¶1dissenting:
¶218 Pa.C.S.A. § 110 provides that a subsequent prosecution is barred by a former prosecution if (among other circumstances): (1) the former prosecution resulted in a conviction; (2) the subsequent prosecution arose from the same criminal *346episode as did the former prosecution; and (3) the offense on which the subsequent prosecution is based was known to the prosecutor when the trial in the former prosecution started. Here each of these requirements is met: (1) the former prosecution (the weapons charge) resulted in a conviction; 18 Pa.C.S.A. § 109(3), to which § 110 refers, defines “conviction” as. including “a plea of guilty accepted by the court.” (2) The subsequent prosecution (the narcotics charge) arose from the same criminal episode as did the former prosecution. And (3) although the arresting officer did not know that appellant possessed heroin, the substance the officer found in appellant’s possession was subsequently analyzed, and by the time that appellant pleaded guilty in the former prosecution, the prosecutor did know that the analysis had shown the substance to be heroin. Accordingly, the subsequent prosecution in the narcotics charge was barred by appellant’s guilty plea in the former prosecution on the weapons charge.
¶3The majority does not disagree that the requirements of 18 Pa.C.S.A. § 110 have been met. Instead, the majority holds that appellant has waived the requirements; the majority finds this waiver in appellant’s failure “to protect his rights by moving for a consolidation.” Majority Opinion at 1270. In support of this holding the majority cites Commonwealth v. Green, 232 Pa. Super. 134, 335 A.2d 493 (1975), and the concurring opinion in Commonwealth v. Erisman, 247 Pa.Super. 476, 372 A.2d 925 (1977). Neither of these cases, however, is in point. In Green, “the Commonwealth attempted to bring all the separate charges ... in one proceeding.” 232 Pa.Super, at 144, 335 A.2d at 498. However, the preliminary hearing judge “unnecessarily” separated the charges, id.,sending one to the Municipal Court and the other to the Court of Common Pleas. The defendant’s attorney not only did not object to this separation but “[he] and the Assistant District Attorney agreed with the proposal of the judge although neither party actually requested the separation.” 232 Pa.Super. at 144-45, 335 A.2d at 498. *347Here, the Commonwealth did not attempt to try the charges together; the court did not separate them — the Commonwealth did; and appellant’s counsel did not agree to the separation. In Erisman, the former prosecution had not resulted in a conviction and therefore could not bar the subsequent prosecution; that is, unlike the present case, the requirements of 18 Pa.C.S.A. § 110 had not been met.
¶4It is true that the concurring opinion in Erisman(CER-CONE, J., joined by PRICE, J.) spoke of “requiring the accused to move to protect his privileges when he is readily able to do so.” 247 Pa.Super. at 482, 372 A.2d at 928. This statement, however, cannot be regarded as a precedent; this is particularly so since the statement is contrary to the law as stated by our Supreme Court in 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 (1974), cert. denied, 417 U.S. 969, 94 S.Ct. 3172, 41 L.Ed.2d 1139 (1974). There the Court made plain that the burden is not on a defendant to preclude multiple prosecutions, but on the Commonwealth to consolidate prosecutions. After an extensive examination of the authorities, the Court summarized the reasons for this allocation of burden as follows: first (quoting the New Jersey Supreme Court in State v. Cooper, 13 N.J.L. 361, 375-76 (1833)), “the crown shall not oppress the subject, or the government the citizen, by unnecessary prosecutions”; and second “[cjompulsory joinder . . . avoids piecemeal litigation and thus conserves precious judicial and professional manpower as well as the time of jurors, witnesses, and the use of public resources.” 452 Pa. at 251-52, 304 A.2d at 441.
¶5Accordingly, as the prosecution of appellant on the narcotics charge was barred by the former prosecution of appellant on the weapons charge, appellant should be discharged.