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COMMONWEALTH v. SPEELMAN (06/24/75)

decided: June 24, 1975.

COMMONWEALTH
v.
SPEELMAN, APPELLANT



Appeal from judgments of sentence of Court of Common Pleas of Adams County, Feb. T., 1973, Nos. 70 and 121, and Oct. T., 1973, No. 23, in case of Commonwealth of Pennsylvania v. Raymond Wayne Speelman.

COUNSEL

Robert W. Geigley, for appellant.

Oscar F. Spicer, District Attorney, for Commonwealth, appellee.

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

Author: Price

[ 235 Pa. Super. Page 111]

The appellant, Raymond Wayne Speelman, has brought this appeal from judgments entered following two separate trials. The appeal from No. 23 October Term, 1973, follows appellant's conviction of driving while under the influence of intoxicating liquor.*fn1 This charge was not tried at the same time, nor did it result from the same set of facts as the appeal from Nos. 70 and 121 February Term, 1973. Appellant was charged with driving while under the influence in August of 1973, approximately one year after the accident occurred which gave rise to the other indictments. The only issue raised concerning the drunken driving conviction is the severity of the sentence. However, the sentence of 1 1/2 to 3 years imprisonment, to run concurrently with sentence imposed at Nos. 70 and 121 February Term, 1973, is within the statutory maximum provided in The Vehicle Code. Therefore, it is affirmed.

The appeal from judgments entered at Nos. 70 and 121, February Term, 1973, first raises the question of whether the double jeopardy provision of the United States Constitution requires this court to vacate appellant's convictions. For the reasons which follow, we hold that it does not.

The facts are that appellant was involved in a head-on collision on September 23, 1972. As a result of the accident, three victims died; two immediately after the accident and the third on November 18, 1972. A complaint charging appellant with two counts of involuntary manslaughter*fn2 and with the summary offense of failing to yield one-half of the right of way to an approaching

[ 235 Pa. Super. Page 112]

    vehicle,*fn3 was filed on September 28, 1972. A preliminary hearing on both the indictable manslaughter charges and the summary offense was held by a district justice on November 7, 1972. Appellant was found guilty of the summary offense and bound over for the grand jury on the manslaughter charges.

Less than two weeks after the preliminary hearing, on November 18, 1972, the third victim died. Subsequently, on November 24, 1972, a third charge of involuntary manslaughter was filed against appellant, who waived the preliminary hearing. The grand jury returned true bills on all three counts of involuntary manslaughter, the charges were consolidated, and trial began on January 22, 1973. Appellant also appealed his summary conviction under Pa.R.Crim.P. 67(e), and it was heard by the trial judge in a de novo proceeding after the jury retired. The jury convicted appellant of three counts of involuntary manslaughter and the lower court found him guilty of the summary offense.

Post-trial motions for new trial and in arrest of judgment were filed and argued. Before the court disposed of the motions, however, the Pennsylvania Supreme Court decided Commonwealth v. Campana, 452 Pa. 233, 304 A.2d 432 (1973). Reargument was then permitted on the issue of double jeopardy. On August 17, 1973, the court below held that Campana did not apply to the charge arising from the November 18, 1972, death. Decision was deferred as to the other charges, pending United States Supreme Court review of Campana. After that court remanded and our Supreme Court decided that Campana was based on its supervisory powers, the lower court determined ...


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