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HomeMy WebLinkAbout98-0306/0070 criminal/misc.COMMONWEALTH Ve KEITH A. BLOSSER IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 98-0306 CRIMINAL TERM NO. 98-0070 MISCELLANEOUS COMMONWEALTH Ve SCOTT ALAN FAILOR IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 98-0307 CRIMINAL TERM NO. 98-0069 MISCELLANEOUS IN RE: DEFENDANTS' MOTION TO DISMISS BEFORE GUIDO, J. ORDER day of APRIL, 1998, the Motion to Dismiss filed by each of the above Defendants is DENIED. District Attorney's Office Samuel Milkes, Esquire For the Defendant By the Edward E. Guido, J. :sld COMMONWEALTH Ve KEITH A. BLOSSER IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 98-0306 CRIMINAL TERM NO. 98-0070 MISCELLANEOUS COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : : SCOTT ALAN FAILOR : NO. 98-0307 CRIMINAL TERM : : NO. 98-0069 MISCELLANEOUS IN RE: DEFENDANTS' MOTION TO DISMISS BEFORE GUIDO, J. QPINION AND ORDER OF COURT Each of the above Defendants have filed a motion to dismiss a pending charge of Driving Under Suspension based upon an alleged violation of the double jeopardy protections of the United States and Pennsylvania Constitutions as well as Section 110 of the Crimes Code. (18 Pa. C.S.A. § 110). Since the issues presented in each case are identical, they were consolidated for argument before this Court on March 6, 1998. For the reasons hereinafter set forth, both motions are denied. FINDINGS OF FACT The parties were able to stipulate to the relevant facts in each case. They are as follows: DEFENDANT BLOSSER 1) On November 9, 1997, the Defendant was stopped for speeding on Pennsylvania State Route 34. NO. 98-0069 MISCELLANEOUS - 98-0070 MISCELLANEOUS 2) As a result of a routine radio check with Penn DOT to verify Defendant's driving status, the Trooper discovered that his license had been suspended. 3) Defendant was immediately issued a citation for speeding and a separate citation for driving under suspension. 4) On December 2, 1997, the Defendant pled guilty to the speeding citation and paid a fine at the office of District Justice Day. Said plea was entered without the knowledge or consent of the Trooper. 5) On January 28, 1998, the Defendant had a hearing before District Justice Susan Day on the driving under suspension citation. He was found guilty of driving under suspension and a timely appeal was filed to this Court. DEFENDANT FAILER 1) The Defendant was issued a speeding citation on October 30, 1997, as a result of a traffic stop on that' date. 2) On December 1, 1997, the Trooper received a certified copy of the Defendant's driving record from Penn DOT which showed that his license was under suspension on October 30, 1997. 3) The Trooper immediately issued a citation to Defendant for driving under suspension. ~ 4) On December 12, 1997, the Defendant pled guilty to the speeding citation and paid a fine at the office of District Justice Susan Day. Said plea was entered without the knowledge or consent of the Trooper. 5) On January 21, 1998, the Defendant entered a plea of guilty to the driving under suspension citation, lie subsequently filed a timely appeal to this Court in connection with said driving under suspension citation. DISCUSSION ,,, The Defendants' counsel argues that the Supreme Court's recent decision in Commonwealth V. Geyer, 546 Pa. 586, 687 A.2d ~Although the citation was issued on December 1, 1997, it was not filed with the District Justice until December 3, 1997. NO. 98-0069 MISCELLANEOUS - 98-0070 MISCELLANEOUS 815 (1996) is controlling and requires the dismissal of the charges against his clients. We disagree. In the Geyer case the Defendant was issued a speeding citation on June 25, 1993. At the time the citation was issued, Mr. Geyer advised the police officer that his license was under suspension. He pled guilty to the speeding citation before the appropriate District Justice on July 7, 1993. On July 13, 1993, the Officer filed a second citation for driving under suspension. This citation was filed after he received a certified copy of Mr. Geyer'$ driving record from the Pennsylvania Department of Transportation. A trial was held before the same District Justice who had accepted the plea to the speeding citation. Mr. Geyer was found guilty of driving under suspension. He appealed, claiming that the second prosecution was barred by Section 110 of the crimes code (18 Pa. C.S.A. ~ 110) and the prohibition against double jeopardy contained in both the United States and Pennsylvania constitutions ~The Geyer Court discussed only the applicability of the compulsory joinder rule contained in Section 110 of the Crimes Code. It did not even address the double jeopardy issue. In the instant cases we are satisfied that there is no double jeopardy violation involved in prosecuting Mr. Blosser and Mr. Failer for both speeding and driving under suspension. Our Superior Court succinctly stated the standard in Com. v. Bonczak, 342 Pa. Super. 167, 492 A.2d 445, (1985): Under Blockburger v. United States, 284 U.S. 299, 525 Ct. 180, 76 L.Ed. 306 (1932) the focus is on the proof necessary to prove the statutory elements of each offense. Simply stated, there is no violation if each statute requires proof of an additional fact which the other does not. Bonczak, 342 Pa. Super. at 171. Speeding and driving under suspension do indeed require proof of NO. 98-0069 MISCELLANEOUS - 98-0070 MISCELLANEOUS The relevant portion of Section 110 of the Crimes Code provides as follows: ~ 110. When prosecution barred by former prosecution for different offense Although a prosecution is for a violation of a different provision of the statutes than a former prosecution or is based on different facts, it is barred by such former prosecution under the following circumstances: (1) The former prosecution resulted in an acquittal or in a conviction as defined in section 109 of this title (relating to when prosecution barred by former prosecution for the same offense) and the subsequent prosecution is for: (i) any offense of which the defendant could have been convicted on the first prosecution; (ii) any offense based on the same conduct or arising from the same criminal episode, if such offense was known to the appropriate prosecuting officer at the time of the commencement of the first trial and was within the jurisdiction of a single court unless the court ordered a separate trial of the charge of such offense; (Emphasis Added) In the twenty-five years since Section 110 has been law, there has been some question as to whether or not it applies to summary traffic offenses. See Com. v. Beatt¥, 500 Pa. 284, 455 A.2d 1194 (1983), and Com. v. Broitegan, 500 Pa. 384, 456 A.2d 1340, (1983). In ~om. v. Geyer, Pa. Super. , 658 A.2d 824 . . (1995), relying upon Beatty, and Breitegan, the Superior Court specifically held that Section 110 does not apply to summary traffic convictions. The Supreme Court granted allocatur to explain and clarify the law in this area. The Geyer Court explained that a subsequent prosecution is different facts. NO. 98-0069 MISCELLANEOUS - 98-0070 MISCELLANEOUS barred under Section 110 (1) (ii) when all of the following four conditions are met: (1) The first prosecution resulted in a conviction or an acquittal. (2) The second offense is based upon conduct arising from the same criminal episode. (3) The second offense was known to the prosecuting officer at the time of the first trial. (4) The subsequent prosecution was within the jurisdiction of a single Court. See ~eyer, supra 546 Pa. at 590. In holding that Section 110 does apply to summary offenses, it went on to explain that Beatty and Breite~an were decided on the basis that the two offenses were not within the jurisdiction of the same Court The Supreme Court went on to affirm Mr. Geyer's conviction on the basis that the officer did not know of the driving under suspension violation until he received a certified copy of the defendant's driving record.4 Therefore, the citation for driving under suspension was properly filed Dfter Mr. Geyer pled guilty to the speeding citation. In the instant case, all matters arose from the same episode and were within the jurisdiction of a single Court. Obviously, 3Beatty and Breitegan dealt with summary pleas being taken where misdemeanor and felony charges were also pending. 4Even though the officer was told by Mr. Geyer that his license was under suspension, the Court held that he acted appropriately in not filing the citation at that time. It cited 75 Pa. C.S.A. § 1543(d) which provides that-an officer must verify the basis of the suspension with Penn D.O.T. before filing a driving under suspension citation. See Gever 546 Pa. at 594- 595. - NO. 98-0069 MISCELLANEOUS - 98-0070 MISCELLANEOUS all offenses were known to the prosecuting officer since all citations had been filed before any guilty pleas were entered. Therefore, we agree with Defendants that all of the requirements of the statute have been met. However, since we believe that Defendants, by their voluntarily entry of the guilty pleas, have waived the benefit of Section 110, we cannot agree that these prosecutions are barred. The Geyer case stands for the proposition that Section 110 applies to summary offenses. However, it did not discuss the long line of Pennsylvania cases that have held that a defendant may waive the benefit of Section 110.~ One of the major purposes of Section 110 is to protect a person accused of crimes from governmental harassment by being forced to undergo successive trials for offenses stemming from the same criminal episode. See Geyer supra, 546 Pa. at 592-593. However, it was not intended "to afford a defendant with a procedural expedient to avoid prosecution." Com. v. Bartley, 262 Pa. Super. 387, 396 A.2d 810 (1979). Thus, in those cases where all charges were filed, and the Defendant pled guilty to some of them, the Courts have consistently found that the Defendant waived the benefit of ~Waiver was not discussed in Geyer because the Defendant pled to all charges pending at that time. Where all of the crimes are known to the Commonwealth, and only some are brought, Section 110 will bar a subsequent prosecution if a plea is entered before additional charges are brought. The theory being that Section 110 cannot be waived if pleas are entered to all the charges pending at the time of the pleas. See Com. v. Breiteqan, supra. NO. 98-0069 MISCELLANEOUS - 98-0070 MISCELLANEOUS Section 110. In addition to Com. v. Bartley, supra, see Com. v. Tarner, 467 Pa. 401, 357 A.2d 539 (1976),~ Com. v. Johnsons, 319 Pa. Super. 463, 466 A.2d 636, (1983), Com. v. Ouackenbush, 314 Pa. Super. 324, 460 A.2d 1162 (1983), and Com. v. Bonczak, supra.~ Since the Defendant in each case was aware of the separate charges pending against him, and since he chose to plead guilty to only one of them, he has waived the benefit of Section 110. To hold otherwise would be unfair, improper and contrary to prior case law. Therefore, in each case, the Defendant's Motion to Dismiss is DENIED. ~While the ~arner Court did not base its decision on Section 110, since it chose not to apply it retroactively, it acknowledged that the principles upon which its decision was based were in harmony with Section 110. In discussing the Defendant's entry of a plea to some of the pending charges the Court stated: "...We have here a situation where the separateness of the trials for the different offenses was brought about by the defendant himself through his different pleas .... In these circumstances, there is no reason in logic or policy that should prevent separate dispositions." 467 Pa. 408-409. ~In Bonczak the defendant pled to non-traffic summary offenses while misdemeanor and felony charges arising out of the same episode were held for Court. In refusing to allow the Defendant to use Section 110 as a shield the Superior Court held that it would be unfair to allow him to avoid prosecution where he voluntarily pled guilty to some, but not all, of the pending charges. The Court held that Defendant waived the benefit of Section 110. NO. 98-0069 MISCELLANEOUS - 98-0070 MISCELLANEOUS AND NOW, this ORDER day of APRIL, 1998, the Motion to Dismiss filed by each of the above Defendants is DENIED. By the Court, /s/ Edward E. Guido Edward E. Guido, J. District Attorney's Office Samuel Milkes, Esquire For the Defendant :sld