second prosecution and imposition of punishment by Pennsylvania for same offense as to which federal prosecution and punishment occurred held precluded unless interests of two jurisdictions differed substantially, so that initial prosecution failed to protect Pennsylvania interests
How later courts described this case
- second prosecution and imposition of punishment by Pennsylvania for same offense as to which federal prosecution and punishment occurred held precluded unless interests of two jurisdictions differed substantially, so that initial prosecution failed to protect Pennsylvania interests
- as matter of state constitutional law, separate prosecution by courts of Pennsylvania following prior conviction for same act in federal courts will not be permitted unless it first appears that the interests of the state and federal governments are substantially different
- observing that the federal double jeopardy clause protects against “multiple punishment for the same offense at one trial”
- second prosecution and punishment for same offense not permitted in Pennsylvania unless interests of Commonwealth and jurisdiction that initially prosecuted and punished defendant are substantially different
Written by the judges who cited it.
The opinion
Concurring Opinion by
Mr. Justice Pomeroy:
I concur in the result suggested in the majority opinion.
I agree that Bartkus v. Illinois, 359 U.S. 121 , 3 L. Ed. 2d 684 (1959), continues to stand as valid authority for the proposition that the federal double jeopardy proscription places no constitutional restriction on a state criminal prosecution initiated subsequent to a conviction in a United States court for the same of *173 fense. In this vexing field of multiple prosecutions in our federal system, the effect of BartJms was to leave a state free, in the words of Mr. Justice Frankfurter, “to develop a rational and just body of criminal law in the protection of its citizens” without federal interference. Bupra, at pp. 138-139. Thus a state may properly determine that prosecution by it for an offense previously prosecuted under federal law is a procedure to be used sparingly, and then only within a limited context. 1 I am satisfied that the time has come for Pennsylvania to take such a position.
I do not minimize the difficulties in articulating the standards by which prosecuting attorneys and trial judges should be governed in determining when a second prosecution will be instituted or permitted. These problems are spelled out both in the cases and the literature on the subject. While the interest analysis approach recommended in the court’s opinion has merit in the abstract, it will, I fear, prove difficult in application. I think more specific guidelines should be established, if not by statute, then by judicial decision. A commendable effort to set forth such guidelines was made by the American Law Institute in its Model Penal Code, §1.10 (Proposed Official Draft, 1962), quoted in the margin. 2 In my view these standards, or *174 some similar statement as to the effect of a former prosecution, merit adoption in Pennsylvania. This section has been incorporated, practically verbatim, as Section 111 of a proposed new Pennsylvania Crimes Code now pending in the General Assembly (Senate Bill No. 455, as amended November 29, 1971—Printer’s No. 1379). If this section of the Bill were now the statutory law of the Commonwealth, it would undoubtedly require vacation of the orders now before us, for Mills’ offense does not come within the exceptions of the proposed new section. In the meantime, I am satisfied that it is properly within the judicial competence to hold that Mills should not be prosecuted for the offense charged, and I accordingly concur in vacating the orders below.
As the opinion in BartJcus observes, a number of states have statutes which bar a second prosecution if the defendant has been once tried by another government for a similar offense.
“Section 1.10. Former Prosecution in Another Jurisdiction: When a Bar.
“When conduct constitutes an offense within the concurrent jurisdiction of this State and of the United States or another State, a prosecution in any such other jurisdiction is a bar to the subsequent prosecution in this State under the following circumstances :
“(1) The first prosecution resulted in an acquittal or in a conviction as defined in Section 1.08 and the subsequent prosecu *174 tion is based on the same conduct, unless (a) the offense of which the defendant was formerly convicted or acquitted and the offense for which he is subsequently prosecuted each requires proof of a fact not required by the other and the law defining each of such offenses is intended to prevent a substantially different harm or evil or (b) the second offense was not consummated when the former trial began; or
“(2) The former prosecution was terminated, after the information was filed or the indictment found, by an acquittal or by a final order or judgment for the defendant which has not been set aside, reversed or vacated and which acquittal, final order or judgment necessarily required a determination inconsistent with a fact which must be established for conviction of the offense of which the defendant is subsequently prosecuted.” See also the Comment to this section (then identified as §1.11) appearing in Tentative Draft No. 5 of the Model Penal Code (1956), at pp. 60-63. Compare the formulation of standards more recently set forth in §§706 and 707 of Study Draft of a New Federal Criminal Code, by the National Commission on Reform of Federal Criminal Laws (U. S. Government Printing Office, 1970), and commentary thereto in 1 Working Papers of the National Commission on Reform of Federal Criminal Laws, 346-348 (1970).