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decided: May 4, 1973.


Appeals from orders of Superior Court of Pennsylvania, Oct. T., 1970, No. 251, Oct. T., 1970, No. 410, and April T., 1971, No. 328, affirming the judgments of sentences of Court of Common Pleas of Lycoming County, Sept. T., 1968, No. 151, Court of Common Pleas of Berks County, Sept. T., 1968, No. 255, and Court of Common Pleas, Criminal Division, of Allegheny County, Oct. T., 1968, No. 325, and April T., 1969, No. 520, in cases of Commonwealth of Pennsylvania v. Peter Campana; Same v. John Doe, et al.; Same v. Robert Earl King.


David A. Binder, with him Martin W. Binder, Michael A. O'Pake, Laurence F. Ward, and Marx, Ruth, Binder & Stallone, for John E. Hall, appellant.

Emmanuel H. Dimitriou, with him Lieberman & Dimitriou, for Roger Smith, Charles Ginder, Leroy Stoltzfus, Jr., Charles Dorman, and Robert A. Marcinkowski, appellants.

Ambrose R. Campana, with him Campana & Campana, for Peter Campana, appellant.

Sallie Ann Radick, Assistant Public Defender, with her John J. Dean, Assistant Public Defender, and George H. Ross, Public Defender, for Robert Earl King, appellant.

Grant E. Wesner, Deputy District Attorney, with him Robert L. VanHoove, District Attorney; C. A. Barlett, Assistant District Attorney, with him Allen E. Ertel, District Attorney; Robert L. Eberhardt, Assistant District Attorney, with him Carol Mary Los, Assistant District Attorney, and Robert W. Duggan, District Attorney, for Commonwealth, appellee.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Roberts. Concurring Opinion by Mr. Justice Eagen. Mr. Chief Justice Jones joins in this concurring opinion. Concurring Opinion by Mr. Justice Nix. Dissenting Opinion by Mr. Justice Pomeroy.

Author: Roberts

[ 452 Pa. Page 238]

These three appeals were argued together during the September 1972, Term, and will be disposed of in this opinion.

On September 7, 1968, a justice of the peace found appellant Peter T. Campana not guilty of disorderly conduct, a charge arising out of an August 17, 1968, incident. Additional charges arising from the same incident of resisting arrest and assault on a police officer were dismissed for lack of sufficient evidence. Subsequently the Commonwealth again instituted the charges of resisting arrest and assault on a police officer before another justice of the peace who bound appellant over to the grand jury. On February 5, 1969, appellant was tried by jury and convicted of both crimes. Post-trial motions were denied and appellant was placed on probation for a period of one year. The Superior Court affirmed in a per curiam order, with Judge Hoffman noting a dissent. Commonwealth v. Campana, 217 Pa. Superior Ct. 818, 270 A.2d 231 (1970). We granted allocatur and heard argument during the January 1972, Term. Subsequently we ordered reargument during the September 1972, Term.

Appellants John Doe, et al., were convicted by a justice of the peace on June 10, 1968, of disorderly conduct and disturbing the peace for their conduct in a Berks County bar on May 19, 1968. Each appellant was ordered to either pay a fine of $300.00 or undergo imprisonment for thirty days. The justice of the peace also bound appellants over to the grand jury on charges of aggravated assault and battery, riot, riotous destruction of property and malicious mischief, all charges originating from the May 19, 1968, disturbance. On June 10, 1969, appellants*fn1 were tried by jury and

[ 452 Pa. Page 239]

    convicted of riot, riotous destruction of property and malicious mischief. In addition appellants John Hall and Charles Ginder were found guilty of assault and battery. Motions for a new trial and in arrest of judgment were argued. The motion in arrest of judgment was granted only as to the malicious mischief charge. Each appellant was sentenced to serve a term of imprisonment of not less than one and one-half nor more than five years. The Superior Court affirmed per curiam with Judge Hoffman filing a dissenting opinion in which Judge Spaulding joined. Commonwealth v. John Doe, 217 Pa. Superior Ct. 148, 269 A.2d 138 (1970). We granted allocatur and, after first hearing argument during the January 1972, Term, ordered reargument during the September 1972, Term.

On February 28, 1969, appellant Robert Earl King was ordered to pay a fine of $500.00 by a justice of the peace for disorderly conduct that occurred the same day. The justice of the peace also bound appellant over to the grand jury on charges of assault and battery on a police officer in execution of a legal process and resisting arrest, both charges stemming from the February 28, 1969, incident. On September 11, 1969, appellant in a non-jury trial was convicted of both charges, and a sentence of not less than six months nor more than one year was imposed. No post-trial motions were filed but on March 8, 1971, appellant was allowed to file post-trial motions as if timely filed. After their denial the Superior Court affirmed with a per curiam order. Commonwealth v. King, 220 Pa. Superior Ct. 771, 286 A.2d 416 (1972). We granted allocatur and ordered the appeal heard at the time of reargument of the above cases.

Presented for consideration in these consolidated appeals is whether appellants, by virtue of their second prosecutions, were subjected to "Double Jeopardy" in contravention of the Fifth and Fourteenth Amendments

[ 452 Pa. Page 240]

    of the United States Constitution.*fn2 We hold that all charges resulting from the criminal "episode"*fn3 of each appellant should have been consolidated at one trial, and consequently the second prosecutions violated the Double Jeopardy Clause of the Fifth Amendment. Accordingly we reverse the judgments of sentences imposed as a result of the second prosecutions.*fn4

[ 452 Pa. Page 241]

The Double Jeopardy Clause reads in deceptively simple terms: "[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb; . . ." Although the language of the clause remains cryptic, leading authorities generally turn to Justice Black's opinion in Green v. United States, 355 U.S. 184, 187, 78 S. Ct. 221, 223 (1957), as an impassioned yet reasoned statement of the policies underlying the Double Jeopardy Clause: "[T]he State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity . . . ." (Emphasis supplied.)

While courts and commentators remain undecided whether the clause governs the question of how many separate criminal offenses a defendant can be punished for at a single trial,*fn5 authorities are unanimous that the principal purpose of the Double Jeopardy Clause is to prevent "repeated attempts to convict an individual of an alleged offense" through a series of prosecutions.*fn6

[ 452 Pa. Page 242]

As Mr. Chief Justice Burger has noted: "'The prohibition is not against being twice punished, but against being twice put in jeopardy . . . .' The 'twice put in jeopardy' language of the Constitution thus relates to a potential, i.e., the risk that an accused for a second time will be convicted of the 'same offense' for which he was initially tried." Price v. Georgia, 398 U.S. 323, 326, 90 S. Ct. 1757, 1759 (1970).

At its inception in early common law the defense of double jeopardy was remarkably equipped to prevent successive prosecutions.*fn7 Criminal statutes were relatively few in number and broad in coverage. An acquittal at one trial could not generally be followed by another prosecution, because the second trial would by necessity be based on precisely the same charge as that of the first. A conviction resulted in a severe sentence, generally death, leaving little incentive for the prosecution to seek another trial.

As countless legal scholars have noted, however, the modern age of criminal procedure has witnessed a proliferation of penal statutes.*fn8 A consequence of this development

[ 452 Pa. Page 243]

    is the judiciary's responsibility "to recognize that new rules must be devised to cope with the fact that a single factual situation may today give rise to a number of substantive offenses."*fn9 Prosecutors, "by consulting a Thesaurus,"*fn10 are presently able to dissect a single criminal "act", "transaction", "occurrence", "episode" or "circumstance", and produce a variety of criminal charges. Unless the judiciary properly meets its responsibility, a prosecutor, if he is for any reason dissatisfied with the result of the first trial, could circumvent the generally accepted prohibition against state appeals*fn11 with a new set of charges for a second prosecution. Such "trial run" prosecutions are, in Mr. Justice Stewart's words, "precisely what the constitutional guarantee forbids."*fn12

The Pennsylvania Double Jeopardy Clause, differing only stylistically from that contained in the Fifth Amendment,*fn13 has been thought to be limited only to what were heretofore "capital" offenses.*fn14 Nevertheless,

[ 452 Pa. Page 244]

    defendants in this Commonwealth have been afforded a measure of protection against successive prosecutions by common law pleas of autrefois acquit and autrefois convict. These pleas prevent a prosecutor, after a conviction or acquittal of a "constituent" or lesser included offense in the first trial, for initiating a second prosecution for a greater offense.*fn15

Similarly we have construed our Double Jeopardy Clause to protect a defendant upon retrial in a murder prosecution from conviction in the second trial of a greater offense than that of the first,*fn16 or greater punisment.*fn17 In Dinkey v. Commonwealth, 17 Pa. 126 (1851), this Court applied collateral estoppel to prevent a second prosecution where an issue necessary to sustain the charge was resolved in defendant's favor at the first trial.*fn18 In Commonwealth v. Lloyd, 141 Pa. 28, 30, 21 Atl. 411 (1891), we unanimously prohibited a second prosecution because the state could have joined both counts at the first trial: "[W]e do not think the commonwealth can prosecute for the one offence in one county, and for the other in a different county. In

[ 452 Pa. Page 245]

    other words, there may be two counts, but not two prosecutions. The commonwealth has elected in this instance to proceed in Luzerne county, and we think is bound by such election. . . ." (Emphasis supplied.)

Many jurisdictions, including perhaps this one at times,*fn19 have applied a "same evidence" test to determine whether a second prosecution is for the "same offense." That test has been almost unanimously regarded as totally ineffective to implement the important double jeopardy guarantee of preventing successive prosecutions.*fn20 As one commentator in the Yale Law Journal aptly noted: "Attempting to choose which version of the same evidence test would best implement the double jeopardy prohibition is like deciding which of five lumber jacks would be the most handy with a violin."*fn21

The United States Supreme Court has recently responded to the problem posed by successive prosecutions in two landmark cases. In Waller v. Florida, 397 U.S. 387, 90 S. Ct. 1184 (1970), the Court held impermissible as a violation of the Double Jeopardy Clause a second prosecution that was concededly for the "same acts" that the defendant had been punished for in a court of limited jurisdiction. More significantly,*fn22 Mr.

[ 452 Pa. Page 246]

Justice Stewart, speaking for the Court in Ashe v. Swenson, 397 U.S. 436, 90 S. Ct. 1189 (1970), gave specific recognition to the "possibil[ity] [of] prosecutors . . . spin[ning] out a startingly [sic] numerous series of offenses from a single alleged criminal transaction."*fn23 As a partial response to that "startling" possibility, the Court held a second prosecution impermissible where an application of "collateral estoppel" revealed that an "ultimate fact" essential to the offense in the second trial had been decided in defendant's favor at the first.*fn24

The protection afforded a defendant against successive or repeated prosecutions by the doctrine of collateral estoppel, however, is diminished considerably by its inherent limitations. That imprecise doctrine has proven quite difficult and burdensome for appellate courts to properly and uniformly apply.*fn25 Before the doctrine of collateral estoppel can apply the first trial must end in acquittal,*fn26 and a "rational" reading of the

[ 452 Pa. Page 247]

    record must disclose that the jury based its verdict of acquittal on but one issue.*fn27 As Mr. Justice Schaefer of the Illinois Supreme Court has succinctly observed: "Collateral estoppel is therefore of limited value because it is not often possible to determine with precision how the judge or jury has decided any particular issue."*fn28

It has been noted that the doctrine of collateral estoppel places defense counsel on the horns of a dilemma.*fn29 If defendant is to gain any chance of protection under the doctrine he is better off by limiting his defense at the first trial thus placing fewer facts at issue before the jury. Such a consideration might impair counsel's ability to effectively represent a defendant.

By far the most efficient and enthusiastically received*fn30 proposal for preventing successive prosecutions is that advanced by the American Law Institute Model Penal Code (§ 1.07(2)): "[A] defendant shall not be

[ 452 Pa. Page 248]

    subject to separate trials for multiple offenses based on the same conduct or arising from the same criminal episode, if such offenses are known to the appropriate prosecuting officer at the time of the commencement of the first trial. . . ."*fn31 The commentary to § 1.08 of the Model Penal Code, which bars a second prosecution "based upon the same facts" as that of the first, states that the purpose of the section is to protect defendants from: "successive prosecutions based upon essentially the same conduct, whether the purpose in so doing is to hedge against the risk of an ...

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