Commonwealth v. Neidig

33 Pa. D. & C.3d 497, 1983 Pa. Dist. & Cnty. Dec. LEXIS 96
Pennsylvania Court of Common Pleas, Northumberland County·Decided December 23, 1983·No. no. CR-81-288·Published

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] receiving 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] A 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] fense 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.

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

33 Pa. D. & C.3d 497 (Commonwealth v. Neidig) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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