*1 Accordingly, at 1207-1208. at 378 A.2d Id., Pa. “in the Crimes Code every that under Garcia, I hold would entitled, upon request, a defendant murder Id., involuntary manslaughter.” Pa. jury instruction the trial court failed to 1210. Because at at 378 A.2d for an man- involuntary request timely grant appellant’s instruction, should reverse judgment this Court slaughter for a conviction remand new murder on the sentence trial.
O’BRIEN, dissenting opinion. in this J., joins Pennsylvania, Appellant,
COMMONWEALTH CODER, Appellee. R. John Pennsylvania. Supreme Court 10, 1980. June *3 for Banks, appellant. First Asst. Dist. Atty., F. Robert appellee. for Williams, Williamsport, A. Scott O’BRIEN, ROBERTS, EAGEN, J., NIX, Before C. KAUFFMAN, JJ. LARSEN, FLAHERTY THE COURT OPINION OF FLAHERTY, Justice. court taxing from an order trial
This arises appeal Coder, with his prosecution R. John appellee, a of venue granted from accruing including charged with costs exceed- Coder Initially his motion.1 and the Commonwealth was or- $10,000. objected He ing of costs which he him with bill could provide dered to on the trial hearing exceptions, file After exceptions. and ordered Coder to pay approxi- the amount court reduced reversed, $8,000. concluding Court mately Superior only taxed amount the costs of that Coder should be the trial taken place would have been had We reverse. County.2 Lycoming 64 of Act of Section March governed by This case “ alia, inter . . .in provides, P.L. 4273 which place Lycom- for which Coder was convicted took
1. The offenses Mayor Williamsport. ing County he was On Coder’s motion when publicity due he not determined that to excessive could the trial court County, changed Lycoming and venue was fair trial in receive a Mercer away. approximately County, 230 miles Superior requiring plurality Court concluded that 2. A of venue constitutes defendant penalty “chilling” on the exercise of his exerts effect constitu- Judge Spaeth fair concurred on the basis that to a trial. *4 tional impose costs of of venue on a defendant is to the it under the circumstances a unfair presented Judge case. in this Cercone filed Judges dissenting opinion der in which Hoffman and Van Voort joined. repealed replaced by has This section been the 19 P.S. 1223. § 3. 2, 27, 142, 1978, P.L, July eff. June 42 No. Act of Pa.C.S.A. 1726. by charges wiretapping jury of was convicted Defendant charges swearing in Two conspiracy other were and false judgment prior and a motion arrest of to verdict dismissed granted swearing. charge false of 198 crime, all shall by be paid
all of conviction cases succinctly by As stated President convicted.” party in the court below: Cercone Judge legislature has determined that a “It is clear that thereby triggering prose- who a crime commits person Commonwealth, of the should machinery repay cutorial costs and necessary expenses the Commonwealth he is found reasonable guilty beyond if prosecution, doubt, able to do so.” financially and is Coder, Pa.Super. 382 A.2d v. dissenting). J. (1977) (Cercone, him to argues requiring
Coder venue constitutes and exerts a penalty his the exercise of constitutional to “chilling” effect on of the statute is to disagree. purpose a fair trial. We jury of trial where a finds defendant recoup doubt, not to chill the a reasonable assertion guilty beyond those who rights by penalizing choose to constitutional difficult Imposition admittedly them. choices exercise v. necessarily unconstitutional. Coun Lepley Lycoming not Pleas, (1978). 481 Pa. ty Common Court 40, 94 Oregon, In Fuller U.S. S.Ct. L.Ed.2d (1974), Supreme States Court dealt with a United Oregon which arose out an problem recoupment similar that, in case of provided That statute convicted statute. able all or part who were to pay defendants defendant, by prosecuting the state including incurred counsel, persons’s appointed repaid costs for convicted state. In that case the statute appellant argued effect on the exercise of constitutional “chilling” had a defendant’s that he re- rights knowledge might because a obligation repay might impel under an him to main attorney. of an Justice appointed decline services Mr. rejected argument, this Fuller from distinguishing Stewart no having purpose cases where statutes other or effect those rights than to chill the assertion of constitutional those them were who chose exercise found invalid. persons *5 assessment of argues extraordinary Coder that because the news media publi a defendant has against is We extensively prejudicially his case unfair. cized reject this argument.4 crime person when a commits a which stirs
Obviously, interest, either because crime is hei- community wide person its is a invested with a perpetrator public nous or trust, inevitably. will follow publicity ensuing public- foreseeable of the readily by perpetrator should be ity crime, is arbitrary, capricious so that it neither nor unrea- for responsible to hold him his dysfunction sonable the criminal If he justice system. conduct caused is he will bear none of these charges, innocent of the costs. Coder, 519, supra, at Pa.Super. 137. A.2d at regard appellee remaining assign
With Coder’s error, being improve upon dissenting unable ments below, we quote: filed the learned opinion by judge that constitutional Having appellant’s rights determined him to the costs infringed by requiring not been have reach appellant’s5 remaining argu- I would prosecution, 313(b) also contends Rule Appellant ments. of change Procedure6 the costs places Rules Criminal Authority not the defendant. county, venue charges a defendant convicted imposing 1223, supra. in 19 . him is found against imposed of the costs which portion as a Included attorney. The Act of district are primarily responsible it is is 4. Where determined venue, the defend- conditions necessitate for the the costs incident of venue. should be absolved of ant case, Coder, appellant appellee in the instant when 5. R. John Superior Court. was reviewed the matter 1964, 1, 30, 1965, January 312(b). Adopted June eff. Rule 6. Now 1, 1976; July renumbered from Rule 313 June eff. amended effective as to cases which the amended June 1, 1978; January on or after or information filed indictment November amended 1403, 16 (1965) P.S. § August *6 as follows: provides district by incurred the attor- necessary expenses
“All in by or officer directed him any or assistants his ney the crime and and apprehension of investigation the with the suspected or of persons charged of prosecution crime, thereof the upon approval of by commission court, paid the shall be the attorney by and district county. the funds of the In county general from sentenced to a defendant convicted and case where trial, expenses of the of prosecution the costs pay with prosecution in connection such attorney the district of costs the case a the of and be part shall be considered by the defendant.” paid does not appellant which relies relieve 313(b), upon
Rule prosecution the of placed responsibility him in the event of his the above statutes by him upon accruing “All costs from a provides: The rule conviction. the in paid by county shall be which the change venue operate filed.” This rule does not to fix complaint but, of the county the instead defendant upon the rather, between the two counties which one determines as expense bear the of a of venue. It shall initially county recouping not the from the costs prevent does conviction, upon the defendant but speci- from expended county responsibility securing pay- has the fies Supreme Our Court in from the defendant. Com- ment (1974), Pa. inter- Davy, 456 monwealth 288, 24, 8, 1941, 19 July P.L. P.S. 191.- § Act preting § Act a section of the Uniform Extradition similar to 247 313(b), applied supra stating, Rule § 1223, supra, may recoup from the county under P.S. § prosecution of the costs of monies part as defendant defendant, county extraditing expended by initially costs of extradition are assessed although 191.24, county supra. under Neither against P.S. § by July repealed replaced 7. Act of No. Since 1978, 42 § eff. June Pa.C.S.A. the costs statute excludes may imposed as of the cost which be part
venue defendant, does rule relieve appellant nor from liabili- Thus, expenses for these costs. ty Lycoming Offices, Attorneys’ Mercer District as well County as witnesses, for the Commonwealth’s incurred expenses appellant. be from recouped may claims that the District Attorney failed Appellant of costs which demonstrated its to file bill reasonable- enough. above, As discussed specifically ness and fairness only required defendant authorized permits 16 P.S. supra, statute. who District and those assist him the Attorney costs, part to be included but only *7 are expenses to extent that those “necessary.” the defendant, provide must who Attorney District costs, specific bill of costs reasonably with charged necessary prosecution. how were to the show such costs case, In the District and the Attorney the instant County $10,000 lump submitted a sum of over initially Controller and, apparently ex the approval, parte, for court court to appellant pay an order for sum. approved Only ordered a objected court bill of costs appellant after of presented to filed was itemization costs any be to jurors’ such as expenses, expenses and appellant. Some were to court found personnel, improp- those certain the charged to As to other appellant. categories of erly did not Attorney the District demonstrate how expenses, persons various witnesses or other assist- were to the attorney necessary prosecu- the district ing hearing, court below During evidentiary tion. appellant the burden on to show the by placing erred requiring rather than Common- unnecessary, were these to demonstrate that costs were adequately wealth necessary. that, he was convicted since
Appellant argues required five he should be charges, two only In of the costs. forty percent no more than Common- Soudani, (1960), Pa.Super. wealth v. when the first of the a similar claim made the defendant he was convicted was set aside by which two counts being only differing degree Court Supreme the costs between apportion refused to This court second. since all the costs were neces- and second counts the first count. We have on the second the defendant sary try costs, indicating us what if in the record before nothing charges attributable to were solely were any, cannot, therefore, arbitrarily apportion We dismissed. conviction on two of the appellant’s only solely demonstrates aby pre- If the Commonwealth charges. evidence that all the witnesses were reason- ponderance for which prove charges appellant ably necessary recover the convicted, the Commonwealth ex- from their attendance at the trial. arising penditures hearing question new is held on unneces- When the costs, whether any it should be determined sary which were charges are attributable solely in arrest of judgment. the motion granting dismissed Smith, Pa.Super. 361 A.2d Commonwealth See lawsuit for other (1976). unliquidated As the costs debt, justifying preponder- the burden of plaintiff, evidence is on the ance of herein. lower court was correct in ruling appel-
While the *8 to costs of constitutionally required lant may venue, deriving change the court in that the bill of costs incurred was suffi- ruling erred to meet the Commonwealth’s burden of specific ciently . proof. on the hearing we remand for a new bill of costs.
Hence and remanded for consistent with proceedings Reversed opinion. this
NIX, J., concurring opinion. filed a J., ROBERTS, filed a in which dissenting opinion JJ., KAUFFMAN, joined. O’BRIEN
203 NIX, Justice, concurring. in its majority rejection with the constitu- agree
I in This statute1 appeal. this does presented tional claims to “patently impermissible” attempt “penal- not represent exercising so fundamental a criminal defendant for ize a (At 411, charge.” the venue by imposing right Moreover, it Roberts, J., does not exert dissenting opinion). “chilling effect.” I am prohibited satisfied constitutionally Supreme Court’s discussion of the the United States that 2116, Oregon, 417 40 in Fuller v. U.S. S.Ct. question to (1974),adequately responds these contentions. L.Ed.2d right that the to a successfully argued It cannot be important assuring more fair trial than any of venue counsel. to Nevertheless, emphasize I it is to important believe that premised with the result is my majority’s that agreement of the statute in which interpretation question an of this of assessment to type the enforcement situa- limits to the defendant has the meet it capacity tions where I note that in this case hardship. appel- manifest without to an provided opportunity question legitimacy lant was did, fact, that the court reduce the bill of costs and assume, I arrived at Commonwealth. figure us, contrary being before nothing urged there is since to this has financial meet capacity this defendant hardship. manifest without obligation ROBERTS, Justice, dissenting. conclusion majority’s subscribe
We cannot venue, the cost of a impose can Commonwealth $8,000, Neither the appellee. here over any case in this or other refers majority nor none, in the prosecu- research reveals jurisdiction, such costs. Unlike the impose permitted tion has been Court that this Superior unprec- we with agree majority, impermissible. of costs is imposition edented applicable is Act March statute 1. The (effective replaced, repealed Pa.C.S.A. § 27, 1978). June *9 Pa. 1980.] [490 prejudicial pub- substantial appellee, no fault Through obtain- Appellee properly case. appellee’s surrounded licity venue, both the trial court and approved by ed a this Court. stature whose exercise of constitutional rights
“There are price.” the exaction of a not condition a State 493, 500, 616, 620,17 385 U.S. 87 S.Ct. Jersey, v. New Garrity is more basic and fundamental right No (1967). L.Ed.2d than the impartial justice fair and system to our See impartial judge jury. an U.S. a fair trial before Pa.Const, Const, XIV; I, art. It is VI & § amends. penalize unreasonable to appellee unfair and manifestly right. a constitutional so fundamental exercising would, until have been all but today, result majority’s The these given in this Commonwealth constitution- unthinkable result is even more remarka- majority’s The guarantees. al ble, however, existing statutory provisions in light 312(b) expressly pro- this Court. Pa.R.Crim.Pro. rules of of venue shall vides “[a]ll complaint in which the was filed.” county paid by 30, 3, Act May formerly See ago, supplementing months existing 553. Just two a means for by establishing transporting procedure venue counties, Legislature our took care to from other jurors of the costs of this change an accused citizen relieve venire: under this section shall be paid by
“All costs incurred is filed.” complaint where the county The determination to 8702(c). majority’s ignore 42 Pa.C.S. § mandates, failure protect as well as its funda- these plain again once forces rights, unnecessarily mental constitutional redress in a federal to seek court for Pennsylvania litigant have respected that should been in the rights vindication of the Superior The order of Court should be system. state failure to do so dissent. majority’s compels affirmed. KAUFFMAN, JJ., join this dissenting O’BRIEN opinion.