217 Pa. Super. 148 | Pa. Super. Ct. | 1970
Dissenting Opinion
Dissenting Opinion by
Appellants were convicted of disturbing the peace and disorderly conduct by a justice of the peace of Oley Township, Berks County. Both convictions were based upon violations of Oley Township Ordinances. Appellants were subsequently convicted of riot and related offenses by the Court of Common Pleas of Berks County, convictions based upon the same acts as were involved in the violations of the two township ordinances. No claim of double jeopardy, however, was entered at the trial for riot. Subsequently, the Supreme Court decided Waller v. Florida, 397 U.S. 387, 90 S. Ct. 1184 (1970). On appeal from judgment of sentence, appellants claim that their riot convictions were violative of the guarantee against double jeopardy.
In Commonwealth v. Yahnert, 216 Pa. Superior Ct. 159, 264 A. 2d 180 (1970), we held that we would consider on review a plea of res judicata or autrefois acquit even though not raised below. We said that “we believe it is incumbent upon us to consider a question that raises ‘basic and fundamental’ error. See Commonwealth v. Williams, 432 Pa. 557, 248 A. 2d 301 (1968) (Bell, C. J.). ‘A man is not to be deprived of his liberty and reputation because of the inadvertence of a trial judge or the carelessness of his counsel in failing to call the attention of the trial court to palpable error which offends against the fundamentals of a fair and impartial trial.’ Commonwealth v. O’Brien, 312 Pa. 543, 546, 168 A. 244 [, 245] (1933). ... We
In Waller, the Supreme Court indicated that where a state does not treat its political subdivisions as sovereign entities and where the judicial power of local courts is derived from the same organic law as state courts, the doctrine of dual sovereignty has no application. With respect to Florida, the Court found two provisions relevant. Article VIII, §2 of the Florida Constitution provided that “ ‘[municipalities may be established or abolished and their charters amended pursuant to general or special law.’ ” 397 U.S. at 392,
Pennsylvania has two provisions similar to Florida’s. Article IX, §1 of the Constitution provides that “[t]he General Assembly shall provide by general law for local government within the Commonwealth.” Article Y, §1 provides that “[t]he judicial power of the Commonwealth shall be vested in a unified judicial system consisting of the Supreme Court, the Superior Court, the Commonwealth Court, courts of common pleas, community courts, municipal and traffic courts in the City of Philadelphia, such other courts as may be provided by law and justices of the peace. All courts and justices of the peace and their jurisdiction shall be in this unified judicial system.” These provisions are indistinguishable from Florida’s. I would find, therefore, that the doctrine of dual sovereignty has no application to Pennsylvania.
Having so found, I believe the holding of Waller must be applied to the instant facts. In Waller, the defendant, with a number of other persons, removed a canvas mural affixed to a wall inside the City Hall of St. Petersburg, Florida. Along with another charge, he was found guilty by a municipal court of violating an ordinance of the City of St. Petersburg, i.e., destruction of city property. He was subsequently tried and found guilty in the Circuit Court of Florida on an indictment charging grand larceny. It was acknowledged that “the state court action rested . . on the same acts
Here, appellants were found guilty of disturbing the peace and disorderly conduct. The acts which were the bases for those convictions were also the bases for their convictions of riot and related offenses. Waller compels, therefore, that the second convictions be set aside.
I would reverse judgment of sentence and discharge appellants.
Lead Opinion
Opinion
Judgment of sentence affirmed.