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decided: June 15, 1979.


No. 401 October Term 1978, Appeal from Order of Court of Common Pleas of Northampton County, Criminal Div., entered Nov. 1, 1977 at Nos. 86 & 87 Jan. Term 1975.


James C. Hogan, Easton, for appellant.

John E. Gallagher, District Attorney, Easton, for Commonwealth, appellee.

Cercone, Spaeth and Lipez, JJ.

Author: Spaeth

[ 267 Pa. Super. Page 184]

The sole issue on this appeal is whether the federal and state constitutions prohibit the Commonwealth from imposing on a convicted defendant the necessary trial preparation and consultation expenses incurred by the district attorney in the prosecution of the case.

On September 30, 1975, appellant was convicted on one count of operating a motor vehicle while intoxicated and on three counts of involuntary manslaughter. He was sentenced to 1 and 1/2 to 3 years imprisonment, fined $250, and assessed costs of the prosecution. No appeal was taken from the judgment of sentence, but upon the court clerk's presentation of the bill of costs, appellant filed a petition to strike certain items included in the bill. In an opinion rendered August 3, 1977, the lower court ordered certain items in the bill reduced, sustained the clerk's authority to assess other items as costs, and ordered an evidentiary hearing to determine whether the district attorney's trial preparation and consultation expenses had been necessary to the successful prosecution of appellant. After a hearing on October 5, 1977, the lower court approved the clerk's bill as modified, and this appeal followed.

The bill of costs approved by the lower court totaled $5059.22. This amount included $250 for appellant's fine, $635.22 for court costs (such as witness, constable and clerk fees), and $4,174 for the district attorney's trial preparation and consultation expenses. These expenses comprised the fee of Heikki Elo, a surveyor and registered professional engineer who testified at trial and prepared a map of the highway area where appellant's automobile struck and killed three pedestrians, and the fee of Dr. Russell E. Brenner, a physicist retained by the district attorney as an accident

[ 267 Pa. Super. Page 185]

    reconstruction expert. Although Dr. Brenner attended the trial, he did not testify.

Appellant does not challenge the clerk's assessment of the fine and court costs; he challenges only the assessment of the district attorney's trial preparation and consultation expenses. Appellant concedes that under the Act of August 9, 1955, P.L. 323, 16 P.S. § 1403, the clerk was authorized to assess these expenses against him.*fn1 See also Commonwealth v. Coder, 252 Pa. Super. 508, 520, 382 A.2d 131, 137 (1977) (CERCONE, J., dissenting). He argues, however that the Act violates his right to a fair trial under the United States Constitution and Pennsylvania Constitution, and his right against self-incrimination, because it "encourages entry of guilty pleas due to unknown and uncontrolled economic losses which might be incurred as a result of jury trial . . . ." Appellant's Brief at 8. He also argues that the Act violates the due process and equal protection clauses of the United States Constitution and Article I, sections 1 and 9, of the Pennsylvania Constitution because it "provides no test or standard of conduct which the Court can use to grant or withhold approval of . . . the expenses which are ultimately taxed to the convicted defendant." Id.


In considering whether there has been a violation of appellant's right to a fair trial, we may take as our point of departure the several opinions in Commonwealth v. Coder, supra, for there we addressed issues similar to the issues presented here. In Coder, we were asked to decide whether the Commonwealth could constitutionally require a convicted

[ 267 Pa. Super. Page 186]

    defendant to pay costs resulting from a change of venue. A majority of this court held that it could not. Judge JACOBS, in a plurality opinion, observed that a defendant might be deterred from seeking a change of venue, even though he was entitled to the change, if he knew that the Commonwealth could collect from him, upon conviction, the costs caused by the change. The possibility of this deterrence, the plurality held, violated an accused's right under the United States Constitution to a fair trial. This writer, in a concurring opinion, relied on the due process clause of the Pennsylvania Constitution, stating that under that clause, "it is fair to impose the normal costs of prosecution on a convicted defendant; it is unfair (except in one kind of case . . .) to impose the costs of change of venue." 252 Pa. Super. at 514, 382 A.2d at 134. The excepted case was where "the defendant publicized his own case," so that "the costs [of a change of venue] are a direct result of the defendant's own actions." Id. Judge CERCONE, in a dissenting opinion joined by two other members of this court, stated that neither the United States Constitution nor the Pennsylvania Constitution was violated by the requirement that "a person who commits a crime thereby triggering the prosecutorial machinery of the Commonwealth, should repay the Commonwealth the necessary costs and expenses of prosecution, if he is found guilty beyond a reasonable doubt, and is financially able to do so." 252 Pa. Super. at 519, 382 A.2d at 137.

Thus the several opinions in Coder point out an important distinction between the costs arising from a change of venue and the costs arising from the investigation and trial of the case itself. As a majority of the members of the court recognized, if one defines causation as including remote and indirect causes, it may be said that a criminal defendant was the cause of excessive pre-trial publicity, for had he not committed the crime there would be no event to publicize; but if one limits the definition of causation to immediate and direct causes it will be seen that generally the publicity will have been caused by an agency or persons outside the

[ 267 Pa. Super. Page 187]

    defendant's control. Because a criminal defendant cannot control the media, or, in most instances, persons wishing to sensationalize his crime, a majority of the members of the court believed that he could not be required constitutionally to pay the costs necessary to secure a fair trial. Both the plurality and concurring opinions also recognized, however, that if the excessive pre-trial publicity was not caused by an agency or persons outside the defendant's control, but rather was the immediate and direct result of the defendant's own actions, then the defendant could be required to pay the costs of a consequent change of venue. 252 Pa. Super. at 512 and 514, 382 A.2d at 133 and 134. The plurality opinion implicitly, and the concurring opinion explicitly, recognized that so far as costs of prosecution were concerned, as distinguished from costs of a change of venue, these were so immediate and direct a result of the defendant's own actions, in committing the crime, that the state could require him to pay them. As regards costs of prosecution, there was no difference of opinion among the members of the court; the only difference was as regards costs of change of venue.

Appellant nevertheless argues that his case presents special circumstances, which should lead us to conclude that the costs of prosecution were not the immediate and direct result of his actions in committing the crime, but rather of defending himself. Specifically, he argues that the district attorney prepared his case more carefully, and retained experts whose services he would not have otherwise sought, only upon learning that appellant planned to call expert witnesses and defend himself vigorously.*fn2 Because of this, appellant concludes that it would be unfair to tax him with

[ 267 Pa. Super. Page 188]

    the district attorney's expenses, and that such taxation would discourage other defendants in the future from defending themselves to the best of their abilities.

We do not find this argument persuasive. While it may sometimes occur that a district attorney will prepare his case according to his estimation of the defendant's trial preparations, it seems likely that the degree of the district attorney's preparation will more frequently be a function of the importance of the case, its complexities, and the need to prove the defendant's guilt beyond a reasonable doubt. Whether this is so or not, however, a defendant is in any case protected by the requirement in the Act of August 9, 1955, supra, 16 P.S. § 1403, of proof that the expenses incurred by the district attorney were "necessary." If the expenses were unnecessary, a defendant cannot be required to pay them. We see nothing unfair in requiring a convicted defendant to pay such of the district attorney's trial preparation and consultation expenses as were necessary to secure the conviction, even though that necessity was to some extent a function of the nature of the defendant's defense. To hold otherwise would produce a strange result. A defendant convicted of a routine robbery could be required to pay the costs of prosecution; but a defendant convicted of a crime that had been carefully concealed and was therefore difficult to prove -- homicide by some rare poison, for example; cf. Coppolino v. State, 223 So.2d 68 (Fla.App.1968), cert. denied, 399 U.S. 927, 90 S.Ct. 2242, 26 L.Ed.2d 794 (1969) -- could not be required to pay the costs of prosecution. In this case, the lower court found that the district attorney's expenses were both necessary and reasonable, and appellant has not appealed these findings.

We acknowledge that the possibility that a convicted defendant may be required to pay the costs of prosecution may impose some burden on a particular defendant's choice of whether to go to trial or plead guilty and thereby avoid the costs. Nevertheless, not every burden imposed by the state on a defendant's right to trial is constitutionally prohibited. See Commonwealth v. Coder, supra, 252 Pa. Super.

[ 267 Pa. Super. Page 189]

    at 511, 382 A.2d at 133 (plurality opinion). In United States v. American Theater Corp., 526 F.2d 48, 50 (8th Cir. 1975), cert. denied, 430 U.S. 938, 97 S.Ct. 1569, 51 L.Ed.2d 786 (1977), it was held that neither the fifth nor sixth amendments to the United States Constitution prevented the government from taxing "the cost of prosecution to an unsuccessful, non-indigent defendant in accordance with [a duly enacted statute] as long as it does so in a nondiscriminatory manner." And in Fuller v. Oregon, 417 U.S. 40, 94 S.Ct. 2116, 40 L.Ed.2d 642 (1974), the United States Supreme Court held that an indigent defendant's right to counsel was not impermissibly infringed by a requirement that upon conviction he repay the costs of his representation when he acquired the means to do so, even though some persons might thus forgo assistance of counsel. See also United States v. Bracewell, 569 F.2d 1194, 1197 (2d Cir. 1978) (such reimbursement statute for costs of legal counsel "creates a constitutionally proper ground for depriving a financially able defendant of available funds which, in fairness, should be remitted to the public coffers").

In considering the permissibility of imposing a burden on a defendant who chooses to go to trial rather than plead guilty, one must ask why the burden is imposed. Thus, "'[a]n accused cannot be punished by a more severe sentence because he unsuccessfully exercised his constitutional right to stand trial rather than plead guilty.'" Commonwealth v. Staley, 229 Pa. Super. 322, 324, 324 A.2d 393, 394-95 (1974) (citations omitted). Here, however, it cannot be maintained that by providing that a convicted defendant may be required to pay the costs of prosecution, the legislature intended to punish defendants who choose to go to trial rather than plead guilty. In many cases, perhaps in most, the costs will not be much different whichever course the defendant chooses. This will be true in cases that are simple to prosecute, and in cases where the district attorney's expenses accrue during the preliminary stages of the investigation and prosecution. In addition, 19 P.S. § 1292 (1964) affords those defendants who are financially unable to pay

[ 267 Pa. Super. Page 190]

    costs relief under the Commonwealth's insolvent debtor statutes. See also Pa.R.Crim.P. 1407(a).

For these reasons, we conclude that the imposition of the district attorney's necessary trial preparation and consultation expenses did not violate either appellant's right to a fair trial or his right not to be compelled to incriminate himself.*fn3


In support of his argument that the Act of August 9, 1955, supra, 16 P.S. § 1403, is invalid because it "provides no test or standard of conduct," appellant relies on Giaccio v. Pennsylvania, 382 U.S. 399, 86 S.Ct. 518, 15 L.Ed.2d 447 (1966). However, that case involved a very different statute.

In Giaccio, the Court struck down the Act of March 31, 1860, P.L. 427, § 62, 19 P.S. § 1222, which allowed a jury to impose prosecution costs on a defendant who had been acquitted, because the statute contained no standards to guide the jury's decision. With the jury's power to impose costs thus unfettered, a defendant had no prior notice of what conduct might prompt the jury to impose costs; he therefore had no way of knowing what actions he could take to avoid a forfeiture of his property. In contrast, the statute here permits the imposition of costs only upon a defendant who has been convicted. The Crimes Code gives a defendant adequate notice of what conduct is unlawful and therefore may result in conviction. In addition, the statute here sufficiently defines the expenses the Commonwealth may recover -- i. e., "[a]ll necessary expenses incurred

[ 267 Pa. Super. Page 191]

    by the district attorney . . . in the investigation of crime and the apprehension and prosecution" of the case. Appellant's argument that the statute constitutes an unlawful delegation of legislative power to the judiciary because it requires judges to determine what expenses are necessary is frivolous.*fn4


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