J-S31023-17

                                  2017 PA Super 195


    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    RICCARIO J. JONES,                         :
                                               :
                      Appellant                :   No. 1330 WDA 2016

                   Appeal from the Order Dated May 3, 2016
                  In the Court of Common Pleas of Erie County
              Criminal Division at No(s): CP-25-CR-0003518-2014


BEFORE: PANELLA, J., DUBOW, J., and FORD ELLIOTT, P.J.E.

OPINION BY DUBOW, J.:                                     FILED JUNE 21, 2017

        Appellant, Riccario J. Jones, appeals from the May 3, 2016 Order

denying his Motion to Dismiss.1 After careful review, we affirm.

        We summarize the facts and procedural history, as gleaned from the

certified record, as follows. Police arrested Appellant following a shooting on

November 5, 2014, in Erie, Pennsylvania.             The Commonwealth charged

Appellant with Aggravated Assault, Discharge of a Firearm into an Occupied

Structure, Receiving Stolen Property, Persons Not to Possess a Firearm,

____________________________________________


1
  On May 6, 2016, the trial court granted Appellant’s Motion to Certify this
Order for immediate appellate review pursuant to 42 Pa.C.S. § 702(b),
concluding that the issue raised by Appellant includes “a controlling question
of law as to which there is substantial ground for difference of opinion and
that an immediate appeal from the Order of May 3, 2016[,] may materially
advance the ultimate determination of the matter[.]”         Trial Ct. Order,
5/6/17. Thereafter, Appellant filed a timely Petition for Permission to
Appeal, which this Court granted on September 8, 2016.
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Firearms Not to be Carried without a License, Possession of an Instrument of

a Crime, Recklessly Endangering Another Person (“REAP”), Terroristic

Threats, and Attempted Murder.2

       On September 18, 2015, following a four-day trial, the jury convicted

Appellant of Discharge of a Firearm into an Occupied Structure, Persons Not

to Possess a Firearm, Firearms Not to be Carried without a License,

Possession of an Instrument of a Crime, REAP, and Terroristic Threats. The

jury was deadlocked on the Aggravated Assault and Attempted Murder

charges; therefore, the court declared a hung jury as to those counts. The

court recorded the guilty verdicts on the remaining counts.3

       On April 18, 2016, Appellant filed a Motion to Dismiss pursuant to

Pa.R.Crim.P. 648 wherein he requested that the court issue an order barring

retrial on the deadlocked counts of Aggravated Assault and Attempted

Murder. In support, he asserted, inter alia, that “the jury’s finding of guilt

on lesser included offense of REAP results, for purposes of retrial, [in] an

acquittal” of the deadlocked offenses of Aggravated Assault and Attempted

Homicide. Appellant’s Motion to Dismiss, at ¶ 10.




____________________________________________


2
 18 Pa.C.S. §§ 2702(a)(1), 2707.1, 3925, 6105(a), 6106(a), 907(a), 2705,
2706, and 901/2501, respectively.
3
  The court also entered a Judgment of Acquittal on the Receiving Stolen
Property Charge.



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       On May 3, 2016, the trial court denied Appellant’s Motion. Appellant

thereafter sought permission to Appeal to this Court, which this Court

granted on September 8, 2016.

       Appellant raises the following issue for our review:

       Whether the [t]rial [c]ourt committed an error of law in denying
       Appellant[’s] Motion to Dismiss as the Commonwealth is barred
       by the Double Jeopardy Clause as well as Pa.R.Crim.P. 648 from
       retrying [] Appellant for Aggravated Assault and Criminal
       Attempt – Homicide where the jury reached a verdict as to a
       lesser included offense thereof.

Appellant’s Brief at 3.

       In his sole issue on appeal, Appellant argues that the trial court erred

in denying his Motion to Dismiss because Article 1, Section 10 of the

Pennsylvania Constitution, pertaining to double jeopardy, and Pa.R.Crim.P.

648 bar his subsequent retrial. Appellant’s Brief at 7-10. Appellant avers

that   the   jury’s   guilty   verdict   on   the   REAP    charge   precludes   the

Commonwealth from retrying him on the Aggravated Assault and Attempted

Murder charges because REAP is a lesser included offense of Aggravated

Assault and Attempted Murder.            Id. at 7-8.       Without citation to any

authority, Appellant claims that “the jury’s agreement as to [the REAP

charge], as a lesser included offense, operates as an acquittal of the charges

of Aggravated Assault and [Attempted Murder], as a matter of law.” Id. at

8-9. Appellant further argues, again without citation to any authority, that

18 Pa.C.S. § 109(1) also “bars re-prosecution for Aggravated Assault and




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J-S31023-17



[Attempted Murder] due to the jury’s finding of guilt as to the [REAP] count,

which constitutes an acquittal of all greater included offenses.” Id. at 9.

      Appellant’s challenge raises a question of law.          As with all legal

questions,    our   standard   of   review   is   de   novo.    See   generally

Commonwealth v. Mattis, 686 A.2d 408, 410 (Pa. Super. 1996).

      Retrial after a hung jury normally does not violate the Double Jeopardy

Clause.      Sattazahn v. Pennsylvania, 537 U.S. 101, 109 (2003);

Commonwealth v. Harris, 582 A.2d 1319, 1321 (Pa. Super. 1990).

Pa.R.Crim.P. 648(D), pertaining to jury verdicts generally, permits retrial on

the charges upon which the jury could not agree when those charges are not

“included offenses” of the charges for which the jury could agree:

      (D) If there are two or more counts in the information or
      indictment, the jury may report a verdict or verdicts with respect
      to those counts upon which it has agreed, and the judge shall
      receive and record all such verdicts. If the jury cannot agree
      with respect to all the counts in the information or indictment if
      those counts to which it has agreed operate as an acquittal of
      lesser or greater included offenses to which they cannot agree,
      these latter counts shall be dismissed. When the counts in
      the information or indictment upon which the jury cannot
      agree are not included offenses of the counts in the
      information or indictment upon which it has agreed, the
      defendant or defendants may be retried on those counts
      in the information or indictment.

Pa.R.Crim.P. 648(D) (emphasis added).

      Additionally, this Court has held that “retrial of charges on which a jury

has been unable to agree is not barred unless the jury made findings on one

or more other charges which must be interpreted as an acquittal of the


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J-S31023-17



offense for which the defendant is to be retried.” Harris, 582 A.2d at 1322

(emphasis added) (concluding that a guilty verdict on a simple assault

charge did not preclude retrial on aggravated assault charge where the jury

was unable to reach a verdict).

        It is well-settled that where a person is tried and acquitted of a crime

which is a constituent of another crime, he may not be prosecuted for the

greater crime. See, e.g., Commonwealth v. Thatcher, 71 A.2d 796, 798

(Pa. 1950) (emphasis added). Appellant, relying on 18 Pa.C.S. § 109(1),4

argues that his conviction of REAP, as a constituent or lesser-included

crime, operates as an acquittal to the greater offenses of Aggravated Assault

and Attempted murder, thus precluding his re-prosecution for those charges.

This argument lacks merit.


____________________________________________



4
    18 Pa.C.S. § 109 provides, in relevant part:

        When a prosecution is for a violation of the same provision of the
        statutes and is based upon the same facts as a former
        prosecution, it is barred by such former prosecution under the
        following circumstances:

           (1) The former prosecution resulted in an acquittal. There
           is an acquittal if the prosecution resulted in a finding of not
           guilty by the trier of fact or in a determination that there
           was insufficient evidence to warrant a conviction.            A
           finding of guilty of a lesser[-]included offense is an
           acquittal of the greater inclusive offense, although the
           conviction is subsequently set aside.

18 Pa.C.S. § 109(1).



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      In the instant case, the jury found Appellant guilty of REAP, but could

not reach a verdict on Aggravated Assault or Attempted Murder. To analyze

the double jeopardy implications of this, we must review the statutes to

determine whether the charge of REAP is an included offense of Aggravated

Assault or Attempted Murder.

      REAP is defined at 18 Pa.C.S. § 2705 as follows:

      A person commits a misdemeanor of the second degree if he
      recklessly engages in conduct which places or may place another
      person in danger of death or serious bodily injury.

18 Pa.C.S. § 2705.

      Aggravated Assault is defined at 18 Pa.C.S. § 2702(a)(1) as follows:

      (a) Offense defined.--A person is guilty of aggravated assault
      if he:

           (1) attempts to cause serious bodily injury to another, or
           causes such injury intentionally, knowingly or recklessly
           under circumstances manifesting extreme indifference to
           the value of human life[.]

18 Pa.C.S. § 2702(a)(1).

      Attempted Murder is as defined at 18 Pa.C.S. §§ 2501 and 901 as

follows:

      (a) Offense defined.--A person is guilty of criminal homicide if
      he intentionally, knowingly, recklessly or negligently causes the
      death of another human being.

18 Pa.C.S. § 2501(a).

      (a) Definition of attempt.--A person commits an attempt
      when, with intent to commit a specific crime, he does any act


                                     -6-
J-S31023-17


     which constitutes a substantial step toward the commission of
     that crime.

18 Pa.C.S. § 901(a).

     By its verdict, the jury concluded that Appellant had recklessly

engaged in conduct that placed or might have placed another person in

danger of death or serious bodily injury.   The REAP conviction, however,

does not operate as an acquittal with respect to Aggravated Assault and

Attempted Murder.      While the Aggravated Assault and Attempted Murder

statutes contain the word “reckless,” these statutes also contain elements

not present in the definition of REAP, upon which the jury could not reach a

conclusion.

       Accordingly, we disagree with Appellant that a hung jury on his

Aggravated Assault and Attempted Murder charges operates as an acquittal

on those counts, or that his conviction of REAP operates as an acquittal to

the Aggravated Assault and Attempted Murder charges. Neither Section 109

nor principles of double jeopardy preclude the Commonwealth from retrying

Appellant on the charges for which the jury was unable to reach a verdict.

     Order affirmed.




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J-S31023-17




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/21/2017




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