Com. v. Redanauer, R. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
ROBERT REDANAUER : No. 1631 EDA 2021
Appeal from the Order Entered July 15, 2021
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): MC-51-CR-0007444-2021,
MC-51-CR-0007445-2021
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
ROBERT REDANAUER : No. 1632 EDA 2021
Appeal from the Order Entered July 15, 2021
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): MC-51-CR-0007444-2021,
MC-51-CR-0007445-2021
BEFORE: McLAUGHLIN, J., McCAFFERY, J., and PELLEGRINI, J.*
MEMORANDUM BY McLAUGHLIN, J.: FILED JANUARY 13, 2023
The Commonwealth appeals the order of the court dismissing two cases
arising from the same incident involving Robert Redanauer. The
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* Retired Senior Judge assigned to the Superior Court.
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Commonwealth argues that the court erroneously determined that a trial
occurred instead of a preliminary hearing. We affirm.
On April 20, 2021, the Commonwealth filed a criminal complaint against
Redanauer. The complaint alleged that on or about December 27, 2020,
Redanauer “attempted to put Daniel Taylor and [A.] in fear of imminent bodily
injury by pointing a firearm in their faces and saying, ‘I’m going to shoot you
fucker’ as he walked towards them.” See Criminal Complaint, DC # 20-08-
039365. The Commonwealth charged Redanauer with misdemeanor crimes of
simple assault, recklessly endangering another person (REAP), possessing
instruments of crime (PIC), and terroristic threats.1 See id. Because the
Commonwealth alleged that there were two victims, “the First Judicial District
assigned the matter two Municipal Court docket numbers at the preliminary
arraignment stage[.]” Commonwealth’s Br. at 7. The minor victim was
docketed at 7444-2021 and Daniel Taylor was docketed at 7445-2021. See
PARS Report, Docket 7444-2021 (“Juvenile Complainant”); PARS Report,
Docket 7445-2021 (“Daniel Taylor”).
On June 9, 2021, the Commonwealth filed a Certification of
Commonwealth’s Exercise of Right to a Jury Trial. In the certification, the
Commonwealth noted that the case was listed for trial in Municipal Court but
requested that it be relisted for a preliminary hearing pursuant to the
Commonwealth’s right to proceed by way of a jury trial in the Court of
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1 18 Pa.C.S.A. §§ 2701(a)(3), 2705, 907, and 2706, respectively.
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Common Pleas under Rule 1001(D) of the Pennsylvania Rules of Criminal
Procedure. See Certification, filed 6/9/21; Pa.R.Crim.P. 1001(D). The filing
listed one docket, 7444-2021. The Commonwealth did not file a certification
for the remaining docket, 7445-2021. The court entered an order stating that
“[t]his matter, currently listed for a trial on July 15, 2021, . . . shall be
scheduled for a preliminary hearing . . . on July 15, 2021.” Order, filed
6/14/21. This order listed one docket, 7444-2021.
On July 15, 2021, both cases were listed before Judge James Lynn, a
Court of Common Pleas judge in Philadelphia. The Commonwealth’s only
witness was Daniel Taylor. Taylor testified that on December 27, 2020, he
lived with his mother, his little brother, A., and his sister. See N.T., Preliminary
Hearing, 7/15/21, at 6. On the evening of the 27th, he was in the living room
eating soup when he heard A. knocking on his mother’s bedroom door. Id. at
7. He heard a male voice say, “Why don’t you come in here, you little fucker.”
Id. A. continued to knock on the door; Daniel stopped eating, went upstairs
to his mother’s bedroom door and saw that the light was on. Id. at 7,9. He
testified that Redanauer, his mother, and A. stood at the door frame. Id. He
then saw “[Redanauer] in the process of grabbing a semiautomatic pistol off
the dresser.” Id. at 7. When Taylor saw this, he put his hands up and said,
“Please don’t shoot me.” Id. at 8. He testified that the male said, “Why don’t
you come here so I can fucking shoot you.” Id. Taylor testified that he backed
out of the room, ran downstairs, and called 911. Id.
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The Commonwealth asked Taylor what he was wearing at the time and
the court interrupted, saying “Who cares.” Id. at 9. The Commonwealth stated
that it would move on to the next question to which the court responded, “We
are at a preliminary hearing.” Id. The court also added, “It is completely
irrelevant with what we are doing here today.” Id. at 10. The Commonwealth
completed its questioning of Taylor by asking about the firearm and how he
knew it was a firearm. Taylor testified that he knew because, “I shot guns my
whole life.” Id. at 12. Following cross-examination and re-direct, the
Commonwealth rested its case. See id. at 23. The court then heard argument
from both parties.
Defense counsel stated, “I like to start every argument at a preliminary
hearing just by pointing out that I understand what the standard is, I
understand that it is different than a trial[.]” Id. at 23. He argued that the
court “should discharge each of these matters for lack of evidence.” Id. at 26.
Counsel also argued that since the Commonwealth only certified docket 7444-
2021 for a preliminary hearing, the court should find Redanauer not guilty on
the remaining docket. Id. He argued that since the Commonwealth did not
file a certification of a jury trial for docket 7445, it remained a trial and
therefore the Commonwealth did not meet its burden of proving guilt beyond
a reasonable doubt. Id. at 27. He then argued that if the court found
Redanauer not guilty at docket 7445, then “jeopardy is attached and
prosecution is barred on [7]444.” Id.
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The Commonwealth argued that joinder was automatic and therefore
when it filed a certification at docket 7444 it included 7445. Id. at 29. It also
argued that a trial never commenced because “the defense did not waive
arraignment and enter a plea of not guilty[.]” Id.
The trial court stated that at docket 7444, “a prima facie case was never
established” and that the evidence was insufficient. Id. at 31. As to docket
7445, the court concluded that a trial had occurred. It found Redanauer not
guilty and that Redanauer was not guilty as to docket 7444, “because double
jeopardy, which attached when the trial was held 7445-2021.” Id. at 32.
Though the court did not enter an order, the docket for 7444 reads “Jury
Demand – TRIAL – due to the trial on other matter ending in 7445-2021 –
double jeopardy NOT GUILTY on all charges.” Docket 7444-2021, entry 13.
Docket 7445 reads “Jury Demand – ready TRIAL – NOT GUILTY on all
charges.” Docket 7445-2021, entry 12.
The Commonwealth filed a notice of appeal with this Court. In its notice,
the Commonwealth stated that the order of the court “is presently
unavailable.” Notice of Appeal, filed 8/10/21. As of this memorandum, there
is no order from the court. Nevertheless, we do not find a remand necessary
or feasible since Judge Lynn has since retired from the bench.
The Commonwealth raises the following issue:
Did the lower court err in purporting to enter final and case-
dispositive judgments (not guilty in No. MC-51-CR-
0007445-2021 and insufficient evidence and “[a]dditionally
. . . not guilty” in No. MC-51-CR-0007444-2021), following
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a proceeding that was listed and acknowledged by the
parties and the court to have been a preliminary hearing?
Commonwealth’s Br. at 4.
The Commonwealth maintains that the hearing on July 15 was a
preliminary hearing and not a trial for both cases. It argues that despite the
court’s characterization of the hearing as a trial, a trial did not occur. The
Commonwealth maintains that a trial could not have happened because
“[Redanauer] had not (with respect either to the 7444 or 7445 docket) waived
his right to a preliminary hearing, been arraigned, or entered any plea, let
alone the plea of not guilty that serves as the final formal demand for a trial.”
Commonwealth’s Br. at 15. It further notes that “the lower court curtailed the
direct examination of the complaining witness on the 7445 docket, the very
docket for which the lower court later concluded that the preliminary hearing
had really been a trial.” Id. at 16 (citing N.T., 7/15/21, at 9). The
Commonwealth maintains that the court did not have the legal authority to
convert the preliminary hearing into a trial.
Regarding its certification for a jury trial, the Commonwealth argues that
the entire matter was listed for a preliminary hearing, despite the certification
only listing one docket. It alleges that because one person committed multiple
offenses, the court “sitting as the preliminary hearing issuing authority, was
obligated to ‘accept only one complaint’ with the entire ‘matter’ then to
proceed ‘as a single case.’” Id. at 18 (citing Pa.R.Crim.P. 505(B) and
1000(B)). It maintains that it listed all charges in a single complaint and was
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required to try the cases together based on the compulsory joinder rule. See
id. at 19. It further notes that the docket itself reflects that the cases were
consolidated, “with each docket listing the other docket number – on boldfaced
text – as a ‘Consolidated Defendant Case[].’” Id.
“It is . . . well-settled in our jurisprudence that a preliminary hearing is
not a trial[.]” Commonwealth v. Montgomery, 234 A.3d 523, 533 (Pa.
2020). At a preliminary hearing, the Commonwealth must present “a prima
facie case that a crime has been committed and that the accused is probably
the one who committed it.” Id. (citation omitted). When presiding over a
preliminary hearing, the court has only two options: discharge the case or
hold the defendant over for court. See Pa.R.Crim.P. 543(B). If the court
discharges the case, the Commonwealth may refile the case. See Pa.R.Crim.P.
544(A). The court “is not required, nor is he authorized, to determine the
accused’s guilt or innocence of the charge at the preliminary hearing.”
Commonwealth v. Harvin, 500 A.2d 98, 101 (Pa.Super. 1985). In contrast,
the Commonwealth’s burden for a trial is “to prove beyond a reasonable doubt
all elements of the crime charged.” Commonwealth v. Cottam, 616 A.2d
988, 1000 (Pa.Super. 1992).
We first address the Commonwealth’s argument we should consider
both dockets as one “matter” because it filed one complaint. The
Commonwealth maintains that Rule 505(B) supports its argument that both
cases, though docketed separately, proceeded as one matter. Rule 505(B)
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provides that “[w]hen more than one offense is alleged to have been
committed by one person arising from the same incident, the issuing authority
shall accept only one complaint, and shall docket the matter as a single case.”
Pa.R.Crim.P. 505(B). While the statute addresses multiple offenses by one
person arising from the same incident, it is silent as to multiple victims. As
such, Rule 505(B) is inapplicable in determining whether these two cases
should have been considered and docketed as a single case.
Two dockets were created based on the same incident of Redanauer
allegedly threatening to shoot a minor child and his brother, Taylor. Docket
7444-2021 was in relation to the minor child and docket 7445-2021 was in
relation to Taylor. The Commonwealth in its certification for a jury trial listed
only one docket, docket 7444. The court in granting the certification listed
only one docket, 7444. Further, only docket 7444 lists the Commonwealth’s
request for a jury trial. See Docket 7444-2021, Entry 10 (“Request for Trial
by Jury”). Despite the Commonwealth’s suggestion that the cases proceeded
as one matter, the record does not support such a conclusion. We address
each docket separately.
DOCKET 7444-2021 (Minor Victim)
We conclude that the court erroneously found Redanauer not guilty at
this docket. This court scheduled this docket for a preliminary hearing. The
certification order by the president judge specified that though it originally
was listed for trial, it now would be listed for a preliminary hearing. See
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Certification Order. Furthermore, the court acknowledged that the hearing was
a preliminary hearing, evidenced by limiting the Commonwealth’s questioning
of the witness and reminding the Commonwealth that “[w]e are at a
preliminary hearing.” N.T., 7/15/21, at 9. As such, the sole role of the court
was to determine whether the Commonwealth made out a prima facie case.
See Harvin, 500 A.2d at 101; Pa.R.Crim.P. 542(D) (“At the preliminary
hearing, the issuing authority shall determine from the evidence presented
whether there is a prima facie case that (1) an offense has been committed
and (2) the defendant has committed it”). Here, the court entered a verdict
of not guilty based on its finding of not guilty at docket 7445. This was
erroneous. The court did not have the authority to transform the preliminary
hearing into a trial.
DOCKET 7445-2021 (Daniel Taylor)
The trial court treated this docket as a trial. “A trial commences when
the trial judge determines that the parties are present and directs them to
proceed to voir dire or to opening argument, or to the hearing of any motions
that had been reserved for the time of trial, or to the taking of testimony, or
to some other such first step in the trial.” Pa.R.Crim.P. 600, comment –
Commencement of Trial; Time for Trial. Additionally, a “trial shall be deemed
to commence on the date the Municipal Court judge calls the case to trial, or
the defendant tenders a plea of guilty or nolo contendere.” Pa.R.Crim.P.
1013(B). Furthermore, before a trial may ensue, the defendant should be
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arraigned. See Pa.R.Crim.P. 1004. The purpose of an arraignment is “to
ensure that the defendant is advised of the charges[,] to have counsel enter
an appearance, . . . and to commence the period of time within which to
initiate pretrial discovery and to file other motions.” See Pa.R.Crim.P. 571,
comment.
Following the introduction of both counsel for the record, the court asked
the Commonwealth to call its first witness. N.T., 7/15/21, at 5. As to either
docket, the court did not arraign Redanauer. Redanauer also never entered a
plea of not guilty. See Pa.R.Crim.P. 590(A)(1) (“Pleas shall be taken in open
court”), (A)(2) (“[a] defendant may plead not guilty, guilty, or with the
consent of the judge, nolo contendere”). Additionally, the hearing transcript
lists both dockets and describes the hearing as “Preliminary Hearing.” N.T.,
7/15/21, at 1.
Nevertheless, we agree that a trial took place under this docket. Unlike
docket 7444, the Commonwealth did not certify this case for a jury trial. Thus,
the case remained listed for trial. See Docket 7445-2021, Entry 9 (“Trial
Scheduled” and continued to 7/15/21). Therefore, the court’s verdict of not
guilty must stand. As such, we now must address whether double jeopardy
prevents the remand of docket 7444.
DOUBLE JEOPARDY
The court determined that because of its verdict of not guilty at docket
7445, double jeopardy attached to docket 7444. A claim of double jeopardy is
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a question of constitutional law of which our scope of review is plenary. See
Commonwealth v. Townley, 722 A.2d 1098, 1098 (Pa.Super. 1998). The
Pennsylvania and United States Constitutions protect individuals from being
“twice put in jeopardy of life or limb;” for the same offense. Pa. Const. Art. 1,
§ 10; U.S.C.A. Const. Amend. V. A subsequent prosecution is barred for the
same offenses arising from the same facts as a former prosecution if the
former prosecution resulted in an acquittal. See 18 Pa.C.S.A. § 109(1). “There
is an acquittal if the prosecution resulted in a finding of not guilty by the trier
of fact[.]” Id. The protection from double jeopardy does not apply until it has
attached. “In a bench trial, . . ., jeopardy attaches when the trial court begins
to hear the evidence.” Commonwealth v. Vargas, 947 A.2d 777, 780
(Pa.Super. 2008).
Here, the court found Redanauer not guilty at docket 7445. The facts at
this docket are the same as docket 7444, arise from the same incident, and
involve the same offenses. See 18 Pa.C.S.A. § 109(1). Additionally, the court
heard evidence from the Commonwealth’s witness Taylor. Therefore, we must
conclude that further prosecution under docket 7444 is barred by double
jeopardy. Thus, although the trial court erroneously treated docket 7444 as a
trial instead of a preliminary hearing, the court acquitted Redanauer at the
remaining docket.
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Additionally, we are guided by Section 110 of the Crimes Code2 and the
Supreme Court’s decision in Commonwealth v. Campana, 304 A.2d 432(Pa. 1973) (first Campana decision) and its addendum opinion, 314 A.2d 854(Pa. 1974) (addendum Campana decision).
Section 110(1) provides, in relevant part:
Although a prosecution is for a violation of a different provision of
the statutes than a former prosecution or is based on different
facts, it is barred by such former prosecution under the following
circumstances:
(1) The former prosecution resulted in an acquittal or in a
conviction as defined in section 109 of this title (relating to
when prosecution barred by former prosecution for the
same offense) and the subsequent prosecution is for:
* * *
(ii) any offense based on the same conduct or arising
from the same criminal episode, if such offense
was known to the appropriate prosecuting
officer at the time of the commencement of the first
trial and occurred within the same judicial district as
the former prosecution unless the court ordered a
separate trial of the charge of such offense or the
offense of which the defendant was formerly convicted
or acquitted was a summary offense or a summary
traffic offense. . . .
18 Pa.C.S.A. § 110(1)(ii) (emphasis added).
This Court summarized the Campana decisions as follows:
In [first Campana decision], the [Supreme C]ourt stated
that the double jeopardy clause of the United States Constitution
was violated when an attempt was made to prosecute a
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2 18 Pa.C.S.A. § 110 (when prosecution is barred by former prosecution for
different offense).
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defendant a second time on charges arising from the same
incident for which he had previously been tried on different
charges. The United States Supreme Court, however, vacated
this judgment, Pennsylvania v. Campana, 414 U.S. 808 (1973),
and on remand the Supreme Court of Pennsylvania held in [the
addendum Campana decision], that the decision was not based
on federal constitutional law but on its supervisory powers. It was
further stated that the Court’s views on the issue of
compulsory consolidation of all charges arising from a
single criminal episode were entirely in harmony with
Section 110 of the new Crimes Code.
Commonwealth v. Green, 335 A.2d 493, 495 (Pa. Super. 1975) (emphases
added & footnote omitted).
In Campana, the Supreme Court noted that “‘[e]pisode’ is defined as
‘an occurrence or connected series of occurrences and developments which
may be viewed as distinctive and apart although part of a larger or more
comprehensive series.’” Campana, 304 A.2d at 439 (citation & internal
quotation marks omitted). Quoting State v. Brown, 497 P. 2d 1191, 1198
(Ore. S.Ct. 1972), the Campana Court supported the notion that “a second
prosecution is for the same offense and is prohibited if (1) the charges arise
out of the same act or transaction [and] that the prosecution must as a general
rule join in the same indictment charges that are founded on the same facts,
or form or are part of a series of offenses of the same or similar character. . .
.” Campana, 304 A.2d at 439 (italics in original & quotation marks omitted).
The Court emphasized the interests on both sides that benefit from the “same
transaction” test: (1) “[b]y requiring compulsory joinder of all charges arising
from a single ‘transaction,’ a defendant need only once ‘run the gauntlet’ and
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confront the ‘awesome resources of the state’”; and (2) “[c]ompulsory joinder
of all offenses arising from a single ‘transaction’ avoids piecemeal litigation
and thus conserves precious judicial and professional manpower as well as the
time of jurors, witnesses, and the use of public resources.” Id. at 440-41.
The Court then held that “the Double Jeopardy Clause requires a prosecutor
to bring, in a single proceeding, all known charges against a defendant arising
from a ‘single criminal episode.’” Id. at 441.
The Campana Court then turned to the appeal before it. Policer officers
received a report of a disturbance and when they arrived, they observed the
defendant in a physical altercation with his friends. Campana, 304 A.2d at
442. When the officers asked for identification, the defendant then assaulted
them. Id. The defendant was charged with disorderly conduct, resisting
arrest, and assault of a police offer. Id. at 433. A justice of the peace found
him not guilty of disorderly conduct. Id. The other charges were dismissed
for lack of sufficient evidence. Id. The Commonwealth subsequently
instituted the charges of resisting arrest and assault before another justice
who bound the defendant over to a grand jury. Id. He was later tried by a
jury and convicted. Id. The Supreme Court noted that “all parties concede[d]
that the events were part of a single transaction[, and therefore, the
defendant], who was initially acquitted of disorderly conduct, should not have
had to ‘run the gantlet’ for a second time on charges arising from the same
criminal episode.” Id. at 442.
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In Green, this Court applied the Campana decision to the following
scenario. There, the defendant was involved in a verbal altercation that
turned physical with three other men. Green, 335 A.2d at 494. The
defendant drew a knife and stabbed two of the men as well as a female
bystander that was trying to help. Id. Following the incident,
[t]hree sets of charges were brought against the appellee as a
result, each consisting of aggravated assault, possession of an
instrument of crime and possession of a prohibited offensive
weapon. One set was brought in the name of each of the three
victims. At the close of the testimony elicited at the first
preliminary hearing, held before a municipal court judge, the
assistant district attorney requested that the count of aggravated
assault pertaining to the female victim, who had been injured
while attempting to restrain the [defendant], be reduced to a
charge of simple assault. The hearing judge, believing that the
newly added misdemeanor necessitated a separation of the trials,
ordered that the simple assault charge be tried in the municipal
court and set a date and a room for that trial. The [defendant]
was then bound over to the grand jury on the remaining charges
heard that day. The [defendant]’s counsel . . . did not object to
this division of the charges but on the contrary indicated his
agreement and understanding of the proposed procedure after it
had been thoroughly discussed. The only effort made by the
[defendant]’s counsel to consolidate the charges was a request
that the charges involving the two male victims be brought
together.
Indictments on the aggravated assault and weapons
charges considered at the first preliminary hearing were returned
on February 5, 1974. The municipal court trial was then held on
the simple assault charges, following the return of the first
indictments. At the municipal court trial the [defendant] was
convicted of the assault on the female victim and sentenced to a
year probation. In due course the second preliminary hearing was
held on the remaining charges involving the second male victim
and indictments were subsequently returned. The [defendant]
filed applications in the court of common pleas to have both sets
of indictments quashed. The motions to quash were granted and
this appeal [followed.]
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Id. at 494-95.
Like Campana, the Green Court observed that incident arose out of the
same transaction, stating:
The fact that the struggle moved the participants from the porch
to the driveway, that there were several victims, or that the first
victim was already wounded when the second, then third, victims
became involved does not change the nature of the encounter to
a segregated series of incidents. It remains a single distinctive
occurrence, a comprehensive series of acts so as to qualify
as a single criminal episode. . . . In addition, the Model Penal
Code, upon which Section 110 of the Crimes Code is based,
indicates in its commentary to the sections dealing with
compulsory joinder of charges that situations involving
multiple victims were contemplated as being included in
the concept of a single criminal episode when the sections
were drafted. Consequently, we find that the present case
involves a single incident or transaction and the prosecution of the
charges arising therefrom is governed by Section 110 of the
Crimes Code.
Green, 335 A.2d at 496 (emphases added & footnote omitted). The Court
then indicated the defendant “waived his right to claim harassment by multiple
prosecutions” where the Commonwealth had attempted to bring the multiple
charges in one proceeding, but the preliminary hearing judge separated one
of the charges and sent it to the municipal court to be tried independently and
the defendant’s counsel did not object to separation order, file a motion to
quash the indictments, or consolidate the trials prior to the first proceeding.
Id. at 498. The Court concluded: “There can be no unjust contravention of
the statute intended to protect the accused when a defendant is denied its use
as a shield against a prosecution which he himself invited by his own designs.
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We hold that the protection of the statute does not extend to the appellee who
waived his rights under it by consenting to the additional prosecution.” Id.
Turning to the present matter, the charges related to the minor victim
and Taylor both arose from the same criminal episode as pursuant to Section
110(1)(ii) ─ Redanauer pointed the gun at both individuals during one
incident. See Campana, supra; Green, supra. We note it was a mistake
on the Commonwealth’s part not to file a certification of a preliminary hearing
at docket 7445 in addition to docket 7444. Moreover, as noted above, since
the charges stemmed from the same episode, double jeopardy also attached
under Section 110(1)(ii) and the Commonwealth cannot now complain that
further prosecution is proper or permissible. We therefore are constrained to
affirm in both cases.
Orders affirmed.
Judge McCaffery joins the memorandum.
Judge Pellegrini files a dissenting memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/13/2023
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