Commonwealth v. Viglione1/29/2004
es that no 'person [shall] be subject for the same offense to be twice in jeopardy of life or limb. . . .'" Commonwealth v. McGee, 560 Pa. 324, 327, 744 A.2d 754, 756 (2000), quoting U.S. Const. Amend. V. As the McGee court noted, although McGee's arguments were premised exclusively upon the Double Jeopardy Clause of the United States Constitution, our supreme court "has recognized that the corresponding proscription contained in the Pennsylvania Constitution, Pa. Const. art. 1, § 10, 'involves the same meaning, purpose, and end '; thus, it has generally been construed as coextensive with its federal counterpart." McGee, supra at 327 n.2, 744 A.2d at 756 n.2, quoting Commonwealth v. McCane, 517 Pa. 489, 500 n.5, 539 A.2d 340, 346 n.5 (1988).
"'Whether the Double Jeopardy Clause has been violated is a matter of law, reviewed de novo'" by an appellate court. United States v. Byrne, 203 F.3d 671, 673 (9 th Cir. 2000), cert. denied, 531 U.S. 1114 (2001), quoting United States v. McClain, 133 F.3d 1191, 1193 (9 th Cir. 1998), cert. denied, 524 U.S. 960 (1998) (other citation omitted).
According to appellant, his first jeopardy terminated when the trial court orally granted defense counsel's motion for judgment of acquittal on one of two counts, driving while operating privilege is suspended or revoked, not DUI related, at the close of the Commonwealth's case in a non-jury trial. Thus, according to appellant, when the trial court subsequently denied the motion for acquittal following the Commonwealth's description of the evidence supporting a conviction for driving with license suspended, as set forth supra, the trial court placed appellant twice in jeopardy for the same offense. In support of his argument, appellant relies primarily upon Smalis v. Pennsylvania, 476 U.S. 140 (1986); and Commonwealth v. Stark, 526 Pa. 1, 584 A.2d 289 (1990). Appellant also distinguishes the facts of this case from the facts of Price, supra, a case upon which the Commonwealth relies.
We agree with appellant that this case is distinguishable from Price, supra, both procedurally and substantively. Procedurally, Price involved an appeal from the grant of federal habeas relief, and therefore invoked a far more deferential standard of review than our standard in this case. Substantively, Price is also distinguishable because the trial court articulated a much less decisive ruling than the trial court did in this case. The trial court in Price stated:
' y impression at this time is that there's not been shown premeditation or planning in the, in the alleged slaying. That what we have at the very best is Second Degree Murder . . . . I think that Second Degree Murder is an appropriate charge as to the defendants. Okay.'
Price, supra at , 123 S.Ct. at 1851, quoting Vincent v. Jones, 292 F.3d 506, 508 (6 th Cir. 2002), quoting notes of testimony (no citation given). Following the judge's statement, the prosecutor asked to make a brief statement regarding first degree murder the following morning, and the trial court granted the request.
Defense counsel objected to the statement the next morning, however, claiming the court had already granted a motion for a directed verdict on the first degree murder charge the previous day; therefore, any further prosecution would violate the Double Jeopardy Clause. Id. The judge responded, "'Oh, I granted a motion but I have not directed a verdict.'" Id., quoting Vincent, 292 F.3d at 509, quoting notes of testimony. The trial court observed that the jury had not been informed of his statements and that he would reserve ruling on the matter. Ultimately the first degree murder charge went to the jury, which convicted Vincent of that c
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