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COMMONWEALTH v. MILLS (09/18/70)

decided: September 18, 1970.

COMMONWEALTH
v.
MILLS, APPELLANT



Appeals from judgments of sentence of Court of Common Pleas, Trial Division, of Philadelphia, March T., 1969, Nos. 476 and 477, in case of Commonwealth of Pennsylvania v. Ronald Mills.

COUNSEL

Carolyn E. Temin, Assistant Defender, with her Vincent J. Ziccardi, Acting Defender, for appellant.

Mark Sendrow, Assistant District Attorney, with him James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Cercone, J. Dissenting Opinion by Hoffman, J.

Author: Cercone

[ 217 Pa. Super. Page 270]

On March 11, 1969, the defendant Ronald Edward Mills and one Larry Eugene Nelson were indicted in the County of Philadelphia, Commonwealth of Pennsylvania, for crimes connected with the robbery of the Crusader Savings and Loan Association, a federally insured savings and loan association, in the City of Philadelphia. The crimes were carrying a concealed weapon, unlawfully carrying a firearm without a license, and two charges of aggravated robbery.

On April 8, 1969, they were indicted in the United States District Court for the Eastern District of Pennsylvania on three counts of bank robbery and assault under Title 18 U.S.C. 2113 (a) (b) and (d).

Defendant Mills pleaded guilty to the Federal indictment and was sentenced to a term of five years imprisonment.

[ 217 Pa. Super. Page 271]

Defendant, claiming he was placed in double jeopardy, made a motion to have the state charges dismissed, but that motion was denied. He later pleaded guilty to the state charges of carrying a concealed weapon and unlawfully carrying a firearm without a license and was sentenced to five years' probation and three years' probation respectively, said probationary periods to run concurrently and to follow the five-year imprisonment sentence imposed by the Federal Court. Sentence was suspended on the robbery charges.

Defendant claims that the State charges arising out of the same facts upon which he was sentenced by the Federal Court should have been dismissed in that his constitutional rights were violated by being placed in double jeopardy. It is his contention that the decision of the United States Supreme Court in Bartkus v. Illinois, 359 U.S. 121, 79 S. Ct. 676, 3 L. Ed. 2d 684 (1959), which permitted successive State and Federal prosecutions for the same bank robbery, was overruled by the Court's decision in Benton v. Maryland, 395 U.S. 784, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969). This conclusion of the defendant is based on the premise that the Bartkus decision relied heavily on the holding in Palko v. Connecticut, 302 U.S. 319, 58 S. Ct. 149, 82 L. Ed. 288 (1937), and that since Palko was overruled in Benton, the Bartkus decision was also struck down. In Palko, the Court held that the double jeopardy clause of the Fifth Amendment was not to be read into the due process clause of the Fourteenth Amendment. Twenty-two years later Benton, in overruling Palko, held that protection afforded by the due process clause of the Fourteenth Amendment of the Constitution includes the prohibition against double jeopardy afforded by the Fifth Amendment. Hence, the defendant reasons, the overruling of Palko destroyed the foundation of the Bartkus decision, thus overruling it.

[ 217 Pa. Super. Page 272]

We cannot agree. Defendant's argument must fall because he fails to distinguish the two different situations in which the Palko and Bartkus cases arose. Both cases involved two prosecutions and a discussion of double jeopardy. However, the cases are easily distinguished. The United States Supreme Court recognized the distinction and overruled only the Palko case. The Bartkus rule is still quite alive and was not altered or overruled when the court overruled Palko. A discussion of each of these cases will illustrate the distinction.

The Supreme Court decided the Palko case in 1937. In that case, the appellant challenged a Statute of Connecticut which permitted appeals in criminal cases to be taken by the State. Palko had been found guilty of murder in the second degree and sentenced to prison for life. Thereafter, under the Connecticut law, the State appealed and a new trial was granted due to errors during the first trial. At the second trial, Palko was found guilty of first degree murder and sentenced to death.

Palko claimed that this law subjected him to double jeopardy. He based his claim on the contention that the Fifth Amendment prohibition against double jeopardy was applicable to the States through the operation of the Fourteenth Amendment.

At this time, the Supreme Court decided that this part of the Fifth Amendment was not applicable to the States. Palko argued that the Fourteenth Amendment made the whole Bill of Rights, or at least the Fifth Amendment, applicable to the States. However the Court said at that time that the only parts of the first eight amendments which were applicable to the States were those involving a ". . . principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental." Citing Hebert v. Louisiana,

[ 217 Pa. Super. Page 273272]

U.S. 312, 316. The Court decided that the type of double jeopardy involved in Palko did not violate those "fundamental principles of justice".

The most important thing to remember about Palko is that it involved a State prosecuting a man ...


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