*2 VOORT, JJ. VAN der SPAETH, Before BROSKY VOORT, Judge: VAN der with possession Bucks County in charged was indicted He was also to deliver.
cocaine with intent of Pennsylvania District Federal for the Eastern Court from All emanate charges cocaine. to distribute conspiring 7, on January occurred which episode the same criminal 1979. motion of a 10, 1979, pretrial dismissal following April
On appellant’s plea accepted Court to the Federal suppress, however, appel- a reservation conditioned, upon guilty, of his the denial to sentencing, after right, lant’s suppress.1 motion to pretrial a motion to dismiss 18, 1979, filed appellant April
On
of double
the grounds
on
County
in Bucks
the motion
dismissed
Bucks
Court
County
The
jeopardy.2
order to
Court.
appealed
has
appellant
dismiss and
1,
year
appellant
term on June
to a 3
sentenced
1. The Federal Court
1979,
Third Circuit.
appellant
to the
has filed an
his
yet
filed
of the time
not
been decided as
had
brief
our Court.
Dismiss,
the Commonwealth
argument
Motion to
At
on this
offenses, only
separate
one
may
two
that there
have been
contended
The Commonwealth
disposed of in the Federal Court.
of which was
filed a brief at the
pursue
has not
below and
this contention
did
level,
been aban-
this contention
and we assume that
doned.
The federal conviction has since been affirmed. United
Fels,
v.
A.2d
Commonwealth ex rel. Walker v. Banmil-
ler,
186 Pa.Super.
Appellant contends that the plea in the Federal Court proceedings sentencing amounts to a final adjudication of guilt, subject only to an appellate review of the legal question involved in appellant’s pretrial motion to suppress. Appellant argues that his legal posture in the Federal Court is the same following entry of the conditional as if he had been found jury the legal question involved in the pretrial motion still preserved for appellate review. There appears to be merit to this argument. note,
We further, that the procedure of condi- entering tional pleas of this general type been approved by Third Circuit Court of Appeals United Moskow, States v. 588 F.2d 887 Zudick, United States v. 523 F.2d (1975). 851
The trial judge pointed out in his opinion that “is now clear abundantly that the double jeopardy provisions of the Fifth Amendment of the United States are Constitution enforceable in prosecutions State by virtue of the Four- teenth Amendment (lower ...” court’s opinion, 2-3) pp. deleted], protecting accused “against [citations a second prosecution for the same offense after . acquittal, .. after conviction and against multiple punishments for the same Henderson, offense.” (1978). A.2d 1146 principle
The lower noted that has been court also incorporated by in the Crimes Code enactment which reads in as follows: pertinent part Pa.C.S. §
When constitutes an offense within the concur- conduct jurisdiction rent of this Commonwealth and of state, or such other prosecution any another in this subsequent prosecution is a bar to a circumstances: following Commonwealth under (1) or in a acquittal The first an prosecution 109[3] (relating of this title as defined Section prosecution to when barred former prosecution by same is based on offense) the same conduct unless:
(i) the offense of which the defendant was con- formerly victed or the offense for which he is subse- acquitted and each of a fact not quently prosecuted requires proof required the other and the law each of such by defining offenses intended to different prevent substantially evil; harm or prosecution prosecution 109. When barred former for the same offense prosecution provision When a is for a violation of the same upon prosecution, statutes and is based same facts as a former prosecution following such former circum- under stances: (1) acquittal. former resulted in an There *4 acquittal prosecution finding if the resulted in a of not trier of or in fact a determination that there was insufficient evidence finding guilty to warrant a conviction. A of of a lesser included offense, acquittal greater although offense anis inclusive subsequently conviction is set aside. 5jC ‡ ‡ :{! jfc if: (3) prosecution The former in a There is a resulted conviction. prosecution judgment if
conviction of conviction a vacated, guilty which has not been reversed or not been set aside which has a verdict of capable supporting judgment, and which is of or plea guilty accepted by the court. In the latter two failure cases to enter defendant. motion of the must be a reason other than a 236 terminated, The
(2)
prosecution was
after
the indict-
found,
was
ment
by
acquittal
by a final order or
for the defendant
....
The issue of joint
has been before Pennsylva-
nia courts on a
v.
Commonwealth
number
occasions. See
Mascaro,
420,
260 Pa.Super.
Order vacated and case remanded with instructions grant the Motion to Dismiss.
SPAETH, J., files a concurring opinion.
SPAETH, Judge, concurring:
I
agree
his
after
conditional
majority
had been
guilty
accepted by
court,
federal
was
in the same
as
position
if he had been convicted by
jury
and had
I
properly preserved issues for
review.
also agree with the result
in this
appellant’s
case because
Fels,
final. federal
is now
(3d
(lower
F.2d
Cir.)
court affirmed without opinion),
denied,
cert.
447 U.S.
100 S.Ct.
Thus, it is that an conviction say inaccurate must result in either an or a “conviction.” In- “acquittal” stead, the result cannot be known in advance. Accordingly, conviction, when an is taken from a prosecutor must he appellate wait and see what court does before can prose- know whether he with a may proceed subsequent cution. is pending, So as the and the long undisturbed, therefore remains subsequent prosecution conviction, if barred. If the court affirms the it appellate to warrant determines there was insufficient evidence conviction, will be forever If, however, or vacates barred. court reverses trial, subsequent the conviction for new and remands prosecution may proceed. is, course, statutory provision, our Pa.C.
Although case, I am confirmed my S.A. that controls this approach proper by belief that a “wait and see” *6 examination of the law in other hold states. To that a prior is forever barred convic- tion still on direct would be to appeal decidedly take view. of minority The editors American Law sum- Reports marize an Annotation devoted to this point by saying:
The authorities are as of plea divided to whether former conviction is available while an from the However, of judgment pending. conviction is this conflict is more than Even in apparent jurisdictions real. in which the is not available while an appeal pending is from conviction, of the judgment is not without defendant remedy, jurisdictions because these he move for a may continuance of the second trial to await disposition of from the of conviction. On the other hand, in some jurisdictions which the of former available of notwithstanding pendency conviction, from the of it seems that plea results in a only stay proceeding which the plea was made.
Annot: Conviction Which Appeal From as Bar Pending Offense, to Another Prosecution for Same A.L.R.2d (1958) (footnotes omitted). I believe “wait Finally, that a and see” approach repre- sents an appropriate balance between the defendant’s inter- est being tried twice for the same crime and the Commonwealth’s a prosecution interest some sover- Commonwealth, States, be eign, or a United sister state, proceed should to a that has point decision with- stood appellate Because federal scrutiny. appellant’s convic- tion has now withstood the scrutiny Court Appeals for the Third Circuit and the United States Supreme Court has further review, declined Common- wealth’s interest in this case has been vindicated.1 reading appellant’s 1. A careful brief shows that himself trying not claim that the from does Commonwealth should be barred him if his federal conviction set were aside. See Brief 6, 13, at