Huff, Matter of

• Decision Date: 21 November 1990
• Citation: 399 Pa.Super. 574,582 A.2d 1093
• Parties: In the Matter of Jelbert HUFF, Jr., a minor. Appeal of Jelbert HUFF, Jr.
• Court: Pennsylvania Superior Court

Page 1093

582 A.2d 1093

399 Pa.Super. 574

In the Matter of Jelbert HUFF, Jr., a minor Appeal of Jelbert HUFF, Jr.

Superior Court of Pennsylvania.

Argued March 30, 1990.

Filed Nov. 21, 1990.

Thomas D. Heberle, Corry, for appellant.

D. Sherwood Jones, Asst. Dist. Atty., Erie, for Com., participating party.

Before CIRILLO, President Judge, and WIEAND, McEWEN, MONTEMURO, BECK, KELLY, JOHNSON, HUDOCK and FORD ELLIOTT, JJ.

HUDOCK, Judge:

On April 26, 1987, the Appellant, who was then 17 years old, was involved in an automobile accident in which the vehicle he was driving struck and killed a seven-year-old boy. On May 14, 1987 the Pennsylvania State Police issued two citations charging the Appellant with reckless driving ¹ and driving at an unsafe speed ². A hearing was held June 2, 1987, on the two summary traffic offenses before a district justice. At the conclusion of the hearing, the Appellant was found guilty of both summary offenses. On July 15, 1987, the Erie County Juvenile Probation Department filed a delinquency petition charging the Appellant with one count of homicide by vehicle ³. The petition was later amended to include an additional allegation of aggravated assault ⁴. The Appellant claims that the Commonwealth is prevented from proceeding on the petition on the grounds of double jeopardy and collateral estoppel. The trial court held that the Commonwealth was not barred. We affirm.

The issue before this Court can be summarized as follows: Whether the concepts of double jeopardy or collateral estoppel as embodied in the Fifth Amendment to the United States Constitution prevent the Commonwealth from proceeding against the Appellant in juvenile court on charges of homicide by vehicle and aggravated assault following his prior conviction of two summary traffic violations before a district justice. ⁵

We note at the outset that a recent panel of this Court in Commonwealth v. Evers, 381 Pa.Super. 568, 554 A.2d 531 (1989), held that "the constitutional protections of the double jeopardy clause are not implicated where a felony or misdemeanor prosecution is preceded by a conviction before a district justice, whether by summary trial or guilty plea for a summary offense". That court reached its conclusion based on dicta in Commonwealth v. Beatty, 500 Pa. 284, 455 A.2d 1194 (1983), later repeated in Commonwealth v. Taylor, 513 Pa. 547, 522 A.2d 37 (1987), stating, "The disposition of a summary offense in a traffic matter prior to the trial of a misdemeanor or felony does not present the type of government harassment of a defendant that would offend double jeopardy concerns." In Commonwealth v. LaBelle, --- Pa.Super. ----, 579 A.2d 1315 (1990) (en banc), we found the Evers court's reliance on this language misplaced because both Taylor and Beatty involved the application of 18 Pa.C.S.A. § 110 and the compulsory joinder rule of Commonwealth v. Campana, 455 Pa. 622, 314 A.2d 854, cert. denied, 417 U.S. 969, 94 S.Ct. 3172, 41 L.Ed.2d 1139 (1974) ("Campana II"). Neither case purported to deal with the constitutional protections of the double jeopardy clause as applicable to summary offenses. Finding the decision was based on this misinterpretation of Beatty and Taylor, we overruled that decision in LaBelle, holding that the "double jeopardy clause of the Fifth Amendment may indeed serve to bar prosecution of a more serious offense once a defendant has been convicted on a summary charge, if the requirements of case law are met." LaBelle at ----, 579 A.2d at 1320.

It is well settled that the constitutional prohibition against double jeopardy is applicable to juvenile proceedings. Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975), In the Interest of R.R., supra, In the Interest of George S., III, 286 Pa.Super. 217, 428 A.2d 650 (1981). See also Illinois v. Vitale, 447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980).

In deciding whether the double jeopardy clause would bar an adjudication of delinquency in the present case, we are guided by the recent decision of the United States Supreme Court in Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990). In that case, two traffic citations were issued to the defendant; one charging driving while intoxicated and the other charging failing to keep to the right. Three days later an assistant district attorney began gathering evidence for a homicide prosecution but failed to inform the town court of that investigation or ascertain when the defendant was scheduled to appear for trial on the summary offenses. The defendant later pled guilty to the two traffic offenses. When a grand jury brought back an indictment two months later charging the defendant with reckless manslaughter, second degree vehicular manslaughter, and criminally negligent homicide, the defendant sought a writ of prohibition barring prosecution on all counts of the indictment claiming double jeopardy barred the prosecution. In upholding his claim, the Supreme Court held that in determining whether or not subsequent prosecution is barred by double jeopardy, the court must first apply the traditional test first enunciated in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). "If application of the test reveals that the offenses have identical statutory elements or that one is a lesser included offense of the other, then the inquiry must cease, and the subsequent prosecution is barred". Grady at ----, 110 S.Ct. at 2090, citing Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977). The test for determining whether an offense is a lesser included offense is whether each and every element of the lesser offense is necessarily an element of the greater offense. Commonwealth v. Thomas, 376 Pa.Super. 455, 546 A.2d 116, app. den. 520 Pa. 616, 554 A.2d 509 (1988); Commonwealth v. Pemberth, 339 Pa.Super. 428, 489 A.2d 235 (1985); Commonwealth v. Williams, 299 Pa.Super. 278, 445 A.2d 753 (1982). The court in Grady also found that this is not the only standard for determining whether violations of the double jeopardy clause exist. "[T]he double jeopardy clause bars any subsequent prosecution in which the government, to establish an essential element of an offense charged in that prosecution, will prove conduct that constitutes an offense for which the defendant has already been prosecuted". Grady at ----, 110 S.Ct. at 2093. "The critical inquiry is what conduct the state will prove, not what evidence the state will use to prove that conduct". Id.

Applying the analysis employed by the Supreme Court in Grady to the present case, we must first determine whether the intended prosecution would violate the parameters announced in Blockburger, supra. The offense of reckless driving is defined in Section 3714 of the Motor Vehicle Code as follows: "Any person who drives a vehicle in careless disregard for the safety of persons or property is guilty of reckless driving, a summary offense." 75 Pa.C.S.A. § 3714. The driving vehicle at safe speed provision provides, inter alia:

No person shall drive a vehicle at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing, nor at a speed greater than will permit the driver to bring his vehicle to a stop within the assured clear distance ahead.

75 Pa.C.S.A. § 3361. A technical comparison of the elements necessary to prove these two summary offenses ⁶ with the elements of aggravated assault fails to demonstrate that the Commonwealth is attempting to prosecute the Appellant for a lesser included offense under Blockburger, supra. Aggravated assault, as alleged by the Commonwealth in the instant case, requires proof that a person "attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life." 18 Pa.C.S.A. § 2702. While both reckless driving and driving at an unsafe speed require proof that the Appellant was driving a vehicle, aggravated assault does not. Additionally, aggravated assault requires proof that the Appellant attempted to inflict serious bodily injury or that serious bodily injury occurred; an element of proof not required for either of the summary charges here involved. Since aggravated assault and the two summary charges each require an element of proof which the other does not, they are clearly not the same offense.

Homicide by vehicle requires the Commonwealth to prove that (1) the Appellant drove in a manner that violated the Motor Vehicle Code, (2) the Appellant knew or should have known that his conduct violated the law and (3) the death was the probable result of the Motor Vehicle Code violation. Commonwealth v. Uhrinek, 518 Pa. 532, 544 A.2d 947 (1988); See also In the Interest of Hyduke, 371 Pa.Super. 380, 538 A.2d 66 (1988). Since evidence of a speed violation is not always necessary to prove a charge of homicide by vehicle, 75 Pa.C.S.A. § 3361 is not a lesser included offense. In the Interest of R.R., supra.

It appears however, that reckless driving is properly considered a lesser included offense of homicide by vehicle. The only proof necessary to establish reckless driving is that the Appellant drove a vehicle in careless disregard for the safety and property of others. Commonwealth v. Glassman, 359 Pa.Super. 230, 518 A.2d 865 (1986), app. den. 515 Pa. 574, 527 A.2d 535 (1987). The mens rea of reckless driving, "careless disregard", implies "less than willful or wanton conduct ... [but] ... more than ordinary negligence or the mere absence of care under the circumstances...." Commonwealth v. Podrasky, 250 Pa.Super. 57, 378 A.2d 450 (1977). Likewise, in order to prove homicide by vehicle, the Commonwealth must prove more than ordinary negligence, Commonwealth v. Heck, 517 Pa. 192, 535 A.2d 575 (1987), and there must be proof that the defendant's conduct was ...