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
Dissenting Opinion by
Me. Justice Babbiebi:
I dissent, because I think the majority has in this case propounded a double jeopardy rule which not only puts Pennsylvania in a unique and anomalous position in dual sovereignty cases, but which, more importantly, is both technically impractical and substantively fraught with unnecessary opportunities for inequality in the treatment of offenders.
First, double jeopardy in Pennsylvania dual sovereignty cases will now be a factual issue for the trial judge rather than a clear question of law. In order to rule on a double jeopardy plea in Pennsylvania the court must review and pass judgment upon the sentence imposed by another court in the judicial system of a separate sovereign. The Pennsylvania judge must review the other judge’s sentence, and presumably the entire penal, probation and parole apparatus applicable to that sentence, for, under the majority rule, “if it appears that the interests of this Commonwealth were not sufficiently protected in the initial prosecution, then a second prosecution and imposition of additional punishment in Pennsylvania will be allowed”. This makes the application of a constitutional safeguard depend, not upon guilt, or upon conviction or acquittal *176 in a prior proceeding, but upon the nature of the punishment or sentence previously ordered, and on how the Pennsylvania judge views the other sovereign’s solution for guilt determined under that sovereign’s laws and procedures.
One may ask what might be our course in a case like this one where we have ruled out guilt as an issue under Pennsylvania law, only to find that the conviction by the other court has later been set aside, or that the sentence in that case has been so altered as to no longer protect “the interests of this Commonwealth?” Who then will look out for the “interests of the Commonwealth”, if we have lapsed our judicial responsibility to do so by a double jeopardy ruling in a preliminary proceeding?
Secondly, I see serious opportunities for injustice to result from inequality of-treatment under the view adopted by the majority. For example, two defendants in the same bank robbery who are guilty of the same offense may well have unequal treatment depending solely upon the result of a race for forum. Thus, one who is tried first in the Federal court system may successfully interpose a double jeopardy plea in our courts, whereas one who is tried first in our court will have no such plea available to him in a subsequent Federal proceeding.
Furthermore, I am unable to see how any advantage can be gained in the trial judge’s exercise of his duty to protect both the defendant and the Commonwealth by the process which I envision will result from the majority’s rule. In my view both can best be protected by continuing to have Pennsylvania guilt proceedings as heretofore, with the trial judge retaining his traditional discretion in his sentencing procedures to decide what new measures, if any are needed, will sufficiently protect “the interests of this Commonwealth”.
*177 As is pointed out in the majority’s able and thorough presentation of the law on this double jeopardy question, the dual sovereignty distinction where state and federal court’s are concerned is still observed in United States and other state courts in this country; and, as the majority points out, the case of Bartkus v. Illinois, 359 U.S. 121 , 79 S. Ct. 676 (1959), is still viable despite many and recent efforts to change it.
I would sustain the action of the Superior Court in affirming the sentences of the trial court.