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COMMONWEALTH PENNSYLVANIA v. GEORGE F. HOWER (06/15/79)

decided: June 15, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
GEORGE F. HOWER, JR., APPELLANT



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.

COUNSEL

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. ยง 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.

-1-

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 ...


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