J-S75017-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
PENNSYLVANIA                               :        PENNSYLVANIA
                                           :
                                           :
              v.                           :
                                           :
                                           :
THOMAS LEE CRORY                           :
                                           :   No. 642 WDA 2019
                     Appellant

     Appeal from the Judgment of Sentence Entered March 26, 2019,
          In the Court of Common Pleas of Allegheny County,
         Criminal Division at No(s): CP-02-CR-0004091-2018.


BEFORE:      STABILE, J., KUNSELMAN, J., and PELLEGRINI, J.*

MEMORANDUM BY KUNSELMAN, J.:                   FILED DECEMBER 26, 2019

        Thomas Lee Crory appeals from the judgment of sentence entered

against him in absentia on 33 summary charges of animal cruelty, claiming

the Commonwealth failed to introduce sufficient evidence that he was guilty

of these crimes. Under the unique procedural history of this case, the trial

court and the Commonwealth agree there was insufficient evidence.         We

reverse the convictions and vacate the judgment of sentence.

        On May 10, 2018, the Commonwealth charged Mr. Crory by criminal

information at CC 2018-04091 with eight counts of Cruelty to Animals as a

misdemeanor, one count of Criminal Conspiracy, and 33 counts of Cruelty to

Animals as a summary offense. On May 24, 2018, Assistant Public Defender

Melissa Leech entered her appearance on Mr. Crory's behalf.
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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      On January 14, 2019, Mr. Crory and his co-defendant, Marcia Dinardo

were scheduled to enter pleas in their respective cases. The trial court called

both cases for a non-jury trial.     The facts of Ms. Dinardo’s case were

summarized for the record, and Ms. Dinardo entered her plea.         However,

because Mr. Crory was hospitalized, his case was continued.

      On March 26, 2019, Assistant District Attorney Lisa Borelli for the

Commonwealth and APD Leech for Mr. Crory appeared at that time before the

Honorable Alexander P. Bicket.    APD Leech initially requested a third defense

postponement for good cause, because Mr. Crory was in the hospital again.

N.T., 3/26/19, at 2. When the Commonwealth objected, the trial court denied

Mr. Crory's request for postponement. On this same date, the Commonwealth

withdrew the misdemeanor offenses.       The Commonwealth then elected to

prosecute Mr. Crory in his absence and proceed solely on the 33 summary

charges for Cruelty to Animals.

      Immediately after the trial court called the case and denied the request

for a continuance, the trial court found Mr. Crory guilty of the 33 summary

charges and sentenced him to 90 days probation and a $300 fine for each

count, along with $10,625 in restitution. Mr. Crory appealed, and raises one

issue for our review:

      Whether Mr. Crory's 33 convictions for Animal Cruelty must be
      reversed, and the judgment of sentence must be vacated, where
      the Commonwealth failed to present any evidence in support of
      the charges, and the trial court agrees that Mr. Crory is entitled
      to relief?

Mr. Crory’s Brief at 11.

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      When reviewing a sufficiency claim, our scope of review is limited to the

evidence of the record. Commonwealth v. Meadius, 870 A.2d 802, 805

(Pa. 2005). The standard of review for challenges to the sufficiency of the

evidence is well-established:

      We must determine whether, viewing all the evidence admitted at
      trial, together with all reasonable inferences therefrom, in the light
      most favorable to the Commonwealth, the trier of fact could have
      found that each element of the offenses charged was supported
      by evidence and inferences sufficient in law to prove guilt beyond
      a reasonable doubt.

In re R.C.Y., 27 A.3d 227 (Pa. Super. 2011), reargument denied (Sept. 16,

2011) (citation omitted).

      Moreover, a "claim challenging the sufficiency of the evidence is a

question of law."    Commonwealth v. Lawson, 977 A.2d 583, 584 (Pa.

Super. 2009). Because it is a question of law, a challenge to the sufficiency

of the evidence is subject to plenary review. Commonwealth v. Jones, 904

A.2d 24, 26 (Pa. Super. 2006).

      Here, a review of the evidence is simple; all parties and the court admit

that absolutely no testimony about Mr. Crory’s actions was entered in the case

against him. The trial court admitted it was under the belief that the facts

entered in the co-defendant’s case applied to Mr. Crory as well. In its opinion,

the trial court stated:

      At the time, it was this Court's understanding that Appellant's case
      was called simultaneously with . . . Ms. Dinardo's case, and that
      the facts that were entered into record also applied to Appellant's
      case. However, upon further review of the transcript of the
      proceedings that took place on January 14, 2019, this Court now


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         realizes that Appellant's name was not mentioned in the
         summary of the facts read into the record. Accordingly, this
         Court believes that due to a breakdown in court and administrative
         procedure, the facts as they pertain to Appellant's case were
         not properly placed on the record. This breakdown further
         came to light at a hearing this Court held on July 9, 2019, which
         was held to clarify the record.

Trial Court Opinion, 9/20/19, at 2. (emphasis added).

         Thus, everyone agrees the Commonwealth presented insufficient

evidence to convict Mr. Crory. With this understanding, Mr. Crory originally

prepared his appeal for the submission on his brief alone. However, in its

appellee brief, the Commonwealth maintains that the Double Jeopardy Clause1

does not apply to the proceedings below and that we should remand for a new

trial.     Commonwealth Brief at 8.            Mr. Crory did not anticipate the

Commonwealth would take this position; thus, his counsel filed a motion

seeking oral argument on what manner of appellate relief is due. The trial

court did not discuss this question in its opinion.

         Because jeopardy clearly attached below, oral argument in this Court is

unnecessary. Thus, we deny Mr. Crory’s motion as moot. Instead, we grant

him full appellate relief by reversing his conviction and vacating the judgment

of sentence against him.




____________________________________________


1That constitutional provision directs, “nor shall any person be subject for the
same offence to be twice put in jeopardy of life and limb . . . .” Fifth
Amendment to the Constitution of the United States.


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      “The Double Jeopardy Clause of the Fifth Amendment to the United

States Constitution protects an individual against successive punishments and

successive prosecutions for the same criminal offense.” Commonwealth v.

Szebin, 785 A.2d 103, 104 (Pa. Super. 2001), appeal denied, 796 A.2d 982

(Pa. 2002).

      The key to determining whether jeopardy attaches is whether the

defendant faced a trial on the merits:

      The United States Supreme Court has stated that “the
      constitutional prohibition against double jeopardy was designed to
      protect an individual from being subjected to the hazards of trial
      and possible conviction more than once for the same offense.
      Accordingly, this Court has determined that at the heart of double
      jeopardy jurisprudence is the requirement that an individual
      demonstrate that he or she has been subjected to the risk of a
      trial on the merits. In Pennsylvania, jeopardy does not attach and
      the constitutional prohibition against double jeopardy has no
      application until a defendant stands before a tribunal where guilt
      or innocence will be determined.

Commonwealth v. Hunter, 674 A.2d 306, 307 (Pa. Super. 1996), appeal

dismissed as improvidently granted, 701 A.2d 1356 (Pa. 1997).

      “In a criminal jury trial, jeopardy attaches when the jury is sworn. In

a bench trial, however, jeopardy attaches when the trial court begins to hear

the evidence.” Commonwealth v. Micklos, 672 A.2d 796, 799 (Pa. Super.

1996), appeal denied, 686 A.2d 1309 (Pa. 1996) (emphasis added).

      Here, the transcripts show that on March 26, 2019, after the request for

a continuance was denied, both the Commonwealth and the trial court

proceeded with the understanding that the facts entered on the record in the


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co-defendant’s case were admitted as to both cases. N.T., 7/9/19, at 9. The

Commonwealth proceeded with the bench trial, but offered no separate

evidence against Mr. Crory into the record. When the trial court immediately

began discussing the sentence recommended by the Commonwealth in Mr.

Crory’s case, the Commonwealth did not object to the procedure or lack of

evidence, but allowed the court to convict and sentence Mr. Crory.        As a

result, Mr. Crory stood, in absentia, before the court, “where his guilt or

innocence [was] determined.” Hunter, 674 A.2d at 307.

       As a review of the transcripts later revealed, however, although the two

cases were called at the same time on January 14, 2019, the facts from the

co-defendant’s case never mentioned Mr. Crory.2     As such, the facts against

the co-defendant were legally insufficient to sustain a prima facie case of any

crime by Mr. Crory. There is no question that Mr. Crory was subjected to a

trial on the merits on March 26, 2019; the trial court admitted this in its

opinion.   Under these circumstances, jeopardy attached that day, and the

Commonwealth does not get a second chance to make its case against Mr.

Crory.



____________________________________________


2 Counsel for Mr. Crory was not present when the facts of the co-defendant’s
case were entered on the record on January 14, 2019, and had no opportunity
to object or contest them. As such, even if they had mentioned Mr. Crory, his
counsel argued the court should not have considered them as evidence in his
case. N.T., 7/9/19, at 9-12. Given our disposition, we need not address
counsel’s argument.


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     Judgment of sentence vacated. Convictions reversed. Motion for oral

argument denied as moot. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/26/2019




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