Commonwealth v. Flaherty
| Decision Date | 19 December 1979 |
| Citation | 273 Pa.Super. 167,417 A.2d 221 |
| Parties | COMMONWEALTH of Pennsylvania v. Thomas J. FLAHERTY, Appellant. |
| Court | Pennsylvania Superior Court |
Submitted Oct. 26, 1978.
John H. Armstrong, Indiana, for appellant.
Walter S. Vuckovich, Dist. Atty., Indiana, for Commonwealth appellee.
Before VAN der VOORT, SPAETH and MONTGOMERY, JJ.
Appellant was convicted after a trial by jury of rape and burglary. On this appeal he argues that the evidence was insufficient to support his convictions; that his conviction of rape was against the weight of the evidence; and that the lower court erred in refusing to affirm a point for charge.
Appellant's argument that the evidence was insufficient for the jury to convict him of rape is frivolous. Appellant admitted at trial that he had sexual intercourse with the victim at the time and place charged in the indictment. Although appellant maintained that the victim consented to intercourse, the jury was entitled to believe the victim's testimony that she did not consent. [1] Whether the Commonwealth's evidence was sufficient to convict appellant of burglary, however, presents considerable problems. Appellant argues that the evidence was insufficient to show that he entered the victim's dormitory room with the intent to commit a crime therein. See 18 Pa.C.S.A. § 3502 (1973). At most, appellant argues, the evidence showed that he formed the intent to rape the victim only after he entered the room. For the reasons below, we also reject this argument.
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When an appellate court holds that the evidence is insufficient to support a conviction, it says to those who were members of the jury: This is the most serious intrusion into the trial process that an appellate court can make, for the result of it is that because of the prohibition against double jeopardy, the defendant must be ordered discharged and cannot be tried again. See Commonwealth v. Caye, 465 Pa. 98, 384 A.2d 136 (1975); Commonwealth v. Benaglio, 254 Pa.Super. 100 385 A.2d 544 (1978).
Given so serious a consequence both from the prosecutor's point of view if the defendant is discharged, and from the defendant's point of view if despite what he considers insufficient evidence, he is held it is important to achieve a proper balance between the appellate court and the jury. The court must not defer so much to the jury's verdict as to abdicate its responsibility. But neither must it intrude too far into the jury's deliberations. If this balance is to be achieved, the court must review the evidence according to the rule appropriate to the particular case. Generally stated, the cases are of three sorts.
The first sort of case is where the jury was presented with no evidence of an essential element of the offense charged. A garden variety of this sort of case is where the charge is possession of a controlled substance but there has been no evidence that the defendant possessed the substance. See Cmwlth. v. Chenet, 473 Pa. 181, 373 A.2d 1107 (1977); Cmwlth. v. Wisor, 466 Pa. 527, 353 A.2d 817 (1976). In such a case the only question the court must decide is whether, as a matter of law, proof of a certain fact for example, possession was essential to conviction. By deciding this question, the court in no way intrudes into the jury's deliberations. The jury could only have deliberated about the evidence presented to it. If there was no evidence that the defendant possessed the substance, the jury could hardly have discussed whether or not he did possess it. The jury's verdict therefore represents a statement that the defendant is guilty even without evidence of possession. Since that statement is wrong as a matter of law, the court abdicates its responsibility if it does not vacate the sentence and order the defendant discharged.
The second sort of case is where the jury was presented with conflicting direct evidence of a fact essential to conviction. Suppose, for example, that a witness testified that he saw the defendant with the controlled substance in his hand, but another witness testified that the defendant was somewhere else. For the appellate court to say that the evidence was insufficient to support a conviction because the jury should have had a reasonable doubt about whether the defendant possessed the substance will almost certainly represent an unwarranted intrusion into the jury's deliberations. Since the jury saw and heard the witnesses, it was in a far better position than the appellate court to decide that the testimony of the prosecution's witness should be believed and that of the alibi witness should not be believed. To be sure, a case may be supposed where the court's sense of justice will be so offended that it will decide to intrude anyway. Consider the law school hypothetical, in which the prosecution's witness has been convicted of any number of heinous offenses, and the alibi witnesses are seven bishops. See also Cmwlth. v. Bennett, 224 Pa.Super. 238, 303 A.2d 220 (1973). In practice, however, the court will be so conscious of its vulnerability, because it did not see and hear the witnesses, that in the end it will almost always decide not to intrude, and despite its misgivings, will leave the case as the jury decided it. See e. g., People v. Eisenberg, 22 N.Y.2d 99, 291 N.Y.S.2d 318, 238 N.E.2d 719 (1968), where, over a vigorous dissent, the majority of the Court of Appeals of New York let stand a conviction supported by oral evidence that the defendant persuasively argued had been contradicted by a television tape depicting the incident at issue. This may not be so true on the civil side, where the consequence of intrusion is a new trial, at which the parties will have another chance, but it is true on the criminal side.
The third sort of case is where the fact essential to conviction was not a fact that was seen ("The defendant had it in his hand"), or heard, or otherwise physically experienced, but rather a fact the existence of which the jury had to infer. The present case is such a case. The fact in question, essential to the conviction of appellant for burglary, is whether appellant entered the victim's room with the intention to rape her. No one testified that he heard appellant say that was his intent (to the contrary, appellant testified that when he entered the victim's room, his intent was only to spend the night rather than drive home).
It is in this third sort of case that an appellate court experiences the greatest difficulty in achieving a proper balance between itself and the jury. To infer the existence of a fact is not a matter of observation ("I don't think that witness looks as though he's telling the truth") but a matter of reasoning (if A is true, then B is true). Thus, when the court asks whether the evidence is sufficient to support an inference, it finds itself comparing its powers of reasoning with the jury's and the court is likely to believe, perhaps quite unconsciously, that while its powers of observation are inferior to the jury's, its powers of reasoning are superior.
Having made this comparison, the court may go on to say that when the jury inferred that the defendant had a particular intent at a particular time, the jury was not reasoning from the evidence but was engaged in "surmise," or "speculation," or "conjecture," none of which is sufficient to support a conviction. See Commonwealth v. Dolfi, 483 Pa. 266, 396 A.2d 635 (1979); Commonwealth v. Larkins, 235 Pa.Super. 19, 341 A.2d 204 (1975).
To be sure, the court may be right. The point is, however, that the very nature of the case makes it easy for the court to be wrong. When the court is comparing its powers of observation with the jury's, it may easily be too deferential to the jury. (See the dissent in People v. Eisenberg, supra.) When the court is comparing its powers of reasoning with the jury's, it may easily be too self-confident.
To avoid being too self-confident, the court must remind itself that the strength of a line of reasoning depends upon the strength of the observed facts from which the reasoning proceeds. If the record contains evidence of only facts A and B, the court, after crediting the jury with powers of reasoning as strong as its own, may nevertheless feel secure in holding that an inference of intent is so tenuous as to amount to no more than surmise. More likely than not, however, the record will not be so simple but will instead contain conflicting evidence from which the jury might have found facts A and B, but also might have found facts Y and Z. Then the court must ask whether there is some combination of facts A, B, Y, and Z that if found, would represent a strong enough base to support an inference of intent. If there is, the court must uphold the verdict. Only if the court concludes that the jury could not have found a combination of facts strong enough to support an inference of intent may it hold the evidence insufficient to support the verdict.
Or, to state the rule another way: The court must ask what line of reasoning the jury might have followed to reach the inference its verdict shows it made. Then the court must ask whether the jury could have found some combination of facts to support this supposed line of reasoning. If the jury could have, the court must uphold the verdict. Only if the jury could not have, may the court hold the evidence insufficient to support the verdict. [417 A.2d 224] -2-
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From the evidence presented in the Commonwealth's case-in-chief the jury might have found the following facts.
Appellant and the victim were college...
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