Commonwealth v. Bostic
| Decision Date | 16 March 1983 |
| Citation | 500 Pa. 345,456 A.2d 1320 |
| Parties | COMMONWEALTH of Pennsylvania, Appellee, v. Joseph E. BOSTIC, Jr., Appellant. COMMONWEALTH of Pennsylvania, Appellee, v. Alton BRADBY, Appellant. |
| Court | Pennsylvania Supreme Court |
Argued Jan. 25, 1983.
Robert O. Baldi, Asst. Public Defender, Michael A Klimpl, Asst. Public Defender (court-appointed), for appellants.
Stephen B. Harris, Asst. Dist. Atty., for appellee.
Before ROBERTS, C.J., and NIX, LARSEN, FLAHERTY, McDERMOTT HUTCHINSON and ZAPPALA, JJ.
This appeal raises a single, legal issue, namely, whether the sentencing of appellants to consecutive prison terms upon their convictions for aggravated robbery and for committing a crime of violence while in possession of a firearm violates their rights under the double jeopardy clauses of the federal and state constitutions to be protected against multiple punishments for one offense. We find that appellants' consecutive sentences do not violate double jeopardy principles.
On October 14, 1972, appellants, Alton Bradby and Joseph Bostic, held up a food market in Bucks County. Armed with hand guns and accompanied by a third man, appellants robbed the store and several customers of cash and struck some of the customers with their gun butts. On November 21, 1973, appellants were both found guilty by a jury in the Court of Common Pleas of Bucks County of aggravated robbery, burglary, larceny conspiracy and commission of a crime of violence with a firearm.
The men were sentenced on February 19, 1974 by the Honorable John Justus Bodley. Judge Bodley sentenced each appellant to a term of imprisonment of five to ten years on the aggravated robbery conviction and to a consecutive term of five to ten years on the conviction for the commission of a crime of violence while in the possession of a firearm. Both men took direct appeals to the Superior Court which affirmed their convictions and judgments of sentence. This Court denied appellants' petitions for allowance of appeal.
Subsequently, each appellant filed Post-Conviction Hearing Act (PCHA) petitions alleging, inter alia, that the consecutive sentences were in violation of the double jeopardy clauses of the Constitutions of the United States, U.S. Const.Amend. V, and of Pennsylvania, Pa. Const. Art. I, § 10. The Court of Common Pleas of Bucks County denied the PCHA petitions of appellants Bradby and Bostic on January 25, 1980 and July 25, 1980, respectively. The Superior Court affirmed both denials. This Court granted allocatur in each case to resolve the double jeopardy issue. [1]
Appellants were each convicted of what was commonly referred to as "aggravated robbery" under then-in-effect section 705 of the Act of June 24, 1939, P.L. 872, 18 P.S. § 4705 (see 18 Pa.C.S. Appendix). That section provided:
Robbery with accomplice or while armed or by violence
Whoever, being armed with an offensive weapon or instrument, robs or assaults with intent to rob another; or, together with one or more person or persons, robs or assaults with intent to rob; or robs any person, and at the same time, or immediately before or immediately after such robbery, beats, strikes, or ill-uses any person, or does violence to such person, is guilty of felony, and upon conviction, shall be sentenced to pay a fine not exceeding ten thousand dollars ($10,000), or undergo imprisonment, by separate or solitary confinement at labor, not exceeding twenty (20) years, or both.
While the evidence at trial certainly supported the convictions on all counts of "aggravated robbery", [2] the sentencing court chose to sentence appellants only on the third counts of their indictments for "armed robbery", and suspend sentence on the remaining counts. The sentence of five to ten years was substantially less than the maximum allowable sentence of 20 years.
The consecutive sentences of five to ten years on the convictions for the commission of a crime of violence with a firearm were imposed pursuant to section 416 of the Act of June 24, 1939, P.L. 872, 18 P.S. § 4416, as amended (see 18 Pa.C.S. Appendix), which provided:
(b) Whoever is convicted of committing a crime of violence, which for the purposes of this section means murder, rape, robbery, burglary, entering a building with intent to commit a crime therein, kidnapping or participation in riot and during the commission thereof had in his possession a firearm shall, in addition to the penalties prescribed by law, be sentenced to undergo imprisonment for not less than five (5) years and not more than ten (10) years. (emphasis added)
Appellants now claim that their consecutive sentences violate double jeopardy principles in this case as they were subjected to multiple punishments for the same offense. See North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969) () and Commonwealth v. Houtz, 496 Pa. 345, 437 A.2d 385 (1981) (Larsen and Kauffman, JJ., concurring in the result) (among protections embodied by double jeopardy proscriptions of Constitutions of the United States and this Commonwealth is prohibition against multiple punishments for same offense at one trial).
Appellants argue that the offense of commission of a crime of violence (here, robbery) with a firearm is the "same offense" for double jeopardy purposes as the crime of aggravated robbery with an offensive weapon (here a handgun, or firearm) under the "same offense" test enunciated by the United States Supreme Court in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932) and followed by this Court, Commonwealth v. Houtz, supra. That test states:
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.
284 U.S. at 304, 52 S.Ct. at 182.
Appellants' argument misperceives the nature of the federal and state constitutional proscriptions against double jeopardy caused by multiple punishments. The double jeopardy clause serves principally as a restraint on courts and prosecutors--it does not restrain the legislature in its role in defining crimes and fixing penalties. Commonwealth v. Tarver, 493 Pa. 320, 325, 426 A.2d 569 (1981), citing Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977). [3] The intent of the double jeopardy provisions is to prevent courts from imposing, and prosecutors from seeking, more than one punishment under a particular legislative enactment, and, where consecutive sentences are imposed at a single trial, to prevent the court from exceeding its legislative authorization by imposing multiple punishments for the same offense. Id. [4]
In the recently decided case of Missouri v. Hunter, 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983) the United States Supreme Court made it quite clear that the Blockburger test is merely a tool of statutory construction whereby the courts can determine whether, in the absence of legislative expression to the contrary, the legislature intended to prescribe multiple punishments under two separate statutory provisions for what might arguably be considered the "same offense". In Hunter, three men robbed a food market at gun point in Kansas City, Missouri. Respondent, Danny Hunter, also struck the manager with the butt of his revolver. Hunter was convicted of robbery in the first degree, Mo.Ann.Stat.App. § 560.120 (Vernon 1979), and punishment was imposed in accordance with Missouri's enhanced penalty provision of Mo.Ann.Stat.App. § 560.135 (Vernon 1979), which provides in relevant portion: "Every person convicted of robbery in the first degree by means of a dangerous and deadly weapon ... shall be punished by imprisonment ... for not less than five years ...." Missouri law, Mo.Stat.App. § 559.225 (Vernon 1979), also proscribes "armed criminal action" as follows:
[A]ny person who commits any felony under the laws of this state by, with, or through the use, assistance, or aid of a dangerous or deadly weapon is also guilty of the crime of armed criminal action and, upon conviction, shall be punished by imprisonment by the division of corrections for a term of not less than three years. The punishment imposed pursuant to this subsection shall be in addition to any punishment provided by law for the crime committed by, with, or through the use, assistance, or aid of a dangerous or deadly weapon. No person convicted under this subsection shall be eligible for parole, probation, conditional release or suspended imposition or execution of sentence for a period of three calendar years. (emphasis added)
The Missouri Supreme Court had concluded that, as appellants herein argue, under the test announced in Blockburger, armed criminal action and any underlying offense are the "same offense" under the Fifth Amendment's double jeopardy clause. In rejecting this conclusion by a seven to two margin (majority opinion by Chief Justice Burger), the United States Supreme Court stated:
it is clear that the Missouri Supreme Court has misperceived the nature of the Double Jeopardy Clause's protection against multiple punishments. With respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended.
....
In Whalen [v United States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d...
To continue reading
Request your trial