*2 WATKINS, Before JACOBS, President Judge, HOFFMAN, CERCONE, PRICE, VOORT, VAN der SPAETH, JJ.
SPAETH, Judge: Appellant was convicted of operating a motor vehicle while under the influence in intoxicating liquor violation Code, 1959, of the Vehicle 29, 58, 1037, Act of P.L. 75 § P.S. 1037. The lower court denied motion in appellant’s § arrest of judgment. Appellant argues that the motion should have been granted because prosecution was barred under the rule of joinder announced in compulsory Common- wealth v. 233, 452 Pa. 304 A.2d 432 (1973).
When
was
Campana
remanded
the United
States Su
preme Court,
808,
414
73,
U.S.
94
38
S.Ct.
L.Ed.2d 44 (1973),
our
Supreme Court
an addendum per curiam opinion
stated that
result this Court reached in
is
Campana
“[t]he
entirely
with section
harmony
110 of our
Code,
Crimes
which became effective
shortly
our decision and is now
in effect.” Commonwealth v. Campana,
622,
455 Pa.
626,
854,
314 A.2d
856
cert.
(1974),
denied,
969,
417 U.S.
94 S.Ct.
3172,
§ § * possibility argued We note the cases to us under automatically governed by should not with as be dealt section 110. The rule announced in the first decision is broader than our
478 was
Appellant arrested on August and charged with under the influence. operating On 24 he August waived and was preliminary hearing bound over to court. On October the same officer who had made the August arrest brought summary charge of operating a motor vehicle after revocation of operating privilege. Vehicle Code, supra, 624(6), 75 P.S. 624(6). On November appellant pleaded guilty this summary charge. On De- cember 3 the grand indicted him on the jury under the influence. Appellant’s argument is that this was barred his November 1 plea of guilty reading of section Jeopardy 110: “We hold . . . that the Double requires prosecutor bring, single proceeding, Clause in a all charges against arising ‘single known episode’.” footnoted, a defendant from a criminal 233, 252-53, 452 Pa. A.2d 441. This part, “cf. . . 110 . It is at least arguable that in the second decision the Court did not *3 rely solely harmony intend to on the between section 110 and the Campana result, reiterate,
first
power,
supervisory
but rather to
under its
have,
nevertheless, already expressed
the broader rule. We
Supreme
Campana
our view that the
Court intended the
rule to be
implemented by section 110.
It was .
.
. stated
the second
[in
decision]
compulsory
on
Court’s views
the issue of
consolidation of all
charges arising
harmony
single
episode
entirely
from a
criminal
were
in
Consequently,
with Section 110 the
new Crimes Code.
charges brought by
if
against
all the various
the Commonwealth
appellee
single
this
episode,
can be said to arise from a
criminal
princi-
Section 110 of the Crimes Code will control rather than the
ples
jeopardy expressed Campana.
of double
134, 139,
Pa.Super.
Commonwealth v.
335 A.2d
(1975) (emphasis added).
Supreme
The
Court refused to allocatur in Green.
Dissent, reading
do,
broadly
section 110more
than we
finds no
gap
between the first
rule and the statute. While we are
sympathetic
attempt
to the
Campa-
Dissent’s
to honor the
I,
persuaded
na we are
that section 110 is not to be read as the
Dissent reads it. If it be concluded that the result we reach in the
present
question
scope
vitality
case calls into
and continued
I,
resolution is for the
Court.
Project
Justice,
ABA
on Minimum Standards for Criminal
Stan-
Relating
1.3(b)
Draft,
(Approved
dards
to Joinder and Severance §
1968) (emphasis added).
See Commonwealth v.
Although prosecution violation different [here, of the statutes the Vehicle provision than a Code] former . . . it is barred prosecution such former under the circumstances: prosecution following The former resulted in an (1) acquittal or a conviction . . . and the subsequent prosecution is for: . .
(i) . offense . (ii) arising from the same crimi- any nal episode.
In these provisions, observed, it will be one applying must which prosecution concentrate is the “former upon prosecu- tion” and which is the “subsequent prosecution.” Appellant as though prosecution for the argues summary charge after revocation of was privilege the “former which arose “from the same prosecution,” criminal episode” and therefore barred the “subsequent prosecution” oper- under the influence. In ating fact it was the other way around.
“A commenced either when an indict ment is found or when a warrant or issued, summons is if such warrant or summons is executed without reasonable delay.” 108(e). Here, Pa.C.S. a warrant was [sic] issued on the operating under the influence on 24; the August summons on the summary charge of operat after revocation of ing was privilege not issued until October *4 2. Thus the prosecution for operating under the influence to, was “former” and therefore could not be barred by, the for summary prosecution after operating revocation of privi lege.
It be granted may has been subjected to “double prosecution.” At his on the hearing summary of charge after of operating privilege, revocation he could not set as a bar up for prosecution operating under the
influence, because, while that was a “former prosecution it had not “resulted in an or in a prosecution,” yet acquittal ” Later, 110(1). conviction. 18 Pa.C.S. at his influence, for under the he operating trial could not set up as a bar the for after revocation of operating because, while that had resulted privilege, conviction of it was not a “former” but a (a plea guilty), The short answer to “subsequent” prosecution.
dilemma, however, is that section 110 does not bar all double but those within its terms. only prosecutions with answer is to some extent consistent the general This of section 110. The Comment to the purpose compulsory Model Penal on which section of the section joinder based, joinder 110 is states that the state from successive prevent bringing prosecutions conduct, the same whether the essentially
based upon
hedge against
so
is to
the risk of an
doing
trial,
at the first
a “hold”
unsympathetic jury
place
after he has been sentenced to
upon
person
imprison-
ment, or
to harass
of trials.
simply
by multiplicity
1.08,
(TentDraft
Model Penal Code
Comment
No.
And see
1956).
supra
Commonwealth
Pa.Su-
141-42,
Here,
at
No doubt the an legislature, exercise of its could decide that all rule-making power, double should be Thus it prosecutions precluded. be might to section 110 or a new provided, by rule, amendment one, that in such a case as this officer should arresting to make the required summary charge operating revocation of same time as he privilege at the makes the the influence. This would deny under harassment, substance to and it claim would also any *5 avoid Green, piecemeal litigation. See Commonwealth v. hand, On the other supra. it would also further impose constraints on police, the which thought unwise. might It considerations; is not for us to balance these conflicting we take must section 110 we it. as find judgment sentence is affirmed.
CERCONE, J., files a PRICE, in which concurring opinion J., joins.
HOFFMAN, J., files a dissenting opinion.
CERCONE, Judge, concurring: I would the affirm judgment sentence in instant case because solely failed to move that the of- trial, fenses be joined despite for the fact that he they knew were pending As ABA Re- contemporaneously. Standards to lating Joinder and 1.3(b) Severance provides: “When a defendant has been two charged with or more offenses, related his timely motion to them join for trial should be granted unless court determines that be- cause the prosecuting does not have sufficient attorney evidence to warrant trying some of the offenses at that or time, reason, some other the ends justice would be defeated if the motion were A granted. defendant’s failure so move constitutes a waiver of any right as joinder to related offenses with which the defendant knew he was charged.”
Cf. Commonwealth v. Pa.Super. 142-44, A.2d 493 as (1975). long So two are prosecutions pending and neither has concurrently, gone beyond stage which would be joinder inappropriate impermissible, accused has an adequate for his remedy problem seeking joinder of the offenses. If the accused does not that request the offenses be joined, it fair to conclude he has waived a claim that Section 110 of the Crimes Code has been hand, violated. On the other it is unfair to charges dismiss for serious offenses on the basis of presumed protections which the accused has not finger exercise, lifted a espe- since the cially accused is often in a better position know with conflict Crimes potential Code *6 The relatively
than is the Commonwealth. drastic remedy 110 should when an only applied of accused has moving join not the to all offenses foregone opportunity To hold otherwise is to simply one foster prosecution. However, play games defense counsel. word chicanery by 110, majority case, as the does in the instant with Section equity practicality obscures the only requiring protect to move to his when he is privileges accused readily so. able do
PRICE, J., in this joins opinion.
HOFFMAN, dissenting: Judge, affirms conviction for Miajority a motor vehicle while under the influence of intoxicating liquor,1 aby tortious reading 108 and 110 §§ Crimes Code.2 I believe that the Court’s of those reading intent, sections distorts the legislature’s avoids thereby the clear import Supreme our Court’s analysis in Com- monwealth 233, 452 Pa. 304 A.2d 432 (1973).3 Therefore, I dissent.
Appellant was arrested in Lancaster
for a violation of
Code,
1037 of The Vehicle
on
supra,
23, 1974.
August
§
At
time,
he gave
license,
the officer his
which had expired
in August, 1973. Appellant waived a preliminary hearing
and was held for court. On
a2,
October
second charge was
issued for
operation
vehicle after operating privileges
revoked,
had been
offense.
summary
See The Vehicle
Code,
75
supra;
P.S. 624(6). There is no question
§
that this
offense (the act of operation of
vehicle)
was the same
act that gave rise to the
1037 violation.
§
29, 1959,
1. The
58,
1037;
Vehicle
Act of
P.L.
75
§
P.S.
§ Í037.
1972,
1482,
334,
1;
2. Act of December
P.L.
No.
§
Pa.C.S.
6i
Supreme
3. The United States
Court remanded the case at 414 U.S.
808,
73,
(1973).
also,
S.Ct.
opinion,
“Although prosecution a is for a violation of a different provision of the statutes than a former or is on facts, based different it is barred such by former prosecu- tion under the following circumstances:
“(1) The former in prosecution resulted an or acquittal a conviction . and the subsequent prosecution is for:
“(i) offense which the defendant any could have been convicted on the first prosecution;
“(ii) offense any based on the or same conduct arising from the episode, same criminal if such offense was known 4. I believe 110 and should viewed as co-terminus. Comment, See Commonwealth & Section 110 of the Twins, Crimes (1973). Code: Fraternal U.PittX.Rev. If it otherwise, 110,1 were were held to be broader than § by believe that Supreme absent a decision Court to overrule Campana, by we would be bound its holding. time of the at the officer prosecuting the appropriate to the jurisdic- and was within of the first trial commencement ordered a separate the court court unless single tion offense; of such trial of the conduct, unless: “(iii) the same was formerly- of which the defendant the offense “(A) for which he and the offense acquitted or convicted of a fact not proof each requires subsequently prosecuted such defining the law each of the other and required to different prevent substantially is intended offenses evil; or or harm when the was not consummated the second offense
“(B) trial began.” former to be squarely the instant facts would blush, appear
At first noted the statute. As within 1.08 of the Model Penal the Comment the same ‘based facts’ upon
“which bars a second
of the section is
first, states that
purpose
as that of the
based
from: ‘successive prosecutions
defendants
protect
conduct, whether
so
the same
essentially
upon
an
jury
the risk of
hedge
unsympathetic
is to
doing
against
after he has
trial,
person
a “hold”
place
upon
the first
to harass
simply
by-
imprisonment,
been sentenced to
”
485 all but within prosecutions does not bar double those its only 478-480, 372 A.2d at 926-927. Pa.Super. terms.” added). There is scant difference between com- (Emphasis one of another mencing prosecution only disposition and then those filing separate complaints trying offense As this Court in Common- charges by seriatim. noted 134, 141-42, wealth v. 335 A.2d Pa.Super. (1975), as requirement such “[t]he expressed the courts of this Commonwealth is to avoid by harassment and of the citizen oppression through repeated conviction, efforts the authorities to obtain a and to societal interest against piecemeal litigation which protect drains resources. Commonwealth judicial professional Beam, v. Campana, supra; Commonwealth Pa.Super. [227 Further, 549 (1974)].” A.2d a close reading underscores the view that the evil proscribed “double prosecution” (which concedes is Majority present in the instant For case). the Court example, endorsed the of the language Model Penal Code: far the most “By efficient and received enthusiastically proposal for prevent- successive ing prosecutions is that advanced the Ameri- can Law Institute Model Penal Code (§ 107(2)): defend- ‘[A] ant shall not be subject separate trials for multiple offenses based on the same conduct or from the arising same criminal episode, if such offenses are known to the appropri- ate prosecuting officer at the time of the commencement of ’ ” the first trial. (Emphasis by Court). Quite I simply, view the clear of both proscription 110 to be double or successive prosecutions. §
Despite the import believes that Majority the Code and do not proscribe all successive or double prosecutions. The Court reaches that result aby strained of the reading Code. 110 speaks in terms of a “former prosecution” and a “subsequent prosecution.” A common sense reading, intent, consistent with the legislative see Model Penal 107(2) thereto, and the Comment would focus on the fact that the underlying criminal episode has been the subject however, two trials. The Majority, looks beyond 108(e) for a definition of “prosecu- *9 is when an “A commenced either indict-
tion”. ment is found or when issued, a warrant or summons is if such warrant or summons is executed without reasonable delay.” Section 108 does not define either “prosecu- [sic] tion”, “former”, Further, “subsequent.” the section es- limitations; tablishes the various statutes of subsection (e) has the limited when the statute identifying is tolled by commencement of prosecution. There is no indica- tion that the legislature or the American Law Institute, drafters of the Model Penal envisioned subsection (e) as a technical to the exception requirements Thus, 110. by a term from an borrowing section, unrelated aimed at an issue, unrelated legal it into incorporating 110, the concludes that Majority appellant has turned 110 “on its head.” I suggest Majority’s of the reading statute erroneous and that clearly appellant’s claim is squarely within the statutory prohibition.5
Therefore, I would reverse the judgment of sentence and order appellant discharged.
Superior Pennsylvania. Court of 23,
Submitted Feb. 1976.
Decided 1977. Reargument May Denied matter, application 5. As an administrative to traffic may violations be a burden. result is dictated Because the statutory provision supervisory and the Court’s rule in Campana (see Opinion), legislature Addendum would be free to change compulsory joinder. what I believe is the current law of