Commonwealth v. Campana

judge by questions displayed the trial his comments partiality charge prejudice; (b) the court ambiguous; (c) cautionary was no instructions credibility given jury regard were to the with testimony of Debo who testified as a Commonwealth argued witness. It is also that there was an affirmative duty part on the of the Commonwealth to inform the jury promise leniency whether not a had been testifying against made to Debo in return for his Kosik. assignments concerning charge As to of error jury, to the an examination of the record discloses that specific requests no were made additional instruc- jury, although tions to the charge at the end of the coun- sel were asked the court if such instructions de- were Additionally, exception sired. charge no to the Finally, entered importantly, record. and more none assignments appeal of error advanced on were during post asserted the trial or in the trial motions in the filed trial court. previously As we have stated a multitude of we will not times, entertain issues which were not raised in the trial and are court, raised for the appeal. time on first Cf. Commonwealth v. Jones, (1971), Pa. 285 A. 2d 477 and Commonwealth Bittner, Pa. 272 A. 2d 484 Order affirmed. Campana, Appellant.

Commonwealth Appellants. Commonwealth v. Doe et al., King, Appellant. Commonwealth v.

Argued April October re- 1, 1971; argued September 1972. Before C. Jones, J., O’Brien, Nix Eagen, Roberts, and Man- Pomeroy, JJ. derino,

David A. him Martin Mi- with W. Binder, Binder, chael A. F. O’Pake, Laurence Ward, and Marx, Ruth, Binder c£- for John E. Stallone, Hall, appellant.

Emmanuel II. him Lieberman with é Dimitriou, Dimitriou, Roger Charles Smith, Ginder, Leroy Stoltzfus, Charles and Robert A. Jr., Dorman, Marcin- kowski, appellants.

Ambrose R. with him Campana, Campana & Cam- for Peter pana, Campana, appellant.

Sallie Ann Radicle, Assistant Public with Defender, her John J. Assistant Public Dean, Defender, II. George Public for Robert Earl Ross, King, Defender, appellant. E.

Grant Wesner, District Deputy Attorney, with him Robert L. A. Bar- VanHoove, District C. Attorney; E. letl, Assistant him Allen District with Attorney, District L. Uriel, Eberhardt, Robert Assist- Attorney; ant District As- him Carol Marry Los, with Attorney, sistant District and Robert W. Dis- Attorney, Duggan, trict Attorney, Commonwealth, appellee. by May 4, 1973:

Opinion Mb. Justice Roberts, during together argued These three were appeals of in and will be disposed the September Term, 1972, this opinion. the found peace of justice a September 7, 1968,

On disorderly T. not of Campana guilty Peter appellant August 17, 1968, a arising out of an conduct, charge in- same from the incident. Additional charges arising offi- on a resisting police cident of arrest and assault evidence. Sub- cer lack of sufficient were dismissed for instituted the again the Commonwealth sequently on a offi- police of arrest and assault charges resisting ap- the who bound peace cer before another of justice On February 5, 1969, to the pellant grand jury. over of convicted both by jury was tried and appellant appellant denied crimes. Post-trial motions were The for a of one probation period year. on placed per affirmed in a curiam with order, Court Superior dissent. Commonwealth noting Judge Hoeeman A. 217 Pa. Ct. 2d Superior 818, Campana, allocatur and heard granted argument We Term. 1972, the we or- during January Subsequently September Term. during dered reargument John convicted Doe, al., et were Appellants con justice peace disorderly on June peace duct and for their conduct in a disturbing Berks bar on 1968. Each County May 19, appellant to either fine of pay undergo was ordered $300.00 thirty days. justice peace imprisonment grand over appellants also bound jury and battery, assault charges aggravated riot, riotous property and malicious all destruction mischief, May disturbance. charges originating 19,1968, 1969, appellants1 On June were tried by jury and 1 Appellants fugitives John Doe Gerald Ereese were prosecution time of the second criminal and were not tried. Al- appear caption though briefs, their names on the we do not pass upon the merits of their contentions. property and convicted of riotous destruction of riot, appellants Hall mischief. In addition John malicious guilty and Charles Ginder were found of assault judg- battery. Motions for new trial and arrest a judgment argued. ment The motion in arrest of were granted only charge. was as to the malicious mischief appellant Each im- was serve a term of sentenced to prisonment of nor not less than one and one-half more Superior years. per than The five Court affirmed curi- Judge dissenting opinion filing am with a Hoffman Judge joined. in which v. Commonwealth Spaulding Superior John 217 Pa. Ct. 269 A. 2d 138 Doe, 148, (1970). granted hearing allocatur We after and, first argument dining January 1972, ordered re- Term, argument during September Term. 1972, February appellant King

On Earl 28, 1969, Bobert pay by justice ordered to a fine of was of the $500.00 peace disorderly conduct that occurred same peace day. justice appellant of the also bound over grand jury charges battery on to of assault and on police legal process officer in execution of a and re- charges sisting stemming both arrest, from the Febru- ary September appel- On incident. 28, 1969, 11, 1969, nonjury charges, trial was lant convicted of both and a of not than six sentence less nor months more imposed. post-trial year than one No motions appellant filed but March 8, were 1971, was allowed post-trial timely as if to file motions filed. After their Superior per Court denial the affirmed with a curiam King, Superior v. 220 order. Commonwealth Pa. Ct. (1972). granted 2d 286 A. 416 We 771, allocatur and appeal reargument heard at the time ordered the the above cases. for consideration in

Presented these consolidated appellants, by appeals virtue is whether of their second subjected prosecutions, Jeopardy” were “Double Fifth and of the Fourteenth contravention Amendments 240 hold all We

of the United Constitution.2 States each “episode”3 charges resulting trial, at one have been consolidated appellant should violated the second consequently prosecutions Ac Fifth Amendment. Double Clause of the im we reverse the of sentences cordingly judgments posed prosecutions.4 as a result of the second 2 Maryland, 784, 2056, In Benton v. S. Ct. 395 U.S. Supreme (1969), the held that “the double United States Court app[li.es’] jeopardy prohibition Fifth . . Amendment . through Benton is States the Fourteenth Amendment.” retroactive applicable appeals. Georgia, thus all these See Price n.9, (1970) ; n.9 U.S. S. Ct. Commonwealth Richbourg, 147, 153, 442 Pa. A. 2d Appellants ah, Doe, their et had trials before the Su John two appellants preme decided Benton. Therefore the fact Court jeopardy appeal the issue of double until their to the did not raise Superior them from relief. does not bar See Commonwealth Court 599-600, (1968) Stevens, 593, 536, ; A. Pa. 2d see also v. 429 240 540 Cheeks, 89, (1968). Pa. A. 429 239 2d 793 Commonwealth King, although Benton, Appellant tried the after decision in jeopardy during of double either trial not issue or did raise discloses, however, appellant post-trial record motions. The that Hearing petition pro Post Conviction Act in his raised the issue se ap jeopardy. petition, As a result of that counsel of double was post-trial appellant pointed allowed to file was if and motions as circumstances, timely these we cannot filed. Under conclude that right litigate appellant forfeited his to this issue. Com has See Cheeks, supra, McGrogan, cf. Commonwealth v. 449 monwealth (1972). California, 584, A. 2d 456 See also Anders v. 386 297 Pa. ; (1967) Baker, 738, Commonwealth v. Pa. Ct. 1396 U.S. S. 209, 239 A. 2d following 32, note infra. text See disposition appellant light not our we do reach Cam- In resisting pana’s he be ar- that before could convicted of contention that arrest must establish “law- rest Commonwealth ful.” appellants Doe, do not reach John et al.’s conten- we Likewise prove appel- (1) insufficient evidence there was to tions that alleged participated or in riot E. Hall assault John lant appellants by representation battery; (2) of all same coun- interest; (3) the trial court did not com- created a conflict sel jury in ply R. P. 1106 selection. Crim. Pa. with

The Double Jeopardy deceptively Clause reads terms: shall for the simple subject any person “[N]or same offence to be twice life put limb; jeopardy . . .” Although the of the clause remains language authorities turn Justice cryptic, leading generally Black’s v. United 355 U.S. opinion Green States, 78 S. Ct. as an (1957), impassioned yet reasoned policies statement of the Dou- underlying the ble re- Clause: with all its Jeopardy State “[T]he and power sources should not be to make re- allowed peated attempts to convict an individual for an alleged him ex- offense, thereby subjecting to embarrassment, and ordeal and him pense compelling to live in a con- state tinuing anxiety . . .” insecurity. (Emphasis supplied.)

While courts and commentators remain undecided whether the clause governs question many of how separate criminal offenses defendant can be punished for at a authorities single trial,5 are unanimous the principal purpose of the Double Clause prevent “repeated attempts convict an indi of an alleged vidual offense” through series of prose- Appellant King appealed judgment has also his of sentence at imposed Sessions, 1968, aggravated No. October assault charge arising entirely separate battery, from an occurrence. support We find sufficient evidence to the conviction and affirm. today only discussion deals with the issue of Our successive prosecutions. whether, trial, do not intimate a view on We at one appellants summary been convicted of both the could have offenses As offenses. a commentator in and the indictable the Stanford Law policies underlying “Because of different has observed: .Review question permitting prosecution protections, of the two double independently punishment.” from considered issue of should Against Multiple Trials, Note, 735, Protection 11 Stan. The L.R. 740 Swenson, 436, (1958-59). n.14, Ashe v. 397 U.S. See 460 90 S. Ct. generally, (1970) ; Kirehheimer, Act, 1189, see n.14 The 1202 Jeopardy, 513, (1949) Vale Double 58 L.J. 526 Offense n.59 discussed) States, ; (eases 386, 395, United Gore v. U.S. 357 78 S. J., dissenting) (1958) ; (Douglas, 1280, Fisher, 1285 Ct Double 242 Burger noted: Mr. Chief Justice has

cuticois.6 As “ punished, twice against being ‘The not prohibition in . . . .’ The jeopardy but twice against being put Constitution in language ‘twice put jeopardy’ an the risk that accused thus relates to a potential, i.e., the ‘same offense’ time be convicted of second will 398 v. he tried.” Price initially Georgia, for which was 1759 (1970). 90 Ct. 323, 1757, U.S. S. 326, of common the defense At its in law inception early prevent remarkably equipped jeopardy double rela Criminal statutes were prosecutions.7 successive An in ac coverage. broad few in number and tively by be followed trial could not generally at one quittal second trial would because the prosecution, another charge the same precisely be based on necessity sentence, A a severe the first. conviction resulted the prosecu little incentive for leaving death, generally another trial. tion to seek however, legal noted, countless scholars have

As procedure has witnessed pro age modern this de- A consequence statutes.8 penal liferation of 81, Jeopardy: Summarized, Boners U.C.L.A. L.R. Six Common 15 Multiple Single (1967) Consequences ; Horack, The of a Criminal 86 Note, 736-38; (1936-37) ; 805, Act, Stan. L.R. at 11 Minn. L.R. 806 21 (1965) 262, ; Note, Jeopardy, Note, Yale L.J. 269 Con- 75 Twice Multiplication Single Prosecutions: Judicial Sentences secutive (1957-58) ; Note, Statutory Penalties, 916, Yale L.J. 918-19 67 Statutory Implementation of Double Life Clauses: New Guarantee, 339, 65 Yale L.J. 339-40 Constitutional for a Moribund (1956). States, 5, supra; v. United Addate 359 U.S. see also note See (Brennan, (1959) J., separate 198-200, 672-74 Ct. 79 S. Kills, 163, 171-72, ; 447 Pa. 286 A. 2d opinion) Commonwealth 638, 641 concept Kirk, jeopardy, history of double see For Books, During of the Year 82 U. Pa. L.R. “Jeopardy” the Period Note, ; L.J. at 339-344. (1934) Yale n.10, 452, Swenson, U.S. S. Ct. Ashe Jeopardy—Municipal Bossert, ; Double (1970) Prosecu- 1195, 1198 Subsequent State Prosecutions Offenses Aris- Bar aas tions

243 velopment is the “to judiciary’s responsibility recognize that new rules must devised with fact cope situation, a factual rise a num single may today give ber of “by substantive consult Prosecutors, offenses.”9 a a ing are able to dissect presently Thesaurus,”10 “act”, “transaction”, “episode” criminal “occurrence”, produce and a “circumstance”, variety charges. Unless meets re judiciary its properly a if he for sponsibility, prosecutor, reason dis any satisfied with Hie result the first could trial, circum vent accepted prohibition generally against state with a new charges prose set second appeals11 cution. Such “trial prosecutions run” in Mr. Jus are, tice Stewart's what words, “precisely the constitution al guarantee forbids.”12

The Pennsylvania Double Jeopardy differ Clause, ing only stylistically contained the Fifth been thought has to be limited only Amendment,13 what were heretofore “capital” offenses.14 Neverthe- ing Actions, From the 282, (1972) ; Same Criminal Dick. 76 L.R. 287 Oliilingirian, Jeopardy: Double Vandercomb to Cen- Cbieos—Two Standard, turies of Judicial Failure in Search 45 J. of Urban (1967) ; Lugar, L. Law, 405, 456 Criminal Double Res and Judicata, (1953-54) ; Mayers Yarbrough, 39 Iowa 317 L.R. Prosecutions, Bis Vexari: New Trials and Successive L.R. 74 Harv. 1, 14 9 Note, Yale L. at 65 J. 344. 10 Lugar, L.R. 39 Iowa at 317. 11 Kepner States, 100, v. United ; (1904) 195 U.S. 24 S. Ct. 797 Georgia, 323, 327, Price v. accord U.S. 1757, 398 90 S. Ct. 1760 Ray, (1970) ; 307, v. 311, Commonwealth 410, Pa. 448 292 A. 2d 413 (1972), and cases cited therein. 12 Swenson, v. Ashe S. U.S. Ct at 1196. Pennsylvania I, per of the §10 Art. Constitution reads person part: shall, offense, put tinent “No the same be twice limb; jeopardy . of life or . unique interpretation apparently This strict and the re reading phrase McCreary literal “life or sult limb.” See Commonwealth, (1857) ; Pa. 325-27 see also Common 109-112, Baker, Pa. wealth A. (1964), 2d 384-86 therein. discussed eases af Commonwealth been defendants in this have

less, against prose a measure of successive protection forded acquit common law of autrefois pleas cutions pleas prevent prosecutor, autrefois These convict. or of a “constituent” or acquittal after conviction initiating offense in the for trial, lesser included first for a offense.15 greater a second prosecution construed Double Similarly Jeopardy we have our in a murder to a defendant retrial upon Clause protect trial of a from conviction in the second prosecution greater puni first,16 offense than that of the greater In v. Pa. 126 Dinkey Commonwealth, sment.17 17 applied estoppel pre collateral to this Court (1851), to necessary where an issue prosecution vent a second resolved in defendant’s favor at charge sustain the v. 141 Pa. In the first trial.18 Commonwealth Lloyd, 411 unanimously prohibited 21 (1891), Atl. we 28, 30, have because the state could a second prosecution think the first trial: do not joined both counts at “[W]e can for the one offence commonwealth prosecute In one the other a different county. county, only Pennsylvania apparently state the double is where previously capital jeopardy been limited offenses. has to clause Israel, Hall, Kamisar, LaFave, Modem Criminal Procedure See Jeopardy; Reprosecution 1213; Notes, (1969) Double The Prob (1964). However, 1272, lem, after Furman v. D.R. 1287 Harv. 77 (1972), 238, Georgia, 2726 v. 92 S. Ct. and Commonwealth U.S. 408 Pennsylvania’s (1972), 19, Bradley, A. 2d 842 295 Double Pa. 449 subject interpretation. to further See also is now Clause 213, (1972). Caye, 290 2d 244 447 Pa. A. v. Commonwealth Papy Maroney, 15 368, 370-71, rel. v. Pa. ex 417 Commonwealth ; (1965) 31, 1860, 814, see also Act of March P. L. 815-16 A. 2d 207 §§464, 51, 831. 427, §§30, 19 P.S. Light Cavell, 16 ex rel. v. 422 Pa. Commonwealth (1966), eases cited therein. 2d 884-85 A. Littlejohn, 336, 347-48, Pa. A. 2d Commonwealth (1969). 811, 816-17 Melissari, Pa. 148 Atl. Commonwealth see But other there two words, may counts, be two but not prosecutions. elected in this commonwealth has think instance Luzerne proceed county, we bound such election. . . (Emphasis supplied.) Many this one at jurisdictions, including perhaps have “same deter applied a test times,19 evidence” mine of prosecution whether second the “same fense.” That re unanimously test has been almost garded implement impor ineffective to totally guarantee tant double jeopardy preventing succes sive As Yale prosecutions.20 one commentator in the Law Journal noted: which aptly choose “Attempting version of the same test evidence would best implement the double is like jeopardy prohibition which deciding of five lumber jacks would be handy most with a violin.”21

The United States Supreme Court has re recently sponded to the problem posed by successive prosecu tions in two landmark cases. In v. Florida, Waller 397 U.S. 90 387, S. 1184 (1970), Ct. imper Court held missible as a violation of the Double Clause Jeopardy prosecution second that was concededly the “same acts” that the defendant been had in a punished for court of limited jurisdiction. More Mr. significantly,22 19 Shoener, 71, 77, 890, Commonwealth v. Pa. 216 64 Atl. 892 (1906), denied, (1907) (Superior cert. U.S. 207 28 S. Ct. 110 opinion), Court and eases cited therein. 20 Sigler, ; (1969) Chilingirian, Double 45 J. of Urban Tj. 456; Kirchbeimer, Mayers 513; Yarbrough 58 Yale U..T. 74 1; Estoppel Mclnteer, Ilarv. U.R. Collateral in Criminal Procedure: Guarantee, (1970-71) Notes, ; A Constitutional 39 U.M.K.C. U.R. 225 Ilary. 1272; Developments, U.R. 77 Recent Constitutional Daw— Jeopardy, Mich. U.R. Double 69 762 21 Notes, U.J. at 75 Yale 274. 22 interpreted only rejecting has been Waller “sov- two municipal-state theory prosecutions. ereign” See State v. Con- rad, (Fla. App. 1971); Bossert, 2d 174 243 So. cases discussed in U.R. at 76 Dick. 284-85.

246 v. in Ashe for the speaking Justice .Court Stewart, gave 90 1189 (1970), 397 U.S. S. Ct. Swenson, prosecu to the specific recognition “possibility] [of] numerous tors . . spin[ning] startingly . out [sic] alleged criminal transa series of offenses from a “startling” As a to that partial ction.”23 response prosecution imper Court held a second possibility, application estoppel” an of “collateral missible where to the offense revealed that an “ultimate fact” essential trial had been decided defendant’s the second at favor the first.24 against afforded defendant succes protection col prosecutions the doctrine of repeated by

sive or considerably lateral diminished estoppel, however, has doctrine imprecise its inherent limitations. That for appellate and burdensome difficult proven quite uniformly Before properly apply.25 courts to trial estoppel collateral can apply doctrine of first “rational” reading end in and a acquittal,26 must 23 n.10, n.10; S. Ct. at see also U.S. 397 U.S. at 445 90 1195 397 J., concurring). (Brennan, Ct. 1198 at 90 S. at 443-44, Ct. at 1194. 90 S. 397 U.S. Harris, See, e.g., v. 78 Wash. 2d P. 2d 484 State App. Hay Texas, (Tex. (1971) ; v. S.W. 2d Ct. of Crim. State, 1971) (Ark. ; 1971) ; v. 2d 343 S. Ct. Christo Decker S.W. 1970). App. Many State, (Fla. pher Ct. courts 240 So. 2d protec Ashe offer little have concluded that will and commentators See, e.g., Holloway State, prosecutions. 14 Md. tion from successive Procedure—Ap ; Downey, (1972) App. 703, Criminal A. 2d 652 Estoppel plication of to State Criminal Collateral Doctrine 351, (1971) ; Lucker, Prosecutions, Es L.R. 355 Collateral N.C. 49 Against Attempted into the toppel—An Guarantee Transfusion Temp. L.Q. (1971) ; Schaefer, Jeopardy, 377 Unresolved 44 Double Jeopardy: Ashe, of Double Waller Calif. 58 in the Law Issues Jeopardy- Comment, ; (1970) Criminal 391, Law—Double 394 L.R. 130, (1971) ; Notes, Estoppel, 136 48 Den. L.J. 69 Mich. Collateral 349; Morrow, Note, at 777; Yale L.J. but see Constitu 65 L.R. at Swenson, Procedure—Ashe L.R. 49 Texas Law—Criminal tional (1970). 148, 155 n.13, 26 J., S. Cfc at 1202 n.13 (Brennan, 459 90 at U.S. 397 suggestion Note, 288, concurring). 75 Yale L.J. see the at But

247 record must disclose that jury based its verdict on acquittal but one issue.27 As Mr. Justice Schaefer of the Illinois Court has observed: Supreme succinctly “Collateral is therefore estoppel of limited value be cause it is not possible preci often determine with sion how has judge jury particular decided any issue.”28 has been noted that es doctrine collateral

It toppel places defense connsel the horns of a dilemm a.29 If defendant is to chance of gain any protection under the doctrine he de is better off his by limiting fense at the first trial thus placing fewer facts at issue before the Such a jury. might impair consideration counsel’s ability to defendant. effectively represent far

By rec enthusiastically most efficient and eived30 proposal for prosecutions successive preventing is that by advanced the American Law Institute Model Penal Code : not be (§1.07(2)) defendant shall “[A] jury prosecution acquitted if tlie in a second a defendant resolving estoppel apply favor, an issue in bis collateral should the first trial and conviction. 27 special proposal 444, 397 U.S. at 90 S. Ct. at 1194. jury verdicts to determine issues trials what ac- tually universally See, e.g., resolved has been almost condemned. Mayers Yarbrough, 74 Harv. L.R. at 34. 28 Schaefer, 58 L.R. at Calif. 394. 29Note, Cunningham, 777; 69 L.R. at Constitutional Mich. 590, Swenson, Jeopardy-- Law—Double Ashev. 39 Cin. 595 U. L.R.

30 See, e.g., Bigelow, Acquittal, Former Conviction and Former Rutgers (1957) ; Chilingirian, 11 L.R. 45 J. of L. 500 Urban Swenson, 462, Crimmins, L. Criminal Law—Ashe 44 N.D. (1970) ; Kirchheimer, 534; Lugar, 296 Yale L.J. at L.R. 39 Iowa Schaefer, 398; Comments, at 347. Calif. L.R. at Es Collateral toppel Cases, (1960-61) ; In L.R. Criminal 28 U. CM. Com Jeopardy—Tests ments, Criminal Law Procedure—Former Offense,” (earlier version); (1933) L.R. ‘(cid:127)Same 32 Mich. A.L.I. 758; Estoppel Note, Note, Stan. L.R. at Collateral in Criminal Supplement Jeopardy Protection, to the Cases—A Double 21 Rut gers ; (1966-67) Note, Note, 296; L.R. Yale L.J. at Yale L.J. at 357. based offenses multiple to trials

subject separate same the the same conduct or arising from Imown to the appropriate are such episode, if offenses of the commencement the time officer at prosecuting ,”31 to commentary the . . §1.08 trial. first prosecution bars second the Penal which Code, Model states that of first, the same facts” as upon “based defendants to protect that the of the section is purpose upon essentially based prosecutions from: “successive doing in so conduct, purpose the same whether jury risk of against unsympathetic to an hedge he after person ‘hold’ upon the first trial, place imprisonment, simply has been sentenced to or of trials.”32 by multiplicity harass Crim- The ABA Project on Minimum Standards and Relating inal to Joinder Standards Justice, spe- Draft, with (Approved 1968), Severance §1.3 a de- Penal accords Code, cific reference to the Model if charges of all right joinder fendant to request or they are on the same conduct arise “based “ ‘an is defined as episode.” “Episode” same criminal de- occurrence of occurrences and or connected series be viewed as distinctive velopments may which comprehensive or part larger of a more apart although ” ABA to Joinder Relating series.’ Standards §1.3(a) (commentary). commentary Severance As the ABA to Joinder and Sever- to the Relating Standards Advisory is the view of the ance states: “It §1.3(a) where the ends would that, except justice Committee not sub- should be defeated, otherwise defendant (Em- trials of related offenses. ...” multiple jected phasis supplied.) after Supreme

In months the Oregon Court, recent existing protee- inadequacy careful analysis (Proposed (Empha- §1.07(2) Draft, 1962) Code Model Penal supplied). sis (Ten. 5, 1956). Draft §1.08 Penal Code Model No. that “a against tions successive held sec prosecutions, pro ond is for the ‘same offense’ prosecution if hibited arise same act (1) charges out 1198 . .” v. 497 2d Brown, transaction. . State P. 1191, S. House (Ore. Ct. court that 1972). That observed in Lords birthplace concept England, double jeopardy, recently had rule promulgated prosecution court “that as a general must rule join in the same indictment ‘are charges that on founded same form of a of offenses facts, part or or are series ”33 of the same or similar character....’ su Oregon Supreme Court State v. Brown, further among noted New pra, Jersey that and Hawaii several states have either adopted “same transaction” test or long have one.34 In applied California, Illinois, New York and of compulsory joinder Minnesota of all fenses a criminal transaction accom plished by legislative enactment.35 R. Pa. Compare Crim. P. 219(b) which of provides: or “Two more . fenses . . if may charged the same indictment are . . . they based on same or act transaction.”36 33 Connelly Prosecutions, (1964). v. Director Public A.C. 1254 Connelly Schaefer, 394-98; For discussion of see 58 Calif. L.R. at Comment, 48 Denver L.J. at 141. 34 See, e.g., Ahuna, 321, State v. 52 Hawaii 474 P. 2d 704 (1970) ; Greely, Super. 180, (1954) ; State v. 30 N.J. A. 103 2d 639 Crumley Atlanta, App. (1942) ; Worley v. 68 Ga. 22 S.E. 2d 181 State, (1929) ; v. 42 State, Okla. Crim. P. 275 v. 399 Jones 19 App. 600, (1924) ; People White, Ala. So. 99 770 see also 41 App. 370, ; (1972) compare Eagle Mich. State, 2d N.W. (Fla. App. 1971). 249 So. 2d Ct. 654; See Calif. Penal 111. Rev. Code eh. Stat. §3-3 (1963) ; 40.20(2) ; N.Y. Crim. Proc. L. 40 Minn. Stats. Anno. 609.035. statute, Kahn, Jeopardy. For discussion of the California see Double Multiple Multiple Prosecution, Comparative Punishment: A Analysis, (1962) ; Johnson, Multiple L.R. 50 Calif. Punishment Doctrine, Reflections and Consecutive Sentences: the Neal Calif. L.R. 357 Pennsylvania situations our in numerous re- Rules of Court e.g., quire joinder See, 103(b) of related claims. Pa. R. Crim. P. Swenson, iu Ashe v. su Supreme While the Court estoppel decide collateral only had whether pra, three Clause, Jeopardy within the of the Double aegis requires clause that Justices indicated concurring all charges trial prosecution join “the ... one of a grow a defendant against out 397 U.S. at transaction”. act, occurrence, episode, Mr. Jus (footnote omitted). 90 Ct. at 1199 453-54, S. Justices Mr. tice for himself and writing Brennan, Douglas ‘same “This further stated: Marshall, enforces the offence’ not only transaction’ test of ‘same multiple prosecu vexatious ancient prohibition against re but tions embodied the Double Clause, recogni widespread increasingly as well sponds all issues tion the consolidation in one lawsuit a best out transaction or occurrence arising single of economy, and convenience”37 promotes justice, alleged (“When one been committed more than offense is to have authority by person arising issuing incident, one from the the same only accept complaint, the as a shall one and shall docket matter (“All grounds [pre- single ; case.”) 304(e) P. Pa. R. Crim. for the application trial] be in fail- relief demanded shall stated and ground thereof.”). ure to a constitute a state shall waiver similarly 1020(d) (1) of the Procedure Rules re- Rule Civil quires joinder all “If a or oc- of causes of action: transaction gives assumpsit tres- . . . rise to of action in and currence causes person they against joined pass . . be in an action same . shall separate against any person . . such in counts. provides: join 1020(d) (4) further “Failure to a cause of Rule by (d) required (1) of this Rule shall be subdivision action as against parties to that cause of action as all deemed a of waiver the action.” 37 (empha (footnote omitted) Ct. U.S. at 90 S. at 1199 397 subject supplied). The “same sis transaction” test to common exceptions. Model Penal Code notes that all The offenses sense prosecuting appropriate be “known officer the time must at §1.07(2). trial.” of the first See Common the commencement Papy Maroney, Pa. A. 2d 814 ex rel. wealth Relating to Joinder §2.2 ABA and Severance Both the Standards §1.07(3) Penal recommend the A.L.I. Model Code severance and prejudice. party See can demonstrate also 397 U.S. at either if concurring). J., (Brennan, n.ll, at n.ll 90 S. Ct. “same transaction” test is Mr. Justice not, experience “self-defining,” words, but Brennan's proved concept has both civil law that the workable important objectives.38 By requir and fulfills societal ing arising op all set of causes action from a proceeding, be consolidated one erative facts con cept repetitious litigation finality avoids assures unduly burdening judicial process. without Proponents of the “same transaction” test in crim sought inal law have noted that both be interests preserved by Jeopardy impor the Double Clause <md equally effectively tant societal interests will By requiring joinder compulsory served.39 all charges arising single from a a defend “transaction,” only gauntlet” ant need once “run the and confront jury’s the “awesome resources of the state.” After the may security peace verdict he have the mind designed pro that the Clause was Double Jersey Supreme tect. the New noted almost As Court century ago: “If and a half in civil ab law cases, multiplicity yet more suits, hors it is watchful oppress the crown shall not cases, government unnecessary subject, or the the citizen, applicable Similarly, transaction” the “same test is not where alleged single jurisdiction no court has over all crimes n.7, U.S. at S. transaction. Ct. at 1199 n.7 concurring). (Brennan, ,T., 38 “Although analogies phrase to the use of the [same transac- perfect litigation policy not are since tion] in civil considerations guidance application differ, further . some its . . can be ob- application litigation, in the course of its civil from tained where great difficulty reaching not encountered in have sound the courts Moore, particular 3 cases. See J. Federal in Practice ¶13.13 results Holtzoff, (1968) ; A. Barron and Federal Practice and Pro- 1A W. I960).” (Wright n.8, ed. U.S. at 397 454 90 S. Ot. at §394 cedure concurring). X, (Brennan, n.8 3199 39 n.30, supra; Cunningham, 595; 39 see also U. Cin. L.R. at See L.Q. 382; Mclnteer, Temple Lucker, at 39 U.M.K.O. L.R. at 233- Multiple Multiple Comments, and Offenses 34; Penalties Under the 308, Raws, (1960-61). 28 U. Chi. L.R. Narcotics Federal . has . . is a case the state prosecutions. where [This] mildest thought the offence proper prosecute its offence form, better the residue it go indictment unpunished, by sustaining than second in- an practice might to sanction a which be rendered v. oppression Cooper, strument of to the citizen.” State 13 N.J.L. 375-76 test as transaction”

Equally important, the “same interests. protects Compulsory joinder vital societal of all offenses “transaction” thus litigation precious avoids conserves piecemeal judicial and as time professional manpower as well use of resources. jurors, witnesses, public an swiftly All accused are outstanding charges against if at one brought proceeding, and, proven guilty, all of a defendant is commensurate with punishment committed. transaction” actually crimes “same test the “trial run” and prevents inadequately prepared in Aslie the Court found offensive prosecutions 90 S. U.S. at jeopardy provision. the double Ct. at 1196.

As Court so not- Oregon Supreme appropriately “The ed in v. P. 2d 1195: People Brown, [United clear position has not made its Supreme States Court] Ashe, cases.” In Court multiple prosecution Dou- that as a constitutional minimum the established col- incorporated ble Clause doctrine of did not reach the issue con- but we estoppel, lateral front today. are thus left specific guidance we without

Although particular Court on this it Supreme issue, from the this Court’s de remains responsibility nevertheless here, governed not which, an issue cide constitutional stand announced minimum previously persuasive light hold, authority We ard.40 Mills, e.g., 447 Pa. See, Commonwealth 286 A. 2d 638 Ware, Pa. (1971) ; 284 A. 2d ; (1971) Commonwealth

253 discussed re that Double Clause above, a in a all quires prosecutor single to bring, proceeding, known charges against a defendant from a arising “single episode.”41

It should be noted that it is clear Pennsylvania, that both offenses summary and indictable offenses may be considered common “In pleas at proceeding: those cases presented where evidence to the jury the indictable charge applies and is equally dispositive of the summary it is not offense, necessary sepa that rate hearing on the offense held.” summary Com monwealth v. 216 Pa. Superior Ct. Dawkins, 201 198, 264 A. 2d 723 n.3 n.3, See also 722, (1970). Common wealth v. 448 Pa. 292 A. 2d 410 Ray, 307, (sum (1972) offense and offense mary indictable consolidated at one Rose, Commonwealth v. 214 proceeding); Pa. Superior Ct. 251 A. 2d 815 50, rev’d on other (1969), grounds, 437 Pa. 261 A. 2d 586 30, (1970); Commonwealth ex rel. Levine v. 186 Pa. 144 Fair, Superior A. 299, 2d Ct. 395 rev’d on 394 (1958), other 146 grounds, Pa. 262, 834 A. 2d March v. (1958); see 10 Sad Commonwealth, 14 ler Atl. 375 479,

As recognized this Court in Commonwealth v. Ray, 292 at 309 A. 2d 412 supra n.3, n.3: an in- “Where dividual charged with summary an indictable offense out of the same facts and is held on the court latter we are charge, informed a magis- in Philadelphia trate as a matter of practice returns all charges disposition at trial.” Whiting, 205, (1970) ; v. Commonwealth 439 Pa. A. 266 2d Com- 738 Singleton, 185, (1970), v. Pa. monwealth 439 A. 2d Com- cf. Willman, 489, 491, 534, (1969), monwealth 434 Pa. A. 2d acknowledged power Court its this where extend Miranda Arizona, beyond (1966) required S. U.S. Ct. 1602 Supreme Court, States but the United “chose not to do so.” following 32, supra, note See text ef. Act of December 334, §1, |110 , (effective L. (1973) P. No. 18 C.P.S.A. 1973). .Tune are cases

Although Dawhins, supra, supra, Ray, cavil City beyond it is clear Philadelphia, Pleas jurisdiction Philadelphia Common Court that all com precisely is same as other mon courts.42 pleas it our to

Turning focus the records in each appeal, all two charges brought clear that successive against each from prosecutions appellant originated but one criminal episode.

The evidence adduced the first and second prose- that Campana cutions involving appellant established reported on a disturbance August 17, 1968, was ap- their arrival police. Upon policemen two noticed pellant appellant with his friends. When “tussling” he officer was asked his identification, pushed an and rammed automobile door the officer’s into ap- to arrest During ensuing struggle stomach. All the other officer also pellant parties struck. transac- concede that the events were of a part acquitted tion. Thus who was appellant, initially Philadelphia given The Common Pleas Court is “unlimited Pennsylvania V, original jurisdiction.” Constitution, art. Schedule Judiciary 16(o). V, Article, Similarly, §5(b) of the Section art. Pennsylvania gives pleas Constitution all common courts “unlimited Municipal Philadelphia given original jurisdiction.” courts in are summary jurisdiction V, Ju- over “All offenses.” Art. Schedule to diciary peace 16(r) (ii). justices Article, Section Likewise Philadelphia given jurisdiction “punish- are over offenses outside of summary April 824, upon L. conviction.” Act P. able §1, §391. 42 P.S. “[p] Finally, canon of that it a familiar construction revi decreasing jurisdiction . of a court of record . . [are sions May strictly 28, 1937, IV, ofAct P. L. art. construed.” be] being §558(7). §58, There no discernible be P.S. difference Philadelphia jurisdiction of the Common Pleas Court tween the pleas courts, there can no serious common doubt that other all jurisdiction summary pleas concurrent have courts over all common Dawkins, Superior Commonwealth Pa. Ct. also offenses. See (1970) and the cases cited therein. A. 2d 722 “run disorderly should not have had to conduct, from the charges second time on gantlet” same criminal episode. en- John et

Appellants Doe, May ah, 19, 1968, tered a Berks bar and initiated a “brawl.” County event “a lasted, according couple to eyewitnesses, incident minutes,” “two or three minutes.” After the ar- fled. The Commonwealth appellants immediately that gues, this there were notwithstanding testimony, actually two on the episodes. testimony of one Belying witness minimal concerning property damage outside the bar, the Commonwealth contends there was that one in the bar and one episode outside. We reject metaphysical because the record division, discloses any damage outside the bar was done during appellants’ quick flight the brawl. Because the estab- record lishes but a criminal all single episode it is clear that charges brought appellants against should have been consolidated single a proceeding.

Appellant King on February 28, 1969, placed call to phone police the to seek assistance. When two policemen arrived and appeared reluctant to arrest certain individuals appellant were interfering claimed his with automobile, appellant began to use abusive language police. directed at the After giving appellant several the police informed he warnings, appellant was under arrest. the During attempt to effectuate the struck of arrest, appellant one the officers. The record disclosing only single all episode, charges brought against appellant should have been consoli- dated at a single proceeding.

The of judgments imposed sentences at No. 151. Sep- tember Term, 1968, Lycoming County, No. 255 Septem- ber Berks Sessions, 1968, County, No. 520 April Sessions, 1969, are Allegheny County, reversed. The Sessions, at No. 325 October sentence

judgment affirmed.43 County is Allegheny Eagen by Concurring Opinion Mr. Justice : majori- reached I with the result agree While espoused the rule law I with agree cannot ty, reach that result. con- with one question are herein confronted

We phrase is: the constitutional that What does sideration, Double of the offense” mean in the context “same applied as Amendment, of the Fifth Jeopardy Clause This Amendment? through the Fourteenth states impres- on first simple question, although deceptively ques- and troublesome a most difficult sion, truly tion. with my disagreement an understanding

For underlying a brief recitation majority opinion, is essential. of the Double Clause purpose Clause rests on Double Jeopardy foundation trial a criminal offense fore- that a fair theory offense, for that same prosecutions closes successive Encom- a rule of finality. double jeopardy thus, finality concept jeopardy within the double passed fair trial for given once an accused is is the fact that al- closed, thereby an offense the matter is considered plan accordingly, his life individual lowing distress in him continued protecting well as enveloped within Additionally, of reprosecution. form principles Clause are such basic Double Jeopardy to right speedy the of presumption innocence, as the be as a tool of not used and the courts should justice oppression. and harassment appellant 4, supra, King’s affirm As in footnote we noted battery aggravated No. assault and this conviction since “entirely separate charge occurrence” and from an sufficient arose support the conviction. offered to evidence with, agree majority opinion past I efforts give purposes meaning to full of to the before-related the Double have fallen of that Clause short goal, agree but I cannot its that the with conclusion episode,” “same transaction” as fash- test, or “same majority, proper ioned answer to problem determining prosecutions of if con- successive jeopardy summary stitute double and a offense where higher disagreement My a offense are involved. basic premise with this test that all occur its crimes which necessarily episode the same or transaction same are the “same offense” in the sense. I am constitutional persuaded particularly summary not this is where so, a higher (misdemeanor grade offense and a or of crime felony) are involved. all such Moreover, conclude crimes are I a the “same offense,” submit, is effect rewriting by substituting of the Constitution the word “episode” for “offense” the word in the Amend- Fifth ignores position completely ment. na- such a Also, purpose charge ture and second exclusively focuses acts committed. majority opinion

The weakness of the stems from adopts it fact that a which rule law was fash- operate ioned to where or or two more felonies misde- a meanors, or a combination both are involved, summary felony a situation where a offense approach may type misdemeanor are involved. This only viable where mis- situation felonies and demeanors are it is involved, but not viable be- here, strictly op- it cause on the focuses acts committed, posed to the “offense” as the Constitution mandates. questioned right cannot be the Commonwealth has a It duty protect through citizenry the interests its statutory grades enactments of different kinds and example, making disorderly For crimes. law conduct may protect be enacted to crime citizens of the an- and of disturbance type from this Commonwealth enact Legislature may the time the At same noyance. homicide. constitute acts which a law to applicable they offense”? Clearly, “same Are these two crimes the the adopted by of law the rule are not. But under for dis- a prosecution if there were majority opinion to a conduct, attempt prosecute subsequent orderly barred homicide would prosecution homicide, as the same episode of the grew if the homicide out is self-evi- of this absurdity conduct. The disorderly to the same be cited leading dent. could examples Other ludicrous result. adopts majority opinion which the approach and its citizens unprotected

leaves the Commonwealth in instances to and will lead some many cases, extending unreasonably justice defeat ends “same of- phrase of the constitutional meaning many statu- destroys purpose fense.” It likewise a which I to rule tory propose adopt enactments. would of the ac- fully would not the interests only protect of the Com- people but also the interests of the cused, the majority position monwealth. As to the opposed I charged focus on the various offenses opinion, would involved, on the acts focusing exclusively to opposed episode for it all within one my is belief that offenses are “same for double jeopardy pur- not offense” poses. I a propose joinder requirement would

Initially, opinion you such as the does. Whether majority same same choose to name this requirement act, not im- episode same or same is conduct, transaction, I require the would portant. join Commonwealth all crimes which follow from a one trial continuous joined so uninterrupted conduct, time, place circumstances, that such conduct directed ac- complishment objective. However, significant very general I ex- to this add a rule would prosecution may ception, be instituted second is, prevent purpose charged if of the crime then substantially lim- different harm evil. Under such prosecution I ited hold the second would circumstances, is not the not con- hence, for “same offense” does and, jeopardy. stitute double exception

I believe such rule this fair and a with completely goals of double consistent with the the jeopardy by analyzing clause. This be seen can goals. important Probably, aforementioned most of these is to foreclose the use of the courts a tool as oppression. sug- of harassment and The rule herein gested accomplish objective. would also this It would promote finality. very importantly, would But, it protect people the interests of the of the Commonwealth by in those where rule situations advanced the ma- jority opinion unprotected them leaves and results many escaping justice good criminals without reason.

Although suggested may the rule be be- criticized, cause courts would be forced determine if different prevent substantially crimes are “intended to differ- harm or I do think this evil,” not determination ent any would be more than difficult we make in other any areas of the law or, that more matter, difficult determining “epi- than which crimes fall within one majority opinion sode” which the admits “self- not defining.” formula could not be but mechanical, society rather it would consider the basic interests of sought protected by or vindicated the different objectives as well crimes, as broad of our criminal law, prevention such as of future crimes, rehabilitation punishment activity. the criminal, and for criminal my In the cases now us, before it is view that the prosecutions, crimes involved the initial as well charged prosecutions, part those in the second were all conduct and direct- uninterrupted of a continuous objective. single accomplishment toed charged I crimes Since am convinced not sub- prevent intended to were second prosecutions I hold as would different harm evil, stantially were the “same these crimes majority opinion does, the sec- and, hence, in the constitutional sense, offense” constituted double prosecutions jeopardy. ond concurring in this joins Chief Justice Mr. Jones opinion.

Concurring Opinion Mr. Justice Nix: ex- I here, the offenses issue with agree King’s aggravated conviction ception appellant in a battery, joined assault and should have been mem- trial. I with the agree opinion do not those joinder con- bers of this court base such on who would stitutional grounds.

A of the historical the double jeopar- review basis of of me that extension dy suggested clause convinces time that unwarranted. At the totally clause would of the common law two principle governing Blaclcstone, trials for the of plea same offense was the autrefois this acquit. plea “grounded That on universal is maxim of of the common law that no man England, to be more once into of his life than brought jeopardy for the hence same offense. And it is allowed as a con- when not fairly that a man once found sequence, be- or other guilty upon any indictment, prosecution, competent fore court of the any having jurisdiction acquittal he such in bar sub- offence, may plead of any for the sequent accusation same crime.” Blackstone’s Commentaries *335. the time By of drafting state federal constitutions con- this country, been cept jeopardy expanded double had in two ways: applied It offenses (1) non-felony felony and thus was no limited to longer jeopardy life;1 prior It could be invoked after verdict (2) Dur acquittal. Kirk, as well as an guilty “Jeopardy” ing The Period Of The Year U. Pa. L. Rev. Books, prohibition double (1934). Thus, jeopardy has two an government oppor functions: It denies the (1) tunity to convict a defendant of an offense after he has once pro It acquitted offense; been and (2) government hibits the from exacting multiple punish ments for the Note, Imple same offense. Statutory mentation Of Double Clauses: Life For New a Moribund Constitutional L.J. 339 Guarantee, Yale (1956). While these are their principles easily stated, implementation is difficult.

Less than after year extending reach Double Jeopardy Clause to the United states,2 the States an Supreme Court held that where issue of ulti mate fact has been resolved in the defendant’s favor by a valid it judgment, would constitute double jeopardy to permit the government that fact. Ashe relitigate Swenson, 436 (1970). U.S. Ashe dealt with the situation where a of one acquitted charge defendant and is subsequently tried a second charge involving the same “ultimate fact”. Ashe is concerned with Thus, the first function of the double noted jeopardy clause the prohibition above—i.e., against allowing govern which re-litigate that has been already ment resolved in the defendant’s favor.

Ashe has not been interpreted as determining the government not may re-litigate issues which were resolved the against previous defendant at a trial. Un- 1 Pennsylvania unique continuing to limit the Double Jeopardy capital Hall, Kamisar, LaFave, Clause to offenses. See Israel, (1969) Modern Criminal Procedure at 1213. Maryland, Benton U.S. had if Ashe the defendant case, facts of the

der the no robbery trial, the first there been convicted subsequently he not have been that could suggestion I can remaining charges.3 Thus, on robbery tried the as pro the Double Clause read Ashe or not to from a bringing the defendant hibiting government a conviction for obtaining trial on an offense after so from the same transaction, arising different offense not offenses would for both of the long punishment jeopardy of the double afoul of the second function run where course, Of prohibition punishment). double (i.e., in with several offenses charged defendant would Commonwealth issues, volve the same factual rather than together the cases try be well advised to the first prohibition within Ashe’s should risk falling acquittal trial an result require if could be interpreted joinder,

Even Ashe two of- only where the joinder necessary such would in common. The opinion fenses have factual issues Mr. expressly brother Justice disavows my Roberts where joinder same evidence and would test, compel episode. from criminal the offenses arise the same Such no Jeopar- result has basis Double policy Clause. dy adopt

As a this public matter of court should policy the American Insti- joinder by rule advocated Law defendant tute Model (§107(2)): Penal Code “[A] multiple subject separate shall not be trials of- fenses same conduct or based criminal if are known same such offenses episode, officer at the time of the appropriate prosecuting I of the first trial. ...” agree commencement avoiding vital societal interests” in “protects this test Douglas 3 minority court, Brennan, A of the Ashe Justices episode adopted Marshall, ex- would have same test pressed Mr. Justice Roberts. piecemeal judi litigation thereby conserving “precious cial and professional manpower as well as the time of jurors, witnesses and the use of resources.” public While such a applied pro rule could be appropriately spectively suggested Mr. Justice my brother by it would not inconsistent the policy with Pomeroy, of giving an incentive raise be litigants new issues fore the bar of this appellants court to these grant benefit of the rule. See Willis v. generally, Depart ment Conservation & Economic N.J. Development, 55 A. 2d 37-38

I therefore concur this of the court’s reversal judgments of imposed sentence at No. 151 September Term, 1968, Lycoming September No. 255 County, Ses- sions, 1968, Berks and No. 520 County, Ses- April sions, 1969, Allegheny County.

Dissenting by Opinion Pomeroy: Mr. Justice I do not with the disagree expressed to- philosophy day by the Court that prosecutors should not have power to force a through defendant multiple trials of offenses out of “the same criminal episode”, even though each trial involves an separate admittedly offense. I do with disagree by method which the has carried majority that philosophy into law. well majority, into its states e opinion, that “[w]

are thus left without specific guidance from the Su preme Court on this particular issue . . .” I . find that statement to be and therein incorrect, lies the basis of There my disagreement. is decisional law of the Su of the preme Court United States on precisely this is law which that Court sue, has on three occasions re refused to reconsider.1 cently today’s me It seems to clear decision has the effect of Pennsylvania

declaring unconstitutional Rule of Criminal Proce- promulgated this dure a rule Court: de United States Court Supreme

In 1958 the Jersey, v. New of Hoag cases the companion cided v. Illinois, and Ciucci 913 (1958) L. Ed. 2d U.S. involved Hoag 983 (1958). 2 L. Ed. 2d 356 U.S. 571, Giuc on a tavern. in a raid robberies committed several of four murder multiple simultaneous, ci involved was Hoag defendant The family. the same members of of New the State by occasions separate tried on three the tavern three of robberies of separate for the Jersey trial theOn acquitted. each trial was and on patrons a conviction however, person, of a fourth robbery was hand, the other on Ciucci, obtained. finally was convicted murder, in two trials tried the first years’ of 20 sentences and received on each occasion, respectively. years’ imprisonment and 4.5 imprisonment victim, another murder of yet In a third trial for the sought-for a conviction and obtained prosecutor held Court Supreme In both cases penalty. death rule did not embody Amendment Fourteenth Jus offenses. Mr. different joinder of of compulsory in wrote: majority Hoag, for the speaking tice Harlan, al Fourteenth Amendment “We do think that not different offenses to prosecute forbids States ways arise out though they trials even consecutive in case is question any given occurrence. same alleged indictment, “(a) in an no other counts murder is Where involuntary except voluntary may joined indictment in the be manslaughter. any murder, offenses, grade, “(b) other than or more Two they charged may if are of or in the same indictment the same are based on the same act or transaction or or character similar together connected or transactions or consti- or more acts on two plan. separate tuting parts scheme or There of a common shall be a charged.” offense for each count obliged may this Court will be that now feel to invali- It well separate prose- in trials obtained Commonwealth date convictions permissive operated reliance on the nature of our cutors who retroactivity, footnote 5 infra. note on See Rule. whether such eourse has led to fundamental unfair prac may very preferable ness. Of it well be course, tice for a State circumstances such as normal these, ly prosecution, try the several offenses in a and recent studies of the American Law Institute have proposal. §1.08(2) led to such a See Model Penal Code (Tent. 1956). Draft No. But it be an entire would ly different matter for Fourteenth us to hold that the always prevents allowing Amendment dif a State from ferent offenses out of same act transac prosecuted separately Jersey tion to be as has New recognized long very done. For it has been as the es sence of our federalism that the States should have the sys widest latitude the administration of their own justice.” tems of criminal In 356 U.S. at 467-68. per opinion Ciucci v. Illinois, decided in a curiam day Hoag, appears: following the same “The constitutionally prosecute State was entitled to these singly separate individual offenses at and to trials, utilize therein all relevant in the absence evidence, proof establishing that such a course of action entailed Hoag Jersey fundamental unfairness. v. New . .” . . 356 U.S. 573. Hoag

The decision in has been overruled an ex by tent Ashe 397 U.S. Swenson, 436, L. Ed. 2d 469 (1970). presented exactly That case the same factual Hoag2 princi as did situation and the Court held that ples estoppel of collateral embedded in the Fifth prosecution barred a for an Amendment offense if a prior prosecution for a different offense had resulted acquittal prem necessarily in an and that result was finding ised on of the non-existence of an element prosecution. in essential to success the second Mr. Jus Swenson, allegedly In Ashe v. the defendant had robbed the participants poker game. Hoag in a several basement In the rob- patrons bery of the several of a tavern. Court, of the the majority for writing Stewart,

tice the is the narrowness was careful to demonstrate valid Missouri could whether : “The is not question sue for offenses separate six with ly charge petitioner is not whether players. six It poker of the robbery if he punishments total of six he received a could have the six robbing trial of in a had been convicted after a determined jury whether, It is simply victims. rob one of the was not that the by petitioner its verdict hale him before constitutionally could State bers, U.S. again.” question jury litigate new opin concurring Brennan filed a at 446. Mr. Justice Douglas joined; Marshall ion in which Justices Court’s model this to be the appears that opinion in the case at bar. opinion unlike v. Illinois—which, in Ciucci decision offense of different acquittal prior involved not

Hoag, conviction—was undisturbed but rather prior v. Swenson; of Ashe collateral rationale estoppel continues in that case. Giucci it is unmentioned fact, law federal constitutional represent controlling prosecutions separate subject on the successive “same criminal episode”. offenses out following quite becomes clear from the That this is so recent developments: Supreme 1972 the Court of April

First: On certiorari in the case denied a writ of United States 31 L. Ed. 2d 590 Miller v. U.S. Oregon, an which Brennan, opinion Mr. Justice Douglas Marshall from dissented joined, Justices and basis that his of the Double denial on the view the as set forth his Constitution, Clause of in in Ashe would Swenson, opinion supra, concurring petitioner tried for violation of an having indicate Portland (possession of of City of a con- ordinance of Oregon the State should be held weapon), cealed try him in a for the powerless second prosecution a crime of weapon of use of a during perpetration differ- felony on of a person property another, ent transaction. offense from the same criminal

Second: Court Supreme November 1972 the On certiorari, denied in a for a writ of Grubb petition 109 U.S. Oklahoma, L. Ed. 2d 309 Mr. Justice Brennan dissented and again again Douglas joined by Justices and Marshall. ap As pears of Okla the State dissenting opinion, homa had convicted the in one trial Grubb petitioner of armed of robbery second trial kidnapping. Both the had offenses arisen from the “same transac tion” of within Mr. Justice Brennan’s meaning test in his Ashe v. Swenson concurrence.

Third: In Robinson v. 109 U.S. 35 L. Ed. Neil, 2d 29 (1973), Supreme Court a double considered jeopardy claim made via federal habeas corpus sought by a state a claim which is all fours prisoner, on with the situation presented by the at bar. The appeals peti tioner had been court municipal tried convicted of violation an ordinance of City Chattanooga (assault and indicted battery) subsequently grand with intent to commit murder jury assault under state law. He the state pleaded guilty to charges, but later jeopardy attacked conviction double Court certiorari to con grounds. granted Supreme sider the the decision question retroactivity Florida, Waller v. 397 U.S. 25 L. Ed. 2d 435 (1970), that decision and, holding fully retroactive, remanded determination “whether the state and municipal prosecutions were the same actually offense109 (emphasis U.S. Once more added). Mr. Justice Douglas joined by Justices and Marshall, Brennan, took the dissenting opinion dissented. This position that proposed Mr. rule of constitution Justice Brennan’s require would compelled joinder prosecutor ally defend- charges against one all the “to trial join occurrence, criminal act, of a ant that ont grow transaction.” 409 U.S. at 511. or episode, that holding v. Neil can be read as only Robinson arising offenses successive prosecutions different are consti however defined, from the same transaction, dissent the views of the three tutionally permissible, notwithstanding. contrary members of the Court to the ing today in other is words, ucci Illinois, Ci subject.3 on the existing constitutional law this Court un federal of system, course, Under our when the highest federal law pronounce only dertakes to the Unit in of Supreme Court authority field, Here ed has to the issue. spoken not States, today not the has majority issue which ease; in the framed and answered affirmative—whether joinder federal requiring constitution contains rule the “same of separate offenses admittedly Supreme It Court has should also be noted that while statutory authority propose changes existing to rules of federal language procedure, it not alter the current criminal has acted to “ 8(a) (a) Federal Rule of Criminal Procedure : Joinder of of- may charged or more in the same indict- Two offenses fenses: separate ment or each if the of- information in a count for offense charged, both, fenses whether felonies or misdemeanors or are or or the same or similar character are based on the same act to- or on or more acts or connected transaction two transactions parts plan.” (Empha- gether constituting or of a common scheme permissive Wright added). 8(a) sis Professor notes that “Rule Advisory only,” Moore in and Professor remarks 1971 that “the Com- any apparently mittee on the inten- Criminal Rules has abandoned compulsory amending provide joinder tion of Rule of of- Wright, §143, ...” A. Federal Practice fenses. 1 C. and Procedure Moore, para. (1969) and Moore’s at 313 8 J. Wm. Federal Practice Supp. 1971). (Cum. 8.07, at 8-61 controlling precedent, the issue here has a federal Because opinion majority (eases in note its cases cited which necessity decided an issue of this has federal in an Court law unplowed field) are of no value. for us been answered episode”—has already The Court’s Illinois, Ciucci v. supra. in the negative. fair bids my view, this fact, failure to recognize manner the allocation power a serious disturb States Su courts and the United our State between Court. preme decision bottom its purport The Court does not to distinguished as Pennsylvania of theory on any law. Nor could it do so without federal constitutional As the Court opinion cases. overruling prior our Double construed the have heretofore points we out, §10, I, our own Art. Jeopardy Constitution, Clause of “capital as to offenses.” Commonwealth applicable only v. A. 382 (1964); McCreary 413 Pa. 196 2d Baker, 105, v. 323 None of the of- (1857). 29 Pa. Commonwealth, is “capital.” fenses in the cases now before us involved Even were construe our Double we to in to all applicable Clause such a as to make it way of com- I a rule announcing would not favor offenses, aas joinder today) as that set forth pulsory (such matter reasons: of state constitutional law for two 5 by problem majority’s One decision obvious created dispose grounds question appeals these on constitutional retrospective application joinder. v. of this rule of Benton new applied Maryland, (1969), U. Ed. 2d which 395 U.S. 23 707 fully states, Fifth held retroactive in Price Amendment to the Similarly Georgia, L. Ed. 2d 398 U.S. Florida, (1970), L. Ed. 2d decision in Waller v. U.S. fully Neil, was hold in Robinson U.S. retroactive (1973), supra. 11. 2d 29 discussed in text Ed. fully today’s retroactive, are If decision is likewise to be we likely by petitioner’s PCHA claim that his ear- to be confronted Act, ex- lier for violation of the Uniform Firearms conviction obtaining precluded ample, from later the con- the Commonwealth imprisoned. degree murder under which he is viction of first now regarded having prisoner been to be afforded “a rela- Is such a immunity” by tively painless form of circumstance that prosecute happened the less offense serious first? slate First: There is a and distinction be- palpable vital tween on the one hand twice convicted being—(a) con- punished twice for the “same offense” or being victed and an earlier punished following acquittal the “same offense” which the Fifth (areas Amend- ment on the other traditionally (b) operates), hand, twice made to in court to answer appear two the State separate charges would admittedly entitled to press single prosecution. To equate say two is to convicted and being imprisoned is an of the same imposition order as made to being attend a judicial proceeding. these Clearly, however, detriments not of the are same order, while it doubtless wise to have a prohibition the former against written into the Constitution aas principle funda- mental fairness shared all civilized the lat- people, ter is not of that fundamental dimension required for a constitutional precept.

Second-. There is our well-founded reluctance to de cide issues of constitutional (or law at least novel is sues of constitutional when law) disposition can had on some other adequate As ground. we are empowered to rules of adopt criminal it is both procedure, unneces sary unwise for us to proceed rigid more inflexible route of constitutional adjudication. We have only recently recognized that the rule-adoption route is the better alternative. Commonwealth v. Milliken, 450 Pa. A. 310, 300 2d 78 (1973). Cf. Commonwealth 450 Pa. Phelps, 301 A. 2d 678 I (1973). mention below briefly my preference what such a rule should contain were we to one. adopt

The has majority made mention in opinion its of two different rules proposed by highly respected institu- tions—the American Bar Association Project on Mini- mum Standards for Criminal Justice and the American Law Institute. The ALI proposes, brief, joinder that should be required multiple “for based on offenses same epi conduct from the same criminal arising sode. . . .”6 American Bar Project Association Minimum would the defend Standards, however, afford ant if are request joinder charges right “based on the same conduct or arise same from the criminal episode.”7

The majority the ALI adopts as constitu proposal tionally required; joinder will be the rule and severance can be if only obtained the defendant can “demonstrate prejudice.”8 I no Although have more than information does the majority on the subject defendants’ attitudes toward I multiple trials, strongly suspect many defendants will regard single trial of of multiple fenses as having proverbial book thrown at them. It appears me that possible to clustering into one trial all chargeable offenses

episode will work detriment of a sizeable num ber of defendants it may discourage the asser tion of other fundamental rights (such as right plead not and to demand a guilty jury If a de trial). fendant does intend to assert these rights at least as to some of the he will offenses, doubtless regard presence of a charges multitude of as a distinct embar rassment and Avill consequently move for severance.9 6 ALI, (Proposed §1.07(2) Model Penal Code 1902). Draft Project ABA on Minimum Justice, Standards for Criminal Relating (Approved Standards to Joinder and Severance §1.3 Draft 1968). 8 Majority Opinion, note 37. may regard today’s The idea that defendants not decision as unmitigated blessing evidently an is shared two noted commenta- procedure. on tors noting Wright, proposals Professor after that there exist for compulsory joinder multiple of offenses from the same crim- transaction, inal concludes that “there would be serious difficulties any procedure Wright, . . .” A. in such . 1C. Federal Practice and multiple offenses mere of of joinder the fact

Because of the majority which prejudice be tbe possibly cannot re constitutionally is now the (since joinder speaks wheth necessary determine hearing a will be to quired), join by the sufficiently prejudiced er defendant is the an yet require be entitled to severance.10 To der to process of criminal hearing pro the tortuous other I am judicial resources. unlikely is to conserve cedure majori the of the highly goals therefore doubtful profession precious judicial of ty—“conservation] the time witnesses, al well as of manpower jurors, of realized. public and the use resources”—will be To mind better un- my (but, by today’s decision, the is that of American Bar constitutional) the approach Crimi- Minimum for Project Association on Standards agree: “By §143, Professor Procedure Moore would eliminating opportunity compulsory joinder afterthought, the deprive prosecutor the of the he would means to correct what con- justice. put of on there a failure Thus notice that will be siders probable chance, prosecutor’s the no reaction be to multi- second wiU magnify ply possible indictment, the within offenses enhancing thereby conviction, of likelihood and the chance of appraisal punishment operation A realistic cumulative adversary system any recognizes that in the marked shift bal- advantage inevitably produces per- TMs ance of counteraction. approach compulsory proposal joinder spective one malees with Moore, some ambivalence.” 8 J. Wm. Moore’s Federal Practice para. (emphasis added). 8.07[3], at 8-64 Project Justice, on Minimum ABA Standards for Criminal Relating §1.3, (Approved to Joinder and Severance Standards (Comment) (emphasis added) judgment 1968) “It : Draft preferable Advisory place it Committee that this bur- requesting protection joinder], [of defendant den on the whose requirement joinder-of-related offenses In is intended. this this spared necessity holding way will be trial court hear- question ing related whether offenses should be to- tried separately gether in those cases which the defendant con- attempt joint best interests not it is his force a cludes may many offenses. There occasions related when the trial judgment” make this will defendant

273 bar prose- The ABA would the proposal nal Justice. multiple prosecu- in cutor from a defendant pursuing the de- empowering the simple expedient tions arising offenses require joinder separate fendant to de- Adoption of this episode. the same criminal from because not burden resources (1) judicial vice would with- regulate joinder the defendant could or severance of a would cure what- necessity hearing, (2) out the inheres in multiple prose- ever unfairness hardship same for different cutions offenses the if the rule deficient episode. Furthermore, proved then this Court to alter operation, liberty would be it as it fit. might see of a rule of criminal

Adoption procedure granting right request defendant the to would joinder, however, be of benefit to in the It appellants no cases at bar. necessary would be therefore to decide the instant ap peals by reaching question which actu appellants before argued this Court: whether had been ally they twice the same prosecuted violation of offense the Fifth and Fourteenth Amendments of the Consti tution. Resolution that question beyond scope of this dissenting opinion; general approach is sketched in margin.11 11 appellants’ jus Tlie fact that first convictions were before a peace operation Jeopar tice of the does not affect of the Double dy Florida, Fifth Amendment. Clause of the Waller v. 397 U.S. open appellants 387, L. Ed. 2d It is therefore they prosecution argue, have, as second in the court of pleas is barred it common because was for the “same offense” with meaning Fifth Amendment. What is the test de termining one offense is the “same when offense” as another? developed generally have The federal courts what referred evidence” test to determine the “same whether two offenses jeopardy analysis. States, for double Gore v. are the same United Blockburger (1958) ; 386, Ed. 2d States, L. U.S. United (1932) ; 299, Brisbane, L. Ed. 306 United States 284 U.S. 1956). (3d Cir. 2d 859

239 F. I the excursion into constitution note, finally, will al undertakes predate law which Court now Act the effectiveness of state’s Crimes Code, this new of December P. L. et seq., P.S. §101 months. That June by only (effective two Code joinder12 contains 1973) provisions compulsory Pennsylvania “merger” developed In have doctrine of we a whereby necessarily an we determine whether one offense involves robbery other, as, example, rape fornication, in involves and larceny. Moszczynski volves both assault ex rel. Commonwealth Ashe, (1941) 102, 104, ; Pa. 21 A. 2d Commonwealth 343 920 McCusker, (1950) ; Commonwealth v. 363 Pa. A. 2d 273 70 Comber, (1953). found Pa. A. 2d If one offense is 343 “merged” prosecution another, then or conviction for have with the barred. second offense is question This has not had occasion to consider the wheth Court following application er, of the Fifth Amendment’s Double Maryland, the Benton v. L. Ed. Clause to states in 395 U.S. “merger” might satisfy require (1969), 2d our decisions the merger jeopardy however, test, of double law. Our ments federal evidentiary the conduct of the defendant rather than focuses on generally thought and as such is more lenient to de considerations Jeopar Note, tests. See in fendants than the “same evidence” Twice dy, 75 Yale L.J. appeals actually question the to decide these on the Court Were prosecution presented—whether the second was for the “same of- merger applying fense”, it a matter then I think would be of our test. provides (emphasis added) of Crimes Code : Section 110 by Barred Former Prosecution Prosecution “When for Different Offense “Although prosecution pro- for a violation a of a different prosecution than former or of the statutes a is based on dif- vision by prosecution facts, former it is barred such fol- ferent under the lowing circumstances: prosecution acquittal “(1) resulted in an former or in a (relating in section of this title as defined conviction when by prosecution prosecution offense) former barred same prosecution subsequent is for: any “(ii) based on the same conduct offense episode, appro- if such offense the same criminal was known to the priate prosecuting officer at the time of the commencement of the which, statutory would as a matter state accomplish law here does uneces- (erroneously what Court aud I con- interpretation federal sarily, think) by stitution.

In the federal consti- sum, holding Court’s tution compels joinder one trial different offenses of the criminal in- arising out same is not episode only is also as a matter of but unwise constitutional correct, law general, unresponsive any argument made to this Court by parties. Beyond pre- it this, an area empts which could be adopt- better handled by ing rule or, light of the procedure, Crimes provision Code cited the mat- supra, leaving ter to Legislature. It is for I these reasons that dissent. jurisdiction

first trial and was within court unless separate charge offense;.. the court ordered trial of such .” Appellant. Commonwealth Nelson,

Case Details

Case Name: Commonwealth v. Campana

Court Name: Supreme Court of Pennsylvania

Date Published: May 4, 1973

Citation: 304 A.2d 432

Docket Number: Appeals, 205, 206 and 207; 21; 127

Court Abbreviation: Pa.