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COMMONWEALTH PENNSYLVANIA v. DENNIS EUGENE KLINGER (02/23/79)

decided: February 23, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
DENNIS EUGENE KLINGER, APPELLANT



COUNSEL

William C. Costopoulos, Lemoyne, for appellant.

Donald L. Reihart, Special Assistant Attorney General, for the Commonwealth and with him C. Joseph Rehkamp, District Attorney, Perry County, submitted a brief on behalf of the Commonwealth, appellee.

Price, Hester and Hoffman, JJ. Hoffman, J., files a dissenting opinion.

Author: Hester

[ 264 Pa. Super. Page 24]

On June 7, 1976, the lifeless body of Hazel Pulaski was discovered in a remote, mountainous region known as Lambs Gap, in Perry County. She had been missing for ten days and was the object of an intensive search by family, friends, and police. Her son, appellant Dennis Klinger, was formally charged with her murder and, following an eight day jury trial, during which over 30 witnesses testified, including appellant, he was found not guilty. Eight months later, the Perry County District Attorney charged appellant with various counts of perjury, false swearing, and conspiracy*fn1 relative to appellant's trial testimony. At a preliminary hearing on June 20, 1977, appellant was ordered held for court on four counts of perjury and one count each of false swearing and conspiracy. A motion to dismiss, contending the prosecution is barred by double jeopardy and collateral estoppel, was denied. This appeal followed.*fn2

Whether a prosecution is barred by a former verdict of acquittal on a different charge is determined by Section 110 of the Crimes Code, 18 C.P.S.A. §§ 110. That section provides 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 or by a final order or

[ 264 Pa. Super. Page 25]

    judgment for the defendant which has not been set aside, reversed or vacated and which acquittal, final order or judgment necessarily required a determination inconsistent with a fact which must be established for conviction of the second offense.

We have recognized that Sec. 110(2), although a "cumbersome statute", does no more than codify settled principles of collateral estoppel in criminal cases: That once a former prosecution necessarily establishes an ultimate fact in favor of a defendant, then a subsequent prosecution depending upon a contrary finding must be barred. Commonwealth v. Shelhorse, 252 Pa. Super. 475, 381 A.2d 1305, 1308 (1977).*fn3 In Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 409 (1970), the Supreme Court found the collateral estoppel doctrine is embraced by the federal constitutional proscription against double jeopardy and stated the reviewing court's approach as follows:

"Collateral estoppel" is an awkward phrase, but it stands for an extremely important principle in our adversary system of justice. It means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.

The federal decisions have made clear 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

[ 264 Pa. Super. Page 26]

    consideration." The inquiry "must be set in a practical frame and viewed with an eye to all the circumstances of the proceedings." Sealfon v. United States, 332 U.S. 575, 579, 68 S.Ct. 237, 240, 92 L.Ed. 180. 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. [Footnote omitted].

397 U.S. at 443-4, 90 S.Ct. at 1194; Commonwealth v. Grazier v. Studebaker, 481 Pa. 622, 393 A.2d 335; See also Commonwealth v. Campana (I), 452 Pa. 233, 304 A.2d 432, vacated, 414 U.S. 808, 94 S.Ct. 73, 38 L.Ed.2d 44 (1973), reinstated, 455 Pa. 622, 314 A.2d 854 (Campana II), cert. den., 417 U.S. 969, 94 S.Ct. 3172, 41 L.Ed.2d 1139 (1974). Commonwealth v. DeVaughn, 221 Pa. Super. 410, 292 A.2d 444 (1972).*fn4 Accordingly, we now turn to a consideration of appellant's murder trial. We will then construe each perjury charge to determine if the general verdict of acquittal in the murder trial will necessarily foreclose any issues sought to be proven in the perjury trial.

The commonwealth's case against appellant was entirely circumstantial, as there were no eyewitnesses to the killing. Undisputed testimony showed that on Friday, May 28, 1976, at approximately 7:20 A.M., appellant walked into the West Shore Youth Counseling Center in Camp Hill, Pa., and was met by Vincent O'Reilly, a counselor. Appellant informed O'Reilly that he wanted to "turn himself in" to his parole officer because he had been in violation of his parole ...


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