Com. v. Waters

• Citation: 491 Pa. 85,418 A.2d 312
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Gary D. WATERS, Appellant. COMMONWEALTH of Pennsylvania, Appellant, v. Gary D. WATERS, Appellee.
• Decision Date: 10 September 1980
• Court: United States State Supreme Court of Pennsylvania

Page 312

418 A.2d 312

491 Pa. 85

COMMONWEALTH of Pennsylvania, Appellee, v. Gary D. WATERS, Appellant.

COMMONWEALTH of Pennsylvania, Appellant, v. Gary D. WATERS, Appellee.

Supreme Court of Pennsylvania.

Argued Jan. 24, 1980.

Decided July 15, 1980.

Reargument Denied Sept. 10, 1980.

Gregory V. Smith, Chief Public Defender, George E. Lepley, Jr., Williamsport, for Waters.

Robert F. Banks, First Asst. Dist. Atty., for Com.

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

OPINION

EAGEN, Chief Justice.

This involves two appeals stemming from the prosecution of Gary D. Waters on several charges following a criminal episode in Lycoming County. One appeal has been filed by Waters, and the other by the Commonwealth. To clarify the issues, we detail the background garnered from the record.

On April 13, 1976, Waters and Paul Allen agreed to commit armed robberies in the central Pennsylvania area. The two had recently returned to their joint home in East Berlin, Pennsylvania, ¹ from Las Vegas where they had lost most of their money in an attempt to implement Allen's scheme for winning at dice. Allen already owned a .22 calibre pistol, and the two men purchased a rifle. They practiced firing the weapons that afternoon. After placing the weapons in the Allen car, the two men and their families drove to the home of a friend in Williamsport where the family members were dropped off. During the drive and several stops at homes of acquaintances, both men consumed alcoholic beverages.

Allen and Waters then proceeded to the Williamsport apartment of Diane Buck who was known to Allen. Allen suggested they go in "and maybe get a piece of ass and little bit of money." When Allen was unable to break in the door, Waters opened it with a karate kick. Once inside, the men proceeded to a bedroom where they found Diane Buck and Terry Brennan in bed nude. Allen fired a shot between the couple, took Diane Buck from the bed, and, for the next one and one-half hours, pushed, beat, and shoved her around the apartment while attempting, unsuccessfully, to rape her. During this time, Waters kept guard over Brennan and took his cash and watch. At some point, when Waters left the room to get a cigarette, Allen entered the bedroom and shot Brennan in the neck with the pistol. Later, when all four persons were in the bedroom, Allen forced Diane Buck onto the bed with Brennan, who was injured and bleeding, and ordered her to ask him about his injuries. He also ordered Waters to rub Diane Buck's stomach and Buck to "shake it 'round like you enjoy it." He then took Buck out of the room and continued his efforts to rape her leaving Waters in the room with Brennan.

Waters whispered to Brennan he would get him help and would try to mislead Allen by saying in a loud voice that he was going to finish Brennan off. He did so and shot his weapon into the air. He exited the room, told Allen he had killed Brennan, and encouraged him to leave. Allen went to check whether Brennan was really dead. By Diane Buck's account, Allen threatened to kill both her and Waters if Brennan was not, in fact, dead. As Allen entered the bedroom, Waters shot him from behind. Allen died instantly.

Waters advised Diane Buck to call an ambulance, but, when she could not compose herself sufficiently to complete the call, Waters himself called the police. He remained at the apartment until the police arrived and, later that night, gave a statement to the police concerning the evening's events. Brennan's money was found in Waters' pocket, and his watch was later found in the holding cell in which Waters was detained that evening.

On April 14, 1976, Waters was charged with the murder of Allen, but this charge was later withdrawn by the district attorney who concluded this killing was justifiable homicide. At the same time, Waters was also charged with the attempted murder of Brennan, burglary, theft, and conspiracy. His pleas of guilty to these charges were accepted by the court on May 21, 1976, and sentence was deferred. However, when Brennan died on May 29 from the gunshot wound inflicted by Allen, Waters was rearrested and charged with the murder of Brennan.

On September 13, 1976, Waters requested permission to withdraw the guilty pleas entered on May 21, which request was objected to by the Commonwealth and denied by the trial court on September 20, 1976. Sentence was imposed on these convictions later the same day. Waters filed a timely appeal in the Superior Court.

On October 1, 1976, Waters filed a motion to quash the murder charge on the ground of double jeopardy. The court denied this motion on November 2, 1976. On November 13, 1976, Waters was convicted by a jury of murder of the second degree for the killing of Brennan and was later sentenced to life imprisonment. Waters' appeal in this Court (No. 392) is from that judgment.

On April 28, 1978, the Superior Court reversed the judgments and convictions based on Waters' guilty pleas of May 21, 1976 and remanded the record to the trial court with directions to permit the withdrawal of the guilty pleas; ² the trial court subsequently followed this mandate. Waters then filed a motion to quash the charges of attempt-murder of Brennan, burglary, theft, and conspiracy on the grounds of double jeopardy and a violation of Commonwealth v. Campana, 452 Pa. 233, 304 A.2d 432 (Campana I), vacated 414 U.S. 808, 94 S.Ct. 73, 38 L.Ed.2d 44 (1973); reinstated on remand 455 Pa. 622, 314 A.2d 854 (Campana II), cert. denied, 417 U.S. 969, 94 S.Ct. 3172, 41 L.Ed.2d 1139 (1974). On March 14, 1979, the trial court rejected the motion to quash for the reasons asserted by Waters, but did quash the attempt-murder charge ruling sua sponte that the attempt-murder offense merged with the murder offense. The Commonwealth filed an appeal in the Superior Court challenging the correctness of the order quashing the attempt-murder charge. The Superior Court certified that appeal here for disposition (No. 207).

Waters' Appeal (No. 392)

First, Waters claims his right not to be placed twice in jeopardy was violated by his trial for murder after he had been charged with and plead guilty to criminal attempt-murder, burglary, theft, and conspiracy, citing Campana. ³ We adopted the rule of joinder in Campana pursuant to our supervisory powers over Pennsylvania courts, not as a matter of constitutional law. We espoused a rule requiring "a prosecutor to bring, in a single proceeding, all known charges against a defendant arising from a 'single criminal episode.' " Campana I, supra 452 Pa. at 253, 304 A.2d at 441. (Footnote omitted.) At the time Waters' guilty pleas were accepted by the trial court, May 21, 1976, Brennan had not yet died. Therefore, the offense of murder was not known to the district attorney at that time, and the Commonwealth could not have instituted and prosecuted the murder charge in the first proceeding. Commonwealth v. Washington, 481 Pa. 474, 393 A.2d 3 (1978).

Waters implies ⁴ that, had his motion to withdraw his guilty pleas been granted by the trial court prior to imposition of sentence on these convictions, the district attorney could have brought the charges to which he had plead guilty in the same proceeding wherein he was charged with murder.

Such reasoning is devoid of validity. The issue presented is whether the murder charge could have been brought when Waters plead guilty to the other charges. Since Brennan was then still alive, the answer is clearly no. Hence, there was no violation of Campana, and the court correctly denied the motion to quash on this ground.

Waters also implies that the failure of the Commonwealth to join in his petition to withdraw his guilty pleas and/or to oppose sentencing on those convictions created a bar to the prosecution for murder under Campana or principles of double jeopardy because death had occurred when his petition to withdraw was denied and when he was sentenced. The argument is without merit.

In a Campana context, where the victim died subsequent to trial but prior to disposition of post-verdict motions and sentencing on lesser offenses, we expressly indicated that the failure to oppose sentencing and impliedly indicated that the failure to join in post-verdict motions created no bar to a subsequent prosecution for murder. Hence, the Campana -based argument has already been rejected. ⁵

Insofar as the argument is based on principles of double jeopardy, the same reasoning applies. The Supreme Court of the United States in Jeffers v. United States, 432 U.S. 137, 97 S.Ct. 2207, 53 L.Ed.2d 168 (1977) (plurality opinion, but see cases therein cited), clearly indicated that a prior prosecution on a lesser offense does not bar prosecution on a greater offense where the greater offense is not completed or where the facts necessary to the greater were not discovered despite due diligence before the prosecution on the lesser offense. The Court's reasoning is the same as that used by us in Commonwealth v. Washington, supra, although it does not go as far as that set forth in Commonwealth v. Washington, supra, i. e. it does not deal with the disposition of post-verdict motions or sentencing after the greater offense is completed or discovered. But we know of no reason not to apply the reasoning of Commonwealth v. Washington, supra, to arguments based on double jeopardy principles and numerous reasons justifying doing so. ⁶

First, as pointed out, Commonwealth v. Washington, supra, and Jeffers v. United States, supra, are in accord as to their initial reasoning and nothing in Jeffers v. United States, supra, suggests that an initial prosecution on lesser charges which begins without creating a bar to a subsequent prosecution on a greater charge should somehow created a bar as it is pursued because the facts necessary to establish the greater offense are completed or discovered during the course of the initial prosecution. Second, even if the greater crime...