Commonwealth v. Caufman

OPINION OF THE COURT

FLAHERTY, Justice.

This is an appeal by allowance from an order of the Superi- or Court which reversed an order of the Court of Common Pleas of Erie County denying a motion to dismiss, on double jeopardy grounds, a charge of homicide by vehicle. The pertinent facts are as follows.

*301On October 26, 1990, the appellee, Mary M. Caufman, struck a pedestrian with her automobile. As a result, on October 30,1990, a citation was issued to her for the summary offense of failure to drive at a safe speed. The pedestrian died as a result of her injuries on November 2, 1990. On November 14, 1990, appellee pled guilty to the summary offense and paid the fine. The same day, a complaint was filed charging appellee with homicide by vehicle.

At issue is the Superior Court’s reversal of the trial court’s ruling that appellee’s plea of guilt to the charge of driving at an unsafe speed did not bar prosecution of the homicide by vehicle charge. We reverse.

Initially it is noted that this case is governed by double jeopardy analysis rather than by the requirement in 18 Pa. C.S. § 110 that charges arising from the same criminal episode be joined for prosecution or the “compulsory joinder rule” set forth in Commonwealth v. Campana, 452 Pa. 233, 304 A.2d 432 (1973), vacated and remanded, 414 U.S. 808, 94 S.Ct. 73, 38 L.Ed.2d 44 (1973), on remand, 455 Pa. 622, 314 A.2d 854 (1974), cert. denied, 417 U.S. 969, 94 S.Ct. 3172, 41 L.Ed.2d 1139 (1974). The statutory joinder requirement and Campana are inapplicable where, as here, the offense first prosecuted was a summary one. Commonwealth v. Beatty, 500 Pa. 284, 455 A.2d 1194 (1983). Accord Commonwealth v. Taylor, 513 Pa. 547, 522 A.2d 37 (1987).

Presently, both the trial court and the Superior Court applied the double jeopardy rule announced by the Supreme Court of the United States in Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), which required that charges resting on proof of the same criminal conduct be joined for prosecution except where facts necessary to joinder were not discovered despite the exercise of “due diligence” by prosecuting authorities. 495 U.S. at 510, 516 n. 7, 110 S.Ct. at 2087, 2090 n. 7, 109 L.Ed.2d at 557, 561 n. 7.

The trial court held that failure to consolidate the homicide by vehicle charge and the charge of driving at an unsafe speed was excused because the prosecution demonstrated due dili*302gence in filing all applicable charges as soon as facts necessary to support the charges became known. Because the charge of homicide by vehicle was filed within just twelve days of the victim’s death and without knowledge of the entry of appellee’s plea to the summary charge, the court concluded that the prosecution acted with diligence.1 The Superior Court reversed, reasoning that the district attorney’s office was in possession of all necessary facts when appellee entered her plea on November 14, 1990, and that the due diligence exception was not applicable because there was sufficient time to have filed the homicide by vehicle charge before that date.2

We granted allowance of appeal to consider whether the due diligence exception of Grady was applied properly below. The Grady decision has, however, recently been expressly overruled by the Supreme Court of the United States in United States v. Dixon, 509 U.S. —, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993). The holding of Dixon makes it unnecessary to reach the issue of due diligence in this case. Dixon cast aside the Grady analysis of whether multiple criminal charges rest on proof of the same underlying conduct, and reinstated the double jeopardy test that was followed prior to Grady. The Supreme Court stated:

In both the multiple punishment and multiple prosecution contexts, this Court has concluded that where the two offenses for which the defendant is punished or tried cannot survive the “same-elements” test, the double jeopardy bar applies. See ... Blockburger v. United States, 284 U.S. 299, 304, 76 L.Ed. 306, 52 S.Ct. 180 [182] (1932).... The same-elements test, sometimes referred to as the “Block-*303burger” test, inquires whether each offense contains an element not contained in the other; if not, they are the “same offence” and double jeopardy bars additional punishment and successive prosecution....
We recently held in Grady that in addition to passing the Blockburger test, a subsequent prosecution must satisfy a “same-conduct” test to avoid the double jeopardy bar. The Grady test provides that, “if, to establish an essential element of an offense charged in that prosecution, the government will prove conduct that constitutes an offense for which the defendant has already been prosecuted,” a second prosecution may not be had. 495 U.S., at 510, 109 L.Ed.2d 548, 110 S.Ct. 2084 [at 2087].
We have concluded, however, that Grady must be overruled. Unlike Blockburger analysis, whose definition of what prevents two crimes from being the “same offence,” U.S. Const., Arndt. 5, has deep historical roots and has been accepted in numerous precedents of this Court, Grady lacks constitutional roots. The “same-conduct” rule it announced is wholly inconsistent with earlier Supreme Court precedent and with the clear common-law understanding of double jeopardy.

Dixon, 509 U.S. at — - —, 113 S.Ct. at 2856-2860, 125 L.Ed.2d at 568-573.

The test approved by Dixon, to wit, the “same-elements” test of Blockburger, has long been followed in this Commonwealth. Commonwealth v. Allen, 506 Pa. 500, 510-14, 486 A.2d 363, 368-70 (1984), cert. denied, 474 U.S. 842, 106 S.Ct. 128, 88 L.Ed.2d 105 (1985). It requires a comparison of the elements of the offenses to determine whether ‘“each [offense] requires proof of a fact which the other does not.’ ” Id. at 510, 486 A.2d at 368 (quoting Blockburger, 284 U.S. at 304, 52 S.Ct. at 182, 76 L.Ed. at 309). Applying this test to the present case, it is clear that homicide by vehicle and driving at an unsafe speed are not the “same offence,” U.S. Const, amend. V. Prosecution of the homicide by vehicle *304charge is not, therefore, barred by the previous conviction for driving at an unsafe speed.

Plainly, the elements of the two offenses are not the same. Each offense requires an element not required by the other.

Homicide by vehicle requires that there have been a death caused by a criminally negligent or reckless violation of law. 75 Pa.C.S. § 3732 (homicide by vehicle); Commonwealth v. Heck, 517 Pa. 192, 535 A.2d 575 (1987). Driving at an unsafe speed obviously does not require that there have been a death; nor does it require criminally negligent or reckless behavior. 75 Pa.C.S. § 3361 (driving at safe speed). Likewise, the latter offense necessarily involves driving at excessive speed. Homicide by vehicle does not. See Matter of Huff, 399 Pa.Super. 574, 581-82, 582 A.2d 1093, 1096-97 (1990), aff'd, 529 Pa. 442, 604 A.2d 1026 (1992). Although proof of the homicide by vehicle charge will involve proof of the manner in which appellee was driving, “mere overlap in proof between two prosecutions does not establish a double jeopardy violation.”3 United States v. Felix, 503 U.S. 378, 379, 112 S.Ct. 1377, 1379, 118 L.Ed.2d 25, 34 (1992).

Hence, double jeopardy does not bar appellee’s prosecution for homicide by vehicle. The order of the Superior Court to the contrary must, therefore, be reversed.

Order reversed.

PAPADAKOS, J., did not participate in the decision of this case.

MONTEMURO, J., did not participate in the consideration or decision of this case.

CAPPY, J., files a dissenting opinion.

. The police investigator assigned to the case went on vacation before the victim’s death and did not return to work until just before November 14, 1990, thereby causing the delay in filing the homicide by vehicle . charge.

. The Superior Court noted, however, as did the trial court, that the manner in which summary traffic charges are handled in this Commonwealth makes it very difficult to ensure that a person does not plead guilty to a summary offense prior to being charged with a more serious offense. Once charged with a summary offense, one can plead guilty and pay the fine at any time within ten days after receipt of a summons and without a personal appearance in court. Pa.R.Crim.P. 62, 64.

. The complaint charging homicide by vehicle alleges that, in addition to driving at an unsafe speed, appellee consumed alcohol and wove in and out of traffic and passed vehicles during nighttime hours in the midst of dense pedestrian and vehicular traffic.