*1 that, Thus, given if had merely argued the society, in our no motive crime indiscriminate prevalence shown; I not hesitate to affirm necessarily need be of sentence. judgment
However, included refer- only herein not prosecutor no of criminal behavior with instances specific ences argued or nexus to the events of he logical factual irrelevant as a matter law. Such motive error, cor- majority reversible as argument constituted rectly concludes.
Mary M. Superior Pennsylvania. Court of May 21,
Argued 1992. July
Filed 1992. 18, 1992. Reargument Sept. Denied *2 Sacco, Erie, William C. appellant. for Patrick M. Carey, Erie, Asst. Dist. Atty., Com., appel- lee. ROWLEY,
Before President Judge, and MONTEMURO HESTER, JJ. MONTEMURO, Judge: is an appeal
This from an order denying appellant’s pre- trial motion that her requesting case be dismissed on the grounds present that the prosecution violates the Double Jeopardy clause of the United States Constitution. The sole issue raised on review is whether appellant’s prosecution by is barred her previous plea of a summary traffic citation.
The relevant facts in this controversy are stat- succinctly ed by the trial court and are as follows:
On October Caufmann Mary was operating [sic] a motor vehicle on State Street when she struck Ruth Smith who was crossing street. Caufmann re- [sic] mained at the scene and talked with Police Officer Steven Goodich, who conducted the initial investigation. She indicated to the officer that she had drinking been and he noted that she had an her, odor of alcohol about but was signs without additional of intoxication. A subsequent the legal a alcohol level below test indicated blood blood limit. marks, skid scene, measured the
At the Goodich Officer witness, officer, Erie eye police with an talked Smith, victim, transport- The Ruth Sergeant Turner. 30th, Officer Goodich ed On October hospital. attorney’s office and caused spoke with the district alleg- traffic citation to issued Ms. Caufmann be [sic] Novem- ing she to drive at safe On failed 2nd, in the and on hospital Ruth died while ber Smith citation, of the Ms. 14th, receiving after notice November to the traffic violation and pled guilty Caufmann [sic] Officer Goodich paid designated day, fine. Ms. Caufmann complaint charging a criminal filed [sic] with Homicide Motor vehicle. *3 1-2).
(T.C.O. at any attempt bars Appellant jeopardy asserts double to previous her her to convict for homicide unsafe This issue conviction for an Supreme decided in the United States Court case recently 508, 2084, Corbin, 495 U.S. 109 L.Ed.2d Grady v. S.Ct. (1990). In held that Grady, the Court Double bars a the United States Constitution Jeopardy Clause of if, prosecution in order to establish essential subsequent government offense charged, element of the current which prove conduct that constitutes an offense for will appellant Since already prosecuted. has been defendant controlling in the instant a contends that Grady is necessary. review of the facts Grady careful 1987, defendant drove his automo- On Corbin October line, on with colliding a head two yellow across bile Attorney District vehicles. New York Assistant oncoming called the scene where he (ADA) Thomas Dolan was to in the second vehicle struck passengers learned that two learned that one day and later that seriously injured, were of as a result those eventually died passengers of the served evening the defendant was two That same injuries. LaGrange directing him to at the appear traffic tickets charges Town Justice Court on the intoxi- while cated, keep failing right median.
Three ADA days began later Frank Chase gathering evidence for a homicide ADA charge. Chase never in- Court, formed either the Justice or covering Town the ADA that court about death of pending the victim or the investigation. On October plead Corbin offenses; however, the summary sentencing was attorney deferred since the failed present district a sentencing recommendation. a On November 1987 sen- tencing hearing place, took ADA wherein Sauter who did file, not review the and was of the fatality unaware a pending investigation, recommended minimum sentence. fine,
The presiding judge sentenced to a Corbin $350 $10 surcharge, and a six month license revocation. January grand jury
On
investigating
charges
October
1987 accident indicted
on
Corbin
manslaughter, second-degree
reckless
vehicular manslaugh-
homicide,
ter,
criminally negligent
third-degree
reckless
assault, and
particu-
while intoxicated.
bill of
prosecution
prove
lars filed
that it
indicated
its
case
by showing that Corbin drove while
an intoxicated
condition,
median,
keep right
failed to
of the
and drove too
plea
fast for conditions. Corbin asserted that the guilty
operated
before the town
as a
from
justice
bar
charges
conduct,
arising
from
which
Supreme
agreed.
United States
Court
claim,
In analyzing the double
first
Court
*4
prosecution
noted that the
was
un-
subsequent
not barred
test,
Blockburger
der the traditional
“because each offense
proof of a fact
the other
not’ ”.
‘require[d]
which
[did]
515,
supra at
135 clause the double Grady noted that The Court sub- possibility beyond concerns greater implicates an enhanced sentence: a jecting person in at idea, ingrained deeply one that is underlying ‘The is jurisprudence, Anglo-American system least not power should resources that the State with all its attempts to convict repeated to make be allowed him offense, subjecting alleged thereby for an individual embarrassment, compelling ordeal and expense and and insecuri- anxiety in a state of continuing him live States, 221, 2 184 S.Ct. Green v. United 355 U.S. ty.’ [78 (1957) L.Ed.2d 199] Moreover, at 2091.
Grady supra 110 S.Ct. to rehearse its case. should not be allowed government second Blockburger Thus, inquiry test a applying after al- the defendant was to determine whether necessary is that a element of prosecuted necessary for conduct ready present charge. test, that double this second court held Applying subsequent prosecution because jeopardy clause barred this that the state would expressly bill of stated particulars medium, a while crossing on the conduct of rely for which Corbin very which was the conduct intoxicated convicted. had been v. Corbin a Grady apply
This has had occasion court Labette, 397 decision, v. recent en banc Commonwealth (1990) 527 granted A.2d allocatur Pa.Super. 579 1315 Labette, In (1991). this Court was Pa. 592 A.2d guilty plea of whether a to the with the issue presented speed, a vehicle at an unsafe summary offenses of from precluded the Commonwealth driving, and reckless under the subsequent prosecution a maintaining Blockburger test determining After that influence. v. court overruled Commonwealth inapplicable, (1989), Evers, A.2d 531 and held that Pa.Super. felony to a or misdemeanor Grady applicable test was proceeded by conviction before trial or by summary plea whether justice, district *5 136
a summary offense. The Labette court however, remanded because, the case the Supreme unlike in Grady, Court court was unable to determine whether the prosecu- second tion involved the same for conduct which Labelle was already convicted.
In the instant
appellant concedes that the homicide
prosecution
is not
the Blockburger test
barred
because
conviction for
prior
driving at an unsafe
speed. Rather, appellant asserts that she is presently being
prosecuted for
for
conduct
which she has already been
Grady.
convicted
violation of
Commonwealth coun
ters
that
conduct for which the
prove
its
for
case
by vehicle
different
from the con
duct
See,
appellant
for which the
convicted.
already
Adams,
Commonwealth v.
406 Pa.Super.
that
of our traditional double
when
subsequent prosecution,
excep-
bar a
analysis would
“[a]n
proceed
on the
tion
exist where the State
unable
may
the additional
charge
more
at the outset because
serious
that
have not
necessary
charge
facts
sustain
been
diligence.
despite
discovered
the exercise
See
442,
250, 56 L.Ed.
Diaz v. United States
223 U.S.
32 S.Ct.
Swenson,
v.
1189,
Ashe
(1912);
436
S.Ct.
U.S.
[90
500]
(1970) (Brennan,
concurring).”
25 L.Ed.2d
J.
469]
2090, n. 7 quoting
at
n.
110 S.Ct. at
Grady, supra
Ohio,
2221, 2227,
Brown
n.
v.
U.S.
97 S.Ct.
(1977).
Grady
n.
We
with the trial court that the manner in which
traffic
summary
convictions are handled
Pennsylvania
it very
person
makes
difficult to ensure that a
does not
plead guilty
prior
to a
offense
summary
being charged
However,
with a more serious criminal offense.
arewe
constrained, given
Grady supra,
supra,
Labelle
disagree with the trial court’s conclusion that
this fact
*7
excuses the district
office from
attorney’s
being barred
in
placing
from
an individual
double jeopardy.2
In the instant
there was
accident which an
to
elderly
hospital
woman was sent
serious condition.
accident,
days
On October
four
after the
after consulta-
office,
tion
attorney’s
appellant
with the district
was cited
2, 1990,
for
at an unsafe speed. On November
victim died as a result of injuries
being
suffered from
struck by appellee.
appellee paid
On November
citation,
traffic
and on the same day
charged
was
with
vehicle.3
by
It is true that
the district
office
attorney’s
could not
possibly
charged appellant
by
have
with homicide
before November
when Ms. Smith died. Further-
more, if appellee pleaded guilty prior to the time the district
office
that a death
caused
attorney’s
by
knew
accident, then
See Diaz
not attach.
jeopardy
States, v. United
32 S.Ct.
Accordingly, appellant find that when we attached, and the at an unsafe speed, jeopardy bringing prose- barred from second Commonwealth was conduct. cution based on Order Reversed.
ROWLEY, P.J., dissenting files statement.
ROWLEY, Judge, dissenting: President I dissent. respectfully
I the record before us discloses a am not convinced that act with due part failure on the the Commonwealth Commonwealth, “main in- According to diligence. on vacation until the second week No- vestigator” was “investigated his he Following return to work vember. here filed. I charge and then the issue accident” *8 that, record, on the of this agree the trial court basis with and in a manner which diligently acted “the Commonwealth prohibi- did not offend the rationale of tion.” I of the trial court would affirm the order
For reason for trial. and remand the case