Com. v. Johnson, A.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
ANDRE MARCUS JOHNSON
Appellee No. 1636 EDA 2019
Appeal from the Order Entered May 7, 2019
In the Court of Common Pleas of Montgomery County
Criminal Division at No: CP-46-CR-0004578-2018
BEFORE: STABILE, J. KING, J., and STEVENS, P.J.E.*
MEMORANDUM BY STABILE, J.: FILED NOVEMBER 06, 2020
The Commonwealth of Pennsylvania appeals from the trial court’s May
7, 2019 order denying the motion of Appellee, Andre Marcus Johnson, to
dismiss this prosecution on grounds of double jeopardy1 pursuant to
Pa.R.Crim.P. 587. At the first trial, the jury found Appellee not guilty of third-
degree murder and possession of a concealed weapon with intent to use it in
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* Former Justice specially assigned to the Superior Court.
1 The Double Jeopardy clauses of the United States and Pennsylvania
Constitutions forbid a second trial “for the purpose of affording the prosecution
another opportunity to supply evidence which it failed to muster in the first
proceeding.” Commonwealth v. McMullen, 745 A.2d 683, 686-87 (Pa.
Super. 2000), appeal denied, 761 A.2d 549 (Pa. 2000). The Pennsylvania
and federal Double Jeopardy Clauses are co-extensive in scope and nearly
identical in language. Id. (citing U.S. CONST. amend. V; PA CONST. art. I,
§ 10).
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a crime.2 According to the verdict, the jury found that Appellee did not shoot
the victim and was not in possession of a gun. The jury was deadlocked on
second-degree murder, robbery, and criminal use of a communication facility.3
For reasons that are unclear, the trial court gave an accomplice liability
instruction for second-degree murder and robbery, but not for any other
offense. N.T. Jury Charge, 2/27/19, at 9. The trial court therefore directed
that the Commonwealth may retry Appellee as an accomplice to second-
degree murder but, given Appellee’s acquittal for third-degree murder, the
Commonwealth must prove Appellee was the non-shooting accomplice. The
trial court reasoned that the jury, in acquitting Appellee of third-degree
murder, found as fact that he was not the shooter. Thus, the doctrines of
double jeopardy and collateral estoppel bar the Commonwealth from
suggesting otherwise on retrial. After careful review, we affirm.
The underlying facts are as follows. The dead body of the victim,
Desmond Johnson (no relation to Appellee), was found lying on Carson Alley
just after midnight on April 17, 2018. The cause of death was a single gunshot
wound, and the death was ruled a homicide. Police recovered a single .40
caliber shell casing at the end of a 200-foot trail of blood leading away from
the victim’s body. They never found the murder weapon. Messages from a
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2 18 Pa.C.S.A. §§ 2502(c) and 907(b).
3 18 Pa.C.S.A. §§ 2502(b), 3701, and 7512.
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cell phone found in the victim’s hand revealed that Appellee arranged to
purchase marijuana from the victim shortly before his death. Appellee
admitted as much.
Surveillance footage showed Appellee and a friend, D’ontae Parker, in
Carson Alley minutes before the arranged drug deal. Parker walked off camera
in the direction of the location where police found the spent .40 caliber casing.
Appellee walked in the other direction, apparently to meet the victim.
Subsequent surveillance footage from another location depicts Appellee and
the victim walking off camera together in the direction of Carson Alley. Police
officers reported hearing gunshots in the area within a minute of the time
Appellee and the victim walked off camera. Parker refused to answer
questions at trial.
A jury trial commenced on February 22, 2019. The Commonwealth
argued to the jury that Appellee was either the murderer or Parker’s
accomplice. The Commonwealth argued that the jury could find Appellee
guilty as an accomplice even if it was unsure which party fired the fatal shot.
After the jury reached the aforementioned verdicts, the Commonwealth
notified the trial court of its intent to retry Appellee on the offenses that
deadlocked the jury. Appellee filed his Rule 587 motion seeking to bar retrial.
The trial court conducted a hearing on March 27, 2019, and entered the order
on appeal on May 7, 2019.
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Before we turn to the merits of the double jeopardy issue, we consider
whether this appeal is properly before us. A pretrial order denying a
defendant’s non-frivolous double jeopardy claim is final for purposes of
appeal. Commonwealth v. Orie, 22 A.3d 1021, 1024-25 (Pa. 2011).
Instantly, however, the Commonwealth is the appealing party even though it
defeated Appellee’s motion to prohibit retrial (Appellee has not filed a cross
appeal). The trial court urges this Court to quash this appeal because the
Commonwealth is not an aggrieved party and therefore lacks standing.
The Commonwealth proceeded under Rule 311(d) of the Pennsylvania
Rules of Appellate Procedure, which provides as follows:
Commonwealth appeals in criminal cases.--In a criminal
case, under the circumstances provided by law, the
Commonwealth may take an appeal as of right from an order that
does not end the entire case where the Commonwealth certifies
in the notice of appeal that the order will terminate or substantially
handicap the prosecution.
Pa.R.A.P. 311(d). In the ordinary case, such as an order granting a
defendant’s motion to suppress evidence, the Commonwealth’s good faith
certification pursuant to Rule 311(d) is sufficient to permit an immediate
appeal. Commonwealth v. Boczkowski, 846 A.2d 75, 86-87 (Pa. 2004).
The ruling before us is unusual, however, in that it seemingly adds to the
Commonwealth’s burden of proving Appellee’s guilt as an accomplice.
Accomplice liability, pursuant to 18 Pa.C.S.A. § 306, “requires evidence
that the person: (1) intended to aid or promote the substantive offense; and
(2) actively participated in that offense by soliciting, aiding, or agreeing to aid
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the principal.” Commonwealth v. Collins, 957 A.2d 237, 263 (Pa. 2008).
Our Supreme Court has held that the Commonwealth need not identify the
respective roles of the principal and accomplice in order to obtain a conviction.
Commonwealth v. Bradley, 392 A.2d 688 (Pa. 1978). Thus, the
Commonwealth claims the trial court has added an extra element to its
burden: proof that Appellee was not the principal.
In these circumstances, we conclude that an immediate appeal under
Rule 311(d) is appropriate. In the Commonwealth’s view, the trial court has
imposed an additional—and potentially impossible—element to its burden of
proof. If the Commonwealth is correct, then the order before us has at least
the same potential to handicap or terminate a prosecution as would the
exclusion of vital evidence. We therefore reject the trial court’s assertion that
the Commonwealth is not an aggrieved party, and we conclude that the
Commonwealth’s appeal was appropriate under Rule 311(d).
We now turn to the merits. The question is whether, given Appellee’s
acquittal for third-degree murder, double jeopardy requires the
Commonwealth to prove Appellee was not the shooter in order to convict him
as an accomplice to second-degree murder. This is a question of law, for
which our standard of review is de novo and our scope of review is plenary.
Commonwealth v. States, 938 A.2d 1016 1019 (Pa. 2007).
It has been stated that ‘the principle of double jeopardy
serves not one, but three distinct interests. In ascending degrees
of importance, they are: (1) an interest in finality which may be
overcome relatively easily; (2) an interest in avoiding double
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punishment which comes armed with a presumption in the
defendant's favor; and (3) an interest in nullification—viz., an
interest in allowing the system to acquit against the evidence—
which is absolute. These three interests are loosely connected to
the notion of ending litigation, and it is this connection that
provides textual justification for bringing them under the common
‘rubric’ of double jeopardy.’
Commonwealth v. Zimmerman, 445 A.2d 92, 94 (Pa. 1981) (quoting
Commonwealth v. Tabb, 421 A.2d , 183, 187 (Pa. 1980)). The case before
us implicates the third, highest priority double jeopardy interest—protecting
the “factfinders’ absolute right to make the final factual determination on the
charges submitted to them.” Id. The operative factual finding in this case is
that Appellee did not commit the killing.
Where, as here, a jury returns an acquittal on some charges but
deadlocks on others, courts employ principles of collateral estoppel. Ashe v.
Swenson, 397 U.S. 436 (1970). In Ashe, the United States Supreme Court
held that principles of collateral estoppel are part of the Fifth Amendment’s
double jeopardy protection, and that these principles apply to the states
through the Fourteenth Amendment. Collateral estoppel “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.” Id. at 443.
The Pennsylvania Supreme Court has explained the applicability of
collateral estoppel in the case of a criminal retrial as follows:
First, collateral estoppel does not require that the offenses
charged in the two prosecutions be the same. Second, collateral
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estoppel only bars a redetermination of those issues necessarily
determined between the parties in the first proceeding. Third,
collateral estoppel requires a final judgment in the first
proceeding.
Commonwealth v. Hude, 425 A.2d 313, 319 (Pa. 1980). Thus, 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 than that which the
defendant seeks to foreclose from consideration.” Id. at 319–20 (quoting
Ashe, 397 U.S. at 444). “Therefore, a person cannot be tried a second time
if the jury has decided in his or her favor an issue of ultimate fact essential to
a conviction of the offense on which the jury was unable to agree.
Commonwealth v. Hickson, 586 A.2d 393 (Pa. Super. 1991) (citations
omitted), appeal denied, 593 A.2d 838 (Pa. 1991).
The petitioner in Ashe had been acquitted of the robbery of one of six
victims who were playing poker at the time of their robbery. Subsequently,
the state successfully prosecuted him for the robbery of another of the six
victims. Noting that “the single rationally conceivable issue in dispute before
the [first] jury was whether the petitioner had been one of the robbers[,]” the
Ashe Court held that collateral estoppel barred the petitioner’s second trial,
where the issue was once again his identity as one of the perpetrators. Ashe,
397 U.S. at 445-47.
In Hickson, the jury found the defendant not guilty of second- and
third-degree murder, voluntary manslaughter, and involuntary manslaughter
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but deadlocked as to first-degree murder and aggravated assault. Hickson,
586 A.2d at 394. This Court held that double jeopardy barred retrial as to the
latter two offenses. See also, States, 938 A.2d at 1027 (acquittal after bench
trial for accidents involving death barred retrial for vehicular homicide and
other offenses where the trial court announced it was not convinced the
defendant was the driver of the vehicle); Zimmerman, 445 A.2d at 95-96
(holding that an acquittal for first-degree murder and simple assault barred
retrial for third-degree murder, voluntary manslaughter, and involuntary
manslaughter). Commonwealth v. Wallace, 602 A.2d 345, 349-50 (Pa.
Super. 1992) (jury acquittal on attempted homicide and assault barred
subsequent trial for gun possession where the prosecutor conceded the jury
found beyond a reasonable doubt that the defendant did not have a gun).
We now turn to the specifics of the case before us. The trial court offered
the following conclusions of law in determining that the Commonwealth, on
retrial, must prove Appellee was not the shooter:
4. Applying collateral estoppel principles, the issue of
whether [Appellee] committed Murder in the Second Degree as an
accomplice was not necessarily determined by the jury. It has
only been determined that [Appellee] was not the principal in the
murder.
5. Therefore, in any subsequent trial, the
Commonwealth may only proceed on an accomplice liability theory
of Murder in the Second Degree without running afoul of double
jeopardy protections. The Commonwealth cannot argue that
[Appellee] was a principal.
6. Additionally, the Commonwealth will be prohibited at
any new trial from asserting that the jury may find [Appellee]
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guilty even if the jury is unsure which of the two individuals
involved, [Appellee] or Mr. Parker, was the principal who fired the
shot.
7. A second jury must not be permitted to convict
[Appellee] of Murder in the Second Degree based upon the
argument that [Appellee] or Mr. Parker fired the killing shot. To
allow this argument would be to allow [Appellee] to be convicted
on the possibility that he was the principal when it has been
established for all time that [Appellee] did not possess the gun
and he was not the shooter.
8. It has been established by the first jury that
[Appellee] was not in fact the principal who possessed the gun
and fired the killing shot, having found [Appellee] not guilty of
Murder in the Third Degree.
9. To hold otherwise would permit a second jury to
consider as a possibility a fact that has been resolved, and
resolved in [Appellee’s] favor.
Findings of Fact and Conclusions of Law, 5/7/19, at 2-3 (pagination ours).
“A criminal homicide constitutes murder of the second degree when it is
committed while defendant was engaged as a principal or an accomplice in
the perpetration of a felony.” 18 Pa. C.S.A. § 2502(b). “[I]n order for an
accomplice to be liable for felony murder, the killing must be in furtherance of
the underlying felony.” Commonwealth v. Laudenberger, 715 A.2d 1156,
1162 (Pa. Super. 1998).4
The Crimes Code defines accomplice in part as follows:
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4 The evidence in Laudenberger was that the defendant discussed and
helped plan the robbery, and that he served as a lookout while it occurred.
Id. at 1160. The identity of the killer was not in dispute in that case, but it
was not Laudenberger.
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(a) General rule.--A person is guilty of an offense if it is
committed by his own conduct or by the conduct of another person
for which he is legally accountable, or both.
(b) Conduct of another.--A person is legally accountable for the
conduct of another person when:
(1) acting with the kind of culpability that is sufficient for the
commission of the offense, he causes an innocent or irresponsible
person to engage in such conduct;
(2) he is made accountable for the conduct of such other person
by this title or by the law defining the offense; or
(3) he is an accomplice of such other person in the commission of
the offense.
(c) Accomplice defined.--A person is an accomplice of another
person in the commission of an offense if:
(1) with the intent of promoting or facilitating the commission of
the offense, he:
(i) solicits such other person to commit it; or
(ii) aids or agrees or attempts to aid such other person in planning
or committing it; or
(2) his conduct is expressly declared by law to establish his
complicity.
(d) Culpability of accomplice.--When causing a particular
result is an element of an offense, an accomplice in the conduct
causing such result is an accomplice in the commission of that
offense, if he acts with the kind of culpability, if any, with respect
to that result that is sufficient for the commission of the offense.
18 Pa.C.S.A. § 306(a-d). We observe that 306 is titled, “Liability for the
conduct of another; complicity.” 18 Pa.C.S.A. § 306. The statute, in accord
with its title, describes how the Commonwealth can convict one person who is
complicit in the bad conduct of another.
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The Commonwealth, however, relies on Bradley, for the proposition
that it need not prove Appellee’s role in the crime in order to obtain a
conviction for accomplice liability. In Bradley, the defendant husband and
wife were seen in a grocery store arguing with a shopkeeper. Shortly
thereafter, several witnesses reported hearing a gunshot and seeing the
defendants running from the store. The victim, approached by one of the
witnesses, said, “Call an ambulance, they shot me.” Bradley, 392 A.2d at
689. On appeal, the defendants challenged the sufficiency of the evidence in
support of their third-degree murder convictions, arguing that the convictions
could not stand without evidence of which one fired the fatal shot. Our
Supreme Court rejected that claim, reasoning in part as follows:
Appellant Carol Bradley had a disagreement with the victim.
She went home and both appellants returned to the store
together. Appellant Carol Bradley was ‘swearing’ and thus was
obviously angry as she returned to the store. Both appellants
were arguing with the victim in the store and both appellants fled
together. The victim, before he died, said ‘. . . they shot me.’ All
of these facts support the jury’s finding beyond a reasonable
doubt that appellants were acting together in the killing of the
victim, and thus support the finding of murder in the third degree.
The evidence adequately established that one of the
Bradleys was the actor and that the other was an accomplice.
Under our law it is now axiomatic that the actor and his accomplice
share equal responsibility for the act. Thus it was not
incumbent upon the prosecutor to identify their respective
roles.
Id. at 690 (citations omitted; emphasis added); see also, Commonwealth
v. Wilson, 426 A.2d 575 (Pa. 1981) (The evidence […] established that
regardless of who actually fired the fatal bullet, appellant and his companions
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acted in concert and collusion. Appellant is thus responsible for the crime as
an accomplice or co-conspirator even if the shot in question was not fired from
his gun.”).
The Commonwealth, in its very short written argument, cites Bradley
and claims that the jury need not issue a finding that contradicts the prior
jury, because all it has to do is find that Appellee was at least an accomplice.
Commonwealth’s Brief at 11-13. “If the jury determines that [Appellee] was
involved as one of the two parties to the crime, it stops right there—it does
not proceed to the further question of whether he was the shooter or the
accomplice.” Id. at 12-13. Accordingly, the Commonwealth argues that the
jury’s prior finding—that Appellee was not the shooter—is not sufficiently
similar to the finding the jury must make in the present case. Id. at 12.
We acknowledge that this case bears some similarity to Bradley in that
there is evidence potentially implicating Appellee and Parker as partners in
the killing, but apparently no evidence as to who fired the fatal shot. Bradley
is distinct, however, in that Appellee and Parker were not tried together, and
in that Bradley did not involve a retrial and an issue of collateral estoppel.
No avenue of conviction—principal or accomplice—had been foreclosed to the
Commonwealth as to either defendant in Bradley. The Bradley Court did
not have to decide what would have happened had one spouse been tried and
acquitted as the principal actor and then retried as an accomplice. Bradley
does not control the outcome here, because in this case we must give heed to
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the prior jury’s absolute right to make final determinations of fact on the issues
that were before it. Zimmerman, 445 A.2d at 94.
Here, Appellee’s acquittal as the principal actor in a third-degree murder
forecloses the Commonwealth from convicting Appellee as anything but an
accomplice to second-degree murder. On retrial, therefore, the
Commonwealth cannot suggest to the jury that it can find Appellee guilty of
second-degree murder even if it is unsure whether he was the principal or
accomplice. To hold otherwise would be to nullify the prior jury’s finding of
fact, and deprive it of finality. On retrial, the Commonwealth can obtain a
conviction for second-degree murder if and only if it establishes Appellee’s
liability for the conduct of another in accord with the terms of § 306. We
discern no error in the trial court’s order.
Order affirmed. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/6/20
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