Commonwealth v. Allen
| Decision Date | 25 November 1983 |
| Docket Number | 2393. |
| Citation | 322 Pa.Super. 424,469 A.2d 1063 |
| Parties | COMMONWEALTH of Pennsylvania v. Charles J. ALLEN, Appellant. |
| Court | Pennsylvania Superior Court |
Argued Nov. 17, 1981. [Copyrighted Material Omitted]
Kenn Sandoe, Lebanon, for appellant.
William L. Thurston, Asst. Dist. Atty., Lebanon, for Commonwealth appellee.
Before CERCONE, P.J., and McEWEN and HOFFMAN, JJ.
This is an appeal from an order which denied the omnibus pre-trial motion of appellant wherein appellant had argued that prosecution on charges of criminal trespass, [1] simple assault [2] and rape [3] was barred on double jeopardy grounds. [4] We here consider whether a finding that appellant was in contempt of an order issued pursuant to the Protection From Abuse Act [5] bars subsequent prosecution on charges based on the same conduct which supported the contempt order.
The distinguished Judge John A. Walter, by order of April 18 1980, enjoined appellant from physically abusing, striking or harassing his wife and minor children. A criminal complaint was subsequently filed on May 16, 1980, charging appellant with simple assault and criminal trespass as a result of an allegation that appellant had forcibly entered the residence of his wife and physically abused her on May 7 and May 8, 1980. As a further result of the incident, appellant was arraigned on contempt charges on May 19, 1980. The Common Pleas Court, after a hearing on May 28, 1980, found appellant to be in contempt of court and ordered him to pay costs and a fine of $750.00. A further criminal complaint based upon the incident was filed on June 3, 1980, and charged appellant with rape. [6]
Appellant asserts that the principle of double jeopardy bars prosecution on all three criminal charges since appellant had previously been convicted of contempt. The contentions set forth by appellant require analysis of the provisions of the Crimes Code, 18 Pa.C.S.A., as well as the double jeopardy clauses of the United States Constitution [7] and the Constitution of this Commonwealth. [8] We decide that: (1) the sections of the Crimes Code cited by appellant in support of his position are not applicable to this case; (2) the double jeopardy protection of the federal constitution bars only the simple assault charge; (3) and the state constitutional prohibition against double jeopardy does not bar prosecution on the two remaining charges of criminal trespass and rape.
We begin our study with a determination of whether the applicable provisions of the Crimes Code preclude the second prosecution in this case. See Commonwealth v. Hude, 500 Pa. 482, 488, 458 A.2d 177, 180 (1983) (). Sections 109-112 of the Crimes Code, 18 Pa.C.S.A. §§ 109-112, ban second prosecutions in various instances, [9] but these provisions are not applicable to the facts of this case. Although section 107 of the Crimes Code, 18 Pa.C.S.A. § 107, provides that the provisions of Part 1 of Title 18, which includes sections 109-112, are applicable to offenses defined by Title 18, including all of the offenses here charged, sub-section (c) of section 107 provides a number of exceptions, including the provision that section 107 "does not affect the power of a court ... to punish for contempt ...". Thus, we proceed to consider the federal and state constitutional prohibitions against double jeopardy since the statutory provisions do not require the grant of the relief requested.
" Illinois v. Vitale, 447 U.S. 410, 415, 100 S.Ct. 2260, 2264, 65 L.Ed.2d 228, 235 (1980). Quoting North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969) (footnotes omitted). The second of these three guarantees is the focus of our attention in this appeal since appellant contends that the finding that he was in contempt was such a conviction as to bar any prosecution on the charges now pending against him. Any analysis of this contention necessarily involves a determination of whether the contempt proceeding was criminal in nature.
"Contempt" is classified either as civil contempt or criminal contempt. The two types of contempt may be distinguished from one another by analyzing the primary purpose and objective of the court's order. Commonwealth v. Marcone, 487 Pa. 572, 410 A.2d 759 (1980); In Re "B", 482 Pa. 471, 394 A.2d 419 (1978); Commonwealth v. Feick, 294 Pa.Super. 110, 439 A.2d 774 (1982). Feick, supra 294 Pa.Super. at 112-13, 439 A.2d at 775. Further, "if the contempt consists solely of a past act, the only allowable judicial response is punitive, and any contempt adjudication must be criminal." In re Martorano, 464 Pa. 66, 80 n. 19, 346 A.2d 22, 29 (1975); Cipolla v. Cipolla, 264 Pa.Super. 53, 57, 398 A.2d 1053, 1055 (1979).
It seems certain that the citation we examine is one of criminal contempt, not civil, since the dominant purpose of the proceeding was to determine whether appellant had disobeyed the order entered pursuant to the Protection From Abuse Act and, if he had, to punish appellant so as to preserve the authority of the court and to protect the interests of the general public. See Cipolla v. Cipolla, supra.
Two classes of criminal contempt, direct and indirect, are recognized in this Commonwealth. Our Supreme Court has distinguished between the two:
The essence of [direct criminal] contempt is that the misconduct constitutes a direct affront to the dignity and authority of the court.... Where that disobedience or misbehavior occurs in the actual presence of the court or has the capacity of directly affecting the proceeding then in progress, it may be properly classified as a direct or the most grievous type of contempt. All other behavior which may have a more remote impact upon the dignity of the court and its ability to fulfill its responsibilities are classified as indirect criminal contempts.
Commonwealth v. Maurizio, 496 Pa. 584, 587, 437 A.2d 1195, 1196 (1981); quoting Commonwealth v. Marcone, supra 487 Pa. at 579, 410 A.2d at 762-63. Therefore, it seems clear that the wife of appellant here sought a citation for indirect criminal contempt since the conduct that we examine occurred outside the presence of the court. Further, this court in Cipolla v. Cipolla, supra, an opinion authored by our illustrious colleague, Judge John P. Hester, ruled that the contempt displayed by a husband who had violated an order issued pursuant to the Protection From Abuse Act was indirect criminal contempt. And, finally, the Protection From Abuse Act itself dictates that "upon violation of a protective order ... the court may hold appellant in indirect criminal contempt and punish him in accordance with law." 35 P.S. § 10190(a). Thus, the authority for our conclusion is certain.
The contention of appellant that the prior contempt conviction bars subsequent prosecution for criminal trespass, simple assault and rape, is premised on two separate protections afforded an accused. One focuses on the proof necessary to prove the statutory elements of each offense, Illinois v. Vitale, supra 447 U.S. at 417, 100 S.Ct. at 2265, 65 L.Ed.2d at 235; Brown v. Ohio, 432 U.S. 161, 166, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187, 194 (1977), while the other protection was set forth by the Pennsylvania Supreme Court in the Campana decisions [10] and provides that all known criminal offenses arising from the same criminal episode must be concluded in one prosecution.
It is clear from the decisions of the United States Supreme Court that our study of whether the double jeopardy clause of the United States Constitution affords appellant the relief requested requires a determination of whether the elements of the contempt charged includes the same elements as compose the offenses of criminal trespass, simple assault and rape.
In Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977), we stated the principal test for determining whether two offenses are the same for purposes of barring successive prosecutions. Quoting from Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932) which in turn relied on Gavieres v. United States, 220 U.S. 338, 342-343, 31 S.Ct. 421, 422, 55 L.Ed. 489 (1911), we held that
" '[t]he 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.' " 432 U.S., at 166, 97 S.Ct., at 2225.
We recognized that the Blockburger test focuses on the proof necessary to prove the statutory elements of each offense rather than on the actual evidence to be presented at trial. Thus we stated that if " 'each statute...
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