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COMMONWEALTH v. HYND (09/23/74)

decided: September 23, 1974.

COMMONWEALTH, APPELLANT,
v.
HYND



Appeal from order of Court of Common Pleas of Bucks County, No. 129 of 1973, in case of Commonwealth of Pennsylvania v. James Hynd.

COUNSEL

G. Roger Markley, Assistant District Attorney, with him Stephen B. Harris, First Assistant District Attorney, and Kenneth G. Biehn, District Attorney, for Commonwealth, appellant.

Richard R. Fink, Assistant Public Defender, for appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Watkins, P. J.

Author: Watkins

[ 230 Pa. Super. Page 115]

This is an appeal from the order of the Court of Common Pleas of Bucks County, Criminal Division, by the Commonwealth after dismissal by the court below of an indictment charging the defendant-appellee, James Hynd, with operating a motor vehicle while under the influence of intoxicating beverages, Section 1037 of The Vehicle Code.

The defendant was arrested on January 1, 1973 and charged with operating while under the influence, Section 1037 of The Vehicle Code; speeding, Section 1008 B 8 of The Vehicle Code; inconsistent address, Section 612 of The Vehicle Code and disorderly conduct, Middletown Ordinance 505.10 I. At a summary hearing before a magistrate, the defendant after a hearing paid fines on the last three violations. The "Under the Influence" charge was returned for action by the Grand Jury.

[ 230 Pa. Super. Page 116]

On April 6, 1973, he was indicted by the Grand Jury. On September 13, 1973, the defendant pleaded double jeopardy since he had already paid the fines and all the charges arose from the same incident. On September 21, 1973, the court dismissed the indictment on the ground of double jeopardy citing Commonwealth v. Campana, 452 Pa. 233, 304 A.2d 432 (1973), decided on May 4, 1973. Campana, supra, involves the very same facts as the instant case and the Supreme Court of Pennsylvania held that the double jeopardy clauses of the United States Constitution and the Commonwealth's Rules of Civil Procedure, 18 P.S. 110 (June 6, 1973) were violated. Campana, supra, was appealed to the Supreme Court of the United States, which granted certiorari, and having vacated the judgments, directed the Supreme Court of Pennsylvania "to consider whether 'our judgments' were based on federal or state grounds or both."

In Commonwealth v. Campana, 455 Pa. 622, 314 A.2d 854, decided January 24, 1974, the Pennsylvania Supreme Court, in a Memorandum Opinion, seemed to hold that the decision was based on its supervisory powers and not on the United States Constitution's double jeopardy clause. The Commonwealth has appealed the instant case arguing that since Campana was based on the court's supervisory powers that it should not be retroactive. Since the original Campana decision was handed down on May 4, 1973 and this incident took place on January 1, 1973, the lower court has in effect granted retroactivity to Campana, supra. But since the lower court opinion was handed down in September, 1973, it was using the original Campana case to decide the question and under the original case it was correct since that case did seem to indicate that Campana, supra, was based on the double jeopardy provisions of the United States Constitution.

If Campana, supra, is based on double jeopardy grounds it should be applied retroactively. But if it

[ 230 Pa. Super. Page 117]

    was based merely on the supervisory powers of the Supreme Court of Pennsylvania, it should not be retroactive and the Commonwealth is correct in its contention. It appears that under the most recent Campana ...


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