Com. v. Walczak

• Citation: 440 Pa.Super. 339,655 A.2d 592
• Parties: COMMONWEALTH of Pennsylvania, v. Quentin C. WALCZAK, Appellant, COMMONWEALTH of Pennsylvania, v. Quentin C. WALCZAK, Appellant.
• Decision Date: 14 March 1995
• Court: Pennsylvania Superior Court

Page 592

655 A.2d 592

440 Pa.Super. 339

COMMONWEALTH of Pennsylvania, v. Quentin C. WALCZAK, Appellant, COMMONWEALTH of Pennsylvania, v. Quentin C. WALCZAK, Appellant.

Superior Court of Pennsylvania.

Submitted Oct. 31, 1994.

Filed March 14, 1995.

Joseph A. Dente, Wilkes-Barre, for appellant.

Jeffrey B. Snyder, Dist. Atty., Montrose, for Com., appellee.

Before DEL SOLE, KELLY and HOFFMAN, JJ.

KELLY, Judge:

In this appeal, we are called upon to determine whether the Common Pleas Court correctly ruled that appellant's prior acquittal of the offenses of speeding ¹ and passing in a no-passing zone ² by a district justice were nullities where the district justice elicited evidence from appellant but conducted the hearing in the absence of the state trooper who issued the summary traffic citations. We hold that appellant's subsequent retrial by the Common Pleas Court for the same traffic offenses violated appellant's double jeopardy rights. Hence, we reverse judgment of sentence and direct that appellant be absolutely discharged.

The relevant facts and procedural history of this case are as follows. On December 26, 1990, appellant was cited by State Trooper Barry L. Stankus for alleged violations of Sections 3307(b) and 3362(a)(2) of the Pennsylvania Motor Vehicle Code pertaining to no-passing zones and speeding. Appellant entered a plea of not guilty to these charges and a hearing was scheduled on January 22, 1991 at 9:30 a.m. before District Justice Watson J. Dayton. On January 7, 1991, a notice of the trial date was sent to both Trooper Stankus and appellant.

At 9:30 a.m., on January 22, 1991, appellant presented himself without counsel before District Justice Dayton. Shortly before appellant's appearance, at 9:15 a.m., District Justice Dayton received a telephone call from Pennsylvania State Police Sergeant Joseph Fawcett indicating that Trooper Stankus was on a call and would not be able to be at the District Justice Dayton's courtroom at 9:30 a.m., but he did not think that Trooper Stankus would be too long with whatever he was doing. District Justice Dayton then asked appellant whether he wanted a continuance or whether he was willing to wait for Trooper Stankus. Appellant requested that District Justice Dayton dismiss the case. District Justice Dayton informed appellant that he would not dismiss the case and that appellant's only two choices were to either wait for Trooper Stankus or accept a continuance. Appellant elected to wait for Trooper Stankus. ³

District Justice Dayton then asked Sergeant Fawcett to call him as soon as Trooper Stankus was available. At 10:00 a.m., while appellant was waiting in the hall, District Justice Dayton called Sergeant Fawcett to check on Trooper Stankus' status. Sergeant Fawcett informed District Justice Dayton that Trooper Stankus had not yet returned. District Justice Dayton then asked Sergeant Fawcett to call him back because appellant was sitting in the hall waiting for his hearing. During the next hour, District Justice Dayton did not receive a call from Sergeant Fawcett. At approximately 11:00 a.m., District Justice Dayton once again called Sergeant Fawcett and was informed that Trooper Stankus had finished with the incident and would arrive at his courtroom at 11:25 a.m.

At 11:25 a.m., when Trooper Stankus did not appear at the courtroom, District Justice Dayton called the case for trial. District Justice Dayton informed appellant that he was going to accept the officially filed traffic citations as proof that he had been charged with speeding and passing in a no-passing zone and that if Trooper Stankus appeared during the trial, he would be permitted to testify. Appellant then testified as to his version of the events that transpired on December 26, 1990 and offered one exhibit in support of his testimony. At the conclusion of appellant's case, District Justice Dayton found him not guilty based upon the evidence. District Justice Dayton then circled the not guilty adjudication space on each citation and signed them. ⁴

On February 7, 1991, the Commonwealth filed an appeal to Common Pleas Court from District Justice Dayton's acquittal of appellant. On April 16, 1991, appellant filed a motion to quash the Commonwealth's appeal to the Common Pleas Court and President Judge Kenneth W. Seamans issued a rule on the Commonwealth to show cause why the motion should not be granted. On April 25, 1991, President Judge Seamans denied appellant's motion to quash the Commonwealth's appeal, ruling that because District Justice Dayton did not hear the Commonwealth's evidence before the defendant's testimony, he was without jurisdiction to acquit appellant of the two summary offenses. President Judge Seamans then directed the case be continued until 10:00 a.m. on June 27, 1991.

On May 16, 1991, appellant filed an appeal to this Court from President Judge Seamans' order denying his motion to quash the Commonwealth's appeal. President Judge Seamans subsequently directed appellant to file a concise statement of matters complained upon appeal pursuant to Pa.R.A.P. 1925(b). Additionally, President Judge Seamans issued an order setting a hearing pursuant to Pa.R.A.P. 1701(b)(4) for the purpose of preserving testimony. Appellant filed his concise statement of matters complained of on appeal on June 7, 1991. On June 10, 1991, a hearing was held before President Judge Seamans. At this hearing, District Justice Dayton testified for the purposes of making a record for this Court that all parties had received notice for the January 22, 1991 hearing at his district justice office. District Justice Dayton also testified that he had convened a proper trial, received evidence and acquitted appellant based upon that evidence. President Judge Seamans then issued an order staying all action in appellant's case pending the outcome of his appeal. On May 27, 1992, this Court quashed appellant's appeal. See Commonwealth v. Walczak, 421 Pa.Super. 652, 613 A.2d 31 (1992).

On March 17, 1993, the trial court conducted a bench trial. At this trial, appellant renewed his motion to quash the Commonwealth's appeal based on his contention that jeopardy attached in the proceeding before District Justice Dayton on January 22, 1991 in which he was acquitted; thus Commonwealth's appeal from the verdict violated the constitutional prohibition against double jeopardy. President Judge Seamans denied appellant's motion, but directed that District Justice Dayton's prior testimony be made part of the record.

The trial then commenced. The Commonwealth presented the testimony of Trooper Stankus. Appellant did not testify in this proceeding. The trial court then found appellant guilty of both summary charges. Post-verdict motions for an arrest of judgment or a new trial were argued and denied. Appellant then filed an appeal to this Court which was subsequently quashed by this Court as interlocutory and the case was remanded to the trial court because judgment of sentence had not yet been imposed at the time the appellant's appeal was filed. See Commonwealth v. Walczak, 435 Pa.Super. 628, 644 A.2d 810 (1994). Upon remand, the trial court sentenced appellant to pay a fine of $66.50 for the passing in a no-passing zone conviction and a fine of $121.50 for the speeding conviction. This timely appeal followed.

On appeal, appellant raises the following issues for our review:

1. WHETHER THE COMMONWEALTH OF PENNSYLVANIA HAS THE RIGHT TO APPEAL AN ADVERSE SUMMARY DECISION MADE BY A DISTRICT JUSTICE CONCERNING VIOLATIONS OF THE PENNSYLVANIA VEHICLE CODE, 75 Pa.C.S.A. § 101, ET SEQ.?

2. WHETHER THE RETRIAL, CONVICTION AND SENTENCING OF APPELLANT VIOLATED HIS RIGHTS AGAINST DOUBLE JEOPARDY AS CONTAINED IN THE UNITED STATES AND PENNSYLVANIA CONSTITUTIONS?

3. WHETHER THE COMMONWEALTH'S APPEAL OF THE NOT GUILTY VERDICT ENTERED BY MAGISTRATE DAYTON WAS FRIVOLOUS, THEREBY ENTITLING APPELLANT TO AN AWARD OF ATTORNEYS' FEES PURSUANT TO RULE 2744 OF THE PENNSYLVANIA RULES OF APPELLATE PROCEDURE, Pa.R.A.P., RULE 2744, 42 Pa.C.S.A.?

(Appellant's Brief at 3).

In his first two issues on appeal, appellant contends that the Commonwealth is barred by the principle of double jeopardy from appealing a verdict of not guilty rendered in a properly convened summary trial before a district justice in which evidence was offered by the defendant. Appellant argues that as District Justice Dayton elicited evidence at the January 22, 1991 summary proceeding in which Trooper Stankus, despite notice, failed to appear and acquitted him on the basis of that evidence, the Commonwealth should have been barred from appealing his acquittal to the Common Pleas Court for a trial de novo. Thus, appellant asserts that the trial court committed error by denying his motion to quash the Commonwealth's appeal based upon its ruling that the January 21, 1991 proceeding before District Justice Dayton was a nullity due to the failure of the Commonwealth's witness, Trooper Stankus, to appear at this proceeding. Therefore, appellant maintains that the trial court's verdict of guilt concerning the two summary violations must be reversed and District Justice Dayton's verdicts of not guilty must be reinstated. We agree.

"It has long been well-settled that the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution prevents the prosecution from appealing a verdict of acquittal." Commonwealth v. Maurizio, 496 Pa. 584, 586, 437 A.2d 1195, 1195-96 (1981). " 'The [prosecution] may not appeal from a verdict of 'not guilty' entered by the trial court in a criminal prosecution and this is so whether the prosecution be by indictment or by summary proceeding.' " Borough of West Chester v. Lal, 493 Pa. 387, 392, 426 A.2d 603, 605 (1981) (quoting Commonwealth v. Ray, 448 Pa. 307, 311, 292 A.2d 410, 413 (1972). " '[T]he fact finder in a criminal case has been traditionally permitted to enter an unassailable but unreasonable verdict of "not...