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NON-PRECEDENTIAL DECISION               SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,             :    IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                        Appellant         :
                                          :
                   v.                     :         No. 857 EDA 2013
                                          :
ERIC LOWRY                                :


             Appeal from the Order Entered February 15, 2013,
            in the Court of Common Pleas of Philadelphia County
              Criminal Division at No. CP-51-CR-0013931-2011


BEFORE: FORD ELLIOTT, P.J.E., BOWES AND SHOGAN, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:FILED SEPTEMBER 19, 2014

       The Commonwealth appeals from the order of February 15, 2013,

finding appellant not guilty of all charges.     Procedurally, this is a rather

unusual case; however, after careful review, we are compelled to conclude

that a retrial would violate the rule against double jeopardy.             The

Commonwealth cannot appeal a verdict of acquittal.        Therefore, this court



we quash the instant appeal.

       Following a traffic stop on the evening of May 6, 2011, appellee,

Eric                          charged with two counts of violating the Uniform
                        1
                            and one count of possession of a small amount of


1
 18 Pa.C.S.A. §§ 6106 (firearms not to be carried without a license) and
6108 (carrying firearms on public streets or public property in Philadelphia).
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marijuana.2

evidence was granted as to the marijuana and denied as to the firearm.

Lowry waived his right to a jury trial, and the matter proceeded to a bench

trial on the remaining VUFA charges before the Honorable Ann M. Butchart.

         A non-jury trial was held on January 18, 2013.         Police Officer

Justin                              y 6, 2011, at approximately 7:28 p.m., he

observed Lowry make two turns without signaling.         (Notes of testimony,

1/18/13 at 13-

(Id.                                                                       owry

reach into the center console area, grab a black handgun, and place it into

the    glove   compartment.      (Id.

Officer MacConnell, ordered Lowry out of the vehicle at gunpoint.        (Id. at

                                        ack Glock semi-automatic handgun from

the glove compartment.        (Id. at 16.)    The firearm was loaded with one

cartridge in the chamber and eight in the magazine. (Id.) Lowry did not

produce a license to carry firearms, and a computer check with PCIC/NCIC

did not indicate that Lowry possessed a valid license. (Id. at 16-17.)

         On cross-



December 19, 2013.       (Id.                              knowledged that it

looked like a valid permit, but reiterated that PCIC/NCIC indicated that


2
    35 P.S. § 780-113(a)(31).


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Lowry did not have a license to carry firearms.             (Id. at 18-19.)

Officer                                                                 Id.)

       The Commonwealth next called Officer Vargas, who testified that on

July 26, 2009, he confiscated a license to carry firearms from Lowry. (Id. at

21.)   Officer Vargas placed the license on a property receipt which Lowry

signed.   (Id. at 22.)   On cross-examination, Officer Vargas acknowledged

that placing the license on a property receipt was improper police procedure.

(Id. at 25.) Rather, the license is supposed to be forwarded via police mail

to the Gun Permit Tracking Unit. (Id. at 27.) Officer Vargas admitted that

he did not do that in this case. (Id.) Officer Vargas also agreed that Lowry

appeared to have a license to carry firearms in his name. (Id. at 28-29.)



items into evidence, including a certificate of non-licensure. (Id. at 32-34.)

The Commonwealth then rested its case. (Id. at 34.) At that point, Lowry

made a motion for judgment of acquittal, arguing, inter alia, that the

Commonwealth failed to prove he did not have a valid license to carry

firearms on May 6, 2011.3

judgment of acquittal. (Id. at 37.)



permission to bring in an additional witness from the Gun Permit Unit. (Id.



3
 Lowry also argued that the Commonwealth failed to prove he was properly
notified that his license was revoked. (Id. at 36-37.)


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at 41.) According to the Commonwealth, this witness could testify regarding

the issue of Lowry allegedly having multiple licenses to carry firearms. (Id.

at 46-48, 50.) Judge Butchart indicated she would take the matter under

advisement. (Id. at 53.)

        On January



                                                                        i.e., a

counterfeit gun permit.    (Motion to dismiss, 1/23/13, Docket #5 at 2 ¶9.)

(See



also continued to argue that he was not provided proper notice of revocation

as required by 18 Pa.C.S.A. § 6109(i).

        On January 25, 2013, a hearing was held before Judge Butchart. The

trial judge denied the Commonwealth permission to reopen the case to

present a witness from the Gun Permit Unit. (Notes of testimony, 1/25/13

at 6.

believe it would prejudice the defendant and would outweigh any other

                                      Id.) Judge Butchart also indicated she



Commonwealth has not at the time that it closed its case proven that the

                                                  Id.)   The trial court also

entered an order to that effect, dismissing all charges. (Docket #6.)



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     Another hearing was held on February 15, 2013, at which the trial

court indicated that it wished to clarify the record.     (Notes of testimony,



6108, I find the defendant in this ca                                   Id.)   The

Commonwealth then protested that the trial court had already denied



motion to dismiss4:

           [Assistant District Attorney Whitney Golden, Esq.]:
           Your Honor --

           [THE COURT]: Hold on.

           [MS. GOLDEN]: If I may. Your Honor did grant a
           motion to dismiss these charges.

           [THE COURT]: Correct.

           [MS. GOLDEN]:        If I may ask you, are you
           overturning that ruling?

           [THE COURT]: We are clarifying. When I reread the
           motion, and I reread what had transpired on that
           date. I thought for purposes of clarity and simplicity
           it would be better to, in fact, just re[-]characterize it.
           Does that answer your question?

           [MS. GOLDEN]: It does. But, Your Honor, defense

           know how a ruling of guilt or not guilty could be
           made.



4
 Ordinarily, granting a defendan
government from appealing or seeking retrial. Commonwealth v. Roche,
675 A.2d 341, 343 (Pa.Super. 1996), citing Commonwealth v. Adams,
502 A.2d 1345, 1350 (Pa.Super. 1986).


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              [THE  COURT]:         Basically,    because         the
              Commonwealth did not prove its case.

              [MS. GOLDEN]:      So would it be a motion for
              judgment of acquittal?

              [THE COURT]:    We already had a motion for
              judgement [sic] of acquittal and I denied that
              motion.

              [MS. GOLDEN]: Just procedurally, Your Honor, I just



              [THE COURT]:
              could, if we wish, to dial it back a little bit. Defense
              could rest and then we could proceed. But I think
              that will be even more complicated given the status
              of this case. If there are any questions that either
              coun

              this.

              [MS. GOLDEN]: Yes, Your Honor.

              [Defense counsel]: Thank you, Judge.

              [THE COURT]: Thank you.

Id. at 4-6.

      The Commonwealth filed a timely notice of appeal, together with a

concise statement of errors complained of on appeal pursuant to Pa.R.A.P.,

Rule 1925(b), 42 Pa.C.S.A., on March 14, 2013. On October 25, 2013, the

trial court filed an opinion, clarifying, once again, that it found the

Commonwealth presented insufficient proof to convict Lowry of the VUFA

charges. (Trial court opinion, 10/25/13 at 7.) The trial court stated that in




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however, it ultimately resolved the matte

(Id. at 7-8.)




acquittal and granted his motion for dismissal, did it err twenty-one days




            States     and    Pennsylvania      constitutions   are
            coextensive and prohibit repeated prosecutions for
                                  Commonwealth v. Lively, 530
            Pa. 464, 467, 610 A.2d 7, 8 (1992) (citations
            omitted). If a former prosecution results in either
            acquittal or conviction, statutory law explicitly
            precludes the Commonwealth from trying a
            defendant a second time.           Commonwealth v.
            Bracalielly, 540 Pa. 460, 470, 658 A.2d 755, 760
            (1995) (citing 18 Pa.C.S.A. § 110). Thus, if the
            Commonwealth loses in a case, double jeopardy
            considerations preclude appeal.         In contrast, a
            defendant convicted under an erroneous pre-trial
            ruling retains the right to cure the defect on appeal.

Commonwealth v. Stevenson, 829 A.2d 701, 704 (Pa.Super. 2003).

            Under the Double Jeopardy Clauses of both the
            United States and Pennsylvania Constitutions, as well
            as under the Pennsylvania Crimes Code, a second
            prosecution for the same offense after acquittal is
            prohibited. See U.S. CONST. amend. V; PA. CONST.
            art. I, § 10; 18 Pa.C.S. § 109(1).[Footnote 5] This
            rule barring retrial is confined to cases where the

            second trial would merely afford the prosecution
            another opportunity to supply evidence that it failed


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          to put forth in the first proceeding.          See
          Commonwealth v. Vogel, 501 Pa. 314, 461 A.2d
          604, 609-610 (1984) (citing Burks v. U.S., 437 U.S.

          prohibition prevents the State from honing its trial
          strategies and perfecting its evidence through
          successive attempts at conviction.       Repeated
          prosecutorial sallies would unfairly burden the
          defendant and create a risk of conviction through
                                                 Id. (citing
          Green v. United States, 355 U.S. 184, 187-188, 78
          S.Ct. 221, 2 L.Ed.2d 199 (1957)).

               [Footnote 5] Section 109 provides:

               When a prosecution is for a violation of
               the same provision of the statutes and is
               based upon the same facts as a former
               prosecution, it is barred by such former
               prosecution     under     the   following
               circumstances:

               (1)   The      former     prosecution
                     resulted in an acquittal.
                     There is an acquittal if the
                     prosecution resulted in a
                     finding of not guilty by the
                     trier   of fact or        in a
                     determination that there was
                     insufficient     evidence    to
                     warrant a conviction.         A
                     finding of guilty of a lesser
                     included     offense    is   an
                     acquittal of the greater
                     inclusive offense, although
                     the         conviction        is
                     subsequently set aside.

               18 Pa.C.S. § 109(1).

Commonwealth v. Gibbons, 784 A.2d 776, 777-778 (Pa. 2001).

          Double Jeopardy also necessarily bars an appeal by a
          state from a verdict of acquittal. See Smalis v.


                                  -8-
J. S38007/14

              Pennsylvania, 476 U.S. 140, 106 S.Ct. 1745, 90
              L.Ed.2d 116 (1986); Commonwealth v. Maurizio,
              496 Pa. 584, 437 A.2d 1195 (1981). A judgment of
              acquittal, whether based on a verdict of not guilty or
              on a ruling by the court that the evidence was
              insufficient to convict, may not be appealed. See
              United States v. Scott, 437 U.S. 82, 91, 98 S.Ct.

              characterization of its action does not necessarily
              control    the   classification    of   the   action.
              Commonwealth v. McDonough, 533 Pa. 283, 621
              A.2d 569, 573 (1993).         Rather, a defendant is

              its label, actually represents a resolution [in the
                                     rect or not, of some or all of
                                                            Id. at
              97, 621 A.2d 569 (quoting United States v. Martin
              Linen Supply, 430 U.S. 564, 571, 97 S.Ct. 1349, 51
              L.Ed.2d 642 (1977)).

Id. at 778.

                                                    n the history of

              verdict of acquittal . . . could not be reviewed, on
              error or otherwise, without putting [a defendant]
              twice in jeopardy, and thereby violating the
                               United States v. Martin Linen
              Supply Co., 430 U.S. 564, 572, 97 S.Ct. 1349,
              1354, 51 L.Ed.2d 642 (1977), quoting United
              States v. Ball, 163 U.S. 662, 671, 16 S.Ct. 1192,
              1195, 41 L.Ed. 300 (1896). As the Supreme Court

              factfinder in a criminal case has traditionally been
              permitted to enter an unassailable but unreasonable
                                        Jackson v. Virginia, 443
              U.S. 307, 317 n. 10, 99 S.Ct. 2781, 2788 n. 10, 61

              absolute final                                 -
              no matter how erroneous its decision . . .
              Bullington v. Missouri, 451 U.S. 430, 442, 101
              S.Ct. 1852, 1860, 68 L.Ed.2d 270 (1981), quoting
              Burks v. United States, 437 U.S. 1, 16, 98 S.Ct.
              2141, 2150, 57 L.Ed.2d 1 (1978).        Accord,


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              Commonwealth v. Mitchell, 497 Pa. 14, 17, 438
              A.2d 596, 597 (1981). Thus, where a defendant has
              been found not guilty at trial, he may not be retried

              underlying the acquittal were erroneous. Sanabria
              v. United States, 437 U.S. 54, 64, 98 S.Ct. 2170,
              2179, 57 L.Ed.2d 43 (1978).

Commonwealth v. Tillman, 461 A.2d 795, 796-797 (Pa. 1983).

              See also Tibbs v. Florida, 457 U.S. 31, 41, 102
              S.Ct. 2211, 2218, 72 L.Ed.2d 652 (1982) (verdict of
              not gu



              Borough of West Chester v. Lal, 493 Pa. 387,
              392, 426 A.2d 603, 605 (1981), quoting Sanabria
              v. United States, supra, 43 U.S. at 64, 98 S.Ct. at
              2178; see Fong Foo v. United States, 369 U.S.
              141, 82 S.Ct. 671, 7 L.Ed.2d 629 (1962).

Id. at 797.



to dismiss on purely legal grounds, i.e., that the Commonwealth alleged

Lowry presented a counterfeit gun permit, and this allegation so prejudiced



                                 ismiss did not provide the basis therefore;

however, it should be noted that Lowry also argued in his motion to dismiss

that the Commonwealth failed to prove he had notice of revocation.       The

Commonwealth argues that notice of revocation is not an element of the

offenses charged. Regardless, the trial court made it explicitly clear at the

February 15, 2013 hearing that the Commonwealth failed to prove its case,



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court found that the Commonwealth failed to prove some or all of the factual

elements of the offenses charged. While the Commonwealth may disagree



                                                        ppeal and terminates

any subsequent prosecution under the principles of double jeopardy.          Cf.

Commonwealth v. Micklos, 672 A.2d 796 (Pa.Super. 1996), appeal

denied, 686 A.2d 1309 (Pa. 1996) (where the trial court improvidently

dismissed the charges after finding that the police lacked probable cause to



be excluded, the dismissal was predicated on wholly legal rather than factual

grounds   and   was   not   the   functional   equivalent   of   an   acquittal);

Commonwealth v. Adams

order dismissing the charges against the defendant was not the functional

equivalent of an acquittal, where the trial court dismissed the charges on the

ground that the Commonwea



innocence).

      The Commonwealth also argues that once Judge Butchart had denied

                                                                            onal



                                                             -



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original, January 25 order and instead enter a verdict of not guilty.

According to the Commonwealth, the February 15 order finding Lowry not

guilty is a legal nullity.




the parties may modify or rescind any order within 30 days after its entry,

notwithstanding the prior termination of any term of court, if no appeal from



Judge Butchart lacked the authority to clarify her January 25 order. We also

obse

motion,     Judge   Butchart    specifically   found,   on   the   record,   that   the

Commonwealth had failed to prove the charges.                 (Notes of testimony,

1/25/13 at 6.)

       The cases relied on by the Commonwealth for the proposition that



Cf. Commonwealth v. Robinson, 33 A.3d 89 (Pa.Super. 2011), appeal

denied, 42 A.3d 292 (Pa. 2012) (trial court, sitting as fact-finder, originally

found the defendant guilty of theft by unlawful taking and sentenced him to



hearing, sua sponte

verdict of not guilty, stating that it had failed to give due consideration to

character    evidence);      Commonwealth v. McDaniels,              886     A.2d 682



                                        - 12 -
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(Pa.Super. 2005), appeal denied, 903 A.2d 537 (Pa. 2006), cert. denied,



third-degree murder was a legal nullity, where it was entered after the jury

announced it was unable to reach a verdict, they were discharged and a

mistrial declared); Commonwealth v. Stark, 584 A.2d 289 (Pa. 1990)

                                                 nullity where it had initially

found the defendant guilty, but then changed its verdict during sentencing to

one of not guilty after arguing with the assistant district attorney about the



      Instantly, Judge Butchart never

not guilty or vice versa. Rather, she granted his motion to dismiss, stating

in open court that the Commonwealth failed to prove its case, and then later

clarified her order to reflect a verdict of not guilty.         In hindsight,

Judge Butchart acknowledged that the more proper course of action would




Commonwealth to be inapposite.

      The Commonwealth also complains that the evidence was sufficient to

support a conviction.     The Commonwealth states that it presented a

certificate of non-licensure establishing that Lowry did not have a valid

                                                                              -



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22 n.5.) The Commonwealth also argues that there was sufficient evidence

to establish Lowry knew his license had been revoked, including his attempt

to con

                                       Id.)



fact-                                                                    lated

from appellate review, whether or not it was erroneous. United States v.

Scott

an acquittal . .

Green v. United States, 355 U.S. 184, 188 (1957). The bottom line is that

even if proper procedure was not followed, the trial court had jurisdiction to

render the verdict that it did and its decision was unquestionably made on

the facts, not merely legal grounds. The trial c

this case absolutely shields the defendant from retrial. For these reasons,

we are compelled to quash the appeal.

        Appeal quashed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/19/2014




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