Com. v. Grazier

• Decision Date: 05 October 1978
• Citation: 481 Pa. 622,393 A.2d 335
• Parties: COMMONWEALTH of Pennsylvania v. Frank E. GRAZIER, Appellant. COMMONWEALTH of Pennsylvania v. Eldon G. STUDEBAKER, Appellant.
• Court: Pennsylvania Supreme Court

Page 335

393 A.2d 335

481 Pa. 622

COMMONWEALTH of Pennsylvania v. Frank E. GRAZIER, Appellant.

COMMONWEALTH of Pennsylvania v. Eldon G. STUDEBAKER, Appellant.

Supreme Court of Pennsylvania.

Argued April 10, 1978.

Decided Oct. 5, 1978.

[481 Pa. 625] Samuel J. Reich, Mark L. Glosser, Pittsburgh, John B. Koontz, Bedford, for Frank A. Grazier.

Gordon E. Stroup, Dist. Atty., J. Andrew Smyser, Deputy Atty. Gen., Bedford, for the Com.

H. David Rothman, Pittsburgh, for Eldon G. Studebaker.

Before EAGEN, C. J., and O'BRIEN, ROBERTS, POMEROY, NIX and LARSEN, JJ.

OPINION

O'BRIEN, Justice.

This appeal is from an order of the Superior Court which reversed the Court of Common Pleas, Bedford County and held that a prior acquittal in Federal District Court of mail fraud in connection with an alleged arson scheme does not bar a state trial of appellants for the substantive crime of arson. We believe, however, that the acquittal in Federal Court does bar the state prosecution when both prosecutions are based on substantially the same evidence. We are thus compelled to reverse the Superior Court and reinstate the order of the Bedford County Court of Common Pleas. The facts are as follows.

On March 1, 1969, a fire destroyed the New Hoffman Hotel in Bedford, Pennsylvania. At the time of the fire, the hotel was owned by the wife of appellant Eldon G. Studebaker, the mayor of Bedford. Appellant was not a principal in the ownership of the New Hoffman Hotel Corporation; however, over the years, he had lent money to the corporation. At the time of the fire, Studebaker was personally obligated to pay $7,000 on an outstanding note in connection with the purchase of hotel equipment.

For some time prior to the fire, the corporation had been losing money. Studebaker agreed to aid the corporation in finding a buyer for the hotel. He talked to George Karsnack, who, along with appellant Frank E. Grazier, operated the Bedford Airport. In February, 1969, the principals of the corporation signed an agreement giving K & E Leasing (Karsnack and Grazier) an option to purchase the hotel. On March 5, 1969, four days after the fire, Karsnack agreed to exercise his option and purchase the hotel.

Karsnack then called Carl Luick, a public professional fire insurance adjuster to prepare his claims to various insurance companies. A settlement of $310,100 was reached between Karsnack and the insurance companies.

Following the fire, an investigation was commenced by the Pennsylvania State Police, but because of the lack of either evidence or investigative leads, the investigation was terminated.

In 1972, the Federal Strike Force of the United States Department of Justice began investigating suspected professional arsonists and their associates. With the urging of the federal authorities, state and local police reopened their investigation of the fire. The investigation led to federal indictments against the appellants, Luick and Merril Klein, the arsonist. The indictments charged twenty-two counts of mail fraud and one count of conspiracy to commit mail fraud. Subsequently, a grand jury in Bedford County returned Commonwealth indictments against appellants and Klein charging arson.

At the trial in Federal District Court, the principal witness against appellants and Klein was George Karsnack, an unindicted co-conspirator in the federal mail fraud indictments. Karsnack testified that he and the two appellants agreed to burn the hotel. Karsnack then contacted Klein, who set the fire. Luick, the fire adjuster, became part of the scheme when his services were required to estimate damage and settle the claim.

Studebaker and Grazier denied any involvement in the arson. Grazier admitted using the mails to forward the insurance claims. Appellants introduced the testimony of Thomas Mitchell, a partner of Karsnack in Poughkeepsie Flight Service in New York. Mitchell testified that when Poughkeepsie Flight Service had financial problems, Karsnack suggested a fire. Mitchell then testified that Karsnack told him that he had done the same thing with a hotel in Bedford with two "partners" who knew nothing of the arson.

The Federal Court jury convicted Klein and Luick while acquitting Studebaker and Grazier. On appeal, Klein's conviction was affirmed without opinion. United States v. Klein, 3 Cir., 510 F.2d 971 (1975), while Luick's conviction was reversed and he was discharged. United States v. Luick, 3 Cir., 515 F.2d 751 (1975).

On March 12, 1974, appellants filed motions to quash their Commonwealth indictments charging arson. All parties entered into a stipulation that the evidence in the Commonwealth trial would be substantially the same as that presented at the federal trial. On May 1, 1975, the Court of Common Pleas of Bedford County dismissed the informations against both Studebaker and Grazier. Pursuant to appeal by the Commonwealth, the Superior Court reversed. Commonwealth v. Studebaker, 270 Pa.Super. 37, 362 A.2d 336 (1976). Appellants then filed a petition for allowance of appeal, which we granted.

In dismissing the informations against both appellants, the Court of Common Pleas in Bedford County held that a state prosecution for arson following an acquittal on federal mail fraud charges would be barred by § 111 of the Crimes Code. ¹ The court further stated its belief that because of the cooperation between the state and federal authorities, it believed the federal prosecution was no more than a trial run and preview of the Commonwealth's arson prosecution.

Appellants first argue that § 111 requires reversal of the Superior Court. The Crimes Code provides:

§ 111. When prosecution barred by former prosecution in another jurisdiction.

"When conduct constitutes an offense within the concurrent jurisdiction of this Commonwealth and of the United States or another state, a prosecution in any such other jurisdiction is a bar to a subsequent prosecution in this Commonwealth under the following circumstances:

"(1) The first 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 same offense) and the subsequent prosecution is based on the same conduct unless:

"(i) the offense of which the defendant was formerly convicted or acquitted and the offense for which he is subsequently prosecuted each requires proof of a fact not required by the other and the law defining each of such offenses is intended to prevent a substantially different harm or evil; or

"(ii) the second offense was not consummated when the former trial began.

"(2) The former prosecution was terminated, after the indictment was found, by an acquittal or by a final order or judgment for the defendant which has not been set aside, reversed or vacated and which acquittal, final order or judgment necessarily required a determination inconsistent with a fact which must be established for conviction of the offense of which the defendant is subsequently prosecuted." Act of December 6, 1972, P.L. 1482, No. 334, § 1, 18 Pa.C.S.A. § 111.

We believe, however, that § 111 is not applicable in the instant case, because the legislature has provided:

"Title 18 of the Consolidated Pennsylvania Statutes (relating to crimes and offenses), as added by this act, does not apply to offenses committed prior to the effective date of this act and prosecutions for such offenses shall be governed by the prior law, which is continued in effect for that purpose, as if this act were not in force. For the purposes of this section, an offense was committed prior to the effective date of this act if any of the elements of the offense occurred prior thereto." Act of November 25, 1970, P.L. 707, No. 230, as amended, Act of December 6, 1972, P.L. 1482, No. 334, § 1, 18 Pa.C.S.A. § 2.

As the instant crime was committed in 1969 and predated the effective date of the Crimes Code by four years, § 111 is inapplicable to the instant controversy.

Appellants next argue that Commonwealth v. Mills, 447 Pa. 163, 286 A.2d 638 (1971) and Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970) require a reversal of the Superior Court's order which reversed the trial court's order dismissing the information. We agree with appellants that the concepts embodied in these two cases bar a Commonwealth prosecution on arson charges.

The issue which this court considered in Mills was "whether or not a person may be convicted and punished in the courts of Pennsylvania if he has previously been convicted and punished in Federal Court for identical unlawful conduct." Commonwealth v. Mills, supra, at 165, 286 A.2d 638. In Mills, the defendant had pled guilty in federal court to bank robbery. Mills then sought to have the state indictments for robbery dismissed, alleging that the pending state prosecution would violate his right against double jeopardy.

At the time this court considered Mills, the federal law was Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959), wherein the Supreme Court dealt with a situation identical to Mills and held that No bar existed to a state prosecution following a conviction in federal court for two reasons. The court held that the federal Fifth Amendment provisions against double jeopardy was not applicable to the states through the Fourteenth Amendment. The court further held that the principle of "dual sovereignty" ² also allowed the successive trials for the same robbery.

While Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969) subsequently held that the Fifth Amendment protection against double jeopardy was applicable to the states through the Fourteenth Amendment, no change has occurred concerning the "dual sovereignty" theory. Because of this, when this court decided Commonwealth v. Mills, supra, we held that Bartkus still permitted successive prosecutions. However, we stated:

"After giving careful consideration to all factors involved, we now...