Appeal from order of Superior Court, April T., 1970, No. 274, affirming judgment of sentence of Court of Common Pleas, Criminal Division, of Allegheny County, Feb. T., 1969, No. 50, in case of Commonwealth of Pennsylvania v. Robert E. Saunders, a/k/a John Robert Sanders, a/k/a John Robert Saunders.
John J. Dean, Assistant Public Defender, with him George H. Ross, Public Defender, for appellant.
Robert L. Campbell, Assistant District Attorney, with him Robert L. Eberhardt, Assistant District Attorney, for Commonwealth, appellee.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Roberts. Mr. Justice Pomeroy concurs in the result.
In Commonwealth v. Mills, 447 Pa. 163, 286 A.2d 638 (1971), this Court held that one convicted and sentenced in a federal court may not subsequently be convicted in a Pennsylvania state court for the same offense "unless it appears from the record that the interests of the Commonwealth of Pennsylvania and the jurisdiction which initially prosecuted and imposed punishment are substantially different." Id. at 171-72, 286 A.2d 642 (footnote omitted).*fn1 On this direct appeal
from appellant's 1970 conviction and sentence of armed robbery, following his conviction in federal court for the same offense, we are asked to determine whether Mills requires that appellant be discharged. We hold that it does.
On October 1, 1969, a jury in the United States District Court for the Western District of Pennsylvania found appellant guilty of the robbery of a federal savings and loan institution in Pittsburgh, and he was sentenced accordingly. Thereafter, on March 11, 1970, a judge of the Court of Common Pleas of Allegheny County sitting without a jury found appellant guilty of the same robbery. A concurrent prison sentence was imposed. The Superior Court affirmed the judgment of sentence per curiam without opinion,*fn2 and on November 30, 1971, one month before our decision in Mills, this Court granted appellant's petition for allowance of appeal.*fn3 We then remanded the case to the trial court for the filing and disposition of supplemental post-trial motions, and retained jurisdiction. The present appeal is from the trial court's January 9, 1974 denial of appellant's motion in arrest of judgment.
Here, as in Mills, the record shows that the interests of the Commonwealth were fully protected by the initial prosecution and conviction in federal court. The Commonwealth concedes as much. The Commonwealth contends, however, that Mills applies only to prosecutions initiated after December 31, 1971, the date Mills was decided. We cannot agree; the infirmity of the Commonwealth's argument is found in our post- Mills case law.
Subsequent to Mills, this Court unanimously reversed, in collateral proceedings, the judgments of sentence of three appellants whose prosecutions not only were commenced prior to our decision in Mills, but whose prosecutions also predated the trials of appellant Mills and Saunders, the present appellant. See Commonwealth v. Hall, 447 Pa. 572, 287 A.2d 441 (1972) (1966 prosecution; judgment of sentence reversed February 11, 1972); Commonwealth v. Pope, 447 Pa. 576, 287 A.2d 902 (1972) (1965 prosecution; judgment of sentence reversed March 20, 1972); Commonwealth v. Pugh, 447 Pa. 582, 288 A.2d 519 (1972) (1962 prosecution; judgment of sentence reversed March 20, 1972). Hall, Pope, and Pugh refute the Commonwealth's argument.*fn4
This Court having granted collateral relief in Hall, Pope, and Pugh to appellants whose prosecutions predated both our decision in Mills and the instant prosecution, it cannot now successfully be argued that appellant Saunders, who is here on direct appeal, is not entitled to the same relief. Cf. Bradley v. School Board, 416 U.S. 696, 94 S. ...