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HomeMy WebLinkAbout99-0220 CriminalCOMMONWEALTH JOHN W. ALBRIGHT OTN: F241024-0 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-0220 CRIMINAL TERM IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 Oler, J., December 7, 1999. In this criminal case Defendant has filed an interlocutory appeal~ from a pretrial order of this court denying Defendant's motion to quash the information on double jeopardy grounds, inter alia. The basis for the appeal is set forth in Defendant's Statement of Matters Complained of on Appeal as follows: The Defendant stood trial for driving while intoxicated and two related traffic summary charges. The jury was hung, and a mistrial was declared by [the court]. After the jury was dismissed, the Defendant was found guilty by the Court of both related traffic offenses. The Commonwealth moved to re-try the Defendant, who filed a Motion to Dismiss based on double jeopardy and/or collateral estoppel, which the trial Court dismissed. Appellant takes this appeal. Appellant avers that his Constitutional rights as set forth in the Pennsylvania and United States' Constitutions will be violated by him being re-tried. ~ To the extent that a defendant's motion to dismiss a prosecution on state or federal double jeopardy grounds is not frivolous, an immediate appeal from its denial has been held to be permissible. See Commonwealth v. Wolfe, 454 Pa. Super. 93, 95 n.3,684 A.2d 642, 643 n.3 (1996). This opinion in support of the court's denial of Defendant's motion to quash the information is written pursuant to Pennsylvania Rule of Appellate Procedure 1925(a). STATEMENT OF FACTS As the result of a motorcycle accident in Cumberland County on the evening of September 26, 1998, Defendant was charged with the (first degree2) misdemeanor offense of driving under the influence of alcohol3 and the summary offenses of unauthorized transfer or use of registration4 and operating a motor vehicle without the required financial responsibility.5 One of the factual issues at trial was whether Defendant had been riding the motorcycle on a highway or in woods adjacent to the highway at the time of the accident. Neither the Commonwealth nor Defendant presented eyewitnesses to the accident at trial.6 The Commonwealth's evidence tended circumstantially to support the proposition that the accident occurred on the highway, but a defense 2 The information in this case classified the offense as a misdemeanor of the first degree, presumably because of alleged prior offenses on the part of Defendant. See Act of June 17, 1976, P.L. 162, 51, as amended, 75 Pa. C.S. 53731(e)(1) (1999 Supp.). 3 Act of June 17, 1976, P.L. 162, 51, as amended, 75 Pa. C.S. 53731(a)(1), (4) (1999 Supp.). 4 Act of June 17, 1976, P.L. 162, 51, 75 Pa. C.S. 51372(3). Act of June 17, 1975, P.L. 162, 51, as amended, 75 Pa. C.S. 51786(f) (1999 Supp.). 6 Defendant did not testify at trial. 2 witness testified that Defendant had been riding in the woods prior to the accident. The jury eventually reported that it was deadlocked on the charge before it of driving under the influence of alcohol. Pursuant to an agreement of counsel, the court declared a mistrial on the ground that the jury was unable to reach an agreement on the charge of driving under the influence of alcohol.7 At this point, both counsel accepted the proposition that the court enter a verdict on the summary offenses, which were before the court, rather than carry those offenses over to the jury retrial on the charge of driving under the influence.8 In accordance with this agreement, the court rendered verdicts on the summary offenses as follows: AND NOW, this 20th day of July, 1999, upon consideration of the charges at Count 2, of Unauthorized Transfer or Use of Registration, and Count 3, Required Financial Responsibility, and following a trial at which the jury deadlocked as to Count 1, Driving under the Influence, and the summary offenses were to be resolved by the Court, the Court finds the Defendant guilty at Count 2 of Unauthorized Transfer or Use of Registration and at Count 3, Required Financial Responsibility, both summary offenses under the Vehicle Code. The prescribed penalties in the form of $25 and $300 fines were imposed for the summary offenses.9 No appeal was filed from these judgments of sentence. Order of Court, July 20, 1999. N.T. Trial, 118-20. Order of Court, July 20, 1999. A week prior to a scheduled retrial on the driving under the influence charge, Defendant filed the motion to quash the information referred to previously. An answer to the motion was filed by the Commonwealth four days later, on September 3, 1999. The matter was argued on September 7, 1999. At the argument, Defendant maintained (a) that the court's summary offense verdicts precluded retrial on the related misdemeanor charge of driving under the influence by reason of double jeopardy principles and Section 110 of the Crimes Code~° and (b) that Defendant's concurrence with the procedure employed by the court did not constitute a waiver of this issue because constitutional issues could not be waived.~ Following argument, the court issued an order denying the motion.~2 Defendant's appeal to the Superior court from this ruling was filed on September 29, 1999. DISCUSSION Under the Fifth Amendment to the Federal Constitution, "[No person] shall ... be subject for the same offense to be twice put in jeopardy of life or limb .... " Under Section 10 of Article 1 of the Pennsylvania Constitution, "No person shall, for the same offense, be twice put in jeopardy of life or limb .... " 10 N.T. 5-8, Argument, September 7, 1999. ~ N.T. 9, Argument, September 7, 1999. 12 Order of Court, September 7, 1999. "The double jeopardy clause set forth in the Pennsylvania Constitution is coextensive with federal constitutional standards." Commonwealth v. Kz~;~ish, 529 Pa. 206, 207, 602 A.2d 849, 849 (1992). "The underlying purpose of the constitutional prohibition against 'double jeopardy' is to prevent an individual from being subjected to trial and possible conviction more than once for an alleged offense." Commonwealth v. Wallace, 455 Pa. Super. 45, 51,686 A.2d 1337, 1340 (1996). The doctrine is not generally implicated by a retrial following a mistrial due to the inability of a jury to reach a verdict. Commonwealth v. McCane, 517 Pa. 489, 499, 539 A.2d 340, 345-46 (1988). A retrial on a misdemeanor charge following a mistrial and a judge's verdict of guilty on a related summary charge is not an uncommon occurrence.~3 The conviction of the summary offense does not imply an acquittal of the misdemeanor charge; the conviction does not, ipso facto, subject the defendant to a second trial on the same offense when the misdemeanor charge is reprosecuted; and the inclusion of both offenses in the initial prosecution obviates concerns underlying the double jeopardy rule with respect to successively prosecuting a person. Thus, in Commonwealth v. Vincent, 345 Pa. Super. 173, 497 A.2d 1360 (1985), the Pennsylvania Superior Court upheld the denial of a defendant's motion for dismissal of a homicide by vehicle prosecution, based upon double jeopardy, ~3 See, e.g., Commonwealth v. McCane, 517 Pa. 489, 539 A.2d 340 (1988). 5 where a jury had been deadlocked on the charge in the first trial and the trial judge had found the defendant guilty of related (and included) summary traffic offenses. For this reason, this court was not persuaded by Defendant's argument on the merits that the constitutional prohibition against double jeopardy would be offended by the retrial in this case.TM In addition, this court was unable to agree with the proposition advanced by Defendant that a double jeopardy issue cannot be waived because of its constitutional dimension. See Commonwealth v. Higginbottom, 451 Pa. Super. 81, 678 A.2d 408 (1996) (defendant held to have waived double jeopardy issue). In the present case, Defendant's counsel expressly concurred in the procedure employed by the court, with the understanding that the Commonwealth would retry the misdemeanor charge before another jury. 14 An analogous situation occurs when a jury is deadlocked as to one charge but returns a verdict of guilty as to a related charge. The retrial is not precluded under double jeopardy principles. Commonwealth v. McCane, 517 Pa. 489, 539 A.2d 340 (1988) (verdict of guilty on homicide by vehicle charge, mistrial declared due to deadlocked jury on involuntary manslaughter charge); see Pa. R. Crim. P. 1120(d). Additional support for the court's ruling on the merits can be found in the case of Commonwealth v. Evers, 381 Pa. Super. 568, 554 A.2d 531 (1989), wherein the Pennsylvania Superior Court rejected a double jeopardy claim arising out of an initial summary conviction and subsequent trial for recklessly endangering another person, citing distinctions as to original jurisdiction between summary offenses and court cases. 6 Based upon the foregoing, the court was of the view that Defendant's motion to quash the information as it related to the offense of driving under the influence of alcohol was not sustainable on grounds of double jeopardy. ~5 William I. Gabig, Esq. Sr. Assistant District Attorney John J. Moran, II, Esq. 125 E. Philadelphia Street York, PA 17403 15 From the absence of a reference in Defendant's Statement of Matters Complained of on Appeal to Section 110 of the Crimes Code, it is assumed that Defendant's appeal is not premised upon that provision. It is noted, however, that summary traffic offenses under the Vehicle Code are generally not considered to be encompassed by the operation of this section. See Commonwealth v. Evers, 381 Pa. Super. 568, 554 A.2d 531 (1989); see Act of December 6, 1972, P.L. 1482, §1, 18 Pa. C.S. §110 (when prosecution barred by former prosecution for different offense). 7