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HomeMy WebLinkAbout91-1806 CriminalCOMMONWEALTH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 1806 CRIMINAL 1991 V. CHARGE: SIMPLE ASSAULT HENRY JOSEPH MANNEY AFFIANT: CPL. THOMAS McDANIEL IN RE: DEFENDANT'S MOTION IN ARREST OF JUDGMENT ORDER OF COURT AND NOW, this Gt� day of April, 1992, upon consideration of Defendant's Motion in Arrest of Judgment, the Motion is DENIED, a presentence investigation report is ordered, and Defendant is directed to appear for sentencing at the. call of the District Attorney. Alison Taylor, Esq. Assistant District Attorney H. Anthony Adams, Esq. Assistant Public Defender Probation Office :rc BY THE COURT, J. F,ILE COPY COMMONWEALTH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 1806 CRIMINAL 1991 V. CHARGE: SIMPLE ASSAULT HENRY JOSEPH MANNEY AFFIANT: CPL. THOMAS McDANIEL IN RE. DEFENDANT'S MOTION IN ARREST OF 'hUDGMENT OPINION AND ORDER OF COURT OLER, J. This case presents the issue of whether the double jeopardy clause of the fifth amendment to the federal constitution' precludes a criminal prosecution for simple assault under the Crimes Code' where the Defendant has previously been held in indirect criminal contempt for violation of a civil order under the Protection from Abuse Act' arising out of his, entry into the victim's residence and abuse of her.' Specifically, the Defendant, during the early morning hours of August 30, 1991, entered the mobile home of his estranged wife and strangled, hers as she was calling the police,6 notwithstanding the existence of a civil ' "[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb U.S. Const. amend. V. ' Act of December 6, 1972, P.L. 1482, §1, 18 Pa. C.S. §2701(a). ' Act of December 19, 1990, P.L. 1240, §2, 23 Pa. C.S. §6114 (1991 Pamphlet). ' The Defendant was sentenced to 90 dais in yl prison for violation of the protection from abuse order. See Defendant's Motion in Arrest of Judgment, paragraph 4. s Among other acts of violence and intimidation. 6 The victim eventually escaped by jumping through a window. 1806 Criminal 1991 protection from abuse order enjoining such conduct by him and notwithstanding the criminal proscription on assault;' in a post- trial motion following a guilty verdict on the assault charge, Defendant recounts a finding of contempt with respect to the protective order and seeks an arrest of judgment on the basis of the double jeopardy clause.' The issue presented by this case has been previously addressed by President Judge Harold E. Sheely of this Court in Commonwealth v. Fisher, No. 1135 Criminal 1991 (Cumberland'Co. 1991). The Court's opinion in Fisher is adopted herein, mutlatis mutandis; it reads as follows: "Here defendant has asked us to reconsider our memorandum opinion and order of September 6, 1991, in light of the United States Supreme Court's decision in Grady v. Corbin, 495 U.S. , 110 S. Ct. 2084, 109 L.Ed.2d 548 (1990) . We affirm our earlier decision. "We agree with the defendant's assertion that the Supreme Court's holding in Grady v. Corbin, supra, has broadened the scope of the double jeopardy clause. We disagree, however, that the holding is applicable to the case sub judice. The Grady Court held that in order to determine whether a subsequent prosecution is 7 Defendant does not challenge in his posts -trial motion the sufficiency of the evidence to sustain a conviction for assault. ' Defendant also raised this issue, unsuccessfully, in motions pretrial and during trial. 2 1806 Criminal 1991 barred by the Double Jeopardy Clause, a court must apply two tests. First, the court must apply the traditional Bloc burger test. See Blockburger, 284 U.S. 299, 304 (1932). If application of the test reveals that the offenses have identical statutory elements or that one is a lesser included offense of the other, then the inquiry must cease, and the subsequent prosecution is barred. GradV at 561, citing Brown v. Ohio, 432 U.S. 161, at 166 (1977). The inquiry, however, does not end here. "In addition, the court must be sure that it is carrying through with the Double Jeopardy Clause's protections. The Double Jeopardy Clause embodies three protections: 'It�protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction and it protects against multiple punishments for the same offense.Grady, supra at 561, citing North Carolina v. Pearce, 395 U.S. 711 (1969). The question for us then is, is the defendant in the case sub judice about to be puni�shed for the same offense twice? We answer in the negative. "At the first hearing held on September 6, 1991, we held the defendant in contempt of court for disobeying a court order which is an action rooted in equity rather than criminal. Now, the Commonwealth seeks to prosecute based upon criminal charges. These are two separate and distinct actions. The evidence in the two actions, however, will be the same. But, as the Grady Court held, . . theresentation of specific evidence in P p one trial does not 3 1806 Criminal 1991 forever prevent the government from introducing that same evidence in a subsequent proceeding.['] Gradv, supra, at 564, citing Dowling v. United States, 493 U.S. , 107 L.Ed.2d 708, 110 S.Ct. 668 (1990). Additionally, Grady, supra, deals specifically with double jeopardy in relation to successive criminal prosecutions. There is no mention of how it applied to successive actions where one is civil or rooted in equity and one is criminal. So, for further guidance, we turn to our Superior Court's holding in Commonwealth v. Warrick, 344 Pa. Super. 611, 497 'A.2d 259 (1985). "In Warrick, the defendant was found guilty of possession of narcotics before a municipal court judge. Ater being found guilty, he fled the courtroom. He was captured a'short time later and the judge sentenced him to six months Of imprisonment. Defendant appealed the finding and subsequently pled guilty before another judge, who imposed the same sentence. In the meantime, the Commonwealth charged defendant with escape. Defendant filed a motion to quash on the grounds of double jeopardy and his motion was denied. As a result this appeal followed. "The Warrick Court found his double jeopardy argument meritless. They held based on the Pennsylvania, Supreme Court's decision in Commonwealth v. Allen, 506 Pa. 500, 506-507, 486 A.2d 363 (1984), aff'g in part and rev'g in part, 32Z Pa. Super. 424, 469 A.2d 1063 (1983): "Distinguishable are cases where defendants are summarily held in contempt of court. See United States v. Rollerson, 308 F. Supp. 1014 4 1806 Criminal 1991 (D.D.C. 1970) aff'd 449 F.2d 1000 (d.D. Cir. 1971); State v. Warren, 186 N.J. Super. 35, 451 A.2d 197 (1982); United States v. Mirra, 220 F.Supp. 361 F.Supp. 361 (S.D.N.Y. 1'963). In summary contempt proceedings the contemnor does not suffer the harassment of separate trials and, therefore, the policies and goals ',underlying the protection against double jeopardylare not offended. Warrick, supra at 613. They held that because the defendant was held summarily in contempt, double jeopardy cid not bar his subsequent trial for escape. "Additionally, the Warrick Court held in its footnote No. 2 that: "Allen involved a contempt hearing as opposed to a summary proceeding. Even in that case our Supreme Court held that double jeopardy was not offended where the defendant was to be tried on rape, criminal trespass, and simple assault charges following a finding of contempt. Commonwealth v. Allen, 506 Pa. at 500,486 A.2d at 367-70. The Court stressed, '[t]he necessity of criminal contempt as a tool for deterring abuse of the judiciary demands that a judge not be required to consider the consequences of fore- closing subsequent criminal prosecutions. Id. 506 Pa. at 513, 486 A.2d at 369 citing People v. Gray, 69 Ill.2d 44, 12 Ill. Djec. 886, 370 N.E.2d 797 (1977) (Ryan, J., dissenting), cert. denied sub. nom. Illinois v. Gray, 435 U.S. 1013, 98 S.Ct. 1887, 56 L.Ed.2d 395 (19;78). (Emphasis in original). Warrick, supra at 613-614. "The whole double jeopardy area is very capricious. As our Pennsylvania Supreme Court held in, Commonwealth 'v. Burkhart, 526 Pa. 341, 586 A.2d 375 (1991), 'Notwithstanding the legal acumen of our distinguished conferees in the confusion,) we do a grave 5 1806 Criminal 1991 disservice to the lower courts, prosecutors, defense counsel and defendants by continuing our fluctuating and fragmented decisions in this area.' Burkhart, supra, at 37. (Emphasis in original). "Our Supreme Court in footnote 5 of its Burkhart decision cited Justice Scalia's dissent in Gradv, supra. Tlhe Burkhart Court held: "In a scathing dissent, in a case concerning double jeopardy in the context of successive prosecutions, Justice Scalia lamented the practical application or lack thereof, of the Court's most recent foray into the intellectual quagmire double Jeopardy has become. 'Apart from the lack of rational basis for this latter limitat-.on, I am generally perplexed (as will be thelunfortunate trial court judges who must apply today's rootless decision) as to what precisely it means.' Burkhart, supra at 37, citing Grady, supra at 577. "We must also note that out research provided us with no Pennsylvania case interpreting Grady, supra, with facts and procedural history similar to the case sub judice. Thus, we hold that the Grady rationale is inapplicable here and the defendant's motion for reconsideration is denied." For the foregoing reasons, the Court holds that under the circumstances of theresent case the double P jeopardy clause of the fifth amendment to the federal constitution does not preclude the I Defendant's criminal prosecution for simple asisault under the Crimes Code, where the Defendant was previously ',held in indirect criminal contempt for violation of a civil order under the Protection From Abuse Act arising out of his; entry into the 6 1806 Criminal 1991 victim's residence and abuse of her. On Defendant's Motion in Arrest of Judgment, the following Order will be entered: ORDER OF COURT AND NOW, this 6,6t day of April, 1992, upon' consideration of Defendant's Motion in Arrest of Judgment, the Motion is DENIED, a presentence investigation report is ordered, and Defendant is directed to appear for sentencing at the call'of the District Attorney. BY THE COURT, J. Alison Taylor, Esq. Assistant District Attorney H. Anthony Adams, Esq. Assistant Public Defender Probation Office :rc 7