Commonwealth v. Jordan

256 A.3d 1094

COMMONWEALTH of Pennsylvania, Appellee

v.Gregory JORDAN, Appellant

No. 31 WAP 2020

Supreme Court of Pennsylvania.

Argued: May 18, 2021

Decided: August 17, 2021

Lisa Ann Swift, Esq., Lackawanna County District Attorney's Office, for Pennsylvania District Attorney Association, Amicus Curiae.

Brandon Paul Ging, Esq. Allegheny County Public Defender's Office, for Appellant Gregory Frank Jordan.

Kevin Francis McCarthy, Esq., Michael Wayne Streily, Esq., Allegheny County District Attorney's Office, for Appellee.

BAER, C.J., SAYLOR, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

OPINION

JUSTICE DOUGHERTY

We consider whether inconsistent verdicts rendered by separate factfinders in a simultaneous jury and bench trial implicate double jeopardy and collateral estoppel concerns, such that a defendant, who was acquitted by the jury on the charges it considered, may not also be found guilty by the trial court of other charges. We conclude that a defendant who elects to proceed with a simultaneous jury and bench trial during a single prosecution is subjected to only one trial and therefore double jeopardy and collateral estoppel do not apply to preclude the guilty verdict rendered by the judge.

I. Background

Appellant Gregory Jordan was arrested for his alleged participation in the robbery of Tishana Nowlin on St. Joseph Street in the Mount Oliver neighborhood of Pittsburgh.¹ He was charged at docket number 2017-1702 with criminal attempt - homicide, robbery, aggravated assault, criminal conspiracy, persons not to possess a firearm, carrying a firearm without a license, terroristic threats, theft by unlawful taking, and disorderly conduct.² At appellant's request, the persons not to possess a firearm charge was severed and charged at docket number 2018-12031.³ On October 1, 2018, at appellant's request, the parties proceeded to a simultaneous jury and bench trial where the court sat as factfinder for the persons not to possess a firearm charge at 2018-12031 and the disorderly conduct offense at 2017-1702, and the jury served as factfinder for all remaining charges. See N.T., 10/10/18 at 4 (appellant's counsel confirming "[Appellant] and I did discuss the now severed charges and that we would want to proceed nonjury on those charges. We discussed that before we began jury selection. I had submitted a motion to sever in writing before we began.").

At trial, Nowlin testified before the jury that she was robbed at gunpoint by two men as she returned home from work on January 16, 2017. See N.T., 10/1/18 at 149-50. She further testified one of the men, whom she later identified as appellant, "pulled out this extremely big gun" and said "you know what this is" as the other man searched her pockets. Id . at 150-51; see id . at 154-55. She indicated the men took her wallet and keys, and ran down St. Joseph Street and entered a brown house. She explained that, as she ran after the men, appellant turned back toward her and said something; however, she was unable to recall what he said. She stopped chasing the men when they entered the house and she called the police. The police arrived and surrounded the house before entering and discovering nobody inside. Nowlin later went to the police station to review a photographic array of suspects at which time she positively identified appellant as one of the men without hesitation. See id . at 227. She also testified that she had never seen appellant before the robbery. After the jury was dismissed, the Commonwealth presented evidence of appellant's prior criminal record in support of the persons not to possess a firearm charge.

At the conclusion of trial, the jury found appellant not guilty of robbery, conspiracy, and terroristic threats — the only charges it considered. The court indicated it reached its verdict at the same time as the jury, but wanted additional time to conduct legal research and confirm its belief that it was free to render its own factual findings, even if those findings were inconsistent with the jury's verdict. See N.T., 10/10/18 at 11. On October 10, 2018, when proceedings resumed, the court and parties recognized a jury waiver colloquy had not yet been placed on the record. See id . at 2 (court acknowledging it received a request to try the persons not to possess charge non-jury but appellant "never submitted a non-jury colloquy" and the court "never colloquied [appellant] on his right to a jury versus a nonjury trial"). Appellant's counsel suggested the court issue the colloquy: "Your Honor, I had advised him about [the waiver.] ... I know it is no substitute for the colloquy, but [ ] perhaps, we could put on the record that [it] had been discussed previously." Id . Appellant and his attorney both stated on the record they had previously discussed his right to have the severed charge heard by a jury, and appellant decided to proceed with a non-jury trial on that charge. See id . at 4 ("[Appellant] and I did discuss his right to have those charges tried by the jury, and all the other ways we could have proceeded. It was both of our decisions that it was proper to address [the severed charges] as a nonjury. That was discussed before we began. I did go over all the substantive rights in regard to that."); see id . at 4-5 (appellant informing the court he discussed his rights with counsel before trial). The court then issued a jury waiver colloquy and appellant waived his right to a jury trial on the remaining charges.

The court ruled it was not bound by the jury's verdict and found appellant guilty of disorderly conduct and persons not to possess a firearm.⁴ The court expressly stated it found Nowlin "testified truthfully." Id . at 15. Appellant was immediately sentenced to 11 ½ to 23 months’ incarceration followed by 3 years’ probation. He filed a post-sentence motion arguing his conviction by the court for persons not to possess a firearm was barred by double jeopardy and collateral estoppel given the jury's acquittal on the other charges. The court denied appellant's motion, and he then filed a timely notice of appeal on the same basis.

In its Pa.R.A.P. 1925(a) Opinion, the trial court concluded neither double jeopardy nor collateral estoppel applied in the context of a single prosecution where a trial court and jury sit simultaneously as factfinders, even when the trial results in inconsistent verdicts. The court observed that both doctrines "operate to preclude ‘subsequent’ prosecutions and ‘redeterminations’ in a second prosecution ‘of those issues necessarily determined between the parties in a first proceeding which has become a final judgment.’ " Trial Court Op., 5/16/19 at 8-9, quoting Commonwealth v. States , 595 Pa. 453, 938 A.2d 1016, 1020 (2007). There was no subsequent prosecution here, according to the court, because the evidence was presented at a single trial and heard simultaneously by separate factfinders. See id . The court also dismissed concerns that a trial with two factfinders may result in inconsistent verdicts because " ‘the law is clear that inconsistent verdicts are permissible in Pennsylvania.’ " Id . at 9, quoting States , 938 A.2d at 1025. Moreover, the court emphasized that the " ‘trial court is not required to defer to the findings of the jury on common factual issues.’ " Id . at 10-11 (emphasis omitted), quoting Commonwealth v. Wharton , 406 Pa.Super. 430, 594 A.2d 696, 699 (1991) (relying on Commonwealth v. Yachymiak , 351 Pa.Super. 361, 505 A.2d 1024 (1986) ). The court concluded:

[T]his court was not bound by the jury's factual findings in the simultaneous joint trial. This court was acting as an independent fact-finder with respect to the two [ ] charges that were being tried simultaneously with the offenses that were tried before the jury. In discharging its fact-finding duty, the court was not just permitted, but rather was required, to make its own credibility determinations and factual findings based on its own assessment of the evidence ... that was presented during the same prosecution.

Id . at 11 (emphasis omitted).

A unanimous three-judge Superior Court panel affirmed appellant's conviction in an unpublished memorandum opinion. The panel explained double jeopardy, which ensures no person "be twice put in jeopardy of life or limb" for the same offense, U.S. CONST. amend. V ; PA. CONST. art. I, § 10, provides " ‘freedom from the harassment of successive trials and the prohibition against double punishment.’ " Commonwealth v. Jordan , 1596 WDA 2018, 2020 WL 4436287 at *3 (Pa. Super. Aug. 3, 2020) (unpublished memorandum), quoting States , 938 A.2d at 1019 (internal quotation and citation omitted). Similarly, the panel observed criminal collateral estoppel is a " ‘subpart of double jeopardy protection[.]’ " Id ., quoting States , 938 A.2d at 1020. The panel viewed this case as one "involv[ing] an inconsistent verdict" — as opposed to collateral estoppel — because there was a single simultaneous jury and bench trial and no subsequent prosecution. Id . at *4. The panel acknowledged simultaneous trials may result in inconsistent verdicts, but emphasized that such verdicts are permissible in Pennsylvania. See id ., quoting Commonwealth v. Petteway , 847 A.2d 713, 718 (Pa. Super. 2004) (inconsistent verdicts "while often perplexing, are not considered mistakes and do not constitute a basis for reversal."). The panel thus agreed with the trial court's analysis and concluded where "a simultaneous jury/bench trial is conducted and the defendant is not subjected to a subsequent trial following an acquittal, the trial court is not bound by the jury's credibility determinations and may make findings different from and inconsistent with the jury's findings." Id . at *5, citing Wharton , 594 A.2d at 699 and Yachymiak , 505 A.2d at 1027.

We granted discretionary review to consider: "Whether the Superior Court panel erred as a matter of law in concluding that inconsistent verdicts are always permissible in consolidated...