Commonwealth v. Constant

• Decision Date: 15 May 2007
• Docket Number: No. 423 WDA 2005.,423 WDA 2005.
• Citation: 925 A.2d 810
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Edward CONSTANT, Appellant.
• Court: Pennsylvania Superior Court

925 A.2d 810

COMMONWEALTH of Pennsylvania, Appellee v. Edward CONSTANT, Appellant.

No. 423 WDA 2005.

Superior Court of Pennsylvania.

Argued December 5, 2007.

Filed May 15, 2007.

David Rudovsky, Philadelphia, for appellant.

Timothy J. Lyon, Asst. Dist. Atty., Pittsburgh, for Com., appellee.

BEFORE: MUSMANNO, BENDER and POPOVICH, JJ.

OPINION BY MUSMANNO, J.:

¶ 1 Edward Constant ("Constant") appeals from the judgment of sentence entered following his conviction of two counts of criminal attempt (homicide), three counts of aggravated assault, and one count of recklessly endangering another person.¹ We affirm.

¶ 2 The trial court summarized the facts underlying the instant appeal as follows:

[O]n May 26, 2002, Mt. Lebanon Police Officers Daniel Rieg and Jeffrey Kite were called to respond to the report of a domestic disturbance at the residence that [Constant] shared with his wife, Susan Constant ["Susan"], at 105 Piper Drive in Mt. Lebanon, Pennsylvania. They arrived in separate vehicles and Officer Kite, the first officer to arrive, knocked on the front door. [Constant] answered the door and, according to Officer Kite, was angry, belligerent and hostile. Officer Rieg soon arrived and [Constant] also began to berate him. [Constant] referred to the officers as "Nazi bastards," told them that everything in the house was fine and slammed the door in their faces. Because the call was for a domestic disturbance and they had not talked to [Susan], and in light of [Constant's] obvious angry disposition, the officers again knocked on the door. They were greeted this time by [Susan,] who also appeared angry and told them that they needed to leave her and her husband alone. She attempted to again shut the door, but before she could do so, [Constant] reappeared behind his wife, still in an angry and agitated state, and grabbed his wife, causing her to fall to the floor. When she got back up, she again attempted to shut the door, but was prevented from doing so by Officer Rieg, who placed his foot in the doorway. After [Susan] fell[,] [Constant] briefly left the front hallway but soon returned, carrying a .44 caliber magnum revolver. He pointed the weapon directly at Officer Rieg and pulled the trigger. The bullet struck the officer in the chest, propelling him back through the doorway, onto the front porch and over the railing of the front porch into the front yard. Officer Rieg's protective vest prevented the bullet from entering his body.

After the shot, Officer Kite left the porch and attempted to find cover. He heard [Constant] fire again. Officer Rieg, who was now laying in the front yard, saw [Constant] point the gun towards him again and fire several more times, missing him. As [Constant] came off the porch and approached him, Officer Rieg was able to pull his own weapon and fire twelve rounds towards [Constant]. One of his shots struck [Constant] in the buttocks, causing him to fall to the ground. Other officers arrived and were able to subdue [Constant]. As they were doing so, [Constant] continued to resist and referred to the officers as "Nazi bastards." The handgun that was seized from [Constant] contained six spent cartridges, indicating that it had been fired six times.

Trial Court Opinion, 1/20/06, at 4-5.

¶ 3 A jury found Constant guilty of the above-described charges after a trial before the Honorable David R. Cashman. However, the trial court granted Constant a new trial based upon improper comments from a member of Judge Cashman's staff to the jury. Prior to the new trial, Constant filed a Motion to dismiss, asserting that a new trial was barred by the United States and Pennsylvania Constitutions, as well as by 18 Pa.C.S.A. § 109. Constant also filed a Motion to recuse Judge Cashman. Judge Cashman denied the Motion to dismiss, but ultimately granted the Motion to recuse. The case was then assigned to the Honorable Jeffrey A. Manning for trial.

¶ 4 At the conclusion of the second trial, the jury again convicted Constant of the above-described offenses. At Count I (criminal attempt), the trial court sentenced Constant to a prison term of 96 to 192 months. At Count II (criminal attempt), the trial court imposed a consecutive prison term of 78 to 156 months. At Count III (aggravated assault), the trial court imposed a probation term of 10 years, to be served consecutive to Constant's sentence at Count II. At Count IV (aggravated assault), the trial court imposed another ten year term of probation, to be served consecutive to the sentence at Count II, but concurrent to Constant's sentence at Count III. The trial court imposed no further penalties for Constant's remaining convictions. Thereafter, Constant filed the instant timely appeal.

¶ 5 Constant presents the following claims for our review:

1. Whether the trial court erred in denying [Constant's] Motion to Dismiss based on double jeopardy principles and whether the court erred in failing to recuse itself from consideration of this Motion[?]

2. Whether the trial court denied [Constant] his constitutional right to a public trial when it precluded [Susan] from attending jury selection[?]

3. Whether the trial court erred in its evidentiary rulings by: (a) admitting evidence of [Constant's] alleged assault on [Susan] after [Constant] had been acquitted of that charge at his first trial; (b) denying admission of evidence of the complainant's bias; and (c) admitting evidence of unrelated prior bad acts[?]

4. Whether the trial court erred in precluding evidence, including expert testimony, of [Constant's] level of intoxication and in instructing the jury that [Constant] could be convicted of the intentional crime of attempted murder even if [Constant] never had the conscious intent to kill[?]

5. Whether the trial court erred by failing to instruct the jury[] (a) that it could consider the evidence of [Constant's] character for truthfulness in assessing his credibility; (b) that the defense of others was applicable to this case; and (c) that assault by physical menace was a lesser offense for which [Constant] could be convicted[?]

Brief of Appellant at 5. We will address these claims in order.

¶ 6 Constant first claims that the trial court improperly denied his Motion to dismiss prosecution based upon the federal and state constitutional protections against double jeopardy. Constant claims that a member of Judge Cashman's staff engaged in impermissible contact with the deliberating jury, "with the clear intent to persuade the jury to convict [Constant]." Id. at 15. On this basis, Constant asserts that the constitutional protection against double jeopardy bars a retrial. We disagree.

¶ 7 The Double Jeopardy Clause of the Fifth Amendment commands that "no person shall ... be subject for the same offence to be twice put in jeopardy of life or limb." Commonwealth v. McGee, 560 Pa. 324, 744 A.2d 754, 756 (2000) (quoting U.S. Const. Amend. V). Under this Clause, once a defendant is placed in jeopardy for an offense, and jeopardy terminates with respect to that offense, the defendant may neither be tried nor punished a second time for the same offense. United States v. Dixon, 509 U.S. 688, 696, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993). The Pennsylvania Supreme Court has recognized that "the corresponding proscription contained in the Pennsylvania Constitution, Pa. Const. art. 1, § 10, `involves the same meaning, purpose, and end[]'; thus, it has generally been construed as coextensive with its federal counterpart." Id. at 756 n. 2 (quoting Commonwealth v. McCane, 517 Pa. 489, 539 A.2d 340, 346 n. 5 (1988)).

¶ 8 In this case, Constant filed a Motion for a new trial, which the trial court granted, based upon the conduct of the trial judge's tipstaff. "It is firmly established that a defendant who has been convicted and upon his own motion secures a new trial may not plead double jeopardy on his second trial." Commonwealth v. Thomas, 448 Pa. 42, 292 A.2d 352, 355 (1972) (citing Commonwealth v. Melton, 406 Pa. 343, 178 A.2d 728 (1962) and Commonwealth ex rel. Patrick v. Banmiller, 398 Pa. 163, 157 A.2d 214 (1960)); see Commonwealth v. Einhorn, 911 A.2d 960, 969 (Pa.Super.2006) (recognizing that because the appellant's petition for a new trial had been granted, the appellant waived his double jeopardy claim).

¶ 9 Constant asserts, however, that the double jeopardy clause will bar a retrial where prosecutorial or judicial overreaching "was intended to prejudice the defendant and thereby deny him a fair trial." Brief of Appellant at 14 (quoting Commonwealth v. Smith, 532 Pa. 177, 615 A.2d 321, 325 (1992) and Commonwealth v. Martorano, 559 Pa. 533, 741 A.2d 1221, 1223 (1999)). In Smith, the Pennsylvania Supreme Court held that the prosecutor's misconduct "had constitutional implications under the double jeopardy clause which prohibit retrial." Smith, 615 A.2d at 321-22. The defendant in Smith had been accused of murder. Id. Following his direct appeal, the defendant discovered that the prosecutor had withheld information regarding a favorable sentencing recommendation given to the prosecution's chief witness and that the prosecution had knowingly withheld exculpatory physical evidence. Id. at 323. The Pennsylvania Supreme Court held that the double jeopardy clause prohibits retrial "when the conduct of the prosecutor is intentionally undertaken to prejudice the defendant to the point of the denial of a fair trial." Id. at 325. On this basis, the Supreme Court reversed the order of the trial court, which had denied the defendant's motion to dismiss, and discharged the defendant.

¶ 10 In Martorano, the Pennsylvania Supreme Court amplified the Smith standard and held that double jeopardy barred retrial of the defendant where the prosecutor committed misconduct including, "blatantly disregarding the trial court's evidentiary rulings, disparaging the integrity of the trial court in the front of the jury, and repeatedly alluding to evidence that the...