Commonwealth v. Hallman

• Decision Date: 29 May 2013
• Citation: 67 A.3d 1256,2013 PA Super 133
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Vincent Wesley HALLMAN, Appellant.
• Court: Pennsylvania Superior Court

67 A.3d 1256

2013 PA Super 133

COMMONWEALTH of Pennsylvania, Appellee

v.Vincent Wesley HALLMAN, Appellant.

Superior Court of Pennsylvania.

Submitted Jan. 16, 2013.

Filed May 29, 2013.

James M. McClure, Lewiston, for appellant.

Gregory A. Jackson, Assistant District Attorney, Huntingdon, for appellee.

BEFORE: BOWES, GANTMAN and OLSON, JJ.

OPINION BY OLSON, J.:

Appellant, Vincent Wesley Hallman, appeals from the order entered on May 23, 2012. After careful consideration, we affirm.

Appellant, an inmate at the State Correctional Institute in Huntingdon, Pennsylvania, was accused of assaulting a corrections officer while the officer was performing his duties. As a result, the Commonwealth charged Appellant with a number of crimes, including aggravated assault under 18 Pa.C.S.A. § 2702(a)(2) and aggravated assault under 18 Pa.C.S.A. § 2702(a)(3). In relevant part, these crimes are defined as follows:

(a) Offense defined.—A person is guilty of aggravated assault if he:

...

(2) attempts to cause or intentionally, knowingly or recklessly causes serious bodily injury to any of the officers, agents, employees or other persons enumerated in subsection (c) or to an employee of an agency, company or other entity engaged in public transportation, while in the performance of duty;

(3) attempts to cause or intentionally or knowingly causes bodily injury to any of the officers, agents, employees or other persons enumerated in subsection (c), in the performance of duty[.] ...

(c) Officers, employees, etc., enumerated.—The officers, agents, employees and other persons referred to in subsection (a) shall be as follows:

...

(9) Officer or employee of a correctional institution, county jail or prison....

18 Pa.C.S.A. § 2702.

On March 17, 2011, Appellant proceeded to a jury trial on the two aggravated assault charges. During the trial, the corrections officer testified that, on the night of the assault, he directed Appellant to sit in a particular area of the prison. N.T. Trial, 3/17/11, at 30. The corrections officer testified that Appellant refused the order and then made a threatening gesture to the officer. Id. at 30–31. When the officer attempted to restrain Appellant, Appellant threw multiple punches at the officer—striking the officer's “chin, jaw, chest, and ... left ribs.” Id. at 36. Moreover, the officer testified that Appellant struck him with such force that Appellant broke one of the officer's ribs. Id. at 37–38. The rib injury, the officer testified, made it “difficult for [him] to breathe,” caused him to suffer pain that—on a scale of one to ten—was a seven or an eight, and required him to miss three months of work to heal. Id. at 37–39, 49, and 51.

Following the presentation of evidence, the trial court instructed the jury on both counts of aggravated assault. N.T. Trial, 3/17/11, at 130–135. Moreover, the trial court instructed the jury on the procedures it should follow in deliberating and rendering a verdict. As the trial court declared:

Now, ladies and gentlemen, we are to the point where I discuss with you the crimes. And strange as it may seem, you will be considering, when you retire, two counts of the crime of aggravated assault. So that it is clear, this defendant can only be found guilty of one of the two or not guilty of both [counts].

...

Your first duty will be to consider the crime of aggravated assault with respect to the infliction or the attempt to inflict serious bodily injury. If you were to conclude that the Commonwealth has not established beyond a reasonable doubt that crime, then you would turn your attention to Count [II]. And as I pointed out to you, Count [II] alleges that the defendant attempted to cause or that he actually caused bodily injury to the corrections officer.

Id. at 130 and 134 (emphasis added).

The above instruction is generally known as an “acquittal-first progression charge” and, although we will explain this type of charge below, we note that our Court has specifically approved the use of such an instruction. See Commonwealth v. Hart, 388 Pa.Super. 484, 565 A.2d 1212, 1216–1217 (1989); Commonwealth v. Loach, 421 Pa.Super. 527, 618 A.2d 463, 469 (1992) ( en banc ). Further, neither the Commonwealth nor Appellant objected to the trial court's instruction. Certainly, after the trial court finished instructing the jury, the trial court asked: “[n]ow does either counsel want to bring to my attention any errors?” Id. at 138. Both counsel specifically responded “No, Your Honor.” ¹Id.

The trial court then provided the jury with the following verdict slip:

AND NOW, this 17th day of March, A.D., 2011, we the jury impaneled in the above captioned case find as follows:

COUNT I: Aggravated Assault

(Serious Bodily Injury)

____ Guilty ____ Not Guilty

If you find the Defendant guilty of Count I, you need go no further and should return to the Courtroom with your verdict. On the other hand, if you find Defendant not guilty of Count I, you must proceed to and decide whether or not the Commonwealth has proven beyond a reasonable doubt each of the elements of Count II.

COUNT II: Aggravated Assault

(Bodily Injury)

____ Guilty ____ Not Guilty

Verdict Slip, 3/17/11, at 1 (emphasis added).

The jury found Appellant guilty of Count I (which was aggravated assault under 18 Pa.C.S.A. § 2702(a)(2)) and, in accordance with the trial court's instructions, the jury “return[ed] to the Courtroom with [its] verdict.” Verdict Slip, 3/17/11, at 1. The jury thus made no specific determination as to whether Appellant was either guilty or not guilty of aggravated assault under 18 Pa.C.S.A. § 2702(a)(3). The jury's verdict—finding Appellant guilty of “Count [I], aggravated assault, serious bodily injury”—was then recorded and the jury was discharged. See N.T. Trial, 3/17/11, at 140.

Following Appellant's sentencing, Appellant filed a motion in arrest of judgment. Within this post-sentence motion, Appellant claimed that the evidence was insufficient to support his aggravated assault conviction because “[n]o competent evidence was presented by the Commonwealth that the [c]orrections [o]fficer suffered a serious bodily injury nor could a jury reasonably conclude that [Appellant] had the specific intent to attempt to cause a serious bodily injury.” Appellant's Post–Sentence Motion, 5/27/11, at 1–2. The trial court agreed that the evidence was insufficient to support Appellant's conviction. Trial Court Order, 9/8/11, at 1; Trial Court Memorandum, 9/8/11, at 4. Therefore, on September 8, 2011, the trial court entered an order granting Appellant's motion in arrest of judgment “with respect to the charge of [a]ggravated [a]ssault as that crime is defined in 18 [Pa.C.S.A. § ] 2702(a)(2).” Trial Court Order, 9/8/11, at 1.

The Commonwealth did not appeal the trial court's ruling.² Instead, after the trial court's ruling, the Commonwealth filed a motion to re-schedule the case for trial on the charge of aggravated assault, as that crime is defined in 18 Pa.C.S.A. § 2702(a)(3). Appellant responded by filing a Motion to Dismiss on the Basis of Double Jeopardy. Appellant's Motion to Dismiss, 1/27/12, at 1–3. As Appellant claimed, if the Commonwealth were to retry him on the Section 2702(a)(3) aggravated assault charge, Appellant would be “twice [placed] in jeopardy in violation of his rights under the Fifth Amendment to the United States Constitution as well as the Constitution of the Commonwealth of Pennsylvania.” Id. at 2. The trial court denied Appellant's motion on May 23, 2012 and, on June 11, 2012, Appellant filed a timely notice of appeal to this Court.³ Appellant now raises the following claim to this Court: ⁴

Whether double jeopardy protections afforded by the United States and Pennsylvania constitutions prohibit the Commonwealth from re-prosecuting Appellant[?]

Appellant's Brief at 4.

“[T]he question of whether a defendant's constitutional right against double jeopardy [would be infringed by a successive prosecution] is a question of law. Hence, [when reviewing this issue,] our scope of review is plenary and our standard of review is de novo.” Commonwealth v. Kuykendall, 2 A.3d 559, 563 (Pa.Super.2010).

The proscription against twice placing an individual in jeopardy of life or limb is found in both the Fifth Amendment to the United States Constitution, as well as in Article 1, Section 10 of the Pennsylvania Constitution. Commonwealth v. States, 595 Pa. 453, 938 A.2d 1016, 1019 (.2007). Yet, as the Pennsylvania Supreme Court has held, Pennsylvania's Double Jeopardy Clause “involves the same meaning, purpose, and end [as the Double Jeopardy Clause in the United States Constitution], thus, [Pennsylvania's clause] has generally been construed as coextensive with its federal counterpart.” ⁵Commonwealth v. McGee, 560 Pa. 324, 744 A.2d 754, 756 n. 2 (2000) (internal quotations and citations omitted); see also Commonwealth v. Fletcher, 580 Pa. 403, 861 A.2d 898, 912 (2004) (“the double jeopardy protections afforded by the United States and Pennsylvania [c]onstitutions are coextensive”).

“The Double Jeopardy Clause embodies three protections: [i]t protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.” Commonwealth v. Kemmerer, 526 Pa. 160, 584 A.2d 940, 942 n. 4 (1991) (internal quotations and citations omitted); see also Monge v. California, 524 U.S. 721, 727–728, 118 S.Ct. 2246, 141 L.Ed.2d 615 (1998). In the context of successive prosecutions:

The constitutional prohibition against “double jeopardy” was designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense. The underlying idea, one that is deeply ingrained in at least the Anglo–American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated...