Commonwealth v. Coder

SPAETH, Judge,

concurring:

I agree with the plurality that the use of § 1223 to impose costs incurred as a result of a change of venue may result in an unconstitutional infringement of an accused’s right to a trial by an impartial jury. However, unlike the plurality, I find it unnecessary to rely on the doctrine of “chilling effect,” which seems to apply as well to costs of prosecution in general as to costs of change of venue. For me, the distinction between the two kinds of costs is, simply, fairness: it is fair to impose the normal costs of prosecution on a convicted defendant; it is unfair (except in one kind of case, which I shall mention) to impose the costs of change of venue.

If a man commits a crime and after a trial is convicted, the costs of the trial are a direct result of his criminal action. It therefore is fair that he should be responsible for those costs. If, however, before he can be tried fairly a change of venue is required, it may be for one of three reasons: (1) officers of the state (for example, the prosecutor or the police) disseminated prejudicial pretrial publicity; (2) because the defendant is a public figure, the media—without any misconduct by officers of the state—publicized his case extensively and prejudicially; or (3) the defendant publicized his own case, to his own prejudice. Each case involves a different standard of fairness.

In the first case, the costs of change of venue are a direct result, not of the defendant’s criminal action, but of the misconduct by officers of the state. It is unfair to impose the costs on the defendant.

In the second case, the costs are a result of two factors: the media’s actions, and the defendant’s position in the community. While it might be said that the second factor dictates that the defendant bear some responsibility for the costs, I take a different view. The defendant’s position of public prominence will affect the punishment imposed. That is, his abuse of a position of public trust will be reflected in the permissible penalties and in those actually chosen. It is therefore unfair to add the additional burden of costs. As Judge JACOBS puts it, “persons in the public eye should [not] be treated as second-class citizens in the event they are charged with a crime.” At 513.

In the third case, the costs are a direct result of the defendant’s own actions. It is then fair to impose the costs on him.

These elementary concepts of fairness should be recognized as included in the guarantee of due process of law. While the United States Supreme Court has not decided the precise question presented by this case, I think we may divine from its restrictive view of the chill doctrine specifically, see Fuller v. Oregon, 417 U.S. 4051, 94 S.Ct. 2116, 40 L.Ed.2d 642 (1974); United States v. Jackson, 390 U.S. 570, 582, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968), that it would not be inclined to apply the federal Due Process Clause generally to the question. There nevertheless remains as an independent basis for decision the Due Process Clause of our state Constitution. Pa.Const. art. 1, § 9.¹ Although the decisions of the United States Supreme Court are dispositive in defining rights under the federal Constitution, the state courts remain responsible for defining and protecting rights under the state constitutions. Commonwealth v. Triplett, 462 Pa. 244, 341 A.2d 62 (1975). See generally Brennan, State Constitutions and the Protection of Individual Rights, 90 Harv.L.Rev. 489, 498-502 (1977); Ziegler, Constitutional Rights of the Accused—Developing Dichotomy Between Federal and State Law, 48 Pa.B.A.Q. 241 (1977).²

Our Supreme Court has said that the “[t]he term ‘due process of law’ when applied to judicial proceedings, means a course of legal proceedings according to those rules and principles which have been established by our jurisprudence for the protection and enforcement of private rights.” Commonwealth v. O’Keefe, 298 Pa. 169, 172, 148 A. 73, 74 (1929) (citing Pennoyer v. Neff, 95 U.S. 714, 715, 24 L.Ed. 565 (1877)). In my view, one of these principles must be that an accused may not be charged with-costs of a change of venue that he did not make necessary.

Here, as the record contains nothing to suggest that appellant was responsible for the “adverse publicity” found by the lower court, I join the plurality’s directions for remand.

1 . Section 9 provides that an accused “can [not] be deprived of his life, liberty, or property, unless by the judgment of his peers or the law of the land.” The terms “law of the land” and “due process of law” are legal equivalents. Eiffert v. Pennsylvania Central Brewing Co., 141 Pa.Super. 543, 548, 15 A.2d 723, 726 (1940).

2 . Appellant has not specifically argued the Pennsylvania Constitution; it might therefore be said, with some force, that he has waived it as a possible ground of relief. However, in his exceptions appellant asserted: “The imposition of . costs not normally assessable in other cases will act as a chill in the exercise of a defendant’s right to a fair trial and for that reason is unconstitutional.” R. 8a. Given this assertion, and the importance of the issue, I consider it appropriate to take appellant as relying on the general rubric of due process as well as on the specific doctrine that he cites. (The chill doctrine is grounded in the Due Process Clause. See United States v. Jackson, 390 U.S. 570, 581-82, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968).) Taking this reading of his argument, I believe that by asserting a denial of due process of law appellant has invoked the Due Process Clauses of both the Pennsylvania and federal Constitutions, notwithstanding that he specifically cites only the latter in his brief. We may therefore legitimately look to the Pennsylvania Constitution in assessing his claim.