*1 orders to power that rule limits our review such believe to pursuant court certified matters which lower court refused to do so this case. trial Pa.C.S. 702. Moreover, Su- reasoning I find the United States Finally, assumption preme persuasive. Firestone conflict with the directly here would plenary jurisdiction wisely There- prescribed. have disciplinary procedure we for our fore, it should serve as a basis I do not believe case at time. hearing this this imрrovidently granted. appeal
I would dismiss this Pennsylvania COMMONWEALTH BROWN, Appellant. Louis Pennsylvania. 28, 1983. Argued Oct. Dec.
Decided *2 Sosnov, Div., Packel, Chief, Leonard N. Appeals John W. appellant. Philadelphia, Lawler, Chief, Div., Eisenberg, Appeals Ronald
Robert B. *3 appellee. for Attys., Philadelphia, Asst. Dist. FLAHERTY, ROBERTS, LARSEN, C.J., NIX,
Before ZAPPALA, McDERMOTT, JJ. INSON HUTCH OPINION NIX, Justice. a probation raises to whether question
This the appeal a revoca- finding probation court could return revocation in a probationеr’s alleged participation the upon tion based hearing revocation was deferred probation crime the where in an criminal case which resulted until the trial the after Superior the trial court and acquittal. Both granted in the affirmative. We question this answered now review and we reverse. 1976, probation on for appellant placed April,
In At same for conviction. conspiracy years term four prison companion for was sentenced appellant time sen- prison completing After robbery. conviction during the robbery charge, but under the imposed tence arrested and tried for another he was period, probationary
517 robbery and criminal conspiracy charge. That trial offenses resulted in an acquittal.
Shortly appellant’s after arrest charges new Commonwealth requested of probation delayed until after the outcome of appellant’s criminal October, trial for 1978, those offenses. after appellant’s acquittal, a revocation of hearing was held and appellant’s probation was He revoked. was sen- tenced to a of imprisonment term of two to five An years. appeal was taken Superior Court, to the panel which affirmed his of sentence. v. Commonwealth Brown, 348, Pa.Super. 281 422 This appeal follows.
I.
Swenson,
Ashe
436,
v.
90
1189,
S.Ct.
25
(1970),
L.Ed.2d 469
the United
Stаtes
Court held
the federal rule of collateral estoppel was embodied in the
Fifth
guarantee
Amendment’s
against double jeopardy.
Accord,
Arkansas,
366,
Turner
2096,
U.S.
L.Ed.2d
(1972);
Harris v.
Washington,
U.S.
(1971);
S.Ct.
1. The recognizing Court estoppel widely collateral as a accepted cases, rule lawof in criminal declined to consider in that case whether was requirement, it a concluding constitutional principle applicable was not to the facts in the case then it. before Hoag 470-472, Jersey, 829, 833-835, v. New 2 518 a estoppel that was constitutional concluding collateral clause, the jеopardy under the double Ashe
requirement holding in the of that contrast explained significance a concern. merely process the due finding to a that rule 23 Maryland, The doctrine Benton v. U.S. in present the issues the puts L.Ed.2d S.Ct. in which in a different from that perspective quite case supra. perceived Hoag Jersey, issues v. New the were a longer estoppel is no whether collateral question it part whether is a reqüirement proсess, of due but guarantee jeopar- against the Fifth Amendment’s double estoppel guaran- that And if collateral embodied dy. tee, case is no applicability particular longer then its court determination within matter to be left for state fairness,” of “fundamental but matter the broad bounds examina- through must decide of constitutional fact we (Citations omitted.) entire record. tion 442-443, 90 at 1193-1194. at S.Ct. Id. U.S. dispute that the federal longer open
It is no аgainst double forbids protection jeopardy constitutional estoppel rule. Turner offending from the collateral states Arkansas, supra; Simp Harris v. supra; Washington, v. Swenson, Florida, supra; supra; Ashe v. son v. (1983); Schomaker, 501 Pa.
wealth Grazier, Pa. A.2d Commonwealth Hude, principle This supra. Commonwealth, court and the trial recognized by been being What is questioned in this case. Superior to the the collateral rule applicability of is the instаnt facts. rule follows: explained
The Ashe Court ultimate fact has when an issue of simply It means and final judgment, once been determined valid parties the same litigated between again cannot be issue future lawsuit. any S.Ct. at at Id. U.S. collateral estoppel applicability explaining it not to in criminal cases “is stressed that
rule the Court
*5
applied
hypertechnical
with the
approach
archaic
of a
book,
19th century pleading
but with realism and rationali-
ty”.
at
Id.
Where a
judgment of acquittal
upon
was based
general verdict, as
usually
case,
this approach
requires
court
“examine the record of a prior pro-
ceeding, taking into
evidence,
account the pleadings,
charge,
matter,
and other relevant
and conclude whether
a rational
could
jury
grounded
have
upon
its verdict
an
issue other than that which the defendant seeks to fore-
closе from consideration.” The
“must
in
inquiry
be set
practical frame and viewed
with
to all
eye
the circum-
stances of
proceedings.”
States,
v. United
Sealfon
575, 579,
US
92 L Ed
In this matter at the trial charge appellant defended on the ground of alibi. The defense at trial produced evidence to establish that he was elsewhere at the time of alleged robbery. There dispute was no robbery of the victim had occurred. Thus the only explanation rational to be drawn from general verdict acquittal was that the jury concluded appellant not did participate the criminal act of robbing the victim. It equally beyond dispute on this record that the sole basis by offered the Commonwealth to support request its for the revocation the probation was the accusation that appellant did in fact participate the robbery for he which had previously been tried acquitted. Thus the Com- monwealth, election, chose at relitigate the hearing the exact same issue that had been decided against This, it in therefore, the criminal trial. clear is a case of an attempt raise an issue of ultimate fact that previous- ly litigated been and ruled adversely to the Commonwealth.
.520 argued it is that the collateral rule
Here *6 applicable, although clearly this is not be found should Ashe fact, of relitigate the same issue ultimate an effort to proof required in the of of the difference burden because urged It that Ashe should be proceedings.2 the two facts, i.e., proceed and second to where the first limited its the same burden requiring both criminal trials ings were the two situa this is a distinction between proof. While the that it tions, as confident as we are not Supreme the States concluding that United justifies find inapplicable. Ashe would upon the heavily contention relies Commonwealth’s
The
Emerald
per curiam decision One Lot
Court’s
(One Lot
Ring v. United States
and One
Cut Stones
(1972).
U.S.C. obligation the Commonwealth a revocation 2. Common еstablishing preponderance of the evidence. case its -, Pa.Super. 461 A.2d Griggs, - wealth Pa.Super. Fleeger, wealth that the property brought into the United States with- out the required declaration. Thus in One Lot Stones Court found acquittal “the criminal may regarded not be a determination the property was not unlawfully brought States, into the United and the proceed- forfeiture ing will not involve an issue previously litigated and finally determined between parties.” these Id. at 93 S.Ct. at Therefore, the Court concluded that the principle in Ashe was inapplicable since the jury’s verdict at the first criminal trial did not decide necessarily the issue raised proceeding.
It is true that the Supreme Court in One Lot Stones noted the difference in the burden proof in the two proceedings, nevertheless, its primary focus in regard this was upon the fact that the forfeiture proceeding under *7 (cid:127)section 1497 was a civil action.
If
reason,
for no оther
the forfeiture is not barred by
the Double Jeopardy Clause of the Fifth Amendment
because it involves neither two criminal
trials nor two
punishments.
criminal
Congress may impose both a
criminal and a civil sanction in respect to the same act or
omission;
the double jeopardy clause prohibits
for
merely
twice, or
punishing
attempting a second time to
punish criminally,
(Citations
the same
for
offense.
omitted.) (Emphasis added.)
235-36,
Id. at
It is therefore questionable whether would reach the same conclusion where the subsequent proceeding case, is not a civil but parole rather a matter involving a loss of liberty. See Gagnon Scarpel- li, 411 U.S. 93 S.Ct.
United
Workman,
States v.
(4th
It is significant also per opinion curiam in One Lot Stones made no reference to that Court’s decision in Coffey States, v. United 29 L.Ed. (1886) (acquittal on criminal charges barred a subse- quent in rem action punitive for the forfeiture of the Therein thе prosecution). in the criminal involved
property
stated:
to enforce the forfei-
proceedings
true that the
It is also
proceeding
a
in rem
the res named must be
against
ture
the fine and
action, while that
to enforce
and a civil
as
held
proceeding,
criminal
must be a
imprisonment
in
U.S.
Wheat.
Palmyra,
this court The
by
[25
1]
raised,
as to the
531], Yet where
issue
L.Ed.
[6
the,act
denounced,
in
has been tried
a
of
or fact
existence
States, and а
the United
by
instituted
proceeding
criminal
of
in
has been rendered
favor
acquittal
of
judgment
conclusive in favor of
person,
judgment
particular
of
suit
rem
trial
person
such
States, where,
him, the
against
existence
the United
as a cause for
act or fact is the matter
issue
the same
in such suit in
property prosecuted
the forfeiture of
allowing
such effect
urged as a reason
not
rem.
It is
acquittal in
criminal case
to the
guilt
requiring
of the rule
place
taken
because
may have
doubt,
that,
on the
proved
reasonable
beyond
to be
evidence,
proof,
question
preponderance
on the
same
in the suit
for the United States
might
there
be verdict
Nevertheless,
put
the fact or act
been
in rem.
States;
all
the United
against
determined
issue and
guilt,
consequence
the statute as a
imposed by
that is
trial of
There could
no new
therefor.
punishment
is a
it;
and а
acquittal
after the
prosecution
*8
to substantially
trial of the civil suit amounts
in the conse-
with a difference
thing,
the same
adverse to the claimant.
following
quences
443,
States,
Thus an analysis of the relevant Court decisions conclusion, does not force the suggested by the Common- wealth, that collateral will not be deemed applica- ble where second trial involves a burden of proof less than the reasonable doubt standard. We therefore reject the suggestion that the difference in proof burden of conclusive the question. Viewing the Common- wealth’s argument in its most favorable light, it can only be said question has not put been definitively to rest by the decisions of the Supreme Court.
III.
A.
We need not attempt
to anticipate the Supreme Court’s
ultimate determination of the federal constitutional
issue to
resolve the question
us.
before
This matter can properly be
decided upon the basis of state law and we are satisfied that
such an approach
justified
here. The concept of collater
al estoppel is not new to this jurisdiction, Commonwealth v.
Hude, supra;
Peluso,
Commonwealth v.
supra; Safe
guard Mutual
Williams,
Insurance Co. v.
567,
463 Pa.
(1975);
Commonwealth v. Campana, 452 Pa.
233,
432,
304 A.2d
remanded,
vacated and
808,
414 U.S.
94 S.Ct.
73, 38
remand,
(1973);
622,
455 Pa.
314 A.2d
denied,
854,
cert.
41 L.Ed.2d
(1974);
Larsen,
Larsen v.
392 Pa.
In this jurisdiction it is well settled
that a
violation hearing may
prior
be conducted
to a trial for the
criminal charges based on the same activities. Kates,
wealth
452 Pa.
(1973);
A.2d Nor is the revocation of probation and imposition of a prison sentence restricted to a finding that a subsequent criminal act has been committed proba-
524
v.
probation.
Pennsyl
the term of the
Hines
during
tioner
142, 420
Parole, 491 Pa.
Probation and
vania Board of
(1980);
Pa.Super.
304
Rudy,
v.
A.2d 381
Commonwealth
Edward,
(1982);
303
102
v.
450 A.2d
Commonwealth
(1982);
v. Mal
revocation ly had occasion observe: proba- for a constitutionally permissible it is
Although held after arrest but before tion ground any Up point not been other offered to this there has justify appellant’s probation. the revocation of determination of criminal charge, Commonwealth v. *10 Kates, (1973), Pa. it has been recognized that “it in cases may many preferable trial, hearing defer that until after the avoiding thus possibly unjust revoking probation, result of to find probationer later that acquitted been charges that prompted hearing.” the revocation Com Davis, 31, 44, Pa.Super. monwealth v. 336 A.2d (1975). Accord, Project ABA for Standards Crimi Justice, Probation, Relating nal Standards (Ap 5.3 Draft, 1970). (Footnote proved omitted.) Burrell, 367, 371, Commonwealth v. 497 Pa. 441 A.2d (1982). It is apple obvious second bite of the which the here is quite incompatible Commonwealth seeks with our statement of in purpose sanctioning procedure. such a Moreover, language the above cited reflects the clear as- sumption that where there has such a been deferral the finding Commonwealth will be bound of the criminal trial.5
B. also argues pur Commonwealth that since the in poses sought to be achieved a revocation of probation hearing are different from those sought to be obtained offense, the trial of the justified substantive we would be ignоring applicability of the collateral rule even though share the proceedings both identical ultimate issue argument of fact. Closer of this its scrutiny reveals weak proceedings ness. both the sanction of loss of is liberty Where, here, involved. the sole basis offered violation of is the commission of a probation offense, proceedings the threshold issue both is exactly In Burrell we also noted that the court required as a mattеr of law to find a violation where there has been justice system. a conviction under Burrell, 367, 371, 497 Pa. 441 A.2d 746-47 The Common- argument deny wealth’s would have us the converse where the verdict unfavorable them. same, i.e., probationer did the commit the offense. Pertinent is an made United States ex rel observation (E.D.Pa.1975) F.Supp. Burgess Lindsey, discussing analogous matter: parolee the Board is called deal with
When
violation is the commission of
only alleged рarole
whose
crime, however,
No
changes significantly.
new
its role
Indeed,
stage
of fact.
at the first
longer is it the finder
it is not a finder of fact
process,
of the final revocational
“wholly retrospective
factual
at all. The crucial
answered,
Brewer,
question”
Morrissey
that must be
supra,
[471]
at
The second issue which needs to be addressed is acquittal powers effect of an of the court to revoke probation. While the standard does not address the point, assumption it is drafted on the that it would be conclude, probation for the court to counter to unseemly trial, result a criminal that an offense has occurred for a revocation. provide and that it could the basis Justice, ABA on Standards for Criminal Stan- Project Draft, Probation, Relating (Approval dards at 64 5.3, 1970). practice of our it would Pennsylvania, view to reliti
particularly unseemly permit criminal gate participation the issue a defendant’s episode initially where the Commonwealth elected to defer to await the decision of the trial of the cause. under our responses provided system protect where a evidences his conduct that public probationer is not the desired result is than probation achieving more stated, adequate. previously permit As we the revocation requirement without that actual criminal addition, behavior be established. even where the Com to assert actual monwealth chooses criminal behavior as revocation, it do so in a may proceed basis to the criminal trial and avoid the reason ing prior thereby proof.6 able doubt burden problem presented
Thus the
in this law suit is
*12
Commonwealth,
merely
having
whether the
after
elected
judgment
jury,
given
defer
should be
opportunity
relitigate
additional
the same issue applying
of the evidence test.
do not
preponderance
We
believe
any justification
disparity.
that there is
such a
As has
significant
legislature
conferring power
It is
in the Board
6.
right
prove
of Pardons and Parole has restricted their
the commis
subsequent
finding by
sion of
offense to
the criminal court of the
6, 1941,
861,
August
guilt
See Act of
defendant’s
offense.
P.L.
24, 1951,
1401,
5,
amended,
August
P.L.
P.S.
§
added
61
331.21a(a)
Burgess
Lindsey,
United States ex rel.
§
F.Supp.
(E.D.Pa.1975);
Myers,
United States ex rel. Heacock v.
aff’d.,
(D.C.Pa.1966),
(3d Cir.1966)
F.Supp.
F.2d
cert.
(1967).
denied 386 U.S.
Accordingly, Superior the Order of the of sentence is reversed and the sentence vacated.
McDERMOTT, J., dissenting opinion files a which HUTCHINSON, J., joins. Justice,
McDERMOTT,
dissenting.
opinion
I dissent and would affirm based
Brown,
281 Pa.Su-
Superior Court. See Commonwealth
348,
HUTCHINSON, J., joins dissenting opinion. this
Thomas MURPHY AND PROPERTY CASUALTY PRUDENTIAL COMPANY, Appellant. INSURANCE Pennsylvania. Court of Argued Oct. 1983.
Decided Dec.