Commonwealth v. Campana

304 A.2d 432, 452 Pa. 233

• Court: Supreme Court of Pennsylvania
• Decided: May 4, 1973
• Docket: Appeals, 205, 206 and 207; 21; 127
• Status: Published

Opinions

Opinion by

Mb. Justice Roberts,

These three appeals were argued together during the September 1972, Term, and will be disposed of in this opinion.

On September 7, 1968, a justice of the peace found appellant Peter T. Campana not guilty of disorderly conduct, a charge arising out of an August 17, 1968, incident. Additional charges arising from the same incident of resisting arrest and assault on a police officer were dismissed for lack of sufficient evidence. Subsequently the Commonwealth again instituted the charges of resisting arrest and assault on a police officer before another justice of the peace who bound appellant over to the grand jury. On February 5, 1969, appellant was tried by jury and convicted of both crimes. Post-trial motions were denied and appellant was placed on probation for a period of one year. The Superior Court affirmed in a per curiam order, with Judge Hoeeman noting a dissent. Commonwealth v. Campana, 217 Pa. Superior Ct. 818, 270 A. 2d 231 (1970). We granted allocatur and heard argument during the January 1972, Term. Subsequently we ordered reargument during the September 1972, Term.

Appellants John Doe, et al., were convicted by a justice of the peace on June 10, 1968, of disorderly conduct and disturbing the peace for their conduct in a Berks County bar on May 19, 1968. Each appellant was ordered to either pay a fine of $300.00 or undergo imprisonment for thirty days. The justice of the peace also bound appellants over to the grand jury on charges of aggravated assault and battery, riot, riotous destruction of property and malicious mischief, all charges originating from the May 19,1968, disturbance. On June 10, 1969, appellants¹ were tried by jury and convicted of riot, riotous destruction of property and malicious mischief. In addition appellants John Hall and Charles Ginder were found guilty of assault and battery. Motions for a new trial and in arrest of judgment were argued. The motion in arrest of judgment was granted only as to the malicious mischief charge. Each appellant was sentenced to serve a term of imprisonment of not less than one and one-half nor more than five years. The Superior Court affirmed per curiam with Judge Hoffman filing a dissenting opinion in which Judge Spaulding joined. Commonwealth v. John Doe, 217 Pa. Superior Ct. 148, 269 A. 2d 138 (1970). We granted allocatur and, after first hearing argument dining the January 1972, Term, ordered re-argument during the September 1972, Term.

On February 28, 1969, appellant Bobert Earl King was ordered to pay a fine of $500.00 by a justice of the peace for disorderly conduct that occurred the same day. The justice of the peace also bound appellant over to the grand jury on charges of assault and battery on a police officer in execution of a legal process and resisting arrest, both charges stemming from the February 28, 1969, incident. On September 11, 1969, appellant in a nonjury trial was convicted of both charges, and a sentence of not less than six months nor more than one year was imposed. No post-trial motions were filed but on March 8, 1971, appellant was allowed to file post-trial motions as if timely filed. After their denial the Superior Court affirmed with a per curiam order. Commonwealth v. King, 220 Pa. Superior Ct. 771, 286 A. 2d 416 (1972). We granted allocatur and ordered the appeal heard at the time of reargument of the above cases.

Presented for consideration in these consolidated appeals is whether appellants, by virtue of their second prosecutions, were subjected to “Double Jeopardy” in contravention of the Fifth and Fourteenth Amendments of the United States Constitution.² We hold that all charges resulting from the criminal “episode”³ of each appellant should have been consolidated at one trial, and consequently the second prosecutions violated the Double Jeopardy Clause of the Fifth Amendment. Accordingly we reverse the judgments of sentences imposed as a result of the second prosecutions.⁴

The Double Jeopardy Clause reads in deceptively simple terms: “[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb; . . .” Although the language of the clause remains cryptic, leading authorities generally turn to Justice Black’s opinion in Green v. United States, 355 U.S. 184, 187, 78 S. Ct. 221, 223 (1957), as an impassioned yet reasoned statement of the policies underlying the Double Jeopardy Clause: “[T]he State with 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. . . .” (Emphasis supplied.)

While courts and commentators remain undecided whether the clause governs the question of how many separate criminal offenses a defendant can be punished for at a single trial,⁵ authorities are unanimous that the principal purpose of the Double Jeopardy Clause is to prevent “repeated attempts to convict an individual of an alleged offense” through a series of prosecuticois.⁶ As Mr. Chief Justice Burger has noted: “ ‘The prohibition is not against being twice punished, but against being twice put in jeopardy . . . .’ The ‘twice put in jeopardy’ language of the Constitution thus relates to a potential, i.e., the risk that an accused for a second time will be convicted of the ‘same offense’ for which he was initially tried.” Price v. Georgia, 398 U.S. 323, 326, 90 S. Ct. 1757, 1759 (1970).

At its inception in early common law the defense of double jeopardy was remarkably equipped to prevent successive prosecutions.⁷ Criminal statutes were relatively few in number and broad in coverage. An acquittal at one trial could not generally be followed by another prosecution, because the second trial would by necessity be based on precisely the same charge as that of the first. A conviction resulted in a severe sentence, generally death, leaving little incentive for the prosecution to seek another trial.

As countless legal scholars have noted, however, the modern age of criminal procedure has witnessed a proliferation of penal statutes.⁸ A consequence of this development is the judiciary’s responsibility “to recognize that new rules must be devised to cope with the fact that a single factual situation, may today give rise to a number of substantive offenses.”⁹ Prosecutors, “by consulting a Thesaurus,”¹⁰ are presently able to dissect a single criminal “act”, “transaction”, “occurrence”, “episode” or “circumstance”, and produce a variety of criminal charges. Unless the judiciary properly meets its responsibility, a prosecutor, if he is for any reason dissatisfied with Hie result of the first trial, could circumvent the generally accepted prohibition against state appeals¹¹ with a new set of charges for a second prosecution. Such “trial run” prosecutions are, in Mr. Justice Stewart's words, “precisely what the constitutional guarantee forbids.”¹²

The Pennsylvania Double Jeopardy Clause, differing only stylistically from that contained in the Fifth Amendment,¹³ has been thought to be limited only to what were heretofore “capital” offenses.¹⁴ Nevertheless, defendants in this Commonwealth have been afforded a measure of protection against successive prosecutions by common law pleas of autrefois acquit and autrefois convict. These pleas prevent a prosecutor, after a conviction or acquittal of a “constituent” or lesser included offense in the first trial, for initiating a second prosecution for a greater offense.¹⁵

Similarly we have construed our Double Jeopardy Clause to protect a defendant upon retrial in a murder prosecution from conviction in the second trial of a greater offense than that of the first,¹⁶ or greater punisment.¹⁷ In Dinkey v. Commonwealth, 17 Pa. 126 (1851), this Court applied collateral estoppel to prevent a second prosecution where an issue necessary to sustain the charge was resolved in defendant’s favor at the first trial.¹⁸ In Commonwealth v. Lloyd, 141 Pa. 28, 30, 21 Atl. 411 (1891), we unanimously prohibited a second prosecution because the state could have joined both counts at the first trial: “[W]e do not think the commonwealth can prosecute for the one offence in one county, and for the other in a different county. In other words, there may be two counts, but not two prosecutions. The commonwealth has elected in this instance to proceed in Luzerne county, and we think is bound by such election. . . (Emphasis supplied.)

Many jurisdictions, including perhaps this one at times,¹⁹ have applied a “same evidence” test to determine whether a second prosecution is for the “same offense.” That test has been almost unanimously regarded as totally ineffective to implement the important double jeopardy guarantee of preventing successive prosecutions.²⁰ As one commentator in the Yale Law Journal aptly noted: “Attempting to choose which version of the same evidence test would best implement the double jeopardy prohibition is like deciding which of five lumber jacks would be the most handy with a violin.”²¹

The United States Supreme Court has recently responded to the problem posed by successive prosecutions in two landmark cases. In Waller v. Florida, 397 U.S. 387, 90 S. Ct. 1184 (1970), the Court held impermissible as a violation of the Double Jeopardy Clause a second prosecution that was concededly for the “same acts” that the defendant had been punished for in a court of limited jurisdiction. More significantly,²² Mr.

Justice Stewart, speaking for the .Court in Ashe v. Swenson, 397 U.S. 436, 90 S. Ct. 1189 (1970), gave specific recognition to the “possibility] [of] prosecutors . . . spin[ning] out a startingly [sic] numerous series of offenses from a single alleged criminal transaction.”²³ As a partial response to that “startling” possibility, the Court held a second prosecution impermissible where an application of “collateral estoppel” revealed that an “ultimate fact” essential to the offense in the second trial had been decided in defendant’s favor at the first.²⁴

The protection afforded a defendant against successive or repeated prosecutions by the doctrine of collateral estoppel, however, is diminished considerably by its inherent limitations. That imprecise doctrine has proven quite difficult and burdensome for appellate courts to properly and uniformly apply.²⁵ Before the doctrine of collateral estoppel can apply the first trial must end in acquittal,²⁶ and a “rational” reading of the record must disclose that the jury based its verdict of acquittal on but one issue.²⁷ As Mr. Justice Schaefer of the Illinois Supreme Court has succinctly observed: “Collateral estoppel is therefore of limited value because it is not often possible to determine with precision how the judge or jury has decided any particular issue.”²⁸

It has been noted that the doctrine of collateral estoppel places defense connsel on the horns of a dilemma.²⁹ If defendant is to gain any chance of protection under the doctrine he is better off by limiting his defense at the first trial thus placing fewer facts at issue before the jury. Such a consideration might impair counsel’s ability to effectively represent a defendant.

By far the most efficient and enthusiastically received³⁰ proposal for preventing successive prosecutions is that advanced by the American Law Institute Model Penal Code (§1.07(2)) : “[A] defendant shall not be subject to separate trials for multiple offenses based on the same conduct or arising from the same criminal episode, if such offenses are Imown to the appropriate prosecuting officer at the time of the commencement of the first trial. . . ,”³¹ The commentary to §1.08 of the Model Penal Code, which bars a second prosecution “based upon the same facts” as that of the first, states that the purpose of the section is to protect defendants from: “successive prosecutions based upon essentially the same conduct, whether the purpose in so doing is to hedge against the risk of an unsympathetic jury at the first trial, to place a ‘hold’ upon a person after he has been sentenced to imprisonment, or simply to harass by multiplicity of trials.”³²

The ABA Project on Minimum Standards for Criminal Justice, Standards Relating to Joinder and Severance §1.3 (Approved Draft, 1968), with specific reference to the Model Penal Code, accords a defendant the right to request joinder of all charges if they are “based on the same conduct or arise from the same criminal episode.” “Episode” is defined as “ ‘an occurrence or connected series of occurrences and developments which may be viewed as distinctive and apart although part of a larger or more comprehensive series.’ ” ABA Standards Relating to Joinder and Severance §1.3(a) (commentary). As the commentary to the ABA Standards Relating to Joinder and Severance §1.3(a) states: “It is the view of the Advisory Committee that, except where the ends of justice would otherwise be defeated, the defendant should not be subjected to multiple trials of related offenses. ...” (Emphasis supplied.)

In recent months the Oregon Supreme Court, after careful analysis of the inadequacy of existing proteetions against successive prosecutions, held that “a second prosecution is for the ‘same offense’ and is prohibited if (1) the charges arise out of the same act or transaction. . . .” State v. Brown, 497 P. 2d 1191, 1198 (Ore. S. Ct. 1972). That court observed that the House of Lords in England, the birthplace of the concept of double jeopardy, had recently promulgated a rule of court “that the prosecution must as a general rule join in the same indictment charges that ‘are founded on the same facts, or form or are part of a series of offenses of the same or similar character....’ ”³³

The Oregon Supreme Court in State v. Brown, supra, further noted that New Jersey and Hawaii among several states have either adopted a “same transaction” test or have long applied one.³⁴ In California, Illinois, New York and Minnesota compulsory joinder of all offenses arising from a criminal transaction is accomplished by legislative enactment.³⁵ Compare Pa. R. Crim. P. 219(b) which provides: “Two or more offenses . . . may be charged in the same indictment if they are . . . based on the same act or transaction.”³⁶

While the Supreme Court iu Ashe v. Swenson, supra, had only to decide whether collateral estoppel was within the aegis of the Double Jeopardy Clause, three concurring Justices indicated that the clause requires “the prosecution ... to join at one trial all charges against a defendant that grow out of a single criminal act, occurrence, episode, or transaction”. 397 U.S. at 453-54, 90 S. Ct. at 1199 (footnote omitted). Mr. Justice Brennan, writing for himself and Mr. Justices Douglas and Marshall, further stated: “This ‘same transaction’ test of ‘same offence’ not only enforces the ancient prohibition against vexatious multiple prosecutions embodied in the Double Jeopardy Clause, but responds as well to the increasingly widespread recognition that the consolidation in one lawsuit of all issues arising out of a single transaction or occurrence best promotes justice, economy, and convenience”37

The “same transaction” test is not, in Mr. Justice Brennan's words, “self-defining,” but experience in civil law has proved that the concept is both workable and fulfills important societal objectives.³⁸ By requiring that all causes of action arising from a set of operative facts be consolidated at one proceeding, the concept avoids repetitious litigation and assures finality without unduly burdening the judicial process.

Proponents of the “same transaction” test in criminal law have noted that both interests sought to be preserved by the Double Jeopardy Clause <md important societal interests will equally and effectively be served.³⁹ By requiring compulsory joinder of all charges arising from a single “transaction,” a defendant need only once “run the gauntlet” and confront the “awesome resources of the state.” After the jury’s verdict he may have the security and peace of mind that the Double Jeopardy Clause was designed to protect. As the New Jersey Supreme Court noted almost a century and a half ago: “If in civil cases, the law abhors a multiplicity of suits, it is yet more watchful in criminal cases, that the crown shall not oppress the subject, or the government the citizen, by unnecessary prosecutions. . . . [This] is a case where the state has thought proper to prosecute the offence in its mildest form, and it is better that the residue of the offence go unpunished, than by sustaining a second indictment to sanction a practice which might be rendered an instrument of oppression to the citizen.” State v. Cooper, 13 N.J.L. 361, 375-76 (1833).

Equally as important, the “same transaction” test protects vital societal interests. Compulsory joinder of all offenses arising from a single “transaction” avoids piecemeal litigation and thus conserves precious judicial and professional manpower as well as the time of jurors, witnesses, and the use of public resources. All outstanding charges against an accused are swiftly brought at one proceeding, and, if proven guilty, the punishment of a defendant is commensurate with all crimes actually committed. The “same transaction” test prevents the “trial run” and inadequately prepared prosecutions that the Court in Aslie found offensive to the double jeopardy provision. 397 U.S. at 447, 90 S. Ct. at 1196.

As the Oregon Supreme Court so appropriately noted in People v. Brown, 497 P. 2d at 1195: “The [United States Supreme Court] has not made its position clear in multiple prosecution cases.” In Ashe, the Court established that as a constitutional minimum the Double Jeopardy Clause incorporated the doctrine of collateral estoppel, but did not reach the issue we confront today.

Although we are thus left without specific guidance from the Supreme Court on this particular issue, it nevertheless remains this Court’s responsibility to decide an issue which, as here, is not governed by the previously announced constitutional minimum standard.⁴⁰ We hold, in light of the persuasive authority discussed above, that the Double Jeopardy Clause requires a prosecutor to bring, in a single proceeding, all known charges against a defendant arising from a “single criminal episode.”⁴¹

It should be noted that in Pennsylvania, it is clear that both summary offenses and indictable offenses may be considered at a single common pleas proceeding: “In those cases where the evidence presented to the jury on the indictable charge applies equally and is dispositive of the summary offense, it is not necessary that a separate hearing on the summary offense be held.” Commonwealth v. Dawkins, 216 Pa. Superior Ct. 198, 201 n.3, 264 A. 2d 722, 723 n.3 (1970). See also Commonwealth v. Ray, 448 Pa. 307, 292 A. 2d 410 (1972) (summary offense and indictable offense consolidated at one proceeding); Commonwealth v. Rose, 214 Pa. Superior Ct. 50, 251 A. 2d 815 (1969), rev’d on other grounds, 437 Pa. 30, 261 A. 2d 586 (1970); Commonwealth ex rel. Levine v. Fair, 186 Pa. Superior Ct. 299, 144 A. 2d 395 (1958), rev’d on other grounds, 394 Pa. 262, 146 A. 2d 834 (1958); see March v. Commonwealth, 10 Sadler 479, 14 Atl. 375 (1888).

As this Court recognized in Commonwealth v. Ray, supra at 309 n.3, 292 A. 2d at 412 n.3: “Where an individual is charged with a summary and an indictable offense arising out of the same facts and is held for court on the latter charge, we are informed a magistrate in Philadelphia as a matter of practice returns all charges for disposition at trial.”

Although Dawhins, supra, and Ray, supra, are cases from the City of Philadelphia, it is clear beyond cavil that the jurisdiction of the Philadelphia Common Pleas Court is precisely the same as that of all other common pleas courts.⁴²

Turning our focus to the records in each appeal, it is clear that all charges brought in the two successive prosecutions against each appellant originated from but one criminal episode.

The evidence adduced at the first and second prosecutions involving appellant Campana established that on August 17, 1968, a disturbance was reported to the police. Upon their arrival two policemen noticed appellant “tussling” with his friends. When appellant was asked for his identification, he pushed the officer and rammed an automobile door into the officer’s stomach. During the ensuing struggle to arrest appellant the other officer was also struck. All parties concede that the events were part of a single transaction. Thus appellant, who was initially acquitted of disorderly conduct, should not have had to “run the gantlet” for a second time on charges arising from the same criminal episode.

Appellants John Doe, et ah, on May 19, 1968, entered a Berks County bar and initiated a “brawl.” The event lasted, according to eyewitnesses, “a couple of minutes,” “two or three minutes.” After the incident appellants immediately fled. The Commonwealth argues, notwithstanding this testimony, that there were actually two episodes. Belying on the testimony of one witness concerning minimal property damage outside the bar, the Commonwealth contends that there was one episode in the bar and one outside. We reject that metaphysical division, because the record discloses that any damage outside the bar was done during appellants’ quick flight from the brawl. Because the record establishes but a single criminal episode it is clear that all charges brought against appellants should have been consolidated in a single proceeding.

Appellant King on February 28, 1969, placed a phone call to the police to seek assistance. When two policemen arrived and appeared reluctant to arrest certain individuals appellant claimed were interfering with his automobile, appellant began to use abusive language directed at the police. After giving appellant several warnings, the police informed appellant that he was under arrest. During the attempt to effectuate the arrest, appellant struck one of the officers. The record disclosing only a single criminal episode, all charges brought against appellant should have been consolidated at a single proceeding.

The judgments of sentences imposed at No. 151. September Term, 1968, Lycoming County, No. 255 September Sessions, 1968, Berks County, and No. 520 April Sessions, 1969, Allegheny County, are reversed. The judgment of sentence at No. 325 October Sessions, 1968 Allegheny County is affirmed.⁴³

1 Appellants John Doe and Gerald Ereese were fugitives at the time of the second criminal prosecution and were not tried. Although their names appear in the caption on the briefs, we do not pass upon the merits of their contentions.

2 In Benton v. Maryland, 395 U.S. 784, 794, 89 S. Ct. 2056, 2062 (1969), the United States Supreme Court held that “the double jeopardy prohibition of the Fifth Amendment . . . app[li.es’] to the States through the Fourteenth Amendment.” Benton is retroactive and thus applicable to all these appeals. See Price v. Georgia, 398 U.S. 323, 330 n.9, 90 S. Ct. 1757, 1762 n.9 (1970) ; Commonwealth v. Richbourg, 442 Pa. 147, 153, 275 A. 2d 345, 348 (1971).

Appellants John Doe, et ah, had their two trials before the Supreme Court decided Benton. Therefore the fact that appellants did not raise the issue of double jeopardy until their appeal to the Superior Court does not bar them from relief. See Commonwealth v. Stevens, 429 Pa. 593, 599-600, 240 A. 2d 536, 540 (1968) ; see also Commonwealth v. Cheeks, 429 Pa. 89, 239 A. 2d 793 (1968).

Appellant King, although tried after the decision in Benton, did not raise the issue of double jeopardy either at trial or during post-trial motions. The record discloses, however, that appellant in his pro se Post Conviction Hearing Act petition raised the issue of double jeopardy. As a result of that petition, counsel was appointed and appellant was allowed to file post-trial motions as if timely filed. Under these circumstances, we cannot conclude that appellant has forfeited his right to litigate this issue. See Commonwealth v. Cheeks, supra, cf. Commonwealth v. McGrogan, 449 Pa. 584, 297 A. 2d 456 (1972). See also Anders v. California, 386 U.S. 738, 87 S. Ct. 1396 (1967) ; Commonwealth v. Baker, 429 Pa. 209, 239 A. 2d 201 (1968).

3 See text following note 32, infra.

4 In light of our disposition we do not reach appellant Campana’s contention that before he could be convicted of resisting arrest the Commonwealth must establish that the arrest was “lawful.”

Likewise we do not reach appellants John Doe, et al.’s contentions that (1) there was insufficient evidence to prove that appellant John E. Hall participated in the alleged riot or assault and battery; (2) the representation of all appellants by the same counsel created a conflict of interest; (3) the trial court did not comply with Pa. R. Crim. P. 1106 in the jury selection.

Appellant King has also appealed his judgment of sentence at No. 325, October Sessions, 1968, imposed for aggravated assault and battery, a charge arising from an entirely separate occurrence. We find sufficient evidence to support the conviction and affirm.

5 Our discussion today deals only with the issue of successive prosecutions. We do not intimate a view on whether, at one trial, appellants could have been convicted of both the summary offenses and the indictable offenses. As a commentator in the Stanford Law .Review has observed: “Because of the different policies underlying the two protections, the question of permitting double prosecution should be considered independently from the issue of punishment.” Note, The Protection Against Multiple Trials, 11 Stan. L.R. 735, 740 (1958-59). See Ashe v. Swenson, 397 U.S. 436, 460 n.14, 90 S. Ct. 1189, 1202 n.14 (1970) ; see generally, Kirehheimer, The Act, The Offense and Double Jeopardy, 58 Vale L.J. 513, 526 n.59 (1949) (eases discussed) ; Gore v. United States, 357 U.S. 386, 395, 78 S. Ct 1280, 1285 (1958) (Douglas, J., dissenting) ; Fisher, Double Jeopardy: Six Common Boners Summarized, 15 U.C.L.A. L.R. 81, 86 (1967) ; Horack, The Multiple Consequences of a Single Criminal Act, 21 Minn. L.R. 805, 806 (1936-37) ; Note, 11 Stan. L.R. at 736-38; Note, Twice in Jeopardy, 75 Yale L.J. 262, 269 (1965) ; Note, Consecutive Sentences in Single Prosecutions: Judicial Multiplication of Statutory Penalties, 67 Yale L.J. 916, 918-19 (1957-58) ; Note, Statutory Implementation of Double Jeopardy Clauses: New Life for a Moribund Constitutional Guarantee, 65 Yale L.J. 339, 339-40 (1956).

6 See note 5, supra; see also Addate v. United States, 359 U.S. 187, 198-200, 79 S. Ct. 666, 672-74 (1959) (Brennan, J., separate opinion) ; Commonwealth v. Kills, 447 Pa. 163, 171-72, 286 A. 2d 638, 641 (1971).

7 For history of the concept of double jeopardy, see Kirk, “Jeopardy” During the Period of the Year Books, 82 U. Pa. L.R. 602 (1934) ; Note, 65 Yale L.J. at 339-344.

8 Ashe v. Swenson, 397 U.S. 436, 445 n.10, 452, 90 S. Ct. 1189, 1195, 1198 (1970) ; Bossert, Double Jeopardy—Municipal Prosecutions as a Bar to Subsequent State Prosecutions for Offenses Arising From the Same Criminal Actions, 76 Dick. L.R. 282, 287 (1972) ; Oliilingirian, Double Jeopardy: Vandercomb to Cbieos—Two Centuries of Judicial Failure in Search of a Standard, 45 J. of Urban L. 405, 456 (1967) ; Lugar, Criminal Law, Double Jeopardy and Res Judicata, 39 Iowa L.R. 317 (1953-54) ; Mayers and Yarbrough, Bis Vexari: New Trials and Successive Prosecutions, 74 Harv. L.R. 1, 14 (1960).

9 Note, 65 Yale L. J. at 344.

10 Lugar, 39 Iowa L.R. at 317.

11 Kepner v. United States, 195 U.S. 100, 24 S. Ct. 797 (1904) ; accord Price v. Georgia, 398 U.S. 323, 327, 90 S. Ct. 1757, 1760 (1970) ; Commonwealth v. Ray, 448 Pa. 307, 311, 292 A. 2d 410, 413 (1972), and cases cited therein.

12 Ashe v. Swenson, 397 U.S. at 447, 90 S. Ct at 1196.

13 Art. I, §10 of the Pennsylvania Constitution reads in pertinent part: “No person shall, for the same offense, be twice put in jeopardy of life or limb; . .

14 This strict and unique interpretation was apparently the result of a literal reading of the phrase “life or limb.” See McCreary v. Commonwealth, 29 Pa. 323, 325-27 (1857) ; see also Commonwealth v. Baker, 413 Pa. 105, 109-112, 196 A. 2d 382, 384-86 (1964), and eases discussed therein.

Pennsylvania is apparently the only state where the double jeopardy clause has been previously limited to capital offenses. See Hall, Kamisar, LaFave, Israel, Modem Criminal Procedure (1969) at 1213; Notes, Double Jeopardy; The Reprosecution Problem, 77 Harv. D.R. 1272, 1287 (1964). However, after Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726 (1972), and Commonwealth v. Bradley, 449 Pa. 19, 295 A. 2d 842 (1972), Pennsylvania’s Double Jeopardy Clause is now subject to further interpretation. See also Commonwealth v. Caye, 447 Pa. 213, 290 A. 2d 244 (1972).

15 Commonwealth ex rel. Papy v. Maroney, 417 Pa. 368, 370-71, 207 A. 2d 814, 815-16 (1965) ; see also Act of March 31, 1860, P. L. 427, §§30, 51, 19 P.S. §§464, 831.

16 Commonwealth ex rel. Light v. Cavell, 422 Pa. 215, 219, 220 A. 2d 883, 884-85 (1966), and eases cited therein.

17 Commonwealth v. Littlejohn, 433 Pa. 336, 347-48, 250 A. 2d 811, 816-17 (1969).

18 But see Commonwealth v. Melissari, 298 Pa. 63, 148 Atl. 45 (1929).

19 Commonwealth v. Shoener, 216 Pa. 71, 77, 64 Atl. 890, 892 (1906), cert. denied, 207 U.S. 188, 28 S. Ct. 110 (1907) (Superior Court opinion), and eases cited therein.

20 Sigler, Double Jeopardy (1969) ; Chilingirian, 45 J. of Urban Tj. 456; Kirchbeimer, 58 Yale U..T. 513; Mayers and Yarbrough 74 Ilarv. U.R. 1; Mclnteer, Collateral Estoppel in Criminal Procedure: A Constitutional Guarantee, 39 U.M.K.C. U.R. 225 (1970-71) ; Notes, 77 Ilary. U.R. 1272; Recent Developments, Constitutional Daw— Double Jeopardy, 69 Mich. U.R. 762 (1971).

21 Notes, 75 Yale U.J. at 274.

22 Waller has been interpreted as only rejecting the two “sovereign” theory of municipal-state prosecutions. See State v. Conrad, 243 So. 2d 174 (Fla. App. 1971); cases discussed in Bossert, 76 Dick. U.R. at 284-85.

23 397 U.S. at 445 n.10, 90 S. Ct. at 1195 n.10; see also 397 U.S. at 452, 90 S. Ct. at 1198 (Brennan, J., concurring).

24 397 U.S. at 443-44, 90 S. Ct. at 1194.

25 See, e.g., State v. Harris, 78 Wash. 2d 894, 480 P. 2d 484 (1971) ; Hay v. Texas, 472 S.W. 2d 157 (Tex. Ct. of Crim. App. 1971) ; Decker v. State, 471 S.W. 2d 343 (Ark. S. Ct. 1971) ; Christopher v. State, 240 So. 2d 316 (Fla. Ct. of App. 1970). Many courts and commentators have concluded that Ashe will offer little protection from successive prosecutions. See, e.g., Holloway v. State, 14 Md. App. 703, 288 A. 2d 652 (1972) ; Downey, Criminal Procedure—Application of the Doctrine of Collateral Estoppel to State Criminal Prosecutions, 49 N.C. L.R. 351, 355 (1971) ; Lucker, Collateral Estoppel—An Attempted Transfusion into the Guarantee Against Double Jeopardy, 44 Temp. L.Q. 377 (1971) ; Schaefer, Unresolved Issues in the Law of Double Jeopardy: Waller and Ashe, 58 Calif. L.R. 391, 394 (1970) ; Comment, Criminal Law—Double Jeopardy-Collateral Estoppel, 48 Den. L.J. 130, 136 (1971) ; Notes, 69 Mich. L.R. at 777; Note, 65 Yale L.J. at 349; but see Morrow, Constitutional Law—Criminal Procedure—Ashe v. Swenson, 49 Texas L.R. 148, 155 (1970).

26 397 U.S. at 459 n.13, 90 S. Cfc at 1202 n.13 (Brennan, J., concurring). But see the suggestion in Note, 75 Yale L.J. at 288, that if tlie jury in a second prosecution acquitted a defendant by resolving an issue in bis favor, collateral estoppel should apply to the first trial and conviction.

27 397 U.S. at 444, 90 S. Ct. at 1194. The proposal of special verdicts in criminal trials to determine what issues the jury actually resolved has been almost universally condemned. See, e.g., Mayers and Yarbrough, 74 Harv. L.R. at 34.

28 Schaefer, 58 Calif. L.R. at 394.

29 Note, 69 Mich. L.R. at 777; Cunningham, Constitutional Law—Double Jeopardy--Ashe v. Swenson, 39 U. Cin. L.R. 590, 595 (1970).

30 See, e.g., Bigelow, Former Conviction and Former Acquittal, 11 Rutgers L.R. 487, 500 (1957) ; Chilingirian, 45 J. of Urban L. at 462, Crimmins, Criminal Law—Ashe v. Swenson, 44 N.D. L. 293, 296 (1970) ; Kirchheimer, 58 Yale L.J. at 534; Lugar, 39 Iowa L.R. at 347. Schaefer, 58 Calif. L.R. at 398; Comments, Collateral Estoppel In Criminal Cases, 28 U. CM. L.R. 142, 148 (1960-61) ; Comments, Criminal Law and Procedure—Former Jeopardy—Tests of ‘•Same Offense,” 32 Mich. L.R. 512 (1933) (earlier A.L.I. version); Note, 11 Stan. L.R. at 758; Note, Collateral Estoppel in Criminal Cases—A Supplement to the Double Jeopardy Protection, 21 Rutgers L.R. 274, 291 (1966-67) ; Note, 75 Yale L.J. at 296; Note, 65 Yale L.J. at 357.

31 Model Penal Code §1.07(2) (Proposed Draft, 1962) (Emphasis supplied).

32 Model Penal Code §1.08 (Ten. Draft No. 5, 1956).

33 Connelly v. Director of Public Prosecutions, A.C. 1254 (1964). For discussion of Connelly see Schaefer, 58 Calif. L.R. at 394-98; Comment, 48 Denver L.J. at 141.

34 See, e.g., State v. Ahuna, 52 Hawaii 321, 474 P. 2d 704 (1970) ; State v. Greely, 30 N.J. Super. 180, 103 A. 2d 639 (1954) ; Crumley v. Atlanta, 68 Ga. App. 69, 22 S.E. 2d 181 (1942) ; Worley v. State, 42 Okla. Crim. 240, 275 P. 399 (1929) ; Jones v. State, 19 Ala. App. 600, 99 So. 770 (1924) ; see also People v. White, 41 Mich. App. 370, 200 N.W. 2d 320 (1972) ; compare Eagle v. State, 249 So. 2d 460, 465 (Fla. Ct. App. 1971).

35 See Calif. Penal Code 654; 111. Rev. Stat. eh. 38, §3-3 (1963) ; N.Y. Crim. Proc. L. 40.20(2) ; 40 Minn. Stats. Anno. 609.035. For discussion of the California statute, see Kahn, Double Jeopardy. Multiple Prosecution, and Multiple Punishment: A Comparative Analysis, 50 Calif. L.R. 853 (1962) ; Johnson, Multiple Punishment and Consecutive Sentences: Reflections on the Neal Doctrine, 58 Calif. L.R. 357 (1970).

36 in numerous situations our Pennsylvania Rules of Court require joinder of related claims. See, e.g., Pa. R. Crim. P. 103(b) (“When more than one offense is alleged to have been committed by one person arising from the same incident, the issuing authority shall accept only one complaint, and shall docket the matter as a single case.”) ; Pa. R. Crim. P. 304(e) (“All grounds for the [pretrial] relief demanded shall be stated in the application and failure to state a ground shall constitute a waiver thereof.”).

Rule 1020(d) (1) of the Civil Procedure Rules similarly requires the joinder of all causes of action: “If a transaction or occurrence . . . gives rise to causes of action in assumpsit and trespass against the same person . . . they shall be joined in an action against any such person in separate counts. . .

Rule 1020(d) (4) further provides: “Failure to join a cause of action as required by subdivision (d) (1) of this Rule shall be deemed a waiver of that cause of action as against all parties to the action.”

37 397 U.S. at 454, 90 S. Ct. at 1199 (footnote omitted) (emphasis supplied). The “same transaction” test is subject to common sense exceptions. The Model Penal Code notes that all offenses must be “known to the appropriate prosecuting officer at the time of the commencement of the first trial.” §1.07(2). See Commonwealth ex rel. Papy v. Maroney, 417 Pa. 368, 207 A. 2d 814 (1965). Both the ABA Standards Relating to Joinder and Severance §2.2 and the A.L.I. Model Penal Code §1.07(3) recommend severance if either party can demonstrate prejudice. See also 397 U.S. at 455 n.ll, 90 S. Ct. at 1200 n.ll (Brennan, J., concurring).

Similarly, the “same transaction” test is not applicable where no single court has jurisdiction over all alleged crimes arising from a single transaction. 397 U.S. at 453 n.7, 90 S. Ct. at 1199 n.7 (Brennan, ,T., concurring).

38 “Although analogies to the use of the phrase [same transaction] in civil litigation are not perfect since policy considerations differ, some further guidance for its application . . . can be obtained from the course of its application in civil litigation, where the courts have not encountered great difficulty in reaching sound results in particular cases. See 3 J. Moore, Federal Practice ¶13.13 (1968) ; 1A W. Barron and A. Holtzoff, Federal Practice and Procedure §394 (Wright ed. I960).” 397 U.S. at 454 n.8, 90 S. Ot. at 3199 n.8 (Brennan, X, concurring).

39 See n.30, supra; see also Cunningham, 39 U. Cin. L.R. at 595; Lucker, 44 Temple L.Q. at 382; Mclnteer, 39 U.M.K.O. L.R. at 233-34; Comments, Multiple Offenses and Multiple Penalties Under the Federal Narcotics Raws, 28 U. Chi. L.R. 308, 316 (1960-61).

40 See, e.g., Commonwealth v. Mills, 447 Pa. 163, 286 A. 2d 638 (1971) ; Commonwealth v. Ware, 446 Pa. 52, 284 A. 2d 700 (1971) ; Commonwealth v. Whiting, 439 Pa. 205, 266 A. 2d 738 (1970) ; Commonwealth v. Singleton, 439 Pa. 185, 266 A. 2d 753 (1970), cf. Commonwealth v. Willman, 434 Pa. 489, 491, 255 A. 2d 534, 535 (1969), where this Court acknowledged its power to extend Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966) beyond that required by the United States Supreme Court, but “chose not to do so.”

41 See text following note 32, supra, ef. Act of December 6, 3972, P. L. , No. 334, §1, 18 C.P.S.A. |110 (1973) (effective .Tune 6, 1973).

42 The Philadelphia Common Pleas Court is given “unlimited original jurisdiction.” Pennsylvania Constitution, art. V, Schedule to Judiciary Article, Section 16(o). Similarly, art. V, §5(b) of the Pennsylvania Constitution gives all common pleas courts “unlimited original jurisdiction.” Municipal courts in Philadelphia are given jurisdiction over “All summary offenses.” Art. V, Schedule to Judiciary Article, Section 16(r) (ii). Likewise justices of the peace outside of Philadelphia are given jurisdiction over offenses “punishable upon summary conviction.” Act of April 26, 1929, P. L. 824, §1, 42 P.S. §391.

Finally, it is a familiar canon of construction that “[p] revisions decreasing the jurisdiction of a court of record . . . [are to be] strictly construed.” Act of May 28, 1937, P. L. 1019, art. IV, §58, 46 P.S. §558(7). There being no discernible difference between the jurisdiction of the Philadelphia Common Pleas Court and all other common pleas courts, there can be no serious doubt that all common pleas courts have concurrent jurisdiction over summary offenses. See also Commonwealth v. Dawkins, 216 Pa. Superior Ct. 198, 264 A. 2d 722 (1970) and the cases cited therein.

43 As noted in footnote 4, supra, we affirm appellant King’s conviction for aggravated assault and battery at No. 325, since this charge arose from an “entirely separate occurrence” and sufficient evidence was offered to support the conviction.