Com. v. Williams

• Decision Date: 21 October 1986
• Citation: 516 A.2d 352,357 Pa.Super. 462
• Parties: COMMONWEALTH of Pennsylvania v. John WILLIAMS, Appellant.
• Court: Pennsylvania Superior Court

Page 352

516 A.2d 352

357 Pa.Super. 462

COMMONWEALTH of Pennsylvania v. John WILLIAMS, Appellant.

Superior Court of Pennsylvania.

Argued March 26, 1986.

Filed Aug. 26, 1986.

Reargument Denied Oct. 21, 1986.

[357 Pa.Super. 463] Dennis I. Turner, Pittsburgh, for appellant.

Annette M. Hutchinson, Asst. Dist. Atty., New Castle, for Com., appellee.

Before ROWLEY, WIEAND and DEL SOLE, JJ.

OPINION OF THE COURT

ROWLEY, Judge:

This is an appeal from an Order denying appellant's Motion for Judgment of Acquittal. Appellant sought acquittal on the ground that the evidence presented at his first two trials, each of which ended in a hung jury, was insufficient. He asserts that we have jurisdiction of his appeal by virtue of Pa.R.A.P. 311(a)(5) because the denial of his motion to acquit "is tantamount to the grant of a new trial for the Commonwealth."

Appellant presents two issues for review:

1. Did the trial court err in denying his motion for judgment of acquittal?

2. Does the double jeopardy clause prohibit the Commonwealth from trying appellant a third time?

The record, as certified to us, reveals the following relevant facts. Appellant was charged with rape, burglary, robbery, involuntary deviate sexual intercourse and terroristic threats. He proceeded to a trial by jury. After 8 1/2 hours of deliberations, the jury was unable to reach a verdict and, on March 4, 1985, a mistrial was declared. Appellant was tried a second time before a jury and on May 23, 1985, when the jury was again unable to agree, a mistrial was declared. The trial court's opinion states that both mistrials were declared for manifest necessity. Following the second mistrial, the Commonwealth made clear its intention to proceed to a third trial.

Appellant filed an Omnibus Pre-Trial Motion which alleged, in reference to the first trial only, that the trial court "acted hastily in declaring a mistrial" and that "the double jeopardy clause of the Fifth Amendment of the U.S. Constitution requires dismissal of the instant charges as a mistrial way [sic] declared without manifest necessity." The Omnibus Motion was heard by Judge Sweet. A review of Judge Sweet's order of June 17, 1985 reveals that appellant also sought to present an admittedly untimely Motion for Judgment of Acquittal. By his June 17th order Judge Sweet made two rulings relevant to the present appeal. First, he denied appellant's motion for dismissal on double jeopardy grounds. Second, he determined that because it was obvious that trial counsel "would be found inadequate" for failing to timely file a Motion for Judgment of Acquittal that appellant "be granted ten days to present a proper motion for a directed judgment of acquittal solely because of two successive hung juries."

Appellant next filed a Motion for Judgment of Acquittal, pursuant to Pa.R.Crim.P. 1124(a)(3), in which he alleged that the failure of both juries to reach a verdict demonstrated that the evidence was insufficient to support a conviction. The motion was heard and denied by Judge Caiazza on June 21, 1985. Appellant filed the present appeal from Judge Caiazza's order only.

Before we may consider the merits of appellant's appeal we must first determine whether it is properly before us. Although the Commonwealth does not challenge the appealability of the present order, questions of jurisdiction must be raised by the Court sua sponte. Rohr v. Keystone Insurance Co., 294 Pa.Super. 179, 439 A.2d 809 (1982). The jurisdictional question presented is whether an order denying a Motion for Judgment of Acquittal, on the ground of insufficient evidence, is the subject of an interlocutory appeal as of right under Pa.R.A.P. 311(a)(5).

The rule provides that:

(a) General rule. Except as otherwise prescribed by general rule, an appeal may be taken as of right from:

* * *

* * *

(5) New trials. An order ... in a criminal proceeding awarding a new trial where the defendant claims that the proper disposition of the matter would be an absolute discharge....

The note following the rule states that sub-section (a)(5) is based on Commonwealth v. Gabor, 209 Pa. 201, 58 A. 278 (1904) in which the defendant appealed from an order granting a new trial. The Commonwealth sought to quash the appeal because there was no final judgment. The Supreme Court rejected this argument, stating that: "as the appellant claims to be entitled on the record to an absolute discharge, the order for another trial is so far in the nature of a final judgment that we think it best to consider and determine the appeal on its merits." Id. at 203, 58 A. 278. Similarly, in Commonwealth v. Liddick, 471 Pa. 523, 370 A.2d 729 (1977) the Supreme Court permitted defendant to appeal a post-verdict order granting a new trial but denying a motion in arrest of judgment. The Court rejected the Commonwealth's argument that defendant's appeal should be quashed as interlocutory, finding that Pa.R.A.P. 311(b) (which contained language similar to the present rule) permitted such an appeal and that "[t]o require such a defendant to stand trial again, if the already completed trial demonstrates his innocence, is a needless hardship." Id. at 527 n. 2, 370 A.2d at 731 n. 2 (quoting comment d to § 1.3 of...