Commonwealth v. Erisman

SPAETH, Judge:

Appellant was convicted of operating a motor vehicle while under the influence of intoxicating liquor in violation of the Vehicle Code, Act of April 29, 1959, P.L. 58, § 1037, 75 P.S. § 1037. The lower court denied appellant’s motion in arrest of judgment. Appellant argues that the motion should have been granted because prosecution was barred under the rule of compulsory joinder announced in Commonwealth v. Campana, 452 Pa. 233, 304 A.2d 432 (1973).

When Campana was remanded by the United States Supreme Court, 414 U.S. 808, 94 S.Ct. 73, 38 L.Ed.2d 44 (1973), our Supreme Court in an addendum per curiam opinion stated that “[t]he result this Court reached in Campana is entirely in harmony with section 110 of our Crimes Code, which became effective shortly after our decision and is now in effect.” Commonwealth v. Campana, 455 Pa. 622, 626, 314 A.2d 854, 856 (1974), cert. denied, 417 U.S. 969, 94 S.Ct. 3172, 41 L.Ed.2d 1139 (1974). We shall therefore consider appellant’s argument in the context of section 110 of the Crimes Code, Act of December 6, 1972, P.L. 1482, No. 334, § 1, effective June 6, 1973, 18 Pa.C.S. § 110.^*

Appellant was arrested on August 23 and charged with operating under the influence. On August 24 he waived preliminary hearing and was bound over to court. On October 2 the same officer who had made the August 23 arrest brought a summary charge of operating a motor vehicle after revocation of operating privilege. The Vehicle Code, supra, § 624(6), 75 P.S. § 624(6). On November 1 appellant pleaded guilty to this summary charge. On December 3 the grand jury indicted him on the charge of operating under the influence. Appellant’s argument is that this prosecution was barred by his November 1 plea of guilty to the summary charge. This argument, however, stands section 110 of the Crimes Code on its head.

Section 110 provides in pertinent part:

Although a prosecution is for a violation of a different provision of the statutes [here, the Vehicle Code] than a former prosecution . . . it is barred by such former prosecution under the following circumstances:

(1) The former prosecution resulted in an acquittal or in a conviction . . . and the subsequent prosecution is for:

(i) . . .

(ii) any offense . . . arising from the same criminal episode. .

In applying these provisions, it will be observed, one must concentrate upon which prosecution is the “former prosecution” and which is the “subsequent prosecution.” Appellant argues as though the prosecution for the summary charge of operating after revocation of privilege was the “former prosecution,” which arose “from the same criminal episode” and therefore barred the “subsequent prosecution” for operating under the influence. In fact it was the other way around.

“A prosecution is commenced either when an indictment is found or when a warrant or summons is issued, if such warrant or summons is executed without reasonable [sic] delay.” 18 Pa.C.S. § 108(e). Here, a warrant was issued on the charge of operating under the influence on August 24; the summons on the summary charge of operating after revocation of privilege was not issued until October 2. Thus the prosecution for operating under the influence was “former” to, and therefore could not be barred by, the summary prosecution for operating after revocation of privilege.

It may be granted that appellant has been subjected to “double prosecution.” At his hearing on the summary charge of operating after revocation of privilege, he could not set up as a bar the prosecution for operating under the influence, because, while that prosecution was a “former prosecution,” it had not yet “resulted in an acquittal or in a conviction. . . . ” 18 Pa.C.S. § 110(1). Later, at his trial for operating under the influence, he could not set up as a bar the prosecution for operating after revocation of privilege, because, while that prosecution had resulted in a conviction (a plea of guilty), it was not a “former” but a “subsequent” prosecution. The short answer to appellant’s dilemma, however, is that section 110 does not bar all double prosecutions but only those within its terms.

This answer is to some extent consistent with the general purpose of section 110. The Comment to the compulsory joinder section of the Model Penal Code, on which section 110 is based, states that joinder is

to prevent the state from bringing successive prosecutions based upon essentially the same conduct, whether the purpose in so doing is to hedge against the risk of an unsympathetic jury at the first trial, to place a “hold” upon a person after he has been sentenced to imprisonment, or simply to harass by multiplicity of trials.

Model Penal Code § 1.08, Comment (TentDraft No. 5, 1956). And see Commonwealth v. Green, supra 232 Pa.Super. at 141-42, 335 A.2d at 496. Here, had the Commonwealth first obtained appellant’s plea of guilty to the summary charge of operating after revocation of privilege, and then commenced its prosecution for operating under the influence, it could fairly be said that the Commonwealth was “harassing” appellant. That cannot be said here, at least not as fairly.

No doubt the legislature, or the Supreme Court by an exercise of its rule-making power, could decide that all double prosecutions should be precluded. Thus it might be provided, by amendment to section 110 or by a new rule, that in such a case as this one, the arresting officer should be required to make the summary charge of operating after revocation of privilege at the same time as he makes the charge of operating under the influence. This would deny substance to any claim of harassment, and it would also avoid piecemeal litigation. See Commonwealth v. Green, supra. On the other hand, it would also impose further constraints on the police, which might be thought unwise. It is not for us to balance these conflicting considerations; we must take section 110 as we find it.

The judgment of sentence is affirmed.

CERCONE, J., files a concurring opinion in which PRICE, J., joins. HOFFMAN, J., files a dissenting opinion.

* We note the possibility that cases argued to us under Campana should not automatically be dealt with as governed by section 110. The rule announced in the first Campana decision is broader than our reading of section 110: “We hold . . . that the Double Jeopardy Clause requires a prosecutor to bring, in a single proceeding, all known charges against a defendant arising from a ‘single criminal episode’.” 452 Pa. 233, 252-53, 304 A.2d 432, 441. This holding is footnoted, in part, “cf. . . . § 110 . . . It is at least arguable that in the second Campana decision the Court did not intend to rely solely on the harmony between section 110 and the first Campana result, but rather to reiterate, under its supervisory power, the broader rule. We have, nevertheless, already expressed our view that the Supreme Court intended the Campana rule to be implemented by section 110.

It was . . . stated [in the second Campana decision] that the Court’s views on the issue of compulsory consolidation of all charges arising from a single criminal episode were entirely in harmony with Section 110 of the new Crimes Code. Consequently, if all the various charges brought by the Commonwealth against this appellee can be said to arise from a single criminal episode, Section 110 of the Crimes Code will control rather than the principles of double jeopardy expressed in Campana.

Commonwealth v. Green, 232 Pa.Super. 134, 139, 335 A.2d 493, 495 (1975) (emphasis added).

The Supreme Court refused to allocatur in Green.

The Dissent, reading section 110 more broadly than we do, finds no gap between the first Campana rule and the statute. While we are sympathetic to the Dissent’s attempt to honor the holding of Campana I, we are persuaded that section 110 is not to be read as the Dissent reads it. If it be concluded that the result we reach in the present case calls into question the scope and continued vitality of Campana I, resolution is for the Supreme Court.

ABA Project on Minimum Standards for Criminal Justice, Standards Relating to Joinder and Severance § 1.3(b) (Approved Draft, 1968) (emphasis added).

See Commonwealth v. Campana, 452 Pa. at 248, 304 A.2d at 439.