Com. v. Laureano, R.

J. A03004/16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
ROBERTO R. LAUREANO, :
:
Appellee : No. 3602 EDA 2014
Appeal from the Order November 19, 2014
In the Court of Common Pleas of Bucks County
Criminal Division No.: CP-09-0000087-2012
BEFORE: GANTMAN, P.J., MUNDY, J., and DUBOW, J.
MEMORANDUM BY DUBOW, J.: FILED MAY 12, 2016
On May 12, 2012, the trial court convicted the Appellee, Roberto R.
Laureano, of charges related to driving while intoxicated. Rather than file a
Post-Sentence Motion, Appellee filed an oral Motion for Extraordinary Relief.
On November 19, 2014, the trial court granted the oral Motion for
Extraordinary Relief, reversed an earlier decision that permitted the
Commonwealth to amend the Information after closing arguments, and
found the Appellee not guilty of the charges. The Commonwealth has
appealed that Order. After careful review, we conclude that the trial court
improperly granted the Motion for Extraordinary Relief. Accordingly, we
reverse the trial court’s Order, reinstate Appellee’s conviction, and again
remand for sentencing.
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Factual and Procedural History
On October 20, 2011, Appellee Roberto R. Laureano, while driving his
car, hit and killed a pedestrian. Blood testing revealed the presence of
metabolites of marijuana. On February 2, 2012, the Commonwealth
charged Appellee with operating a vehicle with marijuana constituent in his
system pursuant to 75 Pa.C.S. § 3802(d)(1)(i).
On May 12, 2012, the trial court denied Appellee’s pretrial Motion to
Suppress the blood test results and immediately held a stipulated waiver
trial.
During the trial, the Commonwealth did not present evidence that
corresponded to the statutory provision with which the Commonwealth
charged the Appellee. In particular, the Commonwealth only presented
evidence to establish that Appellee had in his blood stream marijuana
metabolites rather than marijuana constituent as the Commonwealth
charged in the Information.
During closing arguments, Appellee’s attorney capitalized on this error
and argued that the Commonwealth failed to meet its burden because it only
provided evidence to establish 75 Pa.C.S. § 3802(d)(1)(iii) (marijuana
metabolites). Since the Commonwealth charged Appellee with 75 Pa.C.S. §
3802(d)(1)(i) (marijuana constituent), Appellee argued that the
Commonwealth failed to provide evidence establishing the presence of
marijuana constituent and the trial court must find Appellee not guilty.
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Realizing the gravity of this error, the Commonwealth immediately
made an oral Motion to Amend the Information to rectify the variance so
that the charge matched the evidence the Commonwealth just presented at
trial. The trial court granted the Motion to Amend and allowed the
Commonwealth to amend the Information so that the charge in the
Information reflected the evidence that the Commonwealth had just
presented at trial. The trial court then convicted Appellee of the amended
charge in the Information under 75 Pa.C.S. § 3802(d)(1)(iii) (marijuana
metabolites).
Rather than file a Motion for Post-Sentence relief, Appellee filed a
written Motion for Extraordinary Relief requesting, among other things,
reconsideration of the Motion to Suppress the blood test results. After a
hearing, the trial court granted Appellee’s Motion for Extraordinary Relief in
part, reversed its previous order denying the Motion to Suppress, granted
the Motion to Suppress, and vacated Appellee’s conviction. The
Commonwealth appealed.
On September 17, 2013, this Court affirmed the order of the trial court
suppressing the blood test. Commonwealth v. Laureano, 87 A.3d 384,
2714 EDA 2012 (Pa. Super. 2013) (unpublished memorandum). Our
Supreme Court granted the Commonwealth’s Petition for Allowance of
Appeal, vacated this Court’s decision, and remanded to this Court for
reconsideration in light of Commonwealth v. Smith, 77 A.3d 562 (Pa.
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2013). See Commonwealth v. Laureano, 91 A.3d 700, 1045 MAL 2013
(Pa. filed April 29, 2014) (unpublished). On remand, this Court reversed the
order of the trial court suppressing the blood test, reinstated the conviction,
and remanded for sentencing.
On remand in the trial court, Appellee orally raised two additional
issues presented in his original written Motion for Extraordinary Relief.
Appellee argued that it was highly prejudicial to Appellee to permit the
Commonwealth to amend the Information not only after the parties had
presented their evidence, but also after he argued during closing argument
that the Commonwealth had charged Appellee with the wrong section of the
DUI statute.
The trial court granted Appellee’s Motion for Extraordinary Relief and
reconsidered its earlier decision to permit the Commonwealth to amend the
Information after closing arguments. The trial court then concluded that it
had incorrectly allowed the Commonwealth to amend its Information during
closing argument and reversed that decision. The trial court then found the
Appellee not guilty of the charges set forth in the Information because the
Commonwealth only presented evidence of the presence of metabolites of
marijuana and not marijuana constituent as required by § 3802(d)(1)(i), the
section of the DUI statute that the Commonwealth originally charged
Appellee with in the Information.
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The Commonwealth thereafter filed the instant appeal. On February
10, 2015, this Court issued a Rule to Show Cause directing the
Commonwealth to explain the basis for its right to appeal the trial court’s
entry of a not guilty verdict. The Commonwealth filed a response and relied
on Commonwealth v. Feathers, 660 A.2d 90 (Pa. Super. 1995), to
support its argument that this appeal is permitted. Appellee responded that
the Double Jeopardy Clause precluded the Commonwealth’s appeal.
Issues on Appeal
The Commonwealth presents three questions on appeal, which we
reorder:
A. Is the trial court’s order granting extraordinary relief,
vacating the guilty verdict[,] and entering a verdict of not
guilty an appealable order?
B. Did the trial court err in granting Appellee’s motion for
extraordinary relief and reversing its earlier trial ruling[,]
which permitted amendment of the criminal information
where the trial ruling granting that amendment was proper?
C. Did the trial court err in permitting a hearing on Appellee’s
written motion for extraordinary relief insofar as the relevant
Rule of Criminal Procedure does not permit such written
motions and as the motion was not warranted as it did not
allege a manifest error requiring immediate relief?
Appellant’s Brief at 4.
Jurisdiction and Double Jeopardy
Before reaching the substantive claims that the Commonwealth raises,
we first consider whether this Court has jurisdiction over this appeal. In
doing so, we address whether the Double Jeopardy Clause of the Fifth
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Amendment to the U.S. Constitution1 and Article 1, Section 10 of the
Pennsylvania Constitution2 preclude our review of this appeal. We conclude
that, since the Commonwealth is appealing a Judgment of Acquittal that the
trial court granted after it entered its original verdict, the Double Jeopardy
Clause does not prohibit our review3.
“Jurisdiction is purely a question of law; the appellate standard of
review is de novo and the scope of review plenary.” Commonwealth v.
Seiders, 11 A.3d 495, 496-97 (Pa. Super. 2010) (citation omitted).
The Double Jeopardy Clause prohibits prosecutors from repeatedly
prosecuting defendants for the same offense, and the protections under the
United States and Pennsylvania Constitutions are coextensive.
Commonwealth v. Lively, 610 A.2d 7, 8 (Pa. 1992). If a former
prosecution results in an acquittal, “statutory law explicitly precludes the
Commonwealth from trying a defendant a second time.” Commonwealth
1
The Fifth Amendment provides, in relevant part, that no person “shall be
subject for the same offence to be twice put in jeopardy of life or limb.”
U.S. Const. amend. V.
2
Article 1, section 10 of the Pennsylvania Constitution provides, in relevant
part, that “no person shall, for the same offense, be twice put in jeopardy of
life or limb.” Pa. Const. art. I, § 10.
3
Although the trial court in its Opinion outlines the facts of the case such
that its ultimate decision was to find Appellee not guilty, we conclude, as
discussed infra, that under the unique procedural posture of this case, the
not guilty verdict was equivalent to the entry of a Judgment of Acquittal.
The trial court acknowledges this as well. Trial Court Opinion, filed 1/30/15,
at 6.
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v. Stevenson, 829 A.2d 701, 704 (Pa. Super. 2003); 18 Pa.C.S. §§ 109,
110. The Pennsylvania Supreme Court has explained the reasoning for
barring retrial:
This rule barring retrial is confined to cases where the
prosecution’s failure to meet its burden is clear and a second
trial would merely afford the prosecution another opportunity to
supply evidence that it failed to put forth in the first proceeding.
This prohibition prevents the State from honing its trial
strategies and perfecting its evidence through successive
attempts at conviction. Repeated prosecutorial sallies would
unfairly burden the defendant and create a risk of conviction
through sheer governmental perseverance.
Commonwealth v. Gibbons, 784 A.2d 776, 778 (Pa. 2001) (citations
omitted).
The bar on a prosecutor’s right to appeal an unfavorable decision,
however, is not absolute. The prosecutor may appeal an unfavorable
decision “where a Government appeal presents no threat of successive
prosecutions.” United States v. Martin Linen Supply Co., 430 U.S. 564,
569-70 (1977).
In particular, if the trial court enters the Judgment of Acquittal after,
and not before, the factfinder convicts a defendant, the Commonwealth has
the right to appeal “without running afoul of the Double Jeopardy Clause.”
United States v. Wilson, 420 U.S. 332, 352-53 (1975). The reasoning for
allowing the Commonwealth to appeal a post-conviction Judgment of
Acquittal is that a “conclusion by an appellate court that the judgment of
acquittal was improper does not require a criminal defendant to submit to a
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second trial; the error can be corrected on remand by the entry of a
judgment on the verdict.” United States v. Jenkins, 420 U.S. 358, 365
(1975), overruled on other grounds by United States v. Scott, 437 U.S. 82(1978).
The U.S. Supreme Court noted that the defendant “would prefer that
the Government not be permitted to appeal or that the judgment of
conviction not be entered, but this interest of the defendant is not one that
the Double Jeopardy Clause was designed to protect.” Id. at 365.
In contrast, if the Commonwealth had a right to appeal a pre-
conviction Judgment of Acquittal that the trial court entered before a jury
convicted a defendant, the only remedy the appellate court could fashion
would involve a re-trial of the defendant and this would trigger the Double
Jeopardy Clause. Wilson, supra at 348, 352-53.
The Pennsylvania courts have adopted these principles. In fact, “[f]or
one hundred and seventy-five (175) years appellate courts of this
Commonwealth have properly entertained appeals by the Commonwealth
from orders granting a defendant arrest of judgment.” Commonwealth v.
Coleman, 532 A.2d 477, 482 (Pa. Super. 1987) (citation omitted); see also
Feathers, supra at 90.
The courts in Pennsylvania also distinguish between “pre-conviction
and post-conviction determinations of the sufficiency of the evidence.”
Coleman, supra at 482. This Court, in fact, held that a Judgment of
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Acquittal that the trial court enters following a conviction does not become a
final judgment until the appellate court rules on the granting of a Judgment
of Acquittal. Therefore, jeopardy does not attach until after the appellate
court has ruled on the Judgment of Acquittal. Id. (quoting Commonwealth
v. Fitzhugh, 520 A.2d 424, 428 (Pa. Super. 1987)).
In this case, the trial court, after the close of evidence, convicted the
Appellee of 75 Pa.C.S. § 3802(d)(1)(i). It was at the sentencing hearing
that the Appellee made his oral Motion for Extraordinary Relief seeking a
Judgment of Acquittal, which the trial court granted. Since the trial court
granted the Judgment of Acquittal after the Appellee had been convicted, the
Double Jeopardy Clause does not preclude our review of the trial court’s
grant of the Motion for Extraordinary Relief.
For these reasons, we have jurisdiction over the Commonwealth’s
appeal and we proceed to the merits.
Appellee’s Motion For Extraordinary Relief
The Commonwealth next challenges the trial court’s Order granting
Appellee’s oral Motion for Extraordinary Relief seeking a Judgment of
Acquittal. After careful review, we conclude that the trial court erroneously
and prematurely addressed the straightforward legal issue of the propriety of
the amendment to the Information and entered the Judgment of Acquittal.
Such an issue is properly reserved for Post-Sentence Motions for the precise
procedural reason that this case presents.
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Appellee initially filed a written Motion for Extraordinary Relief on July
12, 2012, arguing, inter alia, that the trial court erroneously permitted the
Commonwealth to amend the Information.4 On remand, Appellee again
raised the issue of the amendment of the Information at the sentencing
hearing on November 19, 2014. For the reasons discussed below, the trial
court’s grant of an oral Motion for Extraordinary Relief to reconsider the
amendment issue was improper.
Pennsylvania Rule of Criminal Procedure 704, in relevant part,
authorizes the trial court to hear a Motion for Extraordinary Relief and grant
a Motion for Judgment of Acquittal in extraordinary circumstances:
(B) Oral Motion for Extraordinary Relief.
(1) Under extraordinary circumstances, when the interests
of justice require, the trial judge may, before sentencing, hear
an oral motion in arrest of judgment, for a judgment of acquittal,
or for a new trial.
(2) The judge shall decide a motion for extraordinary relief
before imposing sentence, and shall not delay the sentencing
proceeding in order to decide it.
(3) A motion for extraordinary relief shall have no effect on the
preservation or waiver of issues for post-sentence consideration
or appeal.
4
The Appellee originally filed a written, as opposed to oral, Motion for
Extraordinary Relief and then made an oral motion at the sentencing
hearing. The trial court, cognizant of the requirement that the Appellee
make a motion that is oral, found that it based its decision on the oral, not
written, motion. Trial Court Opinion, filed 1/30/15, at 6. We will not disturb
that finding and will not address the issue of whether a defendant who files a
written and then an oral Motion for Extraordinary Relief waives his right to
the issues raised in the motion.
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Pa.R.Crim.P. 704(B) (emphasis added).
The Comment to Rule 704 limits the grounds on which a trial court
judge can grant a Motion for Extraordinary Relief to those “errors so
manifest that immediate relief is essential.” Pa.R.Crim.P. 704, Comment.
Applying this rule, this Court has held that Rule 704(B) “was not
intended to provide a substitute vehicle for a convicted defendant to raise
matters which could otherwise be raised via post[-]sentence motions.”
Commonwealth v. Celestin, 825 A.2d 670, 674 (Pa. Super. 2003). In
other words, Motions for Extraordinary Relief are not appropriate for “garden
variety” issues that the defendant can raise after sentencing. Id.In this case, the trial court used the authority granted to it pursuant to
Rule 704(B), rather than Rule 720, to decide whether the trial court had
properly granted the Commonwealth’s motion to amend the Information. In
other words, the issue is whether the trial court properly decided the
amendment issue pursuant to a Motion for Extraordinary Relief or should the
trial court have waited to decide it in a Post-Sentence Motion.
As discussed above, after the Commonwealth had closed its case and
during the Appellee’s closing argument, the Commonwealth made a motion
to amend the Information so that the Information reflected the evidence that
the Commonwealth had just presented at trial. The trial court granted the
motion and permitted the Commonwealth to amend the Information. The
trial court then found Appellee guilty of the DUI charge.
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At the sentencing hearing, Appellee made a Motion for Extraordinary
Relief, requesting that the trial court reverse its decision on the amendment
issue and enter a Judgment of Acquittal. The trial court agreed and reversed
its decision on the amendment issue and entered a Judgment of Acquittal.
This amendment issue, however, is not an issue so extraordinary,
obvious, or egregious as to merit immediate relief or such that the interests
of justice are best served by trial court deciding the issue before sentencing
Appellee. Celestin, supra at 674. Rather, this issue is a “garden-variety”
legal claim that the trial court should decide after sentencing. Therefore, the
trial court lacks the authority to decide it in a Motion for Extraordinary Relief.
See Pa.R.Crim.P. 606, 704, 720; Celestin, supra at 674.
The trial court in its Opinion, however, opines that the amendment
issue was so manifest as to require immediate relief because if the trial court
did not address the amendment issue and enter the Judgment of Acquittal,
the Appellee “would have been sentenced for this crime on November 19,
2014” and would have faced immediate consequences. Trial Court Opinion,
filed 1/30/15, at 6.
Such a broad interpretation of Motions for Extraordinary Relief under
Rule 704(B) would eliminate Post-Sentence Motions in their entirety. If the
extraordinary reason for making the decision before sentencing is that the
defendant will face immediate consequences by the trial court’s sentencing
of the defendant, then every convicted defendant would have the right to
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request extraordinary relief on virtually any legal claim, which would render
the limited purpose of oral Motions for Extraordinary Relief as provided by
the rules of criminal procedure meaningless.
Accordingly, we conclude that the trial court erred when it entertained
Appellee’s legal challenge to the amendment of the Information and entered
a Judgment of Acquittal pursuant to an oral Motion for Extraordinary Relief.5
Conclusion
The trial court improperly granted relief in this case by reversing its
earlier amendment decision. Appellee should have presented his “garden
variety” legal claims, and the trial court should have addressed these claims,
in a Post-Sentence Motion. This would permit appellate review of the trial
court’s purely legal conclusions. As a result, we reverse the trial court’s
Order, reinstate Appellee’s conviction, and again remand for sentencing.
Order reversed. Conviction reinstated. Case remanded for
sentencing. Jurisdiction relinquished.
5
This court is not addressing the substance of the court’s ruling on the
Motion for Extraordinary Relief. Rather, this court’s holding is limited to the
finding that Appellee raised his issues prematurely and should have raised
them in a Post-Sentence Motion and not in a Motion for Extraordinary Relief.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/12/2016
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