J. A15038/18
                               2018 PA Super 351



COMMONWEALTH OF PENNSYLVANIA,              :    IN THE SUPERIOR COURT OF
                                           :          PENNSYLVANIA
                          Appellant        :
                                           :
                     v.                    :         No. 1785 MDA 2017
                                           :
WILLIAM R. LANDIS, JR.                     :


                Appeal from the Order Entered October 24, 2017,
                 in the Court of Common Pleas of Berks County
                Criminal Division at No. CP-06-CR-0005405-2009


BEFORE: PANELLA, J., MURRAY, J., AND FORD ELLIOTT, P.J.E.


OPINION BY FORD ELLIOTT, P.J.E.:                  FILED DECEMBER 24, 2018

        The Commonwealth appeals from the October 24, 2017 order denying

its petition to reinstate Counts 2 through 4 (third-degree murder and

aggravated assault)1 of the underlying criminal information, on the basis it

was barred on retrial by double jeopardy or laches. After careful review, we

are constrained to affirm.

        A prior panel of this court summarized the relevant facts of this case as

follows:

              On October 28, 2009, at approximately 9:20 p.m.,
              Berks County Radio dispatched Spring Township
              Police officers to the residence of [William R.
              Landis, Jr. (hereinafter, “Landis”)] to investigate a
              possible shooting. A man had called to report that a
              woman had been shot. It was later discovered that
              the caller was [Landis]. [Landis’] wife, Sharon Landis,

1   18 Pa.C.S.A. §§ 2502(c), 2702(a)(1), and 2702(a)(4), respectively.
J. A15038/18


              was found dead from a gunshot wound to the head on
              the second floor of the residence. The victim also had
              other nonfatal gunshot wounds on her body. While
              performing a clearing operation of the residence,
              officers discovered [Landis] barricaded in the
              basement. [Landis] had a knife and two guns in his
              possession and threatened to shoot anyone who came
              down into the basement. While in the basement,
              [Landis] made several telephone calls to family and
              friends and mentioned his dead wife.          [Landis]
              became increasingly intoxicated as the evening
              progressed. The Berks County Emergency Response
              Team was called to the scene, and [Landis] was
              eventually taken into custody after several hours had
              elapsed.

Commonwealth v. Landis, 102 A.3d 528 (Pa.Super. 2014) (unpublished

memorandum at *1, citing trial court opinion, 8/2/13 at 1-2).

        The trial court summarized the procedural history of this case as follows:

              The Commonwealth charged [Landis] with one count
              of First Degree Murder (Count 1), one count of Third
              Degree Murder (Count 2), two counts of Aggravated
              Assault (Counts 3 and 4), Assault on a Law
              Enforcement Officer (Count 5), seven counts of
              Aggravated Assault (Counts 6 to 10, 14, 17), four
              counts of Simple Assault (Counts 11, 12, 15, 18),
              eleven counts of Reckless Endangerment (Counts 13,
              16, 20 to 28), one count of Terroristic Threats
              (Count 19), and two counts of Possessing an
              Instrument of Crime (Counts 29-30).[2] [Landis]
              moved to sever Counts 5 through 30, which involved
              the standoff between the police and [Landis] during
              the period the police officers were negotiating
              [Landis’] surrender when [Landis] was in the
              basement. This court granted [Landis’] motion to
              sever the charges.[3]

218 Pa.C.S.A. §§ 2502(a), 2502(c), 2702.1, 2702, 2701, 2705, 2706, and
907, respectively.

3   Landis proceeded to a jury trial on April 1, 2013.


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             At the trial that ended on April 5, 2013, the jury found
             [Landis] guilty of only Count 1, Murder in the First
             Degree. The jury found [Landis] not guilty of Count 2,
             Murder in the Third Degree, Count 3, Voluntary
             Manslaughter,       and    Count      4,    Involuntary
             Manslaughter. Prior to the closing arguments, the
             counts for Voluntary Manslaughter and Involuntary
             Manslaughter replaced the two counts of Aggravated
             Assault. This court polled the jury, and . . . recorded
             the verdicts.

             The Commonwealth did not file any post-trial motion
             to correct the Verdict as permitted by the
             Pennsylvania Rules of Criminal Procedure.4          At
             [Landis’] sentencing, the Commonwealth agreed to
             withdraw Counts 5 through 30 with the understanding
             that if [Landis’] first[-]degree murder conviction was
             overturned, the Commonwealth would be able to
             reinstate those charges.

Trial court opinion, 1/26/18 at 1-2.

        On June 10, 2013, Landis filed a timely notice of appeal. On April 10,

2014, a panel of this court affirmed Landis’ judgment of sentence, and no

further review was sought with our supreme court. See Landis, 102 A.3d

528. On December 22, 2014, Landis filed a timely petition pursuant to the

Post Conviction Relief Act (“PCRA”),5 raising multiple claims of trial and

appellate counsels’ ineffectiveness. (See PCRA petition, 12/22/14, at 3-4.)

On June 29 and 30, 2015, the PCRA court held evidentiary hearings on this

matter.    Thereafter, on December 18, 2015, the PCRA court entered an


4  On May 15, 2013, the trial court sentenced Landis to a mandatory term of
life imprisonment.

5   42 Pa.C.S.A. §§ 9541-9546.


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opinion and order granting Landis a new trial based on trial counsel’s failure

to call expert witness, Dr. Larry A. Rotenberg, to testify in support of a

diminished capacity defense.        (PCRA opinion, 12/18/15 at 10-17.)           The

Commonwealth filed a notice of appeal that same day.                On November 30,

2016, a panel of this court affirmed the PCRA court’s order and our supreme

court denied the Commonwealth’s petition for allowance of appeal on July 24,

2017.     See Commonwealth v. Landis, 159 A.3d 603 (Pa.Super. 2016)

(unpublished memorandum), appeal denied, 169 A.3d 1059 (Pa. 2017).

        Thereafter, on August 28, 2017, the Commonwealth filed a petition to

reinstate Counts 2 through 4 of the underlying criminal information,

third-degree murder and aggravated assault. As noted, the trial court entered

an order on October 24, 2017 denying the Commonwealth’s petition.                The

Commonwealth filed a timely notice of appeal on November 21, 2017. On

December 1, 2017, the trial court directed the Commonwealth to file a concise

statement     of    errors   complained   of    on   appeal,   in   accordance   with

Pa.R.A.P. 1925(b). The Commonwealth filed a timely Rule 1925(b) statement

on December 6, 2017.           On January 26, 2018, the trial court filed its

Rule 1925(a) opinion.

        The Commonwealth raises the following issues for our review:

             [1.]    Did the trial court err by ruling that
                     reinstatement of the charge of third-degree
                     murder is barred on retrial by double jeopardy
                     and/or laches?




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               [2.]   Alternatively, did the trial court err by ruling
                      that [Landis] is permitted to present a
                      diminished capacity defense where the
                      Commonwealth is barred from retrying [Landis]
                      on the charge of third-degree murder?

Appellant’s brief at 5 (full capitalization omitted). The Commonwealth has

abandoned its claim that the trial court erred in determining that the

reinstatement of the aggravated assault charges is barred by laches. (See

id. at n.1).

               An appeal grounded in double jeopardy raises a
               question of constitutional law. This court’s scope of
               review in making a determination on a question of law
               is, as always, plenary. As with all questions of law,
               the appellate standard of review is de novo. To the
               extent that the factual findings of the trial court
               impact its double jeopardy ruling, we apply a more
               deferential standard of review to those findings:

                      Where issues of credibility and weight of
                      the evidence are concerned, it is not the
                      function of the appellate court to
                      substitute its judgment based on a cold
                      record for that of the trial court. The
                      weight to be accorded conflicting evidence
                      is exclusively for the fact finder, whose
                      findings will not be disturbed on appeal if
                      they are supported by the record.

Commonwealth v. Kearns, 70 A.3d 881, 884 (Pa.Super. 2013) (citations

omitted), appeal denied, 84 A.3d 1063 (Pa. 2014).

      The Commonwealth first argues that the trial court erred in concluding

that double jeopardy bars the reinstatement of the third-degree murder

charge on retrial because the underlying verdict was “incorrect” as a matter

of law. (Commonwealth’s brief at 16.) The Commonwealth avers that,


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             [a]lthough the jury in the first trial returned a verdict
             of not guilty to the third-degree murder charge, the
             jury found [Landis] guilty of first-degree murder, an
             offense which contains all the elements of
             third-degree murder with the added element of
             specific intent to kill[.]

Id. at 21.

      The Commonwealth maintains that this is not a case where it is simply

seeking “another opportunity to supply evidence that it failed to put forth

previously[.]” (Id.) Rather, the Commonwealth contends that it has already

proven “all the elements of third-degree murder as evidenced by the verdict.”

(Id. at 14, 18.)    Thus, “double jeopardy should not bar reinstatement of

third-degree murder.” (Id.) In support of this conclusion, the Commonwealth

relies on Commonwealth v. Larkins, 829 A.2d 1203 (Pa.Super. 2003),

appeal denied, 870 A.2d 321 (Pa. 2005).

      Upon review, we find that Larkins is distinguishable from the instant

matter and that the Commonwealth’s reliance on it is misplaced.          Larkins

involved a defendant who was convicted of, inter alia, the first-degree

murder of his wife’s alleged paramour and acquitted of the lesser-included

offenses of third-degree murder and voluntary manslaughter of said

paramour.      Larkins, 829 A.2d at 1203.           Larkins’ direct appeal was

unsuccessful, but he was granted a new trial after he sought post-conviction

relief. Id. at 1204. At his retrial for first-degree murder, Larkins requested

an additional jury instruction on third-degree murder and voluntary

manslaughter. Id. The trial court denied Larkins’ request on grounds that it


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would put him twice in jeopardy for charges of which he had been acquitted.

Id. Larkins appealed a second time, arguing that the jury should have been

instructed on the lesser charges at his second trial. Id. The Larkins court

recognized that the double jeopardy clauses did not bar the jury from being

instructed on the lesser-included offenses because waiver of double jeopardy

protections is theoretically possible, but held that Larkins had failed to

preserve the argument that he could waive double jeopardy.             Id. at

1205-1206.

      We recognize that the holding in Larkins implies that a defendant may

waive his double jeopardy rights in situations where the protections actually

harm his or her interests. See id. at 1203 (opining that defendant could waive

double jeopardy in order to have jury instructed on lesser offense as to which

he had previously been acquitted). However, unlike Larkins, this case does

not present a scenario in which Landis would benefit from waiving his double

jeopardy rights, and Landis did not voluntarily attempt to do so merely by

filing a petition for relief pursuant to the PCRA.

      On the contrary, we find that the reinstatement of the third-degree

murder charge in this case is clearly barred by double jeopardy. “The Double

Jeopardy Clauses of the Fifth Amendment to the United States Constitution

and Article 1, § 10 of the Pennsylvania Constitution protect a defendant from

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

Adams, 177 A.3d 359, 371 (Pa.Super. 2017) (citation omitted). Our supreme



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court has summarized the rationale behind the protections afforded by the

Double Jeopardy Clause as follows:

           The principle that an acquittal is an absolute bar to
           any subsequent prosecution for the same offense . . .
           is fundamental and is part of the fabric which forms
           the basis of the double jeopardy prohibition.
           American double jeopardy jurisprudence affords the
           utmost finality to acquittals. In Commonwealth v.
           Tillman, [461 A.2d 795 (Pa. 1983)], this Court
           explained the finality that follows an acquittal as
           follows:

                 [T]he Supreme Court of the United States
                 has     recently   observed    [that]   the
                 fact[-]finder in a criminal case has
                 traditionally been permitted to enter an
                 unassailable but unreasonable verdict of
                 not guilty.      [W]e necessarily accord
                 absolute finality to a jury’s verdict of
                 acquittal—no matter how erroneous its
                 decision. Thus, where a defendant has
                 been found not guilty at trial, he may not
                 be retried on the same offense, even if the
                 legal rulings underlying the acquittal were
                 erroneous. [T]he law attaches particular
                 significance to an acquittal. To permit a
                 second trial after an acquittal, however
                 mistaken the acquittal may have been,
                 would present an unacceptably high risk
                 that the Government, with its vastly
                 superior resources, might wear down the
                 defendant so that even though innocent,
                 he may be found guilty. So, too, no
                 prosecution appeal lies from a not guilty
                 verdict, even where that verdict is based
                 upon       an     egregiously    erroneous
                 foundation.

           [Id. at 767-797.]




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Commonwealth v. Ball, 146 A.3d 755, 763-764 (Pa. 2016) (additional

citations and quotation marks omitted; some brackets in original).

      Here, Landis was tried before a jury on first-degree murder,

third-degree murder, voluntary manslaughter, and involuntary manslaughter.

The jury found Landis guilty of first-degree murder but acquitted him of the

remaining charges, including third-degree murder.            (Notes of testimony,

4/1-5/13 at 1176.) The jury’s verdict was accepted and properly recorded

after the jury was polled at the request of Landis’ counsel. (Id. at 1176-1179,

1181.)    See also Pa.R.Crim.P. 648(D), (G).          The Commonwealth never

objected to the verdict or its recordation, and it failed to file a post-trial motion

challenging the verdict. Once a verdict has been recorded, it is generally not

subject to alteration or correction, and the protections afforded by double

jeopardy attach. See Commonwealth v. McDaniels, 886 A.2d 682, 686-

687 (Pa.Super. 2005) (stating, “[i]t cannot be disputed that a jury’s recorded

verdict is inviolate. The established rule is that the verdict as recorded is the

verdict of the jury and the latter shall not be permitted to impeach or to alter

or amend it after their separation or discharge[]” (citation and internal

quotation marks omitted)), appeal denied, 903 A.2d 537 (Pa. 2006), cert.

denied, 549 U.S. 960 (2006); see also Commonwealth v. Petteway, 847

A.2d 713, 717 (Pa.Super. 2004) (holding that a defendant’s constitutional

protection against double jeopardy was violated when trial judge commanded

the jury to return to deliberations after it rendered inconsistent verdicts).



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      We emphasize that “inconsistent verdicts, while often perplexing, are

not considered mistakes and do not constitute a basis for reversal.”

Petteway, 847 A.2d at 718 (citations omitted). Rather, “[t]he rationale for

allowing inconsistent verdicts is that it is the jury’s sole prerogative to decide

on which counts to convict in order to provide a defendant with sufficient

punishment.” Kearns, 907 A.2d at 659 n.10 (citations omitted). “When an

acquittal on one count in an indictment is inconsistent with a conviction on a

second count, the court looks upon the acquittal as no more than the jury’s

assumption of a power which they had no right to exercise, but to which they

were disposed through lenity.” Petteway, 847 A.2d at 718 (citations and

internal quotations omitted). Based on the foregoing, the Commonwealth’s

claim that double jeopardy did not bar reinstatement of the third-degree

murder charge must fail.6

      In an alternative argument, the Commonwealth next contends that

Landis should be barred from presenting a diminished capacity defense on


6 In reaching this decision, we are cognizant of our supreme court’s decision
in Commonwealth v. Terry, 521 A.2d 398 (Pa. 1987), cert. denied, 482
U.S. 920 (1987), overruled on other grounds, Commonwealth v. Frey,
554 A.2d 27 (Pa. 1989), cert. denied, 494 U.S. 1038 (1990). In that case,
our supreme court, in an exercise of its supervisory powers, expressly
disapproved of the practice of acquitting a defendant of lesser degrees of
murder when the defendant is convicted of the higher degree. See Terry,
521 A.2d at 410 (ordering trial judges “to adopt and enforce procedures in all
homicide cases which will prevent the recording of a jury verdict of not guilty
on lesser included degrees of homicide when the jury returns a guilty verdict
on a higher degree[]”). Instantly, neither the trial court nor the district
attorney followed the direction from our supreme court; and as a result, the
Commonwealth has no recourse.


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retrial absent an express waiver of his double jeopardy protections.

(Commonwealth’s brief at 22.)              In support of this contention, the

Commonwealth maintains that,

            [t]he affirmative defense of diminished capacity due
            to voluntary intoxication requires that a criminal
            defendant concede liability for third-degree murder.
            By pursuing a diminished capacity defense, [Landis]
            is asking the jury to find him guilty of third-degree
            murder. However, by asserting that third-degree
            murder is barred by double jeopardy, [Landis]
            endeavors to circumvent the requirements for
            advancing a defense of diminished capacity.

Id. at 14-15.

      Our supreme court has long recognized that the question of “whether a

defendant has established that his faculties and sensibilities were so

overwhelmed with drugs so that he could not form the specific intent to kill is

a question of fact solely within the province of the jury[.]” Commonwealth

v. VanDivner, 962 A.2d 1170, 1177 (Pa. 2009) (citations and internal

quotation marks omitted), cert. denied, 559 U.S. 1038 (2010).            “[T]he

defense of diminished capacity is a matter for a jury to believe or disbelieve

as it sees fit.” Id. (citation omitted).

      Upon careful review, we find that discussion of this particular issue

would be premature at this point and defer to the trial court on retrial as to

whether the parties may present evidence on Landis’ diminished capacity and

the extent to which the jury should be instructed as to its admissibility. A new




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trial was granted on the basis of the ineffectiveness of original trial counsel.

This ruling does not predispose any evidentiary issue on retrial.

      For all the foregoing reasons, we affirm the trial court’s October 24,

2017 order denying the Commonwealth’s petition to reinstate Counts 2

through 4 (third-degree murder and aggravated assault) of the underlying

criminal information.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/24/2018




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