No. 80-3-415, Appeal from the Order of the Superior Court dated June 15, 1979, at 1956 October Term, 1978, Affirming the Judgment of Sentence of the Lehigh County Court of Common Pleas at No. 1870 in 1975. No. 47 May Term 1979, Appeal from the Order of the Superior Court dated February 23, 1978, at No. 490 March Term 1978, affirming in part and reversing in part the double jeopardy pre-trial rulings of the Court of Common Pleas of Perry County dated December 6, 1977 at Criminal Action No. 165 of 1977
William C. Costopoulos, Lemoyne, Shaubut C. Walz, Newpark, for appellant Klinger.
C. Joseph Rehkamp, Dist. Atty., Donald L. Reihart, Sp. Asst. Atty. Gen., for the Commonwealth.
Thomas A. Wallitsch, Public Defender, Carole K. McGinley, Appellate Public Defender, Thomas F. Traud, Jr., Acting Public Defender, for appellant Hude.
Scott K. Oberholtzer, Richard R. Tomsho, Asst. Dist. Attys., for appellee.
Nix, Justice. Eagen, former C. J., did not participate in the decision of this case. Roberts, J., filed an opinion concurring in part and dissenting in part. O'Brien, C. J., joins this Opinion. Flaherty, Justice, concurring and dissenting.
In Commonwealth v. Hude, at No. 80-3-415 Mr. Justice Nix filed the Opinion joined by Mr. Justice Flaherty and Mr. Justice Kauffman. That Opinion reversed the Order of the Superior Court 267 Pa. Super. 133, 406 A.2d 554, affirming the Judgment of Sentence and discharged appellant, Hude. Mr. Chief Justice O'Brien and Messrs. Justices Roberts and Larsen concurred in the result.
Accordingly, the Order of the Superior Court affirming the Judgment of Sentence is reversed, the Judgment of Sentence is vacated and the appellant, Hude, is discharged.
In Commonwealth of Klinger, at No. 47 May Term 1979 Mr. Justice Nix filed an Opinion joined by Mr. Justice Kauffman. That Opinion would affirm the Order of the Superior Court 264 Pa. Super. 21, 398 A.2d 1036, affirming the trial court's Order as to Counts II, V, VI, and VII. That Opinion would reverse the Order of the Superior Court affirming the Order of the trial court as to Count III and would bar the Commonwealth from further prosecution as to Count III. Mr. Justice Larsen concurred in the result.
Mr. Justice Roberts filed an Opinion in which Mr. Chief Justice O'Brien joined. That Opinion would reverse the Order of the Superior Court in its entirety and bar further prosecution on all Counts. Mr. Justice Flaherty filed an Opinion to the same effect.
Accordingly, the Court is unanimous in its conclusion that further prosecution is barred as to Count III and it is so ordered. As to Counts II, V, VI and VII the Court, being evenly divided, the Order of the Superior Court is affirmed.
These two appeals present the same question of law: may a defendant be tried for perjury arising out of statements he made in a prior trial in which he was acquitted of the charges brought against him? We have consolidated these appeals to address this common issue.
Appellant, Manfred Hude, was charged with twenty counts of possession and delivery of marijuana and one count of corruption of a minor. The charges arose out of a series of sales of marijuana to the same individual which were alleged to have occurred between October 1974 and January 1975. Nine of the possession and delivery counts were dismissed before trial. In June 1975, the Commonwealth brought Hude to trial on three of the remaining possession and delivery charges and on the corruption charge. The Commonwealth's evidence consisted solely of the testimony of Barry Hagemus who asserted that on numerous occasions during the fall and winter of 1974-1975, Hude had sold him varying amounts of marijuana. The jury acquitted Hude of all charges.
During the course of the trial Hude was questioned by his attorney as follows:
Q: Were you ever dealing drugs?
On July 15, 1975, the Commonwealth charged Hude with perjury based on this statement. At the perjury trial, the Commonwealth again called Barry Hagemus who testified to the alleged purchases of marijuana from Hude. The trial judge, sitting without a jury, found Hude guilty of perjury.*fn1
In both the trial on the substantive issue and the subsequent perjury trial the Commonwealth relied exclusively on the testimony of Barry Hagemus who, in each instance, related that he would meet Hude at prearranged locations where the transfers of marijuana and money took place. In each instance Hude insisted that he had no involvement with Barry Hagemus.
Hude appealed the perjury conviction to the Superior Court contending that the perjury prosecution violated the double jeopardy clause and the principle of collateral estoppel. The Superior Court affirmed on the basis of Commonwealth v. Klinger, 264 Pa. Super. 21, 398 A.2d 1036 (1979); Commonwealth v. Hude, 267 Pa. Super. 133, 406 A.2d 554 (1979). We granted appellant's petition for allowance of appeal.
Appellant, Dennis Klinger, was charged with the murder of his mother. The Commonwealth's case against him was entirely circumstantial, there being no eyewitnesses to the killing. The death was determined to have been caused by asphyxiation that resulted from dirt being forced into her mouth and lungs.
Following the eight-day trial, during which over thirty witnesses testified, Klinger was acquitted. Eight months later, Klinger was charged with various counts of perjury, false swearing and conspiracy to commit perjury. The perjury charges, all of which emanated from Klinger's trial testimony, can be summarized as follows:
Count I -- charges appellant lied when he stated on cross-examination that he did not kill his mother and does not know who killed her, the count averring that appellant did kill his mother.
in the defendant's favor. Another possibility, where the defendant was convicted in the trial for the substantive offense, is that the subsequent perjury charge may be used to increase his punishment. On the other side of the ledger is the real concern that a blanket bar of perjury proceedings against defendants for their testimony in their criminal trials would encourage false testimony by defendant-witnesses and thereby subvert objective factfinding. It may also be that an absence of the perjury sanction against such witnesses, once that fact becomes known, will cause a dilution of the weight of this testimony.*fn3
In this context we turn to the question of the applicability of the double jeopardy protection of the federal and state constitutions to the problem. In terms of the traditional aspects of double jeopardy, freedom from the harassment of successive trials and the prohibition against double punishment, courts have generally concluded that the crime of perjury is not the same offense as the crime for which the defendant was prosecuted at the first trial. United States v. Williams, 341 U.S. 58, 62, 71 S.Ct. 595, 597, 95 L.Ed. 747 (1951); Commonwealth v. Hilton, 265 Pa. 353, 355, 108 A. 828 (1919) (dictum). In determining whether two indictments charge the same offense, many of the courts have used variants of the "same evidence" test, Diaz v. United States, 223 U.S. 442, 32 S.Ct. 250, 56 L.Ed. 500 (1911); Pennsylvania v. Ramunno, 219 Pa. 204, 68 A. 184 (1907); Commonwealth v. Shoener, 216 Pa. 71, 64 A. 890 (1906), cert. denied, 207 U.S. 188, 28 S.Ct. 110, 52 L.Ed. 163 (1907) (Superior Court opinion), while others have employed various interpretations of the "same transaction" test. Spannell v. State, 83 Tex.Crim. 418, 203 S.W. 357 (1918); Harris v. State, 193 Ga. 109, 17 S.E.2d 573 (1941); State v. Houchins, 102 W.Va. 169, 134 S.E. 740 (1926); State v. Greely, 30 N.J.Super. 180,
A.2d 639 (1954). While the legitimacy of the various tests may be suspect, it appears that there has been a consensus that the protections against successive trials and double punishment have been deemed not to require the invocation of the double jeopardy bar in these perjury prosecutions. United States v. Williams, 341 U.S. 58, 62, 71 S.Ct. 595, 95 L.Ed. 747 (1951).
With the U.S. Supreme Court's decision in Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970) an added dimension has been given to the federal double jeopardy protection.*fn4 In Ashe the Court held that collateral estoppel is a part of the Fifth Amendment's guarantee against double jeopardy and is applicable to the states through the Fourteenth Amendment under Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). The differences between collateral estoppel and the traditional aspects of double jeopardy, ...