Commonwealth v. States

OPINION

In this case, we consider principles of double jeopardy in the context of a simultaneous jury/bench trial for multiple criminal offenses. In a relatively unusual procedure, the jury was charged with rendering a verdict on some of the charges, while the trial judge had the task of deciding another. We must determine whether a mistrial on some charges due to a *456hung jury, coupled with an acquittal in the bench trial, implicates double jeopardy protections such that a retrial cannot occur. We conclude that under the circumstances of this case, the prohibition against double jeopardy, specifically, the principle of collateral estoppel, operates to prevent the Commonwealth from proceeding with a retrial on those charges on which the jury could not agree.

On August 5, 2000, Lawrence States and two other men were in an automobile that was in a single vehicle accident on Bunola River Road in Forward Township, Allegheny County. States survived the crash, but the two other men died. The Commonwealth charged States with two counts each of Involuntary Manslaughter,1 Accidents Involving Death or Personal Injury While Not Properly Licensed,2 Homicide by Vehicle,3 and Homicide by Vehicle While Driving Under the Influence of Alcohol.4 States also faced three counts of Driving Under the Influence of Alcohol.5 States filed a pretrial motion seeking dismissal of the Involuntary Manslaughter charges, which the trial court granted. States also sought severance of the Accidents Involving Death charges. He asserted potential jury prejudice based on the fact that he did not hold a valid driver’s license. The trial court agreed and granted severance. Following the Commonwealth’s invocation of its right to a jury trial, the trial court suggested a simultaneous jury/ bench trial, with the court determining guilt on the Accidents Involving Death charge, and the jury reaching a verdict on all other charges. The parties agreed to this procedure and the joint trial commenced on October 7, 2003.

On October 15, 2003, the jury informed the trial court that it was hopelessly deadlocked on all charges before it. The trial court declared a mistrial and dismissed the jury. On the same *457date, the trial court rendered its verdict on the Accidents Involving Death charge. The court explicitly stated that it was not convinced beyond a reasonable doubt that States was the driver of the vehicle; as a result, it acquitted States of the single charge before it.

In light of the trial court’s findings and verdict, States filed a motion to dismiss the remaining charges based on double jeopardy principles. According to States, the trial court’s finding that the Commonwealth failed to prove he was the driver precluded further litigation on the issue. States argued that because each of the remaining charges required the jury to find he was the driver, the charges must be dismissed.

The trial court denied States’ motion and, following an unsuccessful attempt at reconsideration, States filed an appeal with the Superior Court.6 Upon review, the Superior Court concluded that because the trial court explicitly found that the Commonwealth failed to prove States was driving, collateral estoppel principles precluded the Commonwealth from attempting to prove States was the driver in any subsequent proceeding. The Superior Court reversed the trial court’s order denying dismissal of the charges.

The Commonwealth filed a timely appeal and this Court granted allocatur in order to address the application of double jeopardy and collateral estoppel principles in the context of joint jury/bench trials. The issue is one 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. White, 589 Pa. 642, 910 A.2d 648, 652 n. 3 (2006) (citation omitted).

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 *458through the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 794, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). The double jeopardy protections afforded by our state constitution are coextensive with those federal in origin; essentially, both prohibit successive prosecutions and multiple punishments for the same offense. Commonwealth v. Fletcher, 580 Pa. 403, 861 A.2d 898, 912 (2004). We have described double jeopardy rights as “freedom from the harassment of successive trials and the prohibition against double punishment.” Commonwealth v. Hude, 492 Pa. 600, 425 A.2d 313, 318 (1980) (plurality). The specific basis for relief asserted here, collateral estoppel (also known as issue preclusion), is most familiar in the civil context, where its stated purpose is to “relieve parties of the cost and vexation of multiple lawsuits, conserve judicial resources, and by preventing inconsistent decisions, encourage reliance on adjudication.” Shaffer v. Smith, 543 Pa. 526, 673 A.2d 872, 875 (1996).

However, collateral estoppel does not operate in the criminal context in the same manner in which it operates in the civil context. For instance, in civil practice the doctrine is applicable, in equal measure, to both parties, whereas in the criminal context, the use of the doctrine is considerably restricted, particularly where the Commonwealth seeks to use it against a criminal defendant. See Commonwealth v. Holder, 569 Pa. 474, 805 A.2d 499 (2002) (permitting the Commonwealth limited use of collateral estoppel principles to preclude relitigation of an evidentiary ruling that had been rendered in a previous probation hearing) (plurality). 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, 518 Pa. 15, 540 A.2d 246, 251 (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 *459viewed through the lens of double jeopardy. Commonwealth v. Brown, 503 Pa. 514, 469 A.2d 1371, 1373 (1983) (it is “double jeopardy that forbids the state from offending the collateral estoppel rule”).

“The efficiency concerns that drive the collateral estoppel policy on the civil side are not nearly as important in criminal cases because criminal cases involve a public interest in the accuracy and justice of criminal results that outweighs the economy concerns that undergird the estoppel doctrine.” Holder, 805 A.2d at 508 (Saylor, J., concurring and dissenting) (citation omitted). Application of collateral estoppel principles to the criminal law was “intended to enhance the traditional double jeopardy protection and to provide relief from the growing threat of multiple prosecutions ... [it] is to be applied with ‘realism and rationality’ and not ‘applied with the hypertechnical and archaic approach of a 19th century pleading book.’ ” Hude, 425 A.2d at 319 (citation omitted).

The facts set out in Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1969), demonstrate the primary effect, and underlying purposes, of both double jeopardy protection and its narrower subpart, collateral estoppel. In Ashe, the government charged Bob Ashe with the gunpoint robbery of six men while they played poker in a friend’s basement. The government’s theory of the case was that Ashe committed the armed robbery with two or three other men. Ashe initially was tried for his part in the robbery of only one of the six victims. At trial, however, the identification evidence was weak and Ashe ultimately was acquitted due to insufficient evidence. Six weeks later, the government again tried Ashe for robbery, this time against a different victim. Once more, the government’s evidence was weak, although there was some improvement in the witnesses’ ability to identify Ashe. This time, the jury returned a verdict of guilty. Ashe challenged the conviction, and the fact of the second trial, on the basis of double jeopardy. The United States Supreme Court held that the second trial should not have taken place:

The question is not whether Missouri could validly charge the petitioner with six separate offenses for the robbery of *460the six poker players. It is not whether he could have received a total of six punishments if he had been convicted in a single trial of robbing the six victims. It is simply whether, after a jury determined by its verdict that the petitioner was not one of the robbers, the State could constitutionally hale him before a new jury to litigate the issue again.

... [T]he State ... treated the first trial as no more than a dry run for the second prosecution: “No doubt the prosecutor felt the state had a provable case on the first charge, and, when he lost, he did what every good attorney would do-he refined his presentation in light of the turn of events at the first trial.” But this is precisely what the constitutional guarantee forbids.

Id. at 446-47, 90 S.Ct. 1189.

We have followed the rule in Ashe strictly in criminal cases, employing the federal three-part test to determine if collateral estoppel applies to limit further litigation on a particular issue. We engage in the following inquiries:

1) an identification of the issues in the two actions for the purpose of determining whether the issues are sufficiently similar and sufficiently material in both actions to justify invoking the doctrine;

2) an examination of the record of the prior case to decide whether the issue was “litigated” in the first case; and

3) an examination of the record of the prior proceeding to ascertain whether the issue was necessarily decided in the first case.

Commonwealth v. Smith, 518 Pa. 15, 540 A.2d 246, 251 (1988) (citing Ashe).

In the criminal law arena, 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.” Commonwealth v. Buffington, 574 Pa. 29, 828 A.2d 1024, 1032 (2003). We ask whether the fact-finder, in *461rendering 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.” Smith, 540 A.2d at 251 (quoting Hude, 425 A.2d at 319-20). 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, 498 Pa. 112, 445 A.2d 92, 96 (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, 411 Pa.Super. 576, 602 A.2d 345, 349-50 (1992) (Commonwealth’s concession that the jury’s acquittal meant appellant did not possess a gun collaterally estopped Commonwealth from any subsequent prosecution based on appellant’s possession of a gun); Commonwealth v. Klinger, 264 Pa.Super. 21, 398 A.2d 1036, 1041 (1979) (appellant’s acquittal on murder precluded the Commonwealth from bringing a subsequent perjury prosecution based on appellant’s trial testimony that he did not kill the victim), aff'd. sub nom. Commonwealth v. Hude, 492 Pa. 600, 425 A.2d 313 (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 Buffington, 828 A.2d at 1033 (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, 400 Pa.Super. 12, 582 A.2d 1319, 1323 (1990) (robbery acquittal did not preclude retrial on hung charge of aggravated assault), appeal denied, 528 Pa. 621, 597 A.2d 1151 (1991).

In the matter before us, there is no question that if collateral estoppel principles apply, the issue States seeks to foreclose *462from further consideration-whether he was driving the car-was definitively determined in States’ favor and formed the basis for the trial court’s acquittal. The record is clear that the trial court based its verdict on its finding that the Commonwealth failed to prove beyond a reasonable doubt that States was the driver of the car. The court announced this fact in court. Thus, if States is entitled to double jeopardy protection under these circumstances, the Commonwealth would be collaterally estopped from attempting to prove that States was the driver of the car.7

In seeking permission to proceed with the retrial, the Commonwealth urges us to consider our decision in Commonwealth v. McCane, 517 Pa. 489, 539 A.2d 340 (1988). There, we were asked whether a jury’s inability to reach a verdict on the charge of homicide by vehicle while driving under the influence, coupled with its guilty verdict on driving under the influence, operated to preclude the Commonwealth from retrying the defendant on the homicide by vehicle charge. Among other things, the defendant opposed retrial based on double jeopardy protections. We addressed the double jeopardy *463question by noting the purpose underlying the constitutional protection:

The prohibition against double jeopardy protects against a second prosecution for the same offense after acquittal; a second prosecution for the same offense after conviction; and multiple punishments for the same offense.... [R]e-trial of the appellee is not a successive prosecution, inasmuch as the charges of homicide by vehicle while driving under the influence, and driving under the influence were brought against the appellee in the same proceeding. Re-prosecution of the appellee does not involve a second prosecution for the same offense after acquittal or a second prosecution for the offense after conviction.

In this case the jury was unable to agree on a verdict on the charge of homicide by vehicle while driving under the influence. The jury’s failure to reach a verdict on this count is not an event that terminates jeopardy. Thus, double jeopardy considerations do not bar retrial of the.

Id. at 346 (citing North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969)). The Commonwealth characterizes the procedural posture of the instant case as a “classic hung jury situation,” and likens it to McCane. The Commonwealth insists that “there is absolutely no basis for concluding that retrial of States should be classified as a subsequent prosecution.” Commonwealth’s Brief at 20. Nonetheless, the Commonwealth concedes that “this Court has stated that double jeopardy encompasses elements of collateral estoppel (i.e. issue preclusion), under which a verdict ‘may, in certain circumstances, be viewed as a finding that forecloses consideration of an issue or fact in a subsequent prosecution.’ ” Id. (citing Buffington, 828 A.2d at 1032). The Commonwealth does not offer any suggestion on how to reconcile its two assertions. Of course, if a retrial that follows a hung jury does not implicate double jeopardy concerns in any manner, and collateral estoppel in the criminal context is part of double jeopardy protections, then the application of collateral estoppel principles to any criminal *464retrial is improper. But such a conclusion would render the rationale of our decisions in Buffington and Zimmerman invalid, and does the same to the Superior Court’s rationale in Harris, Wallace, and other cases. Each of those eases involved partially hung juries followed by retrials. In each, there existed the potential for application of collateral estoppel, and in some of them, the principle indeed was applied. Despite its reliance on McCane, the Commonwealth does not argue that these other cases were wrongly decided.

We observe a fundamental difference between the McCane case and those cases from this Court and the Superior Court that apply collateral estoppel: in McCane there was no acquittal at all. No fact finder reached any verdict in the defendant’s favor. As a result, there could be no argument that the verdict was based on resolution of an issue in a manner favorable to the defendant with respect to a remaining charge and, further, there could be no argument that the Commonwealth should be precluded from attempting to relitigate that issue in an effort to resolve it in a contrary way. Thus, McCane is not controlling as it did not involve an acquittal of some of the charges and, therefore, did not implicate principles of collateral estoppel. Nor is McCane appropriate as persuasive authority on the issue of whether to apply collateral estoppel principles following a partial acquittal. There are several cases in this Commonwealth that have applied collateral estoppel to retrials following a partially hung jury. Those cases remain good law. See Buffington; Zimmerman; Harris; Wallace.

Although we reaffirm the holdings of those cases today, we cannot conclude that they control the issue raised here. As with McCane, there exists a fundamental difference between those cases and the one before us. Here, two proceedings were jointly held before two separate fact finders. None of the cases applying collateral estoppel includes this procedural twist.8 The Commonwealth argues that this difference is *465significant, so much so that an entirely new approach is warranted.

The Superior Court has addressed the effect of joint jury/ bench trials in a context slightly different from the one here. In Commonwealth v. Wharton, 406 Pa.Super. 430, 594 A.2d 696 (1991), the parties agreed to a joint jury/bench trial, with the jury to determine the charges of involuntary manslaughter, homicide by vehicle DUI, and DUI, while the court reached a verdict on various summary charges. The majority *466of evidence was presented in a joint trial, after which the jury-acquitted the defendant of all charges before it. Twelve days later, the trial court heard supplemental evidence pertaining only to the summary charges and entered guilty verdicts. The defendant challenged the court’s verdicts, claiming that the hearing on additional evidence constituted a second trial in violation of double jeopardy principles. The Superior Court panel held that jeopardy attached simultaneously on all offenses at the start of the joint trial and the twelve-day delay between the jury’s verdict and the presentation of additional evidence that led to the trial court’s verdict did not alter that fact. Id. at 698-99. The Wharton court relied on its prior decision in Commonwealth v. Yachymiak, 351 Pa.Super. 361, 505 A.2d 1024 (1986), wherein it held that “in a consolidated jury/nonjury trial, the trial court is not required to defer to the findings of the jury on common factual issues.” Wharton, 594 A.2d at 699 (relying on Yachymiak). While both Wharton and Yachymiak are relevant in that they involved simultaneous jury/bench trials, neither case involved a hung jury and a bench acquittal. The issue before us is one of first impression.

While we have not had occasion to consider this unusual trial procedure, it may not be as unusual as we think. In its petition seeking allowance of appeal, the Commonwealth asserted that guidance on the issue is necessary as this procedural scenario occurs repeatedly, often in the context of homicide or assault cases that include a “felon in possession” charge.9 The latter charge usually is severed from the case due to potential jury prejudice associated with disclosure of the defendant’s prior record. The jury is charged with resolving the homicide or assault charges, while the trial court simultaneously determines the felon in possession charge. Such a practice naturally produces the potential for inconsistent verdicts, which, the Commonwealth reminds us, do not pose a problem in this Commonwealth.

*467Although we have not spoken on the issue in terms of simultaneous jury/bench trials, the law is clear that inconsistent verdicts are permissible in Pennsylvania. Commonwealth v. Strand, 464 Pa. 544, 347 A.2d 675, 676 (1975). The Commonwealth draws our attention to other states that have considered simultaneous jury/bench trials and approved inconsistent verdicts that two fact finders reached. See State v. Knight, 266 Conn. 658, 835 A.2d 47 (2003) (fact that jury rendered not guilty verdict on some charges first did not preclude court from rendering guilty verdict on other charge immediately thereafter, as trial proceedings were simultaneous); Copening v. U.S., 353 A.2d 305 (D.C.App.1976) (simultaneous jury/bench trial resulting in inconsistent verdicts from judge and jury did not offend collateral estoppel principles because proceedings did not constitute “prior adjudication”). The Commonwealth apparently seeks our adoption of the Copening rationale:

Properly viewed, the issue before us is not the applicability of constitutional restrictions upon successive prosecutions, but rather whether the collateral estoppel principles enunciated in Ashe v. Swenson (and its progeny) should be extended to govern the procedurally unique situation in which several criminal charges against the same defendant have been allocated between two triers for concurrent adjudication upon virtually identical evidence. We conclude that they should not.

We do not understand Ashe v. Swenson ... to mean ... that one tried for two different but interrelated offenses at the same time must be convicted of both for conviction of either to stand.

Copening, 353 A.2d at 312-13. While the Copening court’s rationale is logical, we observe that even if we were to adopt it in its entirety, it still would not control the circumstances of this case. Copening did not involve a hung jury and the prospect of a retrial. The issue there was merely whether the two fact finders could render their inconsistent verdicts, one after the other. In this way, the Copening court’s approval of *468“concurrent adjudication” differs little from the Superior Court’s decisions in Wharton and Yachymiak, which, in the absence of any comment by this Court, constitute the current state of the law in this Commonwealth.

Without controlling or persuasive authority to support its position, the Commonwealth offers a final reason for claiming entitlement to retrial in this case, namely, its constitutional right to a jury trial. The Commonwealth argues that the peculiar procedural posture of this case should not operate to deny it that constitutional right. But the Commonwealth fails to address the dichotomy its argument presents, namely, that one constitutional right (the Commonwealth’s right to a jury trial) should trump another constitutional right (the criminal defendant’s right to be free from double jeopardy concerns). For the reasons set forth below, we conclude that in this case, the former must yield to the latter.

The Commonwealth’s right to a jury trial stands on firm ground. The people, by referendum, made it part of our state constitution and this Court has affirmed its validity. Commonwealth v. Tharp, 562 Pa. 231, 754 A.2d 1251 (2000) (Article I, § 6, which affords Commonwealth same right to jury trial as accused, is constitutional). This Court has held that a defendant’s effort to avoid a jury trial in a criminal case is impermissible in light of the state constitutional amendment. White, 910 A.2d at 662 (defendant’s general plea to murder does not vitiate the Commonwealth’s right to a jury trial at the degree of guilt hearing). Nonetheless, “the Commonwealth’s right to a jury trial is a unique animal under the Pennsylvania Constitution and does not implicate federal constitutional rights.” Id. at 670 (Cappy, C.J. dissenting). Surely, there would have been no need for a state constitutional amendment had the federal constitution supplied this same right. By contrast, double jeopardy protections have federal constitutional origins. Never have we held that this new right of the Commonwealth is on equal footing with, let alone higher ground than, a federal constitutional right of the magnitude and significance that the protection against double jeopardy represents. Nor could we so hold. We must remain faithful *469to the minimum guarantees provided by the United States Constitution. Commonwealth v. Swinehart, 541 Pa. 500, 664 A.2d 957, 961 (1995). A state may grant more rights to its citizens than are provided in the United States Constitution, but not fewer. Commonwealth v. Matos, 543 Pa. 449, 672 A.2d 769, 774 (1996) (“The federal constitution provides a minimum of rights, below which the states cannot go.”) (citing Commonwealth v. Sell, 504 Pa. 46, 470 A.2d 457, 467 (1983)).

The Commonwealth argues vigorously that if we affirm the Superior Court we have denied it its constitutional right to a jury trial. We cannot agree. The Commonwealth sought and received the right to proceed on this matter via a jury trial. At the same time, the Commonwealth agreed that the trial court would decide the single, severed charge simultaneously with the jury. The requested jury trial commenced, as did the bench trial. The Commonwealth presented its evidence to the jury. Unfortunately for the Commonwealth, it did not get the result it sought from the jury, nor did it get the result it sought from the bench. But it cannot be said that the Commonwealth was prohibited from presenting evidence to a jury. The plain fact is that it did.

The Commonwealth’s agreement to proceed with a simultaneous jury/bench trial carried with it a risk, although one perhaps not foreseen by the Commonwealth. That risk was that the trial court would reach a verdict in States’ favor and the jury would not reach a verdict at all. When this very scenario occurred, it left the proceedings in a most unusual posture: There existed a final order definitively establishing that States was not the driver of the car and a scheduled retrial at which the Commonwealth planned to offer evidence to establish that States was the driver of the car. The fact that a retrial required the Commonwealth to present evidence on this issue, to urge a second jury to reach a result contrary to the result previously reached by another fact finder, is what sets this case apart from McCane and converts it into a classic collateral estoppel matter.10

*470Consider what would occur if we were to permit a retrial to go forward. At the time the jury would be sworn, and prior to the presentation of any evidence, there would exist a “definitive finding respecting a material element of the prosecution’s ... case” that was determined, in a final judgment, in the accused’s favor. Buffington, 828 A.2d at 1032. The law is clear that States’ double jeopardy rights preclude this because they “bar redetermination ... of [an] issue [that was] necessarily determined between the parties in a [prior] proceeding which has become a final judgment.” Smith, 540 A.2d at 251. We hold that in light of the trial court’s definitive finding that the Commonwealth failed to prove that States was the driver of the car, States’ federal constitutional rights prohibit the Commonwealth from attempting to convince a second jury otherwise.

We are mindful of the Commonwealth’s concern for future cases that utilize the simultaneous jury/bench trial procedure and we caution that our decision here does not address the general propriety of this procedure; we neither approve nor disapprove its use.11 We observe, however, that the mere fact of a simultaneous jury/bench trial does not necessarily result in the circumstances we found troubling in this case. Indeed, it is the hung jury, the accompanying acquittal, and the attendant- necessity of a retrial at which evidence must be *471presented, that make this case different. The Commonwealth, in order to proceed on retrial, would have to present evidence on an issue that has already been decided in States’ favor. The same would not be true in the case of a “garden variety” jury/bench trial at which two fact finders render their verdicts one after the other.

Based on the foregoing, we hold that the Commonwealth may not retry States on the charges upon which the jury could not agree, for to do so would permit relitigation of an issue already determined, by final judgment, in States’ favor. As a result, we affirm the Order of the Superior Court, which reversed the Order of the Court of Common Pleas of Allegheny County.