Commonwealth v. Neidig

33 Pa. D. & C.3d 497, 1983 Pa. Dist. & Cnty. Dec. LEXIS 96
CourtPennsylvania Court of Common Pleas, Northumberland County
DecidedDecember 23, 1983
Docketno. CR-81-288
StatusPublished

This text of 33 Pa. D. & C.3d 497 (Commonwealth v. Neidig) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Northumberland County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Neidig, 33 Pa. D. & C.3d 497, 1983 Pa. Dist. & Cnty. Dec. LEXIS 96 (Pa. Super. Ct. 1983).

Opinion

RANCK, J.,

On June 10, 1981, the premises of Charles W. “Billy” Neidig, Jr. were searched, and at that time, various items of stolen property and drugs and drug-related paraphernalia were seized. Defendant additionally made a statement to the officers concerning stolen guns. As a result of the search of defendant’s residence and the statements made by him, Neidig was charged with several drug-related, theft and conspiracy offenses filed in seven informations. On November 11, 1982, after a trial by jury on the drug-related charges alleged in three1 of the informations, defendant was convicted of possession of 24.5 grams of marijuana with intent to deliver,2 possession of a small amount of marijuana,3 unlawful delivery of 105.6 grams of marijuana,4 and unlawful delivery of 14.5 grams of marijuana.5 Defendant was found guilty on a charge of possession of methamphetamine with intent to deliver.6

Defendant subsequently filed a motion to dismiss the remaining criminal informations pursuant to 18 Pa.C.S. §110 and the Double Jeopardy Clauses of the United States and Pennsylvania Constitutions. We denied defendant’s motions and he appealed.

Testimony at trial revealed that during the late morning hours of June 10, 1981, Officer Richard Higgins of the Coal Township Police Department executed a search warrant at Kirk Weaver’s apartment, and as a result of the search, Weaver was arrested and charged with drug-related offenses and [499]*499receiving stolen property. At the time of the search, Weaver implicated Neidig, stating that he had purchased the marijuana from Neidig at Neidig’s residence. Based upon this information, Officer Higgins obtained a search warrant for Neidig’s premises. (Neidig lived in a home with other relatives. The search was conducted in a room which defendant identified as his bedroom.)

In the course of the search, drug-related paraphernalia and suspected controlled substances were found. The alleged controlled substances seized at Neidig’s and Weaver’s residences were transported to the State Police Crime Lab and identified as controlled substances. Weaver admitted to purchasing both the quarter pound of marijuana, and the 14.5 grams from Neidig. Based on the evidence, Neidig was convicted on the drug charges previously stated.

The charges still pending against defendant are contained in four separate informations. While searching defendant’s premises on June 10, 1981, the officers found various items of property which had allegedly been stolen. At the time of the search, Neidig commented that he knew where he could recover certain items. Two of the four informations concern sales of allegedly stolen property from Kirk Weaver to defendant. One7 of these sales occurred in May, 1981, and involved a stolen television set. The second8 information involved the sale of stolen coins occurring in June 1981. In each information, defendant was charged with receiving stolen property.9

[500]*500A third10 information charging receiving stolen property was filed as a result of defendant purchasing stolen fishing equipment from David Derek. Admissions made by Timothy Neary resulted in the fourth11 information being filed. Neary averred that he had removed two shotguns, a rifle and fishing equipment from the home of Frank Glosek, and further stated that he and defendant entered into an agreement whereby Neary would sell the items to defendant. Neidig gave Neary $100, the remainder of the money to be received when Neary would deliver the stolen property to Neidig. This delivery never occurred, and Neidig was charged with attempt12 of receiving stolen property and conspiracy.13

18 Pa.C.S. §110 set forth the standards in which prosecution is barred by former prosecution as follows:

“Although a prosecution is for a violation of a different provision of the statutes than a former prosecution or is based on different facts, it is barred by such former prosecution under the following circumstances:

(1) The former prosecution resulted in an acquittal or in a conviction as defined in section 109 of this title (relating to when prosecution barred by former prosecution for same offense) and the subsequent prosecution is for:

(i) any offense of which the defendant could have been convicted of the first prosecution;

(ii) any offense based on the same conduct or arising from the same criminal episode, if such of[501]*501fense was known to the appropriate prosecuting officer at the time of the commencement of the first trial and was within the jurisdiction of a single court unless the court ordered a separate trial of the charge of such offense; or

(iii) the same conduct, unless:

(A) the offense of which the defendant was formerly convicted or acquitted and the offense for which he is subsequently prosecuted each requires proof of a fact not required by the other and the law defining each of such offenses is intended to prevent a substantially different harm or evil . . .

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, cert. denied, 417 U.S. 969, 94 S.Ct. 3172, L.Ed. 2d 1139 (1974), the “same criminal episode” was defined as “an occurrence or connected series of occurrences and developments which may be viewed as distinctive and apart although part of a larger or more comprehensive series.” 452 Pa. at 248, 304 A.2d at 439.

In deciding whether the charges still pending against defendant arise from the same criminal episode, we look at a concrete example of that concept. In Commonwealth v. Stewart, 493 Pa. 24, 425 A.2d 346 (1981), during a stop and frisk, the police found a pistol and ten glassine packets containing what later proved to be heroin on defendant’s person. A complaint was filed charging defendant with a violation of the firearms law, and a second complaint was later filed charging defendant with possession of heroin. Defendant entered a plea of guilty to the firearms charge, and a conviction by a jury for possession of heroin followed approximately three months later. In reversing the lower courts, the Supreme Court determined that the two charges [502]*502should have been tried together. For conviction on either or both of the charges, the court found that the testimony of the same officers as to the incidents occurring at the same time and place would be required. Additionally, any challenges that defendant may have had to the legality of the stop and arrest as well as the credibility of the arresting officers would be as relevant to one charge as to the other.

The same criminal episode test was not met in Commonwealth v. Lawson, 306 Pa. Super. 414, 452 A.2d 793 (1982), where gasoline was stolen from an ARCO station and was used to fill an automobile which had been stolen from a parking lot only two hours earlier.

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Related

Commonwealth v. Stewart
425 A.2d 346 (Supreme Court of Pennsylvania, 1981)
Commonwealth v. Campana
304 A.2d 432 (Supreme Court of Pennsylvania, 1973)
Commonwealth v. Hude
458 A.2d 177 (Supreme Court of Pennsylvania, 1983)
Commonwealth v. Campana
314 A.2d 854 (Supreme Court of Pennsylvania, 1974)
Commonwealth v. Lawson
452 A.2d 793 (Superior Court of Pennsylvania, 1982)

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Bluebook (online)
33 Pa. D. & C.3d 497, 1983 Pa. Dist. & Cnty. Dec. LEXIS 96, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-neidig-pactcomplnorthu-1983.