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Home My WebLink AboutCP-21-CR-0003386-2009 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : v. : NO. CP-21-CR 3386-2009 : LAWRENCE BRADLEY : IN RE: MOTION TO DISMISS BEFORE HESS, P.J. OPINION and ORDER For consideration at this time is Defendant’s Motion to Dismiss Remaining Criminal Charges and Motion in Limine, filed June 6, 2011. (Motion to Dismiss, filed June 6, 2011). Defendant was charged with (1) Aggravated Assault (2 Counts), (2) Simple Assault (2 Counts), (3) Recklessly Endangering Another Person, (4) Firearms Not To Be Carried Without a License, (5) Possession of Firearm with Altered Manufacturer’s Number, and (6) Persons Not to Possess, Use, Manufacture, Control, Sell or Transfer Firearms. Count 6, the charge of Persons Not to Possess a Firearm, was severed and tried separately from the other charges during the March, 2011 trial term. Following a jury trial, Defendant was found not guilty and acquitted of that charge. Subsequent to that jury verdict, Defendant filed the motion sub judice asserting that the doctrines of collateral estoppel and double jeopardy prohibit the Commonwealth from proceeding with the prosecution of the remaining charges. In the alternative, Defendant has included a Motion in Limine seeking to bar the testimony of certain Commonwealth witnesses as their testimony may pertain to the remaining counts. The attorney for the Commonwealth has since communicated with the Court, essentially conceding the collateral estoppel argument. We write in support of an order, nonetheless, because of the frequency of requests to sever in these kinds of cases. The facts of this matter may be summarized as follows. All of the charges stem from a single incident which occurred during the early morning hours of December 23, 2009. On that date, Carlisle Police responded to a shooting that occurred outside of the All Star Café in Carlisle, Pennsylvania. An officer, traveling nearby, heard shots and saw the location of certain persons as the incident unfolded. As the officer approached the scene, he saw Defendant crawling on the ground behind a parked car. Under a nearby car was a loaded .38 caliber revolver with an altered serial number. Defendant informed the police that he had been the victim of the incident, and that a man had fired shots at him and two of his friends after they had left the All Star Café. Defendant asserted that he neither returned fire nor possessed a weapon that night. He contended that the gun found under the nearby car did not belong to him and that he was crouched down on the ground because shots had been fired. As a result of the events of that night, Defendant was charged with (1) Aggravated Assault (2 Counts), (2) Simple Assault (2 Counts), (3) Recklessly Endangering Another Person, (4) Firearms Not To Be Carried Without a License, (5) Possession of Firearm with Altered Manufacturer’s Number, and (6) Persons Not to Possess, Use, Manufacture, Control, Sell or Transfer Firearms. By Order of Court, dated November 11, 2010, Count 6 - Persons Not to Possess a Firearm was severed from the charges and ordered to be tried separately. (Order of Court, Dec. 1, 2010). Count 6 went to a jury trial, and, on April 27, 2011, a verdict of not guilty was returned. At issue in that trial was whether Defendant possessed the .38 caliber revolver found underneath the car which was near to where Defendant was first observed by the police. 2 Because the other five counts remain outstanding, Defendant has filed the instant Motion to Dismiss. He contends that, in order for the Commonwealth to convict him of the remaining charges, it must first prove that Defendant possessed a firearm, and that, because he has already been found not guilty of the charge of Persons Not to Possess a Firearm, the doctrines of collateral estoppel and double jeopardy bar the prosecution of the remaining counts of the information. In Pennsylvania, collateral estoppel, or issue preclusion, is governed by statute in criminal cases. 18 Pa. C.S.A. §110 provides, in pertinent part, as follows: § 110. When prosecution barred by former prosecution for different offense. Although a prosecution is for a violation of a different provision of the statutes than a former prosecution or is based on different facts, it is barred by such former prosecution under the following circumstances: * * * (2) The former prosecution was terminated, after the indictment was found, by an acquittal ... which acquittal ... necessarily required a determination inconsistent with a fact which must be established for conviction of the second offense. 18 Pa. C.S.A. §110 (2). The Superior Court has long held that this statute is merely a codification of collateral estoppel principles in criminal cases, and has interpreted the statute as follows: “That once a former prosecution necessarily establishes an ultimate fact in favor of a defendant, then a subsequent prosecution depending upon a contrary finding must be barred.” Commonwealth v. Klinger, 264 Pa. Super. 21, 25, 398 A.2d 1036, 1038 (Pa. Super. 1979) (citing Commonwealth v. Shelhorse, 252 Pa. 475, 381 A.2d 1305, 1308 (1977)). Collateral estoppel does not act as an automatic bar to subsequent prosecutions; rather it bars “redetermination in a second prosecution of those issues necessarily determined between the parties in a first proceeding which has 3 become a final judgment.” Commonwealth v. Ortega, 2010 Pa. Super. 89, ¶ 23, 996 A.2d 879, 887 (citing Commonwealth v. States, 595 Pa. 453, 458, 938 A.2d 1016, 1020 (2007)). Collateral estoppel is a principle which must be “applied with ‘realism and rationality,’ not ‘with the th hypertechnical and archaic approach of a 19 century pleading book.’” Commonwealth v. Smith, 518 Pa. 15, 25-26, 540 A.2d 246, 251 (1988). Because it is only those issues which have been “necessarily determined between the parties” at the first proceeding which will be barred from redetermination at a second proceeding, the court must inquire into the prior proceeding to determine whether the same issue has actually been necessarily determined and must, therefore, be barred from re-prosecution. Ortega, 2010 Pa. Super. 89, ¶ 23. The Pennsylvania Supreme Court has instructed that a court must engage in the following analysis: we must “examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.” Commonwealth. v. Smith, 518 Pa. 15, 26, 540 A.2d 246, 251 (1988) (citations omitted). Furthermore, the Court explained that in determining whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration, “the inquiry must be set in a practical frame and viewed with any eye to all the circumstances.” Id. Finally, when making this determination, the following three-step approach has been adopted by our Supreme Court: (1) An identification of the issues in the two actions for the purpose of determining whether the issues are sufficiently similar and sufficiently material in both actions to justify invoking the doctrine; (2) an examination of the record of the prior case to decide whether the issue was ‘litigated’ in the first case; and (3) an examination of the record of the prior proceeding to ascertain whether the issue was necessarily decided in the first case. 4 Id. (citing Commonwealth v. Hude, 492 Pa. 600, 613, 425 A.2d 313, 320 (1980). Interpreting this test in light of §110, the Court has said that “‘necessarily required a determination’ is no more restrictive than ‘whether a rational jury could have grounded its verdict’ without inclusion of the issue defendant seeks to exclude from relitigation.” Smith, 518 Pa. at 27. In this case, Defendant was charged with six counts stemming from the December 23, 2009 incident. Count 6, Persons Not to Possess a Firearm, went to a jury trial which resulted in the return of a not guilty verdict. The charge of Persons Not to Possess a Firearm is found at 18 Pa.C.S.A. §6105(a)(1) of the Pennsylvania Uniform Firearms Act of 1995 and provides as follows: (1) A person who has been convicted of an offense enumerated in subsection (b), within or without this Commonwealth, regardless of the length of sentence or whose conduct meets the criteria in subsection (c) shall not possess, use, control, sell, transfer or manufacture or obtain a license to possess, use, control, sell, transfer or manufacture a firearm in this Commonwealth. 18 Pa. C.S.A. §16105(a)(1). At trial on Count 6, it was stipulated that Defendant was a person who had been convicted of an offense enumerated in subsection (b) and/or subsection (c) of §6105. Because of this stipulation, the only issue that the jury was required to decide was rd whether, during the December 23 incident outside of the All Star Café, Defendant did “possess, use, [or] control . . .” a firearm within the Commonwealth. It is clear, therefore, that Defendant was prosecuted under the theory that he possessed a firearm on the day in question. The jury decided that he did not. “[O]nce a former prosecution necessarily establishes an ultimate fact in favor of a defendant, then a subsequent prosecution depending upon a contrary finding must be barred.” Klinger, 264 Pa. Super. at 25. The remaining counts against the defendant are as follows: (1) Aggravated Assault (2 Counts), a violation of 18 Pa.C.S.A. § 2702(a)(2); (2) Simple Assault (2 Counts), a violation of 5 18 Pa.C.S.A. §2701(a)(2); (3) Recklessly Endangering Another Person, a violation of 18 Pa.C.S.A. § 2705; (4) Firearms Not To Be Carried Without a License, a violation of 18 Pa.C.S.A. § 6106(a)(1); and (5) Possession of Firearm with Altered Manufacturer’s Number, a violation of 18 Pa.C.S.A. § 6110.2. The common thread which runs through all of these counts is that Defendant possessed a firearm during the early morning hours of December 23, 2009, and that he violated the above noted statutes as a result of his conduct while in possession of that firearm. This theme is summarized in the Affidavit of Probable Cause contained within the Criminal Complaint. That affidavit provides, in pertinent part, as follows: Although no one was hurt during the shooting incident, the club had numerous patrons inside and several patrons outside during the time the shots were fired. Also outside were All-Star staff, who routinely watched the doors and monitored activity in the parking lot. The act of discharging the weapons put the patrons and staff in fear of serious bodily injury and endangered their welfare. (Criminal Complaint, Affidavit of Probable Cause, filed Oct. 16, 2009). Because the remaining Counts contained within the Criminal Complaint would be dependent upon a finding contrary to that established in the prosecution of Count 6, the doctrine of collateral estoppel applies to bar the redetermination and prosecution of the issue. For this reason, the remaining five counts against Defendant will be dismissed. A dismissal of the charges renders moot any remaining issues contained within Defendant’s Motion. ORDER AND NOW, this day of August, 2011, upon consideration of Defendant’s Motion to Dismiss Remaining Criminal Charges and Motion in Limine, and for the reasons contained in the accompanying opinion, Defendant’s Motion is GRANTED. The pending criminal charges at the 6 above docket number are dismissed. BY THE COURT, _______________________________ Kevin A. Hess, P.J. Jaime Keating, Esquire st 1 Assistant District Attorney Michael Rentschler, Esquire For the Defendant :rlm 7 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA v. : : NO. CP-21-CR 3386-2009 :: : LAWRENCE BRADLEY : IN RE: MOTION TO DISMISS ORDER OF COURT AND NOW, this day of August, 2011, upon consideration of Defendant’s Motion to Dismiss Remaining Criminal Charges and Motion in Limine, and for the reasons contained in the accompanying opinion, Defendant’s Motion is GRANTED. The pending criminal charges at the above docket number are dismissed. BY THE COURT, __________________ Kevin A. Hess, P.J. Jaime Keating, Esquire lst Assistant District Attorney Michael Rentschler, Esquire For the Defendant :rlm