Petition for Writ of Certiorari — Pennsylvania, Petitioner v.William R. Landis, Jr.

Supreme Court briefDec 3, 2019

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No. _________

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In The

Supreme Court of the United States

-----------------------------------------------------------------COMMONWEALTH OF PENNSYLVANIA,

Petitioner,

WILLIAM R. LANDIS, JR.,

Respondent.

-----------------------------------------------------------------On Petition For Writ Of Certiorari

To The Superior Court Of Pennsylvania

-----------------------------------------------------------------PETITION FOR WRIT OF CERTIORARI

-----------------------------------------------------------------JOHN T. ADAMS

District Attorney

ALISA R. HOBART

Assistant District Attorney

Counsel of Record

BERKS COUNTY DISTRICT

ATTORNEY’S OFFICE

633 Court Street

Reading, PA 19601

(610) 478-6000

ahobart@countyofberks.com

Counsel for Petitioner

Commonwealth of Pennsylvania

Dated: December 3, 2019

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COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

QUESTIONS PRESENTED

Did the Superior Court of Pennsylvania err in finding

that the reinstatement of Murder in the Third Degree

upon the award of a new trial violated the Double Jeopardy Clause, where the verdict for this offense was not

guilty in the first trial, but Respondent Landis was

convicted of Murder in the First Degree and the proposed charge is a lesser included offense, contrary to

relevant precedent established by this Honorable

Court in Blueford v. Arkansas, 566 U.S. 599, 611-612

(2012) and Poland v. Arizona, 476 U.S. 147 (1986)?

Answered in the negative by the court below.

Suggested Answer: Yes

PARTIES TO THE PROCEEDING

All parties to the proceeding are stated in the caption.

CORPORATE DISCLOSURE STATEMENT

This petition is not filed on behalf of a nongovernmental corporation.

DIRECTLY RELATED CASES

Commonwealth v. Landis, Berks County Court of Common Pleas, CP-06-CR-0005405-2009

Commonwealth’s Pretrial Interlocutory Appeal

Commonwealth v. Landis, Superior Court of Pennsylvania, 826 and 1381 MDA 2010 (consolidated)

Landis’s Direct Appeal After First Conviction

Commonwealth v. Landis, Superior Court of Pennsylvania, 1018 MDA 2013

Commonwealth’s Post Conviction Collateral Appeal

Commonwealth v. Landis, Superior Court of Pennsylvania, 28 MDA 2016

Commonwealth v. Landis, Supreme Court of Pennsylvania, 151 MAL 2017

Commonwealth’s Pretrial Interlocutory Appeal

(instant appeal)

Commonwealth v. Landis, Superior Court of Pennsylvania, 1785 MDA 2017

Commonwealth v. Landis, Supreme Court of Pennsylvania, 192 MAL 2019

iii

TABLE OF CONTENTS

Page

Questions Presented ............................................

Parties to the Proceeding .....................................

Corporate Disclosure Statement .........................

Directly Related Cases ........................................

Table of Contents .................................................

iii

Appendix ..............................................................

Table of Authorities .............................................

Opinions Below ....................................................

Jurisdiction ..........................................................

Constitutional Provision Involved .......................

Statement of the Case .........................................

Reasons for Granting the Writ ............................

THE REINSTATEMENT OF THE CHARGE

OF MURDER IN THE THIRD DEGREE

AFTER A NOT GUILTY VERDICT IS PERMITTED BY THE DOUBLE JEOPARDY

CLAUSE, AS LANDIS WAS CONVICTED

OF THE GREATER OFFENSE OF MURDER IN THE FIRST DEGREE .................

IN ADDITION, LANDIS EFFECTIVELY

WAIVED HIS CLAIM TO DOUBLE JEOPARDY PROTECTION FOR MURDER IN

THE THIRD DEGREE BY SEEKING A

DEFENSE OF DIMINISHED CAPACITY

BY VOLUNTARY INTOXICATION UPON

RETRIAL ................................................... 13

Conclusion............................................................ 20

TABLE OF CONTENTS – Continued

Page

APPENDIX

Opinion, Superior Court of Pennsylvania (December 24, 2018) .............................................. App. 1

Order, Superior Court of Pennsylvania (March

5, 2019) ........................................................... App. 14

Order, Berks County Court of Common Pleas,

Sprecher, J. (October 24, 2017) ...................... App. 15

Opinion, Berks County Court of Common Pleas,

Sprecher, J. (January 24, 2018) ..................... App. 18

Order, Supreme Court of Pennsylvania (September 4, 2019) ..................................................... App. 24

TABLE OF AUTHORITIES

Page

FEDERAL CASES

Arizona v. Rumsey, 467 U.S. 203 (1984) .....................11

Blueford v. Arkansas, 566 U.S. 599 (2012).... 5, 6, 8, 9, 12

Bullington v. Missouri, 451 U.S. 430 (1981) ...............11

Burks v. United States, 437 U.S. 1 (1978) ....................7

Evans v. Michigan, 568 U.S. 313 (2013) .......................8

Green v. United States, 355 U.S. 184 (1957) ........... 7, 15

Justices of Boston Municipal Court v. Lydon, 466

U.S. 294 (1984) ..........................................................8

North Carolina v. Pearce, 395 U.S. 711

(1969) ......................................................... 7, 8, 11, 15

Poland v. Arizona, 476 U.S. 147 (1986).... 5, 6, 10, 11, 12

Sanabria v. United States, 437 U.S. 54, 98 S. Ct.

2170, 57 L. Ed. 2d 43 (1978) .....................................8

Sattazahn v. Pennsylvania, 537 U.S. 101 (2003) ...... 7, 8

Smalis v. Pennsylvania, 476 U.S. 140 (1986) ........... 8, 9

Smith v. Massachusetts, 543 U.S. 462, 125 S. Ct.

1129, 160 L. Ed. 2d 914 (2005) .................................8

Stroud v. United States, 251 U.S. 15 (1919) ............. 7, 8

United States v. Martin Linen, 430 U.S. 564, 97

S. Ct. 1349, 51 L. Ed. 2d 642 (1977) .........................8

TABLE OF AUTHORITIES – Continued

Page

STATE CASES

Commonwealth v. Bostic, 456 A.2d 1320 (Pa.

1983) ........................................................................15

Commonwealth v. Feaser, 723 A.2d 197 (Pa. Super. 1999) ...................................................................9

Commonwealth v. Frey, 554 A.2d 27 (Pa. 1989),

cert. denied, 494 U.S. 1038 (1990) ...........................10

Commonwealth v. Landis, 201 A.3d 768 (Pa. Super. 2018) ...................................................................1

Commonwealth v. Larkins, 829 A.2d 1203 (Pa.

Super. 2003), appeal denied, 870 A.2d 321 (Pa.

2005) ................................................................ passim

Commonwealth v. Spotz, 47 A.3d 63 (Pa. 2012) ...... 9, 14

Commonwealth v. Terry, 521 A.2d 398 (Pa. 1987),

cert. denied, 482 U.S. 920 (1987) .............................10

Commonwealth v. Vogel, 461 A.2d 604 (Pa. 1984) ........ 7

Commonwealth v. Williams, 980 A.2d 510 (Pa.

2009) ........................................................................15

FEDERAL STATUTES

U.S. Const. amend. V ...................................... 1, 6, 7, 15

28 U.S.C. § 1257(a) ........................................................1

STATE STATUTES

18 Pa. C.S.A. § 308 ........................................................9

42 Pa. C.S.A. § 9541, et seq. ...................................... 2, 3

OPINIONS BELOW

The December 24, 2018 Opinion of the Superior

Court of Pennsylvania, Commonwealth v. Landis, 201

A.3d 768 (Pa. Super. 2018) (1785 MDA 2017), is reproduced in the Appendix. (App. 1).

------------------------------------------------------------------

JURISDICTION

This Honorable Court has jurisdiction to consider

the petition pursuant to 28 U.S.C. § 1257(a).

------------------------------------------------------------------

CONSTITUTIONAL PROVISION INVOLVED

The Fifth Amendment to the United States Constitution provides, in pertinent part:

nor shall any person be subject for the same

offense to be twice put in jeopardy of life or

limb . . .

------------------------------------------------------------------

STATEMENT OF THE CASE

This petition is filed to request the issuance of a

writ of certiorari from the decision of the Supreme

Court of Pennsylvania entered September 4, 2019,

which denied discretionary review of a published decision of the Superior Court of Pennsylvania entered

December 24, 2018 affirming the denial of the Commonwealth’s motion to reinstate charges of Murder in

the Third Degree and Aggravated Assault. (App. 1, 24).

William R. Landis, Jr., Respondent, was granted a new

murder trial upon collateral review. (App. 4). The Commonwealth petitioned the trial court to reinstate

charges for Murder in the Third Degree and Aggravated Assault, as Landis was previously convicted of

Murder in the First Degree and the proposed charges

were lesser included offenses. (App. 5). The trial court

denied the Commonwealth’s motion, reasoning that

because Landis was acquitted of these lesser included

offenses in the first trial, a second trial on these

charges would constitute a double jeopardy violation.

(App. 5, 15-17). The Superior Court of Pennsylvania affirmed this decision on December 24, 2018, and the

Commonwealth’s subsequent petitions for further appellate review were denied. (App. 1, 14, 24). It is the

decision of the Superior Court from which the Commonwealth files the instant petition.

Procedural History

Following his conviction for Murder in the First

Degree for shooting his wife Sharon Landis and subsequent unsuccessful direct appeal, William R. Landis,

Respondent (hereinafter “Landis”), filed a petition for

collateral relief under the Post-Conviction Relief Act,

42 Pa. C.S.A. § 9541, et seq. (“PCRA”). (App. 4). The

petition alleged, inter alia, that trial counsel was ineffective for failing to present the testimony of a psychiatrist who would have testified that Landis lacked

the requisite specific intent for Murder in the First Degree as a result of voluntary intoxication. (App. 4). The

PCRA court granted relief in the form of a new trial

and the Commonwealth appealed. (App. 4). In an unpublished memorandum dated November 30, 2016, a

panel of the Superior Court of Pennsylvania denied

the Commonwealth’s appeal and affirmed the PCRA

court order granting Landis a new trial. (App. 4). Subsequent petitions for discretionary review were denied.

(App. 20). Following the return of the record, the Commonwealth filed a motion to reinstate the charge of

Murder in the Third Degree and two counts of Aggravated Assault on August 28, 2017. (App. 5, 20). The

trial court denied the Commonwealth’s motion by an

order dated October 24, 2017. (App. 5, 15). In that order, the trial court ruled that reinstatement of Murder

in the Third Degree on retrial is barred by double jeopardy and/or laches, as Landis “has not waived his [double jeopardy] protection,” concluding that Landis “will

be tried on the sole count of Murder of the First Degree.” (App. 15).

The Commonwealth filed a timely appeal. Following submission of briefs by the parties, a panel of the

Superior Court of Pennsylvania affirmed the order of

the lower court in a published opinion dated December

24, 2018. (App. 1). A subsequent Petition for Reconsideration En Banc was denied on January 7, 2019, and

the Supreme Court of Pennsylvania denied discretionary review on September 4, 2019. (App. 14, 24).

Factual History

On October 28, 2009, at approximately 9:20 p.m.,

Berks County Radio dispatched Spring Township Police officers to the residence of Landis to investigate a

possible shooting. (App. 1-2). A man had called to report that a woman had been shot. (App. 2). It was later

discovered that the caller was Landis. (App. 2). Landis’

wife, Sharon Landis, was found dead from a gunshot

wound to the head on the second floor of the residence.

(App. 2). The victim also had other nonfatal gunshot

wounds on her body. (App. 2). While performing a clearing operation of the residence, officers discovered Landis barricaded in the basement. (App. 2). Landis had a

knife and two guns in his possession and threatened to

shoot anyone who came down into the basement. (App.

2). While in the basement, Landis made several telephone calls to family and friends, and he mentioned his

dead wife. (App. 2). Landis became increasingly intoxicated as the evening progressed. (App. 2). The Berks

County Emergency Response Team was called to the

scene, and Landis was eventually taken into custody

after several hours. (App. 2).

------------------------------------------------------------------

REASONS FOR GRANTING THE WRIT

The Commonwealth of Pennsylvania seeks discretionary review of the Opinion of the Superior Court of

Pennsylvania on the grounds that the Superior Court

incorrectly decided the double jeopardy issue by finding that a not guilty verdict for the lesser offense of

Murder in the Third Degree constituted an acquittal,

even though the defendant was convicted of the

greater offense of Murder in the First Degree and that

conviction was affirmed on appeal. This decision is inconsistent with relevant precedent of this Honorable

Court in Blueford v. Arkansas, 566 U.S. 599, 611-612

(2012) and Poland v. Arizona, 476 U.S. 147 (1986). In

addition, the factual scenario presented in the instant

case – the effect of a conviction for a greater murder

but an acquittal for a lesser included murder – has not

yet been addressed by this Honorable Court’s double

jeopardy jurisprudence. Thus the Superior Court decision on this issue also involved an important issue of

federal law that has not been, but should be, settled by

this Honorable Court.

In addition, the Commonwealth of Pennsylvania

seeks discretionary review of the Opinion of the Superior Court of Pennsylvania on the grounds that the Superior Court decision involved an important issue of

federal law that has not been, but should be, settled by

this Honorable Court. The Commonwealth submits

that Landis effectively waived his right to a double

jeopardy claim for the offense of Murder in the Third

Degree by seeking a defense of diminished capacity by

voluntary intoxication upon retrial, which under Pennsylvania law, reduces Murder in the First Degree to

Murder in the Third Degree. The effective waiver of the

right to double jeopardy protection in this scenario has

not been addressed by this Honorable Court, and thus

this issue also presents a case of first impression.

For the foregoing reasons, the instant petition for

writ of certiorari should be granted.

A. THE REINSTATEMENT OF THE CHARGE

OF MURDER IN THE THIRD DEGREE AFTER

A NOT GUILTY VERDICT IS PERMITTED

BY THE DOUBLE JEOPARDY CLAUSE, AS

LANDIS WAS CONVICTED OF THE GREATER

OFFENSE OF MURDER IN THE FIRST DEGREE.

On appeal in state court, the Commonwealth argued that the not guilty verdict for Murder in the Third

Degree was erroneous, as Landis was convicted of the

greater offense of Murder in the First Degree and this

conviction was affirmed on appeal. (App. 1, 7). However, the state court found that the reinstatement of

Murder in the Third Degree was barred by double jeopardy. (App. 8). Because the state court decision elevated form over substance, this decision is inconsistent

with the previous decisions of this Honorable Court in

Blueford v. Arkansas, 566 U.S. 599, 611-612 (2012) and

Poland v. Arizona, 476 U.S. 147 (1986). In addition, the

issue of the effect of the Double Jeopardy Clause on an

acquittal of a lesser included murder, when the defendant has been convicted for a greater murder, has not

yet been addressed by this Honorable Court.

Resolution of the instant case turns on the interpretation of the Double Jeopardy Clause contained

within the Fifth Amendment to the United States Constitution, which states in relevant part as follows:

“no person shall . . . be subject for the same

offence to be twice put in jeopardy of life or

limb.”

U.S. Const. amend. V. Long-standing precedent dictates that once a defendant has been placed in jeopardy for an offense, and jeopardy ends with respect to

that offense, the defendant may not be tried or punished a second time for the same offense. See

Sattazahn v. Pennsylvania, 537 U.S. 101, 106 (2003)

(citing North Carolina v. Pearce, 395 U.S. 711, 717

(1969)). This rule barring retrial is confined to cases

where the prosecution’s failure to meet its burden is

clear and a second trial would merely afford “the prosecution another opportunity to supply evidence that it

failed to muster in the first proceeding.” See Commonwealth v. Vogel, 461 A.2d 604, 610 (Pa. 1984) (quoting

Burks v. United States, 437 U.S. 1, 11 (1978)) (further

citation omitted). “This prohibition [ ] prevents the

State from honing its trial strategies and perfecting its

evidence through successive attempts at conviction.

Repeated prosecutorial sallies would unfairly burden

the defendant and create a risk of conviction through

sheer governmental perseverance.” See Vogel, 461 A.2d

at 610 (quoting Green v. United States, 355 U.S. 184,

187-188 (1957)).

However, once a defendant appeals from a conviction, and he is successful in having the conviction

set aside, then this Honorable Court previously held

that jeopardy has not terminated. See Sattazahn,

537 U.S. at 106 (citing Stroud v. United States, 251

U.S. 15 (1919)). “[T]he original conviction has, at the

defendant’s behest, been wholly nullified and the slate

wiped clean.” See Pearce, 395 U.S. at 721. Accordingly,

if a defendant is convicted of capital murder but sentenced to life imprisonment, and he is then awarded a

new trial on appeal, the defendant can be subject to the

death penalty upon retrial. See Sattazahn, 537 U.S. at

106 (citing Stroud, supra).

Unlike convictions, acquittals terminate the initial jeopardy, thus subjecting a defendant to a

postacquittal factfinding process regarding guilt or

innocence violates the Double Jeopardy Clause. See

Smalis v. Pennsylvania, 476 U.S. 140, 145 (1986) (citing

Justices of Boston Municipal Court v. Lydon, 466 U.S.

294 (1984)).

In ascertaining whether an acquittal has occurred, “form is not to be exalted over substance.” Sanabria v. United States, 437 U.S.

54, 66, 98 S. Ct. 2170, 57 L. Ed. 2d 43 (1978).

Rather, we ask whether the factfinder has

made “a substantive determination that the

prosecution has failed to carry its burden.”

Smith v. Massachusetts, 543 U.S. 462, 468, 125

S. Ct. 1129, 160 L. Ed. 2d 914 (2005).

See Blueford v. Arkansas, 566 U.S. 599, 611-612 (2012).

But see Evans v. Michigan, 568 U.S. 313, 320 (2013)

(“an acquittal due to insufficient evidence precludes retrial, whether the court’s evaluation of the evidence

was ‘correct or not,’ [United States v.] Martin Linen,

430 U.S. [564], at 571, 97 S. Ct. 1349, 51 L. Ed. 2d 642

[1977], and regardless of whether the court’s decision

flowed from an incorrect antecedent ruling of law”).

Accordingly, jeopardy terminates when a determination as been made that the evidence is insufficient to

establish the defendant’s factual guilt. See Blueford,

566 U.S. at 612 (citing Smalis, supra, 476 U.S. at 144).

For double jeopardy purposes, the instant case is

factually unique. In his first trial, Landis was found

guilty of Murder in the First Degree, but found not

guilty of Murder in the Third Degree. (App. 3). Under

Pennsylvania law, this is legally impossible, as Murder

in the Third Degree is a lesser included offense of Murder in the First Degree. See Commonwealth v. Feaser,

723 A.2d 197, 201 (Pa. Super. 1999). However, the verdict was recorded, and this conviction was affirmed on

direct appeal. (App. 4). On collateral review, Landis

was successful in obtaining a new trial based on a

claim that trial counsel was ineffective for failing to

present a defense of diminished capacity by voluntary

intoxication. (App. 4). Under Pennsylvania law, a successful defense of diminished capacity by voluntary intoxication will reduce Murder in the First Degree to

Murder in the Third Degree by negating the specific

intent to kill, as discussed in full below. See Commonwealth v. Spotz, 47 A.3d 63, 90 (Pa. 2012); 18 Pa. C.S.A.

§ 308. The Commonwealth then sought the reinstatement of the charge of Murder in the Third Degree consistent with the anticipated defense at the upcoming

retrial. (App. 5, 20). This motion was denied on double

jeopardy grounds, and that decision was affirmed on

appeal by the Superior Court of Pennsylvania. (App.

15, 1). The Supreme Court of Pennsylvania declined to

hear the issue. (App. 24).

While research has failed to reveal precedent from

this Honorable Court under similar circumstances –

where the defendant is convicted of the higher offense

but mistakenly acquitted of the lesser included offense1 – the decision in Poland v. Arizona, 476 U.S. 147

(1986) is instructive. In Poland, the defendant was convicted of capital murder and sentenced to death based

upon a judicial finding of the existence of two aggravating factors: (1) the murder was committed for pecuniary gain and (2) the murder was committed in an

“especially heinous, cruel or depraved manner.” See Poland, 476 U.S. at 149. On defendant’s appeal the conviction was reversed, and the Supreme Court made a

specific finding that the evidence was insufficient to

support the second aggravating circumstance. See Poland, 476 U.S. at 150. On retrial, the defendant was

again convicted of capital murder, both aggravating

factors were found to exist, as well as a third aggravator based upon a prior violent felony conviction, and

the defendant was again sentenced to death. See Poland, 476 U.S. at 150.

In examining the challenge to the death sentence

based upon the Double Jeopardy Clause, this Honorable Court cited the general rule:

Notably, the state court disapproves of any practice where

a defendant may be acquitted of lesser degrees of murder but convicted of higher degrees of murder. See Commonwealth v. Terry,

521 A.2d 398 (Pa. 1987), cert. denied, 482 U.S. 920 (1987), overruled on other grounds, Commonwealth v. Frey, 554 A.2d 27 (Pa.

1989), cert. denied, 494 U.S. 1038 (1990). (App. 11).

when a defendant obtains reversal of his conviction on appeal, “the original conviction has

been nullified and ‘the slate wiped clean.’

Therefore, if the defendant is convicted again,

he constitutionally may be subjected to whatever punishment is lawful, subject only to the

limitation that he receive credit for time

served.” [Bullington v. Missouri, 451 U.S. 430,]

442 [1981] (quoting North Carolina v. Pearce,

395 U.S. 711, 721 (1969)).

See Poland, 476 U.S. at 152. However, an exception to

this general rule has been recognized in those instances where the prosecution has failed to present

sufficient evidence. See Poland, 476 U.S. at 152 (citing

Bullington, 451 U.S. at 443). Thus the relevant inquiry

was whether the sentencing judge or reviewing court

found that the prosecution had not proven its case, and

thus the defendant was “acquitted” of the death penalty. See Poland, 476 U.S. at 154 (citing Arizona v.

Rumsey, 467 U.S. 203, 209-210 (1984)).

While the defendant urged this Honorable Court

to hold that the failure to find that the evidence was

sufficient for one aggravating circumstance was tantamount to an acquittal for double jeopardy purposes,

this Honorable Court refused to do so. See Poland, 476

U.S. at 155. “Bullington indicates that the proper inquiry is whether the sentencer or reviewing court has

‘decided that the prosecution has not proved its case’

that the death penalty is appropriate.” Id. (emphasis in

original). Accordingly, the failure to find the evidence

insufficient to support the existence of one aggravating

circumstance did not acquit the defendant of the death

penalty, and the Double Jeopardy Clause was not violated when the same aggravating factors were sought

and found upon retrial. See Poland, 476 U.S. at 156157.

In light of the above precedent, the decision of the

state court is respectfully incorrect. While the jury did

find Landis not guilty of Murder in the Third Degree,

they did convict Landis of the greater offense of Murder in the First Degree. (App. 3). Notably, this conviction was affirmed on direct appeal. (App. 4). Because

the evidence was sufficient to support the elements for

the higher degree of murder, the evidence was necessarily sufficient to support the elements of the lesser

included degree of murder as well, in spite of the verdict. To find that the recordation of an erroneous not

guilty verdict constitutes an acquittal for double jeopardy purposes, when the evidence was sufficient to

support the conviction for this offense, elevates form

over substance – a process which was specifically rejected in Blueford, supra.

Like Poland, the elements of Murder in the Third

Degree were part of the greater offense of Murder in

the First Degree, under Pennsylvania law. Accordingly,

the failure to convict on the lesser murder did not invalidate the conviction for the greater murder, as evidenced by the affirmation of the latter conviction on

direct appeal. (App. 4). By analogy, because there has

been no acquittal of the greater murder, there is no

double jeopardy bar to seeking a conviction for the

lesser murder offense upon retrial. This argument is

further supported by Landis’ expressed intent to seek

a diminished capacity defense by voluntary intoxication upon retrial, which if successful, would reduce the

mens rea from Murder in the First Degree to Murder

in the Third Degree. Because Murder in the Third Degree is a lesser included offense of Murder in the First

Degree, and because the evidence was sufficient to support a conviction for Murder in the Third Degree regardless of the erroneous verdict, the state court

respectfully erred in finding that the Double Jeopardy

Clause bars the reinstatement of Murder in the Third

Degree. Accordingly, the decision of the state court

should be reversed, and the case remanded for retrial

including the charge of Murder in the Third Degree.

B. IN ADDITION, LANDIS EFFECTIVELY

WAIVED HIS CLAIM TO DOUBLE JEOPARDY PROTECTION FOR MURDER IN THE

THIRD DEGREE BY SEEKING A DEFENSE

OF DIMINISHED CAPACITY BY VOLUNTARY

INTOXICATION UPON RETRIAL.

On appeal in state court, the Commonwealth

raised a second issue: whether the trial court erred by

ruling that the defendant is permitted to present a diminished capacity defense where the Commonwealth

is barred from retrying Landis on Murder in the Third

Degree. (App. 5). In its opinion, the panel found that

discussion of this issue is premature, instead deferring

to the trial court to decide whether Landis may present

evidence of his diminished capacity on retrial. (App.

13). However, because Pennsylvania law dictates that

a successful diminished capacity defense by voluntary

intoxication reduces Murder in the First Degree to

Murder in the Third Degree, the presentation of this

defense in the instant case effectively waives any double jeopardy claim for the retrial on the charge of Murder in the Third Degree. This is a novel issue that has

not yet been addressed by this Honorable Court.

In its Order dated October 24, 2017, the trial court

ruled that reinstatement of Murder in the Third Degree on retrial is barred by double jeopardy and/or

laches, as Landis “has not waived his [double jeopardy]

protection,” concluding that Landis “will be tried on the

sole count of Murder of the First Degree.” (App. 15-16).

Landis was granted a new trial after the trial court

found counsel ineffective for failing to pursue a diminished capacity defense. (App. 4). Although his second

trial has not yet commenced, Landis provided notice of

his intent to advance a defense of diminished capacity

due to voluntary intoxication.

“A defense of diminished capacity, whether

grounded in mental defect or voluntary intoxication, is

an extremely limited defense available only to those

defendants who admit criminal liability but contest

the degree of culpability based upon an inability to formulate the specific intent to kill . . . A diminished capacity defense does not exculpate the defendant from

criminal liability entirely, but instead negates the element of specific intent. For a defendant who proves a

diminished capacity defense, first-degree murder is

mitigated to third-degree murder.” Commonwealth v.

Spotz, 47 A.3d 63, 90 (Pa. 2012).

In Pennsylvania, it is well-established that a defendant who wishes to pursue a diminished capacity

defense must admit criminal liability for third-degree

murder. See Commonwealth v. Williams, 980 A.2d 510,

527 (Pa. 2009). The Commonwealth posits that the notice of a diminished capacity defense operates as a

waiver of any double jeopardy protection for third-degree murder, should any protection actually apply. By

advancing a diminished capacity defense by voluntary

intoxication, Landis is asking to be convicted of Murder in the Third Degree.

As the panel noted in its opinion, under Commonwealth v. Larkins, 829 A.2d 1203 (Pa. Super. 2003), appeal denied, 870 A.2d 321 (Pa. 2005), waiver of double

jeopardy protections on retrial is theoretically possible.

(App. 8). While this Honorable Court has previously

held that an appeal requesting a new trial does not

function as a waiver of the right to be free from double

jeopardy, see North Carolina v. Pearce, supra, 395 U.S.

at 727 (citing Green v. United States, 355 U.S. 184, 191193 (1957)), the Commonwealth has been unable to locate precedent from this Honorable Court where the

defendant is requesting a conviction for a charge for

which he had previously been acquitted. In that respect, the Commonwealth argues that the decision in

Larkins properly resolves this issue and serves as persuasive authority for this Honorable Court. See Commonwealth v. Bostic, 456 A.2d 1320, 1322 (Pa. 1983)

(“At least in the ‘multiple punishments’ context, it

seems clear that the double jeopardy proscription embodied by the Fifth Amendment of the United States

Constitution is coextensive with that embodied by Article I, section 10 of the Pennsylvania Constitution.”).

Under Larkins, where double jeopardy protections

may actually harm a defendant’s interests, he or she

may waive them. See Larkins, 829 A.2d at 1206. However, the state court concluded that “unlike Larkins,

this case does not present a scenario in which [the

Defendant] would benefit from waiving his double

jeopardy rights . . . ” (App. 8). The Commonwealth respectfully disagrees, as Landis has stated his intent to

pursue a defense that results in a waiver of his double

jeopardy protection for his own benefit.

In Larkins, just as in the instant matter, the defendant was convicted of first-degree murder and acquitted of third-degree murder in his first trial, then

granted collateral relief in the form of a new trial. See

Larkins, 829 A.2d at 1204. At his second trial, Larkins’

request for a jury charge on third-degree murder and

voluntary manslaughter was denied on double jeopardy grounds. See Larkins, 829 A.2d at 1204. On appeal, the state court concluded that Larkins could have

waived his double jeopardy protection. See Larkins,

829 A.2d at 1204. Notably, the Larkins court did not

suggest that it would have been proper to instruct the

jury as to third-degree murder and treat a guilty verdict on that count as a legal nullity. To the contrary,

Larkins suggests that waiver of double jeopardy protections was not only possible, but required if the defendant wished to have the jury instructed on thirddegree murder. See Larkins, 829 A.2d at 1205-1206

(emphasis added). Absent such a waiver, the panel in

Larkins found that the trial court properly refused to

charge the jury on the lesser included offenses and affirmed the judgment of sentence. See Larkins, 829 A.2d

at 1205-1206.

In the instant matter, Landis has stated his intention to pursue a defense which concedes guilt for the

lesser-included offense of Murder in the Third Degree

despite his previous acquittal for that offense. Thus,

Larkins and the instant matter are indistinguishable:

both cases involve a defendant who stands to benefit

from conviction for a lesser-included offense despite

the fact that he was previously acquitted for that offense. Moreover, both cases involve scenarios where a

defendant would prefer to have the jury instructed as

to Murder in the Third Degree without actually being

exposed to conviction for that offense.

Larkins asked the trial court to instruct the jury

on third-degree murder but treat a guilty verdict to

that count as a “finding of not guilty,” thus ending the

case in his favor. See Larkins, 829 A.2d at 1206. Landis

intends to make the same request. He has filed notice

of his intent to pursue a defense in which he will ask

the jury to find him guilty of Murder in the Third Degree while simultaneously arguing that despite his request, he cannot be found guilty of the same offense

because of double jeopardy. Such an absurd scenario

has no basis in law and was roundly rejected by the

Larkins court when it found that, despite his request

for a jury charge on third-degree murder, the record

suggested that Larkins had been unwilling to waive

his double jeopardy rights for that offense. See Larkins,

829 A.2d at 1205-1206.

In light of this analysis, the state court respectfully misapprehended the effect of the trial court’s order. The trial court ruled in effect that, absent an

express waiver of double jeopardy protections by Landis, reinstatement of Murder in the Third Degree is

barred on retrial. (App. 15). This ruling leaves the door

open for Landis to advance a defense in which he concedes he is guilty of Murder in the Third Degree for

killing his wife without actually exposing himself to

conviction for that offense. This is exactly the scenario

that Larkins rejected, finding no error where the trial

court refused to instruct the jury on third-degree murder absent a waiver of double jeopardy protections and

reinstatement of that offense. See Larkins, 829 A.2d at

1205-1206. Here, like Larkins, despite an unwillingness to expressly waive his double jeopardy rights, the

notice of intent to pursue a diminished capacity defense should operate as a waiver of those rights.

As a practical matter, the state court decision creates a significant problem on retrial. Given that Landis

has stated his intention to advance an involuntary intoxication defense but refuses to expressly waive his

double jeopardy protection for Murder in the Third Degree, there are only two conceivable approaches to instructing the jury on how it is to complete the verdict

slip. Under the first possible scenario, the jury will be

instructed on the law of diminished capacity by voluntary intoxication, and they will have the option of finding Landis guilty of Murder in the Third Degree on the

verdict slip. However, should the jury return a guilty

verdict on this offense, the conviction would be a legal

nullity because, according to the trial court, the charge

is barred by double jeopardy. This scenario would deceive the jury into believing they just convicted a man

who admits shooting his wife with malice when, unbeknownst to them, they actually just rendered a full acquittal.

The other possible option would be to remove Murder in the Third Degree from the verdict slip, thus ignoring the law regarding diminished capacity as a

defense, but allow Landis to present evidence of diminished capacity by voluntary intoxication. Under this

approach, the jury would be misled into believing that

under our law, if they believe Landis lacked a specific

intent to kill due to voluntary intoxication, he is not

guilty of any crime. With either approach, the jury will

be misled. In the first scenario described above, it will

be deceived as to the effect of its verdict. Under the second scenario, it will be misled as to the law of this Commonwealth. Under Larkins, which states that double

jeopardy can be waived like most other constitutional

rights, treating the voluntary intoxication defense as a

waiver to double jeopardy as to Murder in the Third

Degree alleviates these practical concerns created by

the problematic ruling of the state court.

Admittedly, there are no prior decisions of this

Honorable Court on the issue of whether a voluntary

intoxication defense conceding guilt for Murder in the

Third Degree operates as a waiver to any double jeopardy protections that may exist as to Murder in the

Third Degree on retrial. Moreover, despite the proclamation in Larkins that double-jeopardy waiver is possible, there is a scant authority on the subject.

Therefore, we respectfully pray this Honorable Court

grant the instant petition for a writ of certiorari to address this important issue of first impression.

------------------------------------------------------------------

CONCLUSION

For the foregoing reasons, the Commonwealth of

Pennsylvania respectfully requests this Honorable

Court to grant this petition for a writ of certiorari.

Respectfully submitted,

JOHN T. ADAMS

District Attorney

ALISA R. HOBART

Assistant District Attorney

Counsel of Record

BERKS COUNTY DISTRICT

ATTORNEY’S OFFICE

633 Court Street

Reading, PA 19601

(610) 478-6000

ahobart@countyofberks.com

Counsel for Petitioner

Commonwealth of Pennsylvania

Dated: December 3, 2019

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.