Com. v. Adams, J. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
JOHN ADAMS
Appellee No. 1529 EDA 2015
Appeal from the Order December 8, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0013625-2012
BEFORE: FORD ELLIOTT, P.J.E., OTT, J., and MUSMANNO, J.
MEMORANDUM BY OTT, J.: FILED JUNE 07, 2016
The Commonwealth appeals from the order entered on December 8,
2014, in the Court of Common Pleas of Philadelphia County, granting
defendant, John Adams’, motion to dismiss based on collateral estoppel.
The Commonwealth argues the trial court committed an error of law
dismissing the charges against Adams regarding one victim after a jury
acquitted Adams of having shot and wounded a second victim. After a
thorough review of the submissions by the parties, relevant law, and the
certified record, we reverse and remand this matter for retrial.
The facts of the underlying trial involve a melee at the Travelers
Motorcycle Club in Philadelphia, Pennsylvania, on August 5, 2012. A tribute
was being held for a fallen member of a motorcycle club that night.
Apparently, members of several motorcycle clubs were in attendance. A
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fight erupted inside and some “civilians” were ejected from the club. The
fight spilled out into the parking lot. The defendant, John Adams, was one
of those civilians. The victims, Darryl Jenkins and Gregory Gordon, were
associated with the Wheels of Soul motorcycle club.
The Commonwealth alleged that after being ejected from the property,
Adams returned minutes later and began shooting. Gordon was shot in the
shoulder. Video surveillance of the parking lot showed a person the
Commonwealth believed to have been Adams, firing a handgun. Jenkins
then ran after the shooter and was shot in the foot. The video surveillance
does not show the second shooting; therefore, there is no video evidence of
who fired the second set of shots.
Although Jenkins identified Adams as the shooter in his initial
statement to the police, he could not conclusively identify Adams as the
shooter at trial. In fact, Jenkins testified he did not see who fired the shot
that injured him; he could not testify that the person he was chasing, whom
he believed had shot Gordon, was the same person who shot him. Gordon
did not testify at trial. In summation, the evidence regarding who shot
Jenkins was the pre-trial identification of Adams in a photo line-up and
Jenkins’ testimony at trial that he did not actually see who shot him. The
only evidence of who shot Gordon was video evidence showing a person who
resembled Adams firing a handgun.
The Commonwealth charged Adams with aggravated assault of both
Jenkins and Gordon; the Commonwealth clearly believed Adams shot and
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wounded both victims. However, the jury was not instructed that it was
required to find Adams guilty or not guilty of both crimes. During
deliberations, the jury asked to review the video evidence on three
occasions, claiming they needed to see the videos again to help them
identify the shooter. The request was denied each time. 1 The jury ultimately
acquitted Adams of shooting Jenkins (the second shooting that occurred off
camera) and could not reach a verdict regarding the shooting of Gordon (the
first shooting that occurred on camera, but for which the victim did not
testify).
On October 28, 2014, Adams filed a motion to dismiss the charges
regarding Gordon based on collateral estoppel. A hearing on the motion was
held on November 20, 2014. Adams raised the argument that based on the
United States Supreme Court decision in Ashe v. Swenson, 90 S. Ct. 1189
(1970), the jury determined Adams was not the shooter of Jenkins and
therefore Adams could not have been the shooter of Gordon. Accordingly,
based upon collateral estoppel and double jeopardy, the Commonwealth was
barred from re-litigating the identity of the perpetrator. The Commonwealth
argued that there was independent proof of the identity of the shooter, and
that while the Commonwealth theorized the same person had fired both sets
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1
The trial court believed reviewing video of the shootings would be unduly
prejudicial to Adams.
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of shots, a jury could rationally separate the two. Therefore, the
Commonwealth claimed Adams could be retried for Gordon’s shooting.
On December 8, 2014, the trial court granted Adams’ motion based
upon the doctrine of collateral estoppel as announced in Ashe and reiterated
in Pennsylvania in Commonwealth v. Smith, 540 A.2d 246 (Pa. 1988).
Our applicable scope and standard of review are as follows:
“Appellant's issue is a pure question of law. Therefore, our standard of
review is de novo, and our scope of review is plenary.” Commonwealth v.
Barger, 956 A.2d 458, 461 (Pa. Super. 2008) (citation omitted).
Commonwealth v. Smith, supra, provides an excellent recitation of
the rules for applying collateral estoppel in a criminal case.
Collateral estoppel is “issue preclusion” which does not
automatically bar subsequent prosecution but does bar
redetermination in a second prosecution of those issues
necessarily determined between the parties in a first proceeding
which has become a final judgment. Commonwealth v. Hude,
[492 Pa. 600] supra at 612, 617, 425 A.2d at 319, 322. It is a
principle to be applied with “realism and rationality”, not “with
the hypertechnical and archaic approach of a 19th century
pleading book.” Ashe v. Swenson, supra, 397 U.S. at 444, 90
S. Ct. at 1194.
We stated in Hude:
The approach set forth by the Ashe Court in determining
the applicability of the principle of collateral estoppel
where a previous judgment of acquittal was based upon a
general verdict, is that we must:
... examine the record of a prior proceeding, taking into
account the pleadings, evidence, charge, and other
relevant matter, and conclude whether a rational jury
could have grounded its verdict upon an issue other
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than that which the defendant seeks to foreclose from
consideration. Id. at 444, 90 S. Ct. at 1194.
In determining “whether a rational jury could have
grounded its verdict upon an issue other than that which”
is sought to be foreclosed we are cautioned that “the
inquiry ‘must be set in a practical frame and viewed with
any eye to all the circumstances.’ ” Id. at 444, 90 S. Ct. at
1194.
492 Pa. at 612, 425 A.2d at 319-20. In making this
determination, we are guided by the federal decisions which
employ a three-step approach in applying Ashe:
(1) An identification of the issues in the two actions for the
purpose of determining whether the issues are sufficiently
similar and sufficiently material in both actions to justify
invoking the doctrine; (2) an examination of the record of
the prior case to decide whether the issue was ‘litigated’ in
the first case; and (3) an examination of the record of the
prior proceeding to ascertain whether the issue was
necessarily decided in the first case.
492 Pa. at 613, 425 A.2d at 320 (federal court citations
omitted).
Finally, in Hude, we interpreted 18 Pa.C.S.A. § 110 in a manner
consistent with Ashe and the above principles, stating:
Section 110(2) states in pertinent part:
§ 110. When prosecution barred by former prosecution for
different offense.
Although a prosecution is for a violation of a different
provision of the statutes than a former prosecution or is
based on different facts, it is barred by such former
prosecution under the following circumstances:
(2) The former prosecution was terminated, after the
indictment was found, by an acquittal ... which acquittal ...
necessarily required a determination inconsistent with a
fact which must be established for conviction of the second
offense.
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We therefore hold that “necessarily required a determination” is
no more restrictive than “whether a rational jury could have
grounded its verdict” without inclusion of the issue defendant
seeks to exclude from relitigation.
Commonwealth v. Smith, 540 A.2d at 251.
More recently, in Commonwealth v. States, 938 A.2d 1016 (Pa.
2007), our Supreme Court expanded its explanation of how to apply
collateral estoppel:
In the criminal law arena, the difficulty in applying collateral
estoppel typically lies in deciding whether or to what extent an
acquittal can be interpreted in a manner that affects future
proceedings, that is, whether it “reflects a definitive finding
respecting a material element of the prosecution's subsequent
case.” Commonwealth v. Buffington, 574 Pa. 29, 828 A.2d
1024, 1032 (2003). We ask whether the fact-finder, in rendering
an acquittal in a prior proceeding, “could have grounded its
verdict upon an issue other than that which the defendant seeks
to foreclose from consideration.” Smith, 540 A.2d at 251
(quoting Hude, 425 A.2d at 319-20 [infra]). If the verdict must
have been based on resolution of an issue in a manner favorable
to the defendant with respect to a remaining charge, the
Commonwealth is precluded from attempting to relitigate that
issue in an effort to resolve it in a contrary way. See
Commonwealth v. Zimmerman, 498 Pa. 112, 445 A.2d 92, 96
(1981) (acquittal on simple assault precluded retrial on hung
murder charges because simple assault was a constituent
element of all grades of homicide in the case); Commonwealth
v. Wallace, 411 Pa.Super. 576, 602 A.2d 345, 349-50 (1992)
(Commonwealth's concession that the jury's acquittal meant
appellant did not possess a gun collaterally estopped
Commonwealth from any subsequent prosecution based on
appellant's possession of a gun); Commonwealth v. Klinger,
264 Pa.Super. 21, 398 A.2d 1036, 1041 (1979) (appellant's
acquittal on murder precluded the Commonwealth from bringing
a subsequent perjury prosecution based on appellant's trial
testimony that he did not kill the victim), aff'd. sub nom.
Commonwealth v. Hude, 492 Pa. 600, 425 A.2d 313 (1980).
Conversely, where an acquittal cannot be definitively interpreted
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as resolving an issue in favor of the defendant with respect to a
remaining charge, the Commonwealth is free to commence with
trial as it wishes. See Buffington, 828 A.2d at 1033 (acquittal
of rape and IDSI did not establish that Commonwealth failed to
prove an essential element of sexual assault); Smith, 540 A.2d
at 253-54 (acquittal of gun possession charge did not collaterally
estop Commonwealth from proceeding on charges of murder and
possession of an instrument of crime, as acquittal could have
been based on any number of reasons); Commonwealth v.
Harris, 400 Pa.Super. 12, 582 A.2d 1319, 1323 (1990) (robbery
acquittal did not preclude retrial on hung charge of aggravated
assault), appeal denied, 528 Pa. 621, 597 A.2d 1151 (1991).
Commonwealth v. States, 938 A.2d at 1021-22
With these instructions in mind, we turn to the instant factual scenario.
The first and second prongs of the three prong federal test have been met –
a new trial regarding the shooting of Gordon would be similar to the prior
trial regarding the shooting of Gordon and Jenkins, and the issue of the
identity of the shooter(s) was previously litigated. It is the third prong,
whether the shooter of Jenkins and Gordon was necessarily the same, that is
in question. Both the trial court and Adams believe that because the
Commonwealth claimed the same person committed both crimes, the jury
verdict exonerating Adams of shooting Jenkins necessarily exonerates him of
having shot Gordon. On the other hand, the Commonwealth argues that
although its theory was that the same person committed both crimes, it is
possible that different people were responsible.
Our review of the certified record leads us to agree with the
Commonwealth. As instructed by both the United States and Pennsylvania
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Supreme Courts, we review the matter “in a practical frame and viewed with
an eye to all the circumstances of the proceedings.” Smith, at 251.
Both the trial court and Adams take the position that the
Commonwealth is collaterally estopped from relitigating the identity of the
shooter based on the belief that whoever shot Jenkins must be the same
person who shot Gordon. Initially, we note that the Commonwealth and
Adams sought to convince the jury there had been a lone gunman.
Additionally, the trial court based its ruling on the presumption that there
was a single perpetrator. If, in fact, the evidence left little room to doubt
the fact of a lone gunman, then the application of collateral estoppel to the
instant matter would be the reasonable and proper result. Logically, if only
one person fired a gun at the fight scene, and a jury determined Adams was
not that person in one instance, he could not be that person in the other
instance. The central issue of the identity of the lone shooter having been
resolved, the Commonwealth would not be allowed a second bite at that
apple. However, although the parties and trial court all theorized there was
a single shooter, for collateral estoppel to apply we must determine if the
evidence presented at trial essentially required there be a single shooter.
Our independent review of the evidence presented at trial leads us to
conclude the jury could have rationally determined there was more than one
assailant at the Travelers Motorcycle Club on the night in question.
First, we note that the jury was allowed to consider each shooting
separately. The jury was never charged that it had to reach the same
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determination regarding the assaults Jenkins and Gordon and was presented
with separate verdict sheets; one regarding Jenkins, the other Gordon.2 This
is important because we cannot initially conclude the jury was of a mindset
that the evidence and reasoning regarding Jenkins’ assault must also apply
to the assault of Gordon. The evidence of the case did not show one person
shooting Gordon and then immediately turning and shooting Jenkins.
Rather, the evidence presented at trial showed two shootings separated by
both time and distance. This separation of shootings, admittedly brief, in
both time and space, rationally allows for the possibility of more than one
shooter.
Next, the possibility that the jury could rationally separate the
shootings is supported by Adams’ assertion that the circumstances attendant
to the shootings were ripe for misidentification. In closing argument,
Adams’ trial counsel specifically stated:
When you look at the video, and the people leaving the actual
driveway, Mr. Shields [the prosecutor] wants you to believe that
Mr. Adams is the guy being dragged out. But these two women
[witnesses for Adams], they’re unequivocal. They put
themselves in the middle of this. You know, bikers, and
remember what Mr. Jenkins said, it’s not just the Wheels of Soul
there, there’s also the Jay Hawkers, and he said many more.
Many more clubs. When you saw that melee out front you didn’t
see one or two or three people, you saw a cluster of people, you
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2
The verdict sheet as to the assault of Jenkins is not in the certified or
reproduced record. On the verdict sheet in which Gordon is identified as the
victim of the aggravated assault charge and lists seven charges, the jury
wrote “Unable to reach a verdict” next to each charge.
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saw a cluster. You saw people wearing jackets you can’t even
tell the insignia on the jackets. You can’t even tell what colors
they are, what club they’re from. This is not an open and shut
case. It’s not hey, there was an incident at the bar, obviously
that one incident, as a man is leaving with three females, did
that trigger someone to come back and start shooting? In fact,
Trina Gillard tells you that the original guy that had words with
John Adams, she didn’t even see out there. There’s about 15
people in that video, members of the jury, and we see multiple
people swinging at each other. It’s your eyes that matter.
N.T. Trial 9/18/2014, at 150-151.
Clearly, Adams wanted the jury to believe Jenkins, the only victim to
testify, was mistaken in his initial identification of Adams as the person who
shot him. As noted above, both the Commonwealth and Adams wanted to
convince the jury the same person committed the shootings; they only
differed in the identity of that person. However, just because both parties
theorized only one person acted criminally does not mean that the evidence
presented necessitated that determination.
As argued in closing on behalf of Adams, there was a melee at the
time of the shooting. Although Adams’ argument of a confused scene and
mistaken identity assumed a single shooter, there is no logical reason why
that confusion could not extend to the number of shooters. At trial, Jenkins
testified he did not see who shot him. Logically, that also means he could
not say the person who shot him was the same person who shot Gordon.
Additionally, the portion of the closing argument quoted above suggests any
number of people could have been the shooter. Based upon the scenario
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argued by Adams, we see no reason why a jury could not rationally believe
different people were responsible for shooting Jenkins and Gordon.
Finally, the evidence presented at trial also allows for the possibility of
two shooters. We note that Jenkins’ testimony provided the jurors with
ample reason to doubt his initial claim Adams shot him. As we discussed
above, at trial Jenkins testified that he did not see who shot him, but that
that he chased after the person he believed had shot Gordon. This failure
to positively identify the person who shot him as the same person who shot
Gordon, togther with the lack of video evidence of the Jenkins shooting,
leaves a gap in the evidence and rationally allows the jury to separate the
two shootings.
Further, Jenkins’ testimony at trial regarding the shooting was
remarkably vague. For example:
Q [By the Commonwealth]: Among the people being bounced
out of the Club, are any in Court here today?
A: No.
Q: No, you are not sure?
A: I am not sure.
N.T. Trial, 9/16/2014, at 31.
A: I was looking across the street, now I am paranoid and I seen
someone walking across the alleyway, across the street. I didn’t
get a good look at him. It is dark and I seen someone grabbing
something. The next thing I know, I am blanking out – I am
seeing something being pulled out.
Q: Could you tell if it was a gun?
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A: Not at first. Then I realized it was a gun.
Id. at 33
Q: And the person that came back and started firing, is this one
of the people involved in the fight?
A: I don’t know, sir. I am saying at the time I am starting to
blank out and having flashbacks.
Q: At that time or now?
A: Right now I am having flashbacks.
Id. at 34.
Q: [Reading to Jenkins his prior statement to the police] How
sure are you the male was shooting in the parking lot of 2063
Ridge is the same person kicked out of the Club earlier? Answer:
I am positive.
A: Yes.
Q: Was that accurate at the time?
A: To be honest I don’t know how to answer that. The only
thing I seen was clothes and the gun. I was not looking at the
guy fighting. Whoever had a gun was shooting at me.
***
Q: Question: Can you describe the person that shot you?
Answer: I really didn’t see who was shooting. When I got hit, I
heard the shots coming from the area where the guy I saw was
running coming from outside of the gate. I never made it out of
the gate when I was shot. Do you remember that?
A: Yes.
Id. at 45-46.
Q [Again questioning Jenkins regarding his prior statement]: Can
you identify the male that was shooting inside of the parking lot
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of 2063 Ridge Avenue? I think I can if I saw him again. Do you
remember that?
A: Yes.
Q: Was that accurate?
A: In my best knowledge. I don’t know.
Id. at 49.
On cross-examination, Jenkins continued his vague testimony
regarding the identity of the shooter.
Q: Mr. John Adams, is he the gentleman who shot you that
night?
A: I don’t know for sure. I am still trying to find out myself.
Q: Do you remember seeing him that night?
A: He looks familiar.
Q: He looks familiar. He looks like the gentleman that was being
escorted out?
A: I really didn’t get a good picture that night of the face.
Somewhat the clothing.
Q: And the body type?
A: That is why I am confused if this is the man that did the
shooting.
Id. at 67.
Finally,
Q [Regarding Jenkins’ prior testimony at the preliminary
hearing]: And at that time you were under oath, you told both
the DA, defendant’s counsel and the judge that Mr. Adams was
not the person that shot you; is that correct?
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A: I am saying the same thing I said before. I don’t remember if
it is him or not. If that is the same thing. I don’t know if that is
him or not.
Id. at 80.3
Given the fact that there was no direct video evidence as to who shot
Jenkins, coupled with his reluctant trial testimony, it is not surprising the
jury acquitted Adams of shooting Jenkins. When Jenkins’ testimony is
reviewed in light of Adams’ own argument that any number of other people
at the scene might have been armed, it raises the distinct possibility of more
than one shooter.
Finally, we need to look at the nature of the evidence against Adams
and the shooting of Gordon. During deliberations the jury repeatedly
requested it be allowed to view either the video or the still pictures taken
from the video. We quote the jury’s final message to the court:
Without reviewing the surveillance video and/or still images, the
jury will be unable to come to a unanimous decision on the
charges relating to the shooting of Gregory Gordon. Further
deliberations without reviewing those materials will not be
productive.
Jury Question #8, 9/19/2014.
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3
We are aware that Jenkins identified Adams as his shooter in his prior
statement to the police. This statement supports the reasoning that there
was a single shooter. However, we must examine the contrary trial
testimony to determine whether the jury could have reasonably concluded
there was more than one shooter.
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We believe this is clear evidence the jury was considering the
shootings separately and evaluating the nature and quality of the evidence
as to each alleged victim. Given the uncertain identification testimony of
Jenkins and the inability of the jury to review the photographic evidence
during deliberations, we believe it was reasonable for the jury to acquit
Adams of shooting Jenkins yet be unable to reach a verdict with respect to
Gordon.
In light of the above, we do not believe Adams’ acquittal of shooting
Jenkins necessarily determined Adams did not shoot Gordon. Accordingly,
the trial court erred in granting Adams’ motion to bar retrial on the basis of
collateral estoppel.
Order vacated. This matter is remanded to the trial court for action
consistent with this decision. Jurisdiction relinquished.
Judge Musmanno joins in the memorandum.
President Judge Emeritus Ford Elliott concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/7/2016
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