Commonwealth v. McMullen

¶1dissenting.

¶2I respectfully dissent.

¶3Appellant, Kim Lee McMullen, challenges the Order of February 4, 1997, whereby the trial court denied appellant’s motion to dismiss this action on grounds of double jeopardy. In previous litigation, the Pennsylvania Supreme Court determined that the doctrine of corpus delicti barred the admission of appellant’s inculpatory statement because the statement was not corroborated by independent evidence that a crime had actually occurred. In this action, appellant claims that double jeopardy bars his retrial as without the inculpatory statement, the Commonwealth possessed insufficient evidence to convict appellant at his first trial.

¶4The Pennsylvania Supreme Court summarized the facts of this case as follows.

In the late evening or early morning hours of February 23-24, 1985, the Grocery Box, a food store in Orbisonia, Pennsylvania, was burglarized. Eight days later, on March 4,1985, the body of Dominic Barcelona was recovered from Black Log Creek, not far from the Grocery Box. The body was about 400 to 500 yards downstream from a highway bridge and about 300 yards downstream from a railroad bridge. Barcelona, a 80-year old schizophrenic, was well known throughout the community for his habit of taking extensive walks. He also walked with a limp sustained as a result of being hit by a car during one of these walks.

At the time of these events, the police made no connection between the burglary and Barcelona’s death. Instead, police concluded that Barcelona accidentally drowned because neither Barcelona’s body nor the location of his death bore evidence of foul play. This conclusion was supported by the pathologist who autopsied Barcelona and also by the county coroner.

However, after rumors surfaced that the burglary and drowning were related, the Pennsylvania State Police reopened both investigations in the latter part of 1989. [Appellant], who was then incarcerated on other charges, gave a statement averring that he and another man, Adam Wiser, burglarized the Grocery Box and, while fleeing, encountered Barcelona on a nearby bridge. McMullen, 420 Pa.Super. at 133, 616 A.2d at 15. [Appellant] further stated that Wiser, not he, threw Barcelona into the creek after apparently knocking him to the ground. Id.

¶5Commonwealth v. McMullen, 545 Pa. 361, 364-365, 681 A.2d 717, 719 (1996).

¶6*373After making the aforementioned inculpa-tory statement, appellant was charged with criminal homicide1 and burglary.2 From December 5-8, 1990, appellant was tried before a jury and subsequently found guilty of murder of the second degree and burglary. Appellant filed post-sentence motions, which were denied by the trial court. He then appealed to the Superior Court.

¶7On November 6, 1992, this Court vacated appellant’s convictions for second-degree murder and burglary and remanded the case for a new trial. See Commonwealth v. McMullen, 420 Pa.Super. 180, 616 A.2d 14 (1992), rev’d in part, 545 Pa. 361, 681 A.2d 717 (1996). In doing so, we found that appellant’s inculpatory statement was not corroborated by sufficient evidence to establish the corpus delicti for the homicide charge. Thereafter, the Commonwealth filed a petition for allowance of appeal, which was granted. On July 31, 1996, the Pennsylvania Supreme Court affirmed this Court’s vacation of appellant’s conviction for second-degree murder, but reversed the portion of our Order vacating appellant’s conviction for burglary. Commonwealth v. McMullen, 545 Pa. 361, 681 A.2d 717 (1996). With regard to the sufficiency of the corroborating evidence, the Pennsylvania Supreme Court found “that the evidence simply does not indicate that [the victim’s] death was more likely caused by criminal means than it was by an accident.” Id. at 373, 681 A.2d at 723.

¶8Following the Supreme Court’s ruling, the Commonwealth sought to retry appellant on the homicide charge. Appellant’s burglary conviction remained intact, but appellant already had served the maximum term of imprisonment.3 Consequently, appellant remained in prison solely as a result of the homicide charge.

¶9On January 2, 1997, appellant filed a motion to dismiss the Commonwealth’s case on the basis of double jeopardy. However, the Commonwealth cited a recently completed second autopsy as independent corroboration of appellant’s inculpatory statement, and the trial court denied appellant’s motion after determining that the Commonwealth possessed sufficient evidence to sustain a guilty verdict. Appellant thereafter filed notice of this appeal.

¶10Before addressing the merits of appellant’s appeal, I feel the need to reiterate the purpose of the corpus delicti doctrine and its effect on this ease. “Under the corpus delicti rule, extra-judicial inculpatory statements of the accused may not be admitted into evidence unless [they are] corroborated by independent evidence that a crime actually occurred.” McMullen, 545 Pa. at 368, 681 A.2d at 720. At trial, the Commonwealth relied on the first autopsy report as independent corroboration that a murder had taken place. However, the findings of the first autopsy report were consistent with an accidental death. As a result, the Pennsylvania Supreme Court found that the evidence did not establish the requisite corpus delicti or body of the crime.

¶11Without independent corroboration, appellant’s inculpatory statement should not have been admitted into evidence, and appellant now claims the double jeopardy clause bars retrial since the Commonwealth presented insufficient evidence to support his conviction.4 Generally, the double jeopardy clause’s prohibition against successive prosecutions “does not prevent the government from retrying a defendant who succeeds in getting his first conviction set aside ... because of some error in the proceedings leading to conviction.” Lockhart v. Nelson, 488 U.S. 33, 38, 109 S.Ct. 285, 289, 102 L.Ed.2d 265, 272 (1988). However, “an appellate court’s reversal for insufficiency of the evidence is in effect a determination that the government’s case against the defendant was so lacking that the trial court should have *374entered a judgment of acquittal.” Id.,488 U.S. at 89, 109 S.Ct. at 290, 102 L.Ed.2d at 273. Consequently, the double jeopardy clause will bar retrial when a conviction is reversed “because of insufficiency of the evidence.” Commonwealth v. Green, 370 Pa.Super. 343, 536 A.2d 436, 438 (1988). Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), and Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978), established the principle that a new trial may be granted if the conviction was based on procedural error, which could be corrected by an error-free trial, whereas if the conviction was based on insufficient evidence, and the appellate court so found, the appellant was entitled to acquittal at the trial level and a retrial was impermissible as placing appellant in double jeopardy. The distinction made in Burks, and adopted in Greene, handed down by the United States Supreme Court on the same day, is that procedural error such as prosecutorial misconduct, incorrect instructions, incorrect receipt or rejection of evidence implicates the defendant’s right to a fair trial free from error, whereas insufficient evidence goes to the essence of the proof of guilt and a conviction based on such evidence requires an acquittal. The prosecution cannot complain of prejudice for it has been given one fair opportunity to offer whatever proof it could assemble. Undoubtedly, in many cases of insufficient evidence resulting in acquittal, with greater opportunity to gather evidence, the proverbial second bite at the apple, the proof could be found to be sufficient.

¶12In this case, appellant’s conviction for second-degree murder was largely based on his inculpatory statement, and the Pennsylvania Supreme Court determined that this statement was inadmissible because it was not supported by sufficient corroborating evidence. I would find appellant’s conviction for second degree murder could not be supported by new proof discovered through a second autopsy, as the only admissible evidence in a second trial would be the evidence available at the first trial. To avoid the pitfall of a double jeopardy ruling, it is necessary that the new conviction be based on the same evidence available during the previous trial. Obviously, if the Commonwealth cannot present sufficient evidence to corroborate the occurrence of the murder, it cannot present sufficient evidence to support appellant’s conviction for that murder, independent of the admission. Although the • trial court found to the contrary, I believe it erroneously based its decision on the contents of the inculpatory statement itself, as well as the second autopsy report, which qualifies as new evidence or proof produced after the first trial.

¶13In its Opinion, the trial court relies on Lockhart, supra,for the proposition that a court must consider both admissible and inadmissible evidence in determining whether the prosecution presented sufficient evidence to sustain a guilty verdict. While this interpretation of Lockhartis not necessarily incorrect, Lockhartis nevertheless factually dissimilar from the instant action. Lockhartinvolved a defendant with numerous prior convictions, whose sentence was enhanced because of a particular conviction, inadmissible because of a pardon. The United States Supreme Court held that the double jeopardy clause did not bar resentencing since the prosecution could have presented sufficient support for the defendant’s enhanced sentence by simply providing evidence of another prior conviction which was available initially to the court in Lockhart.5In contrast, this ease does not involve a situation in which the prosecution is merely substituting admissible evidence for that which was inadmissible. See Hull v. State, 607 So.2d 369, 378-79 (Ala.Crim.App.1992) (distinguishing Lockharton the basis that the Lockhartprosecution had evidence to spare and, on resentencing, was able to substitute admissible for inadmissible evidence). Rather, the prosecution is attempting to circumvent the corpus delicti rule by reviving the appellant’s inculpatory statement found to be inadmissible by offering proof of the corpus delicti not available at the time of the first trial.

¶14Unlike the prosecution in Lockhart, the Commonwealth has failed to produce any *375evidence available at the original trial, which would serve as a substitute for appellant’s inculpatory statement. The Commonwealth instead seeks to admit appellant’s inculpatory statement into evidence on the basis of additional corroboration (new evidence), i.e., a second autopsy report. Although the second report does indicate that a murder occurred, it cannot constitute sufficient evidence for the purpose of permitting retrial since it simply did not exist at the time of appellant’s trial.

¶15“[T]he Double Jeopardy Clause forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding.” Tibbs v. Florida, 457 U.S. 31, 41, 102 S.Ct. 2211, 2218, 72 L.Ed.2d 652, 661 (1982). In the instant case, the prosecution is attempting to do this very thing. Shortly after the victim’s body was found, it was autopsied. The examination did not yield the results hoped for by the prosecution, but the prosecution did not bother to have the body reexamined prior to trial. Instead, the prosecution waited until long afterward when the appellant had succeeded on appeal. While the prosecution now argues that it possesses sufficient evidence to support appellant’s conviction, it ignores the fact that this evidence was only obtained after the appellant’s original trial.

¶16I believe this case clearly presents a situation in which the Commonwealth is violating the principles of the double jeopardy clause by successive attempts at conviction. At appellant’s trial, the Commonwealth failed to produce sufficient evidence to support appellant’s conviction. Since then, the Commonwealth has exhumed the victim’s body and attempted to perfect its evidence by obtaining a more favorable autopsy report. The prosecution claims that it should have a fair chance to present its evidence, however, the Commonwealth has already had its opportunity and I would find the opportunity is now lost.

¶17I would vacate the Order of the trial court and discharge appellant.