*1 notified defendant’s counsel and thereafter chiatrists, Our insanity. defendant would plead that Court the Com- examination upon Court decides now of defendant’s presence monwealth’s psychiatrist any does not ques- defendant have to answer counsel, him, incriminate tend to any way tions which would This whatsoever. any or indeed information divulge Common- impossible makes ruling virtually it psychia- defendant’s testimony to rebut wealth de- to examine and trists, permitted question who else absolutely anything fendant about his feelings makes impossible desired—and hence they virtually or psychiatrist expert Commonwealth’s insanity defendant’s testify sanity witnesses about he at the time committed the murder. per- Court of the United States has Supreme a defendant the witness held that who takes
tinently Fifth privilege against his Amendment stand waives States, Brown v. United self-incrimination. v. United 304. ; Fitzpatrick U.S. (1958) far stronger
These Commonweаlth cases herein, ease the issue than the instant involved enunciated in Brown principles Fitzpatrick and the instant case re- require control undoubtedly Court’s decision. of the lower versal J I believe very from one- dissent what very unrealistic and un- very very sided and unfair decision. justifiable Appellant. v. Mills,
Commonwealth *2 C. J., Argued April 1971. Before Bell, Jones, Pomeroy JJ. Eagen, O’Brien, Barbieri, Michael L. Assistant with Levy, Defender, him John Packel, W. Assistant and Vincent J. Defender, Ziccardi, Defender, appellant.
Mark Sendrow, Assistant District Attorney, him Milton M. Stein, Assistant District James Attorney, D. Crawford, District Richard A. Deputy Attorney, First Sprague, Assistant District Attorney, and Arlen *3 District for Specter, Attorney, Commonwealth, appel- lee. by
Opinion December 1971: 31, Mr. Justice Eagen, The sole question presented wheth- appeal is er or not a person may convicted and punished the courts of Pennsylvania if he has been previously convicted and in a federal court for punished the iden- tical unlawful conduct. Bonald appellant, Edward was arrested Mills, for
with an of accomplice a robbery in federally Loan sured and Association in Savings Philadelphia. They were indicted of Commonwealth Pennsyl violations state’s criminal vania code, specifi a concealed carrying cally, deadly weapon, unlawfully a firearm without a license and carrying aggravated also indicted They robbery.1 United States 1939, 1 24, 872, (e) L. 704, P. §§628 of June and Act 18 P.S. §§4628(e) 4704.
166 §2113(a) (b) 18 U.S.C. violating
Government a bank and assault. i.e., robbery (d), federal to the On Mills May 16, 1969, plead guilty of five years to term indictment was sentenced a he a motion filed Subsequently, imprisonment. there pending court the indictments state dismiss him on further prosecution against ground motion was constitute double This jeopardy. would he to these indictments and denied. Later, guilty plead a the costs prose one to pay fine, was sentenced years and serve a term five probation cution at the of the sentence expiration imposed begin On he was sen indictment, court. federal three-year probation. tenced to a concurrent period which an in the Superior Court,2 Mills filed appeal orders of the trial court. affirmed the subsequently 217 Pa. See dissenting filed a opinion. Judge Hoffman A. 2d 322 We 269, granted Ct. 269 Supеrior allocatur. the United situation,
In an almost
factual
identical
Illinois,
in Bartkus v.
Court
Supreme
States
ruled that suc-
S. Ct.
(1959), specifically
courts do not
state
prosecutions
cessive
the United States
double
jeopardy,
constitute
a
and con-
does not proscribe
Constitution
been
there has
state
viction
in the federal courts for
and conviction
day
On the same
in Abbate v. United
act.
the same
S. Ct. 666
sanction
U.S.
*4
and
in the federal
to a
conviction
was given
and conviction had been ef-
a prosecution
courts
on the same facts. Both
in a state
fected
of
“dual sovereignty”
cited
enun-
principle
decisions
2
probation
placing
criminal
a
defendant on
is
an order
While
sentence,
appealable
an
judgment
is
order. Common-
192,
(1967).
Vivian,
167 43 S. U.S. Lanza, 377, in v. 260 dated United States the court stated: Ct. 141 wherein (1922), deriving power here sovereignties, “We have twо dealing from sources, capable different . . . territory. matter within the same subject same of- be an what shall determining Each government its own and dignity exercising fense its against peace other. not that sovereignty, as a crime by “It that an act denounced follows both national and is an offense sovereignties state of both and be pun- and against peace dignity may ished each.” from the correctness challenging ruling
Aside
in Lаnza
more
contends that
appellant
Bartkus3
recent decisions
Elkins v. United
specifically
364 U.S.
“the jurisdictions attempting prosecuting own pur- of the other its efforts whereas the case of successive poses, prosecutions, accordance of the dual sover- with the basic assumption jurisdiction may eignties doctrine, prosecuting L. Rev., of the other.” Harvard acting independently 80 at 1548. supra, further that if the situation
Appellant
urges
viewеd
successive
realistically,
prosecutions
act
Ben
do constitute double
and since
jeopardy
ton v.
89
Ct. 2056
Maryland,
784,
(1969),
S.
At
are no
least
longer constitutionally
permissible.
one
See
jurisdiction has reached this same conclusion.
Fletcher,
State v.
22 Ohio
N.E. 2d 146
2d
259
App.
with the thinking
as to
we
(1970). However,
this,
agree
for the
Judge Cercone,
as expressed
opinion
that
namely,
Superior Court,
posi
tion fails to
the real foundation of suсcessive
recognize
and federal
i.e.,
state
prosecutions
governments,
dual
and that the Bartkus
sovereignty
decision “clearly
it was the Court’s
reveals
successive
opinion
state and federal
could not be construed
prosecutions
. . .” 217 Pa.
as double
Ct. 273.
jeopardy.
Superior
Benton did not specifically
Bwrtkus,
overrule
Moreover,
Florida,
and in
v.
169 Bartkus is still the concluded that have of the problem, F. Ward, v. States For see United example, law. v. United Whatley La. 1970); Supp. (E.D. v. ex rel. Cullen States 1970); 2d Cir. (5th 428 F. 2d 175 (1970). 2d 173 N.W. Ceci, Wis. *6 the is still conclude that Bmtkus while we However, the law and that successive prosecutions not consti- offense do for the same state governments that are not persuaded double we jeopardy, tute to stand case should permitted orders the instant for reаsons. following doctrine sovereignty” one examines the “dual
When we clause, double jeopardy to the applies we whereby balancing process, really involved one on side sovereigns the interests the two place other side we place judicial scale, from being be free twice of the individual to interest The for the same offense. and punished prosecuted first Bmtkus is that the majority with basic problem of the two sover- the interests to recognize failed more sec- important, they be the but same, eigns might in- examine the interest failed to really ondly dividual. clause breaks down into three double jeopardy
The trial or a a second second rules which preclude general offense: retrial for the (1) for the same punishment retrial for the acquittal; (2) after same offense conviction; (3) multiple punishment offense one trial. The judiciary offense at views these the same moral self-evident It precepts: as expressions rules man a crime of which he pre- to retry wrong innocent, found wrong been harass him has viously wrong him punish prosecution, vexatious The offense. policies which for the same under- twice should be guilt are first, established lie the prohibition of a crime to the elements satisfaction by proving oh increased of a single jury, capitalizing from prose- resulting repeated of conviction probability the authorities second, cutions before many juries; sentence for an agreeable should not be able to search offense for the same successive by bringing prosecutions trial should criminal third, before different juries; individuals. badgering an instrument not become 75 Yale Twice in Jeopardy, Comment, See generally, Statutory Imple- Comment, L. J. 265-67 (1966); for a Life Clauses: New оf Double Jeopardy mentation Yale L.J. 339, Guarantee, Moribund Constitutional 880-41 rules of the aforementioned feature striking individual; on the focus is always is that the
and policies fea- This fundamental rights. on a basic and person’s of the runs across all is the common thread ture this is and we believe Bill of Rights, provisions failed to adequately Court Supreme the element *7 in Bwrtkus. consider in once his
Mr. Justice Frankfurter, of the individ- to interest BwrtJms refers in opinion of the interests on the fоcused consistently he ual, for the purposes and, Federal and State governments, one act into two. transformed of double jeopardy, fo- dissent, however, in his Mr. Justice late Black little it makes out points on the individual cusing the case, who is prosecuting a defendant to difference and possi- double prosecution is there is fact simple about the two are talking We double punishment. bly when we interests, really their protеcting governments since focus- individual, about the talking should it matters little where see that we individual on the ing or state fact is prison—the confined—in he is for the same of- twice away taken is liberty his fense. justifica- to us that the only penological
It appears and punish- tion. for a second permitting sover- for the same even where different ment offense and we out punishment, are involved out and eigns is history date in that at late cеrtainly hope this Common- development system penal for criminal wealth and the that incarceration Nation, eye. for an act eye stands than—an stronger footing will We double can assume that normally prosecutions felonies and when homicides, dealing involve less than for goal imprisonment such felonies the primary In view, plac- be reform must and rehabilitation. our he had been after ing an individual in a state prison offense is incarcerated a federal the same prison and re- not in aid his reformation any way going of im- If habilitation. second term anything, criminal, he will be more of an prisonment, acomplished and he will also be much more embittered against every- our for, against stands as well thing government we defeated our thus, really have society general; own purpose.
There are considerations which militate valid the second аgainst permitting punish- It ment the same offense: (1) derogation that “no one should be vexed twice principle one and the same It cause”; (2) destroys finality from standpoint gov- the individual’s permits ernments with all their resources and to make power thus convict, repeated attempts subjecting ac- state of a continuous anxiety, cused to live insecurity *8 harassment. and possible careful consideration to all factors
Aftеr in- giving that henceforth we now rule, volved, Pennsylvania, of imposition punishment a second be will not unless permitted offense it appears the same of interests that the the record from the Commonwealth of and the Pennsylvania jurisdiction initially which are prosecuted imposed substantially punishment different.5 In in words, if it that appears of terests this Commonwealth not sufficiently pro in the tected initial a then second prosecution, рrosecu tion and in Penn imposition additional punishment in sylvania will allowed. Since record in the stant case fails to manifest that of Penn interests were not sylvania fully protected by initial prose cution the federal the convictions and courts, punish ment cannot stand.6 imposed
The order of the and the Superior Court orders court of are vacated. original Mr. Justice Roberts took no in the part considera- tion decision of this case.
Concurring Opinion Pomeroy: Mr. Justice I concur in the result opin- suggested ion.
I agree Illinois, that Bartkus v. L. 121, Ed. 2d 684 continues to stand valid author for the that the ity proposition federal double jeopardy no on proscription constitutional places restriction criminal state initiated subsequent conviction in a United States court of- significant interesting In this connection fol- lowing supra, in Abbate v. the decision United the United Dеpartment policy through Justice States issued a statement Attorney Rogers, stating power P. General William prosecute a under both defendant state and federal law “has been Department sparingly past” Justice used and will compelling”. be done the future “unless the reasons Release, Times, April 1969, page 1, 4, York Press New column page column 1. placing probation An order a criminal defendant constitutes “punishment” Vivian, supra, v. this context. Commonwealth n. 2 at 200. *9 In
fense. in field vexing multiple prosecutions our federal the effect of BartJms system, was leave a state in the free, words Mr. Justice Frankfurter, “to a rational develop of criminal just law body in the protection its citizens” inter without ference. at Bupra, 138-139. Thus a state pp. may prop erly determine that prosecution an offense by previously prosecuted under federal law is a procedure to be used and then sparingly, within a only limited I context.1 am satisfied that the time come for has Pennsylvania to take such a position.
I do not minimize the in difficulties articulating standards by which prosecuting trial attorneys judges should be governed determining when sec ond prosecution will be or instituted permitted. These problems are out in the spelled both cases and the liter ature on the subject. While the interest analysis ap prоach recommended in the court’s opinion has merit I abstract, it will, fear, prove difficult appli I cation. think more specific guidelines should be if not established, by then statute, judicial decision. A commendable effort to set forth such guidelines was made the American Law Institute in its Model Penal Code, (Proposed Official §1.10 Draft, 1962), In quoted the margin.2 view my these or standards, opinion observes, As the in BartJcus a number of states have prosеcution statutes which bar a second if the defendant has been government once tried another for a similar offense. 1.10. Former “Section Prosecution in Another Jurisdiction: When a Bar. conduct constitutes an “When offense within the concurrent
jurisdiction of this State and of the United States or another any State, prosecution in such other is a bar to the subsequent following this State under circum- stances : “(1) acquittal The first resulted in an in a 1.08 subsеquent defined Section prosecu- as conviction former of a as to the effect
some similar statement This sec- in Pennsylvania. merit adoption prosecution, as verbatim, has been practically tion incorporated, Crimes Pennsylvania 111 of a new Section proposed Assembly (Senate in the General Code now pending Bill No. amended 1971—Printer’s November *10 of Bill were now the If this section 1379). No. undoubt- it would Commonwealth, lаw statutory for us, of the orders now before vacation edly require of come does not within exceptions Mills’ offense I In the am satis- meantime, new section. proposed judicial within the competence fied that it is properly Mills not be for the of- hold that should prosecuted I concur and accordingly vacating fense charged, orders below. conduct, (a) tion is based on the unless the offense of which formerly аcquitted convicted or the defendant was and the offense prosecuted requires subsequently proof for which is each he required by defining and the law fact each of such substantially prevent is intended to different harm or offenses (b) offense was not the second consummated when the evil or began; or former trial terminated, “(2) former was the in- found, by acquittal by indictment an was filed or the formation judgment for the defendant which order or has not been a final acquittal, aside, or vacated and which final reversed order or set necessarily required judgment a determination inconsistent with must be established conviction of the offense of which a fact subsequently prosecuted.” is See also defendant which §1.11) (then appearing identified section as to this Comment pp. Model 5 of the Penal Code No. at 60-63. Draft Tentative recently Compare of standаrds more set forth the formulation Study Code, by a New Federal Criminal and §§706 Draft of on Reform of Federal Criminal Commission Laws National Printing Office, 1970), commentary (U. thereto Government S. Papers Working National Commission on in 1 Reform of Laws, 346-348 Criminal Federal Dissenting Opinion Bell: Mb. Chief Justice and ruled This case undoubtedly governed v. United Bartkus v. U.S. Abbate Illinois, hold that a can States, 359 U.S. which person indicted and for the same crime both Federal tried I re and State should be they Courts. While think I versed or far the Majority cannot as modified, go I do, believe the test which the Majority adopt is so indefinite retroactively) (prospectively, apply and so I subject to Judicial that must dissent caprice each these reasons.
Dissenting Opinion Me. Babbiebi: Justice I I dissent, because think the has in case a double propounded rule which not jeopardy only puts in a Pennsylvania unique and anomalous pоsition in dual sovereignty but more cases, which, importantly, is both technically impractical substantively fraught unnecessary opportunities inequality *11 in the treatment of offenders.
First, double in jeopardy Pennsylvania dual sover- eignty cases will be now a factual issue for the trial rather judge than a clear In question law. order to rule on a double in jeopardy plea Pennsylvania the court must and review pass judgment upon the sentence imposed by another court in judicial the system of a separate sovereign. Pennsylvania judge must re- view the other judge’s sentence, presumably the entire penal, probation parole apparatus applicable to that under the sentence, for, “if rule, the interests appears this Commonwealth in not sufficiently protected the initial prosecution, then a second imposition of additional in Pennsylvania will punishment be allowed”. This оf a makes the application constitutional safeguard de- or guilt, not upon upon conviction pend, or acquittal pun- upon prior proceeding, of the in a but nature previously how ishment or sentence ordered, sovereign’s Pennsylvania judge the other solu- views sovereign’s guilt tion for determined under that laws procedures. may might One ask be our in a what course case guilt like one where ruled as an we have out issue Pennsylvania only under to find that convic- law, tion later court has been set aside, been no sentence that case has so altered as to longer protect “the interests this Commonwealth?” will look Who then out for the Com- “interests lapsed judicial responsi- if we our monwealth”, have bility jeopardy ruling prelim- so to do double inary proceeding?
Secondly, injustice opportunities I see serious inequality to result from of-treatment under view adopted by majority. example, For two defendants robbery guilty in the same bank who are of the same may unequal depending offense well have treatment solely upon the of a race for result forum. one Thus, system may who is tried first in Federal court suc- cessfully interpose jeopardy plea a double in our courts, one who whereas is tried first our court will no have plea subsequent pro- such available him a Federal ceeding. any I advantage am unable to
Furthermore, see how gained judge’s can duty be the trial exercise his protect both the defendant and the Commonwealth process I which envision will result from the majority’s my rule. In protected both view can best Pennsylvania by continuing guilt to have proceedings *12 judge retaining with the trial heretofore, his tradi- sentencing procedures tional discretion his to decide any if meаsures, new sufficiently needed, what will protect of this interests “the Commonwealth”. able and thor in the majority’s out
As is pointed jeopardy on this double the law ough presentation where state dual distinction sovereignty question, concerned is still observed and federal court’s are courts this country; States other state United the case Bartkus v. points out, as the and, S. Ct. 676 is still via Illinois, it. and recent efforts many change ble despite Court in Superior I the action would sustain trial court. the sentences affirming Adams Estate.