J-A22026-18

                                   2019 PA Super 73

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    TROY T. BROCKINGTON-                       :   No. 3147 EDA 2017
    WINCHESTER                                 :

                Appeal from the Order Entered August 14, 2017
     In the Court of Common Pleas of Delaware County Criminal Division at
                       No(s): CP-23-CR-0002546-2016


BEFORE: BENDER, P.J.E., NICHOLS, J., and STEVENS, P.J.E.*


OPINION BY NICHOLS, J.:                                    Filed: March 8, 2019

        The Commonwealth appeals from the order granting Appellee Troy T.

Brockington-Winchester’s motion to dismiss, which he filed after a jury

acquitted him of robbery, theft by unlawful taking or disposition, and

terroristic threats but could not reach a verdict on trafficking in individuals and

attempted involuntary servitude.1 The Commonwealth asserts the doctrine of

collateral estoppel does not bar retrial of the offenses that resulted in a hung

jury, because the jury did not conclusively determine any issues pertaining to

those offenses. We reverse and remand for further proceedings.

        The trial court set forth the relevant facts of this appeal as follows:


____________________________________________


*   Former Justice specially assigned to the Superior Court.

118 Pa.C.S. §§ 3701(a)(1)(ii), 3921(a), 2706(a)(1), 3011(a)(1), 901(a), and
3012(b)(5), respectively.
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      The charges stem from an incident which occurred on January 29,
      2016 when [Appellee] contacted the victim . . . via a website
      entitled “www.backpage.com.” The victim offered herself for
      sexual services through an advertisement on this website.
      [Appellee] contacted the victim through text messages to set up
      an appointment.       When [Appellee] arrived at the victim’s
      apartment, he was let inside. The victim was wearing a robe when
      she answered the door.        Then according to [the victim’s]
      testimony: “I went to take my robe off and I turned around, he
      had the gun out, pointed to my face.” She testified that [Appellee]
      threatened her with a weapon, zip-tied her, and took $2,700 from
      her. The victim alleged that [Appellee] told her she could have
      her money back “if I worked for him.” [Appellee] left, telling the
      victim he would return by 11:30 p.m. the same evening. The
      victim freed herself and called police. When [Appellee] returned
      as promised, he was promptly arrested. Upon [Appellee’s] arrest,
      zip ties were found in his car matching those allegedly used to
      restrain the victim.

      [Appellee] testified on his own behalf during trial. He testified that
      he and the victim had a prior relationship. He asserted that his
      communications with her after finding her on the website were an
      effort to confirm his own suspicion that the victim was prostituting
      herself. He testified that he called her a “whore,” which angered
      her. He denied binding the victim’s hands, robbing her, or telling
      her he would “pimp” her out. [Appellee] testified that the zip ties
      in his car were related to his construction work. [Appellee] worked
      rehabbing houses and used zip ties to secure pipes and electrical
      wires. According to [Appellee’s] testimony, he never took the
      victim’s money and the police did not find her money on his person
      or in his car. [Appellee] contends that the victim’s motive was
      revenge for his revealing her profession.

Trial Ct. Op., 2/14/18, at 1-2 (record citations omitted).

      On May 25, 2016, the Commonwealth filed a criminal information,

charging Appellee with robbery, theft by unlawful taking or disposition,

terroristic threats, trafficking in individuals, and attempted involuntary

servitude. Following trial, the jury found Appellee not guilty of robbery, theft




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by unlawful taking, and terroristic threats. The jury could not reach a verdict

on trafficking in individuals and attempted involuntary servitude.

      On June 5, 2017, Appellee filed a motion for dismissal, asserting that

the Commonwealth intended to retry him on the charges of trafficking in

individuals and attempted involuntary servitude.    Appellee argued that the

trial court should apply the doctrine of collateral estoppel and dismiss the

remaining charges. The trial court conducted a hearing on June 26, 2017. On

August 14, 2017, the court issued findings of fact, conclusions of law, and an

order granting Appellee’s dismissal motion.

      The Commonwealth timely filed a notice of appeal and a Pa.R.A.P.

1925(b) statement of errors complained of on appeal. The trial court filed a

responsive Pa.R.A.P. 1925(a) opinion, maintaining that collateral estoppel

barred a retrial. The court reasoned:

      For the Commonwealth to proceed upon the “Trafficking in
      Individuals” charge, there would need to be proof beyond a
      reasonable doubt that [Appellee] knowingly benefitted financially
      from any act that facilitates any activity described in paragraph §
      3011(a)(1). See 18 Pa.C.S § 3011(a). However, the doctrine of
      collateral estoppel would preclude any such evidence from
      establishing this element. [Appellee] was acquitted of Robbery
      and Theft by Unlawful Taking and the facts established that he did
      not have the $2,700 that the victim claims was taken from her on
      his person or in his vehicle when he was arrested. Even if
      [Appellee] recruited, enticed, etc., the victim for involuntary
      servitude[,] he needed to knowingly benefit financially or receive
      anything of value from the involuntary servitude. Here, [Appellee]
      has been acquitted of Robbery and Theft by Unlawful Taking thus
      negating the necessary element in the Trafficking statute that he
      “knowingly benefits financially or receives anything of value from
      any act. . . .”


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        The same is true of the Involuntary Servitude statute, under the
        subsection that [Appellee] was charged, 18 Pa.C.S. § 3012(b)(5).
        This subsection requires “taking or retaining the individual’s
        personal property or real property as a means of coercion.”
        However, [Appellee] was acquitted of Theft by Unlawful Taking,
        which required that he unlawfully took, or exercised unlawful
        control over, movable property of another with the intent to
        deprive her thereof. Since [Appellee] was acquitted of the theft
        charge (taking unlawful control over the movable property of
        another) it follows a fortiori that he has been found not guilty of a
        necessary element of Involuntary Servitude (taking or retaining
        an individual’s property).

        In addition, for the Commonwealth to prove the “Involuntary
        Servitude” as charged, [Appellee] would have had to have been
        taking or retaining the victim’s personal property as a means of
        coercion. However, the jury already found him not guilty of both
        Robbery and Theft by Unlawful Taking. The jury decided that
        [Appellee] did not take the victim’s money.            Thus, the
        Commonwealth should be collaterally estopped from proceeding
        on the charge of “Involuntary Servitude.”

Trial Ct. Op. at 11-12.

        On appeal, the Commonwealth raises the following question for our

review: “Did the trial court commit legal error in finding that collateral estoppel

precluded retrial of [Appellee] on the outstanding charges after a hung jury

on the offenses?” Commonwealth’s Brief at 5.2

        The Commonwealth argues 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

offense for which the defendant is to be retried.”        Id. at 18-19.   (quoting

Commonwealth v. Jones, 166 A.3d 349, 352 (Pa. Super. 2017) (emphasis


____________________________________________


2   Appellee notified this Court that he would not file a brief.

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J-A22026-18



in original)). The Commonwealth contends that “the mere fact that certain

factual inferences may be drawn from [Appellee’s] acquittals [for robbery,

theft, and terroristic threats] does not transform such inferences into” specific

factual findings regarding the evidence. Id. at 14.

      The Commonwealth insists that the acquittals for robbery, theft, and

terroristic threats do not preclude a retrial where another jury may find that

the Commonwealth has proven each element of trafficking in individuals and

attempted involuntary servitude. Id. at 15. “Whether [Appellee] robbed the

victim, terrorized her, or intended to permanently deprive her of her property

is not dispositive of the charges of human trafficking and criminal attempt to

[commit] involuntary servitude . . . .” Id. The Commonwealth acknowledges

that it might appear inconsistent if another jury finds Appellee guilty of the

two offenses following a retrial, but “consistency in verdicts is not necessary.”

Id. at 17.

      Application of the doctrine of collateral estoppel is a question of law.

Commonwealth v. States, 938 A.2d 1016, 1019 (Pa. 2007). “Accordingly,

our standard of review is de novo, and our scope of review is plenary.” Id.

(citation omitted).

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

Clause.” Jones, 166 A.3d at 352 (citations omitted).

      The doctrine of collateral estoppel is a part of the Fifth
      Amendment’s guarantee against double jeopardy, which was
      made applicable to the states through the Fourteenth
      Amendment. The phrase “collateral estoppel,” also known as
      “issue preclusion,” simply means that when an issue of law,

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J-A22026-18


      evidentiary fact, or ultimate fact has been determined by a valid
      and final judgment, that issue cannot be litigated again between
      the same parties in any future lawsuit. Collateral estoppel does
      not automatically bar a subsequent prosecution, but rather, it bars
      redetermination in a second prosecution of those issues
      necessarily determined between the parties in a first proceeding
      that has become a final judgment.

      Traditionally, Pennsylvania courts have applied the collateral
      estoppel doctrine only if the following threshold requirements are
      met: 1) the issues in the two actions are sufficiently similar and
      sufficiently material to justify invoking the doctrine; 2) the issue
      was actually litigated in the first action; and 3) a final judgment
      on the specific issue in question was issued in the first action. An
      issue is actually litigated when it is properly raised, submitted for
      determination, and then actually determined.            For collateral
      estoppel purposes, a final judgment includes any prior
      adjudication of an issue in another action that is sufficiently firm
      to be accorded conclusive effect.

Commonwealth v. Holder, 805 A.2d 499, 502-03 (Pa. 2002) (plurality)

(citations, emphasis, and footnotes omitted).

      In States, the Pennsylvania Supreme Court set forth additional

considerations for application of the collateral estoppel doctrine:

      In the criminal law arena, 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);


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J-A22026-18


      Commonwealth v. Wallace, . . . 602 A.2d 345, 349–50 ([Pa.
      Super.] 1992) (Commonwealth’s concession that the jury’s
      acquittal meant appellant did not possess a gun collaterally
      estopped Commonwealth from any subsequent prosecution based
      on appellant’s possession of a gun); Commonwealth v. Klinger,
      . . . 398 A.2d 1036, 1041 ([Pa. Super.] 1979) (appellant’s
      acquittal on murder precluded the Commonwealth from bringing
      a subsequent perjury prosecution based on appellant’s trial
      testimony that he did not kill the victim) . . . . 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); [Commonwealth v.] Smith, 540 A.2d [246,] 253–54
      [(Pa. 1988)] (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).

      Additionally, the Crimes Code defines the offense of trafficking in

individuals as follows:

      § 3011. Trafficking in individuals

      (a) Offense defined.―A person commits a felony of the second
      degree if the person:

         (1) recruits, entices, solicits, harbors, transports, provides,
         obtains or maintains an individual if the person knows or
         recklessly disregards that the individual will be subject to
         involuntary servitude; or

         (2) knowingly benefits financially or receives anything of
         value from any act that facilitates any activity described in
         paragraph (1).



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J-A22026-18



18 Pa.C.S. § 3011(a)(1)-(2) (emphasis added).

      The offense of involuntary servitude is defined as follows:

      § 3012. Involuntary servitude

      (a) Offense defined.―A person commits a felony of the first
      degree if the person knowingly, through any of the means
      described in subsection (b), subjects an individual to labor
      servitude or sexual servitude, except where the conduct is
      permissible under Federal or State law other than this chapter.

      (b) Means of subjecting an individual to involuntary
      servitude.―A person may subject an individual to involuntary
      servitude through any of the following means:

                                 *    *    *

         (5) Taking or retaining the individual’s personal property or
         real property as a means of coercion.

18 Pa.C.S. § 3012(a), (b)(5). “A person commits an attempt when, with intent

to commit a specific crime, he does any act which constitutes a substantial

step toward the commission of that crime.” 18 Pa.C.S. § 901(a).

      Instantly, the trial court erroneously concluded that the offense charged

under Section 3011 requires proof that Appellee knowingly benefitted

financially from any act that facilitates any activity described in Section

3011(a)(1).   While the court correctly identified language from Section

3011(a)(2), it ignored the fact that Sections 3011(a)(1) and (2) are separated

by the word “or.”   See 18 Pa.C.S. 3011(a)(1), (2).      Further, the criminal

information charged Appellee under Section 3011(a)(1) only. See Criminal

Information, 5/25/16, at 1. Upon retrial, the Commonwealth need only prove

that Appellee recruited, enticed, or solicited, among other things, the victim


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J-A22026-18



with knowledge or reckless disregard for the fact that she would be subjected

to involuntary servitude. See 18 Pa.C.S. § 3011(a)(1). Therefore, given this

record, Appellee’s acquittals for robbery and theft do not negate the elements

necessary to prove a violation of Section 3011(a)(1). See States, 938 A.2d

at 1022.

       Likewise, the trial court noted that Section 3012(b)(5) requires “taking

or retaining the individual’s personal property . . . as a means of coercion,”

and Appellee’s acquittal on the theft charge negated the Commonwealth’s

ability to prove this element.             The court ignored the fact that the

Commonwealth charged Appellee with attempted involuntary servitude. See

Criminal Information, 5/25/16, at 1. Upon retrial, the Commonwealth need

not prove that Appellee actually took or retained the victim’s personal property

as a means of coercion; rather, it must prove that Appellee, with the requisite

intent, took a substantial step toward committing the offense of involuntary

servitude. See Pa.C.S. § 901(a). The fact of Appellee’s acquittal for theft

does not preclude the possibility of a conviction for attempted involuntary

servitude.3 See States, 938 A.2d at 1022.

       Based upon the foregoing, we cannot definitively interpret Appellee’s

acquittals for robbery, theft, and terroristic threats as resolving the issues in

his favor with respect to the charges that resulted in a hung jury. Id. As
____________________________________________


3 Additionally, the fact of Appellee’s acquittal for robbery (threatening
immediate serious bodily injury) does not preclude the possibility that he
committed some other act that constituted a substantial step toward the
taking or retaining of the victim’s property as a means of coercion.

                                           -9-
J-A22026-18



such, collateral estoppel does not bar the Commonwealth from seeking a

retrial for the offenses of trafficking in individuals and attempted involuntary

servitude. See Holder, 805 A.2d at 502-03. Accordingly, we reverse and

remand.

      Order reversed. Case remanded. Jurisdiction relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/8/19




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