Matter of Huff

BECK, Judge,

dissenting:

On June 2, 1987, 17 year old appellant Jelbert Huff, Jr., stood trial and was convicted of reckless driving and driving at an unsafe speed. Today this court concludes that, because of perceived statutory limitations on the courts in which he was and will be tried, appellant can be tried once again for the same offense. In my view, the majority’s holding is an unwarranted violation of appellant’s fundamental guarantee against double jeopardy. I respectfully dissent.

The constitutional guarantee respecting double jeopardy embodies three protections: “It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.” North Carolina v. Pearce, 395 U.S. 711, 717 , 89 S.Ct. 2072, 2076 , 23 L.Ed.2d 656 (1969). In the instant case we are particularly concerned with the second of these protected interests. With respect to that protection, the Supreme Court has emphasized:

The constitutional prohibition against “double jeopardy” was designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense____ The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with *589 all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.

Green v. United States, 355 U.S. 184, 187-188 , 78 S.Ct. 221, 223-24 , 2 L.Ed.2d 199 (1957).

Last term, in Grady v. Corbin, — U.S.-, 110 S.Ct. 2084, 2093 , 109 L.Ed.2d 548, 564 (1990), the Supreme Court explained that, “the Double Jeopardy Clause bars any subsequent prosecution in which the government, to establish an essential element of the offense charged in that prosecution, will prove conduct that constitutes an offense for which the defendant has already been prosecuted.” In Grady v. Corbin, in a fact pattern similar to the instant case, the defendant pled guilty to traffic charges of driving while intoxicated and failing to keep right of the median. The charges arose from a fatal automobile accident. Two months after the guilty pleas had been entered, the defendant Corbin was indicted on charges of vehicular manslaughter, reckless assault and negligent homicide. The New York Court of Appeals held that double jeopardy barred the second prosecution because the State intended to rely on the prior traffic offenses to prove the homicide and assault charges. The United States Supreme Court affirmed, stressing that the successive prosecution was barred by double jeopardy because the conduct the state would prove in the second trial was concededly and indisputably conduct for which Corbin had already been prosecuted. As such it constituted the “same offense” for purposes of double jeopardy analysis.

The majority correctly recognizes that Grady v. Corbin would govern the result in this case and, once applied, would bar reprosecution had appellant been an adult at the time the offenses were committed. See also Commonwealth v. LaBelle, 397 Pa.Super. 179 , 579 A.2d 1315 (1990) *590 (en banc). However, the majority avoids the impact of Grady v. Corbin and denies to this defendant the full extent of double jeopardy protection by carving out a wholly unwarranted “jurisdictional exception” to the- operation of the double jeopardy guarantee.

The majority arrives at this conclusion by what is, in my view, a strained and unnecessarily technical reading of various statutory provisions governing the adjudication of summary offenses and of delinquency petitions in juvenile court. However, even if I agreed with the majority’s conclusion that “no single court had jurisdiction over both the summary offenses and the delinquency proceeding”, I nevertheless would find this prosecution barred. Double jeopardy protection against multiple trials for the same offense cannot be eroded by the statutory device of creating courts of limited jurisdiction within a single sovereignty.

As the majority acknowledges, the “jurisdictional exception,” upon which it bases its denial of double jeopardy protection to this defendant, has never been expressly articulated or adopted by the Supreme Court outside the context of “dual sovereignty.” 1 Simply stated, the “jurisdictional exception” which had, in some instances, constituted an exception to the general application of double jeopardy principles is that if a defendant has been convicted of a lesser offense in an inferior court which had no jurisdiction *591 over the greater offense, that defendant may be tried for the greater offense and double jeopardy will not bar the subsequent prosecution. Whatever brief life the “jurisdictional exception” enjoyed in Pennsylvania in the guise of Commonwealth v. Evers, 381 Pa.Super. 568 , 554 A.2d 531 (1989), has now fully been put to rest in this court’s en banc decision in Commonwealth v. LaBelle, supra. The majority acknowledges this in the first section of its opinion.

The “jurisdictional exception” has fared no better elsewhere. In fact, the case upon which the majority relies for its bald assertion of a “jurisdictional exception”, i.e. Diaz v. United States, 223 U.S. 442 , 32 S.Ct. 250 , 56 L.Ed. 500 (1912), can no longer be thought to have much, if any, vitality in the face of double jeopardy jurisprudence that has developed since Diaz was decided. See Waller v. Florida, 397 U.S. 387 , 90 S.Ct. 1184 , 25 L.Ed.2d 435 (1970) (a municipal court and a state court cannot place defendant on trial twice for the same criminal conduct despite argument that they constitute distinct sovereignties); Brown v. Ohio, 432 U.S. 161 , 97 S.Ct. 2221 , 53 L.Ed.2d 187 (1977); Illinois v. Vitale, 447 U.S. 410 , 100 S.Ct. 2260 , 65 L.Ed.2d 228 (1980); Grady v. Corbin, supra. The rejection of the “jurisdictional exception” by many states and federal courts 2 in recent years in the wake of Waller , etc., is based on the sound, indeed compelling, rationale that the double jeopardy guarantee is not so fragile as to be dependent upon the jurisdictional limitations states may choose to impose within a multifaceted judicial system. 3

*592 I find persuasive the court’s reasoning in Commonwealth v. Norman, 27 Mass.App. 82 , 534 N.E.2d 816, 820 , aff'd, 406 Mass. 1001 , 545 N.E.2d 1155 (1989):

If ... the constitutional law of the land forb[ids] successive prosecutions for the same criminal act, that doctrine ought not to be subverted because courts of limited jurisdiction ha[ve] been established within the same sovereign. For the defendant obliged to run the gauntlet more than once, the ordeal would not be less painful because the several courts he was haled before had discrete jurisdiction.

The majority attempts to revive the deteriorated so-called “jurisdictional exception” in the instant case by drawing two distinctions, neither of which persuades me to deprive appellant of his double jeopardy protection. First, the majority emphasizes that, due to its interpretation of the jurisdictional limits of district justice court and juvenile court, the charges in the instant case could not have come before a single tribunal. Therefore, in order that the prosecution not be forced to forego either the summary offense prosecution or the delinquency adjudication, the appellant’s double jeopardy rights may be sacrificed through the imposition of successive trials for the same offense. Putting aside for a moment the majority’s too narrow statutory interpretation on the jurisdictional limits involved here, my response to this position is simple. The courts of this Commonwealth are part of a unified, state judicial system, *593 the jurisdictional limits of which are set by a single sovereign through legislative action. Commonwealth v. Downs, 334 Pa.Super. 568 , 483 A.2d 884, 887 (1984). Both the district justice court and the juvenile court derive their power and authority from the same source. The Fifth and Fourteenth Amendments of the United States Constitution and Article I, Section 10 of the Pennsylvania Constitution guarantee to our citizens, adults and juveniles alike, that they will be free from successive prosecutions for the same offense. Our legislature cannot escape this constitutional mandate by creating courts with mutually exclusive jurisdiction over greater and lesser criminal offenses. The integrity of the jurisdictional scheme created by the legislature surely cannot take precedence over the fundamental constitutional rights embodied in the double jeopardy clause. I agree with the court in Salaz v. Tansy, 730 F.Supp. at 373, which stated: “When the state controls prosecutions in its multilevel judicial system, the double jeopardy clause is a defendant’s only protection.” Defendants cannot be stripped of this protection by manipulating the jurisdiction of the courts through which they must suffer their multiple trials.

Further, I cannot agree with the majority that its denial of double jeopardy protection to this appellant is justified because of “the divergent goals sought to be achieved by the criminal and juvenile systems”. Nor can I conclude that because the juvenile court system “simply ‘adjudicates’ the juvenile” that therefore he is entitled to only a diluted form of double jeopardy protection. These assertions by the majority fly in the face of the realities of the juvenile court process, and more importantly, contravene the long-standing constitutional guarantees fashioned by the Supreme Court.

The arguments posited by the majority are precisely those rejected by the Supreme Court when it first applied double jeopardy protection to juvenile delinquency proceedings. Breed v. Jones, 421 U.S. 519 , 95 S.Ct. 1779 , 44 L.Ed.2d 346 (1975). There, too, the state argued that since *594 the purposes of the juvenile justice system were benign and not intended to be punitive, the policies underlying the double jeopardy protection were not implicated. The Court emphatically rejected this suggested approach. Pointing to recent decisions in which the Court had extended various constitutional guarantees to juveniles, 4 the Supreme Court noted that they were motivated by the recognition that, “there is a gap between the originally benign conception of the [juvenile justice] system and its realities”. Breed v. Jones, 421 U.S. at 528 , 95 S.Ct. at 1785 . Moreover, the Court emphasized that the double jeopardy guarantee was not meant only to protect against multiple criminal punishments. It was and is intended to spare citizens the ordeal of multiple trials. With respect to the “trials” involved in that case, the Court said: “[T]here is little to distinguish an adjudicatory hearing such as was held in this case from a traditional criminal prosecution. For that reason, it engenders elements of ‘anxiety and insecurity’ in a juvenile, and imposes a ‘heavy personal strain’.” 421 U.S. at 530 , 95 S.Ct. at 1786 . The Breed Court concluded that, twice being subjected to that burden, twice being put to the task of defending against the same charges brought by the state and twice experiencing the “heavy personal strain” of being tried for the same offense, is exactly the plight the double jeopardy guarantee assures against. 421 U.S. at 533 , 95 S.Ct. at 1787 . Finally, the Supreme Court rejected the argument which the majority here apparently embraces, i.e. that extending the double jeopardy guarantee to juvenile proceedings would somehow diminish the flexibility and informality of the juvenile justice system. It concluded instead that: “[T]he burdens that [the state] envisions appear to us neither qualitatively nor quantitatively sufficient to justify a departure in this context from the fundamental prohibition against double jeopardy.” 421 U.S. at 537 , 95 S.Ct. at 1789 . Therefore, on the basis of Breed , a denial of double jeopardy protection to this juvenile cannot be sup *595 ported by the distinction between a juvenile delinquency proceeding and an adult criminal trial.

Finally, to the extent that the majority’s conclusion today is dictated by its reading of the statutory jurisdictional scheme at work here, I suggest that it is erroneous. As the majority points out, various jurisdictional provisions operate to define in which courts and under what procedural circumstances summary offenses and delinquency petitions may be adjudicated. In particular, the majority notes that 42 Pa.Cons.Stat.Ann. § 1515 (Purdon 1981) gives district justices jurisdiction over summary offenses. Moreover, the Motor Vehicle Code provides that juveniles between the ages of 16 and 18 who are charged with summary motor vehicle offenses have the rights of an adult and “may be prosecuted under the provisions of this title in the same manner as an adult.” 75 Pa.Cons.Stat.Ann. § 6303 (Purdon 1977). In addition, juvenile court jurisdiction, which is defined in the Juvenile Act, extends to “proceedings in which a child is alleged to be delinquent or dependent” and to “transfers under section 6322 (relating to transfer from criminal proceedings)”. 42 Pa.Cons.Stat.Ann. § 6303(a)(1) and (2) (Purdon 1982). The final statutory provision which applies to today’s inquiry is the definitional portion of the Juvenile Act which states that a “delinquent act” does not include “summary offenses.” 42 Pa.Cons.Stat.Ann. § 6302 (Purdon 1982). With very little case law to guide it, the majority concludes that, based on its reading of these statutes together, “neither the district justice nor juvenile court can adjudicate both summary and more serious offenses arising out of the same incident.” I disagree.

I would hold that the above-described statutory scheme does not preclude bringing within a single proceeding before the juvenile court, both the delinquency petition alleging a delinquent act and the summary offenses. I arrive at this conclusion by a straightforward reading of the statutory language. In addition, unless the statutes are so interpreted senseless anomalies arise from the case law *596 which discusses original and transfer jurisdiction of juvenile court over summary offenses.

While the Juvenile Act precludes the use of summary offenses as the basis for an adjudication of delinquency, nothing in the act deprives the juvenile court of jurisdiction to adjudicate summary charges which are filed as part of a proceeding in which a child is alleged to be delinquent. The Act specifically gives juvenile court jurisdiction over such proceedings. In the instant case, for example, the delinquency petition charged appellant with aggravated assault and homicide by vehicle. Only these charges could form the basis of a finding of delinquency and its attendant consequences. Yet during the same proceeding, the juvenile court is not without power to hear the summary charges. Nothing inherent in the nature of the juvenile court deprives it of the power to adjudicate summary charges.

This is plain because the juvenile court has been held to have jurisdiction over a summary offense alone (without the filing of a delinquency petition) if the summary offense is transferred to juvenile court under section 6322 after an appeal de novo has been taken to the court of common pleas from a summary conviction. Thus, in Commonwealth v. Alan D., 291 Pa.Super. 298 , 435 A.2d 1231 (1981), a 12 year old juvenile appealed from a summary conviction of criminal mischief. His de novo appeal was taken to the Court of Common Pleas of Berks County. The trial judge transferred the case under section 6322 to the juvenile court. The juvenile court then found the defendant guilty beyond a reasonable doubt of the summary charges and imposed a fine and ordered restitution. On the other hand, the juvenile court found that since the defendant had not committed a delinquent act within the meaning of the statute, he could not be adjudged a delinquent child. This court affirmed the actions of the courts below. Accord, Commonwealth v. Kirk J., 293 Pa.Super. 487 , 439 A.2d 680 (1981). Given Alan D. and Kirk J., I fail to see how the majority can *597 conclude that “juvenile court, then, is without jurisdiction to hear summary offenses.” Clearly, this is not the case.

I decline to interpret the applicable statutes to arrive at the anomalous result the majority achieves here, whereby juvenile court could adjudicate summary charges when jurisdiction is obtained through the transfer provisions of section 6322 but is without power to adjudicate the same charges when they accompany a petition for delinquency in a proceeding under section 6303(a)(1). No rational purpose would be served by such a result and the majority offers no explanation for the illogical anomaly. 5

The majority attempts to escape the force of this argument by suggesting that the result it reaches is necessitated by the operation of section 6303 of the Motor Vehicle Code. That section provides that juveniles between 16 and 18 years of age who are charged with summary vehicle offenses “have all the rights of an adult and may be prosecuted under the provisions of this title in the same manner as an adult.” 75 Pa.Cons.Stat.Ann. § 6303 (Purdon 1977). The majority then cites the language of the Juvenile Act regarding transfer of criminal proceedings to juvenile court when it appears that the defendant is a child. 42 Pa.Cons.Stat.Ann. § 6322 (Purdon Supp.1990). In pertinent part, section 6322 provides:

Except as provided in 75 Pa.C.S. § 6303 (relating to the rights and liabilities of minors), or in the event the child is *598 charged with murder or has been found guilty in a criminal proceeding, if it appears to the court in a criminal proceeding, that the defendant is a child, this chapter shall immediately become applicable, and the court shall forthwith halt further criminal proceedings, and where appropriate, transfer the case to the division or a judge of the court assigned to conduct juvenile hearings____

The majority reads the foregoing section as excluding summary offenses from the jurisdiction of the juvenile court. I read it as permitting courts involved in criminal proceedings to retain jurisdiction over summary motor vehicle offenses where the offender is between 16 and 18 years old. As such, section 6303 of the motor vehicle code operates as an exception to the general mandate of section 6322 of the Juvenile Act which seeks to have criminal proceedings against children adjudicated in juvenile court. However, I do not agree that section 6322 either precludes transfer of such cases to juvenile court or, more importantly, denies juvenile court jurisdiction over such offenses if they are filed as part of a delinquency proceeding. The motor vehicle code, using clearly permissive language, provides that juveniles between 16 and 18 may be prosecuted as adults for summary offenses. It does not provide that they shall be prosecuted as such. The motor vehicle provision does not, in my view, strip juvenile court of authority to act if such charges are filed at a delinquency proceeding or are transferred from a criminal proceeding pursuant to section 6322.

It is clear that the legislative policy underlying Section 6303 of the Motor Vehicle Code was to treat juveniles between the ages of 16 and 18 as adults in ordinary cases of summary offenses. The special qualities of the juvenile system were not required for adjudication of summary offenses. However, I can not believe that the legislature intended to deprive the juvenile court of jurisdiction in summary offenses where the juvenile court had jurisdiction generally over the matter. As a matter of policy there is nothing about summary offenses which make the juvenile *599 court an inappropriate forum. Nor is there anything about the functioning of the court system as a whole that makes the juvenile court an inappropriate forum.

Permitting the joint adjudication of both the summary motor vehicle charges and the allegations of delinquency in a single proceeding before the juvenile court would have avoided the double jeopardy question at issue here and would not contravene jurisdictional limits imposed by statute. Moreover, I see no inherent policy considerations which would argue against such a proceeding. However, I wish to re-iterate that even if the legislature had intended to create the mutually exclusive jurisdiction that the majority finds here and even if the Commonwealth would therefore have to forego one or the other prosecution, my response would be the same. Appellant cannot, consistent with the constitutional prohibition against double jeopardy, be forced to submit to successive prosecutions for the same offense. No amount of jurisdictional juggling can deprive him of this fundamental guarantee.

WIEAND, J., joins in this dissenting opinion.

. Unlike the "jurisdictional exception” upon which the majority relies, the doctrine of dual sovereignty persists as an exception to the prohibition against double jeopardy. If the two entities which seek successively to prosecute a defendant are separate sovereigns, double jeopardy will not bar reprosecution. The underlying principle upon which dual sovereignty rests is that separate sovereigns have the right to enforce their own laws. A violation of law is an offense against the "peace and dignity” of the individual sovereign and each sovereign retains the right to vindicate the breach of its authority. See United States v. Lanza, 260 U.S. 377, 382 , 43 S.Ct. 141, 142 , 67 L.Ed. 314 (1922). The heart of the concept of dual sovereignty lies in the source of the power and authority in whose name the prosecution is undertaken. See Heath v. Alabama, 474 U.S. 82, 89-90 , 106 S.Ct. 433, 437-38 , 88 L.Ed.2d 387 (1986). Thus, the doctrine applies to federal and state prosecutions, successive individual state prosecutions, and federal and tribal prosecutions. It clearly has no applicability for successive prosecutions within a single sovereign. See Waller v. Florida, 397 U.S. 387 , 90 S.Ct. 1184 , 25 L.Ed.2d 435 (1970).

. See, e.g., Culberson v. Wainwright, 453 F.2d 1219, 1220 (5th Cir. 1972); Salaz v. Tansy, 730 F.Supp. 369, 371 (D.N.M.1989) (and cases cited therein); Robinson v. Neil, 366 F.Supp. 924 (E.D.Tenn.1973); Commonwealth v. Norman, 27 Mass.App. 82 , 534 N.E.2d 816, 820 , affirmed, 406 Mass. 1001 , 545 N.E.2d 1155 (1989); May v. State, 726 S.W.2d 573 , 577 n. 7 (Tex.Cr.App.1987).

. As the majority notes, New Mexico apparently clings to the "jurisdictional exception” to double jeopardy protection, seemingly alone in its resolve to do so. See State v. Fugate, 101 N.M. 58 , 678 P.2d 686 (1984) , aff’d sub nom., 470 U.S. 904 , 105 S.Ct. 1858 , 84 L.Ed.2d 777 (1985) (affirmed by an equally divided Supreme Court). I do not read this affirmance by an equally divided court as a definitive or precedential adoption of the "jurisdictional exception”. In any event, the *592 former Mr. Justice Brennan noted in his majority opinion in Grady v. Corbin, supra, — U.S. at-n. 2, 110 S.Ct. at 2087 n. 2, 109 L.Ed.2d at 557 n. 2, that the double jeopardy issue facing the Court in Corbin had been raised before in Fugate but had been left unresolved. In Corbin the Supreme Court resolved the issue that remained open after Fugate. It found that the double jeopardy clause barred a subsequent prosecution for a greater offense in a court of general jurisdiction if, in order to establish an essential element of that offense, the prosecu.tion would prove conduct for which the defendant had already been tried in traffic court. Both Corbin and Fugate (as well as the case at bar) involved attempted successive prosecutions for charges arising from a fatal automobile accident in which the defendant previously had been tried in traffic court on the traffic offense. Corbin disallowed the type of prosecution at issue in Fugate, and, consequently, impliedly rejected New Mexico’s jurisdictional exception.

. In re Gault, 387 U.S. 1 , 87 S.Ct. 1428 , 18 L.Ed.2d 527 (1967); In re Winship, 397 U.S. 358 , 90 S.Ct. 1068 , 25 L.Ed.2d 368 (1970).

. My research has revealed one decision which has addressed the adjudication by juvenile court of summary charges which were filed in a delinquency proceeding in which a child was alleged also to have committed a delinquent act. In re Leonardo, 291 Pa.Super. 644 , 436 A.2d 685 (1981). In that case a lone member of the panel concluded that summary charges could not be adjudicated in this fashion by a juvenile court sitting for a delinquency proceeding. The two additional panel members concurred only in the result. I find Leonardo unpersuasive. First, its holding reflects the reasoning of only one judge. Second, although Leonardo was filed just a few weeks after Alan D., it makes no reference to it nor does it attempt to distinguish it. In my view, both Alan D. and Kirk I, are inconsistent with the rationale underlying the one panel member’s opinion in Leonardo. Leonardo has never been relied upon for the conclusion that juvenile court is without power to adjudicate summary charges when they are charged along with a delinquency proceeding alleging delinquent acts. Until today, this court has never so held.