Com. v. Smith

• Decision Date: 30 December 1988
• Citation: 380 Pa.Super. 484,552 A.2d 292
• Parties: COMMONWEALTH of Pennsylvania v. Eugene SMITH, Appellant.
• Court: Pennsylvania Superior Court

Page 292

552 A.2d 292

380 Pa.Super. 484

COMMONWEALTH of Pennsylvania v. Eugene SMITH, Appellant.

Superior Court of Pennsylvania.

Argued Aug. 31, 1988.

Filed Dec. 30, 1988.

Rochelle S. Friedman, Pittsburgh, for appellant.

Terrance G. Faye, Asst. Dist. Atty., Greensburg, for Com., appellee.

Before CIRILLO, President Judge, and ROWLEY and TAMILIA, JJ.

ROWLEY, Judge.

This is an appeal from an order denying appellant's motion to quash criminal charges alleging that the prosecution is barred on grounds of double jeopardy. The sole question presented is whether a consent agreement entered into by a husband and wife, pursuant to the Protection From Abuse Act,¹ creates a bar to criminal prosecution for the crimes alleged to have occurred out of the same conduct which brought about the consent agreement. We conclude that it does not.

This case arose out of a domestic dispute which occurred on March 15, 1987, between appellant, Eugene Smith, and his wife, Diann Marie Smith. The parties were living separately, each residing with one of their two minor children; their daughter with Diann and their son with appellant. It is alleged that while transporting the couple's son to Diann for a visit, appellant struck Diann with his vehicle and struck her about the head and neck with his opened hand and closed fist. The police arrested appellant later that night on two counts each of simple assault and aggravated assault. An additional charge of recklessly endangering another person was filed on April 7, 1987, also stemming from the incident on March 15, 1987.

On March 19, 1987, Diann filed a petition pursuant to the Protection From Abuse Act (PFA) in the Court of Common Pleas, Civil Division, Westmoreland County at No. 1744 of [380 Pa.Super. 486] 1987. On the following day, Diann and appellant entered into a consent agreement under the PFA which was approved and made a part of the trial court's order of May 8, 1987. Appellant has not, according to the record presently before the Court, ever been found in contempt of that order.

On May 26, 1987, the District Attorney of Westmoreland County filed an Information/Indictment against appellant for the charges that were filed pursuant to the incident which occurred on March 15, 1987. Appellant filed an omnibus pre-trial motion which included, inter alia, a motion to quash the information on grounds of double jeopardy, based upon the prior resolution of the PFA proceedings. After a hearing on the motion, the trial court denied the motion to quash. The trial court held that the PFA is a civil action, and therefore, appellant had not been subjected to a previous criminal prosecution. Appellant now appeals from that order.

Initially, we must determine whether this appeal is properly before us. We note that the trial court has made no finding that appellant's claim of double jeopardy was frivolous. In Commonwealth v. Brady, 510 Pa. 336, 508 A.2d 286 (1986), our Supreme Court reevaluated its position on interlocutory appeals alleging double jeopardy. The Court concluded that "an appeal from the denial of a motion to dismiss on double jeopardy grounds should not be permitted where the hearing court has considered the motion and made written findings that the motion is frivolous." Id. at 346, 508 A.2d at 291. See also Commonwealth v. Williams, 361 Pa.Super. 501, 522 A.2d 1143 (1987). Because the trial court has made no finding of frivolousness in the instant case, the court's order denying the motion to dismiss on double jeopardy grounds is final and properly before us. However, the only issue ripe for review is the question of double jeopardy and we limit our review of appellant's arguments accordingly.

Appellant contends that the Protection From Abuse Act is a criminal proceeding, with warrantless arrests being authorized by 18 Pa.C.S. § 2711. He argues that because the PFA proceedings were terminated by an order of the trial court confirming a consent agreement, the criminal charges based upon the same factual episode must be dismissed. In support of his argument, he cites 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), and claims that the Pennsylvania Supreme Court has ruled that the PFA is a criminal proceeding. Appellant's reliance is misplaced.

In Allen, the defendant had been enjoined from physically abusing or harassing his wife, pursuant to the PFA. Approximately one month after entry of the order, Allen forcibly entered his wife's home and physically abused her. He was subsequently arrested and charged with criminal trespass and simple assault. A charge of rape was later filed and consolidated with the other charges. Several days after Allen's arrest, his wife filed a petition requesting that Allen be found in contempt of the PFA order. After a hearing, the trial court found Allen in contempt of the order and ordered him to pay a fine of $750 plus costs.

Subsequently, Allen filed a motion to quash the criminal informations arguing that the prosecution was barred on double jeopardy grounds by the prior adjudication of the contempt proceeding. The trial court denied the motion and Allen appealed. The Superior Court granted Allen partial relief, agreeing that the criminal contempt and the charge of simple assault involved the same elements, thus barring prosecution for simple assault. The Court reversed that portion of the trial court's order and affirmed as to the other charges. Cross-appeals were heard by the Supreme Court which reversed this Court's decision, holding that indirect criminal contempt and simple assault do not contain the same elements and vindicate different public interests. Therefore, the Court held, a finding that Allen was in contempt of the PFA order did not bar subsequent prosecution of the simple assault charge.

Apparently, appellant believes that the Supreme Court's finding the contempt order not civil, but criminal, is tantamount to ruling that the PFA itself is a criminal proceeding. That reading is incorrect. The question in Allen was whether a criminal contempt citation would bar subsequent prosecution of a simple assault charge. The Commonwealth had argued that the contempt citation involved was civil, not criminal, and that no jeopardy attached with the contempt citation. The Court held that the contempt was criminal contempt because it was used to protect the dignity and authority of the court and the interest of the general public; and that it was indirect criminal contempt because it was outside the actual presence of the court. The Court noted that in order for jeopardy to attach, the contempt complained of had to be criminal in nature and not civil. Id. at 511, 486 A.2d at 368. In determining whether the prosecution was barred on double jeopardy grounds, the Court applied the test enunciated in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 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 a fact which the other does not."

Allen, supra, at 510, 486 A.2d at 368. The Court went on to hold that the contempt order's purpose was protection of the Court's dignity and enforcement of its order, not punishment for the assault. The contempt proceeding required finding an element separate from the assault charge, willful disobedience of the court's order. Therefore, the prosecution on the criminal assault charge after the finding of contempt of the court's order did not violate double jeopardy. Id. at 514, 486 A.2d at 370.

In the instant case, there has been no determination of contempt under the protection from abuse order. Rather, appellant complains that it was the entry of the protection from abuse order which was the final disposition of a criminal prosecution. He argues that since the decision of Allen, the legislature has enacted 18 Pa.C.S. § 2711, which was in effect at the time of this incident, and which provides for the warrantless arrest of persons who have committed acts of domestic violence, although outside of the officer's presence. Appellant argues that the procedures included in that statute have transformed the PFA into a criminal statute, providing for arrest, arraignment before a magistrate, bail and notice to the victim of his or her rights under the PFA. Therefore, he concludes, the legislature has set forth a criminal procedure to address domestic violence, and once proceedings under the PFA are concluded, the Commonwealth is barred from prosecuting any further charges based upon that same conduct. We find the claim without merit.

Section 2711 of the Crimes Code provides for the warrantless arrest, upon probable cause, that the actor has committed involuntary manslaughter, simple assault, aggravated assault [under § 2702(a)(3), (4) ...