J-A09013-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    GREGORY JORDAN                             :
                                               :
                       Appellant               :   No. 1596 WDA 2018

        Appeal from the Judgment of Sentence Entered October 10, 2018
     In the Court of Common Pleas of Allegheny County Criminal Division at
                       No(s): CP-02-CR-0012031-2018


BEFORE:      SHOGAN, J., MURRAY, J., and STRASSBURGER, J.*

MEMORANDUM BY SHOGAN, J.:                               FILED AUGUST 3, 2020

        Appellant, Gregory Jordan, appeals from the judgment of sentence

entered following his conviction of person not to possess firearms. 1        After

careful review, we affirm.

        The trial court set forth the procedural history of this case, and related

matters, as follows:

              By way of background, [Appellant] originally was charged at
        CC No. 2017-1702 with [the following crimes in relation to an
        incident that occurred with Tishana Nowlin on January 16, 2017]:
        Criminal Attempt - Homicide (18 Pa.C.S.A. §901) (Count 1);
        Robbery (18 Pa.C.S.A. §3701) (Count 2); Aggravated Assault (18
        Pa.C.S.A. §2702) (Count 3); Criminal Conspiracy (18 Pa.C.S.A.
        §903) (Count 4); Person Not to Possess a Firearm (18 Pa.C.S.A.

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S. § 6105.
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       §6105) (Count 5); Carrying a Firearm Without a License (18
       Pa.C.S.A. §6106) (Count 6); Terroristic Threats (18 Pa.C.S.A.
       §2706) (Count 7); Theft by Unlawful Taking (18 Pa.C.S.A. §3921)
       (Count 8) and Disorderly Conduct (18 Pa.C.S.A. §5503) (Count
       9). The Person Not to Possess charge subsequently was severed
       and charged in the information filed at CC No. 2018-12031.[2]

             [Regarding an incident that occurred with Tim Harris on
       January 3, 2017, Appellant] was charged at a separate
       information at CC No. 2017-1887 with Robbery (18 Pa.C.S.A.
       §3701) (Count 1); Person Not to Possess a Firearm (18 Pa.C.S.A.
       §6105) (Count 2); Carrying a Firearm without a License (18
       Pa.C.S.A. §6106) (Count 3); Criminal Trespass (18 Pa.C.S.A.
       §3503) (Count 4); Simple Assault (18 Pa.C.S.A. §2701) (Count
       5); Recklessly Endangering Another Person (18 Pa C.S.A. §2705)
       (Count 6); and Criminal Conspiracy (18 Pa.C.S.A. § 903) (Count
       7). The Person Not to Possess charge subsequently was severed
       and charged in the information filed at CC No. 2018-12032.

             Prior to the commencement of trial, the Commonwealth
       nolle prossed the charge of Theft by Unlawful Taking at CC No.
       2017-1702, as well as the charges of Criminal Trespass and
       Recklessly Endangering Another Person at CC No. 2017-1887.

             On October 1, 2018, [Appellant] proceeded to a
       simultaneous jury and bench trial (“joint trial”). It was the
       understanding of this court and the parties that the jury would
       hear the remaining charges at CC Nos. 2017-1702 and 2017-
       1887, while this court simultaneously sat as the fact-finder with
       respect to the summary disorderly conduct offense at CC No.
       2017-1702, and the severed firearm charges at CC Nos. 2018-
       12031 and 2018-12032. (See Verdict Transcript (“VT”), taken
       10/4/18, p. 11); (Sentencing Transcript (“ST”), held 10/10/18,
       pp. 2-11).

             At the conclusion of the joint trial, the jury found [Appellant]
       not guilty of Robbery, Conspiracy, and Terroristic Threats at CC
       No. 2017-1702, and not guilty of Robbery, Simple Assault, and
       Conspiracy at CC No. 2017-1887. (VT, pp. 2-3).1 Although this
       court had reached its own verdict at the same time as the jury,
____________________________________________


2The conviction on the severed firearm charge at CC No. 2018-12031 is the
subject of this appeal.

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     the court, out of an abundance of caution, wanted an opportunity
     to conduct legal research and confirm its belief that it was free to
     render its own factual findings, even if those findings were
     inconsistent with the jury’s verdict.     (ST, p. 11).       Having
     determined that it was not bound by the jury’s verdict, this court
     officially rendered its verdict on October 10, 2018. The court
     found [Appellant] guilty of disorderly conduct at CC No. 2017-
     1702 and guilty of the severed firearm charge at CC No. 2018-
     12031. (ST, pp. 11-12).2 The court acquitted [Appellant] of the
     severed firearm charge at CC No. 2018-12032. (ST, p. 11).

           1 During the charging conference, the Commonwealth
           withdrew the charges of Attempted Homicide and
           Aggravated Assault at CC No. 2017-1702. (Trial
           Transcript (“TT”), 10/1/18-10/3/18, pp. 251-[2]52).
           This court then granted [Appellant’s] motion for a
           judgment of acquittal as to the charges of Carrying a
           Firearm without a License at CC Nos. 2017-1702 and
           2017-1887. (TT, pp. 256-[2]57).

           2 Evidence of [Appellant’s] certified record making him
           a person not to possess was introduced outside of the
           jury’s presence, right before closing arguments. (TT,
           pp. 328-[3]29); (Commonwealth’s Exhibits 9, 10, and
           11).

            [Appellant] opted to proceed immediately to sentencing.
     (ST, p. 12). [Appellant] was sentenced to a period of 11-and-
     [one]-half to 23 months of imprisonment in the Allegheny County
     Jail, with credit for time served. (ST, pp. 16-17). This sentence
     resulted in [Appellant] being paroled forthwith. (ST, p. 18). A
     three (3) year term of probation was imposed, but the court
     explicitly promised [Appellant] that it would terminate the last
     year of its probation upon a showing of good behavior during the
     first two (2) years of his probationary period. (ST, p. 17).

            A timely post-sentence motion was filed at CC No. 2017-
     1702. The motion was heard and denied on November 1, 2018.
     This timely appeal followed.

Trial Court Opinion, 5/16/19, at 1-4.     Both Appellant and the trial court

complied with Pa.R.A.P. 1925.


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      In addition, the trial court summarized the relevant factual background

of the incident pertaining to this appeal as follows:

            During the early evening hours of January 16, 2017, Tishana
      Nowlin was robbed at gunpoint by two (2) men on St. Joseph
      Street in the Mt. Oliver neighborhood while she was on her way
      home from work. (Trial Transcript (“M”), held 10/1/18 - 10/3/18,
      pp. 145-[1]46, 149-[1]50, 169-[1]70, 181). One of the men
      started checking her pockets while the other man - whom Ms.
      Nowlin later identified as [Appellant], pulled out what she
      described as an “extremely big gun,” pointed it directly at her, and
      said, you “know what it is.” (TT, pp. 150-[1]51, 160-163, 168,
      170, 185). [Appellant] took Ms. Nowlin’s keys and wallet, and he
      also patted down her pockets to check if she had any other
      valuables in her possession. (TT, pp. 151, 155). Ms. Nowlin
      began yelling and saying “oh, my God, I can’t believe they just
      robbed me.” (TT, pp. 151, 155). [Appellant] and his companion
      took off running down St. Joseph Street. (TT, pp. 151, 156-[1]57).

            Ms. Nowlin told a woman nearby to call the police because
      she had just been robbed. (TT, p. 151). Ms. Nowlin also called
      the police and tried to run after the men. (TT, pp. 151, 156, 158,
      164-[1]65 198). As she was chasing them, [Appellant] turned
      around and said something to Ms. Nowlin, but she could not recall
      the substance of what he said. (TT, pp. 156-[1]57). Ms. Nowlin
      saw the men enter a brown house next to a bus stop on St. Joseph
      Street. (TT, pp. 151, 155-[1]57, 159, 164, 177).

             Ms. Nowlin recounted the details of the robbery to the police
      upon their arrival. (TT, pp. 159-[1]60, 166, 199). Ms. Nowlin
      was “frantic” and “screaming” when officers arrived. (TT, pp. 198-
      [1]99).    She started crying after she explained what had
      happened. (TT, p. 199). Believing that the robbers were still
      inside of the brown house, officers spent a considerable amount
      of time attempting to lure the men out of the home before they
      realized that no one was present inside. (TT, pp. 160, 166-[1]67,
      200-[2]06). Ms. Nowlin was presented with a photographic array
      of suspects the day after the incident. (TT, pp. 161-[1]63, 181-
      [1]82, 225-[2]28, 231-[2]33, 236). After looking at several
      photographs, she positively identified [Appellant] as her robber,
      without hesitation. (Id.) She had never seen [Appellant] before
      the robbery. (TT, p. 163).


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Trial Court Opinion, 5/16/19, at 5-7.

      Appellant presents the following issue for our review:

      I. In light of the pleadings, the charges, the evidence, the parties’
      theories and defenses, the Commonwealth’s nolle prossing the
      charge of Theft by Unlawful Taking and withdrawing the charges
      of Criminal Attempt-Criminal Homicide and Aggravated Assault,
      the trial court’s granting judgment of acquittal on two charges of
      Firearms Not to be Carried Without a License, and the jury’s
      verdict acquitting [Appellant] of Robbery, Criminal Conspiracy-
      Robbery, and Terroristic Threats, whether double jeopardy and
      collateral estoppel barred the trial court from convicting
      [Appellant], in a consolidated jury/bench trial, of Persons Not to
      Possess Firearms stemming from the same incident?

Appellant’s Brief at 5.

      Appellant argues that the trial court violated his constitutional right

against double jeopardy when it convicted him of persons not to possess a

firearm. Appellant’s Brief at 30-49. Appellant contends that because the jury

acquitted him of multiple crimes connected to the incident, the trial court

violated principles of double jeopardy and collateral estoppel in returning a

verdict of guilt.   Id. at 31-32. Essentially, Appellant asserts that the trial

court, sitting as the fact finder with regard to the crime of person not to

possess a firearm, was bound by the jury’s acquittal on other charges, which

Appellant presumes is a binding determination as to the credibility of the

Commonwealth’s witnesses. Id. at 42-43. Further, Appellant contends that

current precedent that permits inconsistent verdicts in combined bench/jury

trials is not binding on this case, and he urges reconsideration of such

precedent. Id. at 45-48.


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       Appellant’s issue invokes the protections afforded by the Double

Jeopardy Clause of the Fifth Amendment to the United States Constitution as

well as Article I, Section 10 of the Pennsylvania Constitution.3 As such, our

scope and standard of review are as follows:

       An appeal grounded in double jeopardy raises a question of
       constitutional law. This court’s scope of review in making a
       determination on a question of law is, as always, plenary. As with
       all questions of law, the appellate standard of review is de novo.

Commonwealth v. Vargas, 947 A.2d 777, 780 (Pa. Super. 2008) (citations

omitted).

       In Commonwealth v. States, 938 A.2d 1016 (Pa. 2007), our Supreme

Court explained the concepts of double jeopardy and collateral estoppel in the

criminal context as follows:

       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. 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
       (Pa. 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 (Pa. 1980) (plurality).
       [C]ollateral estoppel (also known as issue preclusion), is most
       familiar in the civil context, where its stated purpose is to “relieve
____________________________________________


3 The Double Jeopardy Clause of the Fifth Amendment provides that no person
shall “be subject for the same offense to be twice put in jeopardy of life or
limb.” Similarly, Article I, Section 10 states in relevant part, “No person shall,
for the same offense, be twice put in jeopardy of life or limb[.]”

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      parties of the cost and vexation of multiple lawsuits, conserve
      judicial resources, and by preventing inconsistent decisions, [and]
      encourage reliance on adjudication.” Shaffer v. Smith, 543 Pa.
      526, 673 A.2d 872, 875 (Pa. 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 (Pa.
      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 (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, 503 Pa. 514, 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 1019-1020.

      Pennsylvania courts consistently have respected the authority of a jury

to find, or to decline to find, the existence of each element of each criminal

offense. Likewise, a trial judge, sitting simultaneously as fact-finder with a

jury in a bifurcated trial, is entitled to make his or her own credibility findings,

and it is well settled that inconsistent verdicts are permissible in Pennsylvania.

States, 938 A.2d at 1025. In Commonwealth v. Moore, 103 A.3d 1240

(Pa. 2014), our High Court reiterated that “Federal and Pennsylvania courts

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alike have long recognized that jury acquittals may not be interpreted as

specific factual findings with regard to the evidence, as an acquittal does not

definitively establish that the jury was not convinced of a defendant’s guilt.”

Id. at 1246.

      This case involved an inconsistent verdict. Such verdicts, “while often

perplexing, are not considered mistakes and do not constitute a basis for

reversal.”   Commonwealth v. Petteway, 847 A.2d 713, 718 (Pa. Super.

2004) (citations omitted).      In prior decisions addressing the issue of

inconsistent respective verdicts of the jury and the trial court, this Court held

that inconsistent verdicts are permissible in Pennsylvania. Commonwealth

v. Wharton, 594 A.2d 696, 699 (Pa. Super. 1991); Commonwealth v.

Yachymiak, 505 A.2d 1024, 1026 (Pa. Super. 1986). “We reasoned that: an

acquittal cannot be interpreted as a specific finding in relation to some of the

evidence presented; an acquittal may represent the jury’s exercise of its

historic power of lenity; and a contrary rule would abrogate the criminal

procedural rules that empower a judge to determine all questions of law and

fact as to summary offenses.” Wharton, 594 A.2d at 698-699; Yachymiak,

505 A.2d at 1026-1027. When a judge and jury act as separate fact finders

in a consolidated jury/nonjury trial, “the trial court is not required to defer to

the findings of the jury on common factual issues.” States, 938 A.2d at 1024

(quoting Wharton, 594 A.2d at 699). Moreover, as this Court recognized in

Yachymiak, it is difficult, if not impossible, to determine when two verdicts


                                      -8-
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are truly inconsistent. Yachymiak, 505 A.2d at 1026. Our Supreme Court

explained that “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.” States, 938 A.2d at 1025.

      Here, the trial court offered the following analysis regarding Appellant’s

claim of error:

             Against this backdrop, it is respectfully submitted that this
      court was not bound by the jury’s factual findings in the
      simultaneous joint trial. This court was acting as an independent
      fact-finder with respect to the two (2) charges that were being
      tried simultaneously with the offenses that were tried before the
      jury. In discharging its fact-finding duty, the court was not just
      permitted, but rather was required, to make its own credibility
      determinations and factual findings based on its own assessment
      of the evidence. Moreover, the determinations made by the jury
      and this court were based on evidence that was presented during
      the same prosecution. Indeed, evidence of [Appellant’s] certified
      record making him a person not to possess was introduced before
      closing arguments, albeit outside of the jury’s presence. (TT, pp.
      328-29); (Commonwealth’s Exhibits 9, 10, and 11). As noted, the
      verdicts by the jury and this court were reached at the same time.
      The only reason that this court did not formally render its verdict
      at the same time as the jury was so that it could research the very
      issue raised in this appeal. (Sentencing Transcript, 10/10/18, p.
      11). Thus, for all the reasons just stated, [Appellant‘s] contention
      is without merit.

Trial Court Opinion, 5/16/19, at 11-12. We agree.

      Where, as here, a simultaneous jury/bench trial is conducted and the

defendant is not subjected to a subsequent trial following an acquittal, the

trial court is not bound by the jury’s credibility determinations and may make

findings different from and inconsistent with the jury’s findings. Wharton,

594 A.2d at 699; Yachymiak, 505 A.2d at 1027. Compare States, 938 A.2d

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at 1021-1027 (where summary offense acquittal necessarily decided issue,

subsequent jury trial on charges inconsistent with that acquittal was barred).

Indeed, it is undisputed that a single jury/bench trial occurred in this matter.

Thus, the jury’s verdicts of acquittal on the various offenses related to the

incident involving Tishana Nowlin on January 16, 2017, have no bearing on

the findings of the trial court leading to the conviction on the offense of person

not to possess a firearm. Even assuming, for the sake of argument, that we

were to deem the trial court’s verdict inconsistent with the jury’s verdict, we

would conclude that a trial court is permitted to render an inconsistent verdict.

Hence, Appellant’s claim lacks merit.

      Moreover, to the extent Appellant would have us ignore the holdings in

Wharton and Yachymiak, we observe that we must follow the decisional law

established by our own Court. Commonwealth v. Santiago, 980 A.2d 659,

666 n.6 (Pa. Super. 2009). Unless Wharton and Yachymiak are overturned

by an en banc panel of this Court, or by a decision of the Pennsylvania

Supreme Court, they continue to be viable precedent for this Court and for

the courts of common pleas. Id. See also Sorber v. American Motorists

Ins. Co., 680 A.2d 881, 882 (Pa. Super. 1996) (holding that, even though

petition for allowance of appeal was pending before the Pennsylvania Supreme

Court, decision remains binding precedent as long as the decision has not

been overturned by our Supreme Court).

      Judgment of sentence affirmed.


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J-A09013-20


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/3/2020




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