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decided: December 21, 1984.


No. 64 E.D. Appeal Docket 1984, Appeal from the Opinion of the Superior Court of Pennsylvania No. 2393, Philadelphia, 1980; and the Opinion of the Court of Common Pleas of Lebanon County, Criminal Division, Action No. 328 of 1980, Pa. Superior Ct. , Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Larsen, J., joins this opinion and files a concurring opinion. Nix, C.j., concurs in the result. Zappala, J., concurs in the result.

Author: Hutchinson

[ 506 Pa. Page 503]


These cross-appeals by allowance from an opinion and order of Superior Court, 322 Pa. Super. 424, 469 A.2d 1063, require us, for the first time, to construe the provisions of the Protection From Abuse Act (Act), of October 7, 1976, P.L. 1090, No. 218, as amended, 35 P.S. §§ 10181-10190 (Supp. 1984-85). Specifically, we must determine whether principles of double jeopardy and compulsory joinder bar the prosecution of an individual for simple assault, criminal trespass and rape after that individual has been found in indirect criminal contempt for violating a court order entered pursuant to the Act. Because the Protection From Abuse Act has its roots in equity and is essentially civil, we

[ 506 Pa. Page 504]

    hold that a court's use of its inherent power to enforce its orders under the Act through contempt does not preclude a later criminal prosecution to protect the Commonwealth's interest in preventing crime.

In this case Lebanon County Common Pleas denied Allen's pre-trial motion to dismiss the criminal charges. Superior Court affirmed in part and reversed in part. It held that on the facts of this case, the criminal contempt under the Act and the charge of simple assault involve the same elements, and therefore double jeopardy barred the simple assault prosecution. Superior Court affirmed Common Pleas' denial of Allen's double jeopardy challenges to the criminal trespass and rape charges and remanded these charges for trial. Superior Court also held that Sections 109-112 of the Crimes Code, 18 Pa.C.S. §§ 109-112, cited by Allen, relating to second prosecutions in various instances, did not apply to this case.

We agree with Superior Court that the cited sections of the Crimes Code do not apply, and that double jeopardy does not bar the prosecutions for criminal trespass and rape. We disagree, however, with Superior Court's conclusion that the prosecution for simple assault is barred by double jeopardy, and hold that indirect criminal contempt and simple assault are separate offenses for double jeopardy purposes because they serve distinct purposes and require different elements of proof even though they may arise out of the same course of conduct. We believe this holding is consistent with both the facts of this case and the law of double jeopardy as developed by the United States Supreme Court, and is also faithful to the intent of the Legislature in passing the Protection From Abuse Act.

On April 9, 1980, Julianne L. Allen, the wife*fn1 of the defendant, filed a "Petition Pursuant to the Protection From Abuse Act" seeking a protective order under Section 10186 of the Act. Following a hearing, Lebanon County Common Pleas Court entered an order which provided, inter alia, that defendant was ". . . enjoined and ordered to

[ 506 Pa. Page 505]

    refrain from physically abusing, striking or harassing petitioner, Julianne L. Allen, and their minor children from this time forward and for the duration of this order." R.R. 3a.*fn2

Subsequently, petitioner alleged that on the night of May 7-8, 1980, defendant violated the order by forcibly entering her residence*fn3 and physically abusing her. On May 16, Jonestown Borough Police, acting on information provided by petitioner, filed a criminal complaint against defendant on charges of simple assault and trespass. On May 19, petitioner requested that defendant be charged with contempt, pursuant to Section 10190 of the Act.*fn4 Defendant was arraigned on the contempt charge and, failing to post bail, remained in Lebanon County Prison until May 28, the date of the contempt hearing.*fn5 After the hearing, at which

[ 506 Pa. Page 506]

    both petitioner and defendant presented evidence, the court found defendant in contempt of the April 18 order. The court ordered defendant to pay a fine of $750.00 and costs, and discharged him from prison.

On June 3, 1980, the Jonestown Borough Police filed another criminal complaint against defendant for raping his wife on May 7-8. All three criminal charges were consolidated for preliminary hearing and trial. Defendant filed an Omnibus Pretrial Motion to Quash the three criminal informations on the grounds that prosecution of these charges was barred by double jeopardy. Lebanon County Common Pleas en banc denied the motion. Defendant filed a timely appeal to Superior Court, which affirmed the trial court on the criminal trespass and rape charges, but reversed on the simple assault charge.

We granted both parties' petitions for allowance of appeal. The Commonwealth contends that Superior Court erred in dismissing the simple assault charge, while Allen contends that Superior Court erred in holding that the criminal trespass and rape charges were not barred by double jeopardy.

Initially, we agree with Superior Court that Sections 109-112 of the Crimes Code, 18 Pa.C.S. §§ 109-112, barring prosecutions in various circumstances,*fn6 and the "compulsory joinder rule" of Commonwealth v. Campana, 452 Pa. 233, 304 A.2d 432, vacated and remanded, 414 U.S. 808, 94 S.Ct. 73, 38 L.Ed.2d 44 (1973) (Campana I), on remand, 455 Pa. 622, 314 A.2d 854, cert. denied, 417 U.S. 969, 94 S.Ct. 3172, 41 L.Ed.2d 1139 (1974) (Campana II), do not

[ 506 Pa. Page 507]

    apply in this case. This inquiry is necessary because, as we recently stated:

It is . . . appropriate to begin our . . . inquiry by determining the applicability of section 110 to the . . . facts. In so proceeding, we are mindful that if the provisions of section 110 are satisfied, there will have also been compliance with the requirement as set forth under the Campana rule. The necessity to consider the double jeopardy complaints will only arise if it is determined that the statutory provision does not require the grant of the relief requested.

Commonwealth v. Hude, 500 Pa. 482, 489, 458 A.2d 177, 180 (1983) (emphasis added).*fn7 In Hude, the identity between Section 110 and the Campana II rule was further demonstrated in these terms:

This Court's decisions in Campana I and Campana II ultimately designed a rule of compulsory joinder which required the criminal offenses arising from the same criminal episode to be disposed of in one prosecution. Commonwealth v. Beatty, 500 Pa. 284, 455 A.2d 1194 (1983). In the interim between Campana I and Campana II, the legislature promulgated section 110 ...

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