OPINION BY DONOHUE, J.:
This is an appeal from an order finding that the attachment of double jeopardy prohibited the criminal prosecution of Kevin Michael Jackson ("Jackson") for certain offenses which had previously served as the basis for a finding of indirect criminal contempt of an order granted under the Protection from Abuse Act ("PFA order"). Following our review, we affirm in part, reverse in part, and remand for further proceedings.
The facts underlying this appeal may be summarized as follows. On April 15, 2008, following a hearing, a PFA order was entered against Jackson. The order contained the following relevant provisions:
PFA Order, 4/15/08, at 1-3 (emphasis in the original).
On January 13, 2009, Jackson entered the marital residence while Wife was
A hearing on the petition for indirect criminal contempt was held on January 29, 2009, at which time Jackson admitted to violating the PFA order by entering the marital residence. N.T., 1/28/09, at 3. He was sentenced to 60 days to six months of incarceration.
A preliminary hearing on the criminal charges occurred on March 9, 2009. At that time, Trooper Barsotti withdrew all charges but burglary, criminal trespass and assault. On January 11, 2010, Jackson presented the motion at issue. Following argument on the motion, the trial court granted Jackson's request regarding the burglary and trespass charges, but denied his request as to the assault charge. The Commonwealth filed a timely appeal from this determination,
The Commonwealth presents the following issue for our review:
Appellant's Brief at 3.
Jackson presents the following issue in his cross-appeal:
Appellee's/Cross-Appellant's Brief at 10. In essence, both parties raise the same question, which we phrase as follows: whether double jeopardy attaches so as to prohibit the criminal prosecution of any of the offenses charged, which arose from the same incident that was the basis for the finding of indirect criminal contempt for violation of a PFA order.
"The Double Jeopardy Clause, applicable to the States through the Fourteenth Amendment, provides that no person shall `be subject for the same offense to be twice put in jeopardy of life or
"To determine whether a defendant's protection against multiple punishments for the same offense has been violated, this Commonwealth applies the test set forth in Blockburger v. U.S., 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932)." Commonwealth v. Beckwith, 449 Pa.Super. 433, 674 A.2d 276, 279 (1996). The U.S. Supreme Court explained this test as follows:
United States v. Dixon, 509 U.S. 688, 696, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993).
We note that "the `same-elements' test of Blockburger has long been followed in this Commonwealth" and its application "requires a comparison of the elements of the offenses to determine whether each offense requires proof of a fact which the other does not." Commonwealth v. Caufman, 541 Pa. 299, 303, 662 A.2d 1050, 1052 (1995) (citations omitted). When making such a comparison, overlap in proof between the two prosecutions does not establish a double jeopardy violation. Beckwith, 674 A.2d at 279.
For example, in Decker, a wife obtained a PFA order against her husband ("Decker") on her behalf and the behalf of her two children. The PFA order provided that Decker was "enjoined from physically abusing the plaintiff . . . and her minor children, or from placing them in fear of abuse," and "ordered to refrain from harassing the plaintiff or her minor children." Decker, 664 A.2d at 1028-29. A few months later, Decker was charged with indirect criminal contempt for violating the PFA order. The indirect criminal contempt complaint alleged that Decker verbally harassed his wife, slapped her across the face, and shoved her into a door frame, resulting in a lump. At an indirect criminal contempt hearing, Decker admitted that he violated the PFA order by engaging in the actions alleged in the complaint. The court entered an order adjudicating Decker in contempt of the PFA order, and subsequently sentenced him to three months of imprisonment. Id. at 1029. Decker was later charged with simple assault for the same episode upon which his contempt conviction had been based. He filed a motion seeking to dismiss the information charging him with assault, arguing that the prosecution was barred under the Double Jeopardy Clause of the United States Constitution. This Court applied the Blockburger test, and reasoned as follows:
Id. at 1031.
Returning to the case presently before us, we first note the requirements for a finding of indirect criminal contempt:
Commonwealth v. Brumbaugh, 932 A.2d 108, 110 (Pa.Super.2007).
Jackson was found to have violated the PFA order because he entered the marital residence. Therefore, in order to establish indirect criminal contempt, the Commonwealth was required to prove that the PFA order was sufficiently specific so as to make clear to Jackson that he was prohibited from being present at the marital residence; that Jackson had notice of the PFA order; and that he was knowingly and willfully present at the marital residence despite the terms of the PFA order; and that he entered the marital residence with wrongful intent.
Turning to the crimes at issue, Jackson was charged with criminal trespass under 18 Pa.C.S.A. § 3503(a)(1)(i). A person commits this crime "if, knowing that he is not licensed or privileged to do so, he [ ] enters, gains entry by subterfuge or surreptitiously remains in any building or occupied structure or separately secured or occupied portion thereof." Id. Thus, in order to prove that Jackson committed criminal trespass, the Commonwealth would have to prove that Jackson (1) knew he was not licensed or privileged to enter the marital residence and (2) that he entered the marital residence. In order to find Jackson in indirect criminal contempt, the Commonwealth would have to establish that Jackson (1) entered the martial residence, (2) despite knowing that he was not permitted to enter (as well as multiple elements that are not required for a conviction of criminal trespass, i.e., whether the PFA order was sufficiently specific; whether Jackson had notice of the PFA order; and whether he acted with wrongful intent). Therefore, in order to prove indirect criminal contempt, the Commonwealth would have to prove both elements that make up the crime of trespass, as well as additional elements unique to the indirect criminal contempt charge. Accordingly, in this instance, criminal trespass is a "species of lesser-included offense" of Jackson's indirect criminal contempt violation. Decker, 664 A.2d at 1031. This comparison therefore fails the Blockburger test, and thus a subsequent prosecution for criminal trespass is prohibited by the Double Jeopardy Clause.
Considering the burglary charge, our law provides that "a person is guilty of burglary if he enters a building or occupied
Finally, we consider the assault charge. Jackson was charged with assault under Section 2701(a)(3) of the Crimes Code, which provides that "[a] person is guilty of assault if he [ ] attempts by physical menace to put another in fear of imminent serious bodily injury." 18 Pa.C.S.A. § 2701(a)(3). As discussed above, the PFA violation giving rise to the finding of indirect criminal contempt conviction was Jackson's presence at the marital residence. None of the elements of that offense are shared with the elements of simple assault. As such, the criminal prosecution on this charge may proceed as well.
Thus, we conclude that the trial court did not err in dismissing the trespass charge and refusing to dismiss the assault charge, but that it did err in dismissing the burglary charge against Jackson. Accordingly, we affirm the portions of the trial court's order granting his motion to dismiss the trespass charge and denying Jackson's motion to dismiss the assault charge, reverse the portion of the trial court's order granting Jackson's motion to dismiss the burglary charge, and remand to the trial court for further proceedings.
Order reversed in part and affirmed in part. Case remanded for further proceedings. Jurisdiction relinquished.
