Commonwealth v. Evers

finding hospital that not jury’s only enced least three times more than the negligent negligent but at restraints, had failed to a new trial surgeon prescribe who is required. hospital’s argument have also considered the that

We pain had suffered plaintiff there was no evidence However, recovery that to allow therefor was error. we in this contention. sufficient find no merit There was pain suffering. an evidence warrant award trial, must for a new we do now Because we remand he is to recover plaintiff’s contention that entitled consider 238. delay damages pursuant Pa.R.C.P. and remanded for a new trial. Jurisdiction is

Reversed not retained. Pennsylvania

COMMONWEALTH EVERS, Jr., Appellant. David W. Pennsylvania. Superior Court of 7, 1988. April Submitted Filed Jan. 1989.

Reargument Denied March 1989. J., opinion. and filed an Brosky, dissented Stover, College, appellant. Jeffrey W. State Haven, for District Lock McKnight, Attorney, Merritt E. Com., appellee. JOHNSON, BROSKY, JJ. MONTEMURO

Before MONTEMURO, Judge: Evers, his appeals the denial of David W.

Appellant, him charging information with motion to a criminal quash Person (3) Endangering Another Recklessly three counts of charges of these would on grounds under the Fifth rights violate his double Fourteenth Amendments of the United States Constitution I, and Article Section 10 of the Pennsylvania Constitution. We affirm. appeal

This arises out of an incident that occurred on 8,1987 when, March in an attempt to elude police, appellant drove his vehicle allegedly well excess of the posted speed Following limit. appellant’s apprehension, a criminal information him charging (3) was filed three with counts of Recklessly Endangering Another Person.1 In addition to charges, these appellant was issued citations for various offenses, summary traffic including charge for Reckless A Driving.2 trial was appellant conducted and convicted the Reckless Driving charge addition to several other offenses. In response to the crimi- nal charging appellant (3) information three with counts of Person, Recklessly Endangering Another appellant filed a timely pretrial omnibus motion. Included in the appellant’s pretrial motions was a motion to quash the information on grounds that prosecution of the Reckless Endangering charges after his conviction for Reckless Driving was by barred Double of Jeopardy Clause both the United States and Pennsylvania Constitutions. The trial court refused to quash information and this timely appeal followed. stated, the sole

Concisely question presented this subsequent case is whether a Recklessly Endangering Another Person is by Jeop barred the Double ardy Clause when the defendant has been convicted of the prior summary offense of Reckless and the Driving charges of the arise out same incident.3 1. 18 Pa.C.S.A. 2705. §

2. 75 Pa.C.S.A. 3714. § level, Although appellant the issue was raised at the trial has not

3. appeal question operates raised on of whether § 18 Pa.C.S.A. 110 statutory endangering as a bar to of the reckless summary driving. offense after his conviction for reckless As a result, purposes appeal. the issue has been waived for We however, note, correctly that the trial court concluded that the neither compulsory joinder apply Section 110 nor the rule

571 pretrial the denial of a motion Initially, we note that information on double (cid:127)seeking quash an order. grounds appealable constitutes an See Common 536, 8, 24, Hoburn, 542 n. 485 A.2d Pa.Super. v. wealth Beckman, (1984), citing 26 n. 8 Commonwealth v. 239, (1982). against Pa.Super. guarantee 450 A.2d 660 The Amendment of the is contained the Fifth double to the applicable United Constitution and is made States through states the Fourteenth Amendment. See Benton 784, 2056, 395 U.S. S.Ct. Maryland, afforded jeopardy protection by The double generally interpreted has been United States Constitution I, Article protection as coextensive with the afforded 10 of Pennsylvania Section Constitution. See Common Goldhammer, 507 Pa. 247-248 n. 489 A.2d wealth v. (1985); Pa.Super. 1313 n. 4 McAulay, supra 427 n. 522 A.2d at 656 n. 4. for three appellant’s prosecution

We find that is not Recklessly Endangering counts of Another Person Pennsyl Court of jeopardy. barred double question application vania has addressed the factually analogous a case 513 Pa. present Taylor, case. Commonwealth v. had entered a appellant plea offense of harass justice before the district to the guilty ment, 2709. Sub offense. See Pa.C.S.A. § jury he was tried before a and convicted of sequently, weapon. offense of a concealed Mr. carrying misdemeanor sentence, arguing Taylor appealed the latter judgment prohibits prosecution that Section 110 of the Crimes Code earlier prosecu offenses where there has been an statutory from the same statutory arising tion for a different offense 110. The Supreme criminal See Pa.C.S.A. episode. § indistinguish Taylor’s “virtually Court found situation be 500 Pa. Beatty, from that in Commonwealth v. able” (1983), stating: See Commonwealth v. the Motor Vehicle Code. convictions under Pa.Super. McAulay, 522 A.2d defendant, Beatty, following collision, a vehicle broke the jaw the other driver and left the scene without identifying required himself as by the Motor Vehicle Code. 75 Pa.C.S.A. 3743. Later the state § police charged assault, him aggravated with 18 Pa. C.S.A. 2702, and he pled guilty before a district justice, to § summary offense of failure to give information. 75 Pa.C. 3744, 3743(b). S.A. He subsequently moved for dis- §§ charge of the of aggravated pretrial assault in a missal motion and granted the court his motion. The Common- appealed Superior wealth Court. That court reversed the court pleas affirmed, of common stating: we stipulated (1)

... facts that charges arose [T]he (2) from the same incident and the prosecution knew of both violations at the commencement pro- of the first ceeding (ii). satisfies only portion of subsection We may ignore the clause of that subsection which “and provides jurisdiction of a single court charge ...” The leaving scene of an accident providing proper without identification under the Motor Vehicle Code this Commonwealth is a matter within original (Citation of the jurisdiction justice. district omitted).

Id., (citations 500 Pa. at 455 A.2d at 1197-1198 omitted). [Beatty] The Court went on to say: 110(l)(ii) interpretation

Our of Section as excluding traffic violations under the Motor Vehicle Code is fur- ther bolstered a consideration of the by purposes sought legislative to be achieved enactment as promulgation compulsory joinder well rule. disposition of a offense in a traffic to the prior felony matter trial of misdemeanor or does not present type government harassment of a defendant offend would con- Additionally, judicial economy cerns. is not served our Courts of Pleas to requiring dispose Common these matters which are entrusted to the regularly It justice disposition. district is fundamental that

573 application rule not be where its applied of law should it de- purposes serve the for which fails to signed____ 552-553, (cita- at 513 Pa. at 522 A.2d 39-40

Taylor, supra concerns omitted). Reiterating that double tions preceded is not a misdemeanor do arise where conviction, recognized that the Court by summary Taylor dispose of the “[b]y allowing justice the district no he have off than would offense the defendant was worse the over and with charge joined had the been bound been Id., Pa. 522 A.2d at 40. This offense.” 513 at greater that, statement our court under by supreme is clear case, of that the state Taylor policy circumstances to convict an individu- repeated attempts not “make should embarrassment, al, him to anxi- exposing continued thereby the risk of an erroneous expense, increasing while ety, sub- impermissibly by or an enhanced sentence” conviction for the same mitting multiple prosecutions a defendant to offense, Johnson, 467 simply implicated. not Ohio v. 2536, 2540, 425 81 L.Ed.2d U.S. S.Ct. addition, that Court also declared Taylor “[i]n the district disposition justice of the offense issues for the common advantage narrowing has the court, economy.” and furthers the pleas judicial interests (citation omitted). Id. case present dissent in the recognize,

We course holding explain length, that has chosen interpretation an upon court rests supreme Taylor however, believe, 110(l)(ii). unwilling to We are Pa.C.S. § supreme our court the other statements made specifically decision, which do of the Taylor context su- 110(l)(ii), surplusage. are mere Our involve Section expressly Beatty, earlier Taylor, court preme considered and addressed guidance we have followed Consequently,

protections. reaching our Pennsylvania at bar. in the case

In Beatty, addition to which we believe we Taylor meaning read for their clear and to apply are bound to guided by are the decisions of Court. accordingly, we Buechele, 418, Pa.Super. Commonwealth v. held that a of a fine for the payment A.2d 1246 we prosecution offense of hit and run did not bar summary criminal driving arising episode. drunk from the same argued prosecution in that for the drunk appellant Buechele by offense "... the constitutional doc- driving was barred by the rule of jeopardy, by Campana, trine of double Id., Pa.Superior 298 Ct. Section 110 of the Crimes Code ...” (1982). This flatly rejected at 444 A.2d at 1246 Court contentions, case and our statu- stating appellant’s “[o]ur of permit mockery such a tory law will not be construed Id., Pa.Superior 298 Ct. justice system.” the criminal statutory Finding 444 A.2d at no violation 1248. law, opinion concluded its with the Buechele Court following: purpose jeopar- that the of the double we reiterate

Lastly, rule is to avoid Campana doctrine and of the dy government. Issuance harassment of a defendant summary a magistrate of a citation for by a district is not a violating offense the Vehicle Code defendant, to a and strain anxiety a trial which causes govern- as harassment or which can be viewed ment, system justice. is our prohibited by such as (footnote 427, 444 A.2d at 1250 Id., Ct. at Pa.Superior 298 omitted). Warrick,

Likewise, Pa.Super. 344 v. Commonwealth (1985), jeopar- this Court held that double appellant escape charge an where did not bar trial on dy upon of court based contempt held summarily had been stated the majority incident. The Warrick the same a footnote: way of following by 500, 486 A.2d Allen, 506 Pa. Allen [Commonwealth Pa.Super. 322 part, part rev’g aff'g (1983) contempt hearing a A.2d 1063 involved ] in that case Even summary proceeding. to a opposed held was not our Court that double rape, tried on offended where the defendant was be charges following trespass, simple criminal assault Although [Supreme] finding contempt____ proceedings and distinguish failed to between on criminal hearings, it is clear trial contempt objection- is less following summary proceeding charges first to more subject than a defendant is able where hearing adversarial ... full-blown n. Id., A.2d at 260 at 613-614 n. Pa.Superior Ct. 2. Commonwealth,

In this the constitutional where a implicated the double clause are a convic felony preceded by or misdemeanor trial or by summary a district whether justice, tion before It is axiomatic that for a offense.4 guilty plea, greater residents may their with provide States by the Federal protection than that mandated Constitution, the decisions the United interpreted by case, not this we have chosen Supreme Court. States in the instant case is to our decision Accordingly, do so. interpreted uniformly recognize not this area We that this Court has 4. Hoburn, 536, Pa.Super. 485 Commonwealth v. 335 of the law. See A.2d 24 offenses). (double summary (1984) applies traffic 463, Johnson, Pa.Super. 466 A.2d 636 v. 319 Accord Commonwealth However, rely Borough (1983). upon WestChester these decisions 387, (1981), Lai, interpret scope order to Pa. v. 493 against jeopardy. A close protection double of the constitutional examination of Supreme that decision Lai reveals that the Court Proceedings procedural addressing distinguishable context. private by against criminal the defendant Lai had been commenced complaint municipal ordinances which charging of various violations hearing summary a district In a before were criminal in nature. However, hearing guilty. appellant a de novo justice, was found judgment acquittal. The pleas resulted in a the court common principles barred the Supreme of double Court held that support hearing. The does appeal de novo Lai decision from the but, and in Johnson proposition it was cited in Hoburn for which level; instead, protection appellate on the double addresses principle prosecution is barred namely, that the the well established by guilty” seeking appeal verdict “not entered from a from an Ray, 448 proceeding. v. See Commonwealth a criminal trial court 410, 311, 307, A.2d 411 Pa. affirm the order of the trial court.5

ORDER AFFIRMED.

BROSKY, J., files a dissenting opinion. BROSKY, Judge dissenting: Upon considerable review of the majority opinion I find their conclusiori that: Commonwealth, the consti- “[I]n firmly 5. We are convinced that our in the instant case does any holding not conflict with Supreme of the United States Court concerning protection against the constitutional jeopardy. double We only have reached exhausting this conclusion after an review of Supreme precedent. United States The dissent has cited four cases support which are advanced as for the view that double summary must attach to convictions for offenses. This simply Florida, contention is erroneous. The cases of Waller v. 387, 1184, (1970) Neil, U.S. 90 S.Ct. 25 L.Ed.2d 435 and Robinson v. 505, 876, (1973), recognize 409 U.S. 93 S.Ct. 35 L.Ed.2d 29 that a state municipality may separate and a sovereignties not be treated as for jeopardy purposes. Supreme double opinion Thigpen Court’s Roberts, 27, (1984), 468 U.S. 104 S.Ct. 82 L.Ed.2d 23 does not v. protection against address the issue of the ardy, jeop solely upon Blackledge but relies Perry, 417 U.S. S.Ct. (1974), 40 L.Ed.2d protec wherein it was decided that the tions accorded only the Due Process Clause were violated. Not case, issue, guarantee facts of the instant readily distinguish but also the constitutional Thigpen. the case at Finally, bar from in Illinois v. Vitale, 447 U.S. 100 S.Ct. Vitale was charged involuntary with manslaughter by two counts of the Circuit County. already Court of Cook Vitale had been convicted County failing speed. Circuit Court of Cook to reduce In this previous proceeding, jury Vitale had quite waived a trial. It is clear analogous that the circumstances of the instant case are not to those Commonwealth, circumstances which faced the Vitale Court. In this proceeding right jury criminal does not involve the to a certainly proceedings trial. It was the fact that our criminal trials, prompted Pennsylva are not full-blown adversarial which Beatty, supra, opine disposition nia summary Court in to prior that "the of a offense in a traffic matter to the trial of a misdemean- felony present type governmental or or does not of harassment of jeopardy a defendant that would offend double concerns.” Id. 500 Pa. 290-291, Perhaps 455 A.2d at 1198. it tois state the obvious that complete proceeding, without a more adversarial criminal the state ability subject does not have the same the criminal defendant to embarrassment, anxiety, expense, increasing "... continued and while impermissibly of the risk an erroneous conviction or an enhanced Johnson, 493, 498, 2536, 2540, sentence.” Ohio v. 467 U.S. 104S.Ct. These, course, very L.Ed.2d 425 of are the evils which the clause are not of the double protections tutional or where a misdemeanor implicated felony whether a district justice, a conviction before preceded for a offense.” plea, by summary guilty trial of, analysis deduction from and misguided constitutes support joinder. I with my law which cannot relevant case I dissent. Consequently, conclusion is at the above stated majority’s

The arrival of startling light to understand not or even difficult area confusion of general state of related, identical, compulsory areas of law but and law, merger perhaps sympto- but is and joinder/section critical fine often general recognize of a failure but matic the cases distinctions between these areas law choice of words above is discussing majority’s them. The important make off a similar failure to tips curious what is distinguish in case law and between distinctions opens controlling authority. majority is not and what “in this with the words Common- quoted the sentence above wealth, of the double protections the constitutional creating suggestion, implicated logical are not ...” clause believe, under Pennsylvania, I residents of that somehow law, are different double our afforded country. other 49 in this residents states than are law that federal constitu- It is fundamental constitutional equally to citizens and residents protections apply tional that, are free to although and also states all states provisions to afford construe similar state constitutional can- counterpart, federal the states greater rights than the provisions a more restrictive not construe similar state funda- counterpart. equally than the federal It is fashion on authority that the ultimate federal constitutional mental Court, thus, our Supreme Supreme United States law is the course, court, Court, play must by implication, to the United States subserviant role protection. construing prohibits multiple prosecu- Jeopardy prevents when it Clause Double criminal offense. tions for same The focus on double jeopardy protections quite is itself significant appellant challenges because the contemplated on here Fifth Amendment double jeopardy Campana grounds, section 110 upon or compulsory not grounds. Thus, joinder the resolution this must of case rest squarely upon a jeop- determination constitutional double regard law. In this ardy this case differs from both and Taylor, which were decided on expressly the basis rule, and, section 110 and the compulsory joinder submit, I majority’s upon reliance these is misplaced. cases Appellant has made a double jeopardy challenge that, present case. His theory is within the scope of double law, jeopardy contemplated prosecution aggravated for offense”, assault is a second for the “same prosecution taking place first when was prosecuted he driving, being reckless both charges upon very based act of driving. contends, same reckless The majority appar- that a ently, prosecution Common Pleas following appel- lant’s conviction of the summary traffic offense either cannot or does not constitute violation of the double However, clause. they the cases cite do make support holding. note, is important

It did a panel this court in Johnson, Commonwealth v. 319 Pa.Super. 466 A.2d Campana compul- although section joinder sory rule and the double jeopardy clause often overlap, they are neither identical or in scope origination Johnson: stated in authority.. We

But the of the section disposition 110 issue does not determine automatically appellant’s ques- many tion. While in section 110 and respects the double ends, nevertheless, serve same jeopardy clause provisions two are not one and the same. the first instance, is, course, the double clause contrast, right; by merely section 110 is statutory____ clause

Secondly, while double and section matter, may, overlap times as in the instant not true all situations. application, their this is trials subsequent prevents clause the initial trial for the same act whether sovereign same or a conviction. North Carolina acquittal resulted in an 2072, Pearce, 395 89 S.Ct. v. U.S. Campbell,

(1969); Disciplinary Counsel Office of on the other 345 A.2d 616 Section Pa. that, are hand, requirements certain other requires when on the same met, charged offenses “based all of the episode” same criminal be arising or from the conduct or unlike at the same time be barred. Section tried clause, prosecutions is not limited to Indeed, as far as statu- Pennsylvania for the same act. concerned, proper- 109 of Title 18 more law is section tory sum, appel- In for the same act. ly governs prosecutions lant’s double issue must still be decided. compulsory section 110 and the Ironically, applicable, where above, rule, in the material quoted as is evidenced joinder to the accused than does greater protection offer Thus, require joinder a may clause. section under the double single trial offenses which would not rules, being flip clause. The side those subject or are Pennsylvania authority, rule statute of judicial limitations of either or exceptions creation of and legislature. design Pennsylvania courts and legislative clause, one of the being vitality the double fragile. not as Rights Bill of of the federal constitution is legis- courts nor the Pennsylvania Pennsylvania Neither the scope to restrict the of this constitu- empowered lature is construing and a decision protection tional of section 110 and originated protections Pennsylvania rule, certain set of apply do not to a compulsory joinder circumstances, itself, applicability in no affects the way to the same set of circumstanc- of constitutional this fact recognize has failed to majority I es. believe reading led to an that this failure has overbroad decision. Taylor Beatty, Commonwealth v. 500 Pa. (1983), our Supreme Court considered a case where a man involved in traffic involved, accident struck the other man in an confrontation, fist, with ensuing breaking his his jaw, and then left the scene Appellant accident. was charged subsequently aggravated with crimes of as- sault and failure to identify oneself at the scene of an accident, a summary Appellant prelimi- offense. waived nary and was over hearing bound to court. Prior to trial he pled guilty offense. Subsequently, he filed an motion seeking aggravated omnibus dismissal of the assault which charge granted. A of this panel court reversed indicating that neither the Campana cases nor section 110 barred the for aggravated assault. The Supreme Court affirmed stated its conclusion or holding: 110(l)(ii)

We therefore conclude that neither section nor our compulsory joinder requires barring rule of the prosecution of the aggravated charge assault in in- stant case.

Note holding that the Court does not make any regarding constitutional double law. not jeopardy Perhaps coinciden- tally, there no in the opinion appellant is indication that had ever Quite raised such a claim of double jeopardy. possibly was not raised in Beatty appellant recognized because under no law would we have had a valid claim of double jeopardy.

First to a and foremost double claim under the jeopardy Beatty facts of would be at least a plausible assertion that appellant being a prosecuted second time for the “same Although, offense.” within the scope of double law, of just the determination what constitutes the “same one, (no simple offense” is not a less authority an than Justice, stated, Justice, Rehnquist scope now Chief has “the protections each of these three jeopardy protec- [double offense,’ of the upon meaning turns words ‘same tions] in phrase deceptively appearance a but simple virtually appear that the it does not kaleidoscopic application.”),1 in same considered the Beatty plausibly in could be offenses theory. Such a but same transaction any theory under a single in offenses committed require all theory would single adjudication. in a gained criminal transaction be in is theory transaction utilized Conveniently, this same Campana rule and section joinder compulsory both the double gained in constitutional has not favor but compulso- explain why only This could so-called cases. in Beatty. 110 were at issue rule and section ry joinder why jeopar- constitutional double Regardless the reason case, holding in Beatty at issue the clear dy was not facts, was to exclude expression upon in both of section 110 and the scope from the traffic violations A which was reasserted compulsory joinder rule. Pa. Breitegan, Commonwealth jeop- (1983). Despite the fact that the constitutional double express and that the not at issue ardy clause was issue, is silent on holding of the Court conclusion and Beatty, upon an isolated comment seizes majority concerns to Taylor, regarding reiterated double clause conclude that the conviction are or when applicable implicated Pleas. The Court by prosecution Common followed in Beatty: states in a traffic matter of a offense disposition felony does not

prior to the trial of a misdemeanor defen- governmental harassment of a present the type concerns. dant that would offend itself, read appears the broad when Although expression how far immediately apparent it when read context to taken. meant be should be taken or was statement statement, in the next and Immediately prior to compul- section 110 addresses paragraph, immediately preceding rule. sentence sory joinder to be purposes sought statement discusses subject States, Opinion, U.S. 100 S.Ct. Dissenting v. United 445 Whalen 1. (1980). L.Ed.2d 715 63 582

achieved legislative enactment as well as the promul- gation of the compulsory joinder rule. Is the statement be read in relation only to those particular rules and their purposes or is it to be read to encompass constitutional provisions and protections, which had not been raised nor specifically addressed elsewhere in opinion, as the ma- jority seemingly believes? theWas statement made to express the thinking by the Court relative that particular issue, case and or was it meant to be a very expres- broad sion designed to cover all relatively cases, similar including those where constitutional protections are asserted. And if meant to be a broad controlling principle governing Fifth Amendment double jeopardy protections was it meant to conflict with United Supreme States Court decision which seemingly support theory such summary type convictions can prevent subsequent prosecution in courts equivalent to our Common Pleas Courts?

It is a fundamental principle of appellate law and decision making that “statements of rules of law must be considered as those applicable to the particular case, facts of that all legal other conclusions stated regarded therein as mere ‘obiter dicta’ and not binding authority.” Standard Penn- sylvania accord, Practice 2:126. In Hunsberger v. Bend- § er, 407 Pa. 180 A.2d 4 Mt. Lebanon v. County Pa; Elections, Bd. (1977). It has also “general been stated that: expressions in an opinion must light be considered of and cannot be dissevered from case; the facts of that ...” In re Pew, Trust Estate of 96, 109, Pa. A.2d Our Court has also stated Court has consistently held “[t]his that we should not decide a constitutional question unless absolutely required to do so.” Mt. Lebanon v. Bd. County Elections, supra, A.2d at 650. analyzed

When under the authority above it is clear that the majority’s reliance upon which Taylor, essentially reiterates Beatty, control the issues asserted here is unfounded. expressed earlier, As of Beatty regarded only section 110 and the

583 federal not address either rule. It did joinder compulsory holding, Taylor The protections. or state constitutional regards only section is directed to and to Beatty, similar there, 110. The states Court Commonwealth is presented by

The issue single Section applied Court Superior properly whether the in the proceedings facts and of the Code Crimes case. stating: opinion The concludes their A.2d 38. Court charge,

Therefore, since the harassment we conclude that offense, jurisdiction in the as a plea guilty to that or a district conviction justice, the subse- did not bar charge summary proceeding in offense. weapons of the quent trial of section to subsection paragraph The refers Court no is mention of controlling; found there they 110 which Consequently, protection. beyond the going authority, expressions under the above do not constitute of the case are dicta and holding holding in authority. The decision of the court valid rule compulsory joinder is and the that section summary traffic after a further will bar than that. more nor no less conviction, holding no improperly 110 was is that section holding Taylor The case, in that the specifically of that to the facts applied jurisdiction of the charge only harassment was within particularly must be holding Taylor The justice. district it be read to of the case lest to the facts strictly read after conviction barring prosecution from exclude § it is the would offenses. If such any summary effect, decisions constitute, Campana a reversal to subse- a bar itself, summary convictions which found under the so-called Pleas Common quent intent in indication of such gave no rule. The joinder Taylor. unwarrant- is further upon dictum reliance majority’s cited above also believe, principles the other

ed, I because broadly as does reading the statement against militate the majority. The principle cited above indicates that gen- eral expressions light must be read in of the facts of the case. Neither nor Beatty Taylor present facts would which represent a violation of constitutional double jeopardy pro- discussed, tections. As already charges Beatty the faced not, law, could under recognized any consti- prosecution tute a second for the “same offense.” Further- more, pleading to guilty one of several pending charges will not bar the charges. Johnson, on other Ohio v. (1984). U.S. 104 S.Ct. Conse- the quently, double jeopardy clause would not bar subse- and, quent course, the courts Pennsylvania to, are free to create exceptions or their construe own statutes and rules in joinder manner any they appro- deem priate the they to extent do not infringe constitutional rights. present Under the circumstances in Beatty in quite Court was correct such indicating disposition of the traffic offense did not constitute type governmental harassment which would offend jeop- double ardy concerns.

In the defendant Taylor, charged was with non-sum- two mary charges during a preliminary which is hearing, granted of right, was allowed to plead guilty to lesser included offense of one There charges. one only prosecution, was Appellant two. simply pled guilty to one charge during prosecu- pendency tion. Again the court was quite indicating correct such a disposition not of a type which would offend double jeopardy concerns. Read in the context of facts as the Taylor, principle cited above indicates be, it should Court’s statement of jeopardy double quite However, concerns is it correct. should read not be so all broadly apply as other cases to control consti- questions tutional which were not even addressed the' opinion parties raised by presented or by the facts of the case. principle third cited above is that the Courts should

refrain from deciding constitutional issues absolutely unless this, believe, I from logically It would follow necessary. to decide constitutional should not be read that dictum applicable nor neither addressed they issues where were Furthermore, reference to the Court’s question. the case concerns, light of the above particularly so-called a reference to just likely could as been principle, To extent sec- protections. double statutory rule similar joinder provide the compulsory tion 110 and general- they clause have to the double fact, equivalents. ly thought statutory become was utilized Common- statutory term double Vincent, Pa.Super. wealth v. regarding possible it statement

Consequently, contemplation, by did not even reflect concerns Court, jeopardy of Fifth Amendment double Supreme our protections. on dictum to control this

I find the reliance majority’s also ignored so have doing they unsound because legally case it has expressly decisions of this court where been several that, a traffic con jeopardy, summary stated under double or otherwise is subsequent prosecutions, can viction bar protections. Fifth Amendment double within 361 v. Pa. McAulay, These cases include Commonwealth 419, (1987), v. 522 652 Ho Super. A.2d Commonwealth burn, 536, (1984), 485 24 Pa.Super. A.2d Common 335 (1983), Johnson, Pa.Super. 466 A.2d 636 319 wealth v. R.R., A.2d 348 Pa.Super. 464 and Interest applicability of the double clearly recognize and the to convictions. clause traffic the of these validity to discount majority attempts reliance, part, upon at their least by indicating decisions Lal, Pa. Chester v. West Borough of support proposition it “does not the (1981), misplaced is However, cannot be is the Lai decision for which it cited.” It is Lai involved factually that true that easily. discounted protection than the one issue different double trial protected is from further here. that one Namely, Thus, as stated our acquittal. after an proceedings “a Court, of acquittal verdict cannot be reversed placing without defendant twice in violation Id., proscriptions.” constitutional at 605. A.2d protection This acquittal accrues even when the opera- is by tion of the granting of a demurrer and even if the demurrer Pennsylvania, granted. is erroneously Smalis 476 U.S. S.Ct. However, jeopardy protection recognized is Lai one of the simply protections emanating various from clause. There are several others in- cluding protection from a retrial after of a granting if grant mistrial, mistrial not manifestly necessary to protection imposition from for multiple punishment here, “same offense” the one asserted the protection multiple prosecution from “same offense.” The fact is that Lai significance recognized that the disposition offense summary proceeding criminal brought rise protection of the double Lai jeopardy clause. There is no suggestion other of the clause are somehow inapplicable criminal proceeding disposition and the majority offers neither a reason why they should not or it authority suggesting that proper recognize that some but not all of the protections apply will to a certain Furthermore, adjudication. class criminal the majority offers no reason why traffic offenses would be Lai. differently treated than one in I sug- the considered there no gest authority is such and I further available panel that the suggest were within proper members bounds construction in judicial interpretation utilizing the Lai decision to holdings Hoburn and John- support their in son. contrast, in

In the of the elevation dictum to of controlling precedential authority Taylor the status by the to circumvent or majority distinguish holdings the Superior out- principles contravenes various is nothing dangerous lined above and less than jurispru- already confuse an to further only can work dence which area law. confused relatively conflicts with conclusion majority’s

I further believe Court, which, of of the United States holdings avail- course, highest controlling authority constitute Florida, 397 U.S. v. The cases of Waller 90 S.Ct. able. Neil, and Robinson 409 U.S. believe, (1973), I tend to L.Ed.2d 29 93 S.Ct. that constitutional assertion majority’s refute for sum- the convictions do not attach for cases involved convictions offenses. Both of these mary in scheme similar to ours in a municipal judicial ordinances trial in the right jury no There was Pennsylvania. relatively penalty the possible court and municipal for more serious penalty to the slight potential in relation fact, In criminal forum. regular adjudicated offenses Robinson, fine. As such involved was a penalty $50 to our similar character those offenses were municipal for the cases, the conviction In both offenses. seriously for a more by prosecution was followed ordinance criminal appropriate in the offense the State graded the same criminal upon and was based forum adjudication long there was charge. Florida municipal as the act prosecuted one could be viola- that standing precedent to the State prejudice ordinance without municipal tion of a act, regardless for the same whether seek prosecution municipal acquitted defendant had been convicted invalidated this Supreme Court The United States court. the extent the second indicating to precedent one offense” as the for the “same constituted a clause court the double municipal prosecuted violated.2 erroneously cited in majority argues cases were that these

2. The appellant’s for reckless proposition conviction support that of the They jeopardy protections. state that these cases driving raises double may separate municipality be treated as and a state indicate that purposes. cases do in fact These sovereignties for double issue, emphasis that but the on address that make primarily by that this was explained the fact aspect case is support practice of successive argument the states advanced More directly Vitale, case of Illinois v. point on is the U.S. 100 S.Ct. In that case, Vitale struck two children with an automobile result- ing the death of both. Vitale was issued a traffic citation for failing speed to reduce to avoid an accident. He pled guilty and a non-jury trial was convicted and sen- pay tenced to $15 fine. He was subsequently charged with two counts of involuntary manslaughter. Upon his double challenge manslaughter prosecution was found ultimately barred the Illinois Supreme Court offense, because lesser for which he already stood convicted, required no proof beyond that which was neces- sary for conviction of the manslaughter charge. The Unit- Supreme Court, ed States while devoting most of their opinion whether, to an analysis within the scope of the double jeopardy protection, Vitale subjected would be to a prosecution offense, second for the same indicated that a valid claim of could rest upon that traffic conviction, particularly where the in proving State the man- slaughter charge would find it to necessary prove the failure to reduce speed for which Vitale had already been convicted.3 prosecution by municipality just and state. The Court indicated that, clearly in these appellant being cases to the extent the prosecuted by prosecuted the state for the "same offense” that he was municipal meaning for in the second implicitly concluding court—within of double law— prosecution clause; would violate the double thus municipal prosecution that the constituted a prosecution jeopardy purposes. for double This is relevant because municipal prosecution in those cases is similar to Pennsylvania. recog- The fact that the prosecutions municipal nized that these dy jeopar- court raised double very significant clearly support issues is position lends to the dissenting opinion. made in this majority similarly

3. The believes the citation of Vitaleis erroneous to because, support apparently, the thesis of this dissent in Illinois an right individual accused of traffic violations has a to choose whether a jury judge guilt only or a will determine his or innocence. The apparent difference between the of traffic violations in Pennsylvania Illinois and a is that in Illinois an accused individual has right jury fact-finding body Pennsylvania choose a as a where in then, effect, majority suggests the accused does not. The Pennsylvania legislature because right has not chosen to extend a jury something trial traffic which is not constitution- violations— Roberts, 468 U.S. Thigpen I the case believe position. this supports also 2916, 82 L.Ed.2d 23 S.Ct. Vitale, a situation case, to involved Thigpen similar The Pennsylvania a violation leaves ally required conviction of such —a prosecutor’s whim prosecutions the open resident without the to succesive jeopardy while Illinois protection clause of the double protection for the after a conviction residents are cloaked with same or similar offense exercise their if, Vitale, they choose not even as did majority fails to show right jury The to such a trial. than in Illinois is so different why or conviction a traffic jeopardy require extension of double Pennsylvania so as to the protections in justifying denial of such protections in Illinois but the Pennsylvania. certainly does right jury in Illinois The trial for traffic citations substantially potential penalty in that state is that the not indicate provision that greater Pennsylvania. Vitale was convicted of a than in jail day and in fact was sentenced than a 30 sentence allowed no more to as many Summary Pennsylvania are described only offenses in fine. $15 sentence, day jail and allowing § or less 18 Pa.C.S.A. those a 90 Nor accompanied hundreds of dollars. with fines of several are proceeding will be majority how the nature of the indicate does changed jury substantially by ability accused to elect a so majori- justice. fact-finding body judge district The than a rather Pennsylva- summary prosecutions in appears ty to contend that since implicate proceedings they do nia are not full-blown adversarial double response assertion one jeopardy protections. But in to this speed in Illinois are question for failure to reduce must whether trials Pennsylvania for substantially longer involved than trials in and more driving they full-blown advesarial trials so that constitute reckless which cannot be double offending principles of the repeated without where, so, true even as did jeopardy And if is this clause? Vitale, ability of an Illinois jury is waived? And does trial violations jury trial when accused of traffic resident to choose a subject residents to prosecutors to Illinois somehow allow Illinois embarrassment, they anxiety expense must be greater so that Pennsylvania residents while extended are free from such risk of embarrassment, expense simply anxiety and fact-finding to a they to make that decision as because body. do not have gives Court opinion no indication that the con- itself The Vitale jury trial in traffic had a choice sidered the fact that an individual protection or that the the accrual of double cases relevant to Illinois any significance involving judicial cases was of scheme traffic course, analysis. make our task Of it would in their double However, they exactly judicial scheme as ours. if Illinois had a easier do cannot, not, not, simply consider Supreme does and the Court exactly point present on required to a case volume of cases majority to move the every made instance. The distinction scope has not been of the decision Vitale present without the case treatment, enough justify nor to be material demonstrated so. upon should it be considered reflection where an violations, individual was cited for traffic includ- ing reckless driving, an accident which resulted in a death, and was convicted in Justice of the Peace Court. appealed Roberts the conviction which resulted in the grant- ing of a de novo trial. While the appeal was pending charged State Roberts with manslaughter upon based death which occurred in the same accident. Roberts was of manslaughter convicted and then sought corpus habeas relief. A magistrate recommended the writ issue based upon both double process grounds. due affirmed, Fifth Circuit relying on solely the double jeopardy twist, argument. a curious the United States Court affirmed upon process due argument though even that issue had not been raised on appeal. The found due process violated when the attempted State to raise the charges during of the pendency appeal. The reasoning for the holding was that the circumstances of the case raise a presumption retaliation or vindictiveness filing the manslaughter charges in response to the convicted’s exercising right a of appeal. Circuit, The Fifth in finding violation, the obviously dissuaded fact that the convictions were citations for traffic Nor, offenses. apparently, did the Supreme United States Court find this a fact of relevance in extending process due guarantees protection to a situation involving traffic result, convictions even where the like in a double jeopardy claim, was to or prevent prosecution invalidate a greater for charges from stemming the same criminal act.

I believe four United States Supreme Court decisions cited herein indicate that the majority’s position, that sum- convictions, traffic mary or non-traffic do not implicate or are otherwise excluded from constitutional protections of the jeopardy double clause is erroneous. clearly I thorough

Because believe a analysis of in a Taylor results conclusion that their way no affects the of constitutional validity protections or the appli- cability of the Fifth Amendment jeopardy double clause to convictions, traffic and in light of Superior precedent Court United States I precedent, respectfully cannot join the majority’s opinion or The disposition.4 to quash motion should granted have been and the order denying that relief should be reversed here. reasons, for the I

Consequently, above dissent. 4. majority does not discuss the issue of whether or not the contemplated prosecution endangerment for reckless would constitute prosecution a second for the "same offense” within the realm of going analysis law. Without into a full of that issue I my would note belief that it would. The Commonwealth seeks to impose liability upon appellant further criminal for the exact same act appellant already for which has stood trial and been convicted for. Ohio, 161, 2221, Upon authority of Brown v. 432 U.S. 97 S.Ct. (1977), particularly L.Ed.2d opinion, the sixth footnote to that Oklahoma, 2912, Harris v. 433 U.S. 97 S.Ct. 53 L.Ed.2d 1054 (1977) Vitale, and Illinois v. 447 U.S. 100 S.Ct. L.Ed.2d multiple prosecution I believe that of this fashion violates the double clause. say attempted This prosecution is not to for all these charges single single in a criminal or in a criminal adjudication, punishment imposed upon or that convictions for both driving endangerment reckless and reckless which were received in a single adjudication, necessarily criminal would violate the double See, Hunter, clause. Missouri v. 459 U.S. 103 S.Ct. However, having completed act, believe, alleged criminal I the double clause acts to subsequent attempt impose liability invalidate a further criminal subsequent proceeding especially for the same where, criminal act here, proof alleged necessarily require offense will reproving already prosecuted result in the crime for.

Case Details

Case Name: Commonwealth v. Evers

Court Name: Supreme Court of Pennsylvania

Date Published: Jan 25, 1989

Citation: 554 A.2d 531

Docket Number: 620

Court Abbreviation: Pa.