Appeal from order of Court of Common Pleas, Criminal Division, of Allegheny County, April T., 1970, No. 2720, in case of Commonwealth of Pennsylvania v. Charles Dooley.
Robert L. Eberhardt, Assistant District Attorney, with him Robert W. Duggan, District Attorney, for Commonwealth, appellant.
John R. Cook, Assistant Public Defender, with him John J. Dean, Assistant Public Defender, and George H. Ross, Public Defender, for appellee.
Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Spaeth, JJ. Opinion by Hoffman, J. Dissenting Opinion by Cercone, J.
[ 225 Pa. Super. Page 455]
The appellee, Charles Dooley was tried before the Honorable Albert A. Fiok and a jury on an indictment charging the arson felony murder of Mrs. Martha Day. After a three day trial, the jury returned a general verdict of acquittal. Subsequently, the Commonwealth proposed to try him on an indictment charging the arson of the building in which Mrs. Day died. The appellee moved to dismiss this indictment alleging that the trial was barred by his felony murder acquittal. Without disposition of this motion, the court ordered the appellee to trial which resulted in an arson conviction. Subsequently, a motion in arrest of judgment was filed alleging that the arson trial was in violation of his Fifth Amendment protection against being twice placed in jeopardy. A court en banc arrested judgment on the basis of Commonwealth v. DeVaughn, 221 Pa. Superior Ct. 410, 292 A.2d 444 (1972). This appeal by the Commonwealth followed.
In Ashe v. Swenson, 397 U.S. 436 (1970), the United States Supreme Court held that the doctrine of collateral estoppel is embodied in the Fifth Amendment guarantee against double jeopardy. That doctrine "means simply that when an issue of ultimate fact has once been determined by a valid and final judgment,
[ 225 Pa. Super. Page 456]
that issue cannot again be litigated between the same parties in any future lawsuit." 397 U.S. at 443. In applying this doctrine, the Court stated that "the rule of collateral estoppel in criminal cases is not to be applied with the hypertechnical and archaic approach of a 19th century pleading book, but with realism and rationality. Where a previous judgment of acquittal was based upon a general verdict, as is usually the case, this approach requires a court to '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 than that which the defendant seeks to foreclose from consideration.' [Footnote omitted]. The inquiry 'must be set in a practical frame and viewed with an eye to all the circumstances of the proceedings.' [Citation omitted]. Any test more technically restrictive would, of course, simply amount to a rejection of the rule of collateral estoppel in criminal proceedings, at least in every case where the first judgment was based upon a general verdict of acquittal." 397 U.S. at 444. With this test in mind, this court must determine "whether the jury in [appellee's] first trial for felonious homicide could have rationally grounded its verdict of acquittal on any other issue than [appellee's] non-participation in the [arson]." Commonwealth v. DeVaughn, 221 Pa. Superior Ct. 410, 413, 414, 292 A.2d 444, 447 (1972).
The Commonwealth argues that the jury in the felony murder trial was faced with two ultimate issues, viz, whether appellant set fire to the building, and whether the decedent died as a result of that fire. The Commonwealth then argues that the jury could have found that Mrs. Day did not die as a result of the fire, and that, therefore, the issue of appellee's participation in the arson was not finally litigated so as to preclude a trial for the arson. To so argue is to merely state the difficult
[ 225 Pa. Super. Page 457]
question*fn1 which this court must determine from a careful and searching examination of the record of the prior proceeding, keeping in mind that "[t]he 'twice put in jeopardy' language of the Constitution . . . relates to a potential, i.e., the risk that an accused for a second time will be convicted of the 'same offense' for which he was initially tried [and acquitted]." Price v. Georgia, 398 U.S. 323, 326, 90 S. Ct. 1757, 1759 (1970). (Emphasis added.)
Explicit in our decision in DeVaughn is a presumption that the jury in the first trial acted rationally in reaching its verdict of acquittal. Applying this presumption to the instant case, it is inconceivable that a rational jury in the first trial grounded its verdict of ...