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.


____________________________________________


*   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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J-A05005-20


      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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J-A05005-20


       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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J-A05005-20



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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J-A05005-20


      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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J-A05005-20



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.

____________________________________________


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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