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filed: November 25, 1983.


NO. 2393 Philadelphia, 1980, Appeal from the Order of the Court of Common Pleas of Lebanon County, Criminal, NO. 328 of 1980.


Kenn Sandoe, Lebanon, for appellant.

William L. Thurston, Assistant District Attorney, Lebanon, for Commonwealth, appellee.

Cercone, President Judge, and McEwen and Hoffman, JJ. Cercone, President Judge, concurs in the result. Hoffman, J., files dissenting opinion.

Author: Mcewen

[ 322 Pa. Super. Page 427]

This is an appeal from an order which denied the omnibus pre-trial motion of appellant wherein appellant had argued that prosecution on charges of criminal trespass,*fn1 simple assault*fn2 and rape*fn3 was barred on double jeopardy

[ 322 Pa. Super. Page 428]

    grounds.*fn4 We here consider whether a finding that appellant was in contempt of an order issued pursuant to the Protection From Abuse Act*fn5 bars subsequent prosecution on charges based on the same conduct which supported the contempt order.

The distinguished Judge John A. Walter, by order of April 18, 1980, enjoined appellant from physically abusing, striking or harassing his wife and minor children. A criminal complaint was subsequently filed on May 16, 1980, charging appellant with simple assault and criminal trespass as a result of an allegation that appellant had forcibly entered the residence of his wife and physically abused her on May 7 and May 8, 1980. As a further result of the incident, appellant was arraigned on contempt charges on May 19, 1980. The Common Pleas Court, after a hearing on May 28, 1980, found appellant to be in contempt of court and ordered him to pay costs and a fine of $750.00. A further criminal complaint based upon the incident was filed on June 3, 1980, and charged appellant with rape.*fn6

Appellant asserts that the principle of double jeopardy bars prosecution on all three criminal charges since appellant had previously been convicted of contempt. The contentions set forth by appellant require analysis of the provisions of the Crimes Code, 18 Pa.C.S.A., as well as the double jeopardy clauses of the United States Constitution*fn7

[ 322 Pa. Super. Page 429]

    and the Constitution of this Commonwealth.*fn8 We decide that: (1) the sections of the Crimes Code cited by appellant in support of his position are not applicable to this case; (2) the double jeopardy protection of the federal constitution bars only the simple assault charge; (3) and the state constitutional prohibition against double jeopardy does not bar prosecution on the two remaining charges of criminal trespass and rape.

We begin our study with a determination of whether the applicable provisions of the Crimes Code preclude the second prosecution in this case. See Commonwealth v. Hude, 500 Pa. 482, 488, 458 A.2d 177, 180 (1983) (the court will only consider double jeopardy complaints if it is determined that the statutory provisions of the Crimes Code do not require the grant of the relief requested). Sections 109-112 of the Crimes Code, 18 Pa.C.S.A. §§ 109-112, ban second prosecutions in various instances,*fn9 but these provisions are not applicable to the facts of this case. Although section 107 of the Crimes Code, 18 Pa.C.S.A. § 107, provides that the provisions of Part 1 of Title 18, which includes sections 109-112, are applicable to offenses defined by Title 18, including all of the offenses here charged, sub-section (c) of section 107 provides a number of exceptions, including the provision that section 107 "does not affect the power of a court . . . to punish for contempt . . .". Thus, we proceed to consider the federal and state constitutional prohibitions

[ 322 Pa. Super. Page 430]

    against double jeopardy since the statutory provisions do not require the grant of the relief requested.

"The constitutional prohibition of double jeopardy has been held to consist of three separate guarantees: (1) 'It protects against a second prosecution for the same offense after acquittal. [(2) I]t protects against a second prosecution for the same offense after conviction. [(3)] And it protects against multiple punishments for the same offense.'" Illinois v. Vitale, 447 U.S. 410, 415, 100 S.Ct. 2260, 2264, 65 L.Ed.2d 228, 235 (1980). Quoting North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969) (footnotes omitted). The second of these three guarantees is the focus of our attention in this appeal since appellant contends that the finding that he was in contempt was such a conviction as to bar any prosecution on the charges now pending against him. Any analysis of this contention necessarily involves a determination of whether the contempt proceeding was criminal in nature.

"Contempt" is classified either as civil contempt or criminal contempt. The two types of contempt may be distinguished from one another by analyzing the primary purpose and objective of the court's order. Commonwealth v. Marcone, 487 Pa. 572, 410 A.2d 759 (1980); In Re "B", 482 Pa. 471, 394 A.2d 419 (1978); Commonwealth v. Feick, 294 Pa. Super. 110, 439 A.2d 774 (1982). "A citation is for criminal contempt if the court's purpose was to vindicate the dignity and authority of the court and to protect the interest of the general public. If the purpose of the citation is to coerce the contemnor into compliance with the order of the court to do or refrain from doing some act primarily for the benefit of the litigant or a private interest, it is civil contempt. Commonwealth v. Charlett, 481 Pa. 22, 27, 391 A.2d 1296, 1298 (1978); citing Woods v. Dunlop, 461 Pa. 35, 40 n. 2, 334 A.2d 619, 622 n. 2 (1975)." Feick, supra 294 Pa. Super. at 112-13, 439 A.2d at 775. Further, "if the contempt consists solely of a past act, the only allowable judicial response is punitive, and any contempt adjudication must be criminal." In re Martorano, 464 Pa. 66, 80

[ 322 Pa. Super. Page 431]

    n. 19, 346 A.2d 22, 29 (1975); Cipolla v. Cipolla, 264 Pa. Super. 53, 57, 398 A.2d 1053, 1055 (1979).

It seems certain that the citation we examine is one of criminal contempt, not civil, since the dominant purpose of the proceeding was to determine whether appellant had disobeyed the order entered pursuant to the Protection From Abuse Act and, if he had, to punish appellant so as to preserve the authority of the court ...

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