Commonwealth v. Karetny

837 A.2d 474, 2003 Pa. Super. 399, 2003 Pa. Super. LEXIS 3713

• Court: Superior Court of Pennsylvania
• Decided: October 27, 2003
• Status: Published

Opinions

OPINION BY

KLEIN, J.:

¶ 1 Defendants were charged with 49 different counts because they allegedly continued to operate a nightclub on Pier 34 on the Delaware River in Philadelphia, knowing that the pier was in imminent danger of collapsing. It did collapse, killing three people and injuring many others. The trial court granted a motion to quash the charge of risking a catastrophe while allowing the charge oí failing to prevent a catastrophe and many others to continue. The Commonwealth appeals.

¶ 2 The defendants move to quash the appeal, and also claim that the trial judge was correct in quashing the charge of risking a catastrophe. We deny the motion to quash the appeal but affirm the order dismissing the charge of risking a catastrophe.

1. The Motion to Quash the Appeal.

¶ 3 Defendants urge us to quash the Commonwealth’s appeal claiming that this Court lacks appellate jurisdiction. The defendants make two interrelated arguments: (1) that our jurisdiction is only over final orders, and this was not a final order; and (2) that Pa.R.A.P. 311(d) illegally expands our jurisdiction to include nonfinal orders.

¶ 4 The order in question is clearly not final. See Pa.R.A.P. 341(b). We nonetheless believe that we have jurisdiction under Rule 311(d), which permits the Commonwealth to take certain interlocutory appeals:

In a criminal case, under circumstances provided by law, the Commonwealth may take an appeal as of right from an order that does not end the entire case where the Commonwealth certifies in the notice of appeal that the order will terminate or substantially handicap the prosecution.

Pa.R.A.P. 311(d). In claiming that this rule illegally expands our jurisdiction, the defendants point out that the statute generally establishing our jurisdiction permits appeals from final orders only:

The Superior Court shall have exclusive appellate jurisdiction of all appeals from final orders of the courts of common pleas, regardless of the nature of the controversy or the amount involved, except such classes of appeals as are by any provision of this chapter within the exclusive jurisdiction of the Supreme Court or the Commonwealth Court.

42 Pa.C.S.A. § 742.

¶ 5 The note to Rule 311 states explicitly that the rule was enacted to implement 42 Pa.C.S.A. § 5105, which permits appeals from interlocutory orders as specified by general rule. See Pa.R.A.P. 311, Note. Section 5105(c) provides a right of appeal from interlocutory orders as provided by law:

There shall be a right of appeal from such interlocutory orders of tribunals and other government units as may be specified by law. The governing authority shall be responsible for a continuous review of the operation of section 702(b) (relating to interlocutory appeals by permission) and shall from time to time establish by general rule rights to appeal from such classes of interlocutory orders, if any, from which appeals are regularly permitted pursuant to section 702(b).

42 Pa.C.S.A. § 5105(c).

¶ 6 The General Assembly evidently intended to expand our jurisdiction to include certain interlocutory appeals when it enacted section 5105(c). The only way to read sections 5105(c) and 742 compatibly is to read section 5105 as including an implicit grant of jurisdiction. We must assume that the General Assembly intended both statutes to have effect, since to conclude otherwise would be absurd. See 1 Pa. C.S.A. § 1932 (statutes relating to same subject are to be read as one statute); see also 1 Pa.C.S.A. § 1922(1), (2) (in interpreting statutes, courts must presume General Assembly did not intend absurd result, and that it intended entire statute to be effective).

¶ 7 In this case, the Commonwealth has properly invoked Rule 311(d).¹ The order in question dismissed the only felony charged, risking a catastrophe. Because of speedy trial rules, the Commonwealth would otherwise be forced to proceed on the misdemeanor charges. It is only after those charges are disposed that the Commonwealth would have a final judgment involving all charges against the defendants and be able to have a final order from which to appeal.

¶ 8 If the Commonwealth were forced to wait to seek review, it could be unable to try the defendants on the felony charge under the Campana Double Jeopardy principle. See Commonwealth v. Campana, 455 Pa. 622, 314 A.2d 854 (1974) (reestablishing principle that under Pennsylvania law, prosecution of defendant on charge stemming from single criminal episode precluded subsequent prosecution on another charge arising from same episode). For these reasons, the Commonwealth appropriately certified that the order quashing the felony charge would terminate or substantially handicap the prosecution.

¶ 9 We proceed to the merits of the appeal.

2. The Motion to Quash the Charge of Risking a Catastrophe.

¶ 10 The Honorable Benjamin Lerner, an experienced trial judge with a long background in criminal justice, thoroughly analyzed the purposes of the statutes involving risking a catastrophe and failing to prevent a catastrophe.² As he noted, 18 Pa.C.S.A. § 3302(b), risking a catastrophe, provides that “a person is guilty of a felony of the third degree if he recklessly creates a risk of catastrophe in the employment of fire, explosive or other dangerous means listed in subsection (a) of this section.” 18 Pa.C.S.A. § 3302(b) (emphasis added). Of the various means referred to in subsection (a), the one pertinent to this case is “collapse of building.”³

¶ 11 For example, if the defendants were recklessly attempting to tear down the pier, and someone was killed or ran the risk of being killed because they were working under the pier at the time, that would be employing “collapse of building.” Here, the defendants did not “employ” the collapse of the building — in fact, the building did not collapse until after they allegedly allowed people to go on it for a party.

¶ 12 If the allegations of the Commonwealth witnesses are believed, this is a classic case of failing to prevent a catastrophe, under 18 Pa.C.S.A. § 3303, which provides:

A person who knowingly or recklessly fails to take reasonable measures to prevent or mitigate a catastrophe, when he can do so without substantial risk to himself, commits a misdemeanor of the second degree if:

(1) he knows that he is under an official, contractual or other legal duty to take such measures; or

(2) he did or assented to the act causing or threatening the catastrophe.

¶ 13 The legislature distinguished between using some means to create the risk and merely ignoring a risk that is known. Penal statutes must be strictly construed, with any ambiguities being resolved in favor of the accused. Commonwealth v. Lassiter, 554 Pa. 586, 722 A.2d 657, 660 (1998). The legislature created a misdemeanor if an actor does not create the risk but merely takes no steps to prevent it. Therefore, since the defendants are not alleged to have done anything that caused the pier to collapse, but merely ignored the natural forces and age of the pier and failed to prevent it from collapsing, they cannot be held to have “employed] ... collapse of budding,” which resulted in the tragic event.

¶ 14 The dissent relies on language in section 3302 that talks of risking a catastrophe by employing “any other means of causing potentially widespread injury or damage” to conclude that the charge was proper. The real thrust of the dissent’s position is that defendants, as owners of a business inviting patrons to use their facilities, failed to act when they had a duty to do so.⁴ (Stevens, J. concurring and dissenting, post at 480.) This is simply another way of saying they failed to prevent a catastrophe. Moreover, the “any other means” quotation is taken out of context and out of the general scheme of the statute. The more complete quote is “by any other means of causing potentially widespread injury or damage, including selling, dealing in or otherwise providing licenses or permits to transport hazardous materials in violation of 75 Pa.C.S. Ch. 83 (relating to hazardous materials transportation)....”

¶ 15 Certainly the examples the dissent cites — driving a school bus full of children through a red light at a high rate of speed, dropping a lit match on a flammable surface, or dumping industrial and chemical wastes — are affirmative, reckless acts.⁵ Conversely, allowing patrons to go to a restaurant/night club even knowing it will likely collapse amounts to failing to take action to prevent a catastrophe, not causing or risking one.

¶ 16 This semantic word-play shows that in this case the two statutes (risking versus failing to prevent a catastrophe) are in irreconcilable conflict. If two criminal statutes conflict irreconcilably, “ ‘[i]t is the policy of the law not to permit prosecutions under the general provisions of a penal code when there are applicable special penal provisions available.’ ” Commonwealth v. Warner, 504 Pa. 600, 476 A.2d 341, 344 (1984) (quoting Commonwealth v. Brown, 346 Pa. 192, 29 A.2d 793, 796-97 (1943)). However, if the general statute has elements that distinguish it from the special statute, the two do not conflict at all. Commonwealth v. Bershad, 693 A.2d 1303, 1308 (Pa.Super.1997).

¶ 17 This is not a case where one or both of the crimes contains elements that the other does not. Although the two crimes on their face do not conflict, as applied to the facts alleged in this case they do. It is simply a matter of how one characterizes what the defendants did (or did not do). As demonstrated above, one can just as easily say that the defendants did not act when they should have, as state that they failed to prevent a catastrophe. Since we can recharacterize the defendants’ alleged acts to fit into the actus reus of either crime, we find the statutes in conflict.

¶ 18 Because the General Assembly specifically criminalized failing to prevent a catastrophe, we cannot presume that the legislature intended under these facts that the prosecution be able to proceed under either or both statutes. Cf. Warner, 476 (because Court could not say-before trial that statutes irreconcilably conflicted either on their face or as applied, prosecution could proceed under either or both statutes at least initially) and Bershad (crimes contained different elements). Judge Lerner did not abuse his discretion by dismissing the charge of risking a catastrophe.

¶ 19 Order affirmed.

¶ 20 STEVENS, J., files a Concurring and Dissenting Opinion.

1 . The Commonwealth claims that its certification alone is sufficient to support the appeal and that this Court cannot examine the propriety of the appeal. We agree with defendants that we do not have to "accept blindly the Commonwealth's certification of substantial handicap.” Commonwealth v. White, 818 A.2d 555, 558 (Pa.Super.2003). Our ability to go behind the certification and examine whether the appeal is proper is borne out by our recent en banc decisions in Commonwealth v. Shearer, 828 A.2d 383 (Pa.Super.2003) (en banc) and Commonwealth v. Jones, 826 A.2d 900 (Pa.Super.2003) (en banc). The case on which the Commonwealth relies, Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985), was decided before Rule 311(d) was promulgated.

2 . Our scope of review is limited to determining whether the Commonwealth presented a prima facie case, and we reverse the trial court only for abuse of discretion. Commonwealth v. Carbo, 822 A.2d 60, 63 (Pa.Super.2003).

3 . In its entirety, 18 Pa.C.S.A. § 3302 provides:

Causing or risking catastrophe.

(a) Causing catastrophe. — A person who causes a catastrophe by explosion, fire, flood, avalanche, collapse of building, release of poison gas, radioactive material or other harmful or destructive force or substance, or by any other means of causing potentially widespread injury or damage, including selling, dealing in or otherwise providing licenses or permits to transport hazardous materials in violation of 75 Pa. C.S. Ch. 83 (relating to hazardous materials transportation), commits a felony of the first degree if he does so intentionally or knowingly, or a felony of the second degree if he does so recklessly.

(b) Risking catastrophe. — A person is guilty of a felony of the third degree if he recklessly creates a risk of catastrophe in the employment of fire, explosives or other dangerous means listed in subsection (a) of this section.

4 . The dissent does not cite any authority for defendants’ alleged duty to act in this case, although one arguably might exist under Commonwealth v. Pestinikas, 421 Pa. Super. 371, 617 A.2d 1339 (1992) (era hanc), which found a duty to act in criminal law founded on a duty to perform assumed in contract. For purposes of argument, we will assume they had such a duty. In any event, as explained above, because both statutes might irreconcilably apply to this case, Pennsylvania law permits prosecution on failure to prevent a catastrophe only.

5 . See Commonwealth v. Scatena, 508 Pa. 512, 498 A.2d 1314, 1318 (1985).