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COMMONWEALTH PENNSYLVANIA v. DESPINA SMALIS (06/29/84)

filed: June 29, 1984.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
DESPINA SMALIS, A/K/A PEPE SMALIS. (FOUR CASES.) COMMONWEALTH OF PENNSYLVANIA, APPELLANT, V. ERNEST SMALIS, A/K/A ANATSTASIOS SMALIS (FOUR CASES)



No. 12 Pittsburgh, 1981, No. 13 Pittsburgh, 1981, No. 14 Pittsburgh, 1981, No. 15 Pittsburgh, 1981, No. 45 Pittsburgh, 1981, No. 46 Pittsburgh, 1981, No. 47 Pittsburgh, 1981, No. 48 Pittsburgh, 1981, Appeal from Order of the Court of Common Pleas, Criminal Division, of Allegheny County, Nos. CC 8000930A, CC 800931A, CC 8001209A, CC 8001211A, CC 8000930A, CC 8000931A, CC 8001209A, CC 8001211A.

COUNSEL

Melinda G. Tell, Assistant District Attorney, Pittsburgh, for Commonwealth, appellant.

Norma Chase, Pittsburgh, for Despina Smalis, appellee.

Thomas A. Livingston, Pittsburgh, for Ernest Smalis, appellee.

Spaeth, President Judge, and Wickersham, Brosky, Rowley, Wieand, Johnson and Hoffman, JJ. Johnson, J., filed a dissenting opinion.

Author: Wieand

[ 331 Pa. Super. Page 310]

The trial court in this criminal action sustained defense demurrers to charges of murder, voluntary manslaughter and causing a catastrophe. The Commonwealth appealed. We do not reach the substantive merits of the appeal. Principles of double jeopardy, as interpreted and applied by recent decisions of the Supreme Court of the United States,

[ 331 Pa. Super. Page 311]

    bar the Commonwealth's right of appeal and compel us to quash the appeal.

Despina Smalis and Ernest Smalis were the owners of a building in the Oakland section of Pittsburgh which housed a bar and restaurant known as "Chances R" and seven dwelling units. On February 12, 1979, a fire destroyed the building, killing two tenants who were in the dwelling units. The owners were accused of setting the fires or causing them to be set and were charged with criminal homicide, recklessly endangering another person, causing a catastrophe and failing to prevent a catastrophe. Despina Smalis was also charged with theft by deception. The evidence was heard by the court without a jury. At the close of the Commonwealth's case, the trial court sustained a demurrer to the evidence with respect to the charges of murder, voluntary manslaughter and causing a catastrophe.*fn1 The court did so because, as the trial court observed in a subsequent opinion, "[a]s the trier of fact and law, the court was not satisfied, after considering all of the facts together with all reasonable inferences which the Commonwealth's evidence tended to prove, that there was sufficient evidence from which it could be concluded that either of the defendants was guilty beyond a reasonable doubt of setting or causing to be set the fire in question." The Commonwealth appealed.*fn2

[ 331 Pa. Super. Page 312]

Until recent times, a demurrer to the evidence was merely a procedural device, authorized by the Act of June 5, 1937, P.L. 1703, § 1, 19 P.S. § 481 (repealed), by which a criminal defendant might test the sufficiency of the Commonwealth's evidence at the close of the Commonwealth's case. See: Commonwealth v. Heller et al., 147 Pa. Super. 68, 83, 24 A.2d 460, 467 (1942). See also: 10A P.L.E. Criminal Law § 617. Under this practice, it was said, an order sustaining a demurrer to the evidence determined no facts and was purely a question of law. Such an order, the decisions uniformly held, was appealable by the Commonwealth. Commonwealth v. Long, 467 Pa. 98, 100 n. 2, 354 A.2d 569, 570 n. 2 (1976); Commonwealth v. Melton, 402 Pa. 628, 629, 168 A.2d 328, 329 (1961); Commonwealth v. Lewis, 299 Pa. Super. 367, 369, 445 A.2d 798, 799 (1982); Commonwealth v. Matsinger, 288 Pa. Super. 271, 273, 431 A.2d 1043, 1044 (1981); Commonwealth v. Barone, 276 Pa. Super. 282, 289 n. 9, 419 A.2d 457, 461 n. 9 (1980); Commonwealth v. Ferrone, 218 Pa. Super. 330, 333, 280 A.2d 415, 417 (1971).

The practice of demurring to the evidence is now governed by Pa.R.Crim.P. 1124(a). This rule equates a demurrer to the evidence with other motions intended to challenge the legal sufficiency of the evidence to support a conviction. The Rule provides:

(a) A defendant may challenge the sufficiency of the evidence to sustain a conviction of one or more of the offenses charged by a:

(1) demurrer to the evidence presented by the Commonwealth at the close of the Commonwealth's case-in-chief;

(2) motion for judgment of acquittal at the close of all the evidence;

(3) motion for judgment of acquittal filed within ten (10) days after the jury has been discharged without agreeing upon a verdict; or

(4) motion in arrest of judgment filed within ten (10) days after a finding of guilt.

[ 331 Pa. Super. Page 313]

When a court finds the Commonwealth's evidence legally insufficient under this Rule, the evidence has been found to be so lacking in sufficiency that no rational fact finder could base a conviction thereon. When such a determination has been made, the Supreme Court of the United States has held, principles of double jeopardy bar a second trial.

When a trial judge directs a verdict of acquittal, as under Rule 1124(a)(2), that verdict is final. Because a second trial is barred by principles of double jeopardy, the Commonwealth has no right of appeal from an order directing a verdict of acquittal. Fong Foo v. United States, 369 U.S. 141, 82 S.Ct. 671, 7 L.Ed.2d 629 (1962). See also: Finch v. United States, 433 U.S. 676, 97 S.Ct. 2909, 53 L.Ed.2d 1048 (1977)(dismissal of charges prior to entry of verdict on grounds that stipulated facts did not state an offense held unappealable); In The Interest of R.K.K., 112 Ill.App.3d 982, 68 Ill.Dec. 573, 446 N.E.2d 307 (1983)("directed verdict" entered at close of state's case-in-chief based upon state's failure to prove age of victim in statutory rape case held not appealable); State v. Murrell, 54 N.C.App. 342, 283 S.E.2d 173 (1981)(dismissal of charges on insufficiency grounds at close of trial held not appealable). Cf. People v. Casiel, 41 N.Y.2d 945, 394 N.Y.S.2d 630, 363 N.E.2d 354 (1977), reversing 42 A.D.2d 762, 346 N.Y.S.2d 349 (1973); State v. Winborne, 273 S.C. 62, 254 S.E.2d 297 (1979).

When a trial court grants a motion for judgment of acquittal after the jury has been discharged without agreeing upon a verdict, as under Rule 1124(a)(3), the defendant cannot be retried. Such a ruling represents a final determination that the prosecution failed to prove facts sufficient to convict. It is the same determination which is made by a court when it directs a verdict of acquittal at the close of the evidence. Because the federal Double Jeopardy Clause bars a retrial, the Commonwealth has no ...


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