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decided: September 27, 1976.


Appeal from the Judgment of Sentence imposed July 16, 1975, of the Court of Common Pleas, Criminal, of Luzerne County, at No. 2510, 1974. No. 1942 October Term, 1975.


John J. Thomas, Asst. Public Defender, Wilkes-Barre, for appellant.

John J. Gill, Jr., Asst. Dist. Atty., Wilkes-Barre, for appellee.

Watkins, President Judge, and Jacobs, Hoffman and Cercone, JJ.

Author: Jacobs

[ 242 Pa. Super. Page 504]

On October 28, 1974, appellant was stopped for speeding. When he was asked for his operator's license and registration he informed the state trooper that he did not have his wallet with him, and then gave the state trooper a false name and address. A citation for speeding was issued in the name the appellant had given, and the appellant was directed to produce his operator's license and registration within 48 hours. Three or four days after this incident, appellant went to a state police substation and gave the state trooper his correct name and address. At this time, he also revealed that his driver's license had been suspended. A new citation, issued in the appellant's correct name, charging the appellant with a summary offense for speeding, and a criminal complaint, charging the appellant with a misdemeanor for

[ 242 Pa. Super. Page 505]

"operating a motor vehicle driving under suspension,"*fn1 were filed with the district magistrate.*fn2

A preliminary hearing on the charge of "operating during suspension" was held before the district magistrate on December 12, 1974, at which time the Commonwealth established a prima facie case, and the appellant was held for the grand jury.*fn3 Both the speeding charge

[ 242 Pa. Super. Page 506]

    and the "operating" charge were before the district magistrate at the time of this hearing. See note 2 supra.*fn4

Under letter from the district magistrate dated December 16, 1974, the appellant was advised that there was "pending against" him a speeding violation "occurring on October 28, 1974," and that a fine plus costs must be paid within 10 days or a warrant would be issued for the appellant's arrest. The appellant paid the fine on December 26th, 1974,*fn5 thereby pleading guilty*fn6 to the summary offense of speeding.

On January 6, 1975 the grand jury returned an indictment charging the offense of "operating a motor vehicle during suspension." At the arraignment, on January 20, 1975, the appellant, represented by counsel, pled not guilty to the indictment.

Trial by judge without a jury commenced on February 13th, 1975. After the Commonwealth presented its evidence, appellant's counsel demurred to the evidence on the ground that "the double jeopardy clause requires the prosecutor to bring a single proceeding of all known charges against the defendant arising from a single criminal episode." N.T. at 6. The demurrer was overruled, noting an exception. Post-trial motions and briefs in

[ 242 Pa. Super. Page 507]

    support thereof were timely filed on the issue of double jeopardy, and were denied. The instant appeal followed.

The only issue on appeal is whether the appellant's prosecution and conviction for the offense of "operating a motor vehicle during suspension" was a violation of the statutory bar against subsequent prosecution as set forth in section 110 of the new Crimes Code,*fn7 to-wit, the subsequent prosecution for "operating a motor vehicle during suspension," an offense the appellant contends arose from the same criminal episode involving the speeding offense, was barred by the former prosecution for speeding. We affirm, holding that the appellant did not make a timely presentation of this defense to the court below, consequently, the appellant waived his right to claim "double jeopardy."*fn8

The rule of compulsory joinder, see note 8 supra, "was intended both to protect a person accused of crimes from governmental harassment by forcing him to undergo successive trials for offenses stemming from the same event, and also, as a matter of judicial administration and economy, to assure finality without unduly burdening the judicial process by repetitious litigation. The new approach was thus to serve both individual and societal interests." Commonwealth v. Tarver, Pa. , , 357 A.2d 539, 542 (1976) (filed May 12, 1976, J. 262) (emphasis added) (citations omitted). The rule is not inflexible and its protection may be waived. See generally Commonwealth v. Green, 232 Pa. Super. 134, 335 A.2d 493 (1975).

[ 242 Pa. Super. Page 508]

Instantly, the defense of "double jeopardy" was not properly before the lower court. The appellant pled not guilty to the indictment on the charge of "operating a motor vehicle during suspension." The defense was raised for the first time as a demurrer to the Commonwealth's evidence. See text supra. "Former jeopardy must be specially pleaded in the trial court,*fn9 and may not be raised under a plea of not guilty . . . ." Commonwealth ex rel. Wallace v. Burke, 169 Pa. Super. 633, 636, 84 A.2d 254, 255 (1951) (footnote added).*fn10

In Commonwealth v. Campana, 452 Pa. 233, 304 A.2d 432 (1973) our Supreme Court announced a rule of compulsory joinder, a rule designed to avoid a number of evils arising from the state's attempt to bring successive prosecutions for offenses arising out of the "same transaction." One such evil was the state's use of "trial run" prosecutions, id. at 343, 304 A.2d at 436, in which the state might be able to test the sufficiency of its evidence. To permit a defendant to raise the "double jeopardy" defense by way of a demurrer to the Commonwealth's evidence, gives the defendant "trial run" defenses. The defendant cannot sit back, put the Commonwealth to the time and expense of presenting its evidence, and, after

[ 242 Pa. Super. Page 509]

    assessing the sufficiency of the Commonwealth's evidence, raise the defense of "double jeopardy." The section 110 defense was not timely raised.*fn11

Judgment affirmed.

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