No. 351 Pittsburgh, 1982, Appeal from the Order of the Court of Common Pleas, Criminal Division, of Allegheny County, No. CC8107827A.
Michael J. Healey, Pittsburgh, for appellant.
Kemal A. Mericli, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.
Rowley, Johnson and Popovich, JJ.
[ 330 Pa. Super. Page 357]
This is an appeal from a pre-trial order of the trial court which denied appellant's motion to quash an information charging him with assault by prisoner, assault by life prisoner and simple assault. Appellant contends that because he was subjected to prison discipline based on the same facts supporting the criminal charges, criminal prosecution is barred by the Double Jeopardy clause of the Federal and State Constitutions. U.S. Const. Amends. V and XIV; Pa. Const. Art. I, § 10.*fn1 We disagree and affirm the order of the trial court.
The facts are not in dispute. Appellant, an inmate at the State Correctional Institution at Pittsburgh, was involved in an altercation with two prison guards on October 8, 1981. Misconduct charges were filed by the guards with prison authorities and, on October 12, 1981, the prison Hearing Committee heard testimony concerning the incident from appellant and the guards. The Committee found that appellant had failed to obey an order and had attacked the guards. Appellant was placed in maximum disciplinary custody for 180 days from the date of the incident. See 37 Pa.Code §§ 95.101 et seq. The criminal complaint against appellant was filed on October 20, 1981, and the information was filed on December 9, 1981. The information is based on the same incident and conduct for which appellant was disciplined. Appellant filed his motion to quash the information on March 18, 1982 and, after a hearing, it was denied on March 23, 1982. This appeal followed.
[ 330 Pa. Super. Page 358]
"Th[e] proscription against double jeopardy means that no one should be harassed by successive prosecutions for a single wrongful act and that no one should be punished more than once for the same offense." Commonwealth v. Starks, 490 Pa. 336, 339, 416 A.2d 498, 499 (1980). Citing no authority on point, appellant argues that criminal prosecution in the instant case is barred under both of the policy considerations articulated in Starks. He contends that he was "prosecuted" for misconduct, found guilty and "sentenced" to the maximum term of six months in the restrictive housing unit.*fn2 Appellant also asserts that this conclusion is buttressed by applicable regulations of the Bureau of Corrections which state in part:
These §§ 95.1-95.12 (relating to prosecution procedures) set forth the general rules of procedure by which alleged violations of the Commonwealth Penal Code shall be processed, investigated, disposed of, either by prosecution or administrative action.
37 Pa.Code § 95.2 (appellant's emphasis).
He argues that this provision, both by itself and when read in conjunction with the proscription against double jeopardy, requires that a choice be made as to whether an inmate be administratively disciplined or criminally punished, but not both. We disagree.
Initially, we reject appellant's construction of the regulations. Section 95.2 sets forth no more than the scope of §§ 95.1-95.12. It states that regardless of whether an incident is being handled by prison authorities or the police, the procedures to be followed are the same. This section does not require that a choice be made as to the method of disposition. Moreover, § 95.1 sets forth the Bureau's policy
[ 330 Pa. Super. Page 359]
regarding the maintenance of law and order ...