J-S72002-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 JOSE MANUEL MALDONADO                     :
                                           :
                    Appellant              :   No. 834 MDA 2018

                Appeal from the Order Entered May 3, 2018
     In the Court of Common Pleas of Berks County Criminal Division at
                      No(s): CP-06-CR-0002550-2017


BEFORE: BOWES, J., SHOGAN, J., and KUNSELMAN, J.

MEMORANDUM BY BOWES, J.:                                 FILED MAY 13, 2019

      Jose Manuel Maldonado appeals from the May 3, 2018 order denying his

motion to dismiss a charge pending against him on the basis of the collateral

estoppel aspect of the prohibition against double jeopardy. As we conclude

that the trial court correctly applied the doctrine in question, we affirm.

      The present matter concerns an alleged shooting that occurred on April

13, 2017, at the Reading Box Company. Luis Thomas was there working,

driving a forklift, when Appellant arrived, got out of his car and approached

Mr. Thomas.     Mr. Thomas and Appellant resumed an argument that had

started on April 11, 2017, over a family issue.       Next, Appellant allegedly

returned to his car, retrieved a gun, and fired three shots in Mr. Thomas’s

direction. Mr. Thomas was not injured and Appellant drove away. Police were

summoned. Upon arrival, officers located a bullet and two casings near the

scene.
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       Appellant was charged with attempted homicide, simple assault,

recklessly endangering another person, and two counts of aggravated assault.

Shortly before trial, the Commonwealth added one count of possessing

instruments of a crime (“PIC”) and one violation of the Uniform Firearms Act

(“VUFA”) (persons not to possess). It was agreed that the VUFA charge would

be severed in order to avoid the need to introduce prejudicial evidence of a

prior unrelated conviction.

       On March 6, 2018, the remaining charges were submitted to a jury and

Appellant was acquitted of all six charges. On April 9, 2018, Appellant filed a

motion to dismiss the pending VUFA count on the double jeopardy principle of

collateral estoppel. A hearing was held and the motion was denied on March

8, 2018. This timely appeal followed.1

       Appellant asks “whether the Commonwealth should be barred from

prosecuting Appellant for the charge of ‘Persons not to Possess Firearms’ (18

Pa.C.S. § 6105) on the ground of collateral estoppel.” Appellant’s brief at 3.


____________________________________________


1 Our Supreme Court has held that orders denying a defendant’s motion to
dismiss on double jeopardy grounds are appealable as collateral orders, as
long as the motion is not found to be frivolous. Commonwealth v. Brady,
508 A.2d 286, 291 (Pa. 1986) (concluding “appeal from the denial of a motion
to dismiss on double jeopardy grounds should not be permitted where the
hearing court has considered the motion and made written findings that the
motion is frivolous. Absent such a finding, an appeal may be taken from the
denial of the motion.”); accord Commonwealth v. Orie, 22 A.3d 1021, 1026
(Pa. 2011). Here, the trial court made a written finding that the double
jeopardy motion was not frivolous. Trial Court Opinion, 8/15/18, at 3.
Therefore, the appeal is properly before us and we will proceed to consider its
merits.

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      Collateral estoppel, as a component of the constitutional protection

against double jeopardy, was analyzed in our Supreme Court’s decision in

Commonwealth v. States, 938 A.2d 1016 (Pa. 2007). Therein, our High

Court noted that application of the doctrine of collateral estoppel is a question

of law, and thus the standard of review is de novo and the scope of review is

plenary. The double jeopardy clause is found in both the United States and

Pennsylvania constitutions, and the protections afforded by those clauses are

coextensive. Id. at 1019. Double jeopardy prohibits successive prosecutions

and multiple punishments for the same crime. Id. Thus, double jeopardy

rights are defined as, “freedom from the harassment of successive trials and

the prohibition against double punishment.” Id. (citation omitted).

      Collateral estoppel, derived from the double jeopardy protection against

being tried twice for the same offense, prohibits “redetermination in a second

prosecution of those issues necessarily determined between the parties in a

first proceeding which has become a final judgment.” Id. at 1020 (citation

omitted). The application of this doctrine in the criminal context differs from

the civil concept of collateral estoppel. Id. In the criminal setting, collateral

estoppel is “intended to enhance the traditional double jeopardy protection

and to provide relief from the growing threat of multiple prosecutions.” Id.

It is applied “with realism and rationality and not applied with the hyper-

technical and archaic approach of a 19th century pleading book.” Id.

      A three-part test derived from Ashe v. Swenson, 397 U.S. 436 (1970),

is utilized in applying collateral estoppel in the criminal context:

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

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

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

States, supra at 1021 (quoting Commonwealth v. Smith, 540 A.2d 246,

251 (Pa. 1988)).

      The critical inquiry is 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.” Id. (cleaned up). Thus, we focus on whether the factfinder

in the previous trial “could have grounded its verdict upon an issue other than

that which the defendant seeks to foreclose from consideration.” Id. (cleaned

up). It is only when “the verdict must have been based on resolution of an

issue in a manner favorable to the defendant with respect to a remaining

charge” that the Commonwealth cannot attempt “to relitigate that issue in an

effort to resolve it in a contrary way.” Id. (emphasis added). “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.” Id.




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      To resolve the question of whether an issue has been decided by a

factfinder, we must examine the entire record in a practical manner. Ashe,

supra at 1194. We review the offenses, the evidence, the jury instruction,

and any other relevant circumstances to determine whether a “rational jury

could have grounded its verdict upon an issue other than that which the

defendant seeks to foreclose from consideration.” Id.

      For example, in States, the defendant was charged with various

offenses in connection with a single vehicle accident. Two occupants of the

car died in the accident while the defendant survived the crash.            Some

offenses were submitted to the jury for its consideration while, at the same

trial, the court was tasked with rendering the verdict on a charge of accidents

involving death while not properly licensed. Trial focused on the question of

whether the defendant or another occupant of the car was the driver. The

jury hung on the charges submitted to it, but the trial court acquitted the

defendant, concluding that the evidence was insufficient to establish beyond

a reasonable doubt that he was driving the car.

      The question on appeal was whether the Commonwealth could retry the

defendant on the deadlocked charges. Our Supreme Court held that, since

the critical finding in the trial court’s verdict was that the Commonwealth failed

to prove that the defendant was driving the car, the defendant could not be

re-prosecuted before a jury on the remaining charges stemming from the

traffic accident. In so doing, it analyzed the evidence and concluded that the


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trial court’s verdict necessarily involved a finding that the Commonwealth

failed to establish beyond a reasonable doubt that defendant was driving the

car.

       Similarly, in Ashe, the United States Supreme Court applied the

doctrine to preclude a second prosecution. Ashe was charged in six separate

criminal proceedings with robbing six men with a gun while they were playing

poker together. Two or three other men were involved in perpetrating the

crime. The state prosecuted Ashe for one of those robberies, but none of the

victims were able to positively identify Ashe as a perpetrator, and Ashe was

acquitted. The Supreme Court ruled that Ashe could not be prosecuted for

the remaining five robberies since, given the nature of the proof, the first

verdict necessarily involved the determination that the prosecution failed to

establish beyond a reasonable doubt that Ashe was one of the perpetrators of

the armed robbery.

       Herein, the trial court concluded that the jury’s verdict in connection

with PIC did not reflect a definitive finding that Appellant did not possess a

weapon. Trial Court Opinion, 8/15/18, at 4. We agree. The elements of PIC

are two-fold.   The defendant commits that offense if he “possesses any

instrument of a crime with the intent to employ it criminally.”    18 Pa.C.S.

§ 907. In light of the evidence submitted at trial, the jury verdict could have

been premised upon one of two findings: that Appellant did not possess the




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gun, or that, although he possessed the gun, he did not intend to employ it

criminally.

      The Commonwealth presented evidence that, two days before the

shooting, Mr. Thomas had intervened in an altercation involving Appellant,

calling him a coward and striking Appellant’s vehicle with his hand. N.T. Trial,

3/6/18, at 39-40.    Although counsel never explicitly raised a justification

defense, he did insinuate that Mr. Thomas swung a hammer at Appellant

during the earlier incident. Id. at 51. The defense also suggested that on the

date of the alleged offense, Mr. Thomas jumped off his forklift to confront

Appellant, while swinging at him with something in his hands, before Appellant

retrieved his weapon. Id. at 56. Given all of the facts and circumstances and

the charge herein, the jury’s verdict could have been premised upon a finding

that Appellant acted justifiably when he fired his gun at Mr. Thomas.

Therefore, an acquittal for PIC did not necessarily entail a finding that

Appellant did not possess a firearm. As the verdict in this case could have

been based upon an issue other than the one that Appellant seeks to foreclose

from consideration, the Commonwealth should not be barred from trying

Appellant for the VUFA offense at issue.

      Appellant’s reliance upon our decision in Commonwealth v. Wallace,

602 A.2d 345 (Pa.Super. 1992), does not alter this conclusion. In that case,

Wallace was charged with attempted homicide, assault, possession of an

unlicensed weapon, and possession of a weapon by a prohibited person. The


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latter two weapons charges were severed for a bench trial while a jury trial

was held on the remaining two crimes. At the jury trial, the two complainants

alleged that Wallace brandished and discharged a weapon at them during a

road-rage incident. Wallace’s version of events was at odds with those of the

two purported victims, and, at trial, he specifically denied that he ever had a

gun in his possession. The jury acquitted Wallace of attempted homicide and

assault. Following the verdict, the Commonwealth conceded on the record

that the jury’s verdict necessarily reflected a finding that Wallace did not

possess a weapon.

      The primary issue in Wallace was whether the defendant waived his

right to invoke collateral estoppel since he sought severance of the weapons

charges from the homicide and assault offenses.       We rejected the waiver

argument.     We then summarily concluded that the Commonwealth’s

admission that the jury found that the defendant did not possess a gun

precluded it from attempting to re-litigate the question of whether Wallace did

so. The Commonwealth in this matter made no similar concession. Hence,

no relief is warranted herein based on Wallace.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 05/13/2019

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