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COMMONWEALTH PENNSYLVANIA v. TIMOTHY DOWNS (10/26/84)

filed: October 26, 1984.

COMMONWEALTH OF PENNSYLVANIA,
v.
TIMOTHY DOWNS, APPELLANT



No. 2872 Philadelphia, 1982, Appeal from Order of the Court of Common Pleas, Criminal Division, of Chester County, No. 29-80.

COUNSEL

Diane G. Moretzsohn, Assistant Public Defender, West Chester, for appellant.

Phylis Streitel, Assistant District Attorney, West Chester, for Commonwealth, appellee.

Cavanaugh, Wieand and Cirillo, JJ.

Author: Wieand

[ 334 Pa. Super. Page 572]

Where an occupant of a motor vehicle, following a high speed chase by police, is found to be in possession of property taken several hours earlier during a burglary committed in an adjoining county, does a conviction for theft by receiving stolen property in the county of arrest bar prosecution for burglary in the county where the burglary was committed? The trial court in the latter county denied a pre-trial motion to dismiss the burglary charge, and this appeal followed. We affirm.

During the early morning hours of December 22, 1979, a vehicle occupied by Timothy Downs led Lower Merion Township Police on a high speed chase after the vehicle had been observed in the commission of multiple traffic violations in Montgomery County. The chase came to an end when the vehicle crashed in a wooded area. When police arrived at the crash site, they found that the trunk lid had been opened by the force of impact. Lying in the trunk were typewriters and business machines bearing tags which identified them as property of Worldwide Direct Market, a business enterprise located in Wayne, Chester County. Inquiry disclosed a break-in and theft at the Chester County office earlier on the same morning or very late on the prior night. Downs gave police a statement which implicated himself in the Chester County burglary.

Downs was arrested in Montgomery County and charged, inter alia, with theft by receiving stolen property.*fn1 He was charged in Chester County with burglary,*fn2 criminal trespass,*fn3 and criminal mischief.*fn4 Additional charges of theft and conspiracy were brought in Chester County but subsequently nol prossed by the Commonwealth. Downs elected to enter a plea of guilty to theft by receiving stolen property in Montgomery County, and sentence therefor was imposed. He then filed a pre-trial motion to dismiss the

[ 334 Pa. Super. Page 573]

    charges in Chester County. In support thereof, he argued that dual prosecutions in separate counties were barred (1) by principles of double jeopardy, (2) by the provisions of sections 109 and 110 of the Crimes Code (18 Pa.C.S. §§ 109, 110), and (3) by the provisions of 18 Pa.C.S. § 3502(d), which bars convictions both for burglary and for the offense which it was the intent of the burglar to commit. On appeal from the trial court's order refusing to dismiss the charges in Chester County, we consider appellant's arguments seriatim.*fn5

"The Double Jeopardy Clause 'protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.' North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969) (footnotes omitted) . . . . Where successive prosecutions are at stake, the guarantee serves 'a constitutional policy of finality for the defendant's benefit.' United States v. Jorn, 400 U.S. 470, 479, 91 S.Ct. 547, 554, 27 L.Ed.2d 543 (1971) (plurality opinion). That policy protects the accused from attempts to relitigate the facts underlying a prior acquittal, see Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970); cf. United States v. Martin Linen Supply Co., 430 U.S. 564, 97 S.Ct. 1349, 51 L.Ed.2d 642 (1977), and from attempts to secure additional punishment after a prior conviction and sentence, see Green v. United States, 355 U.S. 184, 187-188, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957); cf. North Carolina v. Pearce, supra." Brown v. Ohio, 432 U.S. 161, 165-166, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187, 194 (1977). Article I, section 10 of the Pennsylvania Constitution has received a similar interpretation.

"'The double jeopardy clause breaks down into three general rules which preclude a second trial or a second punishment for the same offense: (1) retrial for the same

[ 334 Pa. Super. Page 574]

    offense after acquittal; (2) retrial for the same offense after conviction; (3) multiple punishment for the same offense at one trial. The judiciary views these rules as expressions of self-evident moral precepts: It 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.'" Commonwealth v. Grazier, 481 Pa. 622, 630-631, 393 A.2d 335, 339 (1978) quoting Commonwealth v. Mills, 447 Pa. 163, 169, 286 A.2d 638, 641 (1971) (emphasis in original). Accord: Illinois v. Vitale, 447 U.S. 410, 415, 100 S.Ct. 2260, 2264, 65 L.Ed.2d 228 (1980); United States v. Wilson, 420 U.S. 332, 343, 95 S.Ct. 1013, 1021, 43 L.Ed.2d 232 (1975); North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969); ...


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