Inconsistent Verdicts in Consolidated Jury/Bench Trials

Commonwealth v. Jordan, 2020 WL 4436287 (Pa. Super. 2020) (unreported), allocatur granted Dec. 20, 2020, appeal docket 31 WAP 2020

This case arises from Gregory Jordan’s appeal of his conviction on a firearm charge following a bench trial after the charge was severed from related, consolidated charges subject to jury trial. The trial court summarized the background as follows:

By way of background, [Appellant] originally was charged at CC No. 2017-1702 with [the following crimes in relation to an incident that occurred with Tishana Nowlin on January 16, 2017]: Criminal Attempt – Homicide (18 Pa.C.S.A. § 901) (Count 1); Robbery (18 Pa.C.S.A. § 3701) (Count 2); Aggravated Assault (18 Pa.C.S.A. § 2702) (Count 3); Criminal Conspiracy (18 Pa.C.S.A. § 903) (Count 4); Person Not to Possess a Firearm (18 Pa.C.S.A. § 6105) (Count 5); Carrying a Firearm Without a License (18 Pa.C.S.A. § 6106) (Count 6); Terroristic Threats (18 Pa.C.S.A. § 2706) (Count 7); Theft by Unlawful Taking (18 Pa.C.S.A. § 3921) (Count 8) and Disorderly Conduct (18 Pa.C.S.A. § 5503) (Count 9). The Person Not to Possess charge subsequently was severed and charged in the information filed at CC No. 2018-12031.

[Regarding an incident that occurred with Tim Harris on January 3, 2017, Appellant] was charged at a separate information at CC No. 2017-1887 with Robbery (18 Pa.C.S.A. § 3701) (Count 1); Person Not to Possess a Firearm (18 Pa.C.S.A. § 6105) (Count 2); Carrying a Firearm without a License (18 Pa.C.S.A. § 6106) (Count 3); Criminal Trespass (18 Pa.C.S.A. § 3503) (Count 4); Simple Assault (18 Pa.C.S.A. § 2701) (Count 5); Recklessly Endangering Another Person (18 Pa C.S.A. § 2705) (Count 6); and Criminal Conspiracy (18 Pa.C.S.A. § 903) (Count 7). The Person Not to Possess charge subsequently was severed and charged in the information filed at CC No. 2018-12032.

Prior to the commencement of trial, the Commonwealth nolle prossed the charge of Theft by Unlawful Taking at CC No. 2017-1702, as well as the charges of Criminal Trespass and Recklessly Endangering Another Person at CC No. 2017-1887.

On October 1, 2018, [Appellant] proceeded to a simultaneous jury and bench trial (“joint trial”). It was the understanding of this court and the parties that the jury would hear the remaining charges at CC Nos. 2017-1702 and 2017- 1887, while this court simultaneously sat as the fact-finder with respect to the summary disorderly conduct offense at CC No. 2017-1702, and the severed firearm charges at CC Nos. 2018- 12031 and 2018-12032. At the conclusion of the joint trial, the jury found [Appellant] not guilty of Robbery, Conspiracy, and Terroristic Threats at CC No. 2017-1702, and not guilty of Robbery, Simple Assault, and Conspiracy at CC No. 2017-1887. Although this court had reached its own verdict at the same time as the jury, the court, out of an abundance of caution, wanted an opportunity to conduct legal research and confirm its belief that it was free to render its own factual findings, even if those findings were inconsistent with the jury’s verdict. Having determined that it was not bound by the jury’s verdict, this court officially rendered its verdict on October 10, 2018. The court found [Appellant] guilty of disorderly conduct at CC No. 2017- 1702 and guilty of the severed firearm charge at CC No. 2018- 12031. The court acquitted [Appellant] of the severed firearm charge at CC No. 2018-12032.

Slip op. at 1-3 (footnotes and internal record citations omitted). Addressing the inconsistent verdict, the trial court explained:

it is respectfully submitted that this court was not bound by the jury’s factual findings in the simultaneous joint trial. This court was acting as an independent fact-finder with respect to the two (2) charges that were being tried simultaneously with the offenses that were tried before the jury. In discharging its fact-finding duty, the court was not just permitted, but rather was required, to make its own credibility determinations and factual findings based on its own assessment of the evidence. Moreover, the determinations made by the jury and this court were based on evidence that was presented during the same prosecution. Indeed, evidence of [Appellant’s] certified record making him a person not to possess was introduced before closing arguments, albeit outside of the jury’s presence. As noted, the verdicts by the jury and this court were reached at the same time. The only reason that this court did not formally render its verdict at the same time as the jury was so that it could research the very issue raised in this appeal. Thus, for all the reasons just stated, [Appellant‘s] contention is without merit.

Slip op. at 9 (internal record citations omitted). Jordan appealed, arguing that current precedent that permits inconsistent verdicts in combined bench/jury trials is not binding and urged reconsideration of such precedent.

Superior Court affirmed the trial court’s decision, summarizing the current law as follows:

This case involved an inconsistent verdict. Such verdicts, “while often perplexing, are not considered mistakes and do not constitute a basis for reversal.” Commonwealth v. Petteway, 847 A.2d 713, 718 (Pa. Super. 2004) (citations omitted). In prior decisions addressing the issue of inconsistent respective verdicts of the jury and the trial court, this Court held that inconsistent verdicts are permissible in Pennsylvania. Commonwealth v. Wharton, 594 A.2d 696, 699 (Pa. Super. 1991); Commonwealth v. Yachymiak, 505 A.2d 1024, 1026 (Pa. Super. 1986). “We reasoned that: an acquittal cannot be interpreted as a specific finding in relation to some of the evidence presented; an acquittal may represent the jury’s exercise of its historic power of lenity; and a contrary rule would abrogate the criminal procedural rules that empower a judge to determine all questions of law and fact as to summary offenses.” Wharton, 594 A.2d at 698-699; Yachymiak, 505 A.2d at 1026-1027. When a judge and jury act as separate fact finders in a consolidated jury/nonjury trial, “the trial court is not required to defer to the findings of the jury on common factual issues.” States, 938 A.2d at 1024 (quoting Wharton, 594 A.2d at 699). Moreover, as this Court recognized in Yachymiak, it is difficult, if not impossible, to determine when two verdicts are truly inconsistent. Yachymiak, 505 A.2d at 1026. Our Supreme Court explained that “the Superior Court’s decisions in Wharton and Yachymiak, which, in the absence of any comment by this Court, constitute the current state of the law in this Commonwealth.” States, 938 A.2d at 1025.

Slip op. at 8-9. Applying Wharton and Yachymiak to Jordan’s case, Superior Court concluded:

Where, as here, a simultaneous jury/bench trial is conducted and the defendant is not subjected to a subsequent trial following an acquittal, the trial court is not bound by the jury’s credibility determinations and may make findings different from and inconsistent with the jury’s findings. Wharton, 594 A.2d at 699; Yachymiak, 505 A.2d at 1027. Compare States, 938 A.2d at 1021-1027 (where summary offense acquittal necessarily decided issue, subsequent jury trial on charges inconsistent with that acquittal was barred). Indeed, it is undisputed that a single jury/bench trial occurred in this matter. Thus, the jury’s verdicts of acquittal on the various offenses related to the incident involving Tishana Nowlin on January 16, 2017, have no bearing on the findings of the trial court leading to the conviction on the offense of person not to possess a firearm. Even assuming, for the sake of argument, that we were to deem the trial court’s verdict inconsistent with the jury’s verdict, we would conclude that a trial court is permitted to render an inconsistent verdict. Hence, Appellant’s claim lacks merit.

Moreover, to the extent Appellant would have us ignore the holdings in Wharton and Yachymiak, we observe that we must follow the decisional law established by our own Court. Commonwealth v. Santiago, 980 A.2d 659, 666 n.6 (Pa. Super. 2009). Unless Wharton and Yachymiak are overturned by an en banc panel of this Court, or by a decision of the Pennsylvania Supreme Court, they continue to be viable precedent for this Court and for the courts of common pleas. Id. See also Sorber v. American Motorists Ins. Co., 680 A.2d 881, 882 (Pa. Super. 1996) (holding that, even though petition for allowance of appeal was pending before the Pennsylvania Supreme Court, decision remains binding precedent as long as the decision has not been overturned by our Supreme Court).

Slip op. at 9-10.

Included in the issue before the Pennsylvania Supreme Court is the Superior Court’s decision in Commonwealth v. Rankin, 235 A.3d 373 (Pa. Super. 2020), which was decided months after Jordan’s appeal. In that case, Rankin appealed from a judgment of sentence of a $200 fine, imposed after the trial court found him guilty of three summary violations of the Motor Vehicle Code (MVC) following a consolidated jury/bench trial in which Rankin was acquitted of a misdemeanor MVC charge that also arose from the incident underlying the summary MVC violations.  There, Superior Court reversed the judgment of sentence, concluding that collateral estoppel and double jeopardy principles precluded the non-jury guilty verdict as Rankin’s his identity was the only contested issue before the jury and, therefore, that the trial court’s verdict had essentially nullified the jury’s verdict.

The Pennsylvania Supreme Court granted allocatur to consider:

Whether the Superior Court panel erred as a matter of law in concluding that inconsistent verdicts are always permissible in consolidated jury/bench trials pursuant to Commonwealth v. Yachymiak, 505 A.2d 1024 (Pa. Super. 1986) and Commonwealth v. Wharton, 594 A.2d 696 (Pa. Super. 1991), particularly where a different panel of the Superior Court reached the exact opposite conclusion in Commonwealth v. Rankin, [235 A.3d 373 (Pa. Super. 2020)]?

For more information, contact Kevin McKeon or Dennis Whitaker.