*1 essence, the Commonwealth has described one feature classes, which distinguishes two but it has not ex- plained why this distinguishing feature different justifies Thus, treatment. since the Commonwealth has failed to prima rebut the facie classification, unreasonableness and since even the majority has failed to offer reasons justify which the different tax treatment of individual tax- payers, the classification should not withstand constitution- challenge. al reasons,
For these I would hold that the Per Reciprocal sonal Income agreement Tax between the Commonwealth of Pennsylvania and the State of New Jersey is constitu infirm tionally it contains a classification which violates both the Fourteenth Amendment of the United States Constitution and the Uniformity Clause of the Penn sylvania Constitution.*
PAPADAKOS, J., joins in this Dissenting Opinion. Pennsylvania, Appellant,
COMMONWEALTH of BRADY, Appellee. James Supreme Pennsylvania. Court of
Argued Oct. 1985. April Decided * any provision I would not hold that of the Tax Reform Code of 1971is Code, 7356(b) contrary, unconstitutional. To the Section reciprocal personal authorizes agreements, income tax also contains language authorizing broad relating cooperation “all other matters conclude, therefore, between the Section though states." I would that even specifically exemption compensation authorizes the tax, include, Pennsylvania enough from as income its terms are broad well, exemption profits. for net *2 Suss,
Stuart Atty., Asst. Dis. for appellant. Kane, Defender, Jeremiah Asst. for Public appellee. NIX, FLAHERTY, Before C.J., LARSEN, McDER MOTT, HUTCHINSON, ZAPPALA PAPADAKOS, JJ. OF THE
OPINION COURT NIX, Chief Justice. question presented here an interlocutory whether
appeal pursuant Bolden, Commonwealth v. Pa. (1977), A.2d 90 permitted should be from the denial of motion to dismiss information double jeopardy grounds hearing where the court has determined the motion Having issue, to be frivolous. fully considered that we *3 conclude that in such circumstances an interlocutory appeal is unwarranted sought by and review must be means of a appeal following direct retrial.
I. Appellee Brady James was with charged violating section Code, of the “Driving Vehicle 75 Pa.C.S. under § influence of or alcohol controlled substance.” Prior to trial Pleas, the Court of on of appellee, Common motion excluded any concerning prior his to an testimony admission Acceler- (“ARD”) Disposition program ated Rehabilitative in connec- with prior tion a of section 3731.1 Trial com- violation menced on trial arresting 1985. the January During officer was the if he prosecution asked had had to opportunity appellee. responding, observe that officer testified that mentioned to officer appellee another at the (the scene that he had testifying) stopped appellee officer previous aon occasion. Defense counsel then made a mistrial, granted. motion for a which was that, preparation proceed- The 1. instant record establishes in for the ings, attorney assigned specifically the assistant district to the case prior instructed witnesses not to make reference to this incident. motion dismiss appellee filed a to January On After asserting a claim. information the motion, court hearing hearing on the the conducting a had opinion finding that there been memorandum issued a misconduct, that the concluding prosecutorial intentional no mo- denying was and the claim having That same January day, dismiss on tion to in the had a notice of appellee appeal that filed advised been Pleas Court, by separate the Court of Common Superior Later in the appeal. to retrial pending order declined retrial, Judge Cavanaugh stayed temporarily day 1, 1985, pend- the was continued February temporary stay appeal that Court. disposition of before ing Stay filed an to “Lift application The Commonwealth subse- Trial” this Court. The Commonwealth Criminal this to application requesting filed a second Court quently matter. We granted plenary jurisdiction assume directed a trans- plenary to assume application jurisdiction, Court, this pending Superior appeal fer of stay. and the lift the appeal application consolidated that argu- listed for oral We further directed case be question applicabili- limited to briefing ment with Bolden, supra. of Commonwealth v. ty
II.
Bolden, supra,
Commonwealth
The threshold issue
permitted
should be
whether an immediate
was
to dismiss an indictment
pretrial
an order
motion
denying
there considered
grounds.
question
on double jeopardy
*4
contention established
jeopardy
was whether a double
departure
require
a
exceptional circumstance
would
a
of
limiting
an
to
review
basic rule
v.
See,
e.g.,
Hogan,
Commonwealth
482
judgment.
final
Myers,
v.
Commonwealth
333,
(1978);
393
1133
Pa.
A.2d
v. Bun-
Commonwealth
(1974);
131
457 Pa.
A.2d
322
ter,
(1971)
opinion);
(plurality
445 Pa.
Sites,
(1968);
v.
115,
dates that a defendant who has a meritorious claim have procedural an effective means of vindicating his constitu- right spared tional be trial. unnecessary Acquittal upon retrial or appellate recognition belated of a defend- ant’s claim reversal of by a conviction can never ade- quately protect the defendant’s rights. The defendant is deprived of his constitutional right the moment jeopardy attaches a second time. irreparable; His loss is to sub- ject an individual to the expense, trauma rigors incident to a criminal prosecution a second time offends clause. The clause establishes “right to prosecution, be free from a second not merely second punishment for the same offense.” Fain v. Duff, (5th Cir.1973). 488 F.2d review, appellate Without immediate a defendant will trial, undergo be forced to precluding new any review of his claim that he should not tried at all. “Because of the nature of right the constitutional ... assert[ed], no relief, post-conviction federal, either state or capable vindicating [appellant’s] interest.” Pleas, United States ex rel. v.Webb Court Common (3d Cir.1975). 516 F.2d As Judge Adams Webb, “forcing observed [appellant] to trial would defeat Id. the constitutional he seeks to preserve.” at Exceptional circumstances exist Pennsyl- under warranting vania law appellate prior judgment review of sentence. opinion joined only by
2. The lead authored Justice Roberts was Pomeroy concurring opinion, Justice Manderino. Justice filed a Eagen while then Chief Justice concurred in the result. This writer dissenting opinion joined. filed a in which Justice O’Brien Former participate Chief Justice Jones did not in the decision.
341 Therefore, pretrial application hold that denial of a we that the scheduled ground an indictment on the to dismiss right placed not to be trial will violate defendant’s in trial is appealed before new jeopardy may twice held.
Id.,
631-33,
(footnotes
104-05
While Bolden was
Common-
154,
(1977),
v.
473 Pa.
(1980); Starks, Pa. 416 A.2d Commonwealth v. 490 (1980); Mitchell, 488 Pa. Commonwealth (1980). did not Although plurality A.2d Bolden reasoning its expressly upon question, clearly focus retrial, in to the to an required a addition stay review, jeopar- immediate the defendant’s double satisfy Moreover, rights. Pennsylvania Rule 1701 of the Rules dy requirement buttressed the Appellate Procedure further in provides of a of retrial Rule 1701 pending appeal. part: pertinent
(a) Except prescribed by rule. as otherwise General rules, is taken or review of a these after an court or other quasijudicial sought, order is the trial in further government longer proceed unit no matter. 1701(a).
Pa.R.A.P.
with the automat-
principle,
conjunction
Thus the Bolden
delaying
resulted in
retrial
stay provision
ic
of Rule
indefinitely while
double jeopardy claim
interposed
*6
prosecution
criminal
was
on
reviewed
direct appeal.
A
after the
Bolden
decision,
few months
the United
Court, Abney
States,
v. United
Supreme
States
431 U.S.
651,
2034,
97 S.Ct.
52
(1977),
L.Ed.2d 651
recognized a
appeal
similar
of
under the
jurisdic-
relevant federal
statute,
tional
28 U.S.C.
1291.3 The
Abney
Court found
§
that a
order
pretrial
denying a motion to dismiss an indict-
ment
double jeopardy grounds satisfied the criteria of
v.
Cohen
Corp.,
Industrial Loan
541,
337 U.S.
Beneficial
69
(1949),
S.Ct.
Admittedly, our holding may some encourage defend- engage ants to in dilatory appeals as the Solicitor General However, fears. we believe that such problems of delay can be obviated rules or policies such giving appeals expedited treatment. It is well the supervisory within of powers the courts of appeals to establish summary procedures and calendars to weed out claims of former jeopardy. States, v.
Abney
supra,
United
3. Section 1291 (other appeals The courts of than the United States Court of Appeals Circuit) jurisdiction for the Federal shall have of States, from all final decisions of the district courts of the United Zone, the United States District Court for the District of Canal Guam, Virgin the District Court of and District Court of the Islands, except Supreme where a direct review be had in the Court. Appeals The United States Court of for the Federal Circuit jurisdiction 1292(c) shall be limited to the described in sections (d) and 1295 of this title. 28 U.S.C. § Abney suggestion, Court’s response to the adopted a rule Appeals designed for the Fifth Circuit to jeopardy appeals the use of frivolous double as a
prevent
Dunbar,
United States
(5th
tactic.
United States v.
at 988.
indicated that
empowered
court further
it was
to stay
proceedings
pending
below
appeal or issue a writ of
or prohibition,
mandamus
which would sufficiently
safe-
guard
the defendant’s
not to
pending
be tried
appeal
of a
from the denial
nonfrivolous
claim.
Id. at 989.
v. Leppo,
United States
(3d
Cir.1980),
Third
procedure.
Circuit
identical
Other circuits
embraced the Dunbar rule. See United
subsequently
have
Cannon,
States v.
cert. de
(7th
715
Cir.1983),
F.2d 1228
nied,
1045,
716,
(1984);
U.S.
S.Ct.
III. being urged We are now to carve out an to the exception application of Bolden and Rule 1701 in instances of appeals denying orders a claimed jeopardy double violation has hearing which been found to the court. by be must therefore exception We determine whether such an appropriate strikes an balance between the defendant’s of the public large. interest and those at effect permit The obvious of a rule which does not an interlocutory appeal of certain double claims is may that some defendants be tried con- notwithstanding a tention that the retrial itself violates jeopardy princi- ples. the double jeopardy However where claim advanced is an obviously interlocutory appeal will serve only delay prosecution. to The defendant the will have to assert his opportunity initially claim before a tribunal permitted and retrial is not unless the claim is shown to the Further, satisfaction of that court to be frivolous. a de- may challenge fendant in finding of frivolousness context of request for a from an court.4 appellate Moreover, there will an appellate review of the merits of the claim appeal following on direct retrial. ap- Such an proach provide will full protection legitimate for a claim and at the same time afford some degree assurance that this not right will be abused. it Admittedly, is conceivable that a legitimate claim on rare occasions by be overlooked both a hearing appellate court and the court a stay sought. is Such a risk is at best minimal in any event by counterbalanced the numerous meritless claims that will be identified and excluded. The for priority expeditious disposition an of criminal cases justifies this minimal risk. public, hand, on the other “has an overriding interest prompt trial of accused.” Common- criminally
wealth v. 214, 221, Mayfield, 469 Pa. A.2d (1976). See Commonwealth v. Earp, 476 Pa. 382 A.2d (1978) (plurality opinion); Commonwealth v. Hamil- ton, (1972). 449 Pa.
From point of view of the public, speedy trial necessary preserve proving charge, the means of maximize the prosecution deterrent effect of and convic- tion; avoid, cases, and to in some period an extended procedure provides preliminary appel- 4. This at least a review judge finding prior late to a retrial. frivolousness *9 defendant pretrial during freedom the which time he flee, crimes, commit other or intimidate may witnesses. Justice, ABA on Minimum Standards for Project Criminal (2d 1980). 12-1.1 ed. Commentary Standard of a criminal trial necessitates pending appeal The in the may lengthy delays prosecution be what availability stay upon defendant. The of an automatic a Bolden filing appeal encourages the use of frivolous The avoiding prosecution. as a means of trial court appeals not such intentional powerless prevent dilatory should be Hines, v. United States v. supra; United States tactics. Hitchmon, Dunbar, v. supra; supra. United States The engendered by needless hinder the delays public administration of as well as the interest. justice appeal therefore conclude that an from the denial of a We jeopardy grounds motion to dismiss on should not be hearing court has considered the mo- permitted where that the motion is frivolous. findings tion and made written taken from the finding, appeal may Absent such be denial of the motion. Superior the order of the trial
Accordingly, staying appellee’s on the merits of is vacated. quashed interlocutory. claim is as LARSEN, J., concurring dissenting opinion. files a LARSEN, Justice, dissenting. concurring Bolden, Commonwealth application The automatic (1977) delay any 472 Pa. the retrial of magic jeopar- defendant who uttered the words “double has has, stranglehold upon our crimi- today, placed until dy” agreement I am in total justice system. Accordingly, nal stranglehold holding majority’s release that with that, the trial court has made a written determination where the defendant’s double claim is automatic, appeal. to an interlocutory there will be no However, portion majori- I cannot to that subscribe some valid suggests that there ty’s analysis *10 jeopardy double claims “overlooked” but that this “minimal risk” is “counterbalanced the by numerous meritless claims that will be identified and excluded.” Majority op. at 291. view, In my there is nothing to “counterbalance” because legitimate the risk that “a jeopardy] claim may on [double rare occasions be overlooked aby hearing court and the court,” appellate id., is virtually non-existent given the meaningful opportunity for a defendant to seek interlocu- tory discretionary review of a lower court’s determination that the double jeopardy claim is frivolous.1
A defendant who believes that the trial court erred dismissing his double claim jeopardy as frivolous seek may interlocutory appeal by permission under Pa.C.S.A. 702(b) and Chapter 13 of the Rules of Appellate Proce- § dure, retrial, seek a the pending determina- tion petition for permission to appeal an interlocutory order, from the lower court or an appellate court. 42 702(c).2 Pa.C.S.A. If the lower court and/or the Superior § Court denies an application for a stay, the defendant may seek review of that denial this In by Court. cases where the jeopardy double claim is not obviously either Superior Court or this Court certainly grant would stay of retrial in order to secure timely appellate review of the arguably meritorious jeopardy double claim. With this existence, mechanism in it is extremely unlikely that a legitimate double jeopardy claim will “slip somehow through the cracks” as the majority implies. The mecha- ensure, however, nism does that interlocutory review of the trial court’s determination that a jeopardy claim is frivolous would be not discretionary, right, as of and would exception, be the not the norm. worst, only At such risk exists appellate to the same extent that an might court appeal. legitimate ever “overlook” a claim or issue raised
2. Where the lower court refuses to amend its order to include the "certifying” required 702(b), petition statement 42 Pa.C.S.A. for § unappealable review of the determining proper order of denial is the mode for justifies “prerogative appellate whether the case review.” Pa.R.A.P.Rule Note. in this case to the extent that to the mandate
I dissent claim on of this double dispose fails to majority that automatic Bolden today ruled merits. While we have permitted, not be never- frivolous claims will plenary over jurisdiction has exercised theless this Court on the merits. including proceeding the entire opinion Judge the able Charles reviewing the record and County, Pleas of Chester of Common B. Smith of Brady’s clear that James abundantly it is frivolous,” states, “manifestly is, Judge as Smith claim merit,” solely purposes for the interposed “devoid of *11 relitigate the defendant to Thus, allowing instead of delay. date, I a later would issue at his the double jeopardy on the merits of dismiss to the Court of Com- claim, remand this matter and would to trial to deter- proceed County Pleas of Chester mon innocence. That determination guilt or appellee’s mine long overdue.
508 A.2d Pennsylvania, DEPARTMENT OF COMMONWEALTH AFFAIRS, Pennsylvania National MILITARY
Guard, Appellant, GREENWOOD, Appellee. H. David Pennsylvania. Supreme Argued May 1985. Reargued Jan. 1986. April
Decided