Commonwealth v. Landis

• Decision Date: 24 December 2018
• Docket Number: No. 1785 MDA 2017,1785 MDA 2017
• Citation: 201 A.3d 768
• Parties: COMMONWEALTH of Pennsylvania, Appellant v. William R. LANDIS, Jr.
• Court: Pennsylvania Superior Court

201 A.3d 768

COMMONWEALTH of Pennsylvania, Appellant

v.William R. LANDIS, Jr.

No. 1785 MDA 2017

Superior Court of Pennsylvania.

Argued June 20, 2018

Filed December 24, 2018

Reargument Denied March 5, 2019

Matthew A. Thren, Assistant District Attorney, Reading, for Commonwealth, for appellant.

Mark K. McCulloch, Altamonte Springs, FL, for appellee.

BEFORE: PANELLA, J., MURRAY, J., and FORD ELLIOTT, P.J.E.

OPINION BY FORD ELLIOTT, P.J.E.:

The Commonwealth appeals from the October 24, 2017 order denying its petition to reinstate Counts 2 through 4 (third-degree murder and aggravated assault)¹ of the underlying criminal information, on the basis it was barred on retrial by double jeopardy or laches. After careful review, we are constrained to affirm.

A prior panel of this court summarized the relevant facts of this case as follows:

On October 28, 2009, at approximately 9:20 p.m., Berks County Radio dispatched Spring Township Police officers to the residence of [William R. Landis, Jr. (hereinafter, "Landis") ] to investigate a possible shooting. A man had called to report that a woman had been shot. It was later discovered that the caller was [Landis]. [Landis'] wife, Sharon Landis, was found dead from a gunshot wound to the head on the second floor of the residence. The victim also had other nonfatal gunshot wounds on her body. While performing a clearing operation of the residence, officers discovered [Landis] barricaded in the basement. [Landis] had a knife and two guns in his possession and threatened to shoot anyone who came down into the basement. While in the basement, [Landis] made several telephone calls to family and friends and mentioned his dead wife. [Landis] became increasingly intoxicated as the evening progressed. The Berks County Emergency Response Team was called to the scene, and [Landis] was eventually taken into custody after several hours had elapsed.

Commonwealth v. Landis , 102 A.3d 528 (Pa.Super. 2014) (unpublished memorandum at *1, citing trial court opinion, 8/2/13 at 1-2).

The trial court summarized the procedural history of this case as follows:

The Commonwealth charged [Landis] with one count of First Degree Murder (Count 1), one count of Third Degree Murder (Count 2), two counts of Aggravated Assault (Counts 3 and 4), Assault on a Law Enforcement Officer (Count 5), seven counts of Aggravated Assault (Counts 6 to 10, 14, 17), four counts of Simple Assault (Counts 11, 12, 15, 18), eleven counts of Reckless Endangerment (Counts 13, 16, 20 to 28), one count of Terroristic Threats (Count 19), and two counts of Possessing an Instrument of Crime (Counts 29-30).^[2][Landis] moved to sever Counts 5 through 30, which involved the standoff between the police and [Landis] during the period the police officers were negotiating [Landis'] surrender when [Landis] was in the basement. This court granted [Landis'] motion to sever the charges.^[3]

At the trial that ended on April 5, 2013, the jury found [Landis] guilty of only Count 1, Murder in the First Degree. The jury found [Landis] not guilty of Count 2, Murder in the Third Degree, Count 3, Voluntary Manslaughter, and Count 4, Involuntary Manslaughter. Prior to the closing arguments, the counts for Voluntary Manslaughter and Involuntary Manslaughter replaced the two counts of Aggravated Assault. This court polled the jury, and ... recorded the verdicts.

The Commonwealth did not file any post-trial motion to correct the Verdict as permitted by the Pennsylvania Rules of Criminal Procedure.⁴ At [Landis'] sentencing, the Commonwealth agreed to withdraw Counts 5 through 30 with the understanding that if [Landis'] first[-]degree murder conviction was overturned, the Commonwealth would be able to reinstate those charges.

Trial court opinion, 1/26/18 at 1-2.

On June 10, 2013, Landis filed a timely notice of appeal. On April 10, 2014, a panel of this court affirmed Landis' judgment of sentence, and no further review was sought with our supreme court. See Landis , 102 A.3d 528. On December 22, 2014, Landis filed a timely petition pursuant to the Post Conviction Relief Act ("PCRA"),⁵ raising multiple claims of trial and appellate counsels' ineffectiveness. (See PCRA petition, 12/22/14, at 3-4.) On June 29 and 30, 2015, the PCRA court held evidentiary hearings on this matter. Thereafter, on December 18, 2015, the PCRA court entered an opinion and order granting Landis a new trial based on trial counsel's failure to call expert witness, Dr. Larry A. Rotenberg, to testify in support of a diminished capacity defense. (PCRA opinion, 12/18/15 at 10-17.) The Commonwealth filed a notice of appeal that same day. On November 30, 2016, a panel of this court affirmed the PCRA court's order and our supreme court denied the Commonwealth's petition for allowance of appeal on July 24, 2017. See Commonwealth v. Landis , 159 A.3d 603 (Pa.Super. 2017) (unpublished memorandum), appeal denied , 642 Pa. 94, 169 A.3d 1059 (2017).

Thereafter, on August 28, 2017, the Commonwealth filed a petition to reinstate Counts 2 through 4 of the underlying criminal information, third-degree murder and aggravated assault. As noted, the trial court entered an order on October 24, 2017 denying the Commonwealth's petition. The Commonwealth filed a timely notice of appeal on November 21, 2017. On December 1, 2017, the trial court directed the Commonwealth to file a concise statement of errors complained of on appeal, in accordance with Pa.R.A.P. 1925(b). The Commonwealth filed a timely Rule 1925(b) statement on December 6, 2017. On January 26, 2018, the trial court filed its Rule 1925(a) opinion.

The Commonwealth raises the following issues for our review:

[1.] Did the trial court err by ruling that reinstatement of the charge of third-degree murder is barred on retrial by double jeopardy and/or laches?

[2.] Alternatively, did the trial court err by ruling that [Landis] is permitted to present a diminished capacity defense where the Commonwealth is barred from retrying [Landis] on the charge of third-degree murder?

Appellant's brief at 5 (full capitalization omitted). The Commonwealth has abandoned its claim that the trial court erred in determining that the reinstatement of the aggravated assault charges is barred by laches. (See id. at n.1).

An appeal grounded in double jeopardy raises a question of constitutional law. This court's scope of review in making a determination on a question of law is, as always, plenary. As with all questions of law, the appellate standard of review is de novo . To the extent that the factual findings of the trial court impact its double jeopardy ruling, we apply a more deferential standard of review to those findings:

Where issues of credibility and weight of the evidence are concerned, it is not the function of the appellate court to substitute its judgment based on a cold record for that of the trial court. The weight to be accorded conflicting evidence is exclusively for the fact finder, whose findings will not be disturbed on appeal if they are supported by the record.

Commonwealth v. Kearns , 70 A.3d 881, 884 (Pa.Super. 2013) (citations omitted), appeal denied , 624 Pa. 663, 84 A.3d 1063 (2014).

The Commonwealth first argues that the trial court erred in concluding that double jeopardy bars the reinstatement of the third-degree murder charge on retrial because the underlying verdict was "incorrect" as a matter of law. (Commonwealth's brief at 16.) The Commonwealth avers that,

[a]lthough the jury in the first trial returned a verdict of not guilty to the third-degree murder charge, the jury found [Landis] guilty of first-degree murder, an offense which contains all the elements of third-degree murder with the added element of specific intent to kill[.]

Id. at 21.

The Commonwealth maintains that this is not a case where it is simply seeking "another opportunity to supply evidence that it failed to put forth previously[.]" (Id. ) Rather, the Commonwealth contends that it has already proven "all the elements of third-degree murder as evidenced by the verdict." (Id. at 14, 18.) Thus, "double jeopardy should not bar reinstatement of third-degree murder." (Id. ) In support of this conclusion, the Commonwealth relies on Commonwealth v. Larkins , 829 A.2d 1203 (Pa.Super. 2003), appeal denied , 582 Pa. 683, 870 A.2d 321 (2005).

Upon review, we find that Larkins is distinguishable from the instant matter and that the Commonwealth's reliance on it is misplaced. Larkins involved a defendant who was convicted of, inter alia , the first-degree murder of his wife's alleged paramour and acquitted of the lesser-included offenses of third-degree murder and voluntary manslaughter of said paramour. Larkins , 829 A.2d at 1203. Larkins' direct appeal was unsuccessful, but he was granted a new trial after he sought post-conviction relief. Id. at 1204. At his retrial for first-degree murder, Larkins requested an additional jury instruction on third-degree murder and voluntary manslaughter. Id. The trial court denied Larkins' request on grounds that it would put him twice in jeopardy for charges of which he had been acquitted. Id. Larkins appealed a second time, arguing that the jury should have been instructed on the lesser charges at his second trial. Id. The Larkins court recognized that the double jeopardy clauses did not bar the jury from being instructed on the lesser-included offenses because waiver of double jeopardy protections is theoretically possible, but held that Larkins had failed to preserve the argument that he could waive double jeopardy. Id. at 1205-1206.

We recognize that the holding in Larkins implies that a defendant may waive his double jeopardy rights in situations where the protections actually harm his or her interests. See id. at 1203 (opining that defendant could waive double jeopardy in order to have jury instructed on lesser offense as to which he had previously been acquitted). However, unlike Larkins , this case does not present a scenario in which Landis would benefit from...