Commonwealth v. Beatty

428 A.2d 624, 286 Pa. Super. 166, 1981 Pa. Super. LEXIS 2564

Opinions

LIPEZ, Judge:

The court below granted appellee’s pre-trial motion to dismiss a charge of aggravated assault¹ against him. We reverse.

On March 14, 1979, automobiles driven, respectively, by appellee and Kenneth Edwards collided on a public highway. Both stopped and left their cars, and appellee struck Edwards, breaking his jaw. Appellee then drove away without identifying himself.

On March 26, a Pennsylvania State Police officer, after investigation of the incident, filed a charge of aggravated assault against appellee. On March 30, another State Police officer filed a summons against appellee for failure to identify himself at the scene of the accident,² which is a summary offense under the Vehicle Code.³ On April 3, appellee waived a preliminary hearing on the aggravated assault charge and was bound over to the court thereon. On April 6, he pled guilty to failure to identify and paid costs and a fine. Appellee argued below that the disposition, by guilty plea, of the prosecution for the failure to identify barred the Commonwealth’s pursuit of the aggravated assault prosecution. The trial court agreed, and the Commonwealth appeals.

Appellee relies principally on Commonwealth v. Campana, 452 Pa. 233, 304 A.2d 432, 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, cert. denied, 417 U.S. 969, 94 S.Ct. 3172, 41 L.Ed.2d 1139 (1974). In that case, the Supreme Court of Pennsylvania held “that all charges resulting from the same criminal episode . . . should [be] consolidated at one trial . . .. ” 452 Pa. at 240, 304 A.2d at 434 (emphasis, quotation marks and footnote deleted).⁴

It is clear that the two crimes involved in the instant case arose from the same criminal episode. See Commonwealth v. Edwards, 264 Pa.Super. 223, 399 A.2d 747 (1979). Section 110 of the Crimes Code,⁵ therefore, controls. Commonwealth v. Green, 232 Pa.Super. 134, 139, 335 A.2d 493, 495 (1975). Section 110 provides in relevant part:

Although a prosecution is for a violation of a different provision of the statutes than a former prosecution ... it is barred by such former prosecution under the following circumstances:

(1) The former prosecution resulted in an acquittal or in a conviction . . . and the subsequent prosecution is for:

(ii) any offense .. . arising from the same criminal episode ....

The facts of the case before us are substantially similar to those of Commonwealth v. Erisman, 247 Pa.Super. 476, 372 A.2d 925 (1977). In Erisman, the defendant was charged first with driving under the influence of intoxicating liquor and then with driving after revocation of his license; both offenses had arisen from the same criminal episode. He pled guilty to driving after the revocation, and, several weeks later, was indicted on driving under the influence. His argument was identical to that of the instant appellee. The Superior Court of Pennsylvania held, under the statutory language quoted above, that the prosecution for driving under the influence, having been commenced first,⁶ was “ ‘former’ to, and therefore could not be barred by the . . . prosecution for operating after revocation of privilege.” 247 Pa.Super. at 479, 372 A.2d at 926.

Similarly, in the case before us, the aggravated assault prosecution having been commenced before the prosecution for failure to identify, it is “former” to the second charge within the meaning of section 110 and, therefore, is not barred by appellee’s guilty plea which disposed of the second prosecution. Id.

Appellee’s claims—that Erisman is factually distinguishable from the instant appeal, is legally incorrect, and should be reconsidered—are without merit.

The order of the court below is reversed, the information is reinstated, and the cause is remanded for trial.

WICKERSHAM, J., files a dissenting opinion.

Footnotes

1

. 18 Pa. C.S. § 2702.

2

. 75 Pa. C.S. § 3744.

3

. 75 Pa. C.S. §§ 101-8122.

4

. Although this holding was based, at first, on the Double Jeopardy Clause of the Fifth Amendment as applied to the States through the Fourteenth Amendment to the United States Constitution, the Supreme Court of Pennsylvania held, upon remand from the United States Supreme Court to determine the issue, that it was grounded in its supervisory power over state proceedings. 455 Pa. at 626, 314 A.2d at 856.

5

. 18 Pa. C.S. § 110.

6

. 18 Pa. C.S. § 108(e) provides:

A prosecution is commenced either when an indictment is found or when a warrant or summons is issued, if such warrant or summons is executed without [unreasonable delay.