Commonwealth v. KeenanCommonwealth v. Keenan
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Appellant, John F. Keenan, challenges a ruling of the lower court denying his motion for dismissal of all charges based upon principles of double jeopardy.
1
Appellant was charged with eight counts of altered, forged, counterfeit documents,
BACKGROUND
The origin of this action was a presentment dated March 24, 1983 by the Pennsylvania Multi-County Investigating Grand Jury which recommended to the court, the Honorable John C. Dowling, Supervising Judge, that appellant be charged with forgery,
Prior to Judge Dowling’s denial of the motion to dismiss, appellant had petitioned our Supreme Court for a writ of mandamus and/or prohibition. This petition was denied on December 1, 1983.
The case in Dauphin County came to trial on May 17, 1984 and was presided over by Judge Dowling sitting with a jury. Appellant was found guilty by the jury of violating
Neither appellant nor the Commonwealth appealed from Judge Dowling’s order for a new trial.
PHILADELPHIA CHARGES
On January 18, 1985 the Commonwealth filed a complaint against appellant in Philadelphia County charging him with violation of eight counts of
The Commonwealth appealed to common pleas court. Upon further briefing, the Honorable Ned L. Hirsh reversed the dismissal and remanded the case to Municipal Court for trial. Notice of appeal to this court of Judge Hirsh’s order was filed on January 13, 1986. 3
Judge Hirsh, in an opinion filed on August 4, 1986, found that double jeopardy principles did not bar trial in Philadelphia County since appellant had not been placed in jeopardy by the Dauphin County proceedings as the court lacked jurisdiction. Judge Hirsh relied upon
APPLICABILITY OF
The lower court and the Commonwealth on appeal rely upon
Former prosecution before court lacking jurisdiction or when fraudulently procured by the defendant.
A prosecution is not a bar within the meaning of section 109 of this title (relating to when prosecution barred by former prosecution for some offense) through Section 111 of this title (relating to when prosecution barred by former prosecution in another jurisdiction) under any of the following circumstances:
(1) The former prosecution was before a court which lacked jurisdiction over the defendant or the offense.
(2) The former prosecution was procured by the defendant without the knowledge of the appropriate prosecuting officer and with the purpose of avoiding the sentence which might otherwise be imposed.
(3) The former prosecution resulted in a judgment of conviction which was held invalid in a subsequent proceeding on a writ of habeas corpus, coram nobis or similar process.
By its terms, this section relates only to former prosecutions covered by
When prosecution barred by former prosecution for the same offense.
When a prosecution is for a violation of the same provision of the statutes and is based upon the same facts as a former prosecution, it is barred by such former prosecution under the following circumstances:
(1) The former prosecution resulted in an acquittal. There is an acquittal if the prosecution resulted in a finding of not guilty by the trier of fact or in a determination that there was insufficient evidence to warrant a conviction. A finding of guilty of a lesser included offense is an acquittal of the greater inclusive offense, although the conviction is subsequently set aside.
(2) The former prosecution was terminated, after the indictment had been found, by a final order or judgment for the defendant, which has not been set aside, reversed, or vacated and which necessarily required a determination inconsistent with a fact or a legal proposition that must be established for conviction of the offense.
(3) The former prosecution resulted in a conviction. There is a conviction if the prosecution resulted in a judgment of conviction which has not been reversed or vacated, a verdict of guilty which has not been set aside and which is capable of supporting a judgment, or a plea of guilty accepted by the court. In the latter two cases failure to enter judgment must be for a reason other than a motion of the defendant.
(4) The former prosecution was improperly terminated after the first witness was sworn but before a verdict, or after a plea of guilty was accepted by the court.
Paragraph 1 relates to an acquittal, i.e., a not guilty verdict by the trier of fact or a determination of insufficient
The second paragraph relates to a terminated prosecution. The trial in Dauphin County proceeded through to verdict, and, therefore, the prosecution was not terminated. Further, the post verdict order granting a new trial did not necessarily require a “determination inconsistent with a fact or legal proposition that must be established for conviction of the offense.” Judge Dowling’s determination that the court lacked subject matter jurisdiction was a finding independent of the specific elements of the crimes with which appellant was charged. Therefore, paragraph 2 does not apply to this case.
Paragraph 3 concerns a conviction in the former prosecution. No conviction within the meaning of this provision resulted from the Dauphin County proceedings since Judge Dowling granted a new trial.
Paragraph 4 refers to improperly terminated prosecution, a circumstance which is not applicable to the instant case.
In summary, none of the four outcomes of a former prosecution which would bar retrial specified in
Finding that
DOUBLE JEOPARDY PROVISIONS
Since we find that Sections 109-112 of the Crimes Code do not apply to the situation raised by this case, we must
We employ a unitary analysis of the state and federal double jeopardy clauses since the protections afforded by each constitution are identical. Commonwealth v. Sojourner, 513 Pa. 36, 45 n. 6, 518 A.2d 1145, 1149 n. 6 (1986); Commonwealth v. Simons, 342 Pa.Super. 281, 286, 492 A.2d 1119, 1122 (1985), citing Commonwealth v. Hude, 492 Pa. 600, 425 A.2d 313 (1980); Commonwealth v. Gravely, 486 Pa. 194, 404 A.2d 1296 (1979); Commonwealth v. Beaver, 317 Pa.Super. 88, 463 A.2d 1097 (1983).
The protections afforded by double jeopardy are generally recognized to fall within three categories — (1) protection against a second prosecution for the same offense after an acquittal; (2) protection against a second prosecution for the same offense after conviction; and (3) protection against multiple punishments for the same offense. Commonwealth v. Frisbie, 506 Pa. 461, 485 A.2d 1098, 1100 (1984) citing Commonwealth v. Tarver, 493 Pa. 320, 426 A.2d 569 (1981).
A preliminary question is whether jeopardy attaches where the court which conducted the first prosecution did not have jurisdiction over the matter. The issue is if there is no jeopardy as a result of the first trial, is there a prohibition against a second trial before a tribunal which does have subject matter jurisdiction. 4
In a concurring opinion, Judge Hoffman cautioned that the rule allowing reprosecution where the first court did not have jurisdiction should not be applied to allow the Commonwealth “. . . to harass a defendant by multiple prosecutions in courts lacking jurisdiction____ In the instant case, there is no evidence that the Commonwealth wrongfully attempted to subject appellant to trial in a court not having jurisdiction of the offense charged.” Id., 222 Pa.Superior Ct. at 384 n. 4, 294 A.2d at 925 n. 4 (Hoffman, J., concurring.)
This qualification would essentially incorporate into the jurisdictional analysis the intentional prosecutorial misconduct exception applicable to instances where the prior prosecution ended in a mistrial. 5
Appellant urges us to find that such an exception is necessary to prevent abuse by the Commonwealth through successive prosecutions in counties in which it knows, or has reason to know, jurisdiction does not lie. The anxiety, insecurity, and financial burdens which successive trials cause an accused are not concerns to be lightly dismissed.
We would agree that where there is evidence of the Commonwealth’s intentionally trying a defendant in a court which it knows or should know does not have jurisdiction, a subsequent prosecution is impermissible on the basis of the
The instant case presents a close question regarding the intent of the Commonwealth in bringing the appellant to trial in Dauphin County. We reject the facile argument of the Commonwealth on appeal that it bore no responsibility for the location of the trial as it was the supervising judge, Judge Dowling, who chose the locus of trial. While true as far as it goes, this argument ignores the fact that the Commonwealth opposed at every juncture the efforts of appellant to avoid trial in Dauphin county on the basis of lack of jurisdiction — a legal determination the Commonwealth now embraces with the certainty of Job. Without the vigorous advocacy of the Commonwealth urging him to retain jurisdiction, Judge Dowling may well have determined Dauphin County lacked jurisdiction before appellant stood trial and was adjudged guilty by the jury.
Nonetheless, evidence of the Commonwealth’s intentionally trying appellant in a forum which it knew or should have known did not have jurisdiction is not in the record before us. It was a matter of legal interpretation whether Dauphin County had jurisdiction to try a case involving defrau-dation of a Commonwealth agency. Although the Commonwealth now accepts Judge Dowling’s unappealed ruling that there was no jurisdiction in Dauphin County, we are presented no evidence showing that the Commonwealth intended ab initio to engage in a prosecution which it knew would result in an outcome favorable to the defense.
It provides appellant little comfort to have his position on the jurisdiction of the Court of Common Pleas of Dauphin County accepted by both that court and the Commonwealth after his being tried in that forum. However, “The societal interest in the avoidance of improper acquittals and in the
Accordingly, order of the court below is affirmed.
Notes
. By separate order, we allow amendment of the caption to exclude DeShields and Nicholas as appellants. Hereafter, use of term “appellant” refers to Keenan only.
. The Multi-County Investigating Grand Jury in a separate presentment recommended similar charges against six other persons, five of whom became co-defendants of appellant. Ultimately appellant, War-del J. DeShields, and James Nicholas were tried together in Dauphin County.
. The appeal of the dismissal of a double jeopardy claim may be taken on an interlocutory basis where the claim is not frivolous. Commonwealth v. Brady, 510 Pa. 336, 508 A.2d 286 (1986). Absent a written finding of the lower court that the double jeopardy claim is frivolous, the court has jurisdiction over an immediate appeal, prior to the commencement of a second trial. Id., 510 Pa. at 346, 508 A.2d at 291. Since the lower court did not make a written finding that the claim was frivolous, we exercise jurisdiction over the appeal.
The lower court specifically stated it considered the pre-trial appeal of its double jeopardy ruling to be permitted. Further, since its opinion was filed over three months after the filing of Brady, the lower court had the benefit of that decision and could have made the finding of frivolousness if it had deemed it appropriate. For these reasons, we proceed on the basis that the appeal is not frivolous, and no remand is required. Cf. Commonwealth v. Learn, 356 P.Super. 382, 514 A.2d 910 (1986) (remand required in order to afford trial court opportunity to make factual determination on frivolousness.)
. In its brief, the Commonwealth directs us to Commonwealth v. Diaz, 235 Pa.Super. 352, 340 A.2d 559 (1975) for the proposition that jeopardy does not attach where a court lacks jurisdiction. The Commonwealth has failed to note the decision reversing Diaz, at 477 Pa. 122, 383 A.2d 852 (1978).
. See Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982); Commonwealth v. Simons, 514 Pa. 10, 522 A.2d 537 (1987).