Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

COMMONWEALTH PENNSYLVANIA v. LANCE DIVALERIO (12/29/80)

filed: December 29, 1980.

COMMONWEALTH OF PENNSYLVANIA
v.
LANCE DIVALERIO, APPELLANT



No. 215 Philadelphia 1980 Appeal from Judgment of Sentence in the Court of Common Pleas, Bucks County, Criminal, at No. 1012 of 1979.

COUNSEL

Diane V. Elliott, Assistant Public Defender, Doylestown, for appellant.

Stephen B. Harris, Assistant District Attorney, Doylestown, for Commonwealth, appellee.

Spaeth, Hester and Cavanaugh, JJ.

Author: Spaeth

[ 283 Pa. Super. Page 317]

This is an appeal from a judgment of sentence for simple assault,*fn1 aggravated assault,*fn2 and recklessly endangering another person.*fn3

[ 283 Pa. Super. Page 318]

The Commonwealth's evidence may be summarized as follows. On the evening of February 21, 1979, appellant telephoned his mother and asked her to drive him home from a bar in Bristol. His mother refused, which led to an argument between her and appellant. Approximately one hour later, appellant entered his mother's apartment, grabbed her by the throat, and pushed her onto a chair. He then punched her in the nose and ripped her sweater, and when she fled the house, he chased and caught up with her, to continue the assault. The mother sustained a concussion, broken ribs, a broken finger, and bruises, requiring hospitalization.

On March 16, 1979, appellant was arrested and charged. On June 29, he filed a notice of an insanity defense and an application for a competency determination and a bifurcated trial pursuant to Pa.R.Crim.P. 305 C(1)(b) and Section 404(a), (c) of The Mental Health Procedures Act, Act of July 9, 1976, P.L. 817, No. 143, § 404(a), (c); 50 P.S. § 7404(a), (c). On July 13, the lower court granted appellant's application for a bifurcated trial, and, sitting without a jury, heard psychiatric testimony on the issue of appellant's criminal responsibility. At the conclusion of this hearing, the court stated that it "would not at this point find that the defendant is not criminally responsible." (N.T. 57) The court then ordered defense counsel to proceed to trial. After a recess, during which defense counsel was to determine whether to request a jury trial, the lower court stated that it had been "ill-advised to have granted" appellant's application for a bifurcated trial; the court explained that it had concluded that Section 404 required a jury determination of the issue of appellant's criminal responsibility. The court thereupon rescinded its earlier order granting the application, and directed defense counsel to proceed. Counsel then made a motion to dismiss the prosecution on the ground of double jeopardy. The motion was denied and counsel was again directed to proceed. Counsel then requested a stay pending taking an appeal from the order denying the motion to dismiss. This request was also denied. Counsel filed an

[ 283 Pa. Super. Page 319]

    appeal to this court, and on July 16, a petition to stay. After a hearing before one member of this court, the petition was denied without prejudice to counsel later arguing the double jeopardy issue.

On July 16, 1979, appellant was convicted of aggravated assault, simple assault, and recklessly endangering another person. On November 30, the lower court denied appellant's post-trial motions, and on December 27, appellant was sentenced to a prison term of 9 months and 11 days to 23 months, and was granted immediate parole and transferred to the Veteran's Hospital in Coatesville. On January 23, 1980, appellant filed an appeal from the judgment of sentence. Meanwhile, on October 9, 1979, this court had deferred decision on appellant's prior appeal from the lower court order denying his motion to dismiss the prosecution on the ground of double jeopardy until the judgment of sentence. In what follows, we shall dispose of both appeals.

On appeal, appellant argues: 1) that the lower court's order directing him to proceed to trial subjected him to double jeopardy; 2) that the lower court erred in refusing to allow certain cross-examination; and 3) that the Commonwealth failed to meet its burden to prove his sanity.

-1-

Section 404(c) of The Mental Health Procedures Act, pursuant to which appellant's application for a bifurcated trial was filed, provides:

(c) Bifurcation of Issues or Trial. -- Upon trial, the court, in the interest of justice, may direct that the issue of criminal responsibility be heard and determined separately from the other issues in the case and, in a trial by jury, that the issue of criminal responsibility be submitted to a separate jury. Upon a request for bifurcation, the court shall consider the substantiality of the defense of lack of responsibility and its effect upon other defenses, and the probability of a fair trial. 50 P.S. § 7404(c).

As noted above, the lower court initially granted the application for a bifurcated trial, but after hearing testimony without a jury on the issue of appellant's criminal responsibility,

[ 283 Pa. Super. Page 320]

    concluded that under Section 404(c) it was required to sit with a jury and therefore rescinded its order granting the application.

We are unable to agree with the lower court's conclusion that Section 404(c) required that the portion of the bifurcated trial concerning criminal responsibility be conducted before a jury. We find no such requirement. Instead, the section provides, as we read it, that if an application for a bifurcated trial is granted, the defendant has these choices: On the issue of criminal responsibility, he may demand a jury, or he may waive a jury; and on the other issues, he may demand a jury, or he may waive a jury. If, on the issue of criminal responsibility, the defendant demands a jury, then that jury may not also determine the other issues. If, on those other issues, the defendant demands a jury, there must be a separate jury.

Nevertheless, we agree with the lower court's decision to set aside the bifurcated proceeding on criminal responsibility in the present case. There was no indication that defense counsel had intended to waive appellant's right to a jury. Without a waiver, the court, if it chose to bifurcate, was obliged to conduct the hearing on criminal responsibility before a jury. Having unintentionally denied appellant that right, the court correctly decided that the hearing it had conducted was a nullity and that it should therefore rescind its earlier order granting the application for a bifurcated trial.

Appellant argues, however, that in declaring the hearing on criminal responsibility a nullity and then directing him to proceed to trial, the lower court subjected him to double jeopardy, in violation of the Fifth Amendment to the United States Constitution and Article 1, Section 10, of the Pennsylvania Constitution.*fn4 His argument is made on two alternate

[ 283 Pa. Super. Page 321]

    grounds: that the lower court in effect declared a mistrial, without a showing of "manifest necessity"; or that the lower court's statement, when it directed him to proceed to trial, was "tantamount to an acquittal."

In Commonwealth v. Meekins, 266 Pa. Super. 157, 162-63, 403 A.2d 591, 593-94 (1979), we said:

The Double Jeopardy Clause of the Fifth Amendment protects a defendant in a criminal proceeding against multiple punishments or successive prosecutions for the same offense. Abney v. U. S., 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977); U. S. v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976); Commonwealth v. Hogan, 482 Pa. 333, 393 A.2d 1133 (1978). At the core of this Constitutional safeguard is the belief that "the State with all its resources and powers should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuous state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty." U. S. v. Scott, 437 U.S. 82, [88], 98 S.Ct. 2187, 2192, 57 L.Ed.2d 65 (1978); Dinitz, supra, 424 U.S. at 606, 96 S.Ct. 1075; Hogan, supra, 482 Pa. 336, 393 A.2d at 1134.

It is apparent from this statement that appellant was not subjected to double jeopardy. He was never confronted with "multiple punishments or successive prosecutions for the same offense." He was confronted with punishment, and he was punished, only once, by a judgment of sentence following his conviction by the jury. The hearing on his criminal responsibility, which the lower court nullified, was not a separate prosecution or "trial". ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.