Commonwealth v. Campana

• Decision Date: 04 May 1973
• Citation: 452 Pa. 233,304 A.2d 432
• Parties: COMMONWEALTH of Pennsylvania v. Peter CAMPANA, Appellant. COMMONWEALTH of Pennsylvania v. John DOE et al. Appeal of John E. HALL. Appeal of Roger SMITH et al. Appeal of Charles GINDER. COMMONWEALTH of Pennsylvania v. Robert Earl KING, Appellant.
• Court: Pennsylvania Supreme Court

304 A.2d 432

452 Pa. 233

COMMONWEALTH of Pennsylvania v. Peter CAMPANA, Appellant.

COMMONWEALTH of Pennsylvania v. John DOE et al.

Appeal of John E. HALL. Appeal of Roger SMITH et al. Appeal of Charles GINDER. COMMONWEALTH of Pennsylvania v. Robert Earl KING, Appellant.

Supreme Court of Pennsylvania.

May 4, 1973.

John J. Dean, Sallie Ann Radick, Pittsburgh, for appellant king.

Ambrose R. Campana, Campana & Campana, Williamsport, for appellant Campana.

Martin W. Binder, David A. Binder, Marx, Ruth, Binder & Stallone Emmanuel H. Dimitrion, Lieberman & Dimitrion, Reading, for appellant Hall and others.

Robert W. Duggan and Allen E. Ertel, Dist. Attys., Pittsburgh Robert L. VanHoove, Dist. Atty., Reading, Carol Mary Los and Robert L. Eberhardt, Asst. Dist. Attys., Pittsburgh, Grant E Wesner, Asst. Dist. Atty., Reading, for appellee.

Before JONES, EAGEN, O'BRIEN, POMEROY and BARBIERI, JJ., in No. 21.

Before BELL, C.J., and JONES, EAGEN, O'BRIEN, ROBERTS, POMEROY and BARBIERI, JJ., in No. 205.

Before JONES, C.J., and EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ., in No. 127.

OPINION OF THE COURT

ROBERTS Justice.

These three appeals were argued together during the September 1972, Term, and will be disposed of in this opinion.

On September 7, 1968, a justice of the peace found appellant Peter T. Campana not guilty of disorderly conduct, a charge arising out of an August 17, 1968, incident. Additional charges arising from the same incident of resisting arrest and assault on a police officer were dismissed for lack of sufficient evidence. Subsequently the Commonwealth again instituted the charges of resisting arrest and assault on a police officer before Another justice of the peace who bound appellant over to the grand jury. On February 5, 1969, appellant was tried by jury and convicted of both crimes. Post-trial motions were denied and appellant was placed on probation for a period of one year. The Superior Court affirmed in a per curiam order, with Judge Hoffman noting a dissent. Commonwealth v. Campana, 217 Pa.Super. 818, 270 A.2d 231 (1970). We granted allocatur and heard argument during the January 1972, Term. Subsequently we ordered reargument during the September 1972, Term.

Appellants John Doe, et al., were convicted by a justice of the peace on June 10, 1968, of disorderly conduct and disturbing the peace for their conduct in a Berks County bar on May 19, 1968. Each appellant was ordered to either pay a fine of $300.00 or undergo imprisonment for thirty days. The justice of the peace also bound appellants over to the grand jury on charges of aggravated assault and battery, riot, riotous destruction of property and malicious mischief, all charges originating from the May 19, 1968, disturbance. On June 10, 1969, appellants ^[1] were tried by noting a dissent. Commonwealth v. jury and convicted of riot, riotous destruction of property and malicious mischief. In addition appellants John Hall and Charles Ginder were found guilty of assault and battery. Motions for a new trial and in arrest of judgment were argued. The motion in arrest of judgment was granted only as to the malicious mischief charge. Each appellant was sentenced to serve a term of imprisonment of not less than one and one-half nor more than five years. The Superior Court affirmed per curiam with Judge Hoffman filing a dissenting opinion in which Judge Spaulding joined. Commonwealth v. John Doe et al., 217 Pa.Super. 148, 269 A.2d 138 (1970). We granted allocatur and, after first hearing argument during the January 1972, Term, ordered reargument during the September 1972, Term.

On February 28, 1969, appellant Robert Earl King was ordered to pay a fine of $500.00 by a justice of the peace for disorderly conduct that occurred the same day. The justice of the peace also bound appellant over to the grand jury on charges of assault and battery on a police officer in execution of a legal process and resisting arrest, both charges stemming from the February 28, 1969, incident. On September 11, 1969, appellant in a nonjury trial was convicted of both charges, and a sentence of not less than six months nor more than one year was imposed. No post-trial motions were filed out on March 8, 1971, appellant was allowed to file post-trial motions as if timely filed. After their denial the Superior Court affirmed with a per curiam order. Commonwealth v. King, 220 Pa.Super. 771, 286 A.2d 416 (1972). We granted allocatur and ordered the appeal heard at the time of reargument of the above cases.

Presented for consideration in these consolidated appeals is whether appellants, by virtue of their second prosecutions, were subjected to 'Double Jeopardy' in contravention of the Fifth and Fourteenth Amendments of the United States Constitution. ^[2] We hold that All charges resulting from the criminal 'episode' ^[3] of each appellant should have been consolidated at one trial, and consequently the second prosecutions violated the Double Jeopardy Clause of the Fifth Amendment. Accordingly we reverse the judgments of sentences imposed as a result of the second prosecutions. ^[4]

The Double Jeopardy Clause reads in deceptively simple terms: '(n)or shall any persons be subject for the offence to be twice put in jeopardy of life or limb; . . .' Although the language of the clause remains cryptic, leading authorities generally turn to Justice Black's opinion in Green v. United States, 355 U.S. 184, 187, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957), as an impassioned yet reasoned statement of the policies underlying the Double Jeopardy Clause:

'(T)he State with all its resources and power should not be allowed to make Repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity. . . .' (Emphasis supplied.)

While courts and commentators remain undecided whether the clause governs the question of how many separate criminal offenses a defendant can be punished for at a Single trial, ^[5] authorities are unanimous that the principal purpose of the Double Jeopardy Clause is to prevent 'repeated attempts to convict an individual of an alleged offense' through a series of prosecutions. ^[6] As Mr. Chief Justice Burger has noted:

"The prohibition is not against being twice punished, but against being twice Put in jeopardy . . ..' The 'twice put in jeopardy' language of the Constitution thus relates to a potential, i.e., the risk that an accused for a second time will be convicted of the 'same offense' for which he was initially tried.'

Price v. Georgia, 398 U.S. 323, 326, 90 S.Ct. 1757, 1759, 26 L.Ed.2d 300 (1970).

At its inception in early common law the defense of double jeopardy was remarkably equipped to prevent successive prosecutions. ^[7] Criminal statutes were relatively few in number and broad in coverage. An acquittal at one trial could not generally be followed by another prosecution, because the second trial would by necessity be based on precisely the same charge as that of the first. A conviction resulted in a severe sentence, generally death, leaving little incentive for the prosecution to seek another trial.

As countless legal scholars have noted, however, the modern age of criminal procedure has witnessed a proliferation of penal statutes. ^[8] A consequence of this development is the judiciary's responsibility 'to recognize that new rules must be devised to cope with the fact that a single factual situation may today give rise to a number of substantive offenses.' ^[9] Prosecutors, 'by consulting a Thesaurus,' ^[10] are presently able to dissect a single criminal 'act', 'transaction', 'occurrence', 'episode' or 'circumstance', and produce a variety of criminal charges. Unless the judiciary properly meets its responsibility, a prosecutor, if he is for any reason dissatisfied with the result of the first trial, could circumvent the generally accepted prohibition against state appeals ^[11] with a new set of charges for a second prosecution. Such 'trial run' prosecutions are, in Mr. Justice Stewart's words, 'precisely what the constitutional guarantee forbids.' ^[12]

The Pennsylvania Double Jeopardy Clause, differing only stylistically from that contained in the Fifth Amendment, ^[13] has been thought to be limited only to what were heretofore 'capital' offenses. ^[14] Nevertheless, defendants in this Commonwealth have been afforded a measure of protection against successive prosecutions by common law pleas of autrefois acquit and autrefois convict. These pleas prevent a prosecutor, after a conviction or acquittal of a 'constituent' or lesser included offense in the first trial, from initiating a second prosecution for a greater offense. ^[15]

Similarly we have construed our Double

Similarly we have constructed our Double Jeopardy Clause to protect a defendant upon retrial in a murder prosecution from conviction in the second trial of a greater offense than that of the first, ^[16] or greater punishment. ^[17] In Dinkey v. Commonwealth, 17 Pa. 126 (1851), this Court applied collateral estoppel to prevent a second prosecution where an issue necessary to sustain the charge was resolved in defendant's favor at the first trial. ^[18] In Commonwealth v. Lloyd, 141 Pa. 28, 30, 21 A. 411 (1891), we unanimously prohibited a second prosecution because the state could have joined both counts at the first trial:

'(W)e do not think the commonwealth can prosecute for the one offence in one county, and for the other in a different county. In other words, there may be two counts, But not two prosecutions. The commonwealth has started in this instance to proceed in Luzerne county, and we think is bound by such election. . . .'...