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decided: April 27, 1983.


No. 80-3-626, No. 80-3-627, Cross Appeals from the Order of May 20, 1980, of the Court of Common Pleas of Clinton County, at No. 46 June Term, 1962.


Frederick D. Lingle, Dist. Atty., for appellant at No. 626 and for appellee at No. 627.

Alfred S. Pelaez, Pittsburgh, for appellant at No. 627 and for appellee at No. 626.

Roberts, C.j., and Nix, Larsen, Flaherty, McDermott, Hutchinson and Zappala, JJ. Roberts, C.j., concurs in the result.

Author: Nix

[ 501 Pa. Page 316]


[ 501 Pa. Page 317]

This is a cross appeal from an order entered in a post conviction proceeding pursuant to the Post Conviction Hearing Act, Act of January 25, 1966, P.L. (1965) 1580, as Page 317} amended; reenacted as 42 Pa.C.S. ยงยง 9541-9551, wherein the Commonwealth seeks reversal of the award of a new trial based upon the ineffective assistance of counsel and Mr. Vogel seeks his discharge contending that the constitutional prohibition against double jeopardy requires such a result.*fn1 For the reasons that follow we hold that the learned court below was in error in concluding that a new trial was warranted. We also are of the view that there is no merit in Mr. Vogel's claimed double jeopardy violations. Hopefully, this matter which arose on August 1, 1962 will at long last be put to rest.

At the outset it must be emphasized that it has never been questioned that Mr. Vogel caused the death of two individuals in the course of a robbery of the store where they were employed. The fruits of that robbery -- cash, money bags and green stamps -- were secreted in the trunk of his car when he and his family left this country and travelled to Canada shortly after the crime. The crux of the controversy has been whether the record has established his legal culpability for the consequences of this conduct. It is appropriate for us first to consider the asserted double jeopardy violation, for if it is established Mr. Vogel may not be retried and is entitled to an immediate discharge. Commonwealth v. Meadows, 471 Pa. 201, 369 A.2d 1266 (1977); see generally Illinois v. Vitale, 447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980); Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977); United States v. Wilson, 420 U.S. 332, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975); North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969).


It is argued on Mr. Vogel's behalf that the convictions in the first and second trials were set aside because of the failure of the prosecution to present sufficient evidence to

[ 501 Pa. Page 318]

    establish his guilt of the crimes charged.*fn2 It is well settled that the double jeopardy clause of the Federal Constitution, U.S. Const., amend. 5, prohibits a retrial for the purpose of permitting the prosecution a second opportunity to muster sufficient evidence to convict where it failed to do so at the first trial.*fn3 Bullington v. Missouri, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981); United States v. DiFrancesco, 449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980); Swisher v. Brady, 438 U.S. 204, 98 S.Ct. 2699, 57 L.Ed.2d 705 (1978); Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); Commonwealth v. Mitchell, 497 Pa. 14, 438 A.2d 596 (1981).

The Double Jeopardy Clause forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding. This is central to the objective of the prohibition against successive trials. The Clause does not allow "the State . . . to make repeated attempts to convict an individual for an alleged offense," since "[t]he constitutional prohibition against 'double jeopardy' was designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense." [Footnote omitted; citations omitted.]

[ 501 Pa. Page 319]

The weakness in the argument attempting to equate the Burks analysis to the instant appeal is that the two reversals in this case did not result from a legal determination that the evidence of the Commonwealth was insufficient to sustain the verdicts of guilt returned by the jury. To the contrary, Mr. Vogel has had the benefit of the metamorphosis in the law of this jurisdiction relating to the proper allocation of the burden of proof of the "sanity" of one who commits a criminal act. The element of "a second bite of the apple" is not in this case. Questions relating to the reallocation of burdens of proof have their underpinnings in the constitutional guarantee of due process. See Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975); In Re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); Commonwealth v. Moyer, 466 Pa. 464, 353 A.2d 447 (1976); Commonwealth v. McNeil, 461 Pa. 709, 337 A.2d 840 (1975). This basis for appellate intervention must be distinguished from a finding that the inadequacy of the proof establishes that the matter should never have been submitted to a jury for a determination. Tibbs v. Florida, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982).

Mr. Vogel was convicted in his first trial of two counts of murder in the second degree and of armed robbery. On appeal to this Court the judgments of sentence were reversed and a new trial awarded. Commonwealth v. Vogel [Vogel I] 440 Pa. 1, 268 A.2d 89 (1970). The order in that appeal was supported by five members of the Court; two members dissented and would have affirmed the judgments of sentence. See Commonwealth Vogel, supra, 440 Pa. at 21, 268 A.2d at 96 (Bell, C.J., dissenting, joined by Eagen, J.). Of the members joining the order of reversal, only one member, Mr. Justice, now Chief Justice, Roberts premised his ...

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