Lead Opinion
On April 19,1994, appellants Antoine Breeland, Robert L. Coleman, Jr. and Brian L. Freeman were charged, by federal indictment, with distribution of crack cocaine and conspiracy to distribute crack cocaine. Also on April 19, 1994, York City Police charged appellants with criminal homicide, aggravated assault, robbery, and criminal conspiracy to commit these three offenses. The state charges arose out of a drug-related shooting incident in which one man was killed and another was seriously wounded. The case on the federal charges proceeded to trial and appellants Coleman and Freeman were found guilty on both counts; while appellant Breeland was found guilty of the distribution charge but acquitted of the conspiracy charge. Appellants all subsequently filed pretrial motions alleging that the state prosecution was barred by virtue of the federal trial, under principles of double jeopardy and/or collateral estoppel. The trial court rejected appellants’ arguments and denied relief. These consolidated appeals followed. After careful review, we affirm.
Appellants first contend that the federal verdict bars the trial of the related state offenses under principles of double jeopardy, because the same underlying facts and conduct are necessary to prove both the federal and state offenses. More
Before addressing the merits of this issue, we must first determine the scope of our double jeopardy inquiry. Appellants contend that the proper inquiry was established by the United States Supreme Court in Grady v. Corbin,
To determine whether a prosecution is barred by double jeopardy, the first prong of the inquiry requires the application of the Blockburger [v. U.S.,284 U.S. 299 ,52 S.Ct. 180 ,76 L.Ed. 306 (1932) ] test. Blockburger compares the statutory elements of the charged offenses to determine whether they are either identical or one is a lesser included offense of the other. If each statutory provision requires proof of an additional fact which the other does not, they are not the “same offense” under Blockburger and as such the prosecution survives the initial prong of the inquiry.
The second prong of the inquiry was established in Grady. Even if the offenses would pass muster under the*154 Blockburger test, the Grady Court held that an additional requirement must be met to overcome a double jeopardy challenge. We must determine “[whether] the government, to establish an essential element of an offense charged in [a subsequent] prosecution, will prove conduct that constitutes an offense for which the defendant has already been prosecuted.” Grady v. Corbin, [495] U.S. at [520],110 S.Ct. at 2093 ,109 L.Ed.2d at 564 (emphasis added) [in Yingling ].
Commonwealth v. Yingling,407 Pa.Super. 151 ,595 A.2d 169 , 171 (1991) (footnote omitted).
Commonwealth v. Smith,
The Commonwealth counters that the United States Supreme Court specifically overruled the second or “samе conduct” prong of the Grady test in United States v. Dixon,
Appellants, nonetheless, contend that the Grady “same conduct” test is applicable in the present case because: (1) the Court’s decision in Dixon has only a limited application and only nominally overruled Grady; (2) the double jeopardy clause of the Pennsylvania Constitution affords greater protections to an accused than the Federal Constitution; and (3) the “same conduct” test has been the law of this Commonwealth since our Supreme Court’s decision in Commonwealth v. Bolden,
After reviewing the applicable federal and Pennsylvania caselaw, we agree with the Commonwealth that the Block-burger “same elements” test, which was reespoused in Dixon as the only inquiry necessary under a federal double jeopardy analysis, is likewise the only inquiry necessary when performing a double jeopardy analysis in Pennsylvania. From a review of the U.S. Supreme Court’s decision in Dixon, it is
We also note that our supreme court has recently addressed, in Commonwealth v. Caufman,
With respect to appellants’ contention that the Pennsylvania Constitution provides greater double jeopardy protection than the Federal Constitution, we likewise find no merit. Appellants neither proffer, nor аre we aware, of any caselaw which establishes a higher standard in Pennsylvania, where, as here, there are successive prosecutions in different jurisdictions. Moreover, the double jeopardy provision of the Pennsylvania Constitution is essentially identical to that found in the United States Constitution; and Pennsylvania courts have not given its citizens broader double jeopardy protection than that provided by the United States Supreme Court interpreting the United States Constitution. Commonwealth v. Rosario,
We also reject appellants’ argumеnt that the “same conduct” test has long been the law of this Commonwealth and cannot be overruled except by Pennsylvania courts. We first note that the decision in Bolden was a nonmajority decision and thus is not binding. See Commonwealth v. Mignogna,
We also further conclude that Bolden simply does not support appellants’ position. Appellants rely on the language in Bolden, that the double jeopardy clause protects against a person being harassed “by successive prosecutions for a single 'wrongful act.” Bolden, supra at 618,
Moreover, our review of Pennsylvania caselaw dealing with double jeopardy issues reveals that our courts applied the Blockburger “same elements” test exclusively up until the time the U.S. Supreme Court handed down its decision in Grady. See Commonwealth v. Britcher,
Finally, we point out that it is not necessary for Pennsylvania courts to specifically overrule the “same conduct” test. See Caufman, supra. Appellants seem to assert that Pennsylvania’s acknowledgment of the U.S. Suрreme Court’s mandate to apply the Grady “same conduct” test, created an independent state requirement that this test be performed when conducting a double jeopardy analysis under the Pennsylvania Constitution. The double jeopardy clause of the Fifth Amendment of the United States Constitution (along
We now turn to the facts of the present case. Appellants do not contend that any of the offenses in the state and federal prosecutions are identical or that they fall into the category of lesser included offenses. Appellants’ argument focused entirely on the “same conduct” prong. We view their failure to brief and argue this issue as an implicit concession that Blockburger does not bar the state prosecution. In any event, after review of the statutory definitions of each of the charges in both jurisdictions, we cоnclude that each charged offense requires proof of an additional fact which the charges in the other jurisdiction do not. As such, the state prosecution is not barred by Blockburger.
§ 111. When prosecution barred by former prosecution in another jurisdiction.
When conduct constitutes an offense within the concurrent jurisdiction of this Commonwealth and of the United States or another state, a prosеcution in any such other jurisdiction is a bar to a subsequent prosecution in this Commonwealth under the following circumstances:
(1) The first prosecution resulted in an acquittal or in a conviction as defined in section 109 of this title (relating to when prosecution barred by former prosecution for the same offense) and the subsequent prosecution is based on the same conduct unless:
(i) the offense of which the defendant was formerly convicted or acquitted and the offense for which he is subsequently prosecuted each requires proof of a fact not required by the other and the law defining each of such offenses is intended to prevent a substantially different harm or evil; or
*160 (ii) the second offense was not consummated when the former trial began.
(2) The former prosecution was terminated, after the indictment was found, by an acquittal or by a final order or judgment for the defendant which has not been set aside, reversed or vacated and which acquittal, final order or judgment necessarily required a determination inconsistent with a fact whiсh must be established for conviction of the offense of which the defendant is subsequently prosecuted.
1972, Dec. 6, P.L. 1482, No. 834, § 1, effective June 6, 1973.
18 Pa.C.S.A. § 111. In determining whether § 111 is applicable in a given case, the following inquiries are relevant:
(1) Is the prosecution the Commonwealth proposes to undertake based on the same conduct for which the individual was prosecuted by the other jurisdiction?
(2) Do each of the prosecutions require proof of a fact not required by the other?
(3) Is the law defining the state offense designed to prevent a substantially different harm or evil than the law defining the other jurisdiction’s offense?
Commonwealth v. Scarfo,
If we conclude that the subsequent prosecution is not based on the same conduct as the federal prosecution, then our analysis is concluded since the statute makes clear that in such situation subsequent prosecution by the Commonwealth is not barred. If, however, we conclude the subsequent proseсution by the Commonwealth “is based on the same conduct” for which appellant was prosecuted by the federal government, the prosecution can proceed only if both of the following conditions exist: (1) each of the prosecutions requires proof of a fact not required of the other; and (2) the statute upon which the Commonwealth*161 prosecution is based is intended to prevent substantially different harm than is the federal statute ... It would seem that an affirmative answer to the initial inquiry lowers the bar to the subsequent prosecution and that only an affirmative response to both of the remaining inquiries can lift the bar.
Id. at 359-360,
We begin our § 111 analysis with an examination of the first inquiry: whether the two prosecutions are based upon the same conduct. In Commonwealth v. Mascaro, we defined “the same conduct” to encompass “any and all criminal behavior committed in support of a ‘common and continuing scheme.’” Id.,
“The evil against which conspiracy statutes are directed is the illegal agreement or combination for criminal purposes. Separate underlying predicate acts are merely circumstantial proof of the agreement.” Commonwealth v. Savage,
We find support for such an analysis in Commonwealth v. Traitz,
It is the course of illegal conduct, not the underlying individual criminal acts, that are the focus of the two statutes. The conduct to be examined, therefore, is the conduct of an individual evincing a pattern of racketeering activity. The significance lies not with the individual offenses culminating in the pattern of racketeering activity, but in the scheme that is promoted by the pattern of racketeering activity.
Id. at 313,
Here, in the federal prosecution, the purpose of the conspiracy was clearly the distribution of illegal drugs; and the relevant conduct was appellants’ acts involved in the actual drug distribution. In the state prosecution, on the other hand, the purpose of the conspiracy was to kill, assault and/or rob two specific individuals; and the relevant conduct was the planning and execution of this plot against these two rival drug dealers. The distribution of drugs by appellants’ was only peripherally implicated in the state prosecution and was not the ultimate purpose or goal of that conspiracy. As such,
In the final issue, appellant Breeland asserts that the state prosecution is barred by the doctrine of collateral estoppel.
“The doctrine of collateral estoppel prevents relitigation between parties of an issue where that issue has been previously decided by a competent legal forum. The doctrine is applicable to criminal prosecutions as well as to civil matters.” Commonwealth v. Wallace,411 Pa.Super. 576 , 581,602 A.2d 345 , 348 (1992). The doctrine, “which is part of the concept of double jeopardy, requires that where an ultimate fact has been necessarily established in favor of a defendant in a former prosecution, the issue may not be re-litigated in any subsequent proceeding against the defendant.” Commonwealth v. Wharton,406 Pa.Super. 430 , 432,594 A.2d 696 , 697 (1991) (emphasis in original) (citations omitted).
Smith, supra at 36,
Where a previous judgment of acquittal was based upon a general verdict, as is usually the case, this approach requires a court to “examine the record of a prior proceeding,*164 taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.” The inquiry “must be set in a practical frame and viewed with an eye to all the circumstances of the proceedings.”
Ashe v. Swenson,
Appellant Breeland contends that because the jury acquitted him of the federal conspiracy charge, it necessarily concluded that he was not involved and/or not guilty of the homicide/assault/robbery charges, which had been introduced as proof of the conspiracy. As such, Breeland maintains that collateral estoppel bars his subsequent prosecution on these charges in state court.
After reviеwing the record of the federal trial, we conclude that collateral estoppel does not bar the subsequent state prosecution. Breeland was acquitted of the federal conspiracy charge. The jury, however, could have based its verdict on a finding that there was simply no agreement between appellant and his alleged co-conspirators. If the jury did, in fact, so conclude, it would not have been necessary for it to make any determinations, with regard to any of the underlying evidencе which was offered to prove the conspiracy charge. As such, this final argument lacks merit.
We have reviewed and found meritless the arguments raised by appellants. The offenses charged by the Commonwealth in the subsequent state prosecution (homicide, aggravated assault, robbery, and conspiracy to commit these three offenses) are not barred by double jeopardy, § 111 of the Crimes Code, or collateral estoppel. We, therefore, affirm the lower court’s
Order affirmed.
Notes
. The Commonwealth has filed a motion to quash this appeal, in accordance with Commonwealth v. Brady,
. We note that the Grady test was not adopted by this Court in Labelle, in the sense that we chose to follow the Supreme Court’s decision. Decisions of the United States Supreme Court interpreting federal constitutional provisions, provide the minimum degree of constitutional protection which must be afforded a criminal defendant, and are equally applicable to analogous state constitutional provisiоns. Commonwealth v. Edmunds, 526 Pa. 374, 388,
. We note that where a party contends that a provision of the Pennsylvania Constitution provides greater protection than a corresponding provision of the United States Constitution, the parly must brief and analyze at least the following four factors:
1) the text of the Pennsylvania constitutional provision;
2) thе history of the provision, including Pennsylvania caselaw;
3) related caselaw from other states;
4) policy considerations, including unique issues of state and local concern, and their applicability within modem Pennsylvania jurisprudence.
Edmunds, supra at 390,
. Even if we were required to apply the "same conduct” test as part of a double jeopardy analysis, we would conclude that the conduct at issue
. Although it is not necessary to review the remaining § 111 inquiries, we will briefly address both questions. First, the offenses in each prosecution required proof of a fact not required in the other. We have already so determined in our resolution of appellants' double jeopardy claim supra. With respect to the final inquiry, we find that the laws defining the offenses in each prosecution address substantially different harms or evils. Compare Commonwealth v. Wetton,
. Appеllants Freeman and Coleman have not raised collateral estoppel as an issue in this appeal. Unlike Breeland, they were both convicted of each charge they faced in federal court. Thus, they cannot now contend that there was an ultimate fact which was established in their favor in the former prosecution.
Concurrence Opinion
concurring:
I join the decision of the Majority but wish to reiterate that, for the reasons expressed in footnote 3 at page 6, we are making no determination on the issue of double jeopardy pursuant to our state’s Constitution.