Commonwealth v. Jones
| Citation | 418 A.2d 346,274 Pa.Super. 162 |
| Parties | COMMONWEALTH of Pennsylvania v. Robert Earl JONES, Appellant. |
| Decision Date | 04 January 1980 |
| Court | Superior Court of Pennsylvania |
Argued June 18, 1979. [Copyrighted Material Omitted]
Janet Mason, Asst. Public Defender, West Chester, for appellant.
Joan D. Lasensky, Asst. Dist. Atty., West Chester, for Commonwealth, appellee.
Before HESTER, HOFFMAN and CATANIA, JJ. [*]
Appellant Robert Earl Jones brings this appeal from an Order denying a pre-trial application to quash a Bill of Information on the ground of double jeopardy. We affirm the Order and remand for trial.
By a single Information dated September 7, 1977, the District Attorney of Chester County charged appellant with two counts of rape, one count of indecent assault, and three counts of simple assault, all evolving from an incident with the victim, a middle-aged woman, on the afternoon of August 17, 1977. The six counts charged substantially as follows:
Count One Rape by forcible compulsion. 18 Pa.C.S.A. § 3121(1)
Count Two Rape by threat of forcible compulsion. § 3121(2)
Count Three: Indecent Assault. § 3126(1)
Count Four: Simple Assault by causing or attempting to cause bodily injury. § 2701(a)(1)
Count Five: Simple Assault by negligently causing bodily injury with a deadly weapon. § 2701(a)(2)
Count Six: Simple Assault by putting another in fear of serious bodily injury through physical menace. § 2701(a)(3).
At the jury trial commenced on January 4, 1978, the Commonwealth presented testimony designed to show the following: On the afternoon of August 17, 1977, the victim was in Kennett Square, Chester County, seeking a ride to her home in Jennersville. Appellant, whom she had known for three or four years, approached and offered his services and requested the woman to follow him and his two friends into an alley. The foursome walked into an open garage just off the alleyway, where the complainant was offered alcohol from a bottle, from which all drank. Soon, the victim noticed appellant's two friends had disappeared, whereupon appellant pushed her up against the wall and onto the floor declaring he could "really hurt her." He then removed part of her clothing and raped her. Afterwards, the woman ran to the police station to report the offense and later accompanied two officers back to the crime scene. At the close of the Commonwealth's case, a defense demurrer to Count Five was sustained by the court.
Appellant, testifying in his own defense, admitted having intercourse with the complainant that afternoon but insisted she fully consented. He alleged that she consumed straight vodka from appellant's bottle in the garage with the two other individuals. When they were alone, she agreed to have intercourse with appellant in the garage.
After five hours and forty-five minutes deliberations, the jury returned to the courtroom and announced they had reached a unanimous decision on two counts but were deadlocked on the remaining three. In accord with Pa.R.Crim.P. 1120(d), the court received the two verdicts upon which the jury did agree: not guilty of count one (rape by forcible compulsion) and not guilty of count four (simple assault by causing or attempting to cause bodily injury). The court then declared a mistrial on the remaining counts.
When the Commonwealth called appellant to trial on Counts two, three, and six, defense counsel filed a motion to quash the Information alleging a retrial would violate principles of double jeopardy. The court granted the motion as to Count three, indecent assault, but refused to dismiss Counts two and six and directed that appellant stand trial on those charges. This appeal followed, in which appellant contends retrial is barred for two reasons: 1) the acquittal of counts one (3121(1)) and four (2701(a)(1)) necessarily operate as an acquittal of counts two (3121(2)) and six (2701(a)(3)), and 2) the court erred in declaring a mistrial since there was no manifest necessity for the same. We will treat each argument in turn. [1]
It is appropriate to observe initially that we find nothing erroneous or duplicitous in the District Attorney's Information as drawn. Cf. Pa.R.Crim.P. 228. It is proper to charge in various counts of an Information the same offense as committed in various ways to meet the evidence which may possibly be adduced at trial. 42 C.J.S., Indictment and Information, § 179. It was thus entirely within the Commonwealth's prerogatives to charge appellant with the multiple counts of rape and assault, all relating to the same incident, since the legislature has decided those crimes may be committed by any of the means set forth under § 3121 and § 2701. Further, as is more fully set forth, infra, the separately numbered paragraphs of § 3121 and § 2701 each constitute a separate offense. The Commonwealth thus properly charged each offense in a separate count.
Appellant contends that an acquittal of rape by forcible compulsion must necessarily acquit him of rape by threat of forcible compulsion and an acquittal of simple assault by causing or attempting to cause bodily injury must operate as an acquittal of assault by putting another in fear of serious bodily injury by physical menace. Rule 1120(d) provides:
(d) If there are two or more counts in the information or indictment, the jury may report a verdict or verdicts with respect to those counts upon which it has agreed, and the judge shall receive and record all such verdicts. If the jury cannot agree with respect to all the counts in the information or indictment if those counts to which it has agreed operate as an acquittal of lesser or greater included offenses to which they cannot agree, these latter counts shall be dismissed. When the counts in the information or indictment upon which the jury cannot agree are not included offenses of the counts in the information or indictment upon which it has agreed, the defendant or defendants may be retried on those counts in the information or indictment.
The comments thereto state: Section (d) "serve(s) only to codify the procedure where conviction or acquittal of one offense operates as a bar to a later trial on a necessarily included offense." See, Commonwealth v. Roberts, 484 Pa. 500, 399 A.2d 404 (1979). Contrary to appellant's assertions, the doctrine of lesser and greater included offenses is inapplicable to the instant case. Section 3121(1) is not a lesser or greater included offense of § 3121(2), nor is § 2701(a)(1) a lesser or greater included offense of § 2701(a)(3). The offenses set forth in the separately numbered paragraphs of § 3121 and § 2701(a) are equal to one another, not lesser or greater. The statute provides, for example, that rape by force is an equal crime, deserving of equal punishment, with rape by threat of force. Similarly, assault by attempting or causing bodily injury is an equal offense with assault by physical menace. By statutory definition, then, none of the offenses set forth in § 3121 or § 2701(a) are greater or lesser than each other, but rather are co-equals. [2] Rule 1120(d) thus did not, on its face, require the trial court to dismiss counts two or six upon which the jury deadlocked. [3]
Appellant argues that, notwithstanding Rule 1120(d), a second trial for rape and assault is barred by the prohibition against successive prosecution for the "same offense", Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977); Blockburger v. U. S., 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932) and by the prohibition against relitigating facts necessarily determined in favor of an accused by a former verdict of acquittal, Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). We agree with neither contention. Brown was concerned with the permissibility of instituting new proceedings against a defendant after he has already been prosecuted and punished for a lesser included offense. Since the Double Jeopardy clause "protects against a second prosecution for the same offense after conviction" or acquittal, the second trial is clearly improper. Brown, 432 U.S. at 165, 97 S.Ct. at 2225, quoting North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969); cf. Green v. U. S., 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957); Commonwealth v. Henderson, 482 Pa. 359, 393 A.2d 1146 (1978). Thus, appellant would be correct in his contention if the Commonwealth had first tried him on counts one and four and then later filed a new Information charging him with counts two and six, regardless of the outcome of the first trial. Such would clearly violate the general rule that a prosecutor must bring, in a single proceeding, all known charges against a defendant arising from a single criminal episode, Commonwealth v. Campana, 452 Pa. 233, 304 A.2d 432, vacated, 414 U.S. 808, 94 S.Ct. 73, 38 L.Ed.2d 44 (1973), on remand, 455 Pa. 622, 314 A.2d 854, cert. den. 417 U.S. 969 (1974); 18 Pa.C.S.A. § 110, and would violate as well the principles enunciated in Brown and related cases. However, in the instant case, the Campana rule was clearly complied with since all charges were brought in one proceeding. Hence, we are not dealing with successive prosecutions, but rather with retrial following a mistrial caused by a deadlocked jury, a distinctly different problem. Accord, Forsberg v. U. S., 351 F.2d 242 (9 Cir., 1965); U. S. v. McGowan, 385 F.Supp. 956 (D.N.J., 1974).
Similarly, we do not think principles of collateral estoppel, as set forth in Ashe v. Swenson and its progeny, must bar the second trial herein. Ashe established that once an accused has been acquitted, a state cannot prosecute him a second time for a related offense having a common issue of ultimate fact essential to conviction which the previous...
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