Com. v. Rankin, J. ( 2020 )

J-A05005-20
2020 Pa. Super. 165
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JEROME L. RANKIN :
:
Appellant : No. 856 WDA 2018
Appeal from the Judgment of Sentence Entered April 30, 2018
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0010860-2017
BEFORE: BENDER, P.J.E., BOWES, J., and PELLEGRINI, J.*
OPINION BY BENDER, P.J.E.: FILED JULY 10, 2020
Appellant, Jerome L. Rankin, appeals from the judgment of sentence of
a $200 fine, imposed after the trial court found him guilty of three summary
violations of the Motor Vehicle Code (“MVC”), 75 Pa.C.S. §§ 1501-1586. The
trial court issued the guilty verdict after the jury, early in the same
consolidated jury/bench trial, had acquitted Appellant of a misdemeanor MVC
charge that also arose from the incident underlying the summary MVC
violations. Appellant asserts that collateral estoppel and double jeopardy
principles precluded the non-jury guilty verdict, arguing that his identity was
the only contested issue before the jury and, therefore, that the trial court’s
verdict had essentially nullified the jury’s verdict. After careful review, we
reverse Appellant’s judgment of sentence.
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* Retired Senior Judge assigned to the Superior Court.
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The trial court summarized the facts adduced at Appellant’s trial and
procedural history of this case, as follows:
On or about June 5, 2017, Appellant was charged at [CP-02-CR-
0010860-2017] with one count of Fleeing or Attempting to Elude
Police, in violation of 75 Pa.C.S. § 3733, which was graded as a
misdemeanor of the second degree. Also stemming from the
same incident, Appellant was charged with one count each of
Reckless Driving, in violation of 75 Pa.C.S. § 3736(a); Driving at
an Unsafe Speed, in violation of 75 Pa.C.S. § 3361; and,
[I]gnoring Traffic Control Devices, in violation of 75 Pa.C.S. §
3112(a)(3)(i). [A]ll three of the traffic violations were graded as
summary offenses. After a preliminary hearing, at which all the
charges were held for trial, Appellant elected to proceed before a
jury as factfinder on the misdemeanor charge. The trial court sat
as factfinder on the summary offenses.
At trial, University of Pittsburgh Police Officer Jeffrey Crum
testified that at about midday, he was monitoring a busy
intersection on the Pitt campus when he saw Appellant drive his
vehicle through a standing red light. He said that, after Appellant
looked around and turned his head toward the officer, the two
made eye contact and Appellant accelerated down a main street
that runs through the center of campus. The officer explained
that, initially, he gave chase. Officer Crum described the heavy
pedestrian and vehicle congestion in the area[,] which he said
raised safety concerns. He said because of department policy he
felt forced to terminate his pursuit so as not to further endanger
the lunchtime crowd. Nevertheless, Officer Crum said he got a
good look at Appellant and was able to record the license plate of
the vehicle Appellant was driving, which eventually led to [his]
arrest.
Ultimately, the jury acquitted Appellant of the misdemeanor
charge; however, the trial court convicted Appellant of all three
summary offenses. The court then immediately imposed the
mandatory two hundred dollar ($200.00) fine for reckless driving
and no further penalty on the remaining summary convictions.
Trial Court Opinion (“TCO”), 5/29/19, at 2-4 (footnotes omitted).
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Appellant’s consolidated jury/bench trial and sentencing hearing was
held on April 30, 2018. He filed a post-sentence motion challenging his
conviction based, inter alia, on principles of double jeopardy and collateral
estoppel. On June 7, 2018, the trial court denied Appellant’s post-sentence
motion following a hearing. Appellant filed a timely notice of appeal, and then
provided the trial court with a Pa.R.A.P. 1925(b) statement on July 20, 2018,
despite not being ordered to do so. The trial court eventually issued its 7-
page Rule 1925(a) opinion on May 29, 2019.
Appellant now presents the following question for our review:
In a consolidated jury/bench trial where the jury acquitted
[Appellant] of Fleeing or Attempting to Elude Police Officer,
concluding that he was not the driver, whether principles of double
jeopardy and collateral estoppel barred the trial court from
convicting [him] of Reckless Driving, Driving Vehicle at Safe
Speed, and Traffic-Control Signals stemming from the same
incident?
Appellant’s Brief at 4.
“[T]he application of double jeopardy and collateral estoppel principles
in the context of joint jury/bench trials” is an issue “of constitutional
magnitude, a pure question of law. Accordingly, our standard of review is de
novo, and our scope of review is plenary.” Commonwealth v. States, 938
A.2d 1016, 1019 (Pa. 2007) (cleaned up).
The proscription against twice placing an individual in jeopardy of
life or limb is found in the Fifth Amendment to the United States
Constitution, made applicable to the states through the
Fourteenth Amendment. The double jeopardy protections
afforded by our state constitution are coextensive with those
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federal in origin; essentially, both prohibit successive prosecutions
and multiple punishments for the same offense.
Id. (citation omitted).
With respect to the criminal law defendant, collateral estoppel is
treated as a subpart of double jeopardy protection and is defined
as follows: “Collateral estoppel ... does not automatically bar
subsequent prosecutions[,] 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. Smith, … 540 A.2d 246, 251
([Pa.] 1988) (citation omitted). As simple as this definition
appears, the principle’s application is not as straightforward as it
is in the civil context because it must be viewed through the lens
of double jeopardy. Commonwealth v. Brown, … 469 A.2d
1371, 1373 ([Pa.] 1983) (it is “double jeopardy that forbids the
state from offending the collateral estoppel rule”).
States, 938 A.2d at 1020.
In criminal cases,
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. 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. 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, … 445 A.2d 92, 96 ([Pa.]
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, 602 A.2d 345, 349–50 ([Pa. Super.] 1992)
(Commonwealth’s concession that the jury’s acquittal meant [the]
appellant did not possess a gun collaterally estopped
Commonwealth from any subsequent prosecution based on [the]
appellant’s possession of a gun); Commonwealth v. Klinger,
398 A.2d 1036, 1041 ([Pa. Super.] 1979) ([Klinger]’s acquittal on
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murder precluded the Commonwealth from bringing a subsequent
perjury prosecution based on [his] trial testimony that he did not
kill the victim), aff’d. sub nom. Commonwealth v. Hude, 425
A.2d 313 ([Pa.] 1980). Conversely, where an acquittal cannot be
definitively interpreted 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 [Commonwealth
v.] Buffington, 828 A.2d [1024,] 1033 [(Pa. 2003)] (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, …
582 A.2d 1319, 1323 ([Pa. Super.] 1990) (robbery acquittal did
not preclude retrial on hung charge of aggravated assault)….
States, 938 A.2d at 1021–22 (some citations and quotation marks omitted).
In the instant case, Appellant contends that “the record establishes
conclusively that the only issue at … trial was whether or not he was driving
the vehicle that fled from the police on June 4, 2017.” Appellant’s Brief at 15.
He further argues that, “[i]n light of the pleadings, the charges, the evidence,
the parties’ theories and defenses, and the jury’s verdict of acquittal, there
was a factual finding established, or necessarily implied, in [Appellant]’s favor
that he was not the driver of the vehicle.” Id. at 15-16.
The trial court disagreed, concluding instead that:
Here, the prosecution did not seek to burden Appellant with
successive trials or double punishment; nor has it ever sought to
relitigate Appellant’s acquittal for Fleeing and Eluding Police or
even to relitigate a factual finding that Appellant was the driver in
the instant criminal episode. Unlike the trial court in States, who
made a factual finding … on the record, there were no factual
findings or special interrogatories or stipulations
explaining the jury’s acquittal. Instead, Appellant was tried
before a jury on the single count of Fleeing or Eluding Police and
the remaining traffic violations were left to be adjudicated by the
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trial court siting as factfinder. Appellant invites the appellate court
to speculate as to what elements of Fleeing or Eluding Police the
jury found lacking in the Commonwealth’s case. [He] claims that
the jury must have necessarily found that he was not driving. The
task for the jury, however, was not so simple. There are four
elements to the charge of fleeing or eluding police and we cannot
speculate on the reason or reasons why the jury reached its
conclusion.
TCO at 7 (emphasis added). The Commonwealth echoes the trial court,
reasoning that:
The [t]rial [c]ourt was permitted to convict [A]ppellant in a
simultaneous jury/non-jury proceeding, even though the jury
acquitted him of a factually related charge, because the jury did
not announce any factual findings with their verdict that would
have cabined the [t]rial [c]ourt and prevented it from finding that
[A]ppellant was the actor in this case. Thus, because there
were no factual findings accompanying the jury’s verdict in
this case, it would be speculation to draw any conclusion about
how the jury reached its verdict.
Commonwealth’s Brief at 11 (emphasis added).
As emphasized above, the trial court and the Commonwealth essentially
assert that the lack of specific factual findings by the jury precludes Appellant’s
collateral estoppel argument.1 Indeed, if such a bright-line rule exists,
resolution of the matter is mechanically predetermined: The jury’s general
verdict was not accompanied by any findings of fact, and therefore the trial
court concluded, ipso facto, that there was no violation of double jeopardy
____________________________________________
1 The Commonwealth cites this Court’s decisions in Commonwealth v.
Yachymiak, 505 A.2d 1024 (Pa. Super. 1986), and Commonwealth v.
Wharton, 594 A.2d 696 (Pa. Super. 1991), for support. We discuss these
cases in detail, infra.
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principles when the trial court issued a verdict ostensibly inconsistent with the
jury’s acquittal.
However, while the presence of specific factual findings is often
dispositive of double jeopardy questions in particular cases, see e.g., States,2
it does not follow that the absence of specific factual findings is always fatal
to a double jeopardy claim in all cases when a jury renders a general verdict.
Indeed, in the seminal case of Ashe v. Swenson, 397 U.S. 436 (1970), the
United States Supreme Court clearly dispelled that view.3
As the Ashe Court instructed,
[t]he federal decisions have made clear that the rule of collateral
estoppel in criminal cases is not to be applied with the
hypertechnical and archaic approach of a 19 th century pleading
book, but with realism and rationality. Where a previous
judgment of acquittal was based upon a general verdict, as is
usually the case, this approach requires a court to “examine the
record of a prior proceeding, taking into account the pleadings,
evidence, charge, and other relevant matter, and conclude
____________________________________________
2 In States, the defendant “and two other men were in an automobile that
was in a single vehicle accident…. States survived the crash, but the two other
men died.” States, 938 A.2d at 1017. The Commonwealth charged States
with numerous offenses related to their death. He proceeded to a consolidated
jury/non-jury trial, where the jury considered involuntary manslaughter and
related charges, while the court considered the charge of accidents involving
death while not properly licensed. The jury deadlocked, but the trial court
found States not guilty of accidents involving death. In acquitting States, the
trial court specifically found that there was reasonable doubt as to whether
States was the driver. Our Supreme Court held that double jeopardy and
collateral estoppel precluded States’ retrial on involuntary manslaughter due
to that specific factual finding. Id. at 1027.
3 The Pennsylvania Supreme Court noted that “Ashe … demonstrate[s] the
primary effect, and underlying purposes, of both double jeopardy protection
and its narrower subpart, collateral estoppel.” States, 938 A.2d at 1020.
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whether a rational jury could have grounded its verdict upon an
issue other than that which the defendant seeks to foreclose from
consideration.” The inquiry “must be set in a practical frame and
viewed with an eye to all the circumstances of the proceedings.”
Sealfon v. United States, 332 U.S. 575, 579 [(1948)]. Any test
more technically restrictive would, of course, simply amount to a
rejection of the rule of collateral estoppel in criminal proceedings,
at least in every case where the first judgment was based upon a
general verdict of acquittal.9
9 “If a later court is permitted to state that the jury may
have disbelieved substantial and uncontradicted evidence of
the prosecution on a point the defendant did not contest,
the possible multiplicity of prosecutions is staggering. […]
In fact, such a restrictive definition of ‘determined’ amounts
simply to a rejection of collateral estoppel, since it is
impossible to imagine a statutory offense in which the
government has to prove only one element or issue to
sustain a conviction.” Mayers & Yarbrough, [Bis Vexari:
New Trials and Successive Prosecutions, 74 Harv.L.Rev. 1,
38 (1960)]. …
Ashe, 397 U.S. at 444 (footnote omitted).
Thus, it is clear from the above passage that a general verdict, i.e., the
absence of specific findings of fact, cannot alone defeat a double
jeopardy/collateral estoppel claim. Rather, a reviewing court must determine,
through a lens of rationality and realism, not hypertechnical logic, “whether a
rational jury could have grounded its verdict upon an issue other than that
which the defendant seeks to foreclose from consideration.” Id. Given this
standard, we conclude that the trial court erred when it determined that the
absence of specific findings of fact by the jury, by itself, conclusively precluded
Appellant’s argument that double jeopardy and collateral estoppel principles
prevented the trial court from reconsidering the issue of Appellant’s identity
following the jury’s verdict.
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We next consider several alternative arguments by the Commonwealth
in support of affirming the judgment of sentence against Appellant’s double
jeopardy challenge. First, the Commonwealth argues that the absence of
specific stipulations by Appellant forecloses his double jeopardy/collateral
estoppel claim. See Commonwealth’s Brief at 18 (stating “the lack of
stipulation by trial counsel about the other elements of the crime is important
… because … the jury was still legally required to consider all the other
elements and deliberate upon whether the Commonwealth had proven these
elements beyond a reasonable doubt”). The Commonwealth provides no
authority for such a rule, and our review of Ashe suggests otherwise.
The Ashe Court applied double jeopardy principles under the following
circumstances:
[S]ix men were engaged in a poker game in the basement of the
home of John Gladson at Lee’s Summit, Missouri. Suddenly three
or four masked men, armed with a shotgun and pistols, broke into
the basement and robbed each of the poker players of money and
various articles of personal property. The robbers—and it has
never been clear whether there were three or four of them—then
fled in a car belonging to one of the victims of the robbery. Shortly
thereafter[,] the stolen car was discovered in a field, and later that
morning three men were arrested by a state trooper while they
were walking on a highway not far from where the abandoned car
had been found. [Ashe] was arrested by another officer some
distance away.
Ashe, 397 U.S. at 437.
The prosecution tried Ashe for the robbery of one of the victims, but the
jury found him not guilty. The issue before the United States Supreme Court
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was whether the prosecution could then try Ashe for the robbery of the other
victims. The High Court concluded that it could not, reasoning:
Straightforward application of the federal rule to the present case
can lead to but one conclusion. For the record is utterly devoid
of any indication that the first jury could rationally have
found that an armed robbery had not occurred, or that
Knight had not been a victim of that robbery. The single rationally
conceivable issue in dispute before the jury was whether the
petitioner had been one of the robbers. And the jury by its verdict
found that he had not. The federal rule of law, therefore, would
make a second prosecution for the robbery of Roberts wholly
impermissible.
Id. at 445 (emphasis added).
Had there been a stipulation that a robbery had occurred, that Knight
had been a victim of it, or regarding any other pertinent element of robbery
beyond the identity of the perpetrator, it would be quite odd that the Ashe
Court failed to mention it. Thus, it is reasonable to assume that no such
stipulation existed. Yet, despite the absence of a stipulation to rely upon, it
was still clear to the Ashe Court that certain elements of the robbery were
not in contention at Ashe’s trial. The Ashe Court also rejected the notion that
a rational jury disbelieves “substantial and uncontradicted evidence of the
prosecution on a point the defendant did not contest[.]” Id. at 444 n.9
(quoting Mayers, supra).
Instantly, the Commonwealth’s argument contradicts the Ashe Court’s
reasoning. Appellant’s double jeopardy/collateral estoppel claim is not solely
contingent upon his counsel’s failure to stipulate to ostensibly uncontested
evidence. Instead, we must examine the record to determine if a rational jury
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could have acquitted Appellant on any other element besides his identity as
the perpetrator.
The Commonwealth also suggests that the jury may have simply
exercised lenity. We agree that, in general, lenity is a barrier to drawing
specific conclusions from general verdicts. Consequently, we cannot draw a
specific conclusion solely from the jury’s general verdict. However, our
inquiry simply does not end there. Lenity is a theoretical cause of an acquittal
in every case, even where there are stipulations and specific findings of fact.
The governing standard, however, dictates that we consider all relevant
circumstances from Appellant’s trial in determining whether any issue other
than identity was in dispute. If those circumstances clearly demonstrate that
the issue of identity was the sole matter under consideration, invoking lenity
to defeat a double jeopardy claim is exactly the sort of “hypertechnical and
archaic approach” that was rejected by the Ashe Court.
Appellant contends that a fair reading of the record demonstrates that
his identity was the only issue before the jury, and that the remaining
elements of Fleeing or Attempting to Elude Police were left uncontested.
Based on our independent review of the record, we agree.
During opening arguments, the parties had already framed the case as
hinging on Appellant’s identity as the perpetrator. Assistant District Attorney
(“ADA”) Stephen Slinger spoke first. N.T., 4/30/18, at 23-26. After briefly
summarizing what he intended to prove at trial, ADA Slinger commented that
Appellant “is a distinctive individual. There really isn’t a question of mistaken
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identity here. It’s rather cut and dry.” Id. at 26. Appellant was represented
at trial by Kayla Schindler, Esq., and her co-counsel, Andrew Capone, Esq.
Attorney Schindler opened, and immediately framed the case as one of
mistaken identity, stating, “Ladies and gentlemen of the jury[,] [y]ou’re going
to hear a case of mistaken identity.” Id. Attorney Schindler did not present
any arguments as to any other element of the crime. Id. at 26-31.
The Commonwealth presented two witnesses, Officer Jeffrey Crum, and
his supervisor, Sergeant Tracy Harasyn. Officer Crum provide the only
eyewitness testimony of the reckless driving incident, as briefly summarized
above by the trial court. Importantly, Officer Crum testified that after
observing the vehicle run a red light, the driver turned to look back at the
officer and they made eye contact. Id. at 32-33. Additionally, before
terminating his pursuit of the fleeing vehicle, he obtained the vehicle’s license
plate number. From that information, Officer Crum was eventually able to
determine that the vehicle was registered to Jeronica Gatewood and
Appellant.4 Id. at 42. Officer Crum, with the help of his supervisor, Sergeant
Harasyn, then obtained a photo of Appellant from his driver’s license contained
in a law enforcement database. Id. Officer Crum identified Appellant from
that photo as the driver of the vehicle he had observed. Id. at 43-44. He
____________________________________________
4 The Commonwealth did not present any evidence to substantiate that
Appellant’s name was on the title or registration of the vehicle.
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further testified that Appellant had a distinctive appearance, in that he was a
light-skinned black male with dreadlocks and a facial tattoo below his left eye. 5
Id. at 46.
During cross-examination by Attorney Schindler, Officer Crum was
questioned about his vantage point at the time he observed the vehicle run
the red light, the same vantage point from which he ostensibly was able to
identify Appellant’s face. Id. at 50-52. Attorney Schindler then attempted to
impeach the officer on the basis that, in his initial report, he had described the
culprit as a black male, in his 20’s, and wearing dreadlocks, but had not
mentioned any facial tattoos. Id. at 53-54. Officer Crum had also failed to
mention the tattoo at Appellant’s preliminary hearing. Id. at 54. Additionally,
Officer Crum admitted that he had never described Appellant as a light-
skinned black male, rather than as merely a black male, until his trial
testimony. Id. at 55. Attorney Schindler did not question Officer Crum
regarding any other matters; not one question explicitly or even fairly
suggested that Officer Crum’s observations regarding the illegal conduct he
observed were not credible.
The Commonwealth’s only other witness, Sergeant Harasyn, testified
solely to matters related to Officer Crum’s identification of Appellant. She
stated that she assisted Officer Crum in pulling Appellant’s photo from the
____________________________________________
5Officer Crum further stated that the facial tattoo “was one of the first things”
he “noticed in the picture that was shown to” him from the database. Id. at
46.
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database. Id. at 59. When she showed Appellant’s photo to him, Officer
Crum told her that Appellant was the driver of the vehicle that fled from him.
Id. Attorney Schindler’s brief cross-examination of Sergeant Harasyn did not
broach any other topics. Id. at 61-62. Following Sergeant Harasyn’s
testimony, the Commonwealth rested its case. Id. at 62. Appellant then
made a motion for judgment of acquittal based upon insufficient evidence of
identity. Id. at 63. The motion was promptly denied by the trial court. Id.
at 64.
Appellant presented a single witness at trial, his sister, Jeronica
Gatewood. Ms. Gatewood first testified that she owned the vehicle in question.
Id. at 65. She then authenticated Defense Exhibit B, the title to the vehicle.
Id. at 65-66. Only her name was listed on the title. Id. at 66. The
Commonwealth did not object to the admission of Defense Exhibit B. Id.
Ms. Gatewood then testified that she was not driving the vehicle on the
date of the incident. Id. She also stated that at that time, the vehicle was in
the possession of her ex-husband. Id. at 67-68. She explained that her ex-
husband told her that he had lent the vehicle to his friend, a man named
Rayquan.6 Id. at 68. She described Rayquan as a dark-skinned black man
with dreadlocks. Id. at 69. Ms. Gatewood also testified that Appellant never
borrowed her car, and that the police had never approached her to question
her about the incident. Id. at 68. ADA Slinger then briefly cross-examined
____________________________________________
6Although this testimony was obviously hearsay, the Commonwealth did not
object.
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Ms. Gatewood. Id. at 69-71. Ms. Gatewood admitted that she was close to
her brother, and that her knowledge of who was driving her car at the time of
the incident was reliant on her ex-husband’s statement. Id. at 70-71.
Appellant declined to testify. Id. at 72. The case then proceeded to
closing arguments, where Attorney Schindler addressed the jury first. Her
argument was exclusively tailored to the issue of identity. She used Officer
Crum’s vantage point to cast doubt on his ability to observe the driver’s face.
Id. at 79-80. She then attacked Officer Crum’s identification of Appellant due
to his evolving description of the driver from his initial report until trial. Id.
at 80-81. Later, Ms. Schindler attempted to buttress these identity arguments
by reference to Ms. Gatewood’s testimony. Id. at 83. The only statement or
argument that Ms. Schindler made to the jury regarding any issue besides
identity was a brief comment—indeed, a concession—from which she
immediately transitioned into another argument about identity. Id. at 81 (“I
don’t doubt that Officer Crum probably saw the car go through the
intersection. But [Appellant] was not driving it.”).
ADA Slinger’s closing argument began with an acknowledgement that
“this is being put to you as a case of mistaken identity.” Id. at 84. The vast
majority of his argument concerned identity. Id. (“Now, my assertion to you
is it would be hard to mistake [Appellant] sitting in the courtroom here for
someone else.”); id. (“I will concede that situations of mistaken identity
happen, but it didn’t happen here.”); id. (“Now, [Attorney] Schindler said
[Officer Crum] would have gotten a quick glimpse. 20 miles an hour isn’t that
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fast. It was the middle of the day. Officer Crum made eye contact with
[Appellant], got a good look at him and positively identified him.”); id. at 86
(“This is not a situation of mistaken identity.”). ADA Slinger then attacked
Ms. Gatewood’s credibility, whose testimony could only be construed as being
pertinent to the issue of identity. Id. at 86-87.
The Commonwealth then briefly discussed other issues:
Now, [Attorney] Schindler also acknowledged or, excuse me,
argued in her closing statement about the description of the area
and that this was after graduation, so this doesn’t make sense
that it was a crowded area; and he couldn’t have chased the --
excuse me, that he wouldn’t have had to have terminated his
pursuit because of the people here. Now, you don’t get to have it
both ways.
Her argument to you was that he wasn’t driving the car. But now
we’re arguing about facts regarding the area and the number of
people there and things of that nature. You don’t get to have it
both ways. He was either driving the car or he wasn’t driving the
car. Or, you know, we could hash out about the pursuit and the
facts about the pursuit and the number of people in the area,
etcetera, etcetera.
Id. at 88-89. Thus, approximately two paragraphs of his closing argument
ostensibly concerned matters other than identity.
However, this statement by ADA Slinger is a clear exaggeration of the
following brief statement by Attorney Schindler during her closing argument:
Now, Officer Crum comes before you today. He starts to describe
the scene. All these students out. All these pedestrians. Now,
ladies and gentlemen, this was 11:00 a.m. on a Sunday,
midsummer. This was June 4th that this incident happened. I
asked Officer Crum about that.
I said, “This was a Sunday; right?” He agreed with me. Like I
said, this was mid June, June 4th. This was after Pitt graduation.
So does that make sense to each of you?
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Id. at 82. This would be the only part of Attorney Schindler’s argument that
was not clearly directed at the issue of Appellant’s identity.
However, at no point did Attorney Schindler state to the jury, or
reasonably imply, that Officer Crum “wouldn’t have had to have terminated
his pursuit because of the people here” as suggested by ADA Slinger. Id. at
88. In any event, whether Officer Crum was justified or not in terminating his
pursuit of the fleeing vehicle due to the number of people in the vicinity was
not pertinent to the charge before the jury. A misdemeanor violation of 75
Pa.C.S. § 3733 occurs when a “driver of a motor vehicle … willfully fails or
refuses to bring his vehicle to a stop, or … otherwise flees or attempts to elude
a pursuing police officer, when given a visual and audible signal to bring the
vehicle to a stop….” 75 Pa.C.S. § 3733(a). There is no element related to the
officer’s reasoning for terminating such a pursuit.
In its brief to this Court, the Commonwealth attempts to reframe this
dispute, suggesting that “there is at least one factual scenario supported by
the record that would have allowed the jury to conclude that [A]ppellant was
the driver of the vehicle and, yet, was not guilty of the fleeing and eluding
offense. For instance, the jury might have believed that [A]ppellant never
saw the officer’s visual or audible signal to bring the vehicle to a stop because
of the congestion in the area that the officer described during his testimony.”
Commonwealth’s Brief at 28 (citing N.T, 4/30/18, at 40 (“It’s a very, very
busy location. If anybody’s been through Oakland during lunchtime, getting
around that location is a very difficult prospect.”)).
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This argument is specious at best. First, neither party suggested any
such an issue was in contention at trial. It appears for the first time in the
Commonwealth’s Brief. Moreover, the Commonwealth fails to point to any
portion of the record where it was stated or reasonably implied that there
was any doubt regarding whether the driver was able to see the police lights
or hear the siren.7
Second, the theoretical issue the Commonwealth alludes to is contained
in Section 3733(c), which sets forth the defenses to the charge of fleeing or
attempting to elude a police officer:
(c) Defenses.--
(1) It is a defense to a prosecution under this section that the
pursuing police officer’s vehicle was not clearly identifiable by its
markings or, if unmarked, was not occupied by a police officer who
was in uniform and displaying a badge or other sign of authority.
(2) It is a defense to prosecution under this section if the
defendant can show by a preponderance of the evidence that the
failure to stop immediately for a police officer’s vehicle was based
upon a good faith concern for personal safety. In determining
whether the defendant has met this burden, the court may
consider the following factors:
(i) The time and location of the event.
(ii) The type of police vehicle used by the police officer.
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7 The Commonwealth unconvincingly attempts to suggest that such a fact
could have been implied from Officer Crum’s testimony that he only got within
one or two car lengths of the fleeing vehicle before he ended the pursuit.
Commonwealth’s Brief at 28. The Commonwealth utterly fails to explain how
or why a driver would be unable to detect a police vehicle’s lights and siren at
such a close distance and, it is facially absurd to suggest that such a distance,
by itself, raises such a doubt.
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(iii) The defendant’s conduct while being followed by the
police officer.
(iv) Whether the defendant stopped at the first available
reasonably lighted or populated area.
(v) Any other factor considered relevant by the court.
75 Pa.C.S. § 3733(c).
At no point during Appellant’s trial were these statutory defenses
discussed. Indeed, the trial court never instructed the jury on these defenses.
See N.T, 4/30/18, at 102-03. There is a simple and rational reason for this:
No evidence suggesting the potential applicability of any of the affirmative
statutory defenses to Section 3733 was presented at Appellant’s trial. In any
event, in acquitting Appellant, the jury could not have relied on a defense of
which they were not aware.
Having carefully considered the record before us, we conclude that the
only issue upon which the jury could have rationally relied in acquitting
Appellant was his identity as the driver. However, the Commonwealth argues
that in Yachymiak and Wharton, this Court considered analogous
circumstances and came to a contrary conclusion. We disagree, as we find
both cases distinguishable.
In Yachymiak,
police officers observed a vehicle being operated erratically,
repeatedly crossing the center line of the highway. After signaling
the car to pull over, the officers observed the driver squeeze
between the bucket seats and move to the rear of the car. When
the officers approached the car on foot, appellant’s wife was in the
driver’s seat and appellant was lying on the back seat.
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[The a]ppellant was ordered out of the car, and due to the odor of
alcohol on his breath was asked to perform field sobriety tests,
which he did poorly. He refused to take a breath alcohol test. As
a result, he was charged with driving under the influence of
alcohol, … driving under suspension …, and failure to drive on the
right side of the roadway….
***
At the conclusion of the trial, the jury returned a verdict of not
guilty on the misdemeanor charge. The judge, however, sitting as
fact-finder on the summary offenses, found [the] appellant guilty
of driving under suspension and failure to drive on the right side
of the roadway.
Yachymiak, 505 A.2d at 1025.
On appeal, the appellant in Yachymiak argued that “the jury’s acquittal
on the charge of driving under the influence necessarily rested upon a specific
finding that [the] appellant was not operating the vehicle, due to his admission
that he was intoxicated.” Id. at 1026. This Court rejected that claim,
reasoning:
In the case at bar, for instance, conviction of driving under the
influence would have entailed three findings of fact: [the]
appellant was operating the vehicle, he was under the influence
of alcohol[,] and he was incapable of safe driving. An acquittal
entails reasonable doubt of any one of the essential facts. The
judge’s finding that [the] appellant was operating the vehicle is
inconsistent only if the acquittal was based on the jury’s doubt
that [the] appellant was driving rather than on the absence of
either of the other two elements of the offense. Despite [the]
appellant’s insistence that he did not contest the issue of his
intoxication so that his acquittal must be interpreted as a jury
finding that he was not the operator of the vehicle, there is at least
a reasonable possibility that the verdict was based upon an
absence of proof that [he] was intoxicated to a degree which
rendered him incapable of safe driving.1
1 At the conclusion of the Commonwealth’s case, [the]
appellant’s counsel demurred to the charge of driving under
the influence because neither prosecuting officer testified to
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the opinion that [the] appellant was under the influence.
The court denied the demurrer, ruling that the weight of the
evidence of the field sobriety tests and the odor of alcohol
presented a jury question as to intoxication. Although the
evidence that [the] appellant was so intoxicated as to be
incapable of safe driving was sufficient to overcome a
demurrer, it was not overwhelming.
Id. at 1026–27 (citation to the record omitted, emphasis added).
Based on the above passage, the Commonwealth argues:
Thus, the Yachymiak decision supports the judge’s verdict in this
case because this Court recognized in Yachymiak that one cannot
speculate as to the basis for the jury’s verdict and that, moreover,
it is always possible that the jury’s verdict was an exercise of the
jury’s lenity as opposed to a jury’s finding on any specific element.
Commonwealth’s Brief at 25.
In its analysis of Yachymiak, the Commonwealth omits the Court’s
footnote. See id. In so doing, the Commonwealth overlooks a critical portion
of the Yachymiak Court’s analysis. In that footnote’s absence, it may appear
that the Court premised its conclusion that “a reasonable possibility [existed]
that the verdict was based upon an absence of proof that [the] appellant was
intoxicated” on the mere theoretical chance that the acquittal was premised
on proof of intoxication rather than identity, despite Yachymiak’s admission.
Yachymiak, 505 A.2d at 1027. However, the footnote makes it clear that
the Court’s decision was instead more nuanced and based on the specific
circumstances of that case. Despite Yachymiak’s not challenging his
intoxication at trial, the Court determined that the record showed that the
Commonwealth’s intoxication evidence was still “not overwhelming.” Id.
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We ascertain no equivalent circumstances in this case regarding the
non-identity elements of Section 3733(a). Officer Crum’s testimony clearly
established a violation of the statute, the only question that remained was
whether Appellant was the driver. As noted above, in Ashe, the United States
Supreme Court clearly disproved of assuming a jury “disbelieved substantial
and uncontradicted evidence of the prosecution on a point the defendant did
not contest….” Ashe, 397 U.S. at 444 n.9 (quoting Mayers, supra). Here,
the record is void of any reason to disbelieve Officer Crum’s observation that
the vehicle in question failed to stop despite obvious and close police pursuit.
The Yachymiak Court determined, by contrast, that while there was evidence
of the defendant’s intoxication, it was not overwhelming. Thus, that case is
distinguishable on the facts.
Wharton, which relied in substantial part on Yachymiak, is also
distinguishable from the instant matter. In that case, the defendant was
charged with numerous offenses after the vehicle he was allegedly driving
crashed, killing his girlfriend. Wharton, 594 A.2d at 696. The Wharton
Court indicated that Wharton “defended on grounds that his deceased
girlfriend had been the driver of the vehicle.” Id. A jury acquitted him on all
homicide offenses, but the trial court subsequently found him guilty of several
summary offenses after hearing additional evidence. Id. at 697.
The specific question before the Wharton Court was whether the
defendant was literally tried twice for the same incident. Unlike in the instant
case, the trial court in Wharton heard additional evidence ten days after the
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jury had rendered its verdict. Id. This Court nevertheless reasoned that the
“charges against [Wharton] were, in fact, consolidated in a single trial in which
the jury was the fact finder in the felony and misdemeanor charges and the
trial court was fact finder in the summary charges.” Id. The Court ultimately
concluded that “[p]rinciples of double jeopardy have not been violated merely
because the receipt of additional evidence was delayed until after the verdict
of the jury had been returned.” Id. at 699 (emphasis added).
Our decision today does not conflict with the specific holding at issue in
Wharton. There was no additional evidence presented at a later date that
preceded the trial court’s verdict. Moreover, we decline to read Wharton as
standing in conflict with the constitutional standard set forth in Ashe.8 There
was no discussion in Wharton about the specific nature of the non-identity
evidence presented before the jury, and/or whether such evidence (or the lack
thereof) could have formed the basis for acquittal on non-identity grounds.9
Accordingly, Wharton is distinguishable and, therefore, not controlling here.
In sum, we conclude that the trial court erred in determining that the
absence of specific findings of facts by the jury, alone, precluded Appellant’s
double jeopardy/collateral estoppel argument. We reject the
Commonwealth’s related argument that Appellant’s double jeopardy/collateral
estoppel claims are precluded solely because he failed to stipulate to issues
____________________________________________
8 See note 3, supra.
9 Nor is there any indication that Wharton had made such specific claims in
his appeal.
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that were, nonetheless, not in dispute at trial. We also reject the
Commonwealth’s argument that the principle of lenity is a catch-all that would
swallow the rule in Ashe. After reviewing all the circumstances of Appellant’s
consolidated trial, it is plain from the record that a rational jury did not acquit
Appellant on any ground aside from identity. Accordingly, we hold that double
jeopardy principles barred Appellant’s conviction for the three summary MVC
offenses at issue in this appeal, as that conviction followed the jury’s verdict
from the same trial, and was necessarily premised on the trial court’s simply
disagreeing with the jury’s conclusion that Appellant was not the driver in
question. Finally, we discern no conflict in our decision with this Court’s prior
holdings in Yachymiak and Wharton.
Judgment of sentence reversed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/10/2020
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