J-A07027-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                          Appellee

                     v.

PAUL AARON ROSS

                          Appellant                 No. 1487 WDA 2014


               Appeal from the Order Entered August 5, 2014
               In the Court of Common Pleas of Blair County
            Criminal Division at No(s): CP-07-CR-0002038-2004


BEFORE: BENDER, P.J.E., LAZARUS, J., and MUNDY, J.

MEMORANDUM BY LAZARUS, J.:                             FILED MAY 12, 2015

      Paul Aaron Ross appeals from the order entered in the Court of

Common Pleas of Blair County that denied his motion to preclude the

Commonwealth from seeking the death penalty upon retrial.        After careful

review, we affirm.

      On November 10, 2005, a jury found Ross guilty of first degree murder

and related offenses. The following day, a sentencing hearing took place, at

the conclusion of which the jury received a First Degree Murder Sentencing

Verdict Slip consisting of two parts:     “I. General Instructions” and “II.

Sentencing Verdict and Findings,” the latter which we reproduce here in full.

                 II. SENTENCING VERDICT AND FINDINGS

       If you have reached a unanimous verdict, complete this part of
                                 the form

      In Section A, indicate whether the sentencing verdict is death or
      life imprisonment. If the sentence is death, indicate the basis
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     for the verdict by completing Section B. If the sentence is life
     imprisonment, indicate the basis for that verdict by completing
     Section C.

     A. We, the jury, unanimously sentence the Defendant to (check
        one):

     □    Death
     □    Life Imprisonment

     B. The findings on which the sentence of death is based are
     (check one):

     □    1.    At least one aggravating circumstance        and no
          mitigating circumstance.

          The aggravating      circumstance(s)    unanimously   found
          is/are:

          _______________________________________________
          _______________________________________________

     □    2. One aggravating circumstance(s) which outweighs any
          mitigating circumstance(s).

          The aggravating      circumstance(s)    unanimously   found
          is/are:

          _______________________________________________
          _______________________________________________

          The mitigating circumstance(s) found by one or more of us
          is/are:

          _______________________________________________
          _______________________________________________
          _______________________________________________
          _______________________________________________

     C. The findings on which the sentence of life is based are (check
     one):

     □    1. No aggravating circumstance exists

     □    2. The mitigating circumstance(s) is/are not outweighed by
          the aggravating circumstance.

          The mitigating circumstance(s) found by one or more of us
          is/are:

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              _______________________________________________
              _______________________________________________
              _______________________________________________
              _______________________________________________

              The aggravating circumstance unanimously found is:

              _______________________________________________
              _______________________________________________

      _________________          _______________________________
      Date                              Jury Foreperson

      The jury began its deliberations at 2:46 p.m., N.T. Sentencing

Hearing, 11/11/05, at 197, and at 5:17 p.m., a question from the jury was

delivered to the court. Immediately thereafter, the court addressed the jury

as follows:

      Good afternoon, ladies and gentlemen of the jury. I have
      received a communication from your foreperson and it reads,
      Your Honor, the jury is unable to reach a unanimous decision on
      life or death and it is unlikely that we can. Please advise the
      next step. Thank you. Your foreperson, Robert L. Beck.

      And I’m going to instruct you with two paragraphs to try to give
      you guidance on where to go from here. Members of the jury, if
      you do not agree unanimously on the sentence of the defendant
      and on one of the two general findings that would support it then
      you have two options, you may either continue to discuss the
      case and deliberate the possibility of the death sentence or if you
      all agree to do so, you can stop deliberating and sentence the
      defendant to life imprisonment and you would do so by simply
      writing on the verdict slip we have stopped deliberating and we
      sentence the defendant to life. That is not on the form. You
      would have to write that separately.

      If you should come to a point where you have deliberated
      conscientiously and thoroughly and you still cannot agree either
      to sentence the defendant to life or death or to stop deliberating
      and just sentence him to life, you should report that to me at
      that point and I then will determine whether you are hopelessly



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     deadlocked on that issue and then it becomes my duty to
     sentence the defendant to life imprisonment.

Id. at 201-02.

     The jury continued its deliberations at 5:26 p.m., and at 5:41 p.m., it

returned to the courtroom with a verdict. The foreperson read the following

statement, which he had written on the Sentencing Verdict and Findings

sheet:   “Your Honor, the jury has been at an impasse and can’t reach a

unanimous vote. The verdict is life.” Id. at 203.

     On November 23, 2005, the trial court imposed a sentence of life

imprisonment for first degree murder plus 24 to 48 years’ imprisonment for

other crimes arising out of the same incident.        Ross filed post-sentence

motions, which the court denied on January 30, 2006. Ross then filed an

appeal, which this Court dismissed due to counsel’s failure to file a brief.

Following nunc pro tunc reinstatement of his appellate rights on August 14,

2009, the matter came before this Court, which vacated the judgment of

sentence   and   remanded    for   a    new   trial   on   October   10,   2012.

Commonwealth v. Ross, 57 A.3d 85 (Pa. Super. 2012).              Our Supreme

Court denied the Commonwealth’s petition for allowance of appeal on August

15, 2013, Commonwealth v. Ross, 72 A.3d 603 (Pa. 2013), and

subsequently denied the Commonwealth’s motion for reconsideration.

     The matter returned to the court of common pleas for trial, and on July

8, 2014, Ross filed a motion to preclude the death penalty, which was

argued on July 29, 2014. By opinion and order dated August 5, 2014, the

court denied the motion, and on September 3, 2014, Ross filed a timely

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notice of appeal. The Commonwealth filed a motion to dismiss, which this

Court denied on December 9, 2014.

       On appeal, Ross raises the following issue for our review:

       Should a jury verdict of a life sentence following the penalty
       phase of [Ross’] first capital trial result in the Commonwealth
       being barred based upon double jeopardy protections from
       pursuing a sentence of death in [Ross’] retrial?1

Brief of Appellant, at 10.

       The principles underlying the trial court’s decision were set forth in

Commonwealth v. Sattazahn, 763 A.2d 659 (Pa. 2000), where our

Supreme Court stated:

       The United States Supreme Court has consistently reaffirmed the
       basic principle that the constitutional guarantee against double
       jeopardy imposes no limitations upon the power to retry a
       defendant who has succeeded in getting his first conviction set
       aside.   [Commonwealth v.] Martorano, 634 A.2d [1063,
       1068-69 [(Pa. 1930)]. Since the original conviction is nullified at
       a defendant's behest, the “slate was wiped clean,” and the
       sentencing court can impose any legally authorized sentence,
       whether or not it is greater than the sentence imposed following
       the first trial. Martorano, 634 A.2d at 1068, citing North
       Carolina v. Pearce, 395 U.S. 711, 720-21 (1969).                An
       exception to this rule exists where the sentencing proceeding
       resembles a trial. See Bullington [v. Missouri, 451 U.S. 430
       (1984)]; [Arizona v.] Rumsey[, 467 U.S. 203 (1984)].

       In Bullington, a defendant was tried for capital murder and at
       the guilt phase of trial, the jury returned a verdict of guilty. As
       required by statute, the trial court then conducted a sentencing
____________________________________________


1
  “In Pennsylvania a defendant is entitled to an immediate interlocutory
appeal as of right from an order denying a non-frivolous motion to dismiss
on state or federal double jeopardy grounds.” Commonwealth v. DeLong,
879 A.2d 234, 237 n.1 (Pa. Super. 2005) (citations omitted).



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       hearing before the same jury that had found the defendant
       guilty. The parties were afforded the opportunity to present
       additional evidence in aggravation or mitigation of punishment.
       After argument, instructions from the judge and deliberation, the
       jury returned a unanimous verdict of life imprisonment. When
       Bullington was granted a new trial on appeal, the state notified
       him of its intention to seek again the death penalty. Because
       the first sentencing jury, by choosing life, impliedly decided that
       the prosecution had not proved its case for death, the result was
       that the jury “acquitted” the defendant of the death penalty.
       This “acquittal on the merits” precludes the State from seeking
       the death penalty upon retrial. 451 U.S. at 434-35, 101 S.Ct.
       1852

                                          *****

       In Martorano, we applied Bullington and Rumsey and held
       that the Commonwealth is not precluded from seeking the death
       penalty on retrial, where, following their first trial, defendants
       were convicted of first-degree murder and sentenced to life
       imprisonment, not by a unanimous jury verdict, but by the trial
       judge following the jury’s deadlock regarding the penalty. The
       hung jury did not act as an acquittal on the merits as did the
       proceedings at issue in Bullington and Rumsey.

                                          *****

       Here, unlike the sentence in Burlington or the other cases just
       discussed, the jury did not make a decision on the merits
       regarding an appropriate penalty. It did not find that the state
       had failed to prove its case. It made no findings about the
       existence of any aggravating or mitigating circumstances. It
       was deadlocked. Since it made no decision, there could not in
       fact be any “acquittal on the merits.” Nor did the imposition of a
       life sentence by the trial judge operate as an acquittal. Under
       Pennsylvania’s sentencing scheme, the judge has no discretion
       to fashion sentence once he finds that the jury is deadlocked.

Sattazahn, 763 A.2d at 366-67.2

____________________________________________


2
 The United States Supreme Court affirmed the decision of our Supreme
Court. Sattazahn v. Pennsylvania, 537 U.S. 101 (2003).



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      Accordingly, the critical question before us is whether the entry of a

life sentence following Ross’ first trial was an acquittal on the merits, thus

precluding the death penalty on retrial. We conclude that it was not.

      As in Sattazahn, the jury in this case made no findings with respect

to aggravating or mitigating circumstances.    The jury left blank the entire

Sentencing Verdict and Findings Slip reproduced above.      The jury did not

check off the box marked Death or the box marked Life Imprisonment. It

did not list any aggravating factors unanimously found or any mitigating

factors found by one or more members of the jury. Clearly, the jury did not

reach unanimous agreement as to sentencing. Under these circumstances,

the Sentencing Code provides that the court may discharge the jury, “in

which case the court shall sentence the defendant to life imprisonment.” 42

Pa.C.S. § 9711(c)(1)(v).

      But for one factual wrinkle, the instant matter would be on all fours

with Sattazahn. Here, the trial court instructed the jury that if it could not

agree on the sentence it could “stop deliberating and sentence the defendant

to life imprisonment and you would do so by simply writing on the verdict

slip we have stopped deliberating and we sentence the defendant to life.”

N.T. Sentencing Hearing, 11/11/05, at 201. As the trial court recognizes in

its opinion in support of the order denying Ross’ motion, it “erred to advise

the jury to write on the verdict slip, ‘we sentence the defendant to life.’”

Opinion and Order, 8/5/14, at 8.




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      Ross argues that the statement, “[t]he verdict is life,” written on the

bottom of the Sentencing Verdict and Findings form constitutes a final

judgment barring the death penalty on retrial. We disagree because on the

verdict slip, “[t]he verdict is life” is preceded by the sentence, “[t]his jury

has been at an impasse and can’t reach a unanimous vote.” In other words,

the jury was deadlocked.    The conclusion that the jury was deadlocked is

supported by the fact that the jury did not check the box on the verdict form

that the jury unanimously sentenced the defendant to life imprisonment.

      Because the penalty phase of Ross’ first trial ended in a hung jury, the

imposition of a sentence of life imprisonment by default did not act as an

acquittal. See Sattazahn, supra; Martorano, supra. Therefore, double

jeopardy does not prevent the Commonwealth from seeking the death

penalty on retrial.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/12/2015




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