Com. v. Rodriguez-Claudio, W. ( 2014 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.
WILFREDO RODRIGUEZ-CLAUDIO
Appellee No. 394 MDA 2014
Appeal from the Order Entered January 29, 2014
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0000920-2012
BEFORE: BOWES, J., MUNDY, J., and JENKINS, J.
CONCURRING STATEMENT BY MUNDY, J.: FILED OCTOBER 23, 2014
I concur in the result reached by the Majority that the trial court erred
in dismissing the severed violation of the Uniform Firearms Act (VUFA)
charge on the grounds of the collateral estoppel component of the Double
Jeopardy Clause. I do so, however, on a different basis than that relied
upon by the Majority. I agree with the Majority that, to the extent the trial
court determined the jury must have concluded Appellant was not in
possession of the firearm when it acquitted him of possession of an
instrument of crime (PIC), its determination was too narrow. Rather, as the
Majority notes, the jury could have premised its verdict “upon a finding that
Appellee acted justifiably when he fired his shotgun at assailants pursuing
his sister.” Majority Memorandum at 8. Implicit in the Majority’s position, is
that the jury’s finding of justification is not available as a defense to the
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possessory VUFA charge. If it was, the trial court’s application of collateral
estoppel in this case would be proper, based on this alternative finding by
the jury. This Court has recently speculated about the applicability of a
justification defense to possessory offenses without resolving the issue.
In Commonwealth v. Valcarel, 94 A.3d 397 (Pa. Super. 2014), the
defendant was charged with unlawfully possessing a weapon in prison.1 Id.
at 397. Prior to trial, the Commonwealth filed a motion in limine, seeking to
preclude the defendant from introducing evidence supporting his claim of
justification.2 Id. at 398. The trial court precluded the evidence, and the
defendant appealed. Id. On appeal, the Valcarel panel did not directly
address the Commonwealth’s position that justification was not an available
defense to the charge. Rather, it held that assuming arguendo the defense
was available, the defendant did not establish the necessary conditions
precedent for the defense. Id. at 401-402, citing Commonwealth v.
Stanley, 446 A.2d 583, 589 (Pa. 1982) (applying standards articulated in
People v. Lovercamp, 118 Cal. Rptr. 110 (Cal. Ct. App. 1974)).
In Commonwealth v. Moore, 49 A.3d 896, (Pa. Super. 2012), this
Court was confronted with a similar scenario as that presented in the instant
case. In Moore, the defendant was charged with homicide and attempted
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1
18 Pa.C.S.A. § 5122(a)(2).
2
The defendant claimed he secured the shiv at issue because of threats
from other inmates and prior attacks on him and his best friend in the
prison. Id. at 398-399.
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homicide counts, together with PIC and VUFA. Id. at 897. The trial was
bifurcated, deferring the VUFA charge until after verdict on the remaining
charges. Id. The defendant claimed self-defense at trial. Id. A jury
acquitted Moore of all the homicide charges but convicted him of PIC and, in
the second phase of the trial, the VUFA charge. Id. On appeal, this Court
determined that the defendant’s conviction for PIC was not supported by
sufficient evidence because the Commonwealth had not proven intent to
employ the firearm criminally. Id. at 901. The Moore Court, however,
declined to consider whether self-defense is an available defense to VUFA
because the defendant continued to possess the gun after the need for self-
defense had passed, providing an independent basis for the appellant’s
conviction of that offense. Id. at 903.
In the instant case, testimony at trial indicated that Appellee, after the
shooting, retained possession of the firearm and transported it to a new
location at the home of co-defendant, leaving it with co-defendant’s wife.
N.T., 9/30/13 to 10/2/13, at 281-282. I conclude, therefore, consistent with
Moore, Appellant’s alleged actions after the shooting, when the need for
self-defense was arguably abated, provide a basis for prosecution of the
VUFA charge independent of the jury’s verdict. It is on this basis that I
conclude the trial court erred in its application of the collateral estoppel
component of the Double Jeopardy Clause to preclude the Commonwealth’s
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further prosecution of Appellee on the VUFA charge. With these
clarifications, I concur in the result reached by the Majority.
Judge Bowes and Judge Jenkins join this concurring statement.
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