Commonwealth v. Cadora

SCHILLER, Judge,

concurring:

Although I join in the majority’s decision, I write separately to state my view that the result dictated by the plurality in Commonwealth v. McPhail, 547 Pa 519, 692 A.2d 139 (1997), creates both a windfall for defendants and a potential impediment to the efficient administration of justice. These detrimental effects are wrought without any concomitant benefit to the citizenry of this Commonwealth.

Although I do not take issue with the jurisdictional analysis employed by the McPhail plurality,¹ I do question the apparent underlying tenet that Section 110 applies when the first prosecution is terminated by a guilty plea. This tenet seems to have arisen out of a decision by this Court, i.e. Commonwealth v. Caden, 326 Pa.Super. 192, 473 A.2d 1047 (1984), which was accepted at face value by the Supreme Court in Commonwealth v. Bracalielly, 540 Pa. 460, 658 A.2d 755 (1995).² If and when the Supreme Court again tackles this issue it may wish to examine this threshold issue. (Query: Does a plea of nolo con-tendere produce the same result as a guilty plea for purpose of Section 110?)

In my view there is a significant difference between guilty plea and a trial which ends in “an acquittal or a conviction.” See 18 Pa.C.S. § 110. For instance, guilty pleas are effectively always in the control of the defendant, because it is only with his or her consent that the proceedings can occur. Thus, a separate prosecution brought in a separate county following a guilty plea does not present a situation where the “awesome power of the state” is being utilized against the defendant for the purpose of wearing him down.³

To apply a compulsory joinder rule in all situations will effectively curtail prosecutors from pleading out small eases in any situation where a bigger case exists in a separate county. In addition, it offers the possibility of the county with the small case having the ability, intentionally or unintentionally, to damage the other prosecutor’s ability to prosecute the bigger case.

This issue should be reexamined by the Supreme Court, and hopefully that Court will be able to provide the bench and bar with definitive guidance on this issue.

1 . I must, however, agree with the observation of Justice Newman that the plurality failed to address the conflict between its decision and the language employed by a majority of the Court in Commonwealth v. Conforti, 533 Pa. 530, 626 A.2d 129 (1993).

2 . Ironically, the Supreme Court in Commonwealth v. Bracalielly, 540 Pa. 460, 658 A.2d 755 (1995), cited this Court’s decision in Commonwealth v. McPhail, 429 Pa.Super. 103, 631 A.2d 1305 (1993), [which in turn relied upon Commonwealth v. Caden, 326 Pa.Super. 192, 473 A.2d 1047 (1984) ] in support of the proposition that a guilty plea is the same as a conviction, but it did not reexamine this issue when it overruled Commonwealth v. McPhail, 547 Pa. 519, 692 A.2d 139 (1997). In fact there seems to be a dearth of analysis as to whether a guilty plea is the same as a conviction for purposes of section 110.

3 . Although in a given situation it may give rise to meritorious motion to withdraw the guilty plea if the defendant was ill advised about the consequences of his plea.