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decided: January 24, 1974.


Same cases in Supreme Court: Concurring Opinion by Mr. Justice Nix. Dissenting Opinion by Mr. Justice Pomeroy.

Author: Per Curiam

[ 455 Pa. Page 624]

On May 4, 1973, this Court reversed the several judgments of sentence in Commonwealth v. Campana, 452 Pa. 233, 304 A.2d 432 (1973).*fn1 Three opinions were filed in support of our judgments, none of which obtained the approval of a majority of this Court.*fn2

Subsequently a petition for writ of certiorari was submitted to the United States Supreme Court. On October 9, 1973, the Supreme Court granted the petition for writ of certiorari, vacated this Court's judgments, and remanded the causes in Campana to us to consider whether our judgments were based on federal or state grounds. Pennsylvania v. Campana, 414 U.S. 808, 94 S. Ct. 73 (1973). Accordingly, we file this per curiam addendum opinion.

There are, of course, indications in some of the opinions supporting our judgments that a basis for the judgments was to be found in federal constitutional problems. However, there are also separate reasons advanced for the result that do not stand on a view of federal constitutional requirements.

Our supervisory power over state criminal proceedings is broad,*fn3 and this Court need not, as a matter of state law, limit its decision to the minimum requirements of federal constitutional law. E.g., Commonwealth v. Mills, 447 Pa. 163, 286 A.2d 638 (1971);*fn4

[ 455 Pa. Page 625]

See Commonwealth v. Willman, 434 Pa. 489, 491, 255 A.2d 534, 535 (1969). Compare Santobello v. New York, 404 U.S. 257, 92 S. Ct. 495 (1971) (decided Dec. 20, 1971), with Commonwealth v. Alvarado, 442 Pa. 516, 276 A.2d 526 (1971) (decided Apr. 22, 1971).

This Court views our May 4, 1973 judgments in Campana as state law determinations pursuant to our supervisory powers.

The 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. 18 Pa. S. § 110 (1973) (effective June 6, 1973).*fn8 Section 110 bars in described circumstances

[ 455 Pa. Page 627]

    subsequent state prosecutions for "any offense based

[ 455 Pa. Page 628]

    on the same conduct or arising from the same criminal episode . . . ." Id. at § 110(1)(ii).

Concurring Opinion by Mr. Justice Nix:

In my concurring opinion in Commonwealth v. Campana, 452 Pa. 233, 304 A.2d 432 (1973), I was of the opinion that the result reached by the Court could not be justified by the Double Jeopardy Clauses of either the State or Federal Constitution.*fn1 However, I expressed the view that we should, under our supervisory powers, adopt the rule advocated by Mr. Justice Roberts in his plurality opinion. My opinion remains unaltered.

Dissenting Opinion by Mr. Justice Pomeroy:

As the sole dissenter to the decision of the Court entered on May 4, 1973, in these cases, Commonwealth v. Campana, 452 Pa. 233, 304 A.2d 432 (1973), it is with diffidence that I presume again to disagree with the Court, this time in its statement as to the basis of the May 4th decision. The addendum opinion now filed, however, is so much at odds with what was said last year that I am obliged to register my dissent.

In the former plurality opinion by Mr. Justice Roberts, joined by Justices O'Brien and Manderino, the holding was thus stated: "We hold that all charges resulting from the criminal 'episode' of each appellant should have been consolidated at one trial, and, consequently the second prosecution violated the Double Jeopardy Clause of the Fifth Amendment." 452 Pa. at 239-40. (Footnote omitted.) There followed a lengthy exposition of that clause in light of decisions of the

[ 455 Pa. Page 629]

Supreme Court of the United States and other authorities. The discussion mentioned the comparable clause contained in Art. 1, Section 10 of the Pennsylvania Constitution, and cast some doubt (without resolving it) on the limitation of that clause to "capital offenses". 452 Pa. at 243. After discussion of the relative merits and demerits of the so-called "same evidence" test and "same transaction" test used in various jurisdictions and advocated, pro and con, by various secondary authorities to determine whether a second prosecution is for the "same offense", the Court reiterated its conclusion: "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'." (Footnote omitted.) Id. at 252-53.

In the concurring opinion of Mr. Justice Eagen, joined by Mr. Chief Justice Jones, the issue before the Court was squarely put: "What does the constitutional phrase 'same offense' mean in the context of the Double Jeopardy Clause of the Fifth Amendment, as applied to the states through the Fourteenth Amendment?" 452 Pa. at 256. The ensuing discussion in this concurring opinion was directed entirely to consideration of that question, leading Mr. Justice Eagen to conclude that, since the crimes charged in the second prosecutions were not intended to prevent a substantially different harm or evil than those charged in the first prosecutions, "these crimes were the 'same offense' in the constitutional sense, and, hence, the second prosecutions constituted double jeopardy". 452 Pa. at 260. (Concurring opinion of Mr. Justice Eagen.)

Mr. Justice Nix filed an opinion in which he concurred with the result reached, but on non-constitutional grounds. Analyzing the opinion of the Supreme Court of the United States in Ashe v. Swenson, 397 U.S. 436, 25 L. Ed. 2d 469 (1970), he concluded that

[ 455 Pa. Page 630]

    the result reached in the plurality opinion "has no basis in the policy of the Double Jeopardy Clause". 452 Pa. at 262. (Concurring opinion of Mr. Justice Nix.)

The dissenting opinion of this writer was based largely on what was believed to be a misconception of the plurality opinion that the Double Jeopardy Clause of the Federal Constitution, properly interpreted, compelled or supported its holding: "[T]he issue which the majority has today framed and answered in the affirmative -- whether the Federal Constitution contains a rule requiring joinder of admittedly separate offenses arising from the 'same criminal episode' -- has already been answered for us in the negative. Ciucci v. Illinois, 356 U.S. 571, 2 L. Ed. 2d 983 (1958). The Court's failure to recognize this fact, in my view, bids fair to disturb in a serious manner the allocation of power as between our state courts and the United States Supreme Court." 452 Pa. at 268-69. (Dissenting opinion of Mr. Justice Pomeroy.) (Footnote omitted.) The dissenting opinion went on to indicate approval, as a rule of criminal procedure, of the approach proposed by the American Bar Association Project on Minimum Standards for Criminal Justice (Standards Relating to Joinder and Severance, § 1.3) (Approved Draft 1968), and made note, as another non-constitutional approach to the problem, of the compulsory joinder provisions contained in Pennsylvania's new Crime's Code, Act of Dec. 6, 1972, P. L. 1482, No. 334, 18 Pa. S. § 110, effective June 6, 1973.

From the foregoing cursory review of the opinions filed in Campana, it is manifest that every member of this Court considered that the plurality opinion and the concurring opinion of Mr. Justice Eagen, subscribed to in total by five justices, were addressed to and based upon the Double Jeopardy Clause of the Fifth Amendment of the Constitution of the United States.

[ 455 Pa. Page 631]

The United States Supreme Court, having granted certiorari and having vacated our judgments, has now directed us " to consider whether [ our ] judgments are based on federal or state constitutional grounds, or both ". (My emphasis.) By its per curiam addendum, however, this Court, which on May 4, 1973 was so clearly of the view that the Double Jeopardy Clause of the Fifth Amendment embodied the rule of compulsory joinder announced in Campana, has retreated altogether from constitutional adjudication, either federal or state, and instead has announced in a most conclusory fashion that the Campana cases involve "state law determinations pursuant to our supervisory powers".

To my mind the above statement is evasive and equivocal, and I cannot subscribe to it. It represents a refusal to accept accountability for our decisions on federal constitutional law and an unwillingness to leave to the highest federal court the last word on questions of such law.*fn1 If this Court sees fit to base a holding in a case upon its interpretation of the Federal Constitution, as it clearly did in Campana, then it must tolerate review of such a decision by the Supreme Court of the United States. It will not do, when our decision is under challenge, to announce that we were merely exercising a supervisory power. In short, since the May 4, 1973 opinions of Justices Roberts and Eagen (in which a majority of the Court joined) are plainly based on the Federal Constitution's Double Jeopardy Clause, we should not hesitate to say so.

Today's addendum opinion, however, should have one result which I believe to be salutary. By its retreat

[ 455 Pa. Page 632]

    to supervisory power grounds and by its refusal now to say that either the Federal Constitution or the Pennsylvania Constitution requires the result in Campana, the majority puts to rest a primary concern which I had with the earlier opinions -- that this new Fifth Amendment right might be retrospectively applied. Surely an opinion which is based on "state law determinations pursuant to our supervisory powers" and which merely overruled the then existing Pennsylvania Rule of Criminal Procedure 219 will not require any degree of retroactivity. It is true, of course, that the original opinions in Campana still exist in the published reports and continue to declare a clearly-stated, albeit incorrect, principle of federal constitutional law. I assume, however, that in view of its disinclination to permit the United States Supreme Court to pass upon that decision, this Court cannot justifiably hereafter take the position that the rule of compulsory joinder set forth in Campana is compelled by the Federal Constitution. If this is correct, the problems of retroactivity will evaporate.


* : A subsequent petition for certiorari in this case was denied by the Supreme Court of the United States on June 17, 1974. Pennsylvania v. Campana, 417 U.S. 969, 94 S. Ct. 3172 (1974).

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