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Commonwealth v. Viglione1/29/2004
conclusion, the Sperry court found both "instructive and persuasive " United States v. Baker, 419 F.2d 83 (2d Cir. 1969), cert. denied, 397 U.S. 976 (1970). Id. Observing that the double jeopardy argument presented in Baker was almost identical to the argument urged in Sperry, the Sperry court observed, "The Second Circuit concluded that the trial court's reconsideration of its oral granting of a motion for a judgment of acquittal and subsequent reinstatement of a charge did not violate the Fifth Amendment's double jeopardy bar[.]" Id. The Sperry court then quoted Baker, in which the Second Circuit Court of Appeals opined:
'In the case before us, no final judgment of acquittal was ever entered, and certainly Baker was not subjected to the harassment of successive prosecutions. Nor did the prosecution seek a delay in order to obtain a more favorable opportunity to convict. The only prejudice Baker suffered is psychological; his hopes were first raised, then quickly lowered. But so ephemeral and insubstantial an injury is not proscribed by the Constitution.' Sperry, 945 P.2d at 551, quoting Baker, 419 F.2d at 89.
Continuing, the Sperry court observed, "Here, as in Baker, it is arguable that defendant may have suffered some incremental psychic distress from believing overnight that one of the charges against him had been dismissed and learning the next morning that it had not." Id. As the Oregon Court of Appeals continued, "Conversely, none of the other concerns that underlie double jeopardy protections was implicated. Defendant was 'not subjected to the harassment of successive prosecutions.'" Id., quoting Baker, 419 F.2d at 89. Additionally, as the Sperry court observed, "Nor did the state gain any tactical advantage or defendant incur any tactical detriment." Id., citing State v. Bannister, 118 Or.App. 252, 257, 846 P.2d 1189 (1993) (opining, "The purpose of the former jeopardy rule is to protect defendants from harassment by the state and to prevent the state from seeking to hone its case against a defendant through repeated prosecutions.").
Finally, the Sperry court reasoned, "Here, as in Baker, nothing substantive occurred between the court's oral pronouncement of the order and its oral reversal of the order. Nor does defendant suggest that the state engaged in prosecutorial misconduct or that the court's actions in any way affected the jury's fact-finding process." Id. at 552.
Applying the rationale behind the constitutional protections the Double Jeopardy Clause is intended to afford, and considering the manner in which other courts have analyzed that rationale when addressing similar factual scenarios, we conclude that in this case, the trial court did not violate the Double Jeopardy Clauses of either the United States or Pennsylvania Constitutions. A matter of moments passed between the court's grant and denial of the motion for judgment of acquittal; the Commonwealth did not re-open its case to present more evidence; appellant was not subjected to harassment or uncertainty; the Commonwealth did not gain and appellant did not lose any tactical advantage; and, at worst, appellant had his hopes raised, and just as quickly lowered, by the trial court's actions. We agree with the Sperry court that "'so ephemeral and insubstantial an injury is not proscribed by the Constitution.'" Id., quoting Baker, 419 F.2d at 89.
Having found no merit to appellant's double jeopardy claim, we must necessarily find no merit to his ineffectiveness of counsel claims as well. As a result, we affirm appellant's judgment of sentence.
Judgment of sentence affirmed.
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