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COMMONWEALTH PENNSYLVANIA v. ALVIE DONALD MCCANE (03/04/88)

decided: March 4, 1988.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
ALVIE DONALD MCCANE, APPELLEE



Appeal from Order of the Superior Court sitting in Philadelphia, No. 02756 of 1985, dated August 8, 1986, affirming the Order Quashing the Information and Dismissing the charge of Homicide by Vehicle While Driving Under the Influence, October 2, 1984, Court of common Pleas, Lackawanna County, Criminal Division 84 CR. 767. Pa. Super. , 515 A.2d 618.

COUNSEL

Ernest D. Preate, Jr., Dist. Atty., for appellant.

Michael J. Krushinski, Scranton, for appellee.

Nix, C.j., and Larsen, Flaherty, McDermott, Zappala and Papadakos, JJ. Nix, C.j., filed a concurring opinion.

Author: Larsen

[ 517 Pa. Page 492]

OPINION OF THE COURT

The issue involved in this appeal is whether the Commonwealth may reprosecute the appellee, Alvie Donald McCane, for homicide by vehicle while driving under the influence following a mistrial on that charge, after a jury found appellee guilty of the offense of driving under the influence but was unable to reach a verdict on the charge of homicide by vehicle while driving under the influence. The trial court held that a retrial of appellee is barred by Pa.R.Crim.P. 1120(d). The Superior Court, in a memorandum decision by a panel (Beck, Popovich and Hoffman, JJ.), affirmed on the opinion of the lower court, 359 Pa. Super. 608, 515 A.2d 618. For the reasons that follow, we reverse.

The appellee, Alvie Donald McCane, was arrested and charged with violating section 3731 of the Motor Vehicle Code (75 Pa.C.S. § 3731), driving under the influence of alcohol or a controlled substance. Appellee was also charged with violating section 3735 of the Motor Vehicle Code (75 Pa.C.S. § 3735), homicide by vehicle while driving under the influence. The appellee was tried by a jury on these charges. He was found guilty of driving under the influence of a controlled substance. The jury was unable to reach a verdict on the charge of homicide by vehicle while driving under the influence. The trial judge accepted the guilty verdict on the charge of driving under the influence and declared a mistrial on the charge of homicide by vehicle while driving under the influence.

When the Commonwealth scheduled a retrial of the appellee on the charge on which the jury was deadlocked, the appellee moved to quash the indictment and dismiss the charge. In his motion for dismissal the appellee argued that reprosecution was barred by Rule 1120(d) of the Pa.R.Crim.P., by section 109 of the Crimes Code (18 Pa.C.S. § 109), and by the double jeopardy provisions of the Pennsylvania and United States Constitutions.

[ 517 Pa. Page 493]

After conducting a hearing on appellee's motion to dismiss and considering the arguments and briefs of counsel, the lower court held that reprosecution of the appellee was prohibited by Rule 1120(d). The lower court did not address the other arguments raised by the appellee in that its holding concerning Rule 1120(d) resolved the issue.

The Commonwealth, in bringing this appeal, argues that retrial of the appellee on the charge of homicide by vehicle while driving under the influence is not barred by Rule 1120(d). The Commonwealth contends that the lower court misconstrued and erroneously expanded the scope of that rule in holding that the rule barred further prosecution of the appellee. Rule 1120(d) provides:

(d) If there are two or more counts in the information or indictment, the jury may report a verdict or verdicts with respect to those counts upon which it has agreed, and the judge shall receive and record all such verdicts. If the jury cannot agree with respect to all the counts in the information or indictment if those counts to which it has agreed operate as an acquittal of lesser or greater included offenses to which they cannot agree, these latter counts shall be dismissed. When the counts in the information or indictment upon which the jury cannot agree are not included offenses of the counts in the information or indictment upon which it has agreed, the defendant or defendants may be retried on those counts in the information or indictment.

For purposes of the issue raised in this case, the pivotal language of Rule 1120(d) is the sentence: "If the jury cannot agree with respect to all the counts in the information or indictment if those counts to which it has agreed operate as an acquittal of lesser or greater included offenses to which they cannot agree, these latter counts shall be dismissed." (Emphasis added.) Considering the pertinent language of Rule 1120(d) in light of the facts in this case, the question is: whether the appellee's conviction of driving under the influence of a controlled substance operates as an acquittal of homicide by vehicle while driving

[ 517 Pa. Page 494]

    under the influence -- the charge on which the jury could not agree. The Commonwealth contends that appellee's conviction on the former charge does not acquit him of the latter charge in that homicide by vehicle while driving under the influence requires proof of an additional fact, namely, that the appellee's driving while under the influence caused the death of the victim.

Homicide by vehicle while driving under the influence is defined as follows:

-- Any person who unintentionally causes the death of another person as the direct result of a violation of section 3731 (relating to driving under influence of alcohol or controlled substance) and who is convicted of violating section 3731 is guilty of a felony of the third degree when the violation is the cause of death and the sentencing court ...


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