J-A07027-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

PAUL AARON ROSS

Appellant No. 1487 WDA 2014

Appeal from the Order Entered August 5, 2014

In the Court of Common Pleas of Blair County

Criminal Division at No(s): CP-07-CR-0002038-2004

BEFORE: BENDER, P.J.E., LAZARUS, J., and MUNDY, J.

MEMORANDUM BY LAZARUS, J.: FILED MAY 12, 2015

Paul Aaron Ross appeals from the order entered in the Court of 

Common Pleas of Blair County that denied his motion to preclude the 

Commonwealth from seeking the death penalty upon retrial. After careful 

review, we affirm.

On November 10, 2005, a jury found Ross guilty of first degree murder 

and related offenses. The following day, a sentencing hearing took place, at 

the conclusion of which the jury received a First Degree Murder Sentencing 

Verdict Slip consisting of two parts: “I. General Instructions” and “II. 

Sentencing Verdict and Findings,” the latter which we reproduce here in full.

II. SENTENCING VERDICT AND FINDINGS

If you have reached a unanimous verdict, complete this part of 

the form

In Section A, indicate whether the sentencing verdict is death or 

life imprisonment. If the sentence is death, indicate the basis 
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for the verdict by completing Section B. If the sentence is life 

imprisonment, indicate the basis for that verdict by completing 

Section C.

A. We, the jury, unanimously sentence the Defendant to (check 

one):

□ Death

□ Life Imprisonment

B. The findings on which the sentence of death is based are 

(check one):

□ 1. At least one aggravating circumstance and no 

mitigating circumstance.

The aggravating circumstance(s) unanimously found 

is/are:

_______________________________________________

_______________________________________________

□ 2. One aggravating circumstance(s) which outweighs any 

mitigating circumstance(s).

The aggravating circumstance(s) unanimously found 

is/are:

_______________________________________________

_______________________________________________

The mitigating circumstance(s) found by one or more of us 

is/are:

_______________________________________________

_______________________________________________

_______________________________________________

_______________________________________________

C. The findings on which the sentence of life is based are (check 

one):

□ 1. No aggravating circumstance exists

□ 2. The mitigating circumstance(s) is/are not outweighed by 

the aggravating circumstance.

The mitigating circumstance(s) found by one or more of us 

is/are:
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_______________________________________________

_______________________________________________

_______________________________________________

_______________________________________________

The aggravating circumstance unanimously found is:

_______________________________________________

_______________________________________________

_________________ _______________________________

Date Jury Foreperson

The jury began its deliberations at 2:46 p.m., N.T. Sentencing 

Hearing, 11/11/05, at 197, and at 5:17 p.m., a question from the jury was 

delivered to the court. Immediately thereafter, the court addressed the jury 

as follows:

Good afternoon, ladies and gentlemen of the jury. I have 

received a communication from your foreperson and it reads, 

Your Honor, the jury is unable to reach a unanimous decision on 

life or death and it is unlikely that we can. Please advise the 

next step. Thank you. Your foreperson, Robert L. Beck.

And I’m going to instruct you with two paragraphs to try to give 

you guidance on where to go from here. Members of the jury, if 

you do not agree unanimously on the sentence of the defendant 

and on one of the two general findings that would support it then 

you have two options, you may either continue to discuss the 

case and deliberate the possibility of the death sentence or if you 

all agree to do so, you can stop deliberating and sentence the 

defendant to life imprisonment and you would do so by simply 

writing on the verdict slip we have stopped deliberating and we 

sentence the defendant to life. That is not on the form. You 

would have to write that separately.

If you should come to a point where you have deliberated 

conscientiously and thoroughly and you still cannot agree either 

to sentence the defendant to life or death or to stop deliberating 

and just sentence him to life, you should report that to me at 

that point and I then will determine whether you are hopelessly 
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deadlocked on that issue and then it becomes my duty to 

sentence the defendant to life imprisonment.

Id. at 201-02.

The jury continued its deliberations at 5:26 p.m., and at 5:41 p.m., it 

returned to the courtroom with a verdict. The foreperson read the following 

statement, which he had written on the Sentencing Verdict and Findings 

sheet: “Your Honor, the jury has been at an impasse and can’t reach a 

unanimous vote. The verdict is life.” Id. at 203.

On November 23, 2005, the trial court imposed a sentence of life 

imprisonment for first degree murder plus 24 to 48 years’ imprisonment for 

other crimes arising out of the same incident. Ross filed post-sentence 

motions, which the court denied on January 30, 2006. Ross then filed an 

appeal, which this Court dismissed due to counsel’s failure to file a brief. 

Following nunc pro tunc reinstatement of his appellate rights on August 14, 

2009, the matter came before this Court, which vacated the judgment of 

sentence and remanded for a new trial on October 10, 2012. 

Commonwealth v. Ross, 57 A.3d 85 (Pa. Super. 2012). Our Supreme 

Court denied the Commonwealth’s petition for allowance of appeal on August 

15, 2013, Commonwealth v. Ross, 72 A.3d 603 (Pa. 2013), and 

subsequently denied the Commonwealth’s motion for reconsideration.

The matter returned to the court of common pleas for trial, and on July 

8, 2014, Ross filed a motion to preclude the death penalty, which was 

argued on July 29, 2014. By opinion and order dated August 5, 2014, the 

court denied the motion, and on September 3, 2014, Ross filed a timely 
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notice of appeal. The Commonwealth filed a motion to dismiss, which this 

Court denied on December 9, 2014. 

On appeal, Ross raises the following issue for our review:

Should a jury verdict of a life sentence following the penalty 

phase of [Ross’] first capital trial result in the Commonwealth 

being barred based upon double jeopardy protections from 

pursuing a sentence of death in [Ross’] retrial?1

Brief of Appellant, at 10.

The principles underlying the trial court’s decision were set forth in 

Commonwealth v. Sattazahn, 763 A.2d 659 (Pa. 2000), where our 

Supreme Court stated:

The United States Supreme Court has consistently reaffirmed the 

basic principle that the constitutional guarantee against double 

jeopardy imposes no limitations upon the power to retry a 

defendant who has succeeded in getting his first conviction set 

aside. [Commonwealth v.] Martorano, 634 A.2d [1063, 

1068-69 [(Pa. 1930)]. Since the original conviction is nullified at 

a defendant's behest, the “slate was wiped clean,” and the 

sentencing court can impose any legally authorized sentence, 

whether or not it is greater than the sentence imposed following 

the first trial. Martorano, 634 A.2d at 1068, citing North 

Carolina v. Pearce, 395 U.S. 711, 720-21 (1969). An 

exception to this rule exists where the sentencing proceeding 

resembles a trial. See Bullington [v. Missouri, 451 U.S. 430 

(1984)]; [Arizona v.] Rumsey[, 467 U.S. 203 (1984)].

In Bullington, a defendant was tried for capital murder and at 

the guilt phase of trial, the jury returned a verdict of guilty. As 

required by statute, the trial court then conducted a sentencing 

____________________________________________

1

“In Pennsylvania a defendant is entitled to an immediate interlocutory 

appeal as of right from an order denying a non-frivolous motion to dismiss 

on state or federal double jeopardy grounds.” Commonwealth v. DeLong, 

879 A.2d 234, 237 n.1 (Pa. Super. 2005) (citations omitted).
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hearing before the same jury that had found the defendant 

guilty. The parties were afforded the opportunity to present 

additional evidence in aggravation or mitigation of punishment. 

After argument, instructions from the judge and deliberation, the 

jury returned a unanimous verdict of life imprisonment. When 

Bullington was granted a new trial on appeal, the state notified 

him of its intention to seek again the death penalty. Because 

the first sentencing jury, by choosing life, impliedly decided that 

the prosecution had not proved its case for death, the result was 

that the jury “acquitted” the defendant of the death penalty. 

This “acquittal on the merits” precludes the State from seeking 

the death penalty upon retrial. 451 U.S. at 434-35, 101 S.Ct. 

1852 

*****

In Martorano, we applied Bullington and Rumsey and held 

that the Commonwealth is not precluded from seeking the death 

penalty on retrial, where, following their first trial, defendants 

were convicted of first-degree murder and sentenced to life 

imprisonment, not by a unanimous jury verdict, but by the trial 

judge following the jury’s deadlock regarding the penalty. The 

hung jury did not act as an acquittal on the merits as did the 

proceedings at issue in Bullington and Rumsey.

*****

Here, unlike the sentence in Burlington or the other cases just 

discussed, the jury did not make a decision on the merits 

regarding an appropriate penalty. It did not find that the state 

had failed to prove its case. It made no findings about the 

existence of any aggravating or mitigating circumstances. It 

was deadlocked. Since it made no decision, there could not in 

fact be any “acquittal on the merits.” Nor did the imposition of a 

life sentence by the trial judge operate as an acquittal. Under

Pennsylvania’s sentencing scheme, the judge has no discretion 

to fashion sentence once he finds that the jury is deadlocked.

Sattazahn, 763 A.2d at 366-67.2

____________________________________________

2 The United States Supreme Court affirmed the decision of our Supreme 

Court. Sattazahn v. Pennsylvania, 537 U.S. 101 (2003).
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Accordingly, the critical question before us is whether the entry of a 

life sentence following Ross’ first trial was an acquittal on the merits, thus 

precluding the death penalty on retrial. We conclude that it was not.

As in Sattazahn, the jury in this case made no findings with respect 

to aggravating or mitigating circumstances. The jury left blank the entire 

Sentencing Verdict and Findings Slip reproduced above. The jury did not 

check off the box marked Death or the box marked Life Imprisonment. It 

did not list any aggravating factors unanimously found or any mitigating 

factors found by one or more members of the jury. Clearly, the jury did not 

reach unanimous agreement as to sentencing. Under these circumstances, 

the Sentencing Code provides that the court may discharge the jury, “in 

which case the court shall sentence the defendant to life imprisonment.” 42 

Pa.C.S. § 9711(c)(1)(v). 

But for one factual wrinkle, the instant matter would be on all fours 

with Sattazahn. Here, the trial court instructed the jury that if it could not 

agree on the sentence it could “stop deliberating and sentence the defendant 

to life imprisonment and you would do so by simply writing on the verdict 

slip we have stopped deliberating and we sentence the defendant to life.” 

N.T. Sentencing Hearing, 11/11/05, at 201. As the trial court recognizes in 

its opinion in support of the order denying Ross’ motion, it “erred to advise 

the jury to write on the verdict slip, ‘we sentence the defendant to life.’” 

Opinion and Order, 8/5/14, at 8.
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Ross argues that the statement, “[t]he verdict is life,” written on the 

bottom of the Sentencing Verdict and Findings form constitutes a final 

judgment barring the death penalty on retrial. We disagree because on the 

verdict slip, “[t]he verdict is life” is preceded by the sentence, “[t]his jury 

has been at an impasse and can’t reach a unanimous vote.” In other words, 

the jury was deadlocked. The conclusion that the jury was deadlocked is 

supported by the fact that the jury did not check the box on the verdict form 

that the jury unanimously sentenced the defendant to life imprisonment. 

Because the penalty phase of Ross’ first trial ended in a hung jury, the 

imposition of a sentence of life imprisonment by default did not act as an 

acquittal. See Sattazahn, supra; Martorano, supra. Therefore, double 

jeopardy does not prevent the Commonwealth from seeking the death 

penalty on retrial.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/12/2015