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COMMONWEALTH PENNSYLVANIA v. MICHAEL JAY ERISMAN (04/19/77)

decided: April 19, 1977.

COMMONWEALTH OF PENNSYLVANIA
v.
MICHAEL JAY ERISMAN, APPELLANT



Appeal from the Judgment of Sentence in the Court of Common Pleas, Criminal Div., Lancaster County, at No. 1564, 1974

COUNSEL

Richard P. Nuffort, Lancaster, for appellant.

Henry S. Kenderdine, Jr., Assistant District Attorney and D. Richard Eckman, District Attorney, Lancaster, submitted a brief for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Cercone, J., files a concurring opinion in which Price, J., joins. Hoffman, J., files a dissenting opinion.

Author: Spaeth

[ 247 Pa. Super. Page 477]

Appellant was convicted of operating a motor vehicle while under the influence of intoxicating liquor in violation of the Vehicle Code, Act of April 29, 1959, P.L. 58, § 1037, 75 P.S. § 1037. The lower court denied appellant's motion in arrest of judgment. Appellant argues that the motion should have been granted because prosecution was barred under the rule of compulsory joinder announced in Commonwealth v. Campana, 452 Pa. 233, 304 A.2d 432 (1973).

When Campana was remanded by the United States Supreme Court, 414 U.S. 808, 94 S.Ct. 73, 38 L.Ed.2d 44 (1973), our Supreme Court in an addendum per curiam opinion stated that "[t]he result this Court reached in Campana is entirely in harmony with section 110 of our Crimes Code, which became effective shortly after our decision and is now in effect." Commonwealth v. Campana, 455 Pa. 622, 626, 314 A.2d 854, 856 (1974), cert. denied, 417 U.S. 969, 94 S.Ct. 3172, 41 L.Ed.2d 1139 (1974). We shall therefore consider appellant's argument in the context of section 110 of the Crimes Code, Act of December 6, 1972, P.L. 1482, No. 334, § 1, effective June 6, 1973, 18 Pa.C.S. § 110.*fn*

[ 247 Pa. Super. Page 478]

Appellant was arrested on August 23 and charged with operating under the influence. On August 24 he waived preliminary hearing and was bound over to court. On October 2 the same officer who had made the August 23 arrest brought a summary charge of operating a motor vehicle after revocation of operating privilege. The Vehicle Code, supra, § 624(6), 75 P.S. § 624(6). On November 1 appellant pleaded guilty to this summary charge. On December 3 the grand jury indicted him on the charge of operating under the influence. Appellant's argument is that this prosecution was barred by his November 1 plea of guilty

[ 247 Pa. Super. Page 479]

    to the summary charge. This argument, however, stands section 110 of the Crimes Code on its head.

Section 110 provides in pertinent part:

Although a prosecution is for a violation of a different provision of the statutes [here, the Vehicle Code] than a former prosecution . . . it is barred by such former prosecution under the following circumstances:

(1) The former prosecution resulted in an acquittal or in a conviction . . . and the subsequent prosecution is for:

(i) . . .

(ii) any offense . . . arising from the same criminal ...


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