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COMMONWEALTH PENNSYLVANIA v. ROBERT H. ABBOTT (09/30/83)

filed: September 30, 1983.

COMMONWEALTH OF PENNSYLVANIA
v.
ROBERT H. ABBOTT, APPELLANT



No. 804 Philadelphia, 1981, Appeal from the Order of the Court of Common Pleas of Lycoming County, Criminal, No. 75-10, 418.

COUNSEL

Alan Ellis, Philadelphia, for appellant.

Kenneth A. Osokow, Assistant District Attorney, Williamsport, for Commonwealth, appellee.

Cavanaugh, McEwen and Hoffman, JJ.

Author: Mcewen

[ 319 Pa. Super. Page 481]

This is an appeal brought by a Post Conviction Hearing Act Petitioner from an order which granted the Petitioner the right to withdraw a guilty plea but denied a request to dismiss the charges. Appellant argues that the Common Pleas Court erred when it rejected the contention that section 111 of the Crimes Code, 18 Pa.C.S.A., and principles of double jeopardy require that the charges filed against the appellant be dismissed. We reverse.

I.

Appellant, Robert H. Abbott, a seventy-five year old Doctor of Osteopathy, was arrested and charged on April 17, 1975, with forty-seven violations of the Pennsylvania Controlled Substance, Drug, Device and Cosmetic Act.*fn1 He was so charged after he had unlawfully prescribed and dispensed certain controlled substances and other drugs to four undercover agents during a six month period from October 1974 to April 1975. As a result of certain of these transactions, a Federal Grand Jury indicted appellant on six counts of violations of the federal drug laws.*fn2 He was found guilty of these federal charges by a jury and on July 11, 1975, was sentenced to a term of imprisonment of

[ 319 Pa. Super. Page 482]

    fifteen years and fined $90,000.*fn3 Six months after the federal jury verdict of guilty, on December 5, 1975, a hearing was held upon the state charges at which time the Common Pleas Court granted a motion by the Commonwealth to dismiss twenty of the forty-seven counts in the state bill of indictment and appellant thereupon pleaded guilty to the remaining twenty-seven counts. The Common Pleas Court sentenced appellant to a term of imprisonment of not less than seven and a half years nor more than fifteen years, to run concurrently with the sentence imposed by the federal court, and fined appellant $90,000.00.

When appellant was released from his confinement and transferred to state custody to continue serving the term of imprisonment imposed for the state charges, he filed a series of Post Conviction Hearing Act petitions which alleged, inter alia, that prior counsel was ineffective during the guilty plea proceedings when counsel failed to insure that appellant knowingly and voluntarily pleaded guilty and that prior counsel was ineffective for not pursuing a dismissal of the charges on the basis of federal*fn4 and state*fn5 proscriptions against double jeopardy and on the basis of section 111 of the Crimes Code, 42 Pa.C.S.A.*fn6 The distinguished Judge Thomas C. Raup granted appellant the right to withdraw the guilty plea that had been entered to the twenty-seven counts*fn7 but found that there was no merit to the contention that prior counsel had been ineffective by reason of his failure to pursue the motion to dismiss those twenty-seven counts, the charges remaining after the Commonwealth

[ 319 Pa. Super. Page 483]

    had dismissed twenty of the forty-seven charges.

Appellant contends that while prior counsel had filed a motion to dismiss all forty-seven counts of the indictment on double jeopardy grounds, prior counsel became ineffective when he elected to abandon this issue and permitted appellant to plead guilty.*fn8 Although prior counsel had challenged all forty-seven of the state charges in the motion to dismiss upon grounds of double jeopardy, the Common Pleas Court never ruled on this motion, but instead granted the motion of the Commonwealth, presented at the guilty plea proceeding, to dismiss twenty of the counts of the bill of indictment*fn9 and accepted the plea of guilty by appellant to the remaining twenty-seven charges. Appellant argues that prior counsel was ineffective for failing to persist in the effort to have the remaining twenty-seven state charges dismissed upon grounds of double jeopardy or upon the basis of the statutory bar to further prosecution.

It would appear considerably more expeditious for this court to treat this post-conviction hearing appeal as though it were an appeal from a denial by the trial court of a petition for dismissal of the charges by reason of the protection against double jeopardy or by reason of the statutory bar to further prosecution. If we were to affirm the order of the hearing court and conclude that the interpretation of the double jeopardy bar and/or the statutory bar against further prosecution had not been so clear in 1975 that plea counsel may not be deemed to have been ineffective, present counsel for appellant would then be obliged to proceed to petition the trial court for dismissal of the charges by reason of the bar against double jeopardy and/or the statutory bar against further prosecution. And it is quite predictable, of course, that whatever the determination

[ 319 Pa. Super. Page 484]

    of the trial court upon such a petition for dismissal, this case and the basic issue it presents would once again appear in this court in but a slightly different posture. We will, therefore, here rule upon the fundamental issue presented, namely, is the further prosecution of appellant precluded either by the statutes of this Commonwealth or by the constitutional protection against double jeopardy.

Our study requires a careful analysis of the nature and of all of the facts and circumstances surrounding both the federal and state charges. The following distinctions in the proceedings brought by the two sovereigns are to be noted:

While the Commonwealth charged appellant with violations spanning a six month period, from October 27, 1974 through April 10, 1975, the federal prosecution is based upon violations occurring during the six week period between March 6, 1975 and April 17, 1975.

The federal charges related solely to the distribution of phendimetrazine, while the Commonwealth charged appellant with violations involving phendimetrazine as well as quaalude, eskatrol, fastin, sanorex, fendi, dilaudid and dalmene.

Only one undercover agent was involved in the federal charges, whereas the state bills of information included sales to this agent as well as three other agents. The federal charges related solely to the distribution of drugs, while the state bills of information included distribution charges as well as the misbrandinng of drugs and the destruction of labels on drugs.

Despite these differences, both the federal and state charges resulted from one continuing undercover investigation of appellant by one team of the same four state agents.

The Common Pleas Court determined that the state charges to which appellant pleaded guilty were not based upon the same conduct as that for which appellant had been convicted by the federal authorities. The court thereby concluded that there was no bar to a prosecution by the Commonwealth upon the twenty-seven state charges to which appellant had pleaded guilty since each of these

[ 319 Pa. Super. Page 485]

    charges stemmed from "totally separate episodes involving different drugs and occurring on dates as much as five months apart . . . [E]ach offense was distinct, separate from the others and the conduct proscribed by the Federal Statute was different from that proscribed by the Commonwealth Statute."

II.

The principle of double jeopardy has in recent years received careful attention from not only the judiciary but also from our legislature. The Pennsylvania Supreme Court in 1971 provided a further dimension to the principle when it was confronted by a Commonwealth effort to prosecute for criminal behavior for which the federal government had already prosecuted and imposed punishment. That court, in Commonwealth v. Mills, 447 Pa. 163, 169, 286 A.2d 638, 641 (1971), proclaimed that as long as the initial federal prosecution provides for the protection of the joint interest of both the federal government and of the Commonwealth, a subsequent prosecution by the Commonwealth would be banned.*fn10 The legislature addressed the issue of double jeopardy the following year when it specified the conditions under which subsequent prosecutions would be barred and in section 111 of the Crimes Code, 1972 Dec. 6, P.L. No. 334, ยง 1, effective June 6, 1973, decreed the conditions under which a former prosecution in another

[ 319 Pa. Super. Page 486]

    jurisdiction would serve as a bar to a subsequent prosecution in the Commonwealth. Since that time, appellate study of and expression upon both Mills, supra, and the statute have shaped the current posture of the protection from double jeopardy in Pennsylvania. Commonwealth v. Hude, 500 Pa. 482, 458 A.2d 177 (1983); Commonwealth v. Grazier, 481 Pa. 622, 393 A.2d 335 (1978); Commonwealth v. Mascaro, 260 Pa. Super. 420, 394 A.2d 998 (1978).

The Pennsylvania Supreme Court in 1978 in Mills, supra, declared that the constitutional protection against double jeopardy is inspired by the self-evident precepts that "[i]t is wrong to retry a man for a crime of which he previously has been found innocent, wrong to harass him with vexatious prosecution, and wrong to punish him twice for the same offense." Id. 447 Pa. at 169, 286 A.2d at 641. The Supreme Court, in that opinion further declared that the fundamental notion upon which the constitutional protection against double jeopardy is based, is composed of "three general rules which preclude a second trial or a second punishment for the same offense: (1) retrial for the same offense after acquittal; (2) retrial for the same offense after conviction; (3) multiple punishment for the same offense at one trial." Id., 447 Pa. at 169, 286 A.2d at 641. While the general principle seems easy enough to grasp, when criminal activity triggers the possibility of successive prosecutions in federal and state courts, the doctrine of "dual sovereignty" comes into play and application of the rule becomes more complex for we must ...


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