                                        [J-16-2016]
                         IN THE SUPREME COURT OF PENNSYLVANIA
                                     MIDDLE DISTRICT

          SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, JJ.


COMMONWEALTH OF PENNSYLVANIA,                   :   No. 23 MAP 2015
                                                :
                         Appellant              :   Appeal from the Order of the Superior
                                                :   Court dated July 24, 2014,
                                                :   Reconsideration Denied September 3,
                  v.                            :   2014, at No. 2086 MDA 2013,
                                                :   Reversing the Judgment of Sentence of
                                                :   the Cumberland County Court of
JAMES ARTHUR BALL, III,                         :   Common Pleas, Criminal Division, dated
                                                :   October 22, 2013, at No. CP-21-SA-
                         Appellee               :   0000133-2013.
                                                :
                                                :   ARGUED: November 17, 2015
                                                :   REARGUED: May 10, 2016


                                     DISSENTING OPINION


JUSTICE BAER                                              DECIDED: September 28, 2016
         I respectfully dissent from the Majority’s determination that the Double Jeopardy

Clauses      of    the   Pennsylvania   and   United   States   Constitutions1   barred   the

Commonwealth from prosecuting Appellee for a summary offense at a trial de novo,

which occurred as a result of Appellee invoking Pa.R.Crim.P. 462(A) (quoted below) to

appeal a magisterial district judge’s decision to convict him only of a lesser-included

offense of the charged summary offense. I reach this conclusion because, in my view,

Appellee waived his double jeopardy defense when he utilized Rule 462(A) to appeal

the conviction entered by the magisterial district judge (“MDJ”). Further, I believe that


1
    Pa. Const. art. I, § 10 and U.S. Const. amend. V, respectively.
the Majority’s holding will hamper the ability of MDJs to administer justice in this

Commonwealth.

      Appellee was charged with the summary offense of driving a motor vehicle while

his operating privileges were suspended because of a previous driving-under-the-

influence conviction, in violation of 75 Pa.C.S. § 1543(b)(1) (“DUS-DUI”). Appellee pled

not guilty to this offense, and a summary trial took place in front of a MDJ. Rather than

convicting Appellee of the charged offense, the MDJ convicted him of the lesser-

included offense of driving a motor vehicle while his operating privileges were

suspended, in violation of 75 Pa.C.S. § 1543(a) (“DUS”).

      Appellee appealed his DUS conviction to the trial court pursuant to Pennsylvania

Rule of Criminal Procedure 462(A).       Rule 462(A) is entitled “Trial De Novo” and

provides:

      When a defendant appeals after the entry of a guilty plea or a conviction
      by an issuing authority in any summary proceeding, upon the filing of the
      transcript and other papers by the issuing authority, the case shall be
      heard de novo by the judge of the court of common pleas sitting without a
      jury.
Pa.R.Crim.P. 462(A).

      At Appellee’s trial de novo, the Commonwealth sought to prosecute Appellee for

the charged, greater offense of DUS-DUI. Appellee presented an oral motion to dismiss

the DUS-DUI charge, taking the position that double jeopardy principles prohibited the

Commonwealth from attempting to convict him of DUS-DUI at his trial de novo because

the MDJ acquitted him of that crime. The trial court ultimately convicted Appellee of

DUS-DUI, agreeing with the Commonwealth that, because Rule 462(A) required the

court to consider “the case” de novo, the case included the charge of DUS-DUI. On

appeal, the Superior Court reversed the trial court and discharged Appellee, concluding




                                     [J-16-2016] - 2
that double jeopardy principles barred the Commonwealth from prosecuting Appellee for

DUS-DUI at his trial de novo.

       This Court is asked to determine whether the Commonwealth was prohibited

from prosecuting Appellee for DUS-DUI at his trial de novo. In answering this question,

I first address whether the Rules of Criminal Procedure permitted the Commonwealth to

try Appellee for that charge at his trial de novo.

       Rule 462 is entitled “Trial De Novo” and provides, in relevant part, as follows:

       When a defendant appeals after the entry of a guilty plea or a conviction
       by an issuing authority in any summary proceeding, upon the filing of the
       transcript and other papers by the issuing authority, the case shall be
       heard de novo by the judge of the court of common pleas sitting without a
       jury.

Pa.R.Crim.P. 462(A).
       As an initial matter, Rule 462(A) does not allow the Commonwealth to appeal any

actions taken by a magisterial district court. Rather, the rule permits a defendant to

appeal a conviction entered by a magisterial district court. Pursuant to the clear and

unambiguous words of Rule 462(A), a judge of a court of common pleas must hear the

case de novo when a defendant chooses to appeal a summary conviction.

       In the context of Rule 462(A), the term “the case,” in the second half of the

sentence, relates back to the opening phrase’s reference to the conviction that the

defendant is appealing.     Moreover, the rule clearly requires a judge of a court of

common pleas to hear the case de novo. In this setting, the phrase “trial de novo”

means a “new trial on the entire case -- that is, on both questions of fact and issues of

law -- conducted as if there had been no trial in the first instance.”          BLACK’S LAW

DICTIONARY 1544 (8th ed. 2004). Thus, when a defendant appeals a conviction pursuant

to Rule 462(A), a trial court judge should hold a new trial on the entire case, as if no trial

had occurred in the magisterial district court. By placing this mandate on a trial court



                                       [J-16-2016] - 3
judge, Rule 462(A) necessarily permits the Commonwealth to prosecute a defendant at

the trial de novo for the original charge that resulted in the conviction from which the

defendant appeals.

         Here, when Appellee appealed his conviction for the lesser offense of DUS

pursuant to Rule 462(A), the trial court was obligated to conduct a new trial on the entire

case as if there had been no trial in the magisterial district court. The entire case

included the charged offense of DUS-DUI. Thus, the rule permitted the Commonwealth

to prosecute Appellee for DUS-DUI at his trial de novo. Indeed, in my view, it is Rule

462’s clarity on these points that should have put Appellee on notice that the

Commonwealth could seek to prosecute him for DUS-DUI at a trial de novo, if Appellee

decided to appeal his DUS conviction.

         Having reached these conclusions, I now consider Appellee’s argument that,

regardless of our state rule, the Double Jeopardy Clauses of the Pennsylvania and

United    States     Constitutions   nonetheless   prohibited   the   Commonwealth    from

prosecuting Appellee for DUS-DUI at his trial de novo after the MDJ implicitly acquitted

him of that crime.

         The Double Jeopardy Clause of the Fifth Amendment of the United States

Constitution, which is applicable to the States through the Fourteenth Amendment,2

provides that no person shall “be subject for the same offence to be twice put in

jeopardy of life or limb.” U.S. Const. amend. V. Similarly, Article I, Section 10 of the

Pennsylvania Constitution states, “No person shall, for the same offense, be twice put in

jeopardy of life or limb[.]” Pa. Const. art. I, § 10. The protections provided by these

constitutional provisions are coextensive. States, 938 A.2d at 1019.



2
    Commonwealth v. States, 938 A.2d 1016, 1019 (Pa. 2007).



                                        [J-16-2016] - 4
       The state and federal Double Jeopardy Clauses provide citizens with three

distinct protections. Commonwealth v. Mills, 286 A.2d 638, 641 (Pa. 1971). These

clauses shield a citizen from: retrial by the Commonwealth for the same offense after

an acquittal; retrial by the Commonwealth for the same offense after a conviction; and

multiple punishments for the same offense. Id. There can be no question that the rights

provided by the Double Jeopardy Clauses are deeply rooted in the history and tradition

of our country and Commonwealth. See Benton v. Maryland, 395 U.S. 784, 794 (1969)

(holding that “the double jeopardy prohibition of the Fifth Amendment represents a

fundamental ideal in our constitutional heritage”).      However, it is well-settled that

defendants can waive even the most fundamental of constitutional rights. In fact, when

a defendant pleads guilty to committing a crime, he waives several important

constitutional rights, including his right to a jury trial. See Commonwealth v. Petrillo, 16

A.2d 50, 56 (Pa. 1940) (stating that, “[b]ut though the Constitution guarantees to a

defendant charged with crime a trial by jury, he may waive trial by jury and plead

guilty”). While the word “waiver” can take on several meanings in the law, it ordinarily

connotes some kind of voluntary relinquishment of a right. Green v. United States, 355

U.S. 184, 191 (1957).      Importantly, defendants can waive constitutional rights in a

number of ways, including by implication and conduct or through a colloquy.

Commonwealth v. Mallory, 941 A.2d 686, 696-97 (Pa. 2008).

       As a general matter, Pennsylvania Rule of Criminal Procedure 462(A) acts as a

vehicle by which a convicted criminal defendant waives a defense of double jeopardy.

As I observed above, the Double Jeopardy Clauses of the state and federal

Constitutions bar the Commonwealth from re-prosecuting a defendant for an offense

that the defendant already has been convicted of committing. However, Rule 462(A)

grants a defendant convicted by a MDJ the right to appeal his conviction and have his




                                      [J-16-2016] - 5
case decided de novo by a judge of a court of common pleas. Obviously, under these

circumstances, the Commonwealth again prosecutes the defendant.

      Thus, unlike a “typical” direct appeal from a sentence imposed by a court of

common pleas and taken to the Superior Court, an appeal brought pursuant to Rule

462(A) is sui generis in that it is not predicated upon claims of error; rather, an appeal

under Rule 462(A) places the case in front of a judge of a court of common pleas to be

heard anew. In other words, a defendant’s appeal under Rule 462(A) automatically is

successful in that it results in a vacated sentence and conviction and in a new trial

without any need to establish that the MDJ erred by convicting or sentencing the

defendant.   While a defendant who appeals a conviction pursuant to Rule 462(A)

receives these benefits, the tradeoff pursuant to this rule is that the defendant waives

any double jeopardy defense to the Commonwealth’s second prosecution of the

defendant for the same offense that led to his initial conviction.3       Moreover, as I

discussed above, Rule 462(A) puts the defendant on notice that the Commonwealth can

seek to prosecute him at a trial de novo for the case that led to his magisterial-district-

court conviction if the defendant chooses to appeal that conviction.

      As to the circumstances presented in the matter sub judice, when a MDJ convicts

a defendant of a lesser-included offense of the charged summary offense, the

defendant has a meaningful choice: the defendant can choose to accept the conviction

on the lesser-included offense and presumably its accompanying lesser punishment,

which would mean that the Commonwealth cannot prosecute the defendant again for

3
  As the United States Supreme Court has explained, in the traditional direct appeal
setting, “the Double Jeopardy Clause imposes no limitation upon the power of the
government to retry a defendant who has succeeded in persuading a court to set his
conviction aside, unless the conviction has been reversed because of the insufficiency
of the evidence.” Oregon v. Kennedy, 456 U.S. 667, 676 n.6 (1982).




                                     [J-16-2016] - 6
the greater offense with which he was charged because double jeopardy attaches and

there is no waiver thereof, or he can employ Rule 462(A) to appeal the conviction on the

lesser-included offense and receive de novo consideration of the entire case by a judge

of a court of common pleas. When a defendant voluntarily invokes Rule 462(A) to

appeal a conviction of a lesser-included offense of the crime with which he was

charged, he does so knowing that his sentence and conviction are vacated, that he will

receive a new trial on his case, and that a judge from a court of common pleas will hear

the entire case, as if the trial before the district magistrate court had never occurred.

The entire case includes the charged, greater offense.

       Accordingly, I would hold that when a magisterial district court convicts a

defendant of a lesser-included offense of a charged summary offense and the

defendant chooses to appeal that conviction pursuant to Pennsylvania Rule of Criminal

Procedure 462(A), the defendant makes an informed decision to waive his double

jeopardy defense to being prosecuted at the trial de novo for the original, charged

summary offense.4 Because Appellee invoked Rule 462(A) by voluntarily appealing his

conviction for the lesser-included offense of DUS, the trial court correctly concluded that

Appellee waived his double jeopardy defense to the greater offense of DUS-DUI at his

trial de novo.


4
   I acknowledge that, in Green v. United States, 355 U.S. 184 (1957), the United States
Supreme Court addressed a double jeopardy issue that shares some similarities to the
issue in this matter and that the Court resolved that issue differently than I have decided
it. However, the High Court’s conclusion in Green did not require any consideration of
the unique appellate procedure embodied by Rule 462(A), which put Appellee on notice
of the trial court’s obligation to consider the case de novo. Rather, the Green Court was
faced with a double jeopardy claim presented in a traditional direct appeal from a
conviction and sentence. Indeed, my previous conclusions in this case are grounded in
Rule 462(A)’s distinct requirement that a trial judge should hear a case de novo when a
defendant appeals a conviction entered by a MDJ, and a defendant’s concomitant
waiver of an otherwise valid double jeopardy defense.



                                     [J-16-2016] - 7
       Lastly, in my view, the Majority’s holding to the contrary negatively alters the

manner in which criminal cases must be tried in magisterial district courts.             These

community-level courts act as gatekeepers in relatively minor criminal matters. They

are called upon to dispense justice in a less formal and more efficient manner than are

the courts of common pleas.         MDJs undoubtedly need a number of tools at their

disposal in order to fulfill their roles effectively and within the bounds of the law.

       Unfortunately, today’s ruling strips these judges of one very important tool: they

no longer, in the words of the trial judge in this case, can give defendants “a break” by

tailoring their convictions in ways to provide leniency when leniency is the just result.

See Trial Court Opinion, 1/21/2014, at 4. This is so because, while a MDJ’s non-record

decision to convict a defendant in a lenient fashion may be well intended, a defendant

now can invoke Rule 462(A) to manipulate that leniency into a potential windfall.

Consequently, I caution MDJs to consider carefully whether to convict a defendant of

anything less than the Commonwealth’s evidence demonstrates beyond a reasonable

doubt, even when the Commonwealth agrees that leniency toward a defendant is the

preferred outcome. It is indeed unfortunate that Appellee and this Court’s Majority may

well have deprived future defendants of reasoned judicial compassion with this decision.

       For these reasons, I would respectfully reverse the Superior Court’s order and

reinstate Appellee’s conviction for DUS-DUI and the judgment of sentence imposed

upon him by the trial court.




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