COMMONWEALTH оf Pennsylvania, Appellant, v. Alvie Donald McCANE, Appellee.
Supreme Court of Pennsylvania.
March 4, 1988
Reargument Denied April 5, 1988.
539 A.2d 340
Argued Dec. 10, 1987.
Michael J. Krushinski, Scranton, for appellee.
Before NIX, C.J., and LARSEN, FLAHERTY, MCDERMOTT, ZAPPALA and PAPADAKOS, JJ.
LARSEN, Justice.
The issue involved in this appeal is whether the Commonwealth may reprosecute the appellee, Alvie Donald McCane, for homicide by vehicle while driving under the influence following a mistrial on that charge, after a jury found appellee guilty of the offense of driving under the influence but was unable to reach a verdict on the charge of homicide by vehicle while driving under the influence. The trial court held that a retrial of appellee is barred by
The appellee, Alvie Donald McCane, was arrested and charged with violating
When the Commonwealth scheduled a retrial of the appellee on the charge on which the jury was deadlocked, the appellee moved to quash the indictment and dismiss the charge. In his motion for dismissal the appellee argued that reprosecution was barred by
The Commonwealth, in bringing this appeal, argues that retrial of the appellee on the charge of homicide by vehicle while driving under the influence is not barred by
(d) If there are two or more counts in the information or indictment, the jury may report a verdict or verdicts with respect to those counts upon which it has agreed, and the judge shall receive and record all such verdicts. If the jury cannot agree with respect to all the counts in the information оr indictment if those counts to which it has agreed operate as an acquittal of lesser or greater included offenses to which they cannot agree, these latter counts shall be dismissed. When the counts in the information or indictment upon which the jury cannot agree are not included offenses of the counts in the information or indictment upon which it has agreed, the defendant or defendants may be retried on thоse counts in the information or indictment.
For purposes of the issue raised in this case, the pivotal language of
Homicide by vehicle while driving under the influence is defined as follows:
—Any person who unintentionally causes the death of another person as the direct result of a violation of section 3731 (relating to driving under influence of alcohol or controlled substance) and who is convicted of violating section 3731 is guilty of a felony of the third degree when the violation is the cause of death and the sentencing court shall order the person to serve a minimum term of imprisonment of not less than three years.
In Commonwealth v. Pounds, 281 Pa.Super 19, 421 A.2d 1126 (1980), the Superior Court considered a question similar to that raised in this case. In Pounds, the defendant was found guilty by a judge of the summary offense of driving to the left of center. A jury found him guilty of driving under the influence of alcohol. The jury was unable to reach a verdict on the charge of homicide by vehicle (
The appellee argues that Pounds can be distinguished from the instant case because there, Judge Van der Voort concluded that since a conviction of homicide by vehicle, “while implying guilt as to some violation of the motor vehicle rules, does not imply a finding of guilt as to any particular offense. The offenses [driving to the left of center and driving under the influence] are not, therefore, ‘included offenses’ for double jeopardy purposes.” Id. By contrast, in the present case, the appellee contends that a finding of guilty of homicide by vehicle while driving under the influence, by definition, implies a violation of
Any person who unintentionally causes the death of another person while engaged in the violation of any law of this Commonwealth or municipal ordinance applying to the operation or use of a vehicle or to the regulation of traffic еxcept section 3731 (relating to driving under influence of alcohol or controlled substance) is guilty of homicide by vehicle, a misdemeanor of the first degree, when the violation is the cause of death.
As amended 1982, Dec. 15, P.L. 1268, No. 289 § 10, effective in 30 days.
Prior to trial in the Vincent case, the Commonwealth specified in a bill of particulars the two underlying traffic violations. (Reckless driving and failing to drive on the right side of the road.) Thus, the Commonwealth could only establish defendant‘s guilt of homicide by vehicle by first establishing his guilt of the underlying specified motor vehicle offenses. The defendant there argued that because they were specifically enumerated, the underlying offenses were included offenses for double jeopardy purposes under the United States Supreme Court decisions in Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977) and Illinois v. Vitale, 447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980). The Superior Court rejected defendant‘s argument pointing out that both Brown v. Ohio, supra and Illinois v. Vitale, supra. dealt with “successive prosecutions” and did not apply to a retrial following a mistrial caused by a hung jury. The Superior Court rejected the double jeopardy claim asserted by defendant and held that even if the traffic violations of which the defendant was found guilty are lesser included offenses of the vehicular
We agree with the rationale of Vincent and hold that the provisions of
Sections (c), (d) and (e) serve only to codify the procedure where conviction or acquittal of one offense operates as a bar to a later trial on a necessarily included offense.
The purpose of
The Commonwealth next argues that the reprosecution of the appellee on the charge of homicide by vehicle while driving under the influence is not barred by
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.
Traditionally, the test used to determine when one offense is included in another is whether the greater offense necessarily involves the lesser. See Commonwealth ex rel. Moszczynski v. Ashe, 343 Pa. 102, 21 A.2d 920 (1941). This is the same test that we have applied in cases involving questions of merger.3 For example, robbery involves larceny and murder involves assault and battery. In each instance they are included offenses. A conviction of robbery necessarily includes larceny. Id. Similarly, a conviction of murder necessarily involves assault and battery. Id.
In the instant case, driving under the influence of alcohol or a controlled substance is a part of the statutory definition of the offense of homicide by vehicle while driving under the influence. The statute requires that an accused be convicted of driving under the influence before he сan be found guilty of violating
Furthermore, the two separate and distinct crimes of driving under the influence and, homicide by vehicle while driving under the influence, seek to protect two different interests. Driving under the influence is a victimless crime which aims to keep our roads and highways clear of the risks and dangers posed by intoxicated drivers. Homicide by vehicle while driving under the influence is a crime with a specific victim or victims which seeks to protect the distinct and particular life interest of such victims. See Commonwealth v. Rhodes, 510 Pa. 537, 510 A.2d 1217 (1986). (The doctrine of lesser included offenses does not prohibit the conviction and sentence for both rape and statutory rape arising from a single act of sexual intercourse.) Also see Commonwealth v. Sayko, 511 Pa. 610, 515 A.2d 894 (1986).
Finally, the Commonwealth argues that the prohibition against double jeopardy as contained in the Pennsylvania Constitution and the United States Constitution does not prohibit reprosecution of the appellee.4 The prohibition against double jeopardy protects against a second prosecution for the same offense after acquittal; a second prosecution for the same offense after conviction; and multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). Generally, mistrial because of the inability of the jury to reach a verdict does not fall within these protections and, therefore, is not a bar to reprosecution. See Common-
...
“The double-jeopardy provision of the Fifth Amendment ... does not mean that every time a defendant is put to trial before a competent tribunal he is entitled to gо free if the trial fails to end in a final judgment. Such a rule would create an insuperable obstacle to the administration of justice in many cases in which there is no semblance of the type of oppressive practices at which the double-jeopardy prohibition is aimed. There may be unforeseeable circumstances that arise during a trial making its completion impossible, such as the failure of a jury tо agree on a verdict. In such event the purpose of law to protect society from those guilty of crimes frequently would be frustrated by denying courts power to put the defendant to trial again. ... What has been said is enough to show that a defendant‘s valued right to have his trial completed by a particular tribunal must in some instances be subordinated to the public‘s interest in fair trials designed to end in just judgments.”5
Richardson v. United States, 468 U.S. 317, 104 S.Ct. 3081, 3085-86, 82 L.Ed.2d 242, (1984) citing Wade v. Hunter, 336 U.S. 684, 69 S.Ct. 834, 93 L.Ed. 974 (1949).
In this case the jury was unable to agree on a verdict on the charge of homicide by vehicle while driving under the influence. The jury‘s failure to reach a verdict on this count is not an event that terminates jeopardy.6 Richard-
The order of the Superior Court is reversed and the case is remanded to the Court of Common Pleas of Lackawanna County for proceedings consistent with this opinion.
NIX, C.J., filed a concurring opinion.
NIX, Chief Justice, concurring.
I agree with the majority‘s resolution of the
The Court of Common Pleas of Lackawanna County dismissed the charge against appellee for homicide by vehicle while driving under the influence,
Initially I reject the convoluted analysis employed by the majority in concluding that a violation of
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) ... A finding of guilty of a lesser included offense is an acquittal of the greater inclusive offense, although the conviction is subsequently set aside.
Appellee contends that, read together, these provisions require the dismissal of the charge for viоlation of
At this time I would forego the constitutional discussion indulged in by the majority. It has long been the jurisprudence of this Commonwealth to limit our consideration to those issues properly before the court. Since the lower court resolved only thе procedural issue and did not reach the double jeopardy challenge, I would reverse this case on
Notes
At the time of traffic death involved in Pounds,
Any person who unintentionally causes the death of another person while engaged in the violation of any law of this Commonwealth or municipal ordinance applying to the operation or use of a vehicle or to the regulation of traffic is guilty of homicide by vehicle, a misdemeanor of the first degree, when the violation is the cause of death.
1976, June 17, P.L. 162, No. 81, § 1, eff. July 1, 1977.
Subsequent to Pounds,
“... No persоn shall, for the same offense, be twice put in jeopardy of life or limb...”
The
“... nor shall any person be subject for the same offense to be twice in jeopardy of life or limb...”