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COMMONWEALTH PENNSYLVANIA v. EUGENE SMITH (12/30/88)

filed: December 30, 1988.

COMMONWEALTH OF PENNSYLVANIA
v.
EUGENE SMITH, APPELLANT



Appeal from the order of the Court of Common Pleas of Westmoreland County, Criminal Division, No. 815 of 1987.

COUNSEL

Rochelle S. Friedman, Pittsburgh, for appellant.

Terrance G. Faye, Assistant District Attorney, Greensburg, for Com., appellee.

Cirillo, President Judge, and Rowley and Tamilia, JJ.

Author: Rowley

[ 380 Pa. Super. Page 485]

This is an appeal from an order denying appellant's motion to quash criminal charges alleging that the prosecution is barred on grounds of double jeopardy. The sole question presented is whether a consent agreement entered into by a husband and wife, pursuant to the Protection From Abuse Act,*fn1 creates a bar to criminal prosecution for the crimes alleged to have occurred out of the same conduct which brought about the consent agreement. We conclude that it does not.

This case arose out of a domestic dispute which occurred on March 15, 1987, between appellant, Eugene Smith, and his wife, Diann Marie Smith. The parties were living separately, each residing with one of their two minor children; their daughter with Diann and their son with appellant. It is alleged that while transporting the couple's son to Diann for a visit, appellant struck Diann with his vehicle and struck her about the head and neck with his opened hand and closed fist. The police arrested appellant later that night on two counts each of simple assault and aggravated assault. An additional charge of recklessly endangering another person was filed on April 7, 1987, also stemming from the incident on March 15, 1987.

On March 19, 1987, Diann filed a petition pursuant to the Protection From Abuse Act (PFA) in the Court of Common Pleas, Civil Division, Westmoreland County at No. 1744 of

[ 380 Pa. Super. Page 4861987]

. On the following day, Diann and appellant entered into a consent agreement under the PFA which was approved and made a part of the trial court's order of May 8, 1987. Appellant has not, according to the record presently before the Court, ever been found in contempt of that order.

On May 26, 1987, the District Attorney of Westmoreland County filed an Information/Indictment against appellant for the charges that were filed pursuant to the incident which occurred on March 15, 1987. Appellant filed an omnibus pre-trial motion which included, inter alia, a motion to quash the information on grounds of double jeopardy, based upon the prior resolution of the PFA proceedings. After a hearing on the motion, the trial court denied the motion to quash. The trial court held that the PFA is a civil action, and therefore, appellant had not been subjected to a previous criminal prosecution. Appellant now appeals from that order.

Initially, we must determine whether this appeal is properly before us. We note that the trial court has made no finding that appellant's claim of double jeopardy was frivolous. In Commonwealth v. Brady, 510 Pa. 336, 508 A.2d 286 (1986), our Supreme Court reevaluated its position on interlocutory appeals alleging double jeopardy. The Court concluded that "an appeal from the denial of a motion to dismiss on double jeopardy grounds should not be permitted where the hearing court has considered the motion and made written findings that the motion is frivolous." Id., 510 Pa. at 346, 508 A.2d at 291. See also Commonwealth v. Williams, 361 Pa. Super. 501, 522 A.2d 1143 (1987). Because the trial court has made no finding of frivolousness in the instant case, the court's order denying the motion to dismiss on double jeopardy grounds is final and properly before us. However, the only issue ripe for review is the question of double jeopardy and we limit our review of appellant's arguments accordingly.

Appellant contends that the Protection From Abuse Act is a criminal proceeding, with warrantless arrests being authorized by 18 ...


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