Amicus Curiae Brief — Smalis v. Pennsylvania

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: | Supreme Court, U.S.

No. 85-227 FILED

is

DEC 30 1985

IN THE JOSEPH F. SPANIOL, JR.

Supreme Court of the Unite =

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DESPINA and ERNEST SMALIS,

Petitioners,

—_Y$.—

COMMONWEALTH OF PENNSYLVANIA,

Respondent.

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF PENNSYLVANIA

BRIEF FOR THE AMERICAN CIVIL LIBERTIES

UNION AND THE AMERICAN CIVIL LIBERTIES

UNION OF PENNSYLVANIA, AMICI CURIAE

CHARLES S. SIMS

Counsel of Record

American Civil Liberties Union

Foundation

132 West 43rd Street

New York, NY 10036

(212) 944-9800

RICHARD WASSERBLY

100 East Court Street

Doylestown, PA 18901

(215) 345-5045

STUART WILDER

BETSY VOSS

County Courthouse

Doylestown, PA 13901

(215) 348-6473

December 1985 Counsel for Amici Curiae

TABLE OF CONTENTS

PAGE

TABLE OF 6 cain 666666600066 600088

INTEREST OF AMICI CURIAE. cccccccccccccccvsesl

INTRODUCTION AND SUMMARY OF ARGUMENT...6++++2

ARGUMENT ee TT ee TT OTT UC CTTTTUTTULETTTTTT

THE DOUBLE JEOPARDY CLAUSE

PRECLUDES READJUDICATION OF

CRIMINAL CHARGES WHICH ON DEMURRER

TO THE PROSECUTOR'S CASE WERE

DISMISSED BY THE TRIAL COURT UPON

A FINDING THAT THE EVIDENCE WAS

INSUFFICIENT TO CONVICT. .cceeeeeeseveeed

PR, £66666 680 6666S SO SEE CEO ESOC CS OC OR EEE

TABLE OF AUTHORITIES

CASES PAGE

Arizona v. Rumsey,

815 L.Ed. 2nd 164 (1984). cceeseveveely 8

Burks v. United States,

437 Sele E Qi ean””.ClU 8, 9, 10

Commonwealth v. Bausewine,

354 Pa. 35, 46 A. 2d 491

tt. jenn

Commonwealth v. Boone,

467 Pa. 168, 354 A. 2d 898

(1975S) coccccceececessesesseeseneneeeee

Commonwealth v. Byers,

Pa. Super. S37 €2910) -ccsssveesuenene

Commonwealth v. Collins,

436 Pa. 114, 259 A. 2d 160

(1969) ecocvcecceoceceseeseneenenntt

Commonwealth v. Dennis,

211 Pa. Super. 37, 234 A.2d

53 (1967) ccccccecesceceseeeseeneeett

Commonwealth v. Finley,

477 Pa. 382, 383 A. 2d 1259

(1978) ccccceecee6660eeseneeeeneene

Commonwealth v. Garrett,

423 Pa. 8, 222 A. 2d 902

(1966) cccccccecseseeseeeseeeeeeeeeeeneen

Commonwealth v. Haines,

410 Pa. 601, 190 A. 2d 119

(1963) -ccocccccececeeesseeeenenntt

» 48 «

CASES PAGE

Commonwealth v. Henderson,

451 Pa. 452, 304 A. 2d 154

SSS SISO TCTs

Commonwealth v. Kerr,

“150 Pa. Super. 598, 29 A.2d

340 ie a ete a ge ceccceels

Commonwealth v. Long,

467 Pa. 98, 354 A. 2d

569 jj} tte ee eee ea eeececococcococcels

Commonwealth v. Melton,

402 Pa. 628, 168 A. 2d 328

Dene eee eee eee eco ceoosceoels

Commonwealth v. Moore,

398 Pa. 198, 157 A. 2d 65

EE SES IETF TOOT TET TTT

Commonwealth v. Tabb,

417 Pa. 13, 207 A. 2d 884

EE SSS SF FOOT TTTTUETTUETTY 4.

Commonwealth v. Thinnes,

Pa. Super. 79, 397 A. 2d 5

(jj) = eee eee kee se eeeccoeocoocecec ec ce LG

Commonwealth v. Trafford,

312 Pa. Super. 578, 459 A. 2d

373, DPPC Ee ee ee eee geeccecesee ee

Commonwealth v. Williams,

71 Pa. Super. 311 Se ae Pr

Commonwelath v. Wimberly,

488 Pa. 169, 411 A.2d 1193 (1979).....16

Commonwealth v. Zoller,

490 A. 2d 394 re 1]

- iii -

CASES PAGE

Hudson v. Louisana,

450 U.S. 40 TeOOs Pcccece oss eoeeeee 9, 10

In re Dowling,

98 Wash. 2d 542, 656 P. 2d 497

EOE) 006 600600066 660006066 60846 466600 6ET

Lee v. United States,

432 Wee 23 ti ag FSPPT TPT TTT eT Te eT ec

People v. Anderson,

409 Mich. 474, 295 N.W. 2d 482

Oh PTT TITTTTre rrr ere eee

People v. Brown,

40 N.Y. 2d 381, 386 N.Y.S. 2d 848,

353 N.E. 2d 81] Oh en DPPEURETET ETT TPE i

Sanabria v. United States,

437 U.S. 54 cept ee6e0e6eeeeeseéeeete 10

Serfass v. United States,

420 Gee 377 a ee mee

State v. Greenwalt

663 P. 2d 1178 (Mont. tk) eee

State v. Shaw,

282 Md. 231, 383 A. 2d 1104

‘Gh sg, EPEC EEE CTTOTe TCT TTT TTT et

State v. Whorton,

225 Kan. 251, 589 P. 2d 610

C2OTO ls oeeou'd 606660004660 008 0068 SOR OROEe

Tibbs v. Florida,

457 Gee 31 CRG 6 6 6eb bebe wes eenoeeeee?

United States v. DiFrancesco,

449 U.S. 1171 Pt awk +0e6abeeeaanuesel

CASES PAGE

United States v. Ember,

726 F. 2d 522 (9th Cir. Beweleeeoeséeoene

United States v. Jaramillo,

510 F. 2d 808 (8th Cir. Co.) aes

United States v. Martin Linen Sup pply Co.,

430 U. S. 564 ogg Serer’ - 8, 10, 23

United States v. scotty

437 U.S. 82 (197 Beeeecesecne@s Ve 14, 22

United States v. Sisson,

399 Wee 267 Dh . «eu «6 be é beeen

United States v. Suarez,

ee ae ee eer eee. BOPRW scccccacseal

United States v. Wilson,

420 Wete 332 (oo) ae 14

Rules of Court

Fed. R. Crim. Pro. SPeccocceeseccccesc eo Massian

18 U.S.C.A. RT We 6 664660664 605686 60006 46R SEN

Sis Gi Gees We BOmeP thie sec cceciececcscvele

Other Authorities

Strazzella, "Commonwealth Appeals and Double

Jeopardy”. 4 Phe Lede 11 (198L) cecccccceselt®S

Wasserbly, Pennsylvania Criminal

Practice to ) Sa Pere eS irre

INTEREST OF AMICI CURIAE

The American Civil Liberties Union is a

nationwide, non-partisan organization of over

250,000 members, dedicated to protecting the

rights secured by the Constitution. The

American Civil Liberties Union of

Pennsylvania is one of its state affiliates.

The ACLU has frequently appeared in this

Court to defend the fundamental protections

provided by the Double Jeopardy Clause. With

the consent of the parties, indicated by

letters being lodged with the Clerk, amici

submit this brief to aid the Court in

resolving the important double jeopardy

question presented by this case.

INTRODUCTION AND SUMMARY OF ARGUMENT

This brief addresses the question

whether the Double Jeopardy Clause of the

Fifth Amendment to the United States

Constitution, applied to the states through

the Fourteenth Amendment, permits prosecution

appeals of the grant of a demurrer, as

defined by Pennsylvania law, in criminal

cases, where reversal would require a new

trial. More specifically, the question is

whether the grant of a demurrer, which

represents a judicial determination at the

conclusion of the prosecutor's case that the

prosecution's evidence, taken in its entirety

and as truthful in every respect, is

insufficient for conviction, is an acquittal

that cannot be challenged on appeal.

After briefly reviewing the governing

principles of double jeopardy law as set

forth in this Court's cases, amici will

examine the nature of the determination made

when a demurrer is granted, and compare it to

similar decisions that federal courts render

pursuant to Fed. R. Crim. Pro. 29(a). The

federal courts have explored the question of

when grants of motions for judgment of

acquittal are appealable under the Fifth

Amendment, and their decisions provide a

useful guide for the determination of this

case. Their rulings demonstrate that when a

court grants a motion for judgment of

acquittal at the conclusion of the

prosecution's case-in-chief based on a

determination that the prosecution's evidence

was insufficient, the Double Jeopardy Clause

bars an appeal. Since the grant of demurrer

under Pennsylvania law is functionally

indistinguishable from an acquittal for legal

insufficiency under Rule 29 -- since it

requires precisely the same inquiry federal

“courts undertake -- allowing Pennsylvania to

appeal and, if successful, to retry the

defendants would impermissibly place them

twice in jeopardy.

ARGUMENT

THE DOUBLE JEOPARDY CLAUSE PRECLUDES

READJUDICATION OF CRIMINAL CHARGES WHICH

ON DEMURRER TO THE PROSECUTION'S CASE

WERE DISMISSED BY THE TRIAL COURT UPON A

FINDING THAT THE EVIDENCE WAS

INSUFFICIENT TO CONVICT.

A. The Double Jeopardy Clause Bars

Retrials Following Trial Court

Rulings Finding The Prosectuion's

Completed Case Legally Insufficient.

Most of this Court's decisions

delimiting the extent to which the government

may appeal an adverse ruling that terminates

a prosecution before entry of judgment are

the result of interpretations of the federal

statute granting the federal government the

right to appeal in criminal cases, 18

U.S.C.A. §3731 (West. 1985)' The Court has

generally indicated that the prosecution's

right to appeal under this statute is

coextensive with its right to appeal under

the Double Jeopardy Clause to the Fifth

Amendment to the United States

Constitution.2 United States v. DiFrancesco,

449 U.S. 117, 131 (1980); United States v.

1 his statute reads, in pertinent part:

In a criminal case an appeal bv the United States

shall lie to a court of appeals from a decision,

judgment, or order of a district court dismissing

an indictment or information or granting a new

trial after verdict or judgment as to any one or

more counts, except that no appeal shall lie

vaere the double jeopardy clause of the United

States Constitution prohibits further prosecution ...

2 tn our view, Justice Stevens' repeatedly expressed

position (see, e.g., United States v. Martin Linen

Supply, 430 U.S. 564, 576 (Stevens, J., concurring in

the judgment)) that §3731 should be construed in

accordance with the statutory language to preclude

federal governmental appeals from acquittals is

correct; but this case, arising from state court,

presents no opportunity for the Court .to conform its

‘construction of §3731 to the principles of statutorv

construction frequently stressed in recent cases.

e.g., United States v. Rojas-Contreras, 54 U.S.L.W.

4061, 4062 (1985).

Wilson, 420 U.S. 332, 337 (1975). For

example, federal prosecutors have the right

to appeal mid-trial rulings terminating cases

in favor of defendant where such rulings are

based on pre-indictment delay, United States

v. Scott, 437 U.S. 82, 100 (1978), and post-

conviction grants of motions to dismiss

indictments based on pre-trial error, United

States v. Wilson, 420 U.S. 332, 352-53

(1975). But there are clear limits on a

sovereign's right to appeal, explained in

Scott and of critical importance here:

The successful appeal of a

judgment of conviction, on any

round other than the

insufficiency of the evidence

to support the verdict, Burks

v. United States, 437 U.S. Il,

poses no bar to further

prosecution on the same

charge. A judgment of

acquittal, whether based on a

jury verdict of not guilty or

on a ruling by the court that

the evidence is insufficient

to convict, may not be

appealed and terminates the

prosecution when a second

trial would be necessitated by

a reversal.

437 U.S. at 90-91 (emphasis added).

Although the path of true double

jeopardy law has not run smoothly, the

constitutional rule barring governmental

appeals from “acquittals" (within the meaning

of the Double Jeopardy Clause) where reversal

would require a new trial, set out in Scott,

has repeatedly commanded the assent of every

member of this Court. See, e.g., Tibbs v.

Florida, 457 U.S. 31 (1982); Arizona v.

Rumsey, 81 L.Ed. 2d 164, 171 (1984); United

States v. Martin Linen Supply Co., 430 U.S.

564, 570-72 (1977). And in defining

"acquittals”" for purposes of the double

jeopardy clause,* the Court has repeatedly

held that a determination by a trial court

that the prosecution's evidence is

3 "(A) resolution, correct or not, of some of all of

the factual elements of the offense charged." Lee v.

United States, 432 U.S. 23, 30 n.8 (1977), quoting

United States v, Martin Linen Supply Co., 430 U.S. at

571. See also Sanabria v. United States, 437 U.S. 54,

71 (1978).

insufficient as a matter of law to convict is

an acquittal. See, e.g., Sanabria v. United

States, 437 U.S. at 71 (legal determination

that evidence was insufficient to convict was

an acquittal, even though erroneous

evidentiary rulings and unduly narrow

construction of statute prejudiced

government); United States v. Martin Linen

Supply, 430 U.S. at 572 (acquittal following

hung jury was “acquittal” for double jeopardy

purpose where the "District Court...evaluated

the Government's evidence and determined that

it was legally insufficient to sustain a

conviction); Hudson v. Louisiana, 450 U.S.

40, 43 (1981) ("our decision in Burks [v.

United States, 437 U.S. at 1 (1978)] controls

this case, for it is clear that petitioner

moved for a new trial on the grounds that the

evidence was legally insufficient to support

the verdict and that the trial court granted

the petitioner's verdict on that ground");

Arizona v. Rumsey, 81 L.Ed. 2d at 17]

(acquittal of death sentence where trial

court erred as a matter of law in finding

evidence insufficient to show aggravating

circumstances).

Similarly, the Court has repeatedly

stressed that determinations by appellate

courts that the evidence is insufficient as a

matter of law to support a verdict also bar

subjecting double jeopardy defendants to

second trials. See, e.g., Burks v. United

States, 437 U.S. at 2.4

4 Because the Pennsylvania Supreme Court has held in

this case that a new trial would be required if the

trial court's determination of legal insufficiency is

reversed, see 490 A.2d at 396, this case does not

present the question whether avveal of a post-

conviction insufficiency acquittal may proceed when

the state, if successful on appeal, could simply

reinstate a conviction, Although some language in

United States v. Wilson, ‘20 U.S. at 342-43, and

United States v., Scott, 437 U.S. at 91 n.7 -- neither

an insufficiency case -- suggests that appeal and

reinstatement of conviction would not be barred,

Burks, Hudson and their progeny plainly render

"acquittals" (within the meaning of the double

jeopardy clause) based on a determination of

insufficiency the last word. There is no suggestion

(cont'd next page)

The Pennsylvania Supreme Court has not

suggested that this Court, in resolving this

case, should reexamine the double jeopardy

rule barring retrials upon appeal from

insufficiency acquittals applied in cases

such as Burks, Hudson, Martin Linen, and

Sanabria, and we see no reason for doing

so. Accordingly, we turn to the central

question here: whether the ruling at case

here, and more generally demurrers in

criminal cases under Pennsylvania practice,

differ meaningfully from the insufficiency

rulings at issue in Burks, Hudson, Martin

Linen, and Sanabria.

in the Court's opinion in Hudson that, if the

insufficiency ruling were held erroneous, the jury

verdict could have been reinstated. See also Burks,

437 U.S at 16 ("(Wje necessarily afford absolute

finality to a jury's verdict of acquittal ... [and

therefore to a trial judge's decision] as a matter of

law that the jury could not properly have returned a

verdict of guilty.")

B. The Demurrer Here Was

Indistinguishable From -- Indeed

Identical To -- The Legal

Insufficiency Rulings That This

Court Has Held Unappealable Where A

New Trial Would Be Required.

The Pennsylvania Supreme Court's

decision in the case at bar, as reported in

Commonwealth v. Zoller, Pa. , 490 A.

2d 394 (1985), respects the Scott reasoning

insofar as it analyzes whether a demurrer, as

utilized in criminal cases in Pennsylvania,

is the functional equivalent of an acquittal,

or is instead equivalent to a dismissal on

grounds not involving the merits. 490 A. 2d

at 400. But the court plainly erred in

> pemurrers are recognized in the Pennsylvania Rules

of Criminal Procedure as follows:

(a) A defendant may challenge the sufficiency 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

Commonwealth's case-in-chief ....

Pa. R. Crim. Pro. 1124(a)(1), Pa. C.S.A., tit. 42

(purdon's 1985 pamph ).

» i} «

concluding, based on English common law

related by William Blackstone®

and more

recent decisions of Pennsylvania's

intermediate appellate court,’ that

Pennsylvania's demurrer falls into the latter

category, and thus may be appealed by the

prosecution. Zoller, 490 A. 2d at 401.

The distinction drawn by the

Pennsylvania Supreme Court between this

demurrer and a judgment on the merits is a

6 “an issue upon the matter of law is called a

demurrer and it confesses the facts to be true, as

stated by the opposite party; .. . As, if the matter

of the plaintiff's complaint of declaration be

insufficient in law, . .. then the defendant demurs

to the declaration . .. ." 3 W. Blackstone,

Commentaries 314 (13th ed. 1800).

¢ "In criminal cases demurrer to the evidence of the

Common~ealth admits all the facts which the evidence

tends to prove, and all inferences reasonably

deducible therefrom. .. The court in such case is

not the trier of the facts. The admissions implied in

the demurrer leave for consideration the single

inquiry whether the evidence introduced presents such

a state of facts, with the inferences fairly arising

therefrom, as would snvort a verdict of guilty.

Commonwealth v. Williams. 71 Pa. Super. 311, 313

(1919) (citations omitted),

= 12 «

semantic one that ignores the practical

realities underlying the traditional

definition of a demurrer and this Court's

double jeopardy analysis in Burks and its

progeny. To be sure, under the statute

governing prosecution appeals in Pennsylvania

and its predecessors the Commonwealth has

been permitted to appeal rulings sustaining

demurrers to its prosecutions because they

were deemed determinations of law and not of

fact, and therefore within the statutory

language authorizing state appeals.

Commonwealth v. Long, 467 Pa. 98, 100 n.2,

354 A. 2d 569, 570 n. 2 (1976); Commonwealth

v. Melton, 402 Pa. 628, 629, 168 A. 2d 328,

329 (1961).°® But to label a demurrer a

8 In Pennsylvania it is

[T]he right and duty of the trial

judge .. . to determine as a matter

of law whether the proof has been

sufficient in volume and quality to

overcome the presumption of

innocence. . . . Where the proof

(cont'd next page)

» 13 «

"question of law" for state law purposes is

not to equate it to the questions of law at

issue in such non-sufficiency cases as United

States v. Scott and United States v. Wilson,

Supra.

A demurrer (like a Rule 29 acquittal)

does raise a question of law; but the

resolution of that legal question also

requires findings and assessments of fact to

determine whether the government has met its

burden of proof as to a defendant's guilt.

The substance of the demurrer procedure in

Pennsylvania is indistinguishable from a

fails to measure up to this standard,

there is nothing to support a

conviction and the prisoner is

entitled to be discharged,

Commonwealth v. Byers 45 Pa. Super. 37, 39 (1910).

Put another way, a demurrer should be sustained where,

"as a matter of law," the Commonwealth's evidence is

insufficient to warrant a jury's finding the defendant

guilty beyond a reasonable doubt. Commonwealth v.

Henderson, 451 Pa. 452, 454, 304 A. 2d 154, 156

(1973); Commonwealth v., Collins. ‘36 Pa. 114, 119, 259

A. 2d 160, 162 (1969): Commonwealth v. Dennis, 211 Pa.

Super. 37, 40, 234 A.2d 53, 54 (1967).

- 14 <

judgment of acquittal following the

prosecution's case, and both are

indistinguishable from a classic jury

determination when the defense rests without

putting on any case: in the first two

situations, and often in the third, the

question is simply whether the evidence

presented is sufficient to establish guilt.?

Historically, Pennsylvania has permitted

the trial court to direct what it terms a

verdict of acquittal only after both the

9 The purely arbitrary and semantic nature of the

distinction Pennsylvania asks this Court to uphold

here is emphasized by the Pennsylvania rule that where

the trial court properly sustains a demurrer, but then

goes on to pronounce the defendant "not guilty," the

Commonwealth may not appeal. Commonwealth v. Haines,

410 Pa. 601, 603, 190 A. 2d 118, 120 (1963);

Commonwealth v. Kerr, 150 Pa. Super. 598, 601-02, 29

A. 2d 340, 342 (1942). That is, the magic words “not

guilty" constitute a final judgment of acquittal

barring Commonwealth appeal, even though there is no

state authoritv (in statute or case law) for such

pronouncements or distinguishing cases when they are,

or are not, appropriate. To permit retiral in the one

case, but not the other, impermissibly exalts form

over substance. Cf. United States v. Sisson, 399 U.S.

267, 285 (1970); Serfass v.United States, 420 U.S.

377, 392-93 (1975).

Commonwealth and defense have rested their

cases. Of critical importance here, however,

is that an identical test is utilized in

ruling upon a motion for a directed verdict

as for a demurrer, i.e., the court directs

the jury to return a verdict of not guilty if

the prosecutor's evidence and all inferences

arising therefrom, considered in the light

most favorable to the prosecution, are

insufficient to prove beyond a reasonable

doubt that the defendant is guilty.

Commonwealth v. Finley, 477 Pa. 222, 383 A 2d

1259 (1978); Commonwealth v. Boone, 467 Pa.

168, 354 A. 2d 898 (1975). Pennsylvania

recognizes that the grant of a directed

verdict is equivalent to a not guilty verdict

and hence bars retrial and precludes appeals

by the commonwealth. Commonwealth v.

Thinnes, 263 Pa. Super. 79, 397 A. 2d 5

(1979); Commonwealth v. Wimberly, 488 Pa.

169, 411 A. 2d 1193 (1979); Wasserbly,

Pennsylvania Criminal Practice II, §27.23

(1981). (The procedures applicable to

directed verdict have been codified by

Pennsylvania Rule of Criminal Procedure 1124,

eff. July 1, 1983.)

It is impossible to discern any policy

underlying the Double Jeopardy Clause that

would justify according a ruling that the

prosecution's case was legally insufficient

double jeopardy consequences when he sie

entered at the end of all the evidence (but

before any verdict), but not when it is

entered at the end of the prosecution's case,

as Pennsylvania now proposes. In either

event, the insufficiency ruling is final and

not subject to appeal. Indeed, the question

is not even open: this Court has repeatedly

treated the two situations as identical, and

has expressly rejected the distinction

‘present here. See, e.g., United States v.

Martin Linen Supply Co., 430 U.S. at 574-

75. Pursuant to Fed. R. Crim. Pro. 29(a),

which abolished demurrers and directed

verdicts in favor motions for judgment of

acquittal, federal courts may dismiss for

insufficiency before (of after) the taking of

evidence is completed; but at least where

there has been no conviction, and hence a

reversal would require a retrial, see n.4

Supra, the same double jeopardy result

obtains in either situation. 3."

Federal appellate courts that have heard

prosecution appeals from grants of Rule 29(a)

motions based upon the sufficiency of the

10 Rule 29(a) provides:

Motions for directed verdict are abolished and

motions for judgment of acquittal are to be used in

their place. The court on motion of a defendant or on

its own motion shall order the entry of judgment of

acquittal of one or more offenses charged in the

indictment of information after the evidence on either

side is closed if the evidence is insufficient to

sustain a conviction of such offense or offenses. If

a defendant's motion for judgment of acquittal at the

close of the evidence offered by the government is not

granted, the defense may offer evidence without having

reserved the right.

prosecution's evidence have uniformly

dismissed them as barred by the Double

Jeopardy Clause, and thus not encompassed by

the statute permitting prosecution appeals.

The United States Court of Appeals for the

Eighth Circuit dismissed such an appeal in

United States v. Jaramillo, 510 F. 2d 808

(8th Cir. 1975). Defendants charged with

obstructing law enforcement officers

attempting to quell a disturbance on an

Indian reservation moved, after both sides

had rested but before verdict, for a judgment

of acquittal. 510 F. 2d at 809. The trial

court granted the Rule 29(a) motion after

considering all of the evidence adduced at

trial, deciding that the prosecution had

failed to meet its burden and that the proof

was insufficient to support beyond a

reasonable doubt the allegations of the

indictment. Id. at 810-11. The prosecution

was not allowed to appeal from this judgment

where success on appeal would require

retrial. Id. at 81ll.

The United States Court of Appeals for

the Ninth Circuit similarly refused to allow

the prosecution to appeal a decision to grant

a Rule 29(a) motion in United States v.

Ember, 726 F. 2d 522 (9th Cir. 1984). After

trial began, the trial court excluded several

pieces of evidence that the government had

offered to prove the defendant's guilt of

narcotics charges. 726 F. 2d at 523.

Following several of these rulings, the court

ordered a close to the prosecution's case,

suggested the defenda’t move for acquittal

under Rule 29(a), and once the motion had

been made, granted it. Id. at 523.

Reviewing the entire record, the Ninth

Circuit concluded that the trial court's

action represented a resolution of the

factual elements of the charged offenses, id.

at 524: "[T]he district court evaluated the

government's evidence and determined that it

was insufficient to sustain a conviction."

The prosecution's complaint that this

decision followed erroneous evidentiary

rulings was to no avail; since a new trial

would be required, the Double Jeopardy

Claused barred the appeal. Id. at 525. See

also United States v. Suarez, 505 F. 2d 166,

168 (2d Cir. 1974)(prosecution could not

appeal judgment of acquittal granted after

declaration of mistrial because of a hung

jury when motion was made at conclusion of

prosecution's case). The government is

simply not allowed a second opportunity to

present its factual case where a prosecution

has been terminated because a court has

concluded -- whether correctly or not -- that

the prosecution failed to present sufficient

evidence for conviction. Burks v. United

States, supra.

Contrary to the state's view,

» 2) «

prosecution appeals following motions for

judgment of acquittal under Rule 29, where

retrials would be required, have been allowed

not for all rulings based on "legal" grounds

but rather only when the judgment of

acquittal was made for reasons unrelated to

the legal sufficiency of the evidence. As

this Court held in Scott, which involved

dismissal of two parts of an indictment for

pre-indictment delay,

[A] defendant is acquitted

only when "the ruling of the

judge, whatever its label,

actually represents a

resolution [in the defendant's

favor], correct or not, of

some of all of the factual

elements of the offense

charged," Martin Linen, Supra,

430 U.S. at 571. Where the

court, before the jury returns

a verdict, enters a judgment

of acquittal pursuant to Fed.

Rule Crim. Proc. 29, appeal

will be barred only when “it

is plain that the District

Court...evaluated the

Government's evidence and

determined that it was legally

insufficient to sustain a

conviction.” 430 U.S. at 572.

» 22 «

Scott, 437 U.S. at 97."'

This case is precisely the case

described in Scott, where retrial, and

therefore this appeal, are barred by the

double jeopardy clause. The defendants

herein demurred to the Commonwealth's case,

and the trial court sustained their motion on

the ground that the Commonwealth had failed

to present sufficient evidence to link the

defendants to the criminal activity alleged.

zOller, 490 A. 2d 396. In essence, the trial

court decided that the Commonwealth had

failed to establish the defendants’ guilt.

Like the insufficiency determinations of

"1 See also Scott, 437 U.S. at 101 ("We now conclude

that where the defendant himself seeks to have the

prosecution terminated without any submission to

either judge or jury as to his guilt or innocence, an

appeal by the Government from his successful effort to

do so is not barred by 18 U.S.C. §3731 (1976 ed.)."

Here, the prosecution was terminated only after the

defendant did, by demurrer, make a submission to the

judge as to his guilt or innocence. The defendants

could not have made their motion any earlier than they

did: a demurrer may not be made before the close of

the Commonwealth's evidence. See Pennsylvania Rule of

Criminal Procedure 1124(a)(1).

- 23 «

Burks, Hudson, Martin Linen, and Sanabria,

the demurrer here is an unappealable

determination requiring discharge of a

defendant. Its rendition required the trial

court to perform one of the functions the

jury must later face. Evidence of guilt must

arise out of the prosecution's evidence.

Commonwealth v. Garrett, 423 Pa. 8, 12, 222

A. 2d 902, 905 (1966); Commonwealth v.

Bausewine, 354 Pa. 35, 41, 46 A. 2d 491, 493

(1966). If guilt is not established by the

prosecution's evidence, it may not thereafter

be deemed to be established by a general

feeling that a defendant is not telling the

truth about a given matter. Commonwealth v.

Trafford, 312 Pa. Super. 578, 583, 459 A. 2d

373, 375 (1983). At the close of the

evidence the trier of fact, be it the jury or

the judge, makes an independent determination

of whether the Commonwealth has presented

enough evidence to establish the defendant's

- 24 «

guilt beyond a reasonable doubt.

Commonwealth v. Tabb, 417 Pa. 13, 16, 207 A,

2d 884 (1965); Commonwealth v. Moore, 398 Pa.

198, 202, 157 A. 2d 65, 68 (1959). Although

the jury or judge sitting as a jury may

determine that the quality of evidence was

insufficient to find a defendant guilty of a

crime, it may also determine that the

quantity was insufficient to convict. It may

decide that no evidence at all was dinead

to support a determination that an essential

element of an offense was existent. In

deciding whether or not to grant a

defendant's motion for a demurrer, a judge,

even though he makes no credibility

determinations and takes the prosecution

evidence as true, is inescapably assessing

and resolving correctly or not, some or all

of the factual elements of the offense

charged. Its grant, therefore, is the

functional equivalent of an acquittal, and it

o» 23 «

—

cannot be appealed where reversal would

require retrial of the defendant.

A noted commentator on criminal

procedure in Pennsylvania (and the chairman

of the Committee for the Pennsylvania Rules

of Criminal Procedure) correctly distilled

the force of this Court's precedents when he

wrote, "[T]he Pennsylvania distinction

between demurrers after jeopardy has attached

(held appealable in Pennsylvania) and

acquittals (held not appealable in

Pennsylvania) is not a viable distinction for

purposes of federal double jeopardy.” J.

Strazzella, "Commonwealth Appeals and Double

Jeopardy", 4 Pa. L.J. 11, 12 (1981). Any

other ruling would require a wholesale

overruling of recent cases and a massive

departure from the policies repeatedly held

to underly the rule against appeals from

insufficiency acquittals.'?

a» 96 «

CONCLUSION

For the reasons set forth in this brief,

the decision of the Pennsylvania Supreme

Court should be reversed.

Respectfully submitted,

RICHARD WASSERBLY

CHARLES S. SIMS

STUART WILDER

BeTSY VOSS

Counsel for Amici Curiae

December 1985

12 we note that several states have reached

conclusions which are in accord with the above,See,

e.g., State V. Whorton, 225 Kan. 251, 589 P. 2d 610,

613 (1979); State v. Shaw, 282 Md. 231, 383 A. 2d

1104, 1108 (1978); Peonle v. Anderson, 409 Mich. 474,

295 N. W. 2d 482, 489-90 (1980); cert. denied, 449

U.S. 1101 (1981); State v. Greenwalt, 63 P. 2d 1178,

1181-82 (Mont. 1983); People v. Bro n, 40 N.Y. 2d 381,

386 N.Y.S. 2d 848, 856, 353 N.E. 2d 811, 817 (1976),

cert. denied, 433 U.S. 913 (1977); In re Dowling, 98

Wash. 2d 542, 656 P. 2d 497, 500 (1983).

o 27) «