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Commonwealth v. Ogrod12/30/2003
and the parties presented their closing arguments to the jury. On October 8, 1996, the jury found Appellant guilty of attempted involuntary deviate sexual intercourse and murder in the first degree. At the conclusion of the penalty phase hearing, the jury found one aggravating circumstance -- that the murder was committed during the perpetration of a felony -- and that there were no mitigating circumstances and set the penalty at death.
Claims of Error
We now review the claims of error of Appellant. We begin with his argument that the second trial should never have occurred because it constituted double jeopardy. We then review the sufficiency of the evidence before addressing claims of error from the suppression hearing, the guilt phase, and the penalty phase. Finally, we conduct a proportionality review of the penalty of death imposed upon Appellant.
The Double Jeopardy Claim
Appellant alleges that he was retried in violation of the Double Jeopardy provisions of the United States and Pennsylvania Constitutions. He argues that when a defendant does not request a mistrial but one is declared, a second prosecution violates the Double Jeopardy clauses unless declaring a mistrial was manifestly necessary. Commonwealth v. Diehl, 615 A.2d 690 (Pa. 1992). Appellant quotes Green v. United States, 355 U.S. 184 (1957), which sets forth the commonly cited reasons for the prohibition against twice putting a defendant in jeopardy as follows:
he State, with all of its resources and power, should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.
Id. at 187-188. Appellant then argues that the circumstances of the deadlocked jury in the first trial of this case did not rise to the level required for a finding that there was manifest necessity for the granting of a mistrial.
The Commonwealth responds by arguing that the double jeopardy claim of Appellant has already been fully and fairly adjudicated and resolved against him. The Commonwealth correctly points out that Appellant took his double jeopardy claim through the state court system, even seeking review by the United States Supreme Court, and then filed a habeas petition with the U.S. District Court, which considered the claim but eventually denied him relief.
The Commonwealth makes two arguments. First, it contends that Appellant has already litigated his double jeopardy claim, that denial of relief is the law of the case, and that, accordingly, Appellant is not entitled to relitigate his claims. Second, the Commonwealth maintains that a hung jury is a classic situation in which there is manifest necessity to grant a mistrial and that; in any event, Appellant should not be heard to object to the mistrial because it was his attorney who originally requested it. We address these claims seriatim.
With regard to the first argument of the Commonwealth that we need not reach the merits of the claim because the claim was previously fully and fairly adjudicated, we cannot agree. As the denial of review does not constitute a ruling on the merits, see Commonwealth v. Davis, 546 Pa. 158, 159, 683 A.2d 873 (1996) (per curiam); Commonwealth v. Tarver, 493 Pa. 320, 331, 426 A.2d 569, 575 (1981), the question is raised whether the Superior Court's denial of relief on interlocutory appeal binds this Court, under the law of the case doctrine, upon review of the trial court's final order imposing judgment of sentenc
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