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filed: March 11, 1983.


No. 598 October Term, 1978, Appeal from the Order of December 5, 1977 in the Court of Common Pleas of Philadelphia County, Criminal Division, No. Misc. No. 77-00-3034.


Gaele M. Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.

Neil E. Jokelson, Philadelphia, for appellee.

Cercone, President Judge, and Spaeth, Cavanaugh, Wickersham, Brosky, Beck and Johnson, JJ. Johnson, J., files a concurring opinion.

Author: Cercone

[ 311 Pa. Super. Page 472]

Linda Dincel, appellee, was convicted in the Municipal Court of Philadelphia of Involuntary Manslaughter and of Driving Under the Influence of Alcohol.*fn1 She was sentenced to five years probation on the Involuntary Manslaughter conviction with the condition that she pay the

[ 311 Pa. Super. Page 473]

    family of Charles Murray their funeral and interment expenses. On the Driving Under the Influence conviction, she was sentenced to undergo from three to twenty-three months of incarceration, to be served on weekends. Shortly thereafter, Dincel filed a petition for a writ of certiorari with the Court of Common Pleas of Philadelphia County. She prayed that the Common Pleas Court "reverse her conviction and discharge her from all liabilities on the above charges." The Hon. Charles Mirarchi sustained the Municipal Court's judgment of sentence as to Involuntary Manslaughter, but reversed the judgment of sentence as to the Driving under the Influence; however, the court noted an adjudication of "not guilty" on its order pertaining to the dismissal of the Driving Under the Influence charge.

Dincel appealed her conviction for involuntary manslaughter and the Commonwealth appealed from the Common Pleas Court reversal of her conviction for Driving Under the Influence. The appeals were consolidated. In an opinion filed on February 5, 1982, by a panel of our court, Dincel's conviction for involuntary manslaughter was affirmed and the appeal of the Commonwealth was quashed under the principle that "the Commonwealth may not appeal from a verdict of 'not guilty' in a criminal prosecution." Commonwealth v. Thinnes, 263 Pa. Superior Ct. 79, 397 A.2d 5 (1979); Commonwealth v. Ray, 448 Pa. 307, 292 A.2d 410 (1972); Commonwealth v. Burton, 292 Pa. Superior Ct. 73, 436 A.2d 1010 (1981).

The Commonwealth was subsequently granted en banc reargument on the issue of the quashal of its appeal. The Commonwealth does not dispute that it may not appeal a finding of "not guilty" by a trial judge. Rather, the Commonwealth, characterizing the judge's decision as a "putative acquittal," urges its appealability since the lower court was, in effect, sitting as an appellate court pursuant to the writ of certiorari and exceeded its scope of review by declaring Dincel "not guilty". Because we find that this argument has merit, and because we find the evidence was sufficient to convict appellee of driving under the influence,

[ 311 Pa. Super. Page 474]

    we vacate the order by which Dincel was adjudged not guilty and reinstate the original verdict of the Municipal Court of Philadelphia.

Our decision is guided by Double Jeopardy concerns since the general rule is that the entry of a verdict of acquittal by a trial court in a criminal proceeding usually cannot be reviewed without placing the defendant twice in jeopardy in violation of the double jeopardy clauses of both the Fifth Amendment of the United States Constitution and of Article I, ยง 10 of the Pennsylvania Constitution. Sanabria v. U.S., 437 U.S. 54, 98 S.Ct. 2170, 57 L.Ed.2d 43 (1978); Borough of West Chester v. Lal, 493 Pa. 387, 426 A.2d 603 (1981); Commonwealth v. Wimberly, 488 Pa. 169, 411 A.2d 1193 (1980); Commonwealth v. Lodge No. 148, Loyal Order of Moose, 188 Pa. Superior Ct. 531, 149 A.2d 565 (1959). This rule, however, must be qualified by the particular facts in certain cases. For example, in Sanabria, supra, the defendant was on trial for two violations of gambling laws. Midway through the trial certain numbers evidence was erroneously excluded, which fact resulted in a judgment of acquittal. The Supreme Court ruled that such an error in the defendant's favor on the merits of the charge was an acquittal in fact. In that circumstance, the Double Jeopardy Clause absolutely barred a second trial, thus the government was not permitted to appeal. Similarly, in Fong Foo v. U.S., 369 U.S. 141, 82 S.Ct. 671, 7 L.Ed.2d 629 (1962), the court's error in directing jury verdicts of acquittal resulted in their nonappealability since review would put the defendants twice in jeopardy, and thereby violate the Constitution. Moreover, this fundamental rule of the government's inability to appeal a not guilty verdict has been extended to situations where a court sustains a defendant's demurrer to the prosecution's evidence, an ordinarily appealable order,*fn2

[ 311 Pa. Super. Page 475]

    but in addition, erroneously enters a judgment of not guilty, Commonwealth v. Kerr, 150 Pa. Superior Ct. 598, 29 A.2d 340 (1942), cited with approval in Commonwealth v. Haines, 410 Pa. 601, 190 A.2d 118 (1963). In addition, our Supreme Court has looked beyond the characterization of an order of the grant of a demurrer which in actuality was a de facto, but silent, judgment of acquittal, Commonwealth v. Wimberly, supra, and has rendered such an order non-appealable by the Commonwealth.

The underlying rationale for all of the cases appears to focus on whether the ruling of the judge, whatever its label, actually represents a resolution, correct or not, of some or all of the factual elements of the offense charged. U.S. v. Scott, 437 U.S. 82, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978), quoting U.S. v. Martin Linen Supply, 430 U.S. 564, 97 S.Ct. 1349, 51 L.Ed.2d 642 (1977), in Commonwealth v. Wimberly, 488 Pa. at 173, 411 A.2d at 1194. Moreover, the trial judge's characterization of his own action cannot control the classification of the action. U.S. v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971) (opinion of Harlan, J.) in Wimberly 488 Pa. at 173, 411 A.2d at 1195.

A concomitant consideration is whether permitting review in a case would "expose the defendant to the risk of a second trial after the finder of fact ruled in [her] favor in the first." U.S. v. Wilson, 420 U.S. 332, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975).

[ 311 Pa. Super. Page 476]

With these considerations in mind, this court finds that the "not guilty" which was erroneously entered by the reviewing court below in its order was not, in fact, an acquittal. It was not the erroneous entry of a not guilty verdict by a trial court otherwise empowered to so rule at another stage of the trial proceeding. Rather, it was a legal determination that the evidence was insufficient to sustain the verdict of guilty of Driving Under the Influence after a review of the Municipal Court record. A trial de Page 476} novo was never held. That the Court labeled its dismissal as a not guilty verdict is not, in itself, determinative. In addition, the review of the court's order will not expose appellee Dincel to the risk of a second trial. Rather, the most that could happen is the reinstatement of her guilty verdict by the Municipal Court.

An important distinction separates the instant case from others in which this court quashed appeals by the Commonwealth although the lower courts erroneously entered not guilty verdicts. In this case, the lower court, did not have the power to act as a fact-finder by declaring appellee not guilty. In the cases cited above which delineate the parameters of double jeopardy guarantees, the lower courts were empowered to find facts and to rule on the law as trial courts. The errors of those cases involved decisions on factual issues which redounded in the defendant's favor. Therefore, in those cases, for any reviewing court to permit such review would open up the acquitted defendants to the possibility of another criminal proceeding. This is the classic proscription implicating the Double Jeopardy clause.

However, in this case, appellee elected to proceed in such a way that the court of common pleas could render a legal determination ...

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