from the Order Dated May 3, 2016 In the Court of Common Pleas
of Erie County Criminal Division at No(s):
BEFORE: PANELLA, J., DUBOW, J., and FORD ELLIOTT, P.J.E.
Riccario J. Jones, appeals from the May 3, 2016 Order denying
his Motion to Dismiss. After careful review, we affirm.
summarize the facts and procedural history, as gleaned from
the certified record, as follows. Police arrested Appellant
following a shooting on November 5, 2014, in Erie,
Pennsylvania. The Commonwealth charged Appellant with
Aggravated Assault, Discharge of a Firearm into an Occupied
Structure, Receiving Stolen Property, Persons Not to Possess
a Firearm, Firearms Not to be Carried without a License,
Possession of an Instrument of a Crime, Recklessly
Endangering Another Person ("REAP"), Terroristic
Threats, and Attempted Murder.
September 18, 2015, following a four-day trial, the jury
convicted Appellant of Discharge of a Firearm into an
Occupied Structure, Persons Not to Possess a Firearm,
Firearms Not to be Carried without a License, Possession of
an Instrument of a Crime, REAP, and Terroristic Threats. The
jury was deadlocked on the Aggravated Assault and Attempted
Murder charges; therefore, the court declared a hung jury as
to those counts. The court recorded the guilty verdicts on
the remaining counts.
April 18, 2016, Appellant filed a Motion to Dismiss pursuant
to Pa.R.Crim.P. 648 wherein he requested that the court issue
an order barring retrial on the deadlocked counts of
Aggravated Assault and Attempted Murder. In support, he
asserted, inter alia, that "the jury's
finding of guilt on lesser included offense of REAP results,
for purposes of retrial, [in] an acquittal" of the
deadlocked offenses of Aggravated Assault and Attempted
Homicide. Appellant's Motion to Dismiss, at ¶ 10.
3, 2016, the trial court denied Appellant's Motion.
Appellant thereafter sought permission to Appeal to this
Court, which this Court granted on September 8, 2016.
Appellant raises the following issue for our review:
Whether the [t]rial [c]ourt committed an error of law in
denying Appellant['s] Motion to Dismiss as the
Commonwealth is barred by the Double Jeopardy Clause as well
as Pa.R.Crim.P. 648 from retrying  Appellant for Aggravated
Assault and Criminal Attempt - Homicide where the jury
reached a verdict as to a lesser included offense thereof.
Appellant's Brief at 3.
sole issue on appeal, Appellant argues that the trial court
erred in denying his Motion to Dismiss because Article 1,
Section 10 of the Pennsylvania Constitution, pertaining to
double jeopardy, and Pa.R.Crim.P. 648 bar his subsequent
retrial. Appellant's Brief at 7-10. Appellant avers that
the jury's guilty verdict on the REAP charge precludes
the Commonwealth from retrying him on the Aggravated Assault
and Attempted Murder charges because REAP is a lesser
included offense of Aggravated Assault and Attempted Murder.
Id. at 7-8. Without citation to any authority,
Appellant claims that "the jury's agreement as to
[the REAP charge], as a lesser included offense, operates as
an acquittal of the charges of Aggravated Assault and
[Attempted Murder], as a matter of law." Id. at
8-9. Appellant further argues, again without citation to any
authority, that 18 Pa.C.S. § 109(1) also "bars
re-prosecution for Aggravated Assault and [Attempted Murder]
due to the jury's finding of guilt as to the [REAP]
count, which constitutes an acquittal of all greater included
offenses." Id. at 9.
challenge raises a question of law. As with all legal
questions, our standard of review is de novo.
See generally Commonwealth v. Mattis, 686
A.2d 408, 410 (Pa. Super. 1996).
after a hung jury normally does not violate the Double
Jeopardy Clause. Sattazahn v. Pennsylvania, 537 U.S.
101, 109 (2003); Commonwealth v. Harris, 582 A.2d
1319, 1321 (Pa. Super. 1990). Pa.R.Crim.P. 648(D), pertaining
to jury verdicts generally, permits retrial on the charges
upon which the jury could not agree when those ...