BOROUGH OF WEST CHESTER, Appellee, v. Amrit LAL, Appellant.
Supreme Court of Pennsylvania.
March 13, 1981.
426 A.2d 603
Argued Jan. 29, 1981.
Appellant was arrested three times in 1971-1972. From 1972 to 1976 appellant flouted the authority of the court below by failing to report to his probation officer. Under these circumstances, I do not believe that an appellate court should second guess the trial court‘s exercise of its discretion. Accordingly, I would affirm the judgment of sentence.
LARSEN, J., joins in this dissenting opinion.
Ross A. Unruh, Kennett, for appellee.
OPINION OF THE COURT
LARSEN, Justice.
On September 30, 1975, the Borough of West Chester, appellee, swore out a private criminal complaint against Dr. Amrit Lal, charging him with:
Renting an apartment(s) which is not a permitted use in an R-3 Zoning District (West Chester Code § 112-13 et seq.). Renting an apartment(s) for living purposes, in a cellar, which is not permitted (West Chester Code § 112-8). Renting the apartment(s) without having obtained a certificate of occupancy required by the Zoning Ordinance (West Chester Code § 112-54 et seq.) or a building permit required by the Building Code (BOCA Basic Building Code § 113.1).
A summary hearing was held before a district justice on November 7, 1975, at which appellant was found guilty of the charges, fined $900.00 plus costs, and sentenced to 30 days imprisonment.
Appellant filed a notice of appeal from summary conviction and a trial de novo was held on January 28, 1976 before the Honorable Thomas A. Pitt, Jr. of the Court of Common Pleas of Chester County. In an opinion filed on May 18, 1976, that court summarized the testimony of the seven witnesses presented by Borough solicitors, reviewed the sections of the various municipal ordinances which appellant had allegedly violated, reasoned that an offense of “renting” was not set forth in those sections, and concluded that the summary charges gave insufficient notice of the offenses alleged. The court then entered the following order:
AND NOW, to wit, this eighteenth day of May 1976, following hearing de novo, consideration of the hearing transcript and of briefs of counsel, and, for the reasons hereinabove stated, we find the defendant not guilty.
Pursuant to the Commonwealth Court order, the court of common pleas on June 22, 1978 entered a verdict of guilty and directed appellant to appear for imposition of sentence. We granted appellant‘s petition for allowance of appeal from the order of the Commonwealth Court.2
Appellant argues that the order of the Commonwealth Court impermissibly subjects him to double jeopardy in violation of the Double Jeopardy Clause of the Fifth Amendment of the United States Constitution and of Article I, § 10 of the Pennsylvania Constitution. We agree.3
Essentially, appellant‘s double jeopardy argument is that the summary proceedings in this case are criminal in nature and that, therefore, the “not guilty” verdict entered
The Pennsylvania Rules of Criminal Procedure define “criminal proceedings” as including “all actions for the enforcement of the Penal Laws.”
The West Chester Code, § 112-57(c), provides:
Any person who shall be convicted of a violation of any of the provisions of this chapter before any District Magistrate shall be sentenced to pay a fine of not more than three hundred dollars ($300.00), together with costs of prosecution, or to imprisonment in the county jail for a term not to exceed thirty (30) days, or both. Each day that a violation is permitted to exist shall constitute a separate offense.
Pursuant to this provision, the district magistrate found appellant guilty of three violations (hence the fines totalled $900.00) and sentenced him to 30 days imprisonment in the Chester County Farms Prison. Moreover, the Borough filed
Since the trial court‘s determination was a criminal proceeding, a verdict of acquittal cannot be reviewed without placing the defendant twice in jeopardy in violation of the constitutional proscriptions. Sanabria v. United States, 437 U.S. 54, 64, 98 S.Ct. 2170, 2178, 57 L.Ed.2d 43 (1978); Commonwealth v. Wimberly, 488 Pa. 169, 411 A.2d 1193, 1195 (1980). “The [prosecution] may not appeal from a verdict of ‘not guilty’ entered by the trial court in a criminal prosecution and this is so whether the prosecution be by indictment or by summary proceeding.” Commonwealth v. Ray, 448 Pa. 307, 311, 292 A.2d 410, 411 (1972). This rule is such a fundamental precept of double jeopardy jurisprudence that it has been explicitly extended to situations where an acquittal is based upon an “egregiously erroneous foundation,” Sanabria v. United States, supra 437 U.S. at 64, citing Fong Foo v. United States, 369 U.S. 141 (1962), to situations where a court sustains a defendant‘s demurrer to the prosecution‘s evidence (an ordinarily appealable order, see note 4 supra) but in addition erroneously enters a judgment of not guilty,
In this case, even if the lower court erred in holding that “renting” was not an offense contained in the cited sections of the municipal codes, the verdict of “not guilty“, following hearing de novo and consideration of the transcripts and briefs of counsel, was an acquittal and operates to bar the Borough‘s appeal. See Sanabria v. United States, supra 437 U.S. at 71, 98 S.Ct. at 2182 (acquittal defined as “a resolution, correct or not, of some or all of the factual elements of the offense charged.“).
Finally, we disagree with the Borough‘s contention that appellant has waived his double jeopardy claim because he did not raise it before the Commonwealth Court. Appellant acted pro se as an appellee before that court, submitting his own brief which simply responded to each of the issues raised in the Borough‘s brief. While appellant could have filed a motion to quash the Commonwealth Court appeal on double jeopardy grounds, we are unwilling to hold that his failure to do so constitutes a knowing and intelligent waiver of his double jeopardy claim.
In Commonwealth v. Lee, 490 Pa. 346, 416 A.2d 503 (1980), a mistrial had been granted in appellant‘s first trial. Prior to the second trial, appellant brought a motion to dismiss on double jeopardy grounds which motion was denied. Despite an immediate right to appeal that denial under Commonwealth v. Bolden, 472 Pa. 602, 373 A.2d 90 (1977), the appellant proceeded to trial and challenged the double jeopardy ruling in his post-verdict motions. Despite the Commonwealth‘s argument that the failure to raise the double 6
For the foregoing reasons, we reverse the order of the Commonwealth Court and reinstate the verdict of the Court of Common Pleas of Chester County.
ROBERTS, J., files a concurring opinion.
NIX, J., concurs in the result.
ROBERTS, Justice, concurring.
I join that portion of the majority opinion which holds that the Borough of West Chester may not appeal from a verdict of not guilty. In our system of jurisprudence there is no right of appeal from a not guilty verdict. Such a verdict is final and conclusive. See United States v. Scott, 437 U.S. 82, 91, 98 S.Ct. 2187, 2194, 57 L.Ed.2d 65 (1978) (“[t]o permit a second trial after an acquittal, however mistaken the acquittal may have been, would present an unacceptably high risk that the Government, with its vastly superior resources, might wear down the defendant so that ‘even though innocent, he may be found guilty’ “); Sanabria v. United States, 437 U.S. 54, 64, 98 S.Ct. 2170, 2179, 57 L.Ed.2d 43 (1978) (“when a defendant has been acquitted at trial he may not be retried on the same offense, even if the legal rulings underlying the acquittal were erroneous“). The Borough could not pursue an appeal, and no appellate court of this Commonwealth could have subject-matter jurisdiction. Thus the Borough‘s “appeal” should have been quashed sua sponte by the Commonwealth Court. For this reason, whether appellant waived his claim of double jeopardy is not an issue, and the majority‘s discussion of waiver is unnecessary.