Commonwealth v. Campana

Concurring Opinion by

Mr. Justice Eagen :

While I agree with the result reached by the majority, I cannot agree with the rule of law espoused to reach that result.

We are herein confronted with one question for consideration, that is: What does the constitutional phrase “same offense” mean in the context of the Double Jeopardy Clause of the Fifth Amendment, as applied to the states through the Fourteenth Amendment? This question, although deceptively simple on first impression, is truly a most difficult and troublesome question.

For an understanding of my disagreement with the majority opinion, a brief recitation of the underlying purpose of the Double Jeopardy Clause is essential. The foundation of the Double Jeopardy Clause rests on the theory that a single fair trial on a criminal offense forecloses successive prosecutions for that same offense, thus, double jeopardy is a rule of finality. Encompassed within the double jeopardy concept of finality is the fact that once an accused is given a fair trial for an offense the matter is considered closed, thereby allowing the individual to plan his life accordingly, as well as protecting him from continued distress in the form of reprosecution. Additionally, enveloped within the Double Jeopardy Clause are such basic principles as the presumption of innocence, the right to speedy justice and the courts should not be used as a tool of harassment and oppression.

*257 I agree with, the majority opinion that past efforts to give full meaning to the before-related purposes of the Double Jeopardy Clause have fallen short of that goal, but I cannot agree with its conclusion that the “same transaction” or “same episode,” test, as fashioned by the majority, is the proper answer to the problem of determining if successive prosecutions constitute double jeopardy where a summary offense and a higher offense are involved. My basic disagreement with this test is its premise that all crimes which occur in the same transaction or same episode are necessarily the “same offense” in the constitutional sense. I am not persuaded this is so, particularly where a summary offense and a higher grade of crime (misdemeanor or felony) are involved. Moreover, to conclude all such crimes are the “same offense,” I submit, is in effect a rewriting of the Constitution by substituting the word “episode” for the word “offense” in the Fifth Amendment. Also, such a position completely ignores the nature and purpose of the second criminal charge and focuses exclusively on the acts committed.

The weakness of the majority opinion stems from the fact that it adopts a rule of law which was fashioned to operate where two or more felonies or misdemeanors, or a combination of both are involved, to a situation where a summary offense and a felony or a misdemeanor are involved. This type of approach may be viable in that situation where only felonies and misdemeanors are involved, but it is not viable here, because it focuses strictly on the acts committed, as opposed to the “offense” as the Constitution mandates. It cannot be questioned the Commonwealth has a right and duty to protect the interests of its citizenry through statutory enactments of different kinds and grades of crimes. For example, a law making disorderly conduct a crime may be enacted to protect the citizens of the *258 Commonwealth from this type of disturbance and annoyance. At the same time the Legislature may enact a law applicable to acts which constitute homicide. Are these two crimes the “same offense”? Clearly, they are not. But under the rule of law adopted by the majority opinion if there were a prosecution for disorderly conduct, and a subsequent attempt to prosecute for homicide, the homicide prosecution would be barred if the homicide grew out of the same episode as the disorderly conduct. The absurdity of this is self-evident. Other examples could be cited leading to the same ludicrous result.

The approach which the majority opinion adopts leaves the Commonwealth and its citizens unprotected in many cases, and will lead in some instances to the defeat of the ends of justice by unreasonably extending the meaning of the constitutional phrase “same offense.” It likewise destroys the purpose of many statutory enactments. I would propose to adopt a rule which would not only fully protect the interests of the accused, but also the interests of the people of the Commonwealth. As opposed to the position of the majority opinion, I would focus on the various offenses charged as opposed to focusing exclusively on the acts involved, for it is my belief that all offenses within one episode are not the “same offense” for double jeopardy purposes.

Initially, I would propose a joinder requirement such as the majority opinion does. Whether you choose to name this requirement the same act, same conduct, same transaction, or same episode is not important. I would require the Commonwealth to join in one trial all crimes which follow from a continuous and uninterrupted conduct, so joined in time, place and circumstances, that such conduct is directed to the accomplishment of a single criminal objective. However, *259 to this general rule I would add a very significant exception, that is, a second prosecution may be instituted if the purpose of the crime then charged is to prevent a substantially different harm or evil. Under such limited circumstances, I would hold the second prosecution is not for the “same offense” and, hence, does not constitute double jeopardy.

I believe such a rule with this exception is fair and completely consistent with the goals of the double jeopardy clause. This can be seen by analyzing the aforementioned goals. Probably, the most important of these is to foreclose the use of the courts as a tool of harassment and oppression. The rule herein suggested would accomplish this objective. It would also promote finality. But, and very importantly, it would protect the interests of the people of the Commonwealth in those situations where the rule advanced by the majority opinion leaves them unprotected and results in many criminals escaping justice without good reason.

Although the rule suggested may be criticized, because courts would be forced to determine if different crimes are “intended to prevent a substantially different harm or evil,” I do not think this determination would be any more difficult than we make in other areas of the law or, for that matter, any more difficult than determining which crimes fall within one “episode” which the majority opinion admits is not “self-defining.” The formula could not be mechanical, but rather it would consider the basic interests of society sought to be protected or vindicated by the different crimes, as well as broad objectives of our criminal law, such as prevention of future crimes, rehabilitation of the criminal, and punishment for criminal activity.

In the cases now before us, it is my view that the crimes involved in the initial prosecutions, as well as those charged in the second prosecutions, were all part *260 of a continuous and uninterrupted conduct and directed to the accomplishment of a single criminal objective. Since I am not convinced the crimes charged in the second prosecutions were intended to prevent a substantially different harm or evil, I would hold as the majority opinion does, that these crimes were the “same offense” in the constitutional sense, and, hence, the second prosecutions constituted double jeopardy.

Mr. Chief Justice Jones joins in this concurring opinion.