dismissal, which would allow the charges to be refiled. Commonwealth v. Adams, supra. However, even such a decision would have been inappropriate here since the Commonwealth was ready and willing to proceed to trial.

In conclusion, because no trial occurred in this case, jeopardy did not attach. Further it was clearly an abuse of discretion for the court not to allow the Commonwealth to proceed with the presentation of its case, or to allow for a continuance.

The verdict of not guilty is vacated and the matter remanded to the trial court for a trial on the merits.

CIRILLO, J., files a dissenting opinion.

CIRILLO, President Judge Emeritus, dissenting:

Because I believe the double jeopardy clause of the Fifth Amendment to the United States Constitution shields this defendant from an appeal of the trial court's order adjudicating him not guilty, I must respectfully dissent.

Before this court can consider the merits of the Commonwealth's issues, it is our duty to first address appellee Wallace's claim that the verdict of acquittal bars the Commonwealth's right to appeal and terminates any subsequent prosecution under the principles of double jeopardy. The Commonwealth argues, in response, that there is no acquittal or functional equivalent of an acquittal because the trial court, as factfinder, had reached the verdict without hearing any evidence.

"It has long been well-settled that the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution prevents the prosecution from appealing a verdict of acquittal." Commonwealth v. Maurizio, 496 Pa. 584, 586, 437 A.2d 1195, 1195-96 (1981). "The [prosecution] may not appeal from a verdict of 'not guilty' entered by the trial court in a criminal prosecution and this is so whether the prosecution be by indictment or by summary proceeding." Borough of West Chester v. Lal, 493 Pa. 387, 392, 426 A.2d 603, 605 (1981) (quoting Commonwealth v. Ray, 448 Pa. 307, 311, 292 A.2d 410, 413 (1972)). " '[T]he factfinder in a criminal case has been traditionally permitted to enter an unassailable but unreasonable verdict of "not guilty".' " Commonwealth v. Tillman, 501 Pa. 395, 397, 461 A.2d 795, 796 (1983) (quoting Jackson v. Virginia, 443 U.S. 307, 317 n. 10, 99 S.Ct. 2781, 2788 n. 10, 61 L.Ed.2d 560, 572 n. 10 (1979)). "This rule is such a fundamental precept of double jeopardy jurisprudence that it has been explicitly extended to situations where an acquittal is based upon an "egregiously erroneous foundation." Borough of West Chester v. Lal, supra, 493 Pa. at 392, 426 A.2d at 605 (quoting Sanabria v. United States, 437 U.S. 54, 64, 98 S.Ct. 2170,...