J-S11026-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellant

                    v.

JOHN ADAMS

                         Appellee                    No. 1529 EDA 2015


                  Appeal from the Order December 8, 2014
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0013625-2012


BEFORE: FORD ELLIOTT, P.J.E., OTT, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.:                                FILED JUNE 07, 2016

      The Commonwealth appeals from the order entered on December 8,

2014, in the Court of Common Pleas of Philadelphia County, granting

defendant, John Adams’, motion to dismiss based on collateral estoppel.

The Commonwealth argues the trial court committed an error of law

dismissing the charges against Adams regarding one victim after a jury

acquitted Adams of having shot and wounded a second victim.         After a

thorough review of the submissions by the parties, relevant law, and the

certified record, we reverse and remand this matter for retrial.

      The facts of the underlying trial involve a melee at the Travelers

Motorcycle Club in Philadelphia, Pennsylvania, on August 5, 2012. A tribute

was being held for a fallen member of a motorcycle club that night.

Apparently, members of several motorcycle clubs were in attendance.      A
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fight erupted inside and some “civilians” were ejected from the club.     The

fight spilled out into the parking lot. The defendant, John Adams, was one

of those civilians.   The victims, Darryl Jenkins and Gregory Gordon, were

associated with the Wheels of Soul motorcycle club.

      The Commonwealth alleged that after being ejected from the property,

Adams returned minutes later and began shooting. Gordon was shot in the

shoulder.   Video surveillance of the parking lot showed a person the

Commonwealth believed to have been Adams, firing a handgun.           Jenkins

then ran after the shooter and was shot in the foot. The video surveillance

does not show the second shooting; therefore, there is no video evidence of

who fired the second set of shots.

      Although Jenkins identified Adams as the shooter in his initial

statement to the police, he could not conclusively identify Adams as the

shooter at trial. In fact, Jenkins testified he did not see who fired the shot

that injured him; he could not testify that the person he was chasing, whom

he believed had shot Gordon, was the same person who shot him. Gordon

did not testify at trial.   In summation, the evidence regarding who shot

Jenkins was the pre-trial identification of Adams in a photo line-up and

Jenkins’ testimony at trial that he did not actually see who shot him. The

only evidence of who shot Gordon was video evidence showing a person who

resembled Adams firing a handgun.

      The Commonwealth charged Adams with aggravated assault of both

Jenkins and Gordon; the Commonwealth clearly believed Adams shot and

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wounded both victims.         However, the jury was not instructed that it was

required to find Adams guilty or not guilty of both crimes.            During

deliberations, the jury asked to review the video evidence on three

occasions, claiming they needed to see the videos again to help them

identify the shooter. The request was denied each time. 1 The jury ultimately

acquitted Adams of shooting Jenkins (the second shooting that occurred off

camera) and could not reach a verdict regarding the shooting of Gordon (the

first shooting that occurred on camera, but for which the victim did not

testify).

       On October 28, 2014, Adams filed a motion to dismiss the charges

regarding Gordon based on collateral estoppel. A hearing on the motion was

held on November 20, 2014. Adams raised the argument that based on the

United States Supreme Court decision in Ashe v. Swenson, 90 S.Ct. 1189

(1970), the jury determined Adams was not the shooter of Jenkins and

therefore Adams could not have been the shooter of Gordon. Accordingly,

based upon collateral estoppel and double jeopardy, the Commonwealth was

barred from re-litigating the identity of the perpetrator. The Commonwealth

argued that there was independent proof of the identity of the shooter, and

that while the Commonwealth theorized the same person had fired both sets



____________________________________________


1
  The trial court believed reviewing video of the shootings would be unduly
prejudicial to Adams.



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of   shots,    a   jury   could   rationally   separate    the   two.    Therefore,    the

Commonwealth claimed Adams could be retried for Gordon’s shooting.

       On December 8, 2014, the trial court granted Adams’ motion based

upon the doctrine of collateral estoppel as announced in Ashe and reiterated

in Pennsylvania in Commonwealth v. Smith, 540 A.2d 246 (Pa. 1988).

       Our     applicable   scope    and   standard   of    review      are   as   follows:

“Appellant's issue is a pure question of law. Therefore, our standard of

review is de novo, and our scope of review is plenary.” Commonwealth v.

Barger, 956 A.2d 458, 461 (Pa. Super. 2008) (citation omitted).

       Commonwealth v. Smith, supra, provides an excellent recitation of

the rules for applying collateral estoppel in a criminal case.

       Collateral estoppel is “issue preclusion” which does not
       automatically bar subsequent prosecution but does bar
       redetermination in a second prosecution of those issues
       necessarily determined between the parties in a first proceeding
       which has become a final judgment. Commonwealth v. Hude,
       [492 Pa. 600] supra at 612, 617, 425 A.2d at 319, 322. It is a
       principle to be applied with “realism and rationality”, not “with
       the hypertechnical and archaic approach of a 19th century
       pleading book.” Ashe v. Swenson, supra, 397 U.S. at 444, 90
       S.Ct. at 1194.

       We stated in Hude:

          The approach set forth by the Ashe Court in determining
          the applicability of the principle of collateral estoppel
          where a previous judgment of acquittal was based upon a
          general verdict, is that we must:

              ... examine the record of a prior proceeding, taking into
              account the pleadings, evidence, charge, and other
              relevant matter, and conclude whether a rational jury
              could have grounded its verdict upon an issue other

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         than that which the defendant seeks to foreclose from
         consideration. Id. at 444, 90 S.Ct. at 1194.

        In determining “whether a rational jury could have
        grounded its verdict upon an issue other than that which”
        is sought to be foreclosed we are cautioned that “the
        inquiry ‘must be set in a practical frame and viewed with
        any eye to all the circumstances.’ ” Id. at 444, 90 S.Ct. at
        1194.

     492 Pa. at 612, 425 A.2d at 319-20. In making this
     determination, we are guided by the federal decisions which
     employ a three-step approach in applying Ashe:

        (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.
     492 Pa. at 613, 425 A.2d at 320 (federal court citations
     omitted).

     Finally, in Hude, we interpreted 18 Pa.C.S.A. § 110 in a manner
     consistent with Ashe and the above principles, stating:

     Section 110(2) states in pertinent part:

        § 110. When prosecution barred by former prosecution for
        different offense.

        Although a prosecution is for a violation of a different
        provision of the statutes than a former prosecution or is
        based on different facts, it is barred by such former
        prosecution under the following circumstances:


        (2) The former prosecution was terminated, after the
        indictment was found, by an acquittal ... which acquittal ...
        necessarily required a determination inconsistent with a
        fact which must be established for conviction of the second
        offense.

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      We therefore hold that “necessarily required a determination” is
      no more restrictive than “whether a rational jury could have
      grounded its verdict” without inclusion of the issue defendant
      seeks to exclude from relitigation.

Commonwealth v. Smith, 540 A.2d at 251.

      More recently, in Commonwealth v. States, 938 A.2d 1016 (Pa.

2007), our Supreme Court expanded its explanation of how to apply

collateral estoppel:

      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.” Commonwealth v. Buffington, 574 Pa. 29, 828 A.2d
      1024, 1032 (2003). 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.” Smith, 540 A.2d at 251
      (quoting Hude, 425 A.2d at 319-20 [infra]). 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, 498 Pa. 112, 445 A.2d 92, 96
      (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); Commonwealth
      v. Wallace, 411 Pa.Super. 576, 602 A.2d 345, 349-50 (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,
      264 Pa.Super. 21, 398 A.2d 1036, 1041 (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), aff'd. sub nom.
      Commonwealth v. Hude, 492 Pa. 600, 425 A.2d 313 (1980).
      Conversely, where an acquittal cannot be definitively interpreted


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      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 Buffington, 828 A.2d at 1033 (acquittal
      of rape and IDSI did not establish that Commonwealth failed to
      prove an essential element of sexual assault); Smith, 540 A.2d
      at 253-54 (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, 400 Pa.Super. 12, 582 A.2d 1319, 1323 (1990) (robbery
      acquittal did not preclude retrial on hung charge of aggravated
      assault), appeal denied, 528 Pa. 621, 597 A.2d 1151 (1991).

Commonwealth v. States, 938 A.2d at 1021-22

      With these instructions in mind, we turn to the instant factual scenario.

The first and second prongs of the three prong federal test have been met –

a new trial regarding the shooting of Gordon would be similar to the prior

trial regarding the shooting of Gordon and Jenkins, and the issue of the

identity of the shooter(s) was previously litigated.    It is the third prong,

whether the shooter of Jenkins and Gordon was necessarily the same, that is

in question.   Both the trial court and Adams believe that because the

Commonwealth claimed the same person committed both crimes, the jury

verdict exonerating Adams of shooting Jenkins necessarily exonerates him of

having shot Gordon.    On the other hand, the Commonwealth argues that

although its theory was that the same person committed both crimes, it is

possible that different people were responsible.

      Our review of the certified record leads us to agree with the

Commonwealth. As instructed by both the United States and Pennsylvania




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Supreme Courts, we review the matter “in a practical frame and viewed with

an eye to all the circumstances of the proceedings.” Smith, at 251.

      Both   the   trial   court   and   Adams   take   the   position   that   the

Commonwealth is collaterally estopped from relitigating the identity of the

shooter based on the belief that whoever shot Jenkins must be the same

person who shot Gordon.        Initially, we note that the Commonwealth and

Adams sought to convince the jury there had been a lone gunman.

Additionally, the trial court based its ruling on the presumption that there

was a single perpetrator. If, in fact, the evidence left little room to doubt

the fact of a lone gunman, then the application of collateral estoppel to the

instant matter would be the reasonable and proper result. Logically, if only

one person fired a gun at the fight scene, and a jury determined Adams was

not that person in one instance, he could not be that person in the other

instance. The central issue of the identity of the lone shooter having been

resolved, the Commonwealth would not be allowed a second bite at that

apple. However, although the parties and trial court all theorized there was

a single shooter, for collateral estoppel to apply we must determine if the

evidence presented at trial essentially required there be a single shooter.

Our independent review of the evidence presented at trial leads us to

conclude the jury could have rationally determined there was more than one

assailant at the Travelers Motorcycle Club on the night in question.

      First, we note that the jury was allowed to consider each shooting

separately. The jury was never charged that it had to reach the same

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determination regarding the assaults Jenkins and Gordon and was presented

with separate verdict sheets; one regarding Jenkins, the other Gordon.2 This

is important because we cannot initially conclude the jury was of a mindset

that the evidence and reasoning regarding Jenkins’ assault must also apply

to the assault of Gordon. The evidence of the case did not show one person

shooting Gordon and then immediately turning and shooting Jenkins.

Rather, the evidence presented at trial showed two shootings separated by

both time and distance.        This separation of shootings, admittedly brief, in

both time and space, rationally allows for the possibility of more than one

shooter.

       Next, the possibility that the jury could rationally separate the

shootings is supported by Adams’ assertion that the circumstances attendant

to the shootings were ripe for misidentification.         In closing argument,

Adams’ trial counsel specifically stated:

       When you look at the video, and the people leaving the actual
       driveway, Mr. Shields [the prosecutor] wants you to believe that
       Mr. Adams is the guy being dragged out. But these two women
       [witnesses for Adams], they’re unequivocal.           They put
       themselves in the middle of this.      You know, bikers, and
       remember what Mr. Jenkins said, it’s not just the Wheels of Soul
       there, there’s also the Jay Hawkers, and he said many more.
       Many more clubs. When you saw that melee out front you didn’t
       see one or two or three people, you saw a cluster of people, you
____________________________________________


2
  The verdict sheet as to the assault of Jenkins is not in the certified or
reproduced record. On the verdict sheet in which Gordon is identified as the
victim of the aggravated assault charge and lists seven charges, the jury
wrote “Unable to reach a verdict” next to each charge.



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      saw a cluster. You saw people wearing jackets you can’t even
      tell the insignia on the jackets. You can’t even tell what colors
      they are, what club they’re from. This is not an open and shut
      case. It’s not hey, there was an incident at the bar, obviously
      that one incident, as a man is leaving with three females, did
      that trigger someone to come back and start shooting? In fact,
      Trina Gillard tells you that the original guy that had words with
      John Adams, she didn’t even see out there. There’s about 15
      people in that video, members of the jury, and we see multiple
      people swinging at each other. It’s your eyes that matter.

N.T. Trial 9/18/2014, at 150-151.

      Clearly, Adams wanted the jury to believe Jenkins, the only victim to

testify, was mistaken in his initial identification of Adams as the person who

shot him. As noted above, both the Commonwealth and Adams wanted to

convince the jury the same person committed the shootings; they only

differed in the identity of that person. However, just because both parties

theorized only one person acted criminally does not mean that the evidence

presented necessitated that determination.

      As argued in closing on behalf of Adams, there was a melee at the

time of the shooting. Although Adams’ argument of a confused scene and

mistaken identity assumed a single shooter, there is no logical reason why

that confusion could not extend to the number of shooters. At trial, Jenkins

testified he did not see who shot him. Logically, that also means he could

not say the person who shot him was the same person who shot Gordon.

Additionally, the portion of the closing argument quoted above suggests any

number of people could have been the shooter. Based upon the scenario




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argued by Adams, we see no reason why a jury could not rationally believe

different people were responsible for shooting Jenkins and Gordon.

      Finally, the evidence presented at trial also allows for the possibility of

two shooters.    We note that Jenkins’ testimony provided the jurors with

ample reason to doubt his initial claim Adams shot him.        As we discussed

above, at trial Jenkins testified that he did not see who shot him, but that

that he chased after the person he believed had shot Gordon. This failure

to positively identify the person who shot him as the same person who shot

Gordon, togther with the lack of video evidence of the Jenkins shooting,

leaves a gap in the evidence and rationally allows the jury to separate the

two shootings.

      Further, Jenkins’ testimony at trial regarding the shooting was

remarkably vague. For example:

      Q [By the Commonwealth]: Among the people being bounced
      out of the Club, are any in Court here today?

      A: No.

      Q: No, you are not sure?

      A: I am not sure.

N.T. Trial, 9/16/2014, at 31.

      A: I was looking across the street, now I am paranoid and I seen
      someone walking across the alleyway, across the street. I didn’t
      get a good look at him. It is dark and I seen someone grabbing
      something. The next thing I know, I am blanking out – I am
      seeing something being pulled out.

      Q: Could you tell if it was a gun?

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      A: Not at first. Then I realized it was a gun.

Id. at 33

      Q: And the person that came back and started firing, is this one
      of the people involved in the fight?

      A: I don’t know, sir. I am saying at the time I am starting to
      blank out and having flashbacks.

      Q: At that time or now?

      A: Right now I am having flashbacks.

Id. at 34.

      Q: [Reading to Jenkins his prior statement to the police] How
      sure are you the male was shooting in the parking lot of 2063
      Ridge is the same person kicked out of the Club earlier? Answer:
      I am positive.

      A: Yes.

      Q: Was that accurate at the time?

      A: To be honest I don’t know how to answer that. The only
      thing I seen was clothes and the gun. I was not looking at the
      guy fighting. Whoever had a gun was shooting at me.

      ***
      Q: Question: Can you describe the person that shot you?
      Answer: I really didn’t see who was shooting. When I got hit, I
      heard the shots coming from the area where the guy I saw was
      running coming from outside of the gate. I never made it out of
      the gate when I was shot. Do you remember that?

      A: Yes.

Id. at 45-46.

      Q [Again questioning Jenkins regarding his prior statement]: Can
      you identify the male that was shooting inside of the parking lot



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      of 2063 Ridge Avenue? I think I can if I saw him again. Do you
      remember that?

      A: Yes.

      Q: Was that accurate?

      A: In my best knowledge. I don’t know.

Id. at 49.

      On     cross-examination,   Jenkins     continued   his   vague   testimony

regarding the identity of the shooter.

      Q: Mr. John Adams, is he the gentleman who shot you that
      night?

      A: I don’t know for sure. I am still trying to find out myself.

      Q: Do you remember seeing him that night?

      A: He looks familiar.

      Q: He looks familiar. He looks like the gentleman that was being
      escorted out?

      A: I really didn’t get a good picture that night of the face.
      Somewhat the clothing.

      Q: And the body type?

      A: That is why I am confused if this is the man that did the
      shooting.

Id. at 67.

Finally,

      Q [Regarding Jenkins’ prior testimony at the preliminary
      hearing]: And at that time you were under oath, you told both
      the DA, defendant’s counsel and the judge that Mr. Adams was
      not the person that shot you; is that correct?



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       A: I am saying the same thing I said before. I don’t remember if
       it is him or not. If that is the same thing. I don’t know if that is
       him or not.

Id. at 80.3

       Given the fact that there was no direct video evidence as to who shot

Jenkins, coupled with his reluctant trial testimony, it is not surprising the

jury acquitted Adams of shooting Jenkins.           When Jenkins’ testimony is

reviewed in light of Adams’ own argument that any number of other people

at the scene might have been armed, it raises the distinct possibility of more

than one shooter.

       Finally, we need to look at the nature of the evidence against Adams

and the shooting of Gordon.             During deliberations the jury repeatedly

requested it be allowed to view either the video or the still pictures taken

from the video. We quote the jury’s final message to the court:


       Without reviewing the surveillance video and/or still images, the
       jury will be unable to come to a unanimous decision on the
       charges relating to the shooting of Gregory Gordon. Further
       deliberations without reviewing those materials will not be
       productive.

Jury Question #8, 9/19/2014.


____________________________________________


3
  We are aware that Jenkins identified Adams as his shooter in his prior
statement to the police. This statement supports the reasoning that there
was a single shooter.    However, we must examine the contrary trial
testimony to determine whether the jury could have reasonably concluded
there was more than one shooter.




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      We believe this is clear evidence the jury was considering the

shootings separately and evaluating the nature and quality of the evidence

as to each alleged victim.    Given the uncertain identification testimony of

Jenkins and the inability of the jury to review the photographic evidence

during deliberations, we believe it was reasonable for the jury to acquit

Adams of shooting Jenkins yet be unable to reach a verdict with respect to

Gordon.

      In light of the above, we do not believe Adams’ acquittal of shooting

Jenkins necessarily determined Adams did not shoot Gordon. Accordingly,

the trial court erred in granting Adams’ motion to bar retrial on the basis of

collateral estoppel.

      Order vacated. This matter is remanded to the trial court for action

consistent with this decision. Jurisdiction relinquished.

      Judge Musmanno joins in the memorandum.

      President Judge Emeritus Ford Elliott concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/7/2016




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