Com. v. Hall

Decision Date08 February 1988
Citation538 A.2d 43,371 Pa.Super. 333
PartiesCOMMONWEALTH of Pennsylvania v. James HALL, Appellant.
CourtPennsylvania Superior Court

Jack E. Reagle, Public Defender, Coudersport, for appellant.

Martha J. Duvall, Asst. Dist. Atty., Coudersport, for Com.

Before WIEAND, MONTEMURO and POPOVICH, JJ.

POPOVICH, Judge:

This is an appeal from the order of the Court of Common Pleas of Potter County denying an omnibus pre-trial motion to dismiss by the appellant, James Hall. 1 We affirm.

A review of the record discloses the following relevant facts: On February 10, 1986, the appellant was arrested for receiving stolen property, unlawful sale of firearms and unlawful loan on, lending or giving firearms. At the magistrate's hearing, two witnesses testified to the appellant selling them various rifles and guns. Also, a third witness (Richard Nelson) identified the items sold as having been stolen from his camp in Potter County. With the evidence presented, the magistrate concluded that a prima facie case against the appellant had been presented and bound the matter over to Common Pleas Court.

On May 5, 1986, the appellant pleaded guilty to unlawful sale of firearms. The other offenses were nol prossed by the Commonwealth. On June 5, 1986, the appellant was sentenced to a term of 1-6 months imprisonment, payment of a fine of $150 and 9 months probation. Upon completion of his sentence and term of probation, it appears that the appellant, while in a tavern, spoke to Nelson and admitted to removing the weapons from his camp site. Further, the appellant allegedly told Nelson that he could not be prosecuted for burglary since he had already served time for the weapon's offense and, thus, could not be re-charged again. Nonetheless, on February 6, 1987, the appellant was arrested and charged with burglary, theft and two counts of conspiracy.

Nelson testified at a preliminary hearing to what the appellant had admitted to him at the tavern. As a consequence, the burglary, theft and conspiracy charges were held for court. This, in turn, was followed by the submission of an omnibus pretrial motion (similar to the pro se one presented by the appellant at the preliminary hearing) seeking a dismissal of the charges as violative of the Double Jeopardy clause of the United States Constitution and 18 Pa.C.S. §§ 109, 110. Additionally, a memorandum of law was attached to the motion buttressing the Double Jeopardy and § 110 contentions that since the 1986 and 1987 charges "both ar[o]s[e] out of the same criminal conduct or episode all of the required elements for finding a violation [of the Double Jeopardy clause and § 110] ha[d] been met."

Thereafter, a rule to show cause was issued, briefs were submitted, argument was heard and a ruling entered denying the motion to dismiss. This appeal ensued.

It is the appellant's contention on appeal that, because the present (1987) prosecution arose out of the same transaction for which he had been tried, convicted and sentenced (in 1986), the principles of collateral estoppel, double jeopardy and § 110 2 warrant a dismissal of the charges.

More precisely, as is evident from his oral argument below and his brief to us, counsel for the appellant is of the mind that mere "knowledge" on the part of the police that a burglary had occurred at the Nelson's camp site in 1986 necessitated that the appellant be charged at that time with such an offense in conjunction with the others initially lodged against him. Failure to do so, counsel would have us believe, brings this case within the prohibition of Commonwealth v. Campana, 452 Pa. 233, 304 A.2d 432 (1973) and § 110 barring a subsequent prosecution because "such offense was known to the appropriate prosecuting officer at the time of the commencement of the first trial[.]" 18 Pa.C.S. § 110(1)(ii). The fact that the police may not have had sufficient evidence to either arrest or convict the appellant is of no moment. Rather, "knowledge" on the part of the police of the burglary, when viewed in conjunction with the weapon offenses brought against the appellant, renders this second prosecution as one "arising out of the same episode" as the former prosecution and, therefore, is prohibited, so argues counsel for the appellant. We disagree.

Initially, we will examine the claim of the appellant that his right to be free from being twice placed in jeopardy has been contravened by his arrest, and potential prosecution to follow, for burglary, theft and conspiracy associated with the Nelson camp site incident.

It is uncontroverted that the Double Jeopardy clause of the Fifth Amendment, applicable to the States through the Fourteenth Amendment, provides that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb." In applying the Double Jeopardy clause, it has long been understood that separate statutory crimes need not be identical--either in constituent elements or in actual proof--in order to be the same within the meaning of the constitutional prohibition. See Brown v. Ohio, 432 U.S. 161, 164, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977). Thus, the principal question in this portion of the case is whether the unlawful sale of firearm offense, to which the appellant pleaded guilty in 1986, can be construed, for double jeopardy purposes, to be the "same offense" as either burglary, theft or conspiracy so as to preclude the latter's presentment in court.

The established test for determining whether offenses are sufficiently distinguishable to permit the imposition of cumulative punishment was stated in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed.2d 306 (1932):

The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not ....

It has been stated that if the offenses under scrutiny are the same under this test for purposes of barring consecutive sentences at a single trial, they necessarily will be the same for purposes of barring successive prosecutions. See In re Nielsen, 131 U.S. 176, 187-88, 9 S.Ct. 672, 675-76, 33 L.Ed. 118 (1889); cf. Gavieres v. United States, 220 U.S. 338, 31 S.Ct. 421, 55 L.Ed. 489 (1911). Thus, unless " 'each statute requires proof of an additional fact which the other does not,' ... the Double Jeopardy Clause prohibits successive prosecutions as well as cumulative punishment." Brown v. Ohio, supra, 432 U.S. at 166, 97 S.Ct. at 2226 (Footnote omitted; citation omitted).

Applying the Blockburger test, we find that the offense of unlawful sale of firearms necessitates proof that the seller did not have an application executed by the buyer and forwarded to the appropriate authorities, with retention of the same kept on file by the seller for six years. Such a requirement could be dispensed with if the sale were at wholesale. 18 Pa.C.S. § 6111. As for burglary, this occurs when an individual enters a building or other occupied structure with the intent to commit a crime therein. 18 Pa.C.S. § 3502(a). To prove one guilty of theft, it must be established that the property of another has been taken with the intent of depriving him thereof. 18 Pa.C.S. § 3921(a). Lastly, conspiracy requires proof that a person, with the intent of promoting or facilitating a crime, agrees with another that they or one or more of them will engage in conduct which constitutes such a crime. 18 Pa.C.S. § 903.

When the present charges of burglary, theft and conspiracy, with their attendant elements, are aligned with the firearm offense, it is beyond cavil that the facts necessary to establish a violation of the former are independent of those necessary to establish a violation of the latter. Ergo, under the Blockburger test, the appellant's double jeopardy claim is found wanting.

The same result obtains with regard to the appellant's collateral estoppel argument; to-wit, the repetition of proof required to activate the barring effect of the doctrine of collateral estoppel is absent since the second prosecution does not require the relitigation of factual issues already resolved by the first prosecution. See Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). For example, the issue of ultimate fact decided at the appellant's 1986 guilty plea was that he sold weapons without having the purchasers complete certain required forms prior to their receipt of the merchandise.

Accordingly, we fail to discern how the appellant's prosecution for burglary, theft and conspiracy will necessitate the relitigation of the fact that he sold weapons unlawfully in 1986. The two sets of charges require different elements of proof to sustain their violation. This is evident from a review of the elemental aspects of the unlawful sale of firearms with burglary, theft and conspiracy. As stated previously, proof of the former does not, ipso facto, establish a commission of the latter. Compare Commonwealth v. Peluso, 481 Pa. 641, 393 A.2d 344 (1978).

The fact that the police may not have had probable cause to arrest or sufficient evidence to convict the appellant in 1986 of the burglary charge has no impact, according to counsel for the appellant, upon the application of § 110's prohibition of a subsequent prosecution where the offense sought to be tried was "known" to the authorities at the time a former prosecution arising from the same criminal episode took place.

In reply to the appellant's argument, we begin by observing that the Fifth Amendment's preclusion of successive prosecutions has a caveat, which the Brown v. Ohio, supra, Court stated in the following fashion, i.e.,

An exception may exist where the State is unable to proceed on the more serious charge at the outset because the additional facts necessary to...

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5 cases
  • State v. Milenkovich
    • United States
    • Nebraska Supreme Court
    • August 3, 1990
    ...jeopardy claims. See, Griffin v. State, 545 So.2d 729 (Miss.1989); State v. King, 131 N.H. 173, 551 A.2d 973 (1988); Com. v. Hall, 371 Pa.Super. 333, 538 A.2d 43 (1988); State v. Sanchez, 532 A.2d 956 (R.I.1987); Com. v. Chatfield-Taylor, 399 Mass. 1, 502 N.E.2d 512 (1987); State v. Choate,......
  • Com. v. Delligatti
    • United States
    • Pennsylvania Superior Court
    • February 11, 1988
  • Com. v. Edwards
    • United States
    • Pennsylvania Superior Court
    • July 29, 1991
    ...512 Pa. 540, 543, 517 A.2d 1256, 1257 (1986) (discussing sufficiency of the evidence test).6 Edwards cites Commonwealth v. Hall, 371 Pa.Super. 333, 538 A.2d 43 (1988) to reinforce her double jeopardy argument. We find that the Hall case actually serves the Commonwealth's position. In Hall, ......
  • Commonwealth v. Larue, J-A25015-16
    • United States
    • Pennsylvania Superior Court
    • January 27, 2017
    ...offenses have been committed but do not have admissible evidence sufficient to support conviction of an accused. Commonwealth v. Hall, 538 A.2d 43, 47 (Pa. Super. 1988). In Hall, the defendant sought to have charges of burglary, theft, and conspiracy dismissed because there was evidence tha......
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