# Opposition Brief — Smalis v. Pennsylvania

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1986
- **Citation:** 476 U.S. 140

## Text

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

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0886%3A03. Public record. Not legal advice.