decided: April 22, 1976.
STUDEBAKER. COMMONWEALTH, APPELLANT, V. GRAZIER
Appeals from order of Court of Common Pleas of Bedford County, Nos. 11 and 12 of 1974, in cases of Commonwealth of Pennsylvania v. Eldon G. Studebaker and Commonwealth of Pennsylvania v. Frank E. Grazier.
J. Andrew Smyser, Deputy Attorney General, and Gordon E. Stroup, District Attorney, with them Robert T. Kane, Attorney General, for Commonwealth, appellant.
H. David Rothman, for appellee, Eldon G. Studebaker.
Samuel J. Reich, with him Mark L. Glosser, and Cooper, Schwartz, Diamond & Reich, for appellee, Frank E. Grazier.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Jacobs, J.
[ 240 Pa. Super. Page 39]
On March 1, 1969, a fire of incendiary origin destroyed the New Hoffman Hotel in Bedford, Pennsylvania. On October 17, 1973, an indictment was returned to the United States District Court for the Western District of Pennsylvania charging the appellees, Eldon G. Studebaker and Frank E. Grazier, and two co-defendants with twenty-two counts of mail fraud and conspiracy to commit mail fraud in violation of a federal mail fraud statute.*fn1 After the federal indictment was returned, state criminal complaints were filed on December 27, 1973 charging the appellees and one of the co-defendants in the federal case with the Pennsylvania crime of arson.*fn2 A preliminary hearing on the state charges was held in Bedford County on January 8, 1974.
[ 240 Pa. Super. Page 40]
Trial by jury on the federal charges commenced on January 14, 1974. The state indictments on the charge of arson were returned in Bedford County, Court of Common Pleas, Criminal Division on February 8, 1974. On March 7, 1974, by the jury's verdict, the appellees were acquitted of the federal charges. The same jury returned verdicts of guilty against the two co-defendants.
On March 12, 1974, the appellees filed an application to quash the arson indictments. The appellees contended that the state prosecution would constitute double jeopardy and that the federal adjudication constituted a collateral estoppel to a state prosecution for arson. This application to quash was argued orally on August 28, 1974, and a hearing to establish the joint nature of the federal and state investigation of the fire and subsequent insurance claims was held on September 30, 1974. On May 1, 1975, the lower court granted the appellees' application and quashed the arson indictment. The instant appeal by the Commonwealth followed;*fn3 we reverse and order the indictments reinstated.*fn4
The instant appeal, involving double jeopardy*fn5 and
[ 240 Pa. Super. Page 41]
collateral estoppel*fn6 in the context of separate sovereigns indicting the same individuals for different offenses,*fn7 presents three independent, yet somewhat related, issues.
In Commonwealth v. Mills, 447 Pa. 163, 286 A.2d 638 (1971) our Supreme Court held that while the proscription against double jeopardy does not preclude successive prosecutions by different sovereigns, purely as a matter of Pennsylvania law an "interest analysis" test*fn8 is applied when a state prosecution follows a conviction by a different sovereign for the same offense. The first issue presented, in light of the facts of this appeal, is whether Commonwealth v. Mills, supra, requires that the same "interest analysis" test be applied when different sovereigns are prosecuting the same individuals for different offenses, and the state prosecution follows acquittals of the federal offense.*fn9 The second issue
[ 240 Pa. Super. Page 42]
presented by this appeal is whether the holding of the United States Supreme Court in Ashe v. Swenson, 397 U.S. 436 (1970), applying the rule of collateral estoppel*fn10 in the context of successive criminal prosecutions by the same sovereign, requires the application of collateral estoppel to successive criminal prosecutions by different sovereigns.*fn11 The third issue presented by this appeal is whether section 111 of the Crimes Code,*fn12 which codified the "interest analysis" test of Commonwealth v. Mills,
[ 240 Pa. Super. Page 43]
supra,*fn13 and the collateral estoppel test of Ashe v. Swenson, supra,*fn14 and made these tests applicable "[w]hen conduct constitutes an offense within the concurrent jurisdiction of this Commonwealth and of the United States . . ." 18 Pa.C.S. § 111 (1973), is applicable to the instant appeal. We consider these issues seriatim, and since the lower court found section 111 of the Crimes Code applicable and applied section 111(2) to quash the indictments for arson, we begin our analysis with that issue.
[ 240 Pa. Super. Page 44]
Section 111 of the Crimes Code
It has been stated that in the absence of a statute the rule against double jeopardy does not apply as between separate sovereigns.*fn15 See United States v. Lanza, 260 U.S. 377 (1922).*fn16 The new Crimes Code of Pennsylvania, effective June 6, 1973 enacted 18 Pa.C.S. § 111 (1973), see note 12 supra, which details those situations when successive prosecutions between different sovereigns are barred.*fn17
The lower court found*fn18 18 Pa.C.S. § 111 (1973) applicable to the present case, and applying the "collateral estoppel" test embodied in section 111(2), see notes 12 and 14 supra, held that "[t]he Federal or former prosecution was terminated by an acquittal of the defendant[s] which necessarily required a determination of whether or not [they were] guilty of a conspiracy to commit arson."*fn19
[ 240 Pa. Super. Page 45]
The Crimes Code does not apply to a prosecution for this alleged arson offense.*fn20 "Title 18 of the Consolidated
[ 240 Pa. Super. Page 46]
Pennsylvania Statutes (relating to crimes and offenses), as added by this act, does not apply to offenses committed prior to the effective date of this act and prosecutions for such offenses shall be governed by the prior law, which is continued in effect for that purpose, as if this act were not in force. For the purposes of this section, an offense was committed prior to the effective date of this act if any of the elements of the offense occurred prior thereto." Act of December 6, 1972, P.L. 1482, No. 334, § 2. The alleged offense of arson occurred on March 1, 1969, prior to the effective date, June 6, 1973, of the Crimes Code.*fn21
Commonwealth v. Mills, 447 Pa. 163, 286 A.2d 638 (1971)
[ 240 Pa. Super. Page 47]
In Commonwealth v. Mills, 447 Pa. 163, 286 A.2d 638 (1971) the Court stated that "[t]he sole question presented by this appeal is whether or not a person may be convicted and [ emphasis original ] punished in the courts in Pennsylvania if he has previously been convicted and punished in a federal court for the identical unlawful conduct." Id. at 165, 286 A.2d at 639 (emphasis added).
Initially, the Court in Commonwealth v. Mills, supra, considered the continuing vitality of the principle that successive prosecutions in federal and state courts do not constitute double jeopardy, and that the United States constitution does not proscribe a prosecution and conviction in a state jurisdiction after there has been a prosecution and conviction in the federal courts for the same act. Citing Bartkus v. Illinois, 359 U.S. 121 (1959) and Abbate v. United States, 359 U.S. 187 (1959), the Court observed that "[b]oth 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'." Commonwealth v. Mills, supra at 166-67, 286 A.2d at 639.
The appellant in Commonwealth v. Mills, supra, urged that recent decisions*fn22 of the United States
[ 240 Pa. Super. Page 48]
Supreme Court had "so eroded the 'dual sovereignty' concept formulated in Lanza that it is no longer viable" Commonwealth v. Mills, supra at 167, 286 A.2d at 640, and that Benton v. Maryland, 395 U.S. 784 (1969) bars "successive prosecutions for the same act . . ." Commonwealth v. Mills, supra at 168, 286 A.2d at 640.
The Court specifically rejected these contentions,*fn23 Commonwealth v. Mills, supra at 167-68, 286 A.2d at 640, and concluded that "Bartkus is still the law and that successive prosecutions by the federal and state governments for the same offense do not constitute double jeopardy . . . ." Commonwealth v. Mills, supra at 169, 286 A.2d at 640. However, the Court went on to hold that while Bartkus v. Illinois, supra, is still the law, "henceforth in Pennsylvania, a second prosecution and imposition of punishment for the same offense will not be permitted unless it appears from the record that the interests of the Commonwealth of Pennsylvania and the jurisdiction which initially prosecuted and imposed punishment are substantially different." Commonwealth v. Mills, supra at 171-72, 286 A.2d at 642 (footnote omitted) (emphasis added).
This Pennsylvania rule of "interest analysis" was enunciated and applied in the following context: The appellant was arrested with an accomplice for the robbery of a federally insured savings and loan institution. He was indicted by both the federal and state sovereigns. He pled guilty to the federal indictment and was sentenced to a term of five years imprisonment. His motion to quash the state indictment was ultimately granted by the Supreme Court on the grounds that "the
[ 240 Pa. Super. Page 49]
record in the instant case fails to manifest that the interests of Pennsylvania were not fully protected by the initial prosecution in the federal courts . . . ." Commonwealth v. Mills, supra at 172, 286 A.2d at 642.
We have repeatedly emphasized in this opinion when citing Commonwealth v. Mills, supra, that it involved successive prosecutions for the same offense and involved a situation where the state prosecution followed a conviction on the federal indictment. Instantly, we confront neither a situation involving successive prosecutions for the same offense, nor a situation where the federal prosecution resulted in a conviction.
The underpinnings of the "interest analysis" rule enunciated in Commonwealth v. Mills, supra, are three. First, the Court, focusing on protecting the interest of the individual, found that "placing an individual in a state prison after he had been incarcerated in a federal prison for the same offense is not in any way going to aid in his reformation and rehabilitation." Commonwealth v. Mills, supra at 171, 286 A.2d at 641 (emphasis added). Instantly, the appellees were acquitted of the federal charges, thus, we do not confront a situation where "liberty is taken away twice for the same offense." Commonwealth v. Mills, supra at 170, 286 A.2d at 641.*fn24
The second and third underpinnings of the holding in Commonwealth v. Mills, supra, were framed as follows:
"There are other valid considerations which militate against permitting the second prosecution and punishment for the same offense: (1) It is in
[ 240 Pa. Super. Page 50]
derogation of the principle that 'no one should be twice vexed for the one and the same cause'; and (2) It destroys finality from the individual's standpoint and permits the governments with all their resources and power to make repeated attempts to convict, thus subjecting the accused to live in a continuous state of anxiety, insecurity and possible harassment." Commonwealth v. Mills, supra at 171, 286 A.2d at 641-642 (emphasis added).
Again we emphasize that these considerations relate to "second prosecution and punishment for the same offense." Where, as in the instant case, an individual has allegedly committed two separate offenses against the "peace and dignity," United States v. Lanza, supra, of two sovereigns, we do not believe that an individual can be heard to argue that he is "twice vexed" or subject to a "continuous state of anxiety, insecurity and possible harassment" when there are two separate prosecutions for separate crimes. Arson and mail fraud are two independent criminal acts, each of which involves different elements of proof and separate volitional conduct on the part of a defendant.
The rationale of Commonwealth v. Mills, supra, is thus inapposite to the case at bar in light of the continuing vitality of the principle of Bartkus v. Illinois, supra, the fact that we are not confronted with successive deprivations of liberty, and the fact that there are two independent criminal episodes offending different aspects of the "peace and dignity" of two separate sovereigns.*fn25
[ 240 Pa. Super. Page 51]
Ashe v. Swenson, 397 U.S. 436 (1970)
In Ashe v. Swenson, 397 U.S. 436 (1970) the United States Supreme Court applied the rule of collateral estoppel*fn26 in the following context. The petitioner was charged with robbing one of six participants in a poker game. The jury found the petitioner "'not guilty due to insufficient evidence.'" Id. at 439. Six weeks later the petitioner was brought to trial again, this time for the robbery of another participant in the poker game. The Court noted that "[t]he witnesses were for the most part the same, though this time their testimony was substantially stronger on the issue of the petitioner's identity." Id. at 439-40. The Court held that the rule of collateral estoppel is embodied in the Fifth Amendment guarantee
[ 240 Pa. Super. Page 52]
against double jeopardy. Id. at 445.*fn27 Applying the rule of collateral estoppel that "when an issue of ultimate fact has once been determined by a valid and final judgment that issue cannot again be litigated between the same parties in any future lawsuit" Id. at 443, the Court concluded that the second prosecution was "wholly impermissible" Id. at 445, since once "a jury determined by its verdict that the petitioner was not one of the robbers, the State [could not] constitutionally hale him before a new jury to litigate that issue again." Id. at 446.
Ashe v. Swenson, supra, applied the rule of collateral estoppel to successive prosecutions by the same sovereign. This Court has applied the holding in Ashe v. Swenson, supra, in Commonwealth v. Dooley, 225 Pa. Superior Ct. 454, 310 A.2d 690 (1973), and Commonwealth v. DeVaughn, 221 Pa. Superior Ct. 410, 292 A.2d 444, allocatur refused, 210 Pa. Superior Ct. xliv (1972). Both cases involved successive criminal prosecutions by the same sovereign.
It is axiomatic that the doctrine of collateral estoppel requires that the party to be estopped, herein the Commonwealth, be the same party or privy "against whom the prior final judgment was entered." Thompson v. Karastan Rug Mills, 228 Pa. Superior Ct. 260, 323 A.2d 341 (1974). Hence, the lack of identity between the Commonwealth and the federal government precludes estoppel in this case.*fn28 The essence of the doctrine of
[ 240 Pa. Super. Page 53]
collateral estoppel is a well recognized equitable reaction against allowing a party to relitigate issues which have already been decided against him, after he has had his day in court. The Commonwealth simply has not had its day in court on the state crime of arson and cannot be estopped.*fn29
[ 240 Pa. Super. Page 54]
The application of Ashe v. Swenson, supra, to successive prosecutions by different sovereigns is an issue of first impression in this Commonwealth. However, our research on this issue has revealed that courts of other jurisdictions, when faced with this issue, have rejected the application*fn30 of the collateral estoppel test articulated in Ashe v. Swenson, supra.
In United States v. Smith, 446 F.2d 200 (4th Cir. 1971), a case where the federal prosecution followed the state prosecution, the Court stated: "The doctrine of
[ 240 Pa. Super. Page 55]
collateral estoppel is indeed applicable in criminal cases Ashe v. Swenson, 397 U.S. 436, 90 S. Ct. 1189, 25 L.Ed.2d 469 (1970); Sealfon v. United States, 332 U.S. 575, 68 S. Ct. 237, 92 L.Ed. 180 (1948), but it is fundamental that the party estopped from relitigating issues must have been a party to the initial litigation. Serio v. United States, 203 F.2d 576 (5th Cir. 1953). The federal government is neither the same as nor in privity with the State of Virginia and therefore is not barred from relitigating facts resolved in defendant's favor in the former prosecution." Id. at 202 (citations omitted). See also United States v. Sifuentes, 504 F.2d 845 (4th Cir. 1974) (lack of identity between state and federal governments precludes estoppel); United States v. Fernandez, 497 F.2d 730 (9th Cir.), cert. denied, 420 U.S. 990 (1974) ("Because the state and federal governments, being separate sovereigns, are not the same party, Ashe does not undermine Abbate and Bartkus." United States v. Fernandez, supra at 747, n.10 (Hufstedler, J., Specially Concurring)); People v. Cooper, 58 Mich. App. 284, 227 N.W.2d 319 (1975) (the rule of collateral estoppel does not apply since successive federal and state prosecutions do not involve the same parties or their privies (dictum)).
In United States v. Feinberg, 383 F.2d 60 (2d Cir. 1967) the United States Court of Appeals for the Second Circuit stated in language which is also in accord with our present holding on the non-applicability of Commonwealth v. Mills, supra, to the instant case:
"While the doctrine of collateral estoppel is indeed applicable to criminal cases, Sealfon v. United States, 332 U.S. 575, 578, 68 S. Ct. 237, 92 L.Ed. 180 (1948) the party estopped from relitigating the same issues must have been a party to the initial litigation. Serio v. United States, 203 F.2d 576, 578 (5th Cir. 1953); United States v. Wapnick, 198 F.Supp. 359, 360 (E.D.N.Y. 1961), aff'd per curiam, 315 F.2d 96 (2 Cir. 1963), cert. denied, 374 U.S. 829, 83 S. Ct. 1868
[ 240 Pa. Super. Page 56]
(1965); United States v. Kramer, supra 289 F.2d at 913. There is insufficient identity of interest between the state and federal governments in prosecuting intrastate and interstate offenses, respectively, United States v. Sutton, 245 F.Supp. 357, 359-360 (D.Md. 1965) . . . ." Id. at 71 (emphasis added).
In summary, section 111 of the Crimes Code does not apply; Commonwealth v. Mills, supra, does not mandate the application of an "interest analysis" test; and the Commonwealth cannot be denied its "day in court" on the alleged arson offense.
Accordingly, the order of the court below quashing the arson indictments is reversed and the indictments reinstated.
Order reversed and indictments reinstated.