Commonwealth v. Dooley

Opinion by

Hoffman, J.,

The appellee, Charles Dooley was tried before the Honorable Albert A. Fiok and a jury on an indictment charging the arson felony murder of Mrs. Martha Day. After a three day trial, the jury returned a general verdict of acquittal. Subsequently, the Commonwealth proposed to try him on an indictment charging the arson of the building in which Mrs. Day died. The appellee moved to dismiss this indictment alleging that the trial was barred by his felony murder acquittal. Without disposition of this motion, the court ordered the appellee to trial which resulted in an arson conviction. Subsequently, a motion in arrest of judgment was filed alleging that the arson trial was in violation of his Fifth Amendment protection agaiust being twice placed in jeopardy. A court en bane arrested judgment on the basis of Commonwealth v. DeVaughn, 221 Pa. Superior Ct. 410, 292 A. 2d 444 (1972). This appeal by the Commonwealth followed.

In Ashe v. Swenson, 397 U.S. 436 (1970), the United States Supreme Court held that the doctrine of collateral estoppel is embodied in the Fifth Amendment guarantee against double jeopardy. That doctrine “means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” 397 U.S. at 443. In applying this doctrine, the Court stated that “the rule of collateral estoppel in criminal cases is not to be applied with the hypertechnical and archaic approach of a 19th 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 whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.’ [Footnote omitted]. The inquiry ‘must be set in a practical frame and viewed with an eye to all the circumstances of the proceedings.’ [Citation omitted]. 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.” 397 U.S. at 444. With this test in mind, this court must determine “whether the jury in [appellee’s] first trial for felonious homicide could have rationally grounded its verdict of acquittal on any other issue than [appellee’s] non-participation in the [arson].” Commonwealth v. De-Vaughn, 221 Pa. Superior Ct. 410, 413, 414, 292 A. 2d 444, 447 (1972).

The Commonwealth argues that the jury in the felony murder trial was faced with two ultimate issues, viz, whether appellant set fire to the building, and whether the decedent died as a result of that fire. The Commonwealth then argues that the jury could have found that Mrs. Day did not die as a result of the fire, and that, therefore, the issue of appellee’s participation in the arson was not finally litigated so as to preclude a trial for the arson. To so argue is to merely state the difficult question¹ which this court must determine from a careful and searching examination of the record of the prior proceeding, keeping in mind that “[t]he ‘twice put in jeopardy’ language of the Constitution ... relates to a potential, i.e., the risk that an accused for a second time will be convicted of the ‘same offense’ for which he was initially tried [and acquitted].” Price v. Georgia, 398 U.S. 323, 326, 90 S. Ct. 1757, 1759 (1970). (Emphasis added.)

Explicit in our decision in DeYwighn is a presumption that the jury in the first trial acted rationally in reaching its verdict of acquittal. Applying this presumption to the instant case, it is inconceivable that a rational jury in the first trial grounded its verdict of acquittal upon a finding that decedent did not die as a result of the fire.

The evidence showed that Mrs. Day died from severe cerebral injuries. These injuries were the result of being struck by a flat object with sharp edges. The evidence further showed that when ignited, the accellerant (gasoline) used by the arsonist exploded. As a result of this explosion, the door to the decedent’s apartment was violently blown off the hinges into the apartment in the general area where decedent was later found. Bloodstains, which were never analyzed, were found on the edge of the door.² The Commonwealth’s expert testified that the decedent’s wounds were perfectly consistent with being struck by the door. This was the Commonwealth’s theory of causation and the only evidence adduced as to causation was directed to proving this theory. In his extensive charge to the jury³ the trial judge mentioned the issue of causation only once, and then, only briefly. Indeed, in an opinion⁴ filed November 4, 1970, the trial judge stated convincingly that in his opinion, “[T]he evidence of the Commonwealth at the first trial disclosed that as a result of the fire and explosion, Martha Day was pronounced dead from cranial cerebral injuries.” Thus, the trial judge was of the opinion that the Commonwealth convincingly proved its theory of causation.⁵

As in DeVaughn, “without a scintilla of evidence that decedent died as a result of some other cause than tlie [fire], a rational jury cannot be presumed to have found tht the decedent died from anything but those” injuries received in the fire. Commonwealth v. De-Vaughn, 221 Pa. Superior Ct. 410, 417, 292 A. 2d 444, 448, 449 (1972). For us to conclude that the jury did not find that decedent died as a result of the fire would be to assume that the jury disregarded the evidence presented as to causation, and speculated that death was caused by some other mysterious agency.

We, therefore, conclude that the ultimate issue determined by the jury in appellee’s first trial was his non-participation in the arson. Any other conclusion would attribute to the jury an element of irrationality inconsistent with the application of the doctrine of collateral estoppel in criminal cases.⁶

The order of the lower court is affirmed.⁷

1 Justice Schaefer of the Illinois Supreme Oourt has observed: “Collateral estoppel is ... of limited value because it is not often possible to determine with precision how the judge or jury has decided any particular issue.” Schaefer, Unresolved Issues in the haw of Double Jeopardy: Waller and Ashe, 58 Cal. L.R. 391, 394.

2 One of the 26 photographs introduced into evidence by the Commonwealth showed the presence of bloodstains on the door.

3 The judge’s charge to the jury was over 70 pages long. The issue of causation was covered in one sentence, while the issue of appellee’s participation in the arson was extensively covered.

4 After appellee was acquitted of the felony murder of Mrs. Day, the Commonwealth attempted to try him for the homicides of two other people who died in the fire. Appellee filed motions to dismiss these indictments alleging that a trial thereon would place him twice in jeopardy. Judge Fiok’s order and opinion sustained appeUee’s contention, holding that appellee could not be tried on those homicide charges as he had been previously acquitted of the same charges in the earlier trial in which the same issues had been litigated and determined in his favor.

5 Although there is no need to weigh the sufficiency of the evidence, a review of the evidence would indicate that the jury was justified in concluding that appellee was not a participant in the arson. He was seriously injured in the fire. Analysis of his clothing did not disclose the presence of gasoline residue although the Commonwealth’s expert stated that it would have been detected if present. Appellee’s fingerprints were not found on the gasoline can. The only evidence linking appellee with the fire was the weak identification made by a taxicab driver who identified appellee as a passenger he drove to a gasoline station to obtain a can of gasoline. This witness stated that his passenger was wearing coveralls. When found by the police, appellee was wearing a shirt and trousers. The driver had been working for twenty straight hours when this passenger boarded, and was, as he stated, more concerned with watching the road than anything else. The gas station attendant who recalled selling the gasoline could not identify the appellee as the purchaser despite a good opportunity to observe him.

6 “If a later court is permitted to state that the jury may have disbelieved substantial and uneontradieted 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 Veaiari: New Trials and Successive Prosecutions, 74 Harv. R. Rev. 1, 38.

7 This case was argued, and appellee’s trial occurred before the Pennsylvania Supreme Court decided Commonwealth v. Campana, 452 Pa. 233 (1973). That case held that where multiple criminal offenses arise from the same “act”, “episode”, or “transaction”, all offenses must be tried in one prosecution. Campana’s holding would have prevented the appellee from being tried for arson after being acquitted of felony murder. Whether Campana’s holding is applicable to the instant case is questionable. Justice Roberts, joined by Justices O’Brien and Manderino, viewed compulsory joinder of offenses as mandatory under the double jeopardy provision of the Fifth Amendment. Chief Justice Jones, Justices Fagen and Nix, would require joinder, but not as a constitutional requirement. The three justices who did not view joinder as a constitutional requirement would apparently give prospective effect to the rule. As this case can be decided under the Ashe doctrine of collateral estoppel, there is no need to determine the effect of Campana on cases pending appeal at the time Campana was decided.