Opposition Brief — Smalis v. Pennsylvania

f a

Supreme Court, U.S

FILED

(o OCT * 1985

NO. 85-227 JOSEPH F. SPANIOL, .

CLERK

oma:

IN THE

SUPREME COURT OF THE UNITED STATES

DESPINA SMALIS and ERNEST SMALIS,

Petitioners

vs.

COMMONWEALTH OF PENNSYLVANIA,

Respondent |

On Petition for a Writ of Certiorari

to the Supreme Court of Pennsylvania

BRIEF FOR THE COMMONWEALTH

OF PENNSYLVANIA IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF PENNSYLVANIA

Robert E. Colville

District Attorney of

Allegheny County

Robert L. Eberhardt

Deputy District

Attorney for Law

Office of the

District Attorney

401 Allegheny County Courthouse

Pittsburgh, PA 15219

(412) 355-4534

COUNSEL FOR RESPONDENT

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QUESTION PRESENTED FOR REVIEW

I. Whether the Pennsylvania Supreme

Court correctly held that double jeopardy

principles do not prohibit the long-recog-

nized right of the Commonwealth to appeal

the grant of a defense demurrer in light

of the special nature of a demurrer under

Pennsylvania practice as a pure question

of law?

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TABLE OF CONTENTS

PAGE

QUESTION PRESENTED FOR REVIEW....... a) 58

TABLE OF CONTENTS............--- seenpe 0

TABLE OF CITATIONS.........2+--0+- haan tal

OPINIONS BELOW.........0eeeceeceeeeees 1

STATEMENT OF THE JURISDICTION........- 2

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED..........++-: 2

STATEMENT OF THE CASE........+++eeeee: 3

REASONS FOR DENYING THE WRIT.........- 7

Ny ib vid wid'v vcaecccce. 30

TABLE OF CITATIONS

PAGE(S)

Arizona v. Manypenny,

451 U.S. 232, rehg. den. 10,

452 U.S. 955 PERE Dicavacbede 15, 16

Arizona v. Washington,

434 U.S. 497 | ie 24, 25

Breed v. Jones,

431 U.8. S19 (1978). cccccces 27

Commonwealth v. Bosurgi,

411 Pa. 56, 190

Ac BG FO4 (USES) occcccccccecces 14

Commonwealth v. Kelly,

237 Pa. Super. 468,

352 A.2d 127 (1975), alloc.

den. February 23, 1976....... 11

Commonwealth v. Smalis,

Pa. Super. , 480

Sy 6: ee 22

Commonwealth v. Starks,

490 Pa. 336, 416

BeBe GOS Ce ssncdccccccsecs 29

Commonwealth v. White,

482 Pa. 197, 393

A.2d 447 Phe. eseteee eke 14

- iii -

- ob ee och nner a

TABLE OF CITATIONS, CONTINUED

Commonwealth v. Wimberly,

488 Pa. 169, 411.

A.2d 1193 (1979) rearg.

den. March 25, 1980........--.

Commonwealth v. Zoller,

Pa. , 490

A. 2d 394 (1988S). ccccccccccee

Cox Broadeasting Corp. v. Cohn,

420 U.S. 469 (1975)......466-

Huffman v. Pursue, Ltd.,

420 U.S. 592 (1978) ..cccccees

Illinois v. Somerville,

410 U.S. 458 (1973)......46..-

Justices of Boston Municipal

Court v. Lydon,

__ U.S. , 104

S.Ct. 1808 (1984). cccccccces

North Carolina v. Pearce,

396 U.S. 711 (1969)......... ;

North Dakota St. Bd. of Pharm. v.

Synder's Drug Stores, Inc.,

486 G.8. SRE CRBS) occ ccceces

Sanabria v. United States,

437 U.S. 54 I Ria 4 me © 0 64.6.6

United States v. Ball,

163 U.S. 662 (1896)..........

PAGE(S)

11, 19

10

28

14, 18

23, 27

21

28, 29

18

8, 26

TABLE OF CITATIONS, CONTINUED

PAGE(S)

United States v. Martin 7

Linen Supply Company, S, 9,

430 U.S. 564 (1977).......... 10, 14

United States v. Morrison,

429 U.S. 1 < ) RS ere 14

7;

United States v. Scott, 8, 9,

437 U.S. 332 (1978).......... 14, 20

United States v. Wilson,

GO8 Dib. BSS CAPT ep cscveccess 21

CONSTITUTION

United States Constitution,

Amendment Wasédeown eee ess 6 awe 2, 3

RULES AND STATUTES

Federal Rules of Criminal

Procedure, Rule 29.......e06. 10

Federal Rules of Criminal 9,

Procedure, Rule 29(c)........ 10, 15

Pennsylvania Rules of Criminal

Procedure, Rule 1124......... 16

AD A ee TT hi at as ht tl sh tienen giilon

TABLE OF CITATIONS, CONTINUED

PAGE(S)

RULES AND STATUTES, CONTINUED

Pennsylvania Rules of Criminal

Procedure, Rule 1124(a)...... 16

Pennsylvania Rules of Criminal

Procedure, Rule 1124(a)(1)... 16

Pennsylvania Rules of Criminal

Procedure, Rule 1124(a)(2)... 16, 17

Pennsylvania Rules of Criminal

Procedure, Rule 1124(a)(3)... 17

Pennsylvania Rules of Criminal oo

Procedure, Rule 1124(a)(4). » off 17

MISCELLANEOUS AUTHORITY

Cooley, Blackstone's

Commentaries (4th Ed.)....... 11, 12

- vi -

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No. 85-227

IN THE

SUPREME COURT OF THE UNITED STATES

DESPINA SMALIS and ERNEST SMALIS,

Petitioners

V.

COMMONWEALTH OF PENNSYLVANIA,

Respondent

BRIEF FOR THE COMMONWEALTH

OF PENNSYLVANIA IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF PENNSYLVANIA

OPINIONS BELOW

The Opinion of the Pennsylvania Su-

preme Court, which is attached to the Pe-

tition for Writ of Certiorari filed by the

petitioners, is reported at _ Pa. __,

490 A.2d 394 (1985). The Opinion of the

Superior Court of Pennsylvania is reported

at 331 Pa. Super. 307, 480 A.2d 1046

(1984).

STATEMENT OF JURISDICTION

Petitioners invoke this Court's jur-

isdiection under 28 U.S.C. Section 1257(3).

CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED

U.S. CONSTITUTION

AMENDVENT V

No person shall be held to answer

for a eapital, or ocneres se infamous

crime, unless on a presentment or in-

diectment of a Grand Jury, except in cases

arising in the land or naval forces, or in

the Militia, when in actual service in

time of War or public danger; nor shall

any person be subject for the same offense

to be twice put in jeopardy of life or

limb; nor shall be compe:iied in any crim-

inal case to be a witness against himself,

nor be deprived of life liberty, or prop-

erty, without due process of law; nor

shall private property be taken for publie

use, without just compensation.

STATEMENT OF THE CASE

Based upon a presentment of an

investigating grand jury, petitioners,

husband and wife, were each charged with

criminal homicide (two counts), recklessly

endangering another person (two counts),

causing catastrophe, and failure to pre-

vent catastrophe. Petitioner Despina

Smalis was also charged with securing exe-

cution of documents by deception. The

charges arose out of a fatal fire that

occurred February 12, 1979 in a building,

owned by petitioners, which contained a

bar-restaurant and seven dwelling units.

Trial without a jury began on Nov-

embe¥“12, 1980 in the Court of Common

Pleas of Allegheny County, Pennsylvania.

At the close of the Commonwealth's case,

on December 19, 1980, the trial court

sustained demurrers with respect to the

charges of murder, voluntary manslaughter,

and causing catastrophe as to both peti-

tioners. Demurrers were denied as to the

remaining charges.

An appeal to the Pennsylvania Su-

perior Court was then filed from the

orders Sustaining the demurrers. Re-

consideration of the orders was also

sought. The trial court granted recon-

sideration but reaffirmed its originai

orders on January 8, 1981. The Common-

wealth then appealed from the reaffirm-

ance of the orders. The trial court, by

order entered January 9, 1981, granted a

Commonwealth motion to stay further pro-

ceedings on the remaining charges pending

disposition of the appeals. The Superior

Court consolidated the appeals.

A Motion to Quash Appeal was filed

in the Superior Court contending that ap-

pellate review was barred by the Double

Jeopardy Clause. On May 11, 1981 the Su-

perior Court denied that motion without

prejudice to raise the issue of appeal-

ability in the brief on the merits.

On July 8, 1983, a panel of the

Superior Court quashed the appeals. on

double jeopardy grounds. The Commonwealth

suecessfully sought reargument before the

Superior Court of Pennsylvania, sitting en

bane which, with one judge dissenting, on

June 29, 1984, entered an Order quashing

the Commonwealth's appeal.

The Supreme Court of Pennsylvania

granted the Commonwealth's request for

review and consolidated the case with

Commonwealth v. Zoller, wherein the Su-

perior Court had rendered a decision (re-

ported at 318 Pa. Super. 402, 465 A.2d 16)

quashing a similar appeal on the basis of

the panel decision in the instant case.

After briefing and argument, the Pennsyl-

vania Supreme Court, on March 29, 1985,

reversed the Superior Court decisions

quashing the appeals, remanded the instant

ease to the Superior Court for considera-

tion of the merits of the appeals, and

remanded the Zoller case to the trial

court for a new trial, the Superior Court

having earlier found that the order sus-

taining the demurrer in that case was

erroneously entered. Petitioners filed an

Application for Reargument, which the

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i le tw ee inal

Pennsylvania Supreme Court denied = on

June 11, 1985.

Thereupon, petitioners filed a Pe-

tition for Writ of Certiorari to this Hon-

orable Court.

REASONS FOR DENYING THE WRIT

Petitioners request discretionary

review of a decision of the Supreme Court

of Pennsylvania holding that the Doubie

Jeopardy Clause is not offended by recog-

nizing the Commonwealth's long-standing

right to appeal a trial court's order

granting a demurrer, since said order is

"Durely a question of law" unrelated to a

defendant's factual guilt or innocence;

and is not prohibited by this Honorable

Court's decisions in United States vv.

Scott, 437 U.S. 332 (1978); and United

States v. Martin Linen Supply Company, 430

U.S. 564 (1977).

"(T]he most fundamental rule in the

history of double jeopardy jurisprudence

has been that ‘lal verdict of acquittal

. . « @eould not be reviewed, on error or

otherwise, without putting [a defendant]

twice in jeopardy, and thereby violating

the Constitution.'" United States V.

Seott, supra, at 90, quoting United States

vy. Martin Linen Supply Company, supra, at

571; United States v. Ball, 163 U.S. 662,

671 (1896).

In defining “acquittal” this Court

has stated "[{a] defendant is acquitted

only when ‘the ruling of the judge, what-

ever its label, actually represents 4a

resolution [in the defendant's favor],

correct or not, of some or all of the

factual elements of the offense eharg-

ed.'" Seott, supra, at 97, quoting Martin

Linen Supply Company, supra, at 571.

Se ee Oe

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ee cae ln ll

In Martin Linen Supply Company, a

Federal District Court Judge entered a

Judgment of Acquittal pursuant to Fed. R.

Crim. P. 29(¢), after a “hopelessly dead-

locked" jury was dismissed. This Court,

in holding that the Judgment of Acquitta!

was not appealable stated:

There can be no question that the

judgments of acquittal entered

here by the District Court were

‘acquittals' in substance as well

as form. The District Court

plainly granted the Rule 29(c)

motion on the view that the Gov-

ernment had not proved facts

constituting criminal contempt.

The court made only too clear its

belief that the prosecution was

'the weakest [contempt case that]

I've ever seen.' 534 F.2d, at

587. In entering the judgments

of acquittal, the court also re-

corded its view that ‘the Govern-

ment has failed to prove the ma-

terial allegations beyond a rea-

sonable doubt' and that ‘'defen-

dant should be found "not guil-

ty."'

Thus, it is plain that the Dis-

triet Court in this case evalu-

ated the Government's evidence

and determined that it was legal-

ly insufficient to sustain a

eonviction.

Id., at 572, (footnotes omitted) (emphasis

added). But ef. Arizona v. Manypenny, 451

U.S. 232, rehg. den. 452 U.S. 955 (1981)

(State has a right to appeal a post-

guilty-verdict judgment of acquittal, en-

tered pursuant to Fed. R. Crim. P. 29(c),

in an action removed to Federal Court,

where such an appeal was authorized by

state law.). /

The Commonwealth respectfully sub-

mits that a demurrer, as it exists in

Pennsylvania Criminal Procedure, is not

the functional equivalent of a judgment of

acquittal under Fed. R. Crim. P. 29.

Rather, as the Pennsylvania Supreme Court

held in Commonwealth v. Zoller, Pa.

; , 490 A.2d 394, 401 (1985)

a 88 «

(citations omitted), "(Bly definition, a

demurrer is not a factual determination

a ae '{t]he object of a demurrer to

the evidence is to ascertain the law on an

admitted state of facts.' . . . Thus, the

question before the trial judge in ruling

on a demurrer remains purely one of

law." A trial judge may not pass upon the

eredibility of Commonwealth witnesses at

the demurrer stage of the proceedings,

Commonwealth v. Wimberly, 488 Pa. 169, 411

A.2d 1193 (1979), rearg. den. March 25,

1980, nor may he engage in weighing the

Commonwealth's evidence. Commonwealth v.

Kelly, 237 Pa. Super. 468, 352 A.2d 127

(1975), alloc. den. February 23, 1976.

The above-described motion for a de-

murrer to the evidence is a common law

practice with roots deeply imbedded in

early English and American law. Black-

s tts

stone in his Commentaries on the common

law characterizes the demurrer as an "is-

sue as to law," as distinguished from an

"issue of fact":

An issue upon matter of law is

called a demurrer; and it con-

fesses the facts to be true, as

stated by the opposite party;

. . . . As, if the matter of the

plaintiff's complaint or declara-

tion be insufficient in law,

. . « then the defendant demurs

to the declaration. ... [em-

phasis supplied].

Cooley's Blackstone at 1091 (4th Ed.).

(Compare: “An issue of fact is where the

fact only, and not the law, is disputed

. . . . And this issue of fact must, gen-

erally speaking, be determined, not by the

judge of the court, but by some other

method; the principal of which methods is

that by the country, per pais, that is, by

jury." Id. at 1092).

The common law demurrer described by

Blackstone is in all material respects

+ 28 «

ee ee ed

identical in nature to the demurrer cur-

rently part of Pennsylvania criminal pro-

cedure. ! Thus, the question before the

trial judge in ruling on a demurrer re-

mains purely one of law; and is no differ-

ent from other rulings of law which are

appealable by the Commonwealth. Illinois

1 The right of a criminal defendant

to demur to the Commonwealth's

evidence was statutorily granted

for approximately forty-five (45)

years. 19 P.S. §481, Act of

June 5, 1937, P.L. 1703, No. 357,

§1. This statute was repealed by

the Judiciary Act Repealer Act,

42 Pa. C.S. §20002(a), Act of

April 28, 1978, P.L. 202, No. 53,

§2; as affected by the Act of

Dec. 20, 1982, P.L. 1409, No.

326, Art. IV, 317. Despite the

repeal of this section, the de-

murrer was preserved as part of

the common law. 42 Pa. C.S.

§20003(b). On January 28, 1983,

the Pennsylvania Supreme Court

adopted Pa. R. Crim. P. 1124,

effective July 1, 1983, which

currently governs the defendant's

right to move for a demurrer to

the evidence.

- 13

vy. Somerville, 410 U.S. 458 (1973); United

States v. Morrison, 429 U.S. 1 (1976);

Commonwealth v. Bosurgi, 411 Pa. 56, 190

A.2d 304 (1963); Commonwealth v. White,

482 Pa. 197, 393 A.2d 447 (1978).

Because a demurrer represents a

purely legal determination, it is ne-

cessarily distinet from an acquittal,

which represents a determination of

fact. "fA] defendant is acquitted only

when 'the ruling of the judge [or finding

of the jury], whatever its label, actually

represents a resolution [in the defen-

dant's favor] correct or not, of some or

all of the factual elements of the offense

charged.'" (emphasis supplied). United

States v. Seott, supra, at 97, eiting

United States v. Martin Linen Supply Com-

pany, supra, at STi «

@ £4-<

ee Ss et

. The Commonweal th respectfully di-

~~.

reets this Court's attention to its deci-

sion in Arizona v. Manypenny, supra, at

232. In Manypenny, this Court, in up-

holding a state's right to appeal from a

post-guilty-verdict judgment of acquittal,

entered pursuant to Fed. R. Crim. P.

29(c), in an action removed to Federal

Court, stated that "([i]lf a state wishes to

empower its prosecutors to pursue a crim-

inal appeal under certain circumstances,

it is free so to provide, limited only by

the guarantees afforded the criminal de-

fendant under the Constitution." Id. at

249. This Court further stated that

"[b]ecause the regulation of crime is pre-

eminently a matter for the states, we have

identified ‘a strong judicial policy

against federal interference with state

criminal proceedings.'" Manypenny, id. at

» 88 «

243, citing Huffman _v. Pursue, Ltd., 420

U.S. 592, 600 (1975).

It ean therefore be concluded that

this Court did not intend its prior de-

cisions dealing with unique federal pro-

cedure to be totally binding upon a state

practice such as that under consideration

in the matter at bar.

Pa. R. Crim. P. 1124 provides four

(4) distinet mechanisms by which a defen-

dant may challenge the sufficiency of the

evidence:

(a) A defendant may challenge

the sufficieney of the evidence

to sustain a conviction of one or

more of the offenses charged by

a:

(1) demurrer to the evidence

presented by the Commonwealth

at the close of the Common-

wealth's case-in-chief;

(2) motion for judgment of

acquittal at the close of all

the evidence;

—° oe

—_

(3) motion for judgment of

acquittal filed within ten (10)

days after the jury has been

discharged without agreeing

upon a verdict; or

(4) motion in- arrest of

judgment filed within ten (10)

days after a finding of guilt.

A defendant, by moving for a

demurrer rather than availing himself of a

motion for judgment of acquittal under Pa.

R. Crim. P. 1124(a)(2) or (3), voluntarily

choses to seek determination of the pro-

eeeding solely on a basis of law, unre-

lated to factual guilt or _ innocence.

Before making the choice, a defendant is

aware that should the trial court err as a

matter of law in granting his motion for

demurrer, that decision is subject to

appeal.

Federal courts should not _ be

quick to conclude that’ simply

because a state procedure does

not conform to the corresponding

federal statute or rule, it does

not serve a legitimate state pol-

=; 2

icy. Last Term, recognizing this

fact, we dismissed a writ of cer-

tiorari as improvidently granted

in a ease involving a claim of

double jeopardy stemming from the

dismissal of an indictment under

the ‘rules of criminal pleading

peculiar to' an individual state

followed by a retrial under a

proper indictment.

Illinois v. Somerville, supra, at 468.

As this Court stated in Sanabria v.

United States, 437 U.S. 54, 66 (1978):

While form is not to be exalted

over substance in determining the

double jeopardy consequences of a

ruling terminating a prosecution,

Serfass v. United States, supra,

420 U.S., at sii, 392-393, 5

S.Ct. at 1057 (1975); United

States v. Jorn, 400 U.S. 470, 478

n. 7, 91 S.Ct. 547, 553, 27 L.Ed.

2d 543 (1971); United States v.

Goldman, 277 U.S. 229, 236, 48

S.ct. 486, 488, 72 L.Ed.2d 862

(1928), neither is it appropriate

entirely to ignore the form of

order entered by the trial court,

see United States v. Barber, 219

U.S. 72, 78, 31 S.Ct. 209, 211,

55 L.Ed. 99 (1911).

Should a trial judge in Pennsyl-

vania, when deciding to grant a demurrer,

668 «

—

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ee ee ee eee

ee ean ee ant hte

actually rule on some of the factual ele-

ments of the.offense charged, rather than

deciding the issue as purely one of law,

appellate courts will treat the ruling as

a de facto judgment of acquittal and bar

any appeal due to doutle jeopardy consid-

erations. See Commonwealth v. Wimberly,

supra, at 172, 173, 411 A.2d at 1194, 1195

(Trial court in sustaining a demurrer

stated that "This Court, as a fact-finder,

rejects as not being credible or worthy of

belief that portion of the testimony which

contradicted the statement of the defen-

dant." The Pennsylvania Supreme Court in

refusing to allow the Commonwealth to ap-

peal the lower court's granting of the de-

murrer, stated: "The trial court in the

instant case, while characterizing its

action as the granting of a demurrer, ac-

tually entered a de facto judgment of

~~ a

acquittal . +. «+ > Accordingly the Common-

wealth's appeal in the instant case must

be dismissed.").

This Court has recognized tne abil-

ity of courts to make the type of distinc-

tions required in deciding whether a de-

murrer has been properly granted and hence

appealable, or whether the trial court ac-

tually entered a de facto acquittal.

"{T] his Court has had no difficulty in

distinguishing between those rulings which

relate to 'the ultimate questions of guilt

or innocence' and those which serve other

purposes . + «+ + We reject the contrary

implication of the dissent that this Court

or other courts are incapable of distin-

guishing between the latter and the form-

er." Scott, supra, at , we

(citations omitted).

—.

Pa a _

nt te Peale SIN cet

ee. Se ee eh mr no

gt are Dac

In addressing the scope of the

Double Jeopardy Clause, this Court has

noted that the clause provides criminal

defendants with three related protec-

tions: "It protects against a _ second

prosecution for the same offense after

acquittal. It protects against a second

prosecution for the same offense after

conviction. And it protects against mul-

tiple punishments for the same offense."

North Carolina v. Pearce, 396 U.S. 711,

717 (1969); United States v. Wilson, 420

U.S. 332, 343 (1975).

In the case at bar, the recommence-

ment of trial proceedings subsequent to

the reversal of the orders sustaining the

appellees' demurrers would not contravene

any of the protections of the Double

Jeopardy Clause as enumerated in North

Carolina v. Pearce, supra. The appellees

» #8 «

would not be subject to a second trial

after acquittal, nor, of course, would

they be subject to a second trial after

conviction. As Judge Johnson of the Penn-

sylvania Superior Court correctly noted in

his dissenting Opinion:

The procedural posture of the in-

stant case reveals that no danger

of a second trial is present if

the Commonwealth is permitted to

appeal the instant orders. The

trial court merely sustained ap-

pellees' demurrers to the charg-

es. No dismissal of these charg-

es nor discharge of appellees as

to these counts occurred. In

fact, the remaining charges con-

cerning the Chances R fire were

stayed, pending the resolution of

this appeal.

Commonwealth v. Smalis, Pa. Super.

_ , _ , 6H Bee 1046, 1055 (1984)

(Johnson, J. dissenting) (emphasis in the

original). Thus, should this Court find

that the Pennsylvania Supreme Court was

correct in upholding the Commonwealth's

right to appeal the demurrer, and should

-~ 22 «

the Superior Court rule that the lower

court erred as a matter of law in granting

the demurrer, the proceedings in the lower

court would merely recommence at the stage

where they were temporarily halted as a

result of the within appeal, and, there-

fore, there clearly is no “danger of ‘af-

fording the prosecution another opportun-

ity to supply evidence which it failed to

muster in the first proceeding.'" Jus-

tices of Boston Municipal Court v. Lydon,

__-iU.S. __s,:«104 S.Ct. 1805, 1813 (1984).

This principle applies similarly to

a jury trial which is interrupted by the

improvident granting of a demurrer. The

convening of a second jury following ap-

pellate reversal of the demurrer order

would not constitute a second prosecution

after acquittal or after econviction.

Furthermore, the discharge of the jury

=

under these circumstances would result

from a manifest necessity, and therefore

retrial would be permissible. This Court

has explained as follows the rationale for

permitting retrial following the discharge

of a jury by reason of a manifest neces-

sity:

Unlike the situation in which the

trial has ended in an acquittal

or conviction, retrial is not

automatically barred when a crim-

inal proceeding is terminated

without finally resolving’ the

merits of the charges of the ac-

cused. Because of the variety of

circumstances that may make it

necessary to discharge a jury

before a trial is coneluded, and

because those circumstances do

not invariably create unfairness

to the accused, his valued right

to have the trial concluded by a

particular tribunal is sometimes

subordinate to the publie inter-

est in affording the prosecutor

one full and fair opportunity to

present hig ,evidence to an impar-

tial jury.

16 In his opinion announcing

the Court's judgment in United

States v. Jorn, [400 U.S. 470,

479-480, 91 S.Ct. 547, 554, 27

= 64 «

tite

L.Ed.2d 543 (19 )J, Mr. Jus-

tice Harlan explained why a

rigid application of the '‘'par-

ticular tribunal' principal is

unacceptable: '[A] eriminal

trial is, even in the best of

circumstances, a complicated

affair to manage. ... [It

is] readily apparent that a

mechanical rule prohibiting re-

trial whenever’ circumstances

compel the discharge of a jury

without the defendant's consent

would be too high a price to

pay for the added assurance of

personal security and freedom

from governmental harassment

which such a mechanical rule

would provide.'

Arizona v. Washington, 434 U.S. 497, 505

(1978). Under circumstances in which a

jury is diseharged as a result of an er-

roneous ruling of law by the trial judge

prior to acquittal or econvietion -- such

as the improvident granting of a demur-

rer --, such discharge would be the result

of a “manifest necessity," and therefore

retrial before a new tribunal would be

« 96 «

appropriate and not violative of double

jeopardy principles.

The Commonwealth suggests further

that double jeopardy principles are not

contravened where proceedings recommence

following the appellate reversal of the

trial court's improvident entry of a de-

murrer because, under such circumstances,

jeopardy in fact never terminated. "In

Price v. Georgia, 398 U.S. 323, 90 S.Ct.

1757, 26 L.Ed.2d 300 (1970), [the United

States Supreme Court] recognized that im-

plicit in the Ball” rule permitting

retrial after reversal of a convietion is

the concept of ‘continuing jeopardy.'

» « e That principle "has application

where criminal proceedings against an

2 United States v. Ball, 163 U.S.

662 (1896).

- 26 -

2 a Nail ila, Nile i ig

oi Aue! i

accused have not run their full course.'

- Interests supporting the continuing

jeopardy principle involve fairness to

society, lack of finality and limited

waiver." Justices of Boston Vunicipal

Court v. Lydon, supra, 104 S.Ct. at 1813-

1814, citing Breed v. Jones, 421 U.S. 519

(1975). The "continuing jeopardy" princi-

ple may properly be applied in the instant

ease where in fact the proceedings against

the petitioners have not in fact run their

full course, but rather will recommence

upon remand of the matter to the trial

court. In accord with this principle is

the fact that in moving for a demurrer, a

defendant must be deemed to necessarily

contemplate the potential results of such

action. Certainly it is within the con-

templation of defendants who move for a

demurrer in the trial courts of Pennsyl-

—

vania that the erroneous sustaining of

such motion will result in further pro-

ceedings should the order be reversed by a

—-

reviewing court. Thus, it can be conclud-

ed that a defendant knowingly bears the

burden of retrial should an erroneous

legal ruling be reversed and by moving for

a demurrer must be deemed to have waived a

subsequent double jeopardy claim.

Finally, the Comonwealth respect-

fully submits that the doctrine of "ripe-

ness" as applied by this Court requires

that petitioners' Petition for Writ of

Certiorari be denied. The fact that

further proceedings are to follow in the

state court does not preclude this Court's

treatment of the decision on the federal

question asserted as a final judgment.

Cox Broadcasting Corp. v. Cohn, 420 U.S.

469 (1975); North Dakota St. Bd. of Pharm.

- 28 -

v. Synder's Drug Stores, Ine., 414 U.S.

217 (1973). In the case at bar, however,

the challenged Order effected a remand to

the Superior Court for a determination as

to whether the demurrer was. preperly

granted. | The Superior Court has yet to

rule on the issue of the legal sufficiency

of the evidence. Thus, the merits of the

Commonwealth's appeal have yet to be de-

termined. The Superior Court may well

rule that, as a matter of law, the demur-

rer was properly granted.

In addition, should a new trial be

necessary, petitioners would have the

right to raise the double jeopardy issue

in pretrial motions. Should that motion

be denied, the order would be immediately

appealable. Commonwealth v. Starks, 490

Pa. 336, 416 A.2d 498 (1980).

- 29 -

CONCLUS ION

WHEREFORE, for the foregoing rea-

sons, respondent Commonwealth of Pennsyl-

vania submits that this Honorable Court

should not exercise discretionary juris-

diction over the instant matter and should

deny the petitioners' request that a writ

of certiorari issue to the Pennsylvania

Supreme Court.

Respectfully submitted,

ROBERT E. COLVILLE

DISTRICT ATTORNEY

ROBERT L. EBERHARDT

DEPUTY DISTRICT

ATTORNEY FOR LAW

COUNSEL FOR RESPONDENT

- 30 -

i

CERTIFICATE OF SERVICE

I hereby certify that I am this

SB rck day of October, 1985, serving the

following persons by First Class Mail,

postage prepaid, with three (3) true and

correct copies of the within Brief for the

Commonwealth of Pennsylvania in Opposition

to Petition for a Writ of Certiorari to

the Supreme Court of Pennsylvania, which

service satisfies the requirements of Rule

23:

Norma Chase, Esquire

505 Court Place

Pittsburgh, Pennsylvania 15219

Attorney for Petitioner Despina Smalis

Thomas A. Livingston, Esquire

The Colonial Building

205 Ross Street

Pittsburgh, Pennsylvania 15219

Attorney for Petitioner Ernest Smalis

ROBERT E. COLVILLE

Is 4

By: ,

RO L. EBERHARDT

DEPUTY DISTRICT

ATTORNEY FOR LAW