Commonwealth v. Stewart

473 A.2d 161, 325 Pa. Super. 465, 1984 Pa. Super. LEXIS 4036

• Court: Supreme Court of Pennsylvania
• Decided: February 24, 1984
• Docket: 2706
• Status: Published

Opinions

WIEAND, Judge:

Edward E. Stewart was arrested on the night of August 16, 1980 and charged with theft by receiving stolen property in connection with the taking of motor oil and tools from an auto shop earlier that evening. Following his arrest, police obtained a search warrant for his vehicle and conducted a search for the motor oil and mechanic’s tools. During the search, which produced a case of motor oil and a box of tools, police also found luggage which contained drug paraphernalia and containers in which there appeared to be controlled substances. Police did not immediately seize the apparent drugs and drug paraphernalia, but on the following day a second search warrant was obtained, and the items were taken into custody.

Stewart was tried and acquitted of theft by receiving stolen property¹ on January 22, 1981. On that day, there still had been filed no complaint against him for possession of controlled substances. The substances seized from his vehicle on August 17, 1980 had been sent to the State Police Crime Lab for analysis on September 24, 1980, and an affirmative finding was reported to the Williamsport police on November 14, 1980. A criminal complaint alleging possession of controlled substances² was not filed until May 7, 1981. Stewart then moved to dismiss on grounds that the charge for possession of controlled substances had arisen from the same episode as the theft charge, and that prosecution, therefore, was barred by principles of double jeopardy and also by 18 Pa.C.S. § 110. The trial court denied the motion to dismiss, and Stewart appealed.³ We affirm.

Appellant’s prosecution for possession of controlled substances is not barred by principles of double jeopardy. “ ‘The double jeopardy clause breaks down into three general rules which preclude a second trial or a second punishment for the same offense: (1) retrial for the same offense after acquittal; (2) retrial for the same offense after conviction; (3) multiple punishment for the same offense at one trial.’ ” Commonwealth v. Grazier, 481 Pa. 622, 630, 393 A.2d 335, 339 (1978), quoting Commonwealth v. Mills, 447 Pa. 163, 169, 286 A.2d 638, 641 (1971) (emphasis omitted). Accord: Illinois v. Vitale, 447 U.S. 410, 415, 100 S.Ct. 2260, 2264, 65 L.Ed.2d 228, 235 (1980). Theft by receiving stolen property and possession of controlled substances clearly are not the same offense. The “same transaction” concept advanced by appellant has not been adopted by the Supreme Court of the United States. See: Robinson v. Neil, 409 U.S. 505, 93 S.Ct. 876, 35 L.Ed.2d 29 (1973) (Brennan, J., concurring); Grubb v. Oklahoma, 409 U.S. 1017, 93 S.Ct. 450, 34 L.Ed.2d 309 (1972) (Brennan, J., dissenting); Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970) (Brennan, Harlan, J.J., concurring). It was specifically rejected by this Court in Commonwealth v. Webster, 323 Pa.Super. 164, 470 A.2d 532 (1983).

The provisions of 18 Pa.C.S. § 110 require that all known charges based upon the same conduct or arising from the same criminal episode be consolidated for trial unless the court orders separate trials. Commonwealth v. Hude II, 500 Pa. 482, 490, 458 A.2d 177, 181 (1983); Commonwealth v. Webster, supra. This rule is “intended both to protect a person accused of crimes from governmental harrassment by forcing him to undergo successive trials for offenses stemming from the same event, and also, as a matter of judicial administration and economy, to assure finality without unduly burdening the judicial process by repetitious litigation.” Commonwealth v. Holmes, 480 Pa. 536, 541, 391 A.2d 1015, 1017 (1978), quoting Commonwealth v. Tarver, 467 Pa. 401, 408, 357 A.2d 539, 542 (1976).

The crimes of theft by receiving stolen property and unlawful possession of controlled substances clearly are not the same criminal act. The law defining each of these offenses requires proof of facts not required by the other. The principal issue, therefore, is whether, under the circumstances of this case, the two alleged offenses were part of the same criminal episode.

“[I]n defining what acts constitute a single criminal episode, not only is the temporal sequence of events important, but also the logical relationship between the acts must be considered.” Commonwealth v. Hude II, supra, 500 Pa. at , 458 A.2d at 181. There is no logical relationship between the crimes of theft by receiving stolen property and possession of a controlled substance. They are defined by separate statutes and are intended to prevent different evils. There is no similarity of issues involved in proving these distinct offenses. One is a crime of unauthorized possession; the other, although involving the receipt or retention or disposition of movable property, is a crime against property suggesting dishonesty or moral turpitude.

It is the lack of a logical relationship between the two offenses which distinguishes this fact pattern from that present in Commonwealth v. Stewart, 493 Pa. 24, 425 A.2d 346 (1981). When the appellant in that case had been stopped and frisked, police found on his person a pistol and ten glassine packets of heroin. The offenses of carrying a firearm and possession of heroin were held to be part of the same episode because both crimes were possessory offenses which “consisted of the possession of heroin and a gun at precisely the same time.” Id., 493 Pa. at 28, 425 A.2d at 348. A charge of theft by receiving stolen property, however, is not merely a crime of possession. It is a crime of theft and can be supported by evidence that it was committed in any manner constituting theft under the Crimes Code. 18 Pa.C.S. § 3902.

The temporal relationship between the two offenses with which appellant was charged, moreover, is more theoretical than real. Theft by receiving stolen property, this Court has held, is a continuing offense. See: Commonwealth v. Kelly, 300 Pa.Super. 451, 455, 446 A.2d 941, 944 (1982); Commonwealth v. Farrar, 271 Pa.Super. 434, 441-442, 413 A.2d 1094, 1098 (1979). In theory, therefore, it may be said that because both offenses were continuing, they occupied the same time frame at the moment when police searched appellant’s automobile and found not only stolen property but controlled substances as well. In actuality, however, the temporal relationship between the two offenses is less than clear. The crime of theft by receiving stolen motor oil and mechanic’s tools had its genesis in an unlawful taking which occurred during the early evening of August 16, 1980. There is no basis in the evidence here presented for finding that appellant’s possession of controlled substances commenced at the time of the theft or at the time when appellant came into possession of the stolen property.

To summarize, there is no logical relationship between a crime of theft and that involving possession of controlled substances. Under the facts appearing in the instant case, moreover, the temporal relationship was marginal at best. We conclude, therefore, that the two offenses were not part of the same episode and were not rendered part of the same episode merely because evidence relevant to both was found during the same search. It follows that appellant’s prosecution for possession of controlled substances is not barred by his prior acquittal on a charge of theft by receiving stolen property.

Order affirmed.

McEWEN, J., filed a dissenting opinion.

1 . 18 Pa.C.S. § 3925. Stewart admitted possession of the motor oil and tools, but at trial he denied that he had had knowledge of their theft or reason to believe they had probably been stolen.

2 . 35 Pa.C.S. § 780-113(a)(16).

3 . Denial of a pre-trial application seeking discharge on double jeopardy grounds is a "final” order and is immediately appealable. Commonwealth v. Hude II, 500 Pa. 482, 490 n. 13, 458 A.2d 177, 181 n. 13 (1983). See: Commonwealth v. Bolden, 472 Pa. 602, 609, 373 A.2d 90, 93 (1977); Commonwealth v. Beckman, 304 Pa.Super. 239, 241, 450 A.2d 660, 661 (1982).