Summary
In Commonwealth v. Saunders, 456 Pa. 406, 322 A.2d 102 (1974) (applying the holding of Commonwealth v. Mills, 447 Pa. 163, 286 A.2d 638 (1971) to prosecutions prior to December 31, 1971, the date of the Commonwealth v. Mills, supra, decision) our Supreme Court stated that "[o]ur holding in Mills has since been adopted by the Legislature as § 111 of the Crimes Code, 18 Pa.S. § 111 (1973).
Summary of this case from Commonwealth v. StudebakerOpinion
Argued April 18, 1974
Decided July 1, 1974
Criminal Law — Double jeopardy — Successive federal and state prosecutions for the same offense — Interests of respective jurisdictions must be substantially different — Commonwealth v. Mills, 447 Pa. 163 — Retroactive effect.
A person convicted and sentenced in a federal court may not subsequently be convicted in a Pennsylvania state court for the same offense unless it appears from the record that the interests of the Commonwealth of Pennsylvania and the jurisdiction which initially prosecuted and imposed punishment are substantially different. This principle, announced in Commonwealth v. Mills, 447 Pa. 163, is not limited to defendants whose prosecutions were initiated subsequent to December 31, 1971, the date of that decision.
Mr. Justice POMEROY concurred in the result.
Before JONES, C. J., EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.
Appeal, No. 35, March T., 1972, from order of Superior Court, April T., 1970, No. 274, affirming judgment of sentence of Court of Common Pleas, Criminal Division, of Allegheny County, Feb. T., 1969, No. 50, in case of Commonwealth of Pennsylvania v. Robert E. Saunders, a/k/a John Robert Sanders, a/k/a John Robert Saunders. Judgment of sentence reversed and appellant discharged.
Same case in Superior Court: 218 Pa. Super. 183.
Indictment charging defendant with armed robbery and receiving stolen goods. Before STRAUSS, J., without a jury.
Verdict of guilty of armed robbery and judgment of sentence entered thereon. Defendant appealed to the Superior Court, which affirmed the judgment of sentence of the court below, opinion per curiam, dissenting opinion by HOFFMAN, J. Appeal by defendant to Supreme Court allowed. Petition by Commonwealth to remand for filing and determination of post-trial motions granted; post-trial motion in arrest of judgment denied and appeal returned to Supreme Court.
John J. Dean, Assistant Public Defender, with him George H. Ross, Public Defender, for appellant.
Robert L. Campbell, Assistant District Attorney, with him Robert L. Eberhardt, Assistant District Attorney, for Commonwealth, appellee.
In Commonwealth v. Mills, 447 Pa. 163, 286 A.2d 638 (1971), this Court held that one convicted and sentenced in a federal court may not subsequently be convicted in a Pennsylvania state court for the same offense "unless it appears from the record that the interests of the Commonwealth of Pennsylvania and the jurisdiction which initially prosecuted and imposed punishment are substantially different." Id. at 171-72, 286 A.2d 642 (footnote omitted). On this direct appeal from appellant's 1970 conviction and sentence of armed robbery, following his conviction in federal court for the same offense, we are asked to determine whether Mills requires that appellant be discharged. We hold that it does.
Our holding in Mills has since been adopted by the Legislature as § 111 of the Crimes Code, 18 Pa.S. § 111 (1973). See also Model Penal Code § 1.10 (Proposed Official Draft, 1962), upon which § 111 of the Crimes Code is modeled.
On October 1, 1969, a jury in the United States District Court for the Western District of Pennsylvania found appellant guilty of the robbery of a federal savings and loan institution in Pittsburgh, and he was sentenced accordingly. Thereafter, on March 11, 1970, a judge of the Court of Common Pleas of Allegheny County sitting without a jury found appellant guilty of the same robbery. A concurrent prison sentence was imposed. The Superior Court affirmed the judgment of sentence per curiam without opinion, and on November 30, 1971, one month before our decision in Mills, this Court granted appellant's petition for allowance of appeal. We then remanded the case to the trial court for the filing and disposition of supplemental post-trial motions, and retained jurisdiction. The present appeal is from the trial court's January 9, 1974 denial of appellant's motion in arrest of judgment.
Commonwealth v. Saunders, 218 Pa. Super. 183, 279 A.2d 259 (1971). Judge HOFFMAN filed a dissenting opinion. Id. at 184, 279 A.2d at 259.
See Appellate Court Jurisdiction Act of 1970, Act of July 31, 1970, P.L. 673, art. II, § 204(a), 17 Pa.C.S.A. § 211.204(a) (Supp. 1974).
Here, as in Mills, the record shows that the interests of the Commonwealth were fully protected by the initial prosecution and conviction in federal court. The Commonwealth concedes as much. The Commonwealth contends, however, that Mills applies only to prosecutions initiated after December 31, 1971, the date Mills was decided. We cannot agree; the infirmity of the Commonwealth's argument is found in our post- Mills case law.
Subsequent to Mills, this Court unanimously reversed, in collateral proceedings, the judgments of sentence of three appellants whose prosecutions not only were commenced prior to our decision in Mills, but whose prosecutions also predated the trials of appellant Mills and Saunders, the present appellant. See Commonwealth v. Hall, 447 Pa. 572, 287 A.2d 441 (1972) (1966 prosecution; judgment of sentence reversed February 11, 1972); Commonwealth v. Pope, 447 Pa. 576, 287 A.2d 902 (1972) (1965 prosecution; judgment of sentence reversed March 20, 1972); Commonwealth v. Pugh, 447 Pa. 582, 288 A.2d 519 (1972) (1962 prosecution; judgment of sentence reversed March 20, 1972). Hall, Pope, and Pugh refute the Commonwealth's argument.
Regrettably, neither party has cited either Hall, Pope, or Pugh in its brief in this Court, although our treatment of Mills is well documented. See Shepard's Pennsylvania Citations 322 (1956-1973 Supp. 1973). Even more unfortunately, the record fails to disclose that either the prosecution or the defense called the trial court's attention to these cases when arguing appellant's post-trial motions. See ABA Code of Professional Responsibility, DR 6-101(A)(2) (1969).
This Court having granted collateral relief in Hall, Pope, and Pugh to appellants whose prosecutions predated both our decision in Mills and the instant prosecution, it cannot now successfully be argued that appellant Saunders, who is here on direct appeal, is not entitled to the same relief. Cf. Bradley v. School Board, 416 U.S. 696, 94 S.Ct. 2006 (1974); Commonwealth ex rel. Smith v. Myers, 438 Pa. 218, 235-37,
In Bradley, the Supreme Court, there speaking of cases on direct review, as here, reiterated the oft-repeated "principle that a court is to apply the law in effect at the time it renders its decision . . . ." 416 U.S. at 711, 94 S. Ct. at 2016. See also Comment, Today's Law and Yesterday's Crime: Retroactive Application of Ameliorative Criminal Legislation, 121 U. Pa. L. Rev. 120, 131-47 (1972).
261 A.2d 550, 558-59 (1970). It must therefore be concluded that here, as in Mills, Hall, Pope, and Pugh, neither the Pennsylvania conviction nor the punishment imposed may stand.
Judgment of sentence reversed and appellant discharged.
Mr. Justice POMEROY concurs in the result.