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09/18/97 COMMONWEALTH PENNSYLVANIA v. LISA M.

September 18, 1997

COMMONWEALTH OF PENNSYLVANIA, APPELLEE
v.
LISA M. HOCKENBURY, APPELLANT



Appeal from the Order of the Superior Court of Pennsylvania, Entered at No. 125 Harrisburg 1994 on November 6, 1995, Reversing the Order of the Court of Common Pleas of Lycoming. County Entered at No. 92-10,832 on Before: Flaherty, C.j., Zappala, Cappy, Castille, Nigro & Newman, JJ. Mr. Justice Zappala files a Dissenting opinion in which Mr. Justice Nigro joins.

The opinion of the court was delivered by: Cappy

OPINION OF THE COURT

JUSTICE CAPPY

DECIDED: SEPTEMBER 18, 1997

This is an appeal by allowance from the opinion and order of the Superior Court reversing the order of the Court of Common Pleas of Lycoming County. We granted allowance of appeal in this matter to determine whether the Lycoming County prosecution of Lisa M. Hockenbury ("Appellant") is barred under either §§ 109 or 110 of the Pennsylvania Crimes Code, or the double jeopardy clause of either the United States Constitution or the Pennsylvania Constitution. For the reasons that follow, we hold that the Lycoming County prosecution is not barred and therefore affirm the order of the Superior Court.

The facts relevant to this appeal are as follows. *fn1 On January 24, 1992, Appellant sold 34 pieces of jewelry to G.M. Jewelry Enterprise ("G.M. Jewelry") in Harrisburg, Dauphin County. Appellant's name and correct address appeared on the receipt issued by the jeweler. Apparently suspecting the jewelry may have been stolen, the jeweler contacted the police in Dauphin County, who in turn sent a copy of the receipt to Pennsylvania State Police Officer Charles Snyder ("Officer Snyder") in Lycoming County.

Officer Snyder contacted Betty Sue Bird ("Bird"), a victim of a burglary that occurred in Lycoming County on December 18, 1990. On January 29 and 30, 1992, Bird travelled to Harrisburg and identified the 34 pieces of jewelry as among those stolen from her residence over a year earlier. The total value of the over 300 pieces of jewelry stolen from the Bird residence in 1990 was in excess of $16,300.00. The record does not indicate that anyone has ever been charged with the Bird burglary.

On February 3, 1992, Officer Snyder went to the Hockenbury residence in Lycoming County to question Appellant about the sale to the Harrisburg jeweler and to ask if she knew the whereabouts of the remaining jewelry stolen from the Bird residence. Appellant first denied having sold the jewelry in Harrisburg; she then admitted that she sold the jewelry, but denied that she had stolen it. She told Officer Snyder that it had belonged to her grandfather who had died several weeks before Officer Snyder contacted Appellant. Appellant contended that she had taken the jewelry, without her mother's knowledge, from its storage place in her grandfather's car and had sold it.

On April 12, 1992, Betty Stadt ("Stadt"), Bird's mother, attended a porch sale at the Hockenbury residence which was conducted by Appellant's mother. *fn2 Stadt requested to see any additional jewelry that was for sale. Appellant's mother then went to a car parked in the driveway, later determined to belong to her deceased father, and retrieved additional jewelry. Stadt purchased an item of jewelry which she recognized as having been stolen during the 1990 Bird burglary. Stadt later informed Officer Snyder of the events at the porch sale. A search warrant was issued for the Hockenbury residence and the car in the driveway. The search revealed more than 280 pieces of jewelry which Bird identified as having been taken from her bedroom in the 1990 burglary.

A criminal complaint charging Appellant with receiving stolen property was filed in Lycoming County on April 14, 1992. On May 27, 1992, a preliminary hearing was held on the charge, and the district Justice determined that there was sufficient evidence to hold the matter for trial. A bill of information was filed against Appellant on June 11, 1992. On August 14, 1992, the Commonwealth filed a bill of particulars alleging that Appellant received stolen property "which was purchased at the Hockenbury residence on April 12, 1992, and/or which was seized from the residence . . . on April 12, 1992."

On August 26, 1992, a criminal complaint was filed against Appellant in Dauphin County, charging her with receiving stolen jewelry, valued at $2,520.00, and disposing of it to G.M. Jewelry in Harrisburg on January 24, 1992. A preliminary hearing was held in Dauphin County on October 8, 1992, and a criminal information was filed on November 25, 1992.

On January 5, 1993, Appellant appeared in the Court of Common Pleas of Dauphin County and entered a plea of guilty to receiving stolen property. She was given a sentence of twenty-one months probation, and ordered to reimburse G.M. Jewelry in the amount of $535.00.

One week later, on January 12, 1993, Appellant filed a motion to dismiss the Lycoming County criminal information, claiming that the Lycoming County charge constituted a second prosecution for the same offense. The trial court granted Appellant's motion to dismiss the Lycoming County charges on the grounds that she had already pled guilty to and been sentenced for receiving stolen property in Dauphin County. The trial court held that the prosecution was barred by the Fifth Amendment of the United States Constitution, Article I, § 10 of the Pennsylvania Constitution, and 18 Pa.C.S. §§ 109 and 110. The Superior Court reversed the trial court. We granted allocatur to determine whether the Lycoming County prosecution is barred under either §§ 109 or 110 of the Pennsylvania Crimes Code, or the double jeopardy clause of either the United States Constitution or the Pennsylvania Constitution. For the reasons that follow, we now affirm. *fn3

The first issue presented for our review is whether the Lycoming County prosecution is barred by section 109 of the Crimes Code. That statute states in pertinent part that "when a prosecution is for a violation of the same provision of the statutes and is based upon the same facts as the former prosecution, it is barred by such a former prosecution where . . . . (3) The former prosecution resulted in a conviction." 18 Pa.C.S. § 109. The requirement that the former prosection result in a conviction is met by Appellant's guilty plea in Dauphin County. Furthermore, the Commonwealth concedes that the same provision of the statutes, namely 18 Pa.C.S. § 3925, is involved in both the Dauphin County and ...


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