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decided: December 29, 1983.


No. 81-3-403, Appeal from the Order of the Superior Court affirming the Judgment of Sentence entered at February, Session, 1976, Nos.1145-56, Court of Common Pleas of Philadelphia, Criminal Trial Division, Roberts, C.j., and Nix, Larsen, Flaherty, McDermott, Hutchinson and Zappala, JJ. McDermott, J., files a dissenting opinion in which Hutchinson, J., joins.

Author: Nix

[ 503 Pa. Page 516]


This appeal raises the question as to whether a probation revocation court could return a finding of probation revocation based upon the probationer's alleged participation in a crime where the probation revocation hearing was deferred until after the trial of the criminal case which resulted in an acquittal. Both the trial court and the Superior Court answered this question in the affirmative. We granted review and we now reverse.

In April, 1976, appellant was placed on probation for a term of four years for a conspiracy conviction. At the same time appellant was sentenced to prison for a companion conviction for robbery. After completing the prison sentence imposed under the robbery charge, but during the probationary period, he was arrested and tried for another

[ 503 Pa. Page 517]

    robbery and criminal conspiracy charge. That trial upon the subsequent offenses resulted in an acquittal.

Shortly after appellant's arrest on the new charges the Commonwealth requested that the revocation of probation hearing be delayed until after the outcome of appellant's criminal trial for those offenses. In October, 1978, after appellant's acquittal, a revocation of probation hearing was held and appellant's probation was revoked. He was sentenced to a term of imprisonment of two to five years. An appeal was taken to the Superior Court, a panel of which affirmed his judgment of sentence. Commonwealth v. Brown, 281 Pa. Super. 348, 422 A.2d 203 (1980). This appeal follows.


In Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), the United States Supreme Court held the federal rule of collateral estoppel was embodied in the Fifth Amendment's guarantee against double jeopardy. Accord, Turner v. Arkansas, 407 U.S. 366, 92 S.Ct. 2096, 32 L.Ed.2d 798 (1972); Harris v. Washington, 404 U.S. 55, 92 S.Ct. 183, 30 L.Ed.2d 212 (1971); Simpson v. Florida, 403 U.S. 384, 91 S.Ct. 1801, 29 L.Ed.2d 549 (1971); Commonwealth v. Hude, 492 Pa. 600, 425 A.2d 313 (1980); Commonwealth v. Peluso, 481 Pa. 641, 393 A.2d 344 (1978); Commonwealth v. Bolden, 472 Pa. 602, 373 A.2d 90 (1977) (plurality opinion). Prior to Ashe the Supreme Court in reviewing state court practices had considered the question of consecutive proceedings under the rubric of due process. Hoag v. New Jersey, 356 U.S. 464, 78 S.Ct. 829, 2 L.Ed.2d 913 (1958), reh. den. 357 U.S. 933, 78 S.Ct. 1366, 2 L.Ed.2d 1375.*fn1

[ 503 Pa. Page 518]

In concluding that collateral estoppel was a constitutional requirement under the double jeopardy clause, the Ashe Court explained the significance of that holding in contrast to a finding that the rule was merely a due process concern.

The doctrine of Benton v. Maryland, 395 U.S. 784, 23 L.Ed.2d 707, 89 S.Ct. 2056, puts the issues in the present case in a perspective quite different from that in which the issues were perceived in Hoag v. New Jersey, supra. The question is no longer whether collateral estoppel is a requirement of due process, but whether it is a part of the Fifth Amendment's guarantee against double jeopardy. And if collateral estoppel is embodied in that guarantee, then its applicability in a particular case is no longer a matter to be left for state court determination within the broad bounds of "fundamental fairness," but a matter of constitutional fact we must decide through an examination of the entire record. (Citations omitted.)

Id. 397 U.S. at 442-443, 90 S.Ct. at 1193-1194.

It is no longer open to dispute that the federal constitutional protection against double jeopardy forbids the states from offending the collateral estoppel rule. Turner v. Arkansas, supra; Harris v. Washington, supra; Simpson v. Florida, supra; Ashe v. Swenson, supra; Commonwealth v. Schomaker, 501 Pa. 404, 461 A.2d 1220 (1983); Commonwealth v. Grazier, 481 Pa. 622, 393 A.2d 335 (1978); Commonwealth v. Hude, supra. This principle has been recognized by the Commonwealth, the trial court and the Superior Court in this case. What is being questioned is the applicability of the collateral estoppel rule to the instant facts.

The Ashe Court explained the rule as follows:

It means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.

Id. 397 U.S. at 443, 90 S.Ct. at 1194.

In explaining the applicability of the collateral estoppel rule the Court stressed that in criminal cases it "is not to be

[ 503 Pa. Page 519]

    applied with the hypertechnical and archaic approach of a 19th century pleading book, but with realism and rationality". Id. at 444, 90 S.Ct. at 1194.

Where a previous judgment of acquittal was based upon a general verdict, as is usually the case, this approach requires a court to "examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration." The inquiry "must be set in a practical frame and viewed with an eye to all the circumstances of the proceedings." Sealfon v. United States, 332 US 575, 579, 92 L Ed 180, 184, 68 S Ct 237. Any test more technically restrictive would, of course, simply amount to a rejection ...

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