Defendant's Rights Double Jeopardy Lesser Included Offense Hung Jury

Commonwealth v. Jones, PICS Case No. 17-1042 (Pa. Super. June 21, 2017) Dubow, J. (8 pages).

The trial court properly denied defendant's motion for an order barring the commonwealth from seeking a retrial on charges of aggravated assault and attempted murder since defendant's conviction for recklessly endangering another person did not operate as an acquittal to those greater offenses. The court affirmed a trial court order denying defendant's motion to dismiss two remaining charges against him.

Police arrested defendant after a shooting incident in Erie on Nov 5, 2014. The commonwealth charged defendant 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 crime, recklessly endangering another person (REAP) terroristic threats and attempted murder. A jury convicted defendant 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 ja crime, REAP and terroristic threats. However, the jury was deadlocked on the aggravated assault and attempted murder charges; thus, the court declared a hung jury as to those counts. Thereafter, defendant filed a motion seeking an order barring retrial on the remaining counts of aggravated assault and attempted murder. The trial court denied the motion. On appeal, defendant argued that the jury's finding of guilt on the lesser included offense of REAP resulted, for purposes of retrial, in an acquittal on the two deadlocked offenses. Retrial after a hung jury normally does not violate the double jeopardy clause, the court observed. However, where a person is tried and acquitted of a crime that is a constituent of another crime, he may not be prosecuted for the greater crime. The court rejected defendant's assertion that his conviction for REAP, as a constituent or lesser-included crime, operated as an acquittal to the greater offenses of aggravated assault and attempted murder. When the jury convicted defendant of REAP, it concluded that defendant had recklessly engaged in conduct that placed or might have placed another person in danger of death or serious bodily injury. However, this conviction did not operate as an acquittal with respect to the charges of aggravated assault and attempted murder, the court concluded. The statutes defining these crimes include the work "reckless," but they also contain elements not present in the definition of REAP, the court observed. As such, neither 18 Pa.C.S. 109 nor the principles of double jeopardy precluded the commonwealth from retrying defendant on the two charges on which the jury was unable to reach a verdict.