Commonwealth v. JacksonCommonwealth v. Jackson
This is аn appeal from an order finding that the attachment of double jeopardy prohibited the criminal prosecution of Kevin Michael Jackson (“Jackson”) for certain offenses which had previously served as the basis for a finding of indirect criminal contempt of an order grаnted under the Protection from Abuse Act (“PFA order”). Following our review, we affirm in part, reverse in part, and remand for further proceedings.
The facts underlying this appeal may be summarized as follows. On April 15, 2008, following a hearing, a PFA order was entered against Jackson. The order containеd the following relevant provisions:
1. [Jackson] shall not stalk, harass, threaten or attempt to use physical force that would reasonably be expected to cause bodily injury to [his wife (“Wife”) ] or any other protected person in any place where they might be found.
2. [Jackson] is completely evicted from [the marital residence] or any other residence where [Wife] or any other person protected under this order may live. Exclusive possession of the residence is granted to [Wife]. [Jackson] shall have no right or privilege to enter or be рresent on the premises of [Wife] or any other person protected under this order.
3. [Jackson] is prohibited from having ANY CONTACT with [Wife], either directly or indirectly, or any other person protected under this order, at any location, including but not limited to any contact at [Wife’s] or other protected party’s school, business, or place of employment.
4. Except as provided in paragraph 5 of this order [regarding custody of minor children], [Jackson] shall not contact [Wife], or any other person protected under this order, by telephone or by any other means, including through third persons.
PFA Order, 4/15/08, at 1-3 (emphasis in the original).
On January 13, 2009, Jackson entered the marital residence while Wife was
A hearing on the petition for indirect criminal contempt was held on January 29, 2009, at which time Jаckson admitted to violating the PFA order by entering the marital residence. N.T., 1/28/09, at 3. He was sentenced to 60 days to six months of incarceration.
A preliminary hearing on the criminal charges occurred on March 9, 2009. At that time, Trooper Barsotti withdrew all charges but burglary, criminal trespass and аssault. On Januaiy 11, 2010, Jackson presented the motion at issue. Following argument on the motion, the trial court granted Jackson’s request regarding the burglary and trespass charges, but denied his request as to the assault charge. The Commonwealth filed a timely appeal from this determination, 2 and Jackson then filed a cross-appeal.
The Cоmmonwealth presents the following issue for our review:
Did the [trial] court err in finding double jeopardy attached to prosecution of burglary and criminal trespass after a conviction for indirect criminal contempt for being on the premises protected under the [PFA order] where the alleged crimes were committed?
Appellant’s Brief at 3.
Jackson presents the following issue in his cross-appeal:
Did the [trial] court err in finding double jeopardy did not attach to prosecution of simple assault after a conviction for indirect criminal contempt for the same set of facts?
Appellee’s/Cross-Appellant’s Brief at 10. In essence, both parties raise the same question, which we phrase as follows: whether double jeopardy attaches so as to prohibit the criminal prosecution of any of the offenses charged, which arose from the same incident that was the basis for the finding of indirect criminal contempt for violation of a PFA order. 3
“The Double Jeopardy Clause, applicable to the States through the Fourteenth Amendment, provides that no person shall ‘be subject for the same offense to be twice put in jeopardy of life or
“To determine whether a defendant’s protection against multiple punishments for the same offense has been violated, this Commonwealth applies the test set forth in
Blockburger v. U.S.,
In both the multiple punishment and multiple prosecution contexts, this Cоurt has concluded that where the two offenses for which the defendant is punished or tried cannot survive the “same-elements” test, the double jeopardy bar applies. The same-elements test, sometimes referred to as the “Blockburger” test, inquires whether each offense contains an еlement not contained in the other; if not, they are the “same of-fence” and double jeopardy bars additional punishment and successive prosecution.
United States v. Dixon,
We note that “the ‘same-elements’ test of
Blockburger
has long been followed in this Commonwealth” and its application “requires a comparison of the elements of the offenses to determine whether each offense requires proof of a fact which the other does not.”
Commonwealth v. Caufman,
For example, in
Decker,
a wife obtained a PFA order against her husband (“Decker”) on her behalf and the behalf of her two children. The PFA order provided that Decker was “enjoined from physically abusing the plaintiff ... and her minor children, or from placing them in fear of abuse,” and “ordered to refrain from harassing the plaintiff or her minor children.”
Decker,
[Decker] was ordered by the PFA to abstain from abusing his wife. The Pennsylvania Protection From Abuse Act defines abuse as “[attempting to cause or intentionally, knowingly or recklessly causing bodily injury ...”23 Pa.C.S.A. § 6102 . In the indirect criminal contempt proceeding, the court found that [Decker] willfully disobeyed the PFA order by abusing his wife. [Decker] was later found guilty of simple assault based upon the same conduct.Section 2701(a)(1) of the crimes code states that a person is guilty of assault if he “attempts to cause or intentionally, knowingly or reсklessly causes bodily injury to another.” The two statutes contain identical language. Under the “same elements” Blockburger test, the criminal contempt offense contains one element that the simple assault does not — willful disobedience of the PFA order; but, the offense of simple assault, under thе facts of this case, does not contain any elements not included in the criminal contempt offense. Because simple assault is a lesser-included offense of the criminal contempt, the subsequent prosecution is barred by the Double Jeopardy Clause.
Id. at 1031.
Returning to the cаse presently before us, we first note the requirements for a finding of indirect criminal contempt:
Where a PFA order is involved, an indirect criminal contempt charge is designed to seek punishment for violation of the protective order.... To establish indirect criminal contempt, the Commonwealth must prove: 1) the Order was sufficiently definite, clear, and specific to the contemnor as to leave no doubt of the conduct prohibited; 2) the contemnor had notice of the Order; 3) the act constituting the violation must have been volitional; and 4) the contem-nor must have acted with wrongful intent.
Commonwealth v. Brumbaugh,
Jackson was found to have violated the PFA order because he entered the marital residence. Therefore, in order to establish indirect criminal contempt, the Commonwealth was required to prove that the PFA order was sufficiently specific so as to make clear to Jackson that he was prohibited from being present at the marital residence; that Jackson had notice of the PFA order; and that he was knowingly and willfully present at the marital residence despite the terms of the PFA order; and that he entered the marital rеsidence with wrongful intent.
Turning to the crimes at issue, Jackson was charged with criminal trespass under
Considering the burglary charge, our law provides that “a person is guilty of burglary if he enters a building or occu
Finally, we consider the assault charge. Jackson was charged with assault under Section 2701(a)(3) of the Crimes Code, which provides that “[a] person is guilty of assault if he [] attempts by physical menace to put another in fear of imminent serious bodily injury.”
Thus, we conclude that the trial court did not err in dismissing the trespass charge and refusing to dismiss the assault charge, but that it did err in dismissing the burglary сharge against Jackson. Accordingly, we affirm the portions of the trial court’s order granting his motion to dismiss the trespass charge and denying Jackson’s motion to dismiss the assault charge, reverse the portion of the trial court’s order granting Jackson’s motion to dismiss the burglary charge, and remаnd to the trial court for further proceedings. 4
Order reversed in part and affirmed in part. Case remanded for further proceedings. Jurisdiction relinquished.
Notes
. There are no facts of record that would provide any detail as to the circumstances surrounding Jackson's entry into the martial residеnce. At the inception of the indirect criminal contempt hearing, Jackson admitted violating the PFA order by entering the martial residence on this date, and then the trial court proceeded to sentencing. No testimony was taken, nor was a stipulation of facts read into the record, as to the circumstances surrounding Jackson’s violation of the PFA order.
. It is clear that the order from which this appeal has been taken is not a final order pursuant to
."An appeal grounded in double jeopardy raises a question of constitutional law. This court's scоpe of review in making a determination on a question of law is, as always, plenary."
Commonwealth v. Mattis,
. Jackson also raises issues regarding the Constitution of the Commonwealth of Pennsylvania and the doctrine of collateral estop-pel.
See
Appellee/Cross-Appellant's Brief at 15-16. However, these issues were not in-eluded in his 1925(b) statement. Accordingly, they are waived for purposes of appeal.
See Commonwealth v. Nobles,