286 Pa. Super. 166 - Commonwealth v. Beatty

WICKERSHAM, Judge,

¶1dissenting:

¶2The majority reaches the result that it does by its erroneous reliance on Commonwealth v. Erisman, 247 Pa.Super. 476, 372 A.2d 925 (1977)—erroneous because I believe Eris-man to be wrongly decided.

¶3The simple rule which controls this case is that where a criminal episode results in two or more separate charges against a particular person, the Commonwealth ordinarily must bring all such charges to trial at the same time. Failure to do so will bring the Commonwealth into conflict with the plain wording and meaning of Section 110 of the *170 Crimes Code, 18 Pa.C.S. § 110, as well as Commonwealth v. Campana, 452 Pa. 233, 304 A.2d 432 (1974)1 and Commonwealth v. Stewart, 493 Pa. 24, 425 A.2d 346 (1981).2

¶4In Stewartthe defendant was arrested and charged with having a pistol on his person as well as possession of heroin. He was prosecuted, in separate trials, over two months apart, on such charges. The supreme court, by Justice Roberts, found that the Commonwealth prosecution on the charge of possession of heroin was barred by defendant’s prior conviction for unlawful possession of a firearm citing 18 Pa.C.S. § 110. The firearm charge was filed on the arrest date, April 15, 1974 and a complaint charging heroin was filed May 30,1974. On January 24,1975 the Commonwealth brought appellate to trial on the firearms charge, to which appellant entered a plea of guilty and was sentenced to probation and a fine. On April 1, 1975 the defendant was tried and convicted on the heroin possessión charge, and after dismissal of post-verdict motions defendant was sentenced. Our court affirmed the conviction.3 In reversing, the supreme court pointed out that:

Moreover, the two offenses with which appellant was charged were clearly part of the same “episode”: appellant’s crimes consisted of the possession of heroin and a gun at precisely the same time, 9:00 p. m. on April 25, 1974.

¶5Commonwealth v. Stewart, supra,at 4 of slip op.

¶6Instantly, we have a factual situation whereby defendant appellant was involved in an automobile accident on March *17114, 1979. He got out of his vehicle, assaulted the other driver and then left the scene without identifying himself. He was subsequently charged with aggravated assault (18 Pa.C.S. § 2702) and failing to identify himself at the scene of the accident, a summary offense under the Vehicle Code (75 Pa.C.S. § 3744). On April 6, 1979 the Commonwealth prosecuted him on the failure to identify charge and he was sentenced to pay a fine and costs. Subsequently, the Commonwealth attempted to prosecute the defendant-appellant on the aggravated assault charge and the lower court correctly held that the later prosecution and trial was barred.

¶7The majority of this panel agrees that both crimes arose from the same criminal episode, but, relying on Erismanand its convoluted formula, reverse the lower court and give the Commonwealth the green light for a “second bite at the cherry.”4

¶8Since this majority panel decision conflicts with a common sense reading of 18 Pa.C.S. § 110, I dissent.

¶9. 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).

¶10. There sire of course exceptions, not applicable here, as where a defendant waives his right to consolidation of all charges arising from the same criminal episode by pleading guilty to some but not all of the charges, i. e., where it is by defendant’s choice, not that of the state, that two separate proceedings were had to determine his guilt or innocence on charges arising from the same criminal episode.

¶11. Commonwealth v. Stewart, 257 Pa.Super. 334, 390 A.2d 1264 (1978), with two of six judges dissenting.

¶12. The proper view, I believe, of Erismanis found in Judge Hoffinan’s dissent in that case. I find Erismanto be predicated on a convoluted formula because of the definition used for “prosecution.” It is a technical definition which destroys the purpose of 18 Pa.C.S. § 110. “Former prosecution” should refer to the first trial or guilty plea proceeding and not to the first crime charged against the defendant.