J-A26003-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellant

                   v.

WILFREDO RODRIGUEZ-CLAUDIO,

                        Appellee                     No. 394 MDA 2014


             Appeal from the Order Entered January 29, 2014
               In the Court of Common Pleas of Berks County
            Criminal Division at No(s): CP-06-CR-0000920-2012


BEFORE: BOWES, MUNDY, and JENKINS, JJ.

MEMORANDUM BY BOWES, J.:                         FILED OCTOBER 23, 2014

      The Commonwealth appeals from the January 29, 2014 order

dismissing a charge pending against Appellee Wilfredo Rodriguez-Claudio on

the basis of the collateral estoppel aspect of the prohibition against double

jeopardy. As we conclude that the trial court incorrectly applied the doctrine

in question, we reverse and remand.

      The present matter concerns a shooting that occurred on January 20,

2012 on the 300 block of Pear Street, Reading; two people were killed and

another was shot. The three victims belonged to one extended family that

had an acrimonious relationship with Appellee’s extended family. On the day

in question, male members in the victims’ family were on the front porch of

one of their homes when Juan Claudio, Appellee’s co-defendant, started

making gestures at them.
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       One of the men on the porch, Giovanie Collazo-Rosa, walked toward

Juan Claudio and demanded that Juan Claudio approach him.             As a

confrontation appeared to be imminent, Juan’s sister, Rosa, telephoned a

man identified only as Manny and asked Manny to come over and take care

of the situation. Shortly thereafter, a red car arrived on the scene, Manny

exited it, and he began to shoot at members of the victims’ family.

Juan Claudio also was witnessed shooting at the victims with a gun.

Giovanie Collazo-Rosa was shot with a gun and killed. Enrique Collazo was

injured by gunshot pellets. Enrique’s uncle, Efrain Lopez-Collazo, was shot

with a gun and killed.

       In an oral1 statement, Appellee told police that, when Manny arrived

and started to shoot at the victims, Appellee went into a house. Appellee

continued that he retrieved a shotgun located on the second floor and

opened a window. Appellee then said that, when he opened the window, he

saw his sister “running for her life” and fired the shotgun once. N.T. Jury

Trial, 9/30/13 - 10/2/13, at 281. After the shooting was over, Appellee left

the vicinity with Juan Claudio.
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1
     While the Commonwealth contends that Appellee made a written
statement, Commonwealth’s brief at 7, the record indicates the contrary.
Michael Perkins, a criminal investigator for the Reading Police Department,
took Appellee’s statement. He reported that there was no written statement
from Appellee. N.T. Jury Trial, 9/30/13 to 10/2/13, at 285 (“[T]here was no
written statement.”). There also was no audio or visual recording of the
statement. Id. Investigator Perkins recited the information that Appellee
gave to police based upon his notes of an interview.



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      Appellee was charged with two counts each of first-degree murder and

third-degree murder, attempted murder, six counts of aggravated assault,

three counts of reckless endangerment, possession of an instrument of

crime (“PIC”), six counts of conspiracy, and one violation of the Uniform

Firearms Act (“VUFA”) (persons not to possess). Trial on the VUFA charge

was severed from the remaining charges, which were submitted to a jury.

      After the Commonwealth rested, the trial court granted Appellee’s

request for judgment of acquittal as to two counts of first-degree murder,

two counts of third-degree murder, three counts of aggravated assault, and

the conspiracy counts related to those offenses. On October 2, 2013, the

jury acquitted Appellee of all the remaining charges. On October 7, 2013,

Appellee filed a motion to quash the pending VUFA charge based upon the

double jeopardy principle of collateral estoppel. The trial court granted that

motion. It concluded that the jury necessarily found that Appellee did not

possess a weapon when it acquitted him of PIC.

      This Commonwealth appeal followed. The Commonwealth asks, “Did

the trial court err in granting the motion to quash the severed firearm

charge under a theory of collateral estoppel because [Appellee] was

acquitted of possessing an instrument of crime.” Commonwealth’s brief at

4.   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


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

question of law, that the standard of review is de novo, and that the scope

of review is plenary. The double jeopardy clause is found in both the United

States and Pennsylvania Constitutions, and those clauses are coextensive.

Id.    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. at 1019 (citation omitted).

       Collateral estoppel is derived from the double jeopardy protection

against being tried twice for the same offense. However, collateral estoppel

does    not,     itself,   bar   a   second   prosecution;    rather,   it   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.”     States, supra at 1021 (quotation marks and citation

omitted).   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. (quotation marks and

citation omitted).   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. We review the offenses, the evidence, the jury instruction and any

other relevant circumstances to reach the conclusion as to whether a

“rational jury could have grounded its verdict upon an issue other than that

which the defendant seeks to foreclose from consideration.” Id. at 444.

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

offenses in connection with a traffic accident. Two occupants of a car died in

a single vehicle accident while the defendant survived the crash.       Some

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

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

accidents involving death while not properly licensed. Trial revolved around

the question of whether the defendant or another occupant of the car was

the driver. The jury hung on the charges submitted to it, and then the trial

court rendered its finding.   The trial court expressly concluded that the

evidence was insufficient to establish beyond a reasonable doubt that the

defendant was driving the car, and it acquitted him.

      The question on appeal was whether the Commonwealth could proceed

to 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


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charges stemming from the traffic accident.      In so doing, it analyzed the

evidence and concluded that the 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, supra, the United States Supreme Court applied

the doctrine so as 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 the identification evidence was very weak in that none of the

victims was able to positively identify Ashe as a perpetrator.      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 reflected a definitive finding that Appellee did not possess a

weapon. We respectfully disagree with this conclusion. In connection with

the assault offenses submitted to the jury for consideration, Appellee

proffered a justification defense.     This defense was supported by the

contents of Appellee’s oral statement to police. Specifically, Appellee said he


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obtained a shotgun and he fired in defense of his sister, who was fleeing

imminent harm.        The jury received a charge on justification.    N.T. Trial,

9/30/13-10/2/13, at 351.

      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 facts: the

Commonwealth’s failure to prove that Appellee possesses the shotgun, or its

failure to establish that Appellee intended to employ the shotgun that he did

possess criminally.

      The Commonwealth presented evidence that Appellee told police that

he fired a shotgun once to protect his sister. The jury was instructed on the

justification defense.    Given all of the facts and circumstances and charge

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

Appellee acted justifiably when he fired his shotgun at assailants pursuing

his sister. It is clear that this verdict did not necessarily entail a finding by

the jury that Appellee did not possess a weapon. The verdict in this case

could have been based upon an issue other than the one that Appellee seeks

to foreclose from consideration. See Commonwealth v. Barger, 956 A.2d




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458 (Pa.Super. 2008).        Thus, the Commonwealth can try Appellee for the

VUFA offense2 at issue.

       Appellee cites our decision in Commonwealth v. Wallace, 602 A.2d

345 (Pa.Super. 1992), in support of the trial court’s ruling herein. Wallace

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

weapon, and possession of a weapon by a prohibited person. The 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 the defendant 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

____________________________________________


2
  The statute in question states that a person who has a conviction for an
enumerated offense may not “possess, use, control, sell, transfer or
manufacture or obtain a license to possess, use, control, sell, transfer or
manufacture a firearm in this Commonwealth.” 18 Pa.C.S. § 6105. Appellee
admittedly was convicted of one of the delineated offenses.



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argument.     We then summarily concluded that the Commonwealth’s

admission that the jury did find 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, we reject Appellee’s attempt to invoke Wallace.

     Order reversed. Case remanded. Jurisdiction relinquished.

     Judge Jenkins joins the Memorandum.

     Judge Mundy files a Concurring Statement in which Judge Bowes and

Judge Jenkins join.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/23/2014




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