Appeal from judgment of sentence of Court of Common Pleas of Lehigh County, No. 105 of 1974, in case of Commonwealth of Pennsylvania v. Frank Peluso.
Thomas F. Traud, Jr., Assistant Public Defender, for appellant.
Richard J. Makoul, Assistant District Attorney, and George J. Joseph, District Attorney, for Commonwealth, appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Jacobs, J. Dissenting Opinion by Hoffman, J. Cercone and Spaeth, JJ., join in this dissenting opinion.
[ 240 Pa. Super. Page 333]
On January 4, 1972 the home of Ray G. Snyder was burglarized. Seven rifles were taken. In their investigation, the police received information that led them to believe that appellant had in his possession at least one of the stolen rifles, a Weatherby. A search warrant was obtained but the search failed to uncover any of the rifles. Nevertheless, appellant was still indicted for receiving on January 27, 1972 "one model 300 weatherbee [sic] rifle." At trial a demurrer was sustained on that charge because the Commonwealth failed to prove that appellant knew the Weatherby was stolen. An appeal taken by the Commonwealth was withdrawn. Shortly thereafter, appellant's former wife, a divorce having been obtained following the first indictment, brought to the police several rifles that her mother had found. Two .22 caliber rifles were identified as having
[ 240 Pa. Super. Page 334]
been stolen from the same residence as the Weatherby. Appellant was then indicted for receiving on January 27, 1972, the two stolen .22 caliber rifles. At the second trial appellant's former wife testified that appellant received all the rifles at the same time on January 27, 1972, and that appellant had stated in her presence that he knew the rifles were stolen. Appellant was found guilty at the second trial. This appeal after conviction on the second indictment followed.
On appeal, several issues are raised. First, appellant raises the defense of double jeopardy as a ground for reversal. It would appear that an argument for collateral estoppel would be appropriate under the facts of this case. However, a review of appellant's brief (no oral argument was made in this case) and the opinion of the lower court convinces us that appellant failed to raise the argument of collateral estoppel before our Court and before the lower court. Instead of arguing collateral estoppel, appellant's argument in support of double jeopardy was based on Commonwealth v. Campana, 452 Pa. 233, 304 A.2d 432 (1973), vacated and remanded, Pennsylvania v. Campana, 414 U.S. 808 (1973), addendum opinion, Commonwealth v. Campana, 455 Pa. 622, 314 A.2d 854, cert. denied, 417 U.S. 969 (1974), as well as §§ 109 and 110 of the Crimes Code.*fn1 Therefore, we initially hold that the argument of collateral estoppel is not before us. Commonwealth v. Mitchell, 460 Pa. 665, 334 A.2d 285 (1975).
Even if the argument of collateral estoppel was properly raised, we doubt its application to the facts of the present case. Collateral estoppel "means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit." Ashe v. Swenson, 397 U.S. 436, 443 (1971).
[ 240 Pa. Super. Page 335]
However, the facts presented at the first trial connected appellant only with receiving the stolen Weatherby on January 27, 1972. The issue of ultimate fact determined at that trial had no reference to the two other rifles appellant was later accused of receiving. Although the second trial demonstrates that appellant received all three rifles at the same time, that evidence was not part of the first trial. It is also true that before the first trial the police suspected that appellant had in his possession other stolen rifles. However, we cannot conclude that the determination of ultimate fact made at the first trial regarding the stolen Weatherby included a finding as to the rifles appellant was not accused of receiving and of which no evidence was there presented.
We will turn next to the argument contained in appellant's brief. At first it must be recognized that §§ 109 and 110 of the Crimes Code are not applicable to the present case. The Crimes Code "does not apply to offenses committed prior to the effective date of this act and prosecutions for such offenses shall be governed by the prior law . . . ." Act of December 6, 1972, P.L. 1482, No. 334, § 2.
Although the offense in the present case took place before the effective date of the Crimes Code, the second trial occurred following the addendum opinion of the Pennsylvania Supreme Court in Commonwealth v. Campana, 455 Pa. 622, 314 A.2d 854 (1974). There, the Pennsylvania Supreme Court stated: "The result this Court reached in Campana [first opinion] is entirely in harmony with section 110 of our Crimes Code, which became effective shortly after our decision." Id. at 626, 314 A.2d at 856. Thus, the protections set forth in Campana apply to the present case. Campana specifically prohibits the reprosecution of a defendant for "any offense based on the same conduct or arising from the ...