Com. v. Aikins

• Decision Date: 05 January 1993
• Citation: 422 Pa.Super. 15,618 A.2d 992
• Parties: COMMONWEALTH of Pennsylvania v. Ricky Lee AIKINS, Appellant.
• Court: Pennsylvania Superior Court

Page 992

618 A.2d 992

422 Pa.Super. 15

COMMONWEALTH of Pennsylvania v. Ricky Lee AIKINS, Appellant.

Superior Court of Pennsylvania.

Argued Nov. 20, 1991.

Filed Jan. 5, 1993.

Robert A. Cinpinski, Kittanning, for appellant.

Frederick L. John, II, Asst. Dist. Atty., Kittanning, for Com., appellee.

Before BECK, TAMILIA and HESTER, JJ.

TAMILIA, Judge:

Appellant, Ricky Lee Aikins, takes this appeal from judgment of sentence imposed February 26, 1991. The issue in this case is whether a conviction for burglary is precluded by a prior conviction on an indirect criminal contempt charge, arising out of violation of a Protection From Abuse (PFA) Order, when the burglary was committed on the premises protected by the PFA Order.

On December 13, 1984, following a hearing on a PFA Act petition filed due to marital difficulties between appellant and his estranged wife, an Order was entered giving Charlene Aikins (wife) exclusive possession of the parties' marital residence. On March 5, 1985, police were summoned to the residence (a mobile home) where they discovered appellant underneath the home attempting to splice into Charlene's telephone wires. Appellant was charged with interception of oral communications, burglary and criminal trespass. Charlene then filed a petition for contempt arising from appellant's violation of the PFA Order. At the hearing on May 17, 1985, appellant was found to be in indirect criminal contempt of the PFA Order and sentenced to serve six (6) months in jail. Prior to trial on the criminal charges, appellant filed a motion to dismiss on double jeopardy grounds. The trial court denied the motion and following trial and conviction, appellant was sentenced on February 26, 1991 to serve nine (9) months to three (3) years imprisonment for burglary. This appeal followed.

In Commonwealth v. Allen, 506 Pa. 500, 486 A.2d 363 (1984), cert. denied, 474 U.S. 842, 106 S.Ct. 128, 88 L.Ed.2d 105 (1985), our Supreme Court held "prosecution on the substantive criminal charge after a finding of contempt in violating the injunction against abuse does not violate double jeopardy." Id. at 514, 486 A.2d at 370. However, the United States Supreme Court recently articulated changes in double jeopardy jurisprudence in Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990). The Grady Court held:

[T]he Double Jeopardy Clause bars any subsequent prosecution in which the government, to establish an essential element of an offense charges in that prosecution, will prove conduct that constitutes an offense for which the defendant has already been prosecuted.... The critical inquiry is what conduct the state will prove, not the evidence the state will use to prove that conduct.

Id. at 521, 110 S.Ct. at 2093, 109 L.Ed.2d at 564. The test as to whether contempt is civil or criminal turns on whether the person can escape imprisonment by doing some act of compliance to purge the contempt (civil) rather than be sentenced to punish the wrongdoing without redemption (criminal). See Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522 (1968).

We find the rationale recently employed by this Court in Commonwealth v. Warrick, 415 Pa.Super. 385, 609 A.2d 576 (1992) (Warrick II ), is equally applicable to this case although the facts are different. There a prisoner, after judgment of sentence was entered, ran from the court room to avoid incarceration. After capture, he was immediately returned to the court, where, in a summary procedure, he was sentenced to a term of six (6) months on the direct criminal contempt. Subsequently, he was charged, convicted and sentenced to imprisonment for escape. Our Court initially reviewed that conviction in Commonwealth v. Warrick, 344 Pa.Super. 611, 497 A.2d 259 (1985) (Warrick I ), and held double jeopardy was not implicated and that the contempt did not bar Warrick's subsequent trial for escape. Most recently in Warrick II, the double jeopardy issue was again reviewed by this Court in light of the Grady double jeopardy ruling handed down subsequent to decision in Warrick I. We held in Warrick II that Grady was inapposite to that case because a summary criminal contempt is by its nature a different type of offense than other crimes, e.g. escape, and continued to rely on Allen, supra. Allen rested on the fact that criminal contempt consists of acts tending to lessen the dignity or impede the process of the court, thus criminal contempt proceedings are instituted to vindicate the authority of the court and must be viewed as a necessary tool for deterring abuse of the judiciary. This function demands that a judge not be required to consider the consequences of foreclosing subsequent criminal prosecution when sanctioning a contemnor for his actions. Id.

In Warrick II we pointed out that "Grady [n. 7] explicitly recognizes that an exception to its double jeopardy analysis may exist where the government is unable to proceed on the more serious of two charges for various administrative or procedural reasons." Warrick II, supra at 389, 609 A.2d at 578. Also, the United States Supreme Court has severely limited the scope of Grady by its ruling in United States v. Felix, 503 U.S. 378, 112 S.Ct. 1377, 118 L.Ed.2d 25 (1992). In Felix, the Supreme Court found no double jeopardy when two separate prosecutions were brought for conspiracy and the conduct upon which the substantive offenses were brought. It held that "a mere overlap in proof between two prosecutions does not establish a double jeopardy violation" Id. at ----, 112 S.Ct. at 1382, 118 L.Ed.2d at 34. The Warrick II Court also found that "[u]ntil either the Pennsylvania Supreme Court or the United States Supreme Court clearly indicates that a conviction of direct criminal contempt triggers double jeopardy protections for additional criminal charges based on the same conduct, we cannot grant the type of relief sought by appellant." Id. at 392, 609 A.2d at 580. Although the case before us involves indirect criminal contempt, we find the Warrick II Court's reasoning apt.

Applying the above principles to this case, it is clear beyond question that Grady does not and was never intended to prevent the effective implementation of the PFA Act in imposing contempt penalties, albeit they are criminal in nature, and involve the same facts as a contemporaneous substantive offense, when the alternative is to deny prosecution of the substantive offense. Grady could not make it more clear, as reaffirmed in Felix, that double jeopardy may not deny the right to prosecute the substantive offense because procedural or administrative exigencies require more expeditious handling of the summary offense. This was correctly interpreted in Warrick II to require the prosecution of the direct criminal contempt faced by the court long before the escape charge could be prosecuted. It applies just as clearly to prosecution of the indirect criminal contempt of a PFA violation before the burglary charges could be prosecuted in this case. PFA legislation was enacted to curb domestic violence which has taken a tremendous toll on women and children, particularly, in our society. This legislation requires that in several areas we apply exigent procedures and measures which are usually violative of due process. These involve matters such as notice, opportunity to be heard, temporary dispossession of one party to marital or entireties property, summary support and emergency custody procedures, and hearings in the domestic relations division rather than criminal division of the criminal contempt proceedings. This has been done, supported by rulings as to its constitutionality, because it is deemed necessary to do so to protect the victims of abuse from serious harm and/or loss of life. In this case, to wait until the usual procedures, which are circumscribed by criminal due process requirements to the fullest, for prosecution for burglary are implemented and the case tried on the contempt with the burglary would mean a delay of one to two years in some judicial districts. By then the victim could be dead, as a burglary charge, with overcrowded prisons would surely result in early release until trial. The contempt violation of the PFA Order, however, can be handled immediately and expeditiously to serve its stated purpose, to protect the life and safety of the victim. The contempt action and proceeding protects not only the dignity and expectation of the court to assure the orderly administration of justice, but also protects the life of the victim, which society has come to recognize requires the extraordinary procedures employed under the PFA Act.

Logic compels the distinction between these cases and the usual case implicated by the double jeopardy rulings. As Allen has stated in analyzing United States v. Mirra, 220 F.Supp. 361, (S.D.N.Y.1963):

'Assume that Mirra's projectile had received more accurate a propulsion and had scored on its intended target--the Assistant United States Attorney. And assume further the grisly and morbid fact that the Assistant United States Attorney had sustained an injury which ultimately proved fatal. To sustain Mirra's claim would, in effect, grant a summary contemnor immunity from a homicide prosecution--an unconscionable result. Merely to state the case suffices to reveal what must perforce be the answer to Mirra's theory.'

[Mirra ] at 366. We hold that the same implied answer, no double jeopardy, is required in this case.

Allen, supra at 514, 486 A.2d at 370, quoting Mirra, supra (emphasis added).

Justice Larsen, in his Concurring Opinion in Allen, addresses the preventive nature of the PFA as follows:

I join the majority opinion. I write separately to emphasize that the contempt provisions of the Protection From Abuse Act are available and intended not only to punish an abusive spouse for past abusive behavior, but are also available and intended to physically restrain (i.e., jail) an abusive spouse in order...