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COMMONWEALTH v. FLEMING (03/31/75)

decided: March 31, 1975.

COMMONWEALTH
v.
FLEMING, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas of Delaware County, Sept. T., 1972, Nos. 841, 843, and 844, in case of Commonwealth of Pennsylvania v. Gerald Fleming.

COUNSEL

David E. Auerbach, Assistant Public Defender, and Kenneth P. Barrow, Public Defender, for appellant.

Vram Nedurian, Jr., and Ralph B. D'Iorio, Assistant District Attorneys, and Stephen J. McEwen, Jr., District Attorney, for Commonwealth, appellee.

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

Author: Watkins

[ 233 Pa. Super. Page 20]

This is an appeal from the judgment of sentence of the Court of Common Pleas, Criminal Division, of Delaware County, by the appellant-defendant, Gerald Fleming, after conviction by a jury of charges of assault with intent to ravish, indecent assault, assault and battery, indecent exposure and corrupting the morals of a minor. He was found not guilty of carrying a concealed deadly weapon. Post-conviction motions were denied.

The trial in question was the third trial of the defendant for charges arising out of an incident that occurred August 3, 1972. He was originally charged with robbery, larceny, receiving stolen goods, carrying a concealed deadly weapon, violation of the firearms act, pointing a deadly weapon, as well as the crimes for which he was tried that resulted in this appeal.

[ 233 Pa. Super. Page 21]

He came to trial first on March 13, 1973. Demurrers and/or directed verdicts were sustained and directed in regard to the charges of robbery, larceny, receiving stolen goods, firearms act violation and pointing a deadly weapon. A mistrial was declared on the remaining indictments when the jury was deadlocked for two days.

On June 11, 1973, a second jury trial was held on the remaining indictments before Judge Lewis A. Bloom. A demurrer was sustained to the charge of public indecency. The jury again was deadlocked on the remaining charges and a mistrial was declared on June 13, 1973.

Subsequent to the second trial a petition for habeas corpus was filed for the discharge of the defendant who was incarcerated as a result of his violation of parole for another unconnected crime. As pointed out by Judge Francis J. Catania the order dismissing the Writ of Habeas Corpus was made by Judge Robert F. Wright and no appeal was taken from this order so his complaint concerning the refusal of the Writ of Habeas Corpus is without merit.

The third trial was held before Judge Francis J. Catania and a jury. The same evidence was presented by the Commonwealth which resulted this time in a conviction of charges with intent to ravish, indecent assault, assault and battery, indecent exposure and corrupting the morals of a minor.

The principal thrust of the appellant's appeal is that he was subjected to double jeopardy in violation of his constitutional rights. He relies on Commonwealth v. Campana, 452 Pa. 233, 304 A.2d 432 (1973) as authority for his position. Commonwealth v. Campana, supra, held that multiple offenses growing out of "acts", "episodes" or "transactions" must be tried in one prosecution. Here, however, all charges growing out of one incident were prosecuted in one trial. Demurrers were ...


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