A blog of the Philadelphia Bar Association’s Criminal Justice Section

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By Burt Rose

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The Superior Court of Pennsylvania has decided the case of COMMONWEALTH of Pennsylvania v. Vincent Wesley HALLMAN, Appellant, 2013 WL 2325610, 2013 PA Super 133, 1058 MDA 2012 (May 29, 2013), an appeal from the Court of Common Pleas of Huntingdon County, Criminal Division, CP–31–0000181–2010. The Panel was composed of Judges BOWESGANTMAN andOLSON, who wrote the Opinion.

The Appellant, a prisoner, was charged with aggravated assault of a guard under 18 Pa.C.S.A. § 2702(a)(2) and aggravated assault under 18 Pa.C.S.A. § 2702(a)(3). During Appellant’s trial, the trial court instructed the jury as to both counts. However, during the jury instructions, the trial court also provided the jury with an “acquittal-first progression charge”, which instructed the jury that the Appellant could “only be found guilty of one of the two counts or not guilty of both counts;” if the jury found Appellant guilty of aggravated assault under Section 2702(a)(2), the jury was not to consider Appellant’s liability under Section 2702(a)(3); the jury could not even turn its attention to Appellant’s liability under Section 2702(a)(3) unless the jury first acquitted Appellant of aggravated assault under Section 2702(a)(2).

The jury found Appellant guilty of Count I (which was aggravated assault under 18 Pa.C.S.A. § 2702(a)(2)). The jury thus made no specific determination as to whether Appellant was either guilty or not guilty of aggravated assault under 18 Pa.C.S.A. § 2702(a)(3). The trial court granted a post sentence motion for a judgment of acquittal. The DA sought to retry the Appellant on the count that had not been adjudicated. The trial judge overruled the Appellant’s double jeopardy objection.

The issue on appeal was whether the Double Jeopardy Clause prevents the Commonwealth from retrying Appellant on aggravated assault underSection 2702(a)(3). The Panel concluded that the Double Jeopardy Clause does not prevent a retrial since—as a result of the progression instruction and the jury’s finding of guilt on the charge of aggravated assault under Section 2702(a)(2)—the jury was prevented from rendering a verdict on the Section 2702(a)(3) charge. Thus the Appellant’s jeopardy on the Section 2702(a)(3) charge did not terminate when the first jury was discharged.

Although the trial court later acquitted Appellant of aggravated assault under Section 2702(a)(2), the trial court’s ruling does not constitute an acquittal on the Section 2702(a)(3) charge since the jury was not given a full opportunity to convict Appellant of aggravated assault under Section 2702(a)(3) and, thus, the jury’s silence did not amount to an implicit acquittal as to that offense. Since the trial court charged the jury on aggravated assault underSection 2702(a)(3), the subsequent acquittal on aggravated assault under Section 2702(a)(2) did not necessarily imply an acquittal on the Section 2702(a)(3) charge.

This case presented a situation where the Commonwealth sought retrial simply to prosecute a count that was charged and put before a jury—but that remained unresolved at the end of the first trial.Therefore, this Appellant’s jeopardy did not terminate with the discharge of the jury and the public’s interest in fair trials designed to end in just judgments should not be “frustrated”.

So too bad for Mr. Hallman.

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