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Commonwealth v. Jones

Superior Court of Pennsylvania

June 21, 2017

COMMONWEALTH OF PENNSYLVANIA
v.
RICCARIO J. JONES, Appellant

         Appeal from the Order Dated May 3, 2016 In the Court of Common Pleas of Erie County Criminal Division at No(s): CP-25-CR-0003518-2014

          BEFORE: PANELLA, J., DUBOW, J., and FORD ELLIOTT, P.J.E.

          OPINION

          DUBOW, J.

         Appellant, Riccario J. Jones, appeals from the May 3, 2016 Order denying his Motion to Dismiss.[1] After careful review, we affirm.

         We 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.[2]

         On 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.[3]

         On 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.

         On May 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.

         In his 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.

         Appellant's 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).

         Retrial 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 ...


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