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filed: January 25, 1989.


Appeal from the Order of the Court of Common Pleas of Clinton County, Criminal at No. 139-87.


Jeffrey W. Stover, State College, for appellant.

Merritt E. McKnight, District Attorney, Lock Haven, for Com., appellee.

Brosky, Montemuro and Johnson, JJ. Brosky, J., files a dissenting opinion.

Author: Montemuro

[ 381 Pa. Super. Page 569]

Appellant, David W. Evers, appeals the denial of his motion to quash a criminal information charging him with three (3) counts of Recklessly Endangering Another Person on grounds that the prosecution of these charges would violate his double jeopardy rights under the Fifth and

[ 381 Pa. Super. Page 570]

Fourteenth Amendments of the United States Constitution and Article I, Section 10 of the Pennsylvania Constitution. We affirm.

This appeal arises out of an incident that occurred on March 8, 1987 when, in an attempt to elude police, appellant allegedly drove his vehicle well in excess of the posted speed limit. Following appellant's apprehension, a criminal information was filed charging him with three (3) counts of Recklessly Endangering Another Person.*fn1 In addition to these charges, appellant was issued citations for various summary traffic offenses, including a charge for Reckless Driving.*fn2 A summary trial was conducted and appellant was convicted of the Reckless Driving charge in addition to several other summary offenses. In response to the criminal information charging appellant with three (3) counts of Recklessly Endangering Another Person, appellant filed a timely omnibus pretrial motion. Included in the appellant's pretrial motions was a motion to quash the information on grounds that prosecution of the Reckless Endangering charges after his conviction for Reckless Driving was barred by the Double Jeopardy Clause of both the United States and Pennsylvania Constitutions. The trial court refused to quash the information and this timely appeal followed.

Concisely stated, the sole question presented in this case is whether a subsequent prosecution for Recklessly Endangering Another Person is barred by the Double Jeopardy Clause when the defendant has been convicted of the prior summary offense of Reckless Driving and the charges arise out of the same incident.*fn3

[ 381 Pa. Super. Page 571]

Initially, we note that the denial of a pretrial motion seeking to quash an information on double jeopardy grounds constitutes an appealable order. See Commonwealth v. Hoburn, 335 Pa. Super. 536, 542 n. 8, 485 A.2d 24, 26 n. 8 (1984), citing Commonwealth v. Beckman, 304 Pa. Super. 239, 450 A.2d 660 (1982). The guarantee against double jeopardy is contained in the Fifth Amendment of the United States Constitution and is made applicable to the states through the Fourteenth Amendment. See Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). The double jeopardy protection afforded by the United States Constitution has generally been interpreted as coextensive with the protection afforded by Article I, Section 10 of the Pennsylvania Constitution. See Commonwealth v. Goldhammer, 507 Pa. 236, 247-248 n. 4, 489 A.2d 1307, 1313 n. 4 (1985); McAulay, supra 361 Pa. Super. at 427 n. 4, 522 A.2d at 656 n. 4.

We find that the appellant's prosecution for three counts of Recklessly Endangering Another Person is not barred by double jeopardy. The Supreme Court of Pennsylvania has addressed the question of the application of double jeopardy protections in a case factually analogous to the present case. In Commonwealth v. Taylor, 513 Pa. 547, 522 A.2d 37 (1987), the appellant had entered a plea of guilty before the district justice to the offense of harassment, a summary offense. See 18 Pa.C.S.A. § 2709. Subsequently, he was tried before a jury and convicted of the misdemeanor offense of carrying a concealed weapon. Mr. Taylor appealed the latter judgment of sentence, arguing that Section 110 of the Crimes Code prohibits prosecution of statutory offenses where there has been an earlier prosecution for a different statutory offense arising from the same criminal episode. See 18 Pa.C.S.A. § 110. The Supreme Court found Taylor's situation to be "virtually indistinguishable" from that in Commonwealth v. Beatty, 500 Pa. 284, 455 A.2d 1194 (1983), stating:

[ 381 Pa. Super. Page 572]

In Beatty, the defendant, following a vehicle collision, broke the jaw of the other driver and left the scene without identifying himself as required by the Motor Vehicle Code. 75 Pa.C.S.A. § 3743. Later the state police charged him with aggravated assault, 18 Pa. C.S.A. § 2702, and he pled guilty before a district justice, to the summary offense of failure to give information. 75 Pa.C.S.A. §§ 3744, 3743(b). He subsequently moved for dismissal of the charge of aggravated assault in a pretrial motion and the court granted his motion. The Commonwealth appealed to Superior Court. That court reversed the court of common pleas and we affirmed, stating:

Id., 500 Pa. at 290, 455 A.2d at 1197-1198 (citations omitted). The [Beatty] Court went on to say:

Our interpretation of Section 110(1)(ii) as excluding traffic violations under the Motor Vehicle Code is further bolstered by a consideration of the purposes sought to be achieved by the legislative enactment as well as promulgation of the compulsory joinder rule. The disposition of a summary offense in a traffic matter prior to the trial of a misdemeanor or felony does not present the type of government harassment of a defendant that would offend double jeopardy concerns. Additionally, judicial economy is not served by requiring our Courts of Common Pleas to dispose of these matters which are regularly entrusted to the district justice for disposition. It is fundamental that a

[ 381 Pa. Super. Page 573]

    rule of law should not be applied where its application fails to serve the purposes for which it was designed . . . .

Taylor, supra 513 Pa. at 552-553, 522 A.2d at 39-40 (citations omitted). Reiterating that double jeopardy concerns do not arise where a misdemeanor prosecution is preceded by a summary conviction, the Taylor Court recognized that "[b]y allowing the district justice to dispose of the summary offense the defendant was no worse off than he would have been had the charge been bound over and joined with the greater offense." Id., 513 Pa. at 553, 522 A.2d at 40. This is a clear statement by our supreme court that, under the circumstances of the Taylor case, the policy that the state should not "make repeated attempts to convict an individual, thereby exposing him to continued embarrassment, anxiety, and expense, while increasing the risk of an erroneous conviction or an impermissibly enhanced sentence" by submitting a defendant to multiple prosecutions for the same offense, is simply not implicated. Ohio v. Johnson, 467 U.S. 493, 498, 104 S.Ct. 2536, 2540, 81 L.Ed.2d 425 (1984). The Taylor Court also declared that "[i]n addition, the disposition of the summary offense by the district justice has the advantage of narrowing the issues for the common pleas court, and furthers the interests of judicial economy." Id. (citation omitted).

We of course recognize, as the dissent in the present case has chosen to explain at length, that the holding of the supreme court in Taylor rests upon an interpretation of 18 Pa.C.S. § 110(1)(ii). We are unwilling to believe, however, that the other statements made by our supreme court in the context of the Taylor decision, which do not specifically involve Section 110(1)(ii), are mere surplusage. Our supreme court in Taylor, and earlier in Beatty, expressly considered and addressed constitutional double jeopardy protections. Consequently, we have followed the guidance of the Pennsylvania Supreme Court in reaching our holding in the case at bar.

[ 381 Pa. Super. Page 574]

In addition to Taylor and Beatty, which we believe we are bound to read for their clear meaning and to apply accordingly, we are guided by the decisions of this Court. In Commonwealth v. Buechele, 298 Pa. Super. 418, 444 A.2d 1246 (1982), we held that a payment of a fine for the summary offense of hit and run did not bar prosecution for drunk driving arising from the same criminal episode. The appellant in Buechele argued that prosecution for the drunk driving offense was barred ". . . by the constitutional doctrine of double jeopardy, by the rule of Campana, and by Section 110 of the Crimes Code . . ." Id., 298 Pa. Superior Ct. at 421, 444 A.2d at 1246 (1982). This Court flatly rejected appellant's contentions, stating "[o]ur case and our statutory law will not be construed to permit such a mockery of the criminal justice system." Id., 298 Pa. Superior Ct. at 422, 444 A.2d at 1248. Finding no violation of statutory law, the Buechele Court concluded its opinion with the following:

Lastly, we reiterate that the purpose of the double jeopardy doctrine and of the rule of Campana is to avoid harassment of a defendant by the government. Issuance by a district magistrate of a citation for a summary offense violating the Vehicle Code is not a prosecution or a trial which causes the anxiety and strain to a defendant, or which can be viewed as harassment by the government, such as is prohibited by our system of justice.

Id., 298 Pa. Superior Ct. at 427, 444 A.2d at 1250 (footnote omitted).

Likewise, in Commonwealth v. Warrick, 344 Pa. Super. 611, 497 A.2d 259 (1985), this Court held that double jeopardy did not bar trial on an escape charge where the appellant had been summarily held in contempt of court based upon the same incident. The majority in Warrick stated the following by way of a footnote:

Allen [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)] involved a contempt hearing as ...

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