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COMMONWEALTH PENNSYLVANIA v. HEINZ BUECHELE (04/23/82)

SUPERIOR COURT OF PENNSYLVANIA


filed: April 23, 1982.

COMMONWEALTH OF PENNSYLVANIA
v.
HEINZ BUECHELE, APPELLANT

No. 1755 Philadelphia, 1980, Appeal from the Order dated July 14, 1980, Court of Common Pleas, Lehigh County, Criminal, at No. 1103/1979.

COUNSEL

Wallace C. Worth, Jr., Allentown, for appellant.

William H. Platt, District Attorney, Allentown, for appellee.

Cercone, President Judge, and Spaeth and Johnson, JJ. Spaeth, J., concurs in the result.

Author: Johnson

[ 298 Pa. Super. Page 419]

On September 8, 1979, shortly after midnight, appellant was stopped by the police of Salisbury Township after an automobile chase. An officer of the neighboring Allentown police responded to a call for help put out by the Salisbury police, and appeared on the scene where the Salisbury police had stopped appellant, who appeared to be intoxicated. Within a few minutes the Allentown police officer was called back down the road to investigate a report of a hit and run which had occurred in Allentown. The owner of a parked car had heard the sound of a collision and had run outside and seen the make and license number of the car which had hit his car and proceeded without stopping. The Allentown police officer filled out a citation form, based on the information supplied by the victim of the hit and run. The citation charged appellant with the appropriate violation

[ 298 Pa. Super. Page 420]

    of the Vehicle Code.*fn1 The citation was "turned in" to the Allentown District Justice, who forwarded it by certified mail to appellant. A few days later, September 21, 1979, appellant came to the District Justice's office and paid the fine -- the standard fine for a summary offense*fn2 -- $25.00 plus $10.00 costs, totaling $35.00.

Meanwhile, on September 8, 1979, a criminal complaint was issued by the Salisbury police against appellant, for drunk driving,*fn3 a misdemeanor of the third degree, and various other summary offenses.*fn4 That same day an arraignment was held by a District Magistrate, following which the appellant was released. A preliminary hearing was held on November 5, 1979, before the District Justice of Salisbury. Because the magistrate found a prima facie case against appellant for the misdemeanor, all charges were returned to court. The Comment to Pennsylvania Rule of Criminal Procedure 51 states: "If one or more of the charges is a misdemeanor or felony, the summary offense, if known at the time, shall be charged in the same complaint, and the case shall proceed as a court case under Chapter 100 of these Rules. See Commonwealth v. Campana, 452 Pa. 233, 304 A.2d 432 (1973), addendum opinion on remand 455 Pa. 622, 314 A.2d 854 (1976)." Pa.R.Crim.P. 51, 42 Pa.C.S.A. (Pamp.1981). The transcript was sent by the district justice to court on November 5, 1979.

In January, 1980, appellant filed his omnibus pre-trial motion for relief which, after a hearing in the Court of Common Pleas of Lehigh County, was denied by the trial judge.

[ 298 Pa. Super. Page 421]

It is this denial from which this appeal is brought. Although a denial of pre-trial motions is not normally a final order, in cases where the pre-trial motion is a motion to quash on double jeopardy grounds, the denial of the motion is final and appealable. See Commonwealth v. Fields, 491 Pa. 609, 421 A.2d 1051 (1980); Commonwealth v. Bolden, 472 Pa. 602, 373 A.2d 90 (1977). Because appellant's pre-trial motion was based on our Supreme Court's decision in Commonwealth v. Campana,*fn5 452 Pa. 233, 304 A.2d 432 (1973), addendum opinion after remand, 455 Pa. 622, 314 A.2d 854, cert. denied, 417 U.S. 969, 94 S.Ct. 3172, 41 L.Ed.2d 1139 (1974), we therefore must entertain the appeal.

Appellant asserts that because he had pleaded guilty to the "hit and run" summary offense, prosecution for charges arising out of the same criminal episode is barred. Appellant contends that prosecution is barred by the constitutional doctrine of double jeopardy, by the rule of Campana, and by Section 110 of the Crimes Code, 18 Pa.C.S.A. § 110 (Purdon 1973).*fn6

[ 298 Pa. Super. Page 422]

Appellant is asking us to rule that an allegedly drunk driver who has been stopped by the police after a chase in which numerous traffic violations have occurred, in circumstances where a citation for one summary offense is entered in one township, and a criminal complaint for a misdemeanor and other summary offenses filed in another township, who quietly pays the fine according to the first citation, is absolved from prosecution for the other violations.

This we shall not do. Our case and our statutory law will not be construed to permit such a mockery of the criminal justice system.

In Commonwealth v. Holmes, 480 Pa. 536, 391 A.2d 1015 (1978), our Supreme Court stated that the purpose of the Campana rule is to avoid government harassment of a defendant due to successive trials, and to assure finality of litigation without unduly burdening the judicial process with repetitious litigation. Id., 480 Pa. at 540-541, 391 A.2d at 1017. In Holmes the defendant was charged with the murder and robbery of one victim and then with aggravated assault on another victim, both charges arising out of the same incident, where he shot one victim and then the other. The court held that even though the defendant had not requested consolidation, the Commonwealth should have brought the charges in one proceeding. The trial and guilty

[ 298 Pa. Super. Page 423]

    verdict on the charge of murder barred the subsequent trial on the other charges. LARSEN, J., dissenting, found that the subsequent prosecution was not barred, under an exception in 18 Pa.C.S.A. § 110, namely § 110(1)(iii)(A), which states that:

     the former prosecution will bar the second prosecution for the same conduct unless "the offense of which the defendant was formerly convicted or acquitted and the offense for which he is subsequently prosecuted each requires proof of a fact not required by the other and the law defining each of such offenses is intended to prevent a substantially different harm or evil . . . ."

Id., 480 Pa. at 542, 391 A.2d at 1018.

Similarly, in Commonwealth v. Hanlin, 272 Pa. Super. 313, 415 A.2d 905 (1979), the defendant had been cited for drunk driving, and also for driving without a license, a summary offense.*fn7 The district magistrate, at a hearing, discharged the defendant on the summary offense, but bound him over on the misdemeanor. The defendant, on appeal, raised the Campana issues presented now before us. This court held that the two applicable sections of the Vehicle Code involve proof of different facts and seek to prevent different harms or evils, and therefore prosecution on the misdemeanor charge was not barred. See 18 Pa.C.S.A. § 110(1)(iii)(A).

In Commonwealth v. Edwards, 264 Pa. Super. 223, 399 A.2d 747 (1979), a case on which appellant relies, the defendant was charged with theft*fn8 and conspiracy,*fn9 and subsequently with unsworn falsification to authorities*fn10 (all three are misdemeanors or felonies). He pleaded guilty to the falsification charge, and was then tried on the theft and conspiracy charges. This court discharged the defendant on the basis of section 110, finding that all the offenses occurred in the same episode and that the Commonwealth

[ 298 Pa. Super. Page 424]

    should have moved to consolidate them. This case is not authority for the situation now before us. Edwards involved violations of the Crimes Code. Paying a traffic ticket to a district magistrate's office is hardly the type of former prosecution resulting in a conviction as is defined in Sections 109 and 110. The case law which is more apposite to the situation before us is that involving Vehicle Code violations.*fn11

The trial court relied in its opinion on Commonwealth v. Bartley, 262 Pa. Super. 390, 396 A.2d 810 (1979). In that case the defendant, at a preliminary hearing, pleaded guilty to operating a motor vehicle without a license*fn12 and paid a fine of $60.00. He waived the other charges, reckless driving*fn13 and driving under the influence of alcohol,*fn14 to Common Pleas for a jury trial. Then he moved to quash the information as to those charges, basing his motion on section 110.

This court held, in Bartley, that although the charges arose out of the same episode, the appellant had caused the charges to be separated by his own actions at the preliminary hearing. The court concluded:

Section 110 is intended to prevent harassment by the prosecution; it is not intended to afford a defendant with a procedural expedient to avoid a prosecution.*fn8 See Commonwealth v. Green [232 Pa. Super.Ct. 134, 335 A.2d 493 (1975)] (defendant by silently acquiescing in the separation of the charges had waived his claim under section 110).

[ 298 Pa. Super. Page 425262]

Pa. Super. at 396-397, 396 A.2d at 813 (emphasis added).

A charge of hit and run does not require proof of the same facts as a drunk driving charge. Hit and run and drunk driving statutes are aimed at different perils.*fn15 Therefore, in this case, the exception in section 110 applies. Furthermore, payment of a traffic ticket, even though the payor signs a form saying he pleads guilty, is hardly the former prosecution resulting in a conviction or a plea of guilty accepted by the court referred to in 18 Pa.C.S.A. §§ 109, 110.

Sections 109 and 110 of the Crimes Code refer to a plea of guilty accepted "by the Court."*fn16 The Rules of Criminal Procedure on summary offenses, i.e. Chapter 50, refer to citations issued by an "issuing authority", which is defined in Pa.R.Crim.P. 3 as "any public official having the power and authority of an alderman, justice of the peace, magistrate or district justice." The same section defines "court" as a "court of record." Pa.R.Crim.P. 51 provides for the issuance of a citation by an issuing authority. Pa.R.Crim.P. 56 describes the procedure for receipt by the issuing authority of a plea of guilty in response to a citation. Nothing in these rules raises this procedure to the level of a court case.

[ 298 Pa. Super. Page 426]

Thus, the guilty plea in the magistrate's office is not a "plea of guilty accepted by the court."

Appellant contends that each officer involved in the charges against him knew of the other charges brought by the other. This is not certain. The fact that the Allentown police officer was present for a few minutes when appellant was first stopped by the Salisbury police, and then departed to pursue another matter (which turned out to involve the same driver), does not prove that the Allentown officer knew what charges were to be brought against appellant by the Salisbury police. The Campana rule is addressed to different charges which are known at the same time. All the charges known to the Salisbury police were included in the criminal complaint filed by them. The Allentown police cited appellant for the offense reported to them by the victim.

Pa.R.Crim.P. 21 provides in part:

Rule 21. Venue

All criminal proceedings shall be brought before the issuing authority for the magisterial district where the offense is alleged to have occurred or before an issuing authority on temporary assignment to serve such magisterial district, subject, however, to the following exceptions:

(c) Where any offense is alleged to have occurred within 100 yards of the boundary between two or more magisterial districts of a judicial district, the proceeding may be brought in either or any of the magisterial districts without regard to the boundary lines of any county.

The citation for the hit and run was properly issued by the magistrate in Allentown. The other offenses, occurring at least half a mile away, were charged by the Salisbury police, and the charges were properly issued by the Salisbury magistrate.*fn17

[ 298 Pa. Super. Page 427]

To summarize: section 110(1) does not bar this prosecution because (1) there was no former prosecution resulting in a conviction as defined in section 109 (i.e. "a plea of guilty accepted by the court"); (2) there was no prosecution in the mere issuance of a Vehicle Code citation by an issuing authority; (3) the Allentown magistrate did not know of the Salisbury charges; (4) the citations and charges were issued by magistrates from different districts; (5) the summary offense for which defendant paid the fine does not require proof of the same facts as the other offenses and the misdemeanor; (6) the law defining hit and run is intended to prevent a substantially different harm from that defining drunk driving. Lastly, we reiterate that the purpose of the double jeopardy doctrine and of the rule of Campana is to avoid harassment of a defendant by the government. Issuance by a district magistrate of a citation for a summary offense violating the Vehicle Code is not a prosecution or a trial which causes the anxiety and strain to a defendant, or which can be viewed as harassment by the government, such as is prohibited by our system of justice.*fn18

The trial court did not err in denying the motion to quash. The denial of the motion to quash is affirmed.


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