Com. v. McCane

• Decision Date: 05 April 1988
• Citation: 539 A.2d 340,517 Pa. 489
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. Alvie Donald McCANE, Appellee.
• Court: Pennsylvania Supreme Court

Page 340

539 A.2d 340

517 Pa. 489

COMMONWEALTH of Pennsylvania, Appellant, v. Alvie Donald McCANE, Appellee.

Supreme Court of Pennsylvania.

Argued Dec. 10, 1987.

Decided March 4, 1988.

Reargument Denied April 5, 1988.

Ernest D. Preate, Jr., Dist. Atty., for appellant.

Michael J. Krushinski, Scranton, for appellee.

Before NIX, C.J., and LARSEN, FLAHERTY, McDERMOTT, ZAPPALA and PAPADAKOS, JJ.

OPINION OF THE COURT

LARSEN, Justice.

The issue involved in this appeal is whether the Commonwealth may reprosecute the appellee, Alvie Donald McCane, for homicide by vehicle while driving under the influence following a mistrial on that charge, after a jury found appellee guilty of the offense of driving under the influence but was unable to reach a verdict on the charge of homicide by vehicle while driving under the influence. The trial court held that a retrial of appellee is barred by Pa.R.Crim.P. 1120(d). The Superior Court, in a memorandum decision by a panel (Beck, Popovich and Hoffman, JJ.), affirmed on the opinion of the lower court, 359 Pa.Super. 608, 515 A.2d 618. For the reasons that follow, we reverse.

The appellee, Alvie Donald McCane, was arrested and charged with violating section 3731 of the Motor Vehicle Code (75 Pa.C.S. § 3731), driving under the influence of alcohol or a controlled substance. Appellee was also charged with violating section 3735 of the Motor Vehicle Code (75 Pa.C.S. § 3735), homicide by vehicle while driving under the influence. The appellee was tried by a jury on these charges. He was found guilty of driving under the influence of a controlled substance. The jury was unable to reach a verdict on the charge of homicide by vehicle while driving under the influence. The trial judge accepted the guilty verdict on the charge of driving under the influence and declared a mistrial on the charge of homicide by vehicle while driving under the influence.

When the Commonwealth scheduled a retrial of the appellee on the charge on which the jury was deadlocked, the appellee moved to quash the indictment and dismiss the charge. In his motion for dismissal the appellee argued that reprosecution was barred by Rule 1120(d) of the Pa.R.Crim.P., by section 109 of the Crimes Code (18 Pa.C.S. § 109), and by the double jeopardy provisions of the Pennsylvania and United States Constitutions.

After conducting a hearing on appellee's motion to dismiss and considering the arguments and briefs of counsel, the lower court held that reprosecution of the appellee was prohibited by Rule 1120(d). The lower court did not address the other arguments raised by the appellee in that its holding concerning Rule 1120(d) resolved the issue.

The Commonwealth, in bringing this appeal, argues that retrial of the appellee on the charge of homicide by vehicle while driving under the influence is not barred by Rule 1120(d). The Commonwealth contends that the lower court misconstrued and erroneously expanded the scope of that rule in holding that the rule barred further prosecution of the appellee. Rule 1120(d) provides:

(d) If there are two or more counts in the information or indictment, the jury may report a verdict or verdicts with respect to those counts upon which it has agreed, and the judge shall receive and record all such verdicts. If the jury cannot agree with respect to all the counts in the information or indictment if those counts to which it has agreed operate as an acquittal of lesser or greater included offenses to which they cannot agree, these latter counts shall be dismissed. When the counts in the information or indictment upon which the jury cannot agree are not included offenses of the counts in the information or indictment upon which it has agreed, the defendant or defendants may be retried on those counts in the information or indictment.

For purposes of the issue raised in this case, the pivotal language of Rule 1120(d) is the sentence: "If the jury cannot agree with respect to all the counts in the information or indictment if those counts to which it has agreed operate as an acquittal of lesser or greater included offenses to which they cannot agree, these latter counts shall be dismissed." (Emphasis added.) Considering the pertinent language of Rule 1120(d) in light of the facts in this case, the question is: whether the appellee's conviction of driving under the influence of a controlled substance operates as an acquittal of homicide by vehicle while driving under the influence--the charge on which the jury could not agree. The Commonwealth contends that appellee's conviction on the former charge does not acquit him of the latter charge in that homicide by vehicle while driving under the influence requires proof of an additional fact, namely, that the appellee's driving while under the influence caused the death of the victim.

Homicide by vehicle while driving under the influence is defined as follows:

--Any person who unintentionally causes the death of another person as the direct result of a violation of section 3731 (relating to driving under influence of alcohol or controlled substance) and who is convicted of violating section 3731 is guilty of a felony of the third degree when the violation is the cause of death and the sentencing court shall order the person to serve a minimum term of imprisonment of not less than three years.

75 Pa.C.S. § 3735. The jury found the appellee guilty of violating section 3731 of the Motor Vehicle Code but apparently was unable to decide whether that violation was the cause of the victim's death.

In Commonwealth v. Pounds, 281 Pa.Super 19, 421 A.2d 1126 (1980), the Superior Court considered a question similar to that raised in this case. In Pounds, the defendant was found guilty by a judge of the summary offense of driving to the left of center. A jury found him guilty of driving under the influence of alcohol. The jury was unable to reach a verdict on the charge of homicide by vehicle (75 Pa.C.S. § 3732). ¹ The Superior Court held that the defendant could be retried on homicide by vehicle charge in that the "conviction on the offenses of driving to the left of center and driving under the influence of alcohol in no way implies an acquittal on the offense of homicide by vehicle." Id. at 26, 421 A.2d at 1129. "A conviction of vehicular homicide requires a finding not only of a violation of the motor vehicle laws but also an additional fact, that the defendant's illegal act caused the death." ²

The appellee argues that Pounds can be distinguished from the instant case because there, Judge Van der Voort concluded that since a conviction of homicide by vehicle, "while implying guilt as to some violation of the motor vehicle rules, does not imply a finding of guilt as to any particular offense. The offenses [driving to the left of center and driving under the influence] are not, therefore, 'included offenses' for double jeopardy purposes." Id. By contrast, in the present case, the appellee contends that a finding of guilty of homicide by vehicle while driving under the influence, by definition, implies a violation of Section 3731, driving under the influence. It follows then, the appellee argues, that driving under the influence is an included offense and retrial, therefore, is barred. The appellee's argument rests upon the fact that to convict appellee of homicide by vehicle while driving under the influence, the appellee must be found guilty of the particular specified offense of driving under the influence. Admittedly, this requirement for a conviction under Section 3735 is mandated by statute, nonetheless, it is not a bar to a retrial in this case.

In Commonwealth v. Vincent, 345 Pa.Super 173, 497 A.2d 1360 (1985), the issue of a retrial where a defendant is convicted of a distinctly specified motor vehicle offense but the jury is deadlocked on a related vehicular homicide charge was considered by the Superior Court. In Vincent, the defendant was charged with two counts of homicide by vehicle (75 Pa.C.S. § 3732), reckless driving (75 Pa.C.S. § 3714), and failing to drive on the right side of the road (75 Pa.C.S. § 3301). The defendant was found guilty of reckless driving and failing to drive on the right side of the road. The jury was unable to decide on the two counts of homicide by vehicle. On appeal from the trial court's order denying defendant's motion to dismiss the homicide by vehicle charges and bar retrial on double jeopardy grounds, the Superior Court affirmed. The Superior Court held in that case that the defendant could be retried on the homicide by vehicle charges because he had no valid statutory double jeopardy claim.

Prior to trial in the Vincent case, the Commonwealth specified in a bill of particulars the two underlying traffic violations. (Reckless driving and failing to drive on the right side of the road.) Thus, the Commonwealth could only establish defendant's guilt of homicide by vehicle by first establishing his guilt of the underlying specified motor vehicle offenses. The defendant there argued that because they were specifically enumerated, the underlying offenses were included offenses for double jeopardy purposes under the United States Supreme Court decisions in Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977) and Illinois v. Vitale, 447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980). The Superior Court rejected defendant's argument pointing out that both Brown v. Ohio, supra and Illinois v. Vitale, supra. dealt with "successive prosecutions" and did not apply to a retrial following a mistrial caused by a hung jury. The Superior Court rejected the double jeopardy claim asserted by defendant and held that even if the traffic violations of which the defendant was found guilty are lesser included offenses of the vehicular homicide charge, double jeopardy considerations prohibit "successive prosecutions" not a retrial following a mistrial precipitated by a deadlocked jury. Id.

We agree...