Com. v. Zimmerman

• Decision Date: 26 January 1982
• Citation: 445 A.2d 92,498 Pa. 112
• Parties: COMMONWEALTH of Pennsylvania v. James ZIMMERMAN, Appellant.
• Court: Pennsylvania Supreme Court

Page 92

445 A.2d 92

498 Pa. 112

COMMONWEALTH of Pennsylvania v. James ZIMMERMAN, Appellant.

Supreme Court of Pennsylvania.

Argued April 21, 1981.

Decided July 8, 1981.

Reargument Denied Jan. 26, 1982.

Gerald Jay Pomerantz, Philadelphia, Hillel Lewis, Delaware County, for appellant.

David E. Fritchey, Asst. Dist. Atty., Delaware County, for appellee.

Before ROBERTS, NIX, LARSEN, FLAHERTY, KAUFFMAN and WILKINSON, JJ.

OPINION

NIX, Justice.

This is an appeal from a decision by the Delaware County Court of Common Pleas denying appellant's pre-trial motion to bar retrial on the charges of murder of the third degree, voluntary and involuntary manslaughter. ¹ Appellant was arrested December 4, 1978 and charged with the various degrees of criminal homicide, aggravated assault, simple assault, possession of firearms without a license, possession of instruments of crime and criminal conspiracy. The charges flow from the shooting death of the victim, Harry Kenny Evans, which occurred on December 1, 1978, outside of the Chadd's Ford Tavern. At trial the jury returned verdicts of not guilty as to murder of the first degree and simple assault, the victim in each instance being the deceased, but was unable to reach a verdict as to the other charges. ²

Appellant filed a petition requesting, inter alia, that the homicide charges be dismissed. ³ Appellant argues that the verdict returned by the original jury precludes a subsequent trial and possible conviction of the remaining degrees of homicide. The underlying question is whether the principle of double jeopardy would permit a retrial for the remaining degrees of homicide where appellant has been found not guilty of committing a simple assault upon the deceased victim.

We note that appellant argues, inter alia, that rules of procedure 1120(d) and (e) ⁴ entitle him to the relief sought. However, the instant interlocutory appeal is pursuant to Commonwealth v. Haefner, 473 Pa. 154, 373 A.2d 1094 (1977) and Commonwealth v. Bolden, 472 Pa. 602, 373 A.2d 90 (1977), see n. 1, which limits the scope of the review to constitutional questions relating to double jeopardy. Commonwealth v. Tabb, 491 Pa. 372, n. 2, 421 A.2d 183, n. 2 (1980). Our consideration here will be confined to those concerns which fall within the purview of the constitutionally guaranteed double jeopardy protections and will not affect any additional protection that arguably these rules may have conferred.

We have had occasion to express the essence of the double jeopardy protection as follows:

It has been stated that "the principle of double jeopardy serves not one, but three distinct interests. In ascending degrees of importance, they are: (1) an interest in finality which may be overcome relatively easily; (2) an interest in avoiding double punishment which comes armed with a presumption in the defendant's favor; and (3) an interest in nullification--viz., an interest in allowing the system to acquit against the evidence--which is absolute. These three interests are loosely connected to the notion of ending litigation, and it is this connection that provides textual justification for bringing them under the common 'rubic' of double jeopardy."

Commonwealth v. Tabb, supra at 379, 421 A.2d at 187 (quoting from Weston and Drubel, "Towards a General Theory of Double Jeopardy", The Supreme Court Review 1978, p. 81).

Here we are concerned with that interest of double jeopardy which has been given the highest order of priority. The question presented is whether the allowance of a retrial on the charges in question erodes the original factfinders' absolute right to make the final factual determination on the charges submitted to them. It is, therefore, encumbent upon us to determine whether the exposure of appellant to the charges the Commonwealth now seeks to proceed to trial, offers to a new tribunal the opportunity to overturn the decision reached by the original finders of fact. If the original decision is not disturbed by the finding of the subsequent tribunal, this interest of double jeopardy is not offended. If the original decision has foreclosed the question to be decided by the retrial then the retrial cannot be permitted.

In the instant case the victim, Harry Kenny Evans, and appellant, James Zimmerman, were drinking at the Chadd's Ford Tavern. The meeting eventually led to a fight between the two. Others became involved and the matter quickly escalated into a "barroom brawl." Harry Evans, the victim, went out to the parking lot with appellant following. A shot was heard by those inside the bar and rushing out they saw Zimmerman leaving in a white Cadillac. Harry Evans was lying on the ground face down with a gun wound in his lower back.

The assault information to which the jury returned a verdict of not guilty provided:

The District Attorney of Delaware County by this information charges that, on (or about) December 1, 1978, in said County, JAMES ALLEN ZIMMERMAN defendant, did unlawfully attempt to cause bodily injury to HARRY EVANS.

2. That, on the same day and year, in Delaware County, ABOVE NAMED DEFENDANT, unlawfully did intentionally, knowingly or recklessly cause bodily injury to HARRY EVANS.

3. That, on the same day and year, in Delaware County, ABOVE NAMED DEFENDANT, unlawfully and negligently did cause bodily injury to HARRY EVANS, with a deadly weapon, to wit: PISTOL.

4. That, on the same day and year, in Delaware County, ABOVE NAMED DEFENDANT, unlawfully did attempt by physical menace to put HARRY EVANS, in fear of imminent serious bodily injury contrary to the Act of the General Assembly in such case made and provided, and against the peace and dignity of the Commonwealth of Pennsylvania.

The issue as framed is whether the acquittal on the aforementioned information precludes a further consideration as to whether appellant may be determined criminally responsible for the death of Harry Evans. There is no question that Harry Evans' premature death resulted from an assault which occurred on December 1, 1978. It is also indisputable that the original jury found that appellant did not attempt to cause, or intentionally, knowingly or recklessly cause, bodily injury to Harry Evans on December 1, 1978.

The court below sought to skirt the problem by using the Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970) analysis. In that opinion the Court sought to determine what decisions were in fact made by the first jury passing upon the facts. Thus the question was reduced to a determination of what issues were decided by the initial factfinder in reaching its result. In Ashe, where the question was one of issue preclusion (also referred to as collateral estoppel) the Court fashioned the rule that collateral estoppel bars a redetermination of those issues necessarily determined between the parties in the first proceedings. Commonwealth v. Hude, 492 Pa. 600, 425 A.2d 313 (1980). Following this analysis the court below concluded that the acquittal of the assault charge was limited to a determination that appellant was not guilty of the confrontation with the victim that occurred inside the establishment. From this premise the court reasoned that the acquittal of the assault charge inside the tavern would not preclude a second jury's finding that appellant was responsible for the homicide that occurred thereafter outside of the tavern.

The fallacy of this analysis is that the Ashe approach is required where there is a general verdict and the question to be answered is which issues were necessarily decided in defendant's favor by the first jury in reaching that verdict. Where, as here, a verdict was returned to a specific information such an analysis is not...