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argued: June 6, 1985.


Appeal from the Order entered September 4, 1984 in the Court of Common Pleas of Philadelphia County, Criminal Division, at No. 84-01-0446.


Samuel Garro, Philadelphia, for appellant.

Donna Zucker, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Wickersham, Tamilia, and Hoffman, JJ. Tamilia, J., files a concurring opinion.

Author: Hoffman

[ 344 Pa. Super. Page 612]

This is an appeal from the lower court's order denying appellant's pre-trial motion to quash the magistrate's transcript on the ground that double jeopardy prevents his prosecution for escape, 18 Pa.C.S.A. § 5121(a).*fn1 Appellant contends that the Double Jeopardy Clauses of the United States and Pennsylvania Constitutions bar his trial on the escape charge because (1) all of the charges stemming from his act, i.e., his flight from a Municipal Courtroom after having been found guilty of possession of narcotics, were not consolidated at one trial and (2) he is being tried a second time for the same offense. We disagree and, accordingly, affirm the order of the court below.

On December 5, 1983, after having been found guilty of possession of narcotics before Municipal Court Judge Lipschutz, appellant fled the courtroom. He was captured a short time later and returned to Judge Lipschutz, who held him in contempt of court and sentenced him to six months imprisonment. Appellant appealed that finding and subsequently

[ 344 Pa. Super. Page 613]

    pled guilty on February 22, 1984 before Court of Common Pleas Judge Hirsh, who imposed the same sentence. In the meantime, the Commonwealth had charged appellant with escape, and, at a January 4, 1984 preliminary hearing, Common Pleas Judge Merriweather held him for court. On May 29 and again on September 4, 1984, following briefing by the parties, Common Pleas Judge Cain denied appellant's motion to quash. This appeal followed.

We believe that Commonwealth v. Allen, 506 Pa. 500, 486 A.2d 363 (1984), aff'g in part and rev'g in part, 322 Pa. Superior Ct. 424, 469 A.2d 1063 (1983), is dispositive of appellant's first contention. In Allen, our Supreme Court found that joinder of a criminal contempt charge with criminal charges was not required by either 18 Pa.C.S.A. § 110 (when prosecution barred by former prosecution for different offense) or by 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). Commonwealth v. Allen, supra 506 Pa. at 506-07, 486 A.2d at 366-67.

Appellant's second contention is also meritless. As this Court noted in Allen:

Distinguishable are cases where defendants are summarily held in contempt of court. See United States v. Rollerson, 308 F.Supp. 1014 (D.D.C. 1970), aff'd, 449 F.2d 1000 (D.D.Cir. 1971); State v. Warren, 186 N.J.Super. 35, 451 A.2d 197 (1982); United States v. Mirra, 220 F.Supp. 361 (S.D.N.Y. 1963). In summary contempt proceedings the contemnor does not suffer the harassment of separate trials and, therefore, the policies and goals underlying the protection against double jeopardy are not offended.

322 Pa. Superior Ct. at 434 n. 11, 469 A.2d at 1068 n. 11.*fn2 In the instant case, because appellant was summarily held

[ 344 Pa. Super. Page 614]

    in contempt, we find that double jeopardy does not bar appellant's subsequent trial for escape.




TAMILIA, Judge, concurring:

I join in the majority's conclusion that Commonwealth v. Allen, 506 Pa. 500, 486 A.2d 363 (1984), aff'g in part and rev'g in part, 322 Pa. Super. 424, 469 A.2d 1063 (1983) disposes of appellant's claim that the instant charges should have been consolidated.

Regarding appellant's second contention, I concur in the result but must respectively refrain from joining the majority in its reasoning. Rather than further complicating the law on contempt by drawing a distinction between a summary proceeding and a contempt hearing for double jeopardy purposes, I would adopt the reasoning of the lower court which held that the crimes at issue involve separate statutory elements and, consequently, require the proof of separate facts. (Slip op. at 5-8) See Commonwealth v. Allen, supra, 506 Pa. at 510, 486 A.2d at 368-70. See also Illinois v. Vitale, 447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980); Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977); Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). As our nation's

[ 344 Pa. Super. Page 615]

    highest court stated in Ianelli v. United States, 420 U.S. 770, 95 S.Ct. 1284, 43 L.Ed.2d 616 (1975):

[T]he Court's application of the [Blockburger] test focuses on the statutory elements of the offense. If each requires proof of a fact that the other does not, the Blockburger test is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes.

Id. at 785 n. 17, 95 S.Ct. at 1294 n. 17, 43 L.Ed.2d at 627 n. 17.

In the instant case, the crimes of contempt*fn1 and escape*fn2 involve different elements, and thus, even though the same conduct may provide the basis for both charges, appellant's prosecution for escape is not barred by his conviction for contempt. Allen, supra. Finally, it should be emphasized that the purpose of the contempt charge was to protect the court's dignity and to avoid any actual obstruction of the administration of justice, Matter of Campolongo, 495 Pa. 627, 633, 435 A.2d 581, 584 (1981); a purpose quite distinct from punishment for the crime of escape.

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