Appeal from order of Superior Court, Oct. T., 1970, Nos. 494 and 495, affirming judgment 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.
Michael L. Levy, Assistant Defender, with him John W. Packel, Assistant Defender, and Vincent J. Ziccardi, Defender, for appellant.
Mark Sendrow, Assistant District Attorney, with him Milton M. Stein, Assistant District Attorney, James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Bell, C. J., Jones, Eagen, O'Brien, Pomeroy and Barbieri, JJ. Opinion by Mr. Justice Eagen. Mr. Justice Roberts took no part in the consideration or decision of this case. Concurring Opinion by Mr. Justice Pomeroy. Dissenting Opinion by Mr. Chief Justice Bell. Dissenting Opinion by Mr. Justice Barbieri.
The sole question presented by this appeal is whether or not a person may be convicted and punished in the courts of Pennsylvania if he has previously been convicted and punished in a federal court for the identical unlawful conduct.
The appellant, Ronald Edward Mills, was arrested with an accomplice for the robbery of a federally insured Savings and Loan Association in Philadelphia. They were indicted by the Commonwealth of Pennsylvania for violations of the state's criminal code, specifically, carrying a concealed deadly weapon, unlawfully carrying a firearm without a license and aggravated robbery.*fn1 They were also indicted by the United States
Government for violating 18 U.S.C. § 2113(a) (b) and (d), i.e., a bank robbery and assault.
On May 16, 1969, Mills plead guilty to the federal indictment and was sentenced to a term of five years imprisonment. Subsequently, he filed a motion in the state court to dismiss the indictments there pending against him on the ground that further prosecution would constitute double jeopardy. This motion was denied. Later, he plead guilty to these indictments and was sentenced on one to pay a fine, the costs of prosecution and serve a term of probation for five years to begin at the expiration of the sentence imposed in the federal court. On the other indictment, he was sentenced to a concurrent three-year period of probation. Mills filed an appeal in the Superior Court,*fn2 which subsequently affirmed the orders of the trial court. Judge Hoffman filed a dissenting opinion. See 217 Pa. Superior Ct. 269, 269 A.2d 322 (1970). We granted allocatur.
In an almost identical factual situation, the United States Supreme Court in Bartkus v. Illinois, 359 U.S. 121, 79 S. Ct. 676 (1959), specifically ruled that successive prosecutions in federal and state courts do not constitute double jeopardy, and that the United States Constitution does not prosecribe a prosecution and conviction in a state jurisdiction after there has been a prosecution and conviction in the federal courts for the same act. On the same day in Abbate v. United States, 359 U.S. 187, 79 S. Ct. 666 (1959), sanction was given to a prosecution and conviction in the federal courts after a prosecution and conviction had been effected in a state jurisdiction on the same facts. Both decisions cited the principle of "dual sovereignty" enunciated
in United States v. Lanza, 260 U.S. 377, 43 S. Ct. 141 (1922), wherein the court stated:
"We have here two sovereignties, deriving power from different sources, capable of dealing with the same subject matter within the same territory. . . . Each government in determining what shall be an offense against its peace and dignity is exercising its own sovereignty, not that of the other.
"It follows that an act denounced as a crime by both national and state sovereignties is an offense against the peace and dignity of both and may be punished by each."
Aside from challenging the correctness of the ruling in Lanza and Bartkus,*fn3 appellant contends that more recent decisions specifically Elkins v. United States, 364 U.S. 206, 80 S. Ct. 1437 (1960), and Murphy v. Waterfront Commission, 378 U.S. 52, 84 S. Ct. 1594 (1964) have so eroded the "dual sovereignty" concept formulated in Lanza that it is no longer viable.
While two members of the United States Supreme Court who joined in the Bartkus opinion have expressed this same view (see Stevens v. Marks, 383 U.S. 234, 250, 86 S. Ct. 788, 797 (1966) (concurring opinion)), and it would appear that Elkins and Murphy*fn4 have at least undermined the "dual sovereignty" doctrine, we think that these cases are ...