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HomeMy WebLinkAbout94-2178 Criminal COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : 94-2178 CRIMINAL TERM : v. : CHARGE: APPEAL FROM SUMMARY : (A) FLEEING OR : ATTEMPTING TO ELUDE : POLICE : (B) CARELESS DRIVING : (C) GENERAL LIGHTING : EQUIPMENT : STEVEN H. GREENE : AFFIANT: PTL. BERNARD PINCKNEY IN RE: DEFENDANT'S MOTION TO DISMISS ON DOUBLE JEOPARDY GROUNDS BEFORE OLER, J. ORDER OF COURT AND NOW, this ~i~ day of August, 1995, after careful consideration of Defendant's Motion To Dismiss on Double Jeopardy Grounds, following a hearing and for the reasons stated in the accompanying Opinion, the motion is DENIED. BY THE COURT, L Michael Schwoyer, Esq. Assistant District Attorney Allen C. Welch, Esq. 831 Market Street Lemoyne, PA 17043 Attorney for Defendant : re COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : 94-2178 CRIMINAL TERM : v. : CHARGE: APPEAL FROM SUMMARY : (A) FLEEING OR : ATTEMPTING TO ELUDE : POLICE : (B) CARELESS DRIVING : (C) GENERAL LIGHTING : EQUIPMENT : STEVEN Ho GREENE : AFFIANT~ PTL. BERNARD PINCKNEY IN RE: DEFENDANT'S MOTION TO DISMISS ON DOUBLE JEOPARDY GROUNDS BEFORE OLER, J. OPINION and ORDER OF COURT In this summary appeal from three Vehicle Code offense convictions, Defendant has filed a pretrial motion to dismiss based on double jeopardy as constitutionally proscribed and on Section 110 of the Crimes Code. A hearing on the motion was held on Tuesday, June 20, 1995. For the reasons stated in this Opinion, Defendant's motion to dismiss must be denied. STATEMENT OF FACTS On Friday, July 22, 1994, at approximately 8:40 p.m., Officer Bernard Pinckney of the Newville Borough Police Department observed a motor vehicle make a right turn from East Main Street, or Route 641, in the Borough of Newville, Cumberland County, in what he regarded to be a careless manner or at an unsafe speed.~ While making the turn, the vehicle "took a real hard bounce on the front ~ N.T. 5, Hearing, June 20, 1995, Commonwealth v. Greene, No. 94-2178 Criminal Term (hereinafter N.T. _ ). 94-2178 CRIMINAL TERM end," according to the officer.2 Officer Pinckney also noticed that the headlight on the vehicle's passenger side was out.3 Officer Pinckney began to pursue the vehicle, utilizing his police car siren and red and blue flashing lights.4 He followed the vehicle for approximately 700 feet within the Borough of Newville into Hopewell Township.~ As the vehicle left the borough, Officer Pinckney continued to pursue it and radioed a dispatcher that the vehicle was failing to stop.6 After a distance of about eight miles,? the vehicle stopped at an address of R.D. 2, Box 98, Newville, in Hopewell Township, Cumberland County -- later identified as Defendant's residence.8 The vehicle parked in the driveway, and Officer Pinckney pulled in directly behind it.9 Defendant exited the vehicle immediately.~0 He began a "fast walk" toward the house.~ Officer Pinckney ordered Id. Id. N.T. 6. N.T. 9. N.T. 8. Id. N.T. 12. N.T. 10. N.T. 11. Id. 2 94-2178 CRIMINAL TERM Defendant several times to stop. However, Defendant ignored the officer's commands, shouted obscenities at Officer Pinckney, and continued into the house.~2 Officer Pinckney then called for backup.~3 APproximately a minute later, Defendant exited the house accompanied by two other men.TM Officer Pinckney informed Defendant-~ why he had followed him.~s Defendant became "boisterous" and "belligerent" and uttered obscenities.~6 At that point, Officer Pinckney attempted to take Defendant into custody and a brief struggle ensued between the officer and Defendant.~? During the struggle, Officer Pinckney attempted to handcuff Defendant, and Defendant allegedly responded by pulling his hands away and shoving the officer.~8 Other law enforcement personnel arrived and assisted Officer Pinckney, including a state constable and several state police troopers.~9 Officer Pinckney took Defendant to the Newville Borough ~ Id. ~3 N.T. 19. ~4 N.T. 11. ~ Id. ~ Id. ~7 N.T. 11-12. ~ Id. ~9 N.T. 13. 3 94-2178 CRIMINAL TERM Police Station. At the station, State Trooper Scott Eisenhart2° issued a summary citation for harassment to Defendant.2~ On August 3, 1994, Officer Pinckney filed with District Justice Helen B. Shulenberger three summary traffic citations as a result of the July 22 incident.22 The three violations charged were fleeing or attempting to elude a police officer,23 careless 20 N.T. 15. 2~ See Act of June 23, 1993, P.L. 124, Sl, as amended, 18 Pa. C.S.A. S2709 (Harassment and Stalking) (1995 Supp.). This statute provides, in pertinent part, as follows: (a) Harassment.--A person commits the crime of harassment when, with intent to harass, annoy or alarm another person: (1) he strikes, shoves, kicks or otherwise subjects him to physical contact, or attempts or threatens to do the same .... 22 N.T. 13-14. ~3 See Act of June 17, 1976, P.L. 162, §1, 75 Pa. C.S.A. §3733 (Fleeing or attempting to elude police officer). This statute provides in pertinent part as follows: (a) Offense defined.-Any driver of a motor vehicle who willfully fails or refuses to bring his vehicle to a stop, or who otherwise flees or attempts to elude a pursuing police vehicle, when given visual or audible signal to bring the vehicle to a stop, is guilty of a summary offense and shall, upon conviction, be sentenced to pay a fine of $200. It is noted that this offense has since been changed from a summary offense to a misdemeanor of the second degree. See Act of December 27, 1994, P.L. 1337, ~3, 75 Pa. C.S.A. ~3733 (1995 Supp.). However, the incidents giving rise to this charge occurred on June 22, 1994, prior to the December 1994 amendment. 4 94-2178 CRIMINAL TERM driving,24 and failure to comply with general lighting requirements.25 On August 17, 1994, a trial was held before District Justice Shulenberger on the citation for harassment issued by the state trooper, and Defendant was found not guilty.26 On November 2, 1994, a trial was held before District Justice Shulenberger on the traffic citations filed by Officer Pinckney, and Defendant was found guilty.~? Defendant filed an appeal from the traffic offense convictions on November 29, 1994. STATEMENT OF LAW Two distinct provisions may bar subsequent criminal actions arising from the same set of circumstances in this Commonwealth, 24 See Act of May 30, 1990, P.L. 173, S13, 75 Pa. C.S.A. S3714 (Careless driving) (1995 Supp.). This statute provides in pertinent part as follows: Any person who drives a vehicle in careless disregard for the safety of persons or property is guilty of careless driving, a summary offense. 2~ See Act of June 17, 1972, P.L. 162, ~1, 75 Pa. C.S.A. ~4303 (General lighting requirements). This statute provides in pertinent part as follows: (a) ~ead lamps.--Every vehicle, except trailers, operated on a highway shall be equipped with a head lamp system in conformance with regulations of the department. 26 N.T. 16-17. 27 N.T. 17. 5 94-2178 CRIMINAL TERM one of which is constitutional (double jeopardy) and the other statutory (Section 110 of Crimes Code).28 These will be discussed in that order. Constitutional double jeopardy. In Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932), the United States Supreme Court set forth the test required for resolution of a constitutional double jeopardy issue.29 The Blockburger test requires a court to focus on the proof necessary to establish the statutory elements of each offense: "The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not.''3° Thus, no violation of double jeopardy exists if each statute requires proof of an additional fact that the other does not.3~ ~8~.~Commonwealth v. LaBelle, 397 Pa. Super. 179, 184, 579 A.2d 1315, 1317 (1990). 29 In United States v. Dixon, 509 U.S. , 113 S. Ct. 2849, 125 L. Ed. 2d 556 (1993), the Court determined that resolution of a double jeopardy issue no longer requires the two-prong test set forth in Grady v. Corbin, 495 U.S. 508, 110 S. Ct. 2084, 109 L. Ed. 2d 548 (1990). The Pennsylvania Supreme Court has noted this holding. Commonwealth v. Caufman, Pa. , A.2d (July 20, 1995). -- 3o Commonwealth v. LaBelle, 397 Pa. Super. 179, 189-90, 579 A.2d 1315, 1320 (1990), quoting Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 182, 76 L. Ed. 306, 309 (1932). 3~ Commonwealth v. McAulay, 361 Pa. Super. 419, 427, 522 A.2d 652, 656 (1987). 6 94-2178 CRIMINAL TERM Section 110 of Crimes Code. Section 110 of the Crimes Code provides in pertinent part 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 t'ormer 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; or (iii) the same conduct, unless: (A) the offense of which the defendant was formerly convicted or acquitted and the offense for which he is subsequently prosecuted each requires proof of a fact not required by the other and the law defining each of such offenses is intended to 7 94-2178 CRIMINAL TERM prevent a substantially different harm or evil 32 Appellate court precedent suggests strongly that as a general rule Section 110 was not intended to apply, and will not be applied by the judiciary, to Vehicle Code summary offenses. See Commonwealth v. Geyer, Pa. Super. , 658 A.2d 824 (1995); cf. Commonwealth v. Breitegan, 500 Pa. 384, 456 A.2d 1340, cert. denied, 464 U.S. 991, 104 S. Ct. 480, 78 L. Ed. 2d 678 (1983). To the extent that Section 110 does apply to a given offense, its application is governed by the following principles. The guarantee against double jeopardy prevents subsequent trials for the same act or offense.TM Unlike the double jeopardy doctrine, Section 110 is not limited to prosecutions for the same act. The statute 'provides that, when certain conditions are met, all charged offenses "based on the same conduct or arising from the same criminal episode" must be tried at the same time.34 Whether two criminal offenses are part of a single criminal episode requires a case-by-case analysis.3s In conducting this ~2 Act of December 6, 1972, P.L. 1482, ~1, 18 Pa. C.S.A. §110(1). ~ Commonwealth v. Johnson, 319 Pa. Super. 463, 470, 466 A.2d 636, 640 (1983). ~ Id. (emphasis added). ~ Commonwealth v. Flenory, 351 Pa. Super. 27, 504 A.2d 1341 (1986). 8 94-2178 CRIMINAL TERM analysis, a court should consider the following factors: (1) the temporal sequence of events, (2) the logical relationship between the acts, (3) whether the offenses share common issues of law or fact, (4) whether the offenses involved are necessary steps to the completion of others; [and] (5) whether the offenses involve attempts to conceal previous offenses.3~ APPLICATION OF LAW TO FACTS Constitutional double jeoDardy. Defendant claims that his prior trial and acquittal on the charge of summary harassment bars the instant prosecution for the summary offenses of fleeing or attempting to elude a police officer, careless driving, and failure to comply with general lighting requirements. In determining Defendant's double jeopardy contention, Blockburger requires us to examine the elements of the offenses. In the prior prosecution for harassment, the Commonwealth was required to prove an intent to harass-coupled with the physical action of striking, shoving, kicking or otherwise subjecting to physical contact another person or an attempt at, or threat of, such action. In the present prosecution, however, the Commonwealth does not have to establish any of those elements. Instead, with respect to all three traffic offenses, the Commonwealth has to prove that Defendant was driving a vehicle under certain conditions and circumstances. No common elements exist in the two prosecutorial actions; consequently, the ~ Commonwealth v. Bellezza, 412 Pa. Super. 469, 480, 603 A.2d 1031, 1037-39 (1992). 9 94-2178 CRIMINAL TERM analysis set forth in Blockburger does not result in a proscription of the instant prosecution on constitutional double jeopardy grounds. Section 110 of Crimes Code. As noted previously, it does not appear that Section 110 of the Crimes Code was intended in general tc be applicable to summary offenses under the Vehicle Code. To hold otherwise in this case would be to disregard appellate authority on the issue. Even if Section 110 were deemed applicable to the offenses in the present case, an examination of the factors to be considered in determining its effect would lead to a conclusion that Defendant's prior prosecution for harassment would not bar the instant prosecution for Vehicle Code offenses. First, the behavior giving rise to.the charges began in different municipalities at different times and at no point coincided in a temporal sense. The traffic offenses allegedly arose in the Borough of Newville, and Defendant's alleged harassment of Officer Pinckney occurred in Hopewell Township after he had stopped driving, entered his residence, and later emerged from it. Second, no logical relationship exists between the two incidents charged. The Defendant's alleged physical conduct toward the officer is not significantly related to nor probative of Defendant's operation of the vehicle. Third, the Crimes Code offense and the Vehicle Code offenses share no common issues of law or fact. As previously discussed, each type of offense requires proof of elements distinct from those of the other. 10 94-2178 CRIMINAL TERM Fourth, the Crimes Code offense and the Vehicle Code offenses as charged did not represent necessary steps to the completion of each other. Finally, the Crimes Code offense and the Vehicle Code offenses as charged did not involve each other's concealment. For these reasons, the court is of the opinion that the present prosecution for alleged Vehicle Code violations is not proscribed by the provisions of constitutional double jeopardy or Section 110 of the Crimes Code. The following Order will therefore be entered: ORDER OF COURT AND NOW, this ~T~ day of August, 1995, after careful consideration of Defendant's Motion To Dismiss on Double Jeopardy Grounds, following a hearing and for the reasons stated in the accompanying Opinion, the motion is DENIED. BY THE COURT, · s/ J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. Michael Schwoyer, Esq. Assistant District Attorney Allen C. Welch, Esq. 831 Market Street Lemoyne, PA 17043 Attorney for Defendant 11