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COMMONWEALTH PENNSYLVANIA v. RICHARD E. MCAULAY (03/05/87)

SUPERIOR COURT OF PENNSYLVANIA


decided: March 5, 1987.

COMMONWEALTH OF PENNSYLVANIA
v.
RICHARD E. MCAULAY

Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Clinton County at No. 53-1985.

COUNSEL

James N. Bryant, State College, for appellant.

Donna Rae, Assistant District Attorney, Lock Haven, for Com., appellee.

Wickersham, Rowley and Tamilia, JJ.

Author: Wickersham

[ 361 Pa. Super. Page 420]

Richard E. McAulay appeals from the judgment of sentence imposed upon him by the Court of Common Pleas of Clinton County.

In the early morning hours of December 30, 1984, appellant was drinking with a friend in a Lock Haven bar known as Sal's. A few minutes before closing, a female patron of the bar named Theresa Watt approached appellant and struck up a conversation. Appellant, who did not know Ms. Watt, accepted her invitation to accompany her to a party. Realizing that he was too drunk to drive, however, he gave

[ 361 Pa. Super. Page 421]

    her the keys to his new Ford pickup, after ascertaining that she could drive a standard shift vehicle. Unfortunately, he failed to ascertain her sobriety, or lack thereof. They got into the truck and Ms. Watts proceeded to take off on a 100 foot careening trip into a telephone pole.*fn1 Witnessing this

[ 361 Pa. Super. Page 422]

    abortive trip was a nearby Lock Haven police officer, who promptly went to the scene. Appellant suffered a head injury in the accident, but recovered; Ms. Watt was uninjured. The truck and telephone pole were totaled. A consensual blood test performed on Ms. Watt shortly thereafter at the hospital revealed a blood alcohol content of .242 percent. She also revealed to the officer at that time that her driver's license had been suspended, another fact she had neglected to mention to appellant at the bar.

On January 7, 1985, Ms. Watt was charged with driving under the influence and driving under suspension and eventually was accepted for Accelerated Rehabilitative Disposition.

On January 8, 1985, appellant was charged with the summary offense of permitting on unauthorized person to drive, 75 Pa.C.S. § 1574. He subsequently pled guilty to this offense before a district justice and paid a fine. On January 11, 1985, after appellant had pled guilty to the first offense, he was charged by the same officer with the misdemeanor offense of permitting violation of title, 75 Pa.C.S. § 1575, for letting Ms. Watt drive his truck while intoxicated. Appellant filed a motion to quash which was denied on April 24, 1985. Appellant pled not guilty, but was convicted of this offense following a jury trial on September 4, 1985. His post-verdict motions were denied*fn2 and on

[ 361 Pa. Super. Page 423]

March 7, 1986, he was sentenced to serve forty-eight (48) hours to twelve (12) months in jail, to pay a fine of $500 and costs, and to attend and successfully complete an alcohol highway safety school and an alcohol abuse treatment program. This timely appeal followed.

Appellant raises two issues before us:

1. Did the lower court err in refusing to hold that the subsequent prosecution violated either Rule 109 or Rule 110 of the Pennsylvania Crimes Code?

2. Did the lower court err in refusing to hold that the subsequent prosecution violated the Fifth Amendment of the United States Constitution, as well as the Pennsylvania Constitution?

Brief for Appellant at 3.

Despite our observation that the consequences suffered by appellant as a result of this brief fiasco were more severe than those suffered by the actual perpetrator of the events, careful consideration of the record, the briefs of the parties, and the applicable statutes and caselaw convinces us that the lower court did not err in allowing appellant's trial on the instant (second) charge to proceed.

Initially appellant was charged with and pled guilty to violating 75 Pa.C.S. § 1574, a summary offense, which states in pertinent part:

§ 1574. Permitting unauthorized person to drive

(a) General rule. -- No person shall authorize or permit a motor vehicle owned by him or under his control to be driven upon any highway by any person who is not authorized under this chapter or who is not licensed for the type or class of vehicle to be driven.

Subsequently, he was charged with violating 75 Pa.C.S. § 1575, which states:

[ 361 Pa. Super. Page 424]

Vehicle Code. While some similarity exists between the sections, we cannot agree with appellant's contention that he could have been charged under section 1575 for allowing Ms. Watt to drive while her license was suspended. In another case involving the same two sections of the Motor Vehicle Code, our court held that it has long been the law in our state that "a person cannot be charged under general provisions of a penal code where special provisions are available." Commonwealth v. Burkett, 300 Pa. Super. 72, 75, 445 A.2d 1304, 1306 (1982). Such is the situation herein. Appellant could not have been charged under section 1575 for allowing Ms. Watt to drive while her license was suspended. Nor could he have been charged under section 1574 for allowing her to drive while intoxicated. Therefore, section 109 of the Crimes Code is inapplicable to the instant case.

Section 110 of the Crimes Code, 18 Pa.C.S. § 110, states in pertinent part:

§ 110. When prosecution barred by former prosecution for different offense

Although a prosecution is for a violation of a different provision of the statutes than a former prosecution or is based on different facts, it is barred by such former prosecution under the following circumstances:

(1) The former prosecution resulted in an acquittal or in a conviction as defined in section 109 of this title . . . and the subsequent prosecution is for:

(ii) any offense based on the same conduct or arising from the same criminal episode, if such offense was known to the appropriate prosecuting officer at the time of the commencement of the first trial and was within the jurisdiction of a single court unless the court ordered a separate trial of the charge of such offense; or

(iii) the same conduct, unless:

(A) the offense of which the defendant was formerly convicted or acquitted and the offense for which he is

[ 361 Pa. Super. Page 426]

    subsequently prosecuted each requires proof of a fact not required by the other and the law defining each of such offenses is intended to prevent a substantially different harm or evil[.]

While at first glance, appellant's reliance upon section 110 seems more promising, our supreme court has ruled to the contrary. In Commonwealth v. Breitegan, 500 Pa. 384, 456 A.2d 1340 (1983), cert. denied, 464 U.S. 991, 104 S.Ct. 480, 78 L.Ed.2d 678 (1983) and Commonwealth v. Beatty, 500 Pa. 284, 455 A.2d 1194 (1983), the supreme court held that the compulsory joinder rule [of Commonwealth v. Campana ] and section 110 do not apply to prior summary convictions for traffic violations under the Motor Vehicle Code. In both cases, the defendants had pled guilty to summary traffic offenses prior to being prosecuted for more serious crimes (aggravated assault in Beatty and driving under the influence, homicide by vehicle, and involuntary manslaughter in Breitegan) stemming from the same incidents. Since the situation in the instant case is identical, we hold that section 110 does not apply to this case. See also In Interest of R.R., 317 Pa. Super. 334, 464 A.2d 348 (1983); Commonwealth v. Quackenbush, 314 Pa. Super. 324, 460 A.2d 1162 (1983). Cf. Commonwealth v. Meyers, 345 Pa. Super. 520, 498 A.2d 945 (1985); Commonwealth v. Bonczak, 342 Pa. Super. 167, 492 A.2d 445 (1985); Commonwealth v. Kresge, 317 Pa. Super. 405, 464 A.2d 384 (1983).*fn3

Our finding that sections 109 and 110 of the Crimes Code do not apply to appellant's situation does not automatically resolve appellant's second issue. See Commonwealth v. Allen, 506 Pa. 500, 486 A.2d 363 (1984), cert. denied, U.S. , 106 S.Ct. 128, 88 L.Ed.2d 105 (1985); Commonwealth v. Johnson, 319 Pa. Super. 463, 466 A.2d

[ 361 Pa. Super. Page 427636]

(1983). However, we find no error by the trial court when it held that the subsequent prosecution did not violate appellant's double jeopardy rights under either the United States or Pennsylvania Constitution.*fn4 While we have held that the double jeopardy clause applies to summary traffic violations, see Commonwealth v. Johnson, supra, we find that in accordance with traditional constitutional analysis, there was no double jeopardy violation in prosecuting appellant for permitting Ms. Watts to drive while intoxicated.

Under Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), the focus is on the proof necessary to prove the statutory elements of each offense. There is no violation of double jeopardy if each statute requires proof of an additional fact that the other does not. Commonwealth v. Williams, 344 Pa. Super. 108, 496 A.2d 31 (1985); Commonwealth v. Hoburn, 335 Pa. Super. 536, 485 A.2d 24 (1984). Here, the summary offense under section 1574 required proof that appellant authorized or permitted Ms. Watt to operate his truck upon a highway when she was not licensed to do so. The misdemeanor offense under section 1575 required proof that appellant authorized or permitted Ms. Watt to operate his truck while she was under the influence of alcohol to a degree which rendered her incapable of safe driving or when her blood

[ 361 Pa. Super. Page 428]

    alcohol content was .10% or greater. Each offense required proof of some fact or facts that the other did not. Thus the instant prosecution was not barred by double jeopardy. The offenses in this case are separate both because they serve distinct purposes and because they require different elements of proof even though they arose out of the same incident or course of conduct. Commonwealth v. Allen, supra. "For double jeopardy, it is not enough that the two offenses be part of the same criminal episode; double jeopardy principles bar double prosecution only for a single offense." Commonwealth v. Meyers, supra, 345 Pa. Super. at 528, 498 A.2d at 949.

Since the Commonwealth's prosecution of appellant for permitting violation of title was not barred by either sections 109 or 110 of the Crimes Code or by the double jeopardy provisions of the federal or state constitutions, we must affirm the judgment of sentence.

Judgment of sentence affirmed.

Disposition

Judgment of sentence affirmed.


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