Com. v. Ross, P. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
PAUL AARON ROSS
Appellant No. 1487 WDA 2014
Appeal from the Order Entered August 5, 2014
In the Court of Common Pleas of Blair County
Criminal Division at No(s): CP-07-CR-0002038-2004
BEFORE: BENDER, P.J.E., LAZARUS, J., and MUNDY, J.
MEMORANDUM BY LAZARUS, J.: FILED MAY 12, 2015
Paul Aaron Ross appeals from the order entered in the Court of
Common Pleas of Blair County that denied his motion to preclude the
Commonwealth from seeking the death penalty upon retrial. After careful
review, we affirm.
On November 10, 2005, a jury found Ross guilty of first degree murder
and related offenses. The following day, a sentencing hearing took place, at
the conclusion of which the jury received a First Degree Murder Sentencing
Verdict Slip consisting of two parts: “I. General Instructions” and “II.
Sentencing Verdict and Findings,” the latter which we reproduce here in full.
II. SENTENCING VERDICT AND FINDINGS
If you have reached a unanimous verdict, complete this part of
the form
In Section A, indicate whether the sentencing verdict is death or
life imprisonment. If the sentence is death, indicate the basis
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for the verdict by completing Section B. If the sentence is life
imprisonment, indicate the basis for that verdict by completing
Section C.
A. We, the jury, unanimously sentence the Defendant to (check
one):
□ Death
□ Life Imprisonment
B. The findings on which the sentence of death is based are
(check one):
□ 1. At least one aggravating circumstance and no
mitigating circumstance.
The aggravating circumstance(s) unanimously found
is/are:
_______________________________________________
_______________________________________________
□ 2. One aggravating circumstance(s) which outweighs any
mitigating circumstance(s).
The aggravating circumstance(s) unanimously found
is/are:
_______________________________________________
_______________________________________________
The mitigating circumstance(s) found by one or more of us
is/are:
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
C. The findings on which the sentence of life is based are (check
one):
□ 1. No aggravating circumstance exists
□ 2. The mitigating circumstance(s) is/are not outweighed by
the aggravating circumstance.
The mitigating circumstance(s) found by one or more of us
is/are:
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_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
The aggravating circumstance unanimously found is:
_______________________________________________
_______________________________________________
_________________ _______________________________
Date Jury Foreperson
The jury began its deliberations at 2:46 p.m., N.T. Sentencing
Hearing, 11/11/05, at 197, and at 5:17 p.m., a question from the jury was
delivered to the court. Immediately thereafter, the court addressed the jury
as follows:
Good afternoon, ladies and gentlemen of the jury. I have
received a communication from your foreperson and it reads,
Your Honor, the jury is unable to reach a unanimous decision on
life or death and it is unlikely that we can. Please advise the
next step. Thank you. Your foreperson, Robert L. Beck.
And I’m going to instruct you with two paragraphs to try to give
you guidance on where to go from here. Members of the jury, if
you do not agree unanimously on the sentence of the defendant
and on one of the two general findings that would support it then
you have two options, you may either continue to discuss the
case and deliberate the possibility of the death sentence or if you
all agree to do so, you can stop deliberating and sentence the
defendant to life imprisonment and you would do so by simply
writing on the verdict slip we have stopped deliberating and we
sentence the defendant to life. That is not on the form. You
would have to write that separately.
If you should come to a point where you have deliberated
conscientiously and thoroughly and you still cannot agree either
to sentence the defendant to life or death or to stop deliberating
and just sentence him to life, you should report that to me at
that point and I then will determine whether you are hopelessly
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deadlocked on that issue and then it becomes my duty to
sentence the defendant to life imprisonment.
Id. at 201-02.
The jury continued its deliberations at 5:26 p.m., and at 5:41 p.m., it
returned to the courtroom with a verdict. The foreperson read the following
statement, which he had written on the Sentencing Verdict and Findings
sheet: “Your Honor, the jury has been at an impasse and can’t reach a
unanimous vote. The verdict is life.” Id. at 203.
On November 23, 2005, the trial court imposed a sentence of life
imprisonment for first degree murder plus 24 to 48 years’ imprisonment for
other crimes arising out of the same incident. Ross filed post-sentence
motions, which the court denied on January 30, 2006. Ross then filed an
appeal, which this Court dismissed due to counsel’s failure to file a brief.
Following nunc pro tunc reinstatement of his appellate rights on August 14,
2009, the matter came before this Court, which vacated the judgment of
sentence and remanded for a new trial on October 10, 2012.
Commonwealth v. Ross, 57 A.3d 85 (Pa. Super. 2012). Our Supreme
Court denied the Commonwealth’s petition for allowance of appeal on August
15, 2013, Commonwealth v. Ross, 72 A.3d 603 (Pa. 2013), and
subsequently denied the Commonwealth’s motion for reconsideration.
The matter returned to the court of common pleas for trial, and on July
8, 2014, Ross filed a motion to preclude the death penalty, which was
argued on July 29, 2014. By opinion and order dated August 5, 2014, the
court denied the motion, and on September 3, 2014, Ross filed a timely
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notice of appeal. The Commonwealth filed a motion to dismiss, which this
Court denied on December 9, 2014.
On appeal, Ross raises the following issue for our review:
Should a jury verdict of a life sentence following the penalty
phase of [Ross’] first capital trial result in the Commonwealth
being barred based upon double jeopardy protections from
pursuing a sentence of death in [Ross’] retrial?1
Brief of Appellant, at 10.
The principles underlying the trial court’s decision were set forth in
Commonwealth v. Sattazahn, 763 A.2d 659 (Pa. 2000), where our
Supreme Court stated:
The United States Supreme Court has consistently reaffirmed the
basic principle that the constitutional guarantee against double
jeopardy imposes no limitations upon the power to retry a
defendant who has succeeded in getting his first conviction set
aside. [Commonwealth v.] Martorano, 634 A.2d [1063,
1068-69 [(Pa. 1930)]. Since the original conviction is nullified at
a defendant's behest, the “slate was wiped clean,” and the
sentencing court can impose any legally authorized sentence,
whether or not it is greater than the sentence imposed following
the first trial. Martorano, 634 A.2d at 1068, citing North
Carolina v. Pearce, 395 U.S. 711, 720-21 (1969). An
exception to this rule exists where the sentencing proceeding
resembles a trial. See Bullington [v. Missouri, 451 U.S. 430
(1984)]; [Arizona v.] Rumsey[, 467 U.S. 203 (1984)].
In Bullington, a defendant was tried for capital murder and at
the guilt phase of trial, the jury returned a verdict of guilty. As
required by statute, the trial court then conducted a sentencing
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1
“In Pennsylvania a defendant is entitled to an immediate interlocutory
appeal as of right from an order denying a non-frivolous motion to dismiss
on state or federal double jeopardy grounds.” Commonwealth v. DeLong,
879 A.2d 234, 237 n.1 (Pa. Super. 2005) (citations omitted).
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hearing before the same jury that had found the defendant
guilty. The parties were afforded the opportunity to present
additional evidence in aggravation or mitigation of punishment.
After argument, instructions from the judge and deliberation, the
jury returned a unanimous verdict of life imprisonment. When
Bullington was granted a new trial on appeal, the state notified
him of its intention to seek again the death penalty. Because
the first sentencing jury, by choosing life, impliedly decided that
the prosecution had not proved its case for death, the result was
that the jury “acquitted” the defendant of the death penalty.
This “acquittal on the merits” precludes the State from seeking
the death penalty upon retrial. 451 U.S. at 434-35, 101 S. Ct.
1852
*****
In Martorano, we applied Bullington and Rumsey and held
that the Commonwealth is not precluded from seeking the death
penalty on retrial, where, following their first trial, defendants
were convicted of first-degree murder and sentenced to life
imprisonment, not by a unanimous jury verdict, but by the trial
judge following the jury’s deadlock regarding the penalty. The
hung jury did not act as an acquittal on the merits as did the
proceedings at issue in Bullington and Rumsey.
*****
Here, unlike the sentence in Burlington or the other cases just
discussed, the jury did not make a decision on the merits
regarding an appropriate penalty. It did not find that the state
had failed to prove its case. It made no findings about the
existence of any aggravating or mitigating circumstances. It
was deadlocked. Since it made no decision, there could not in
fact be any “acquittal on the merits.” Nor did the imposition of a
life sentence by the trial judge operate as an acquittal. Under
Pennsylvania’s sentencing scheme, the judge has no discretion
to fashion sentence once he finds that the jury is deadlocked.
Sattazahn, 763 A.2d at 366-67.2
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2
The United States Supreme Court affirmed the decision of our Supreme
Court. Sattazahn v. Pennsylvania, 537 U.S. 101 (2003).
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Accordingly, the critical question before us is whether the entry of a
life sentence following Ross’ first trial was an acquittal on the merits, thus
precluding the death penalty on retrial. We conclude that it was not.
As in Sattazahn, the jury in this case made no findings with respect
to aggravating or mitigating circumstances. The jury left blank the entire
Sentencing Verdict and Findings Slip reproduced above. The jury did not
check off the box marked Death or the box marked Life Imprisonment. It
did not list any aggravating factors unanimously found or any mitigating
factors found by one or more members of the jury. Clearly, the jury did not
reach unanimous agreement as to sentencing. Under these circumstances,
the Sentencing Code provides that the court may discharge the jury, “in
which case the court shall sentence the defendant to life imprisonment.” 42
Pa.C.S. § 9711(c)(1)(v).
But for one factual wrinkle, the instant matter would be on all fours
with Sattazahn. Here, the trial court instructed the jury that if it could not
agree on the sentence it could “stop deliberating and sentence the defendant
to life imprisonment and you would do so by simply writing on the verdict
slip we have stopped deliberating and we sentence the defendant to life.”
N.T. Sentencing Hearing, 11/11/05, at 201. As the trial court recognizes in
its opinion in support of the order denying Ross’ motion, it “erred to advise
the jury to write on the verdict slip, ‘we sentence the defendant to life.’”
Opinion and Order, 8/5/14, at 8.
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Ross argues that the statement, “[t]he verdict is life,” written on the
bottom of the Sentencing Verdict and Findings form constitutes a final
judgment barring the death penalty on retrial. We disagree because on the
verdict slip, “[t]he verdict is life” is preceded by the sentence, “[t]his jury
has been at an impasse and can’t reach a unanimous vote.” In other words,
the jury was deadlocked. The conclusion that the jury was deadlocked is
supported by the fact that the jury did not check the box on the verdict form
that the jury unanimously sentenced the defendant to life imprisonment.
Because the penalty phase of Ross’ first trial ended in a hung jury, the
imposition of a sentence of life imprisonment by default did not act as an
acquittal. See Sattazahn, supra; Martorano, supra. Therefore, double
jeopardy does not prevent the Commonwealth from seeking the death
penalty on retrial.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/12/2015
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