No. 77 M.D. Misc. Docket, 1981, (No. 141 March Term, 1979), Petition for Allowance of Appeal from the Superior Court.
Anthony S. Federico, Jr., Harrisburg, for petitioner.
William A. Behe, Deputy Dist. Atty., Harrisburg, for the Commonwealth.
O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty, Kauffman and Wilkinson, JJ. Larsen and Kauffman, JJ., concur in the result.
This matter presents a judgment of sentence imposed on verdicts of guilty of involuntary manslaughter, 18 Pa.C.S. § 2504, and homicide by vehicle, 75 Pa.C.S. § 3732. We conclude that, under the prohibition against double punishment embodied in the double jeopardy clauses, the sentence imposed on homicide by vehicle cannot stand.
Petitioner was charged with both crimes for his involvement in a fatal automobile accident. Through eyewitness testimony, the Commonwealth presented evidence to a jury that, contrary to 75 Pa.C.S. § 3309, petitioner abruptly pulled into the passing lane of fast-moving west-bound traffic on a heavily-travelled four-lane highway. Petitioner's abrupt change of lanes, which had been preceded by a pattern of erratic driving, forced a vehicle already in the passing lane to swerve into oncoming east-bound traffic. A fatal head-on collision resulted.
The jury returned verdicts of guilty on both charges. Following the denial of post-verdict motions, the Court of Common Pleas of Dauphin County imposed consecutive sentences of two and one-half to five years' imprisonment. On reconsideration, the court imposed concurrent sentences of the same terms. The Superior Court affirmed, 293 Pa. Super. 577, 435 A.2d 270, and a petition for allowance of appeal followed. We now grant the petition.
Among the protections embodied in the double jeopardy clauses of the Constitutions of the United States and this Commonwealth is the prohibition against "multiple punishment for the same offense at one trial." Commonwealth v. Mills, 447 Pa. 163, 169, 286 A.2d 638, 641 (1971). North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23
L.Ed.2d 656 (1969); Commonwealth v. Tarver, 493 Pa. 320, 426 A.2d 569 (1981). Impermissible multiple punishment can take the form of consecutive sentences or, as here, concurrent sentences. Commonwealth v. Walker, 468 Pa. 323, 362 A.2d 227 (1976). See Benton v. Maryland, 395 U.S. 784, 787-91, 89 S.Ct. 2056, 2059-61, 23 L.Ed.2d 707 (1969).
The means of determining whether there exists a single offense for purposes of the prohibition against ...