J-S35011-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                         Appellant       :
                                         :
                 v.                      :
                                         :
RASHUN MAURICE AUSTION                   :
                                         :
                         Appellee        :   No. 1167 EDA 2018

                     Appeal from the Order April 9, 2018
                in the Court of Common Pleas of Pike County
            Criminal Division at No(s): CP-52-CR-0000297-2015
                                        CP-52-CR-0000659-2016

BEFORE:     OLSON, J., STABILE, J. and STRASSBURGER, J.*

DISSENTING MEMORANDUM BY STRASSBURGER, J.:

                                                   FILED MARCH 13, 2020

      Because I believe it is just plain common sense that if Appellant did not

possess the glassine packets, Appellant could not have possessed the heroin

inside of the glassine packets, I respectfully dissent. In my view, under these

circumstances, the Commonwealth is collaterally estopped from retrying

Appellant for possession with intent to deliver (PWID) heroin and possession

of heroin, and cannot retry him on these charges without running afoul of

double jeopardy principles.

      As the Majority recognizes, the applicable standard for collateral

estoppel is to determine whether a rational jury could have grounded its

verdict in the first trial upon an issue other than that which is sought to be

foreclosed in the second trial. Commonwealth v. Smith, 615 A.2d 321 (Pa.


*Retired Senior Judge assigned to the Superior Court.
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1992). When making this inquiry, we must consider the issues from a practical

perspective and with an eye to all circumstances, and apply the doctrine of

collateral estoppel with “realism and rationality.” Id. at 251.

      Guided by these instructions, I turn to the facts of this case.       The

paraphernalia at issue are glassine packets, packaging material, a glass pipe,

and cigars. There is no dispute that the heroin at issue was contained in the

very glassine envelopes of which the jury found Appellant not guilty of

possessing. Despite the jury’s determining that Appellant was not guilty of

possessing paraphernalia at his first trial, and delivering of a hung verdict on

the PWID and simple possession of heroin charges, the Commonwealth seeks

to prosecute Appellant a second time for PWID and possession of heroin.

      The Majority offers several explanations to justify its decision. It first

speculates that the jury may have determined that the Commonwealth did

not prove that glassine packets were paraphernalia as statutorily defined.

Majority Memorandum at 13-14.        I do not buy this.     While theoretically

possible, given the broad definition of paraphernalia, the straightforward

nature of glassine packets, and the heroin’s presence inside the packets, any

such determination would not have been rational.

      The Majority next speculates that the jury may have been confused.

Again, I am not convinced. The Majority points out that the Commonwealth

lumped together multiple types of paraphernalia in a single charge in the

information, and did not amend the information after Appellant’s co-defendant



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pleaded   guilty   to   possession    of   marijuana    and   marijuana-related

paraphernalia found in her purse. Because pipes and cigars are typically used

to consume marijuana, but the glassine packages at issue are used for

packaging and storing narcotics, the Majority deems the single paraphernalia

charge lumping together multiple items of paraphernalia to be “carelessly

confusing.” Majority Memorandum at 14-15 n.6. The Majority concludes the

jury must have been confused by the lack of evidence regarding the

marijuana-related paraphernalia seized from the co-defendant’s purse, and

therefore rationally concluded Appellant did not possess any paraphernalia.

Id.

      I find this argument to be a red herring. The bottom line is that if the

Commonwealth attempted to prove that Appellant possessed the glassine

envelopes and the heroin within the glassine envelopes, the Commonwealth’s

failure to offer evidence regarding paraphernalia of a different variety should

not have been a factor to a rational jury.     Moreover, even if the jury was

confused, any confusion simply was not rational, considering that the verdict

slip specifically broke down the various items of paraphernalia and permitted

the jury to find Appellant guilty of possession of the glassine envelopes without

finding Appellant guilty of the marijuana-related paraphernalia.

      The Majority then uses the doctrine of inconsistent verdicts to justify a

second trial in this case. To me, this doctrine is inapplicable in double jeopardy

jurisprudence. Juries are sometimes strange creatures, and of course they



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may make a mistake or exercise lenity in any given case. But that should not

override the double jeopardy clause. Otherwise, we will have to throw the

baby out with the bathwater, rendering the protections against double

jeopardy meaningless in many cases.

      The two cases relied upon by the trial court and the Majority regarding

inconsistent verdicts do not compel the result the Majority reaches.          In

Commonwealth v. DeLong, 879 A.2d 234 (Pa. Super. 2005), DeLong was

found guilty of PWID and delivery of narcotics, and not guilty of the lesser

included offense of simple possession of narcotics.        Following the jury’s

verdict, the trial court declared a mistrial due to jury misconduct, and the

Commonwealth sought to retry DeLong on the PWID and delivery charges

notwithstanding the acquittal for simple possession.       In other words, the

Commonwealth sought to retry DeLong on the greater charges even though

the first jury found DeLong not guilty of the lesser included charge. After

DeLong filed and lost a motion to dismiss based on double jeopardy and

collateral estoppel principles, he appealed.

      On appeal, this Court was not troubled in a general sense by the jury’s

rendering of inconsistent verdicts; it noted that they are permissible due to

the jury’s right to exercise lenity, and the inconsistent verdict on the lesser

offense “does not imply error, mistake, or inability to agree as to the two

greater inclusive offenses.”   Id. at 238.     But the Court stressed that the

inconsistent verdicts in DeLong’s first trial do not implicate double jeopardy or



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collateral estoppel in Appellant’s second trial because “Appellant was convicted

of the greater inclusive offenses which are now refiled against him.” Id. Since

Appellant was convicted of PWID and delivery charges in the first trial, he

could be tried on those charges again.      The Commonwealth proved both

beyond a reasonable doubt in his first trial, avoiding any concern that there

was “an inadequate evidentiary proffer in the first prosecution.” Id. at 239.

Furthermore, because nothing was resolved in Appellant’s favor as to the

PWID and delivery charges in his first trial, there is no concern that the

Commonwealth had failed to make a case or that the jury had disagreed over

the greater inclusive offenses. Id. Therefore, the Commonwealth could retry

Appellant on the same charges without having the issue of Appellant’s

possession and delivery precluded. Id. DeLong has no bearing on the instant

case, where the jury decided the possession of paraphernalia charge in

Appellant’s favor.

      The second case, Commonwealth v. Moore, 103 A.3d 1240, 1246 (Pa.

2014), is even more inapposite, as it is not a double jeopardy case. Instead,

Moore examined whether one could interpret a jury’s acquittal on one charge

as a factual finding affecting a second charge in the same trial, such that a

reviewing court must overturn the inconsistent finding of guilt on the second

charge. The Moore Court concluded that one could not, and permitted the

inconsistent verdicts to stand.




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      Thus, neither DeLong nor Moore supports the notion that following a

first trial with inconsistent verdicts, the Commonwealth may retry a defendant

without facing issue preclusion or double jeopardy restrictions in the second

trial simply because of the mere possibility that the jury may have acquitted

the defendant on one or more charges in the first trial due to lenity, mistake,

or compromise. Stated another way, neither case holds that the doctrine of

inconsistent verdicts overrides constitutional double jeopardy protections.

      When I consider the facts of the instant case from a practical perspective

and with an eye to all circumstances, and apply the doctrine of collateral

estoppel with “realism and rationality,” see Smith, 540 A.2d at 251, I am

compelled to reverse the trial court’s decision to permit the second trial to

proceed. The trial court claims the jury’s finding that Appellant did not possess

paraphernalia is not specific enough to conclude that Appellant did not possess

the heroin contained within the glassine packets. But if one uses “realism and

rationality” as our Supreme Court has instructed, how can one ignore the plain

and obvious fact that it would have been impossible for Appellant to have

possessed the heroin inside the glassine packets if he did not possess the

glassine packets themselves?

      Moreover, I am troubled by the suggestion of the trial court and the

Majority that because possession of glassine packets is not an element of

simple heroin possession and PWID, the Commonwealth could prove the

charges of heroin possession and PWID in a second trial without reference to



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the glassine packages. An issue need not be an element of the re-tried crimes

to have preclusive effect. The issues merely need be sufficiently similar and

material; actually litigated in the first action; and a final judgment on the

specific issue exists.   Commonwealth v. Brockington-Winchester, 205

A.3e 1279-1283-84 (Pa. Super. 2019).       Even if the Commonwealth could

prove its case as to possession and PWID without referencing the glassine

envelopes, this means Appellant could be convicted of possessing drugs inside

the envelopes despite being not guilty of possessing the envelopes

themselves.    In my view, the constitutional protections against double

jeopardy prohibit such a result. Accordingly, I dissent.




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