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decided: April 13, 1978.


No. 92 March Term, 1977, Appeal From the Judgment of Sentence dated February 24, 1976, Court of Common Pleas, Criminal Action, No. 68 of 1975, of the 39th Judicial District of Pennsylvania, Fulton County Branch.


James M. Schall, Public Defender, McConnellsburg, for appellant.

G. D. Wilt, District Attorney, McConnellsburg, for Commonwealth, appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Jacobs, President Judge, and Spaeth, J., concur in the result. Watkins, former President Judge, did not participate in the consideration or decision of this case.

Author: Cercone

[ 253 Pa. Super. Page 41]

Appellant was convicted by a jury of two counts of simple assault, one count of resisting arrest and one count of operating a motor vehicle while under the influence of intoxicants. Post-verdict motions were denied and this appeal followed.

On July 3, 1975 about 10:00 P.M., Officers Frank Killinger and Glenn Moffat of the McConnellsburg Police Department, observed the appellant operating a vehicle erratically. After following appellant's vehicle for a short distance, the two officers stopped appellant and requested him to walk over to their police cruiser. They noticed he staggered and stammered and smelled of alcohol, and they observed other manifestations of being under the influence of intoxicants. They then placed appellant in their police cruiser and proceeded to the police station. In route to their destination, appellant struck Officer Killinger and fled from the police cruiser which had been brought to a stop after Officer Killinger had been hit. Outside the car, appellant struggled with the officers and there struck Officer Moffat. Thereafter, appellant was subdued and placed back in the police cruiser, without handcuffs, and taken to the state police barracks in McConnellsburg where he was given Miranda warnings and requested to take a breathalizer test, which he refused.

[ 253 Pa. Super. Page 42]

The officers tried to locate a district justice of the peace in order to hold a preliminary arraignment, but apparently due to the lateness of the hour and the approach of the 4th of July holiday, they were not able to arrange a preliminary arraignment. They then placed appellant in the Fulton County jail, until July 5 when they removed him for arraignment before the district magistrate in Warfordsburg, Pa., on the assault charges and resisting arrest. On July 8, 1975, the drunken driving charge was filed against appellant before a justice of the peace in McConnellsburg, Pa. On this same date, July 8, 1975, appellant applied for the appointment of counsel. Counsel was appointed for appellant on July 15, 1975. On July 23 and 29, 1975, preliminary hearings before the respective magistrates were conducted. The charges were referred to court and separate indictments were found (however, the cases were consolidated for trial). Prior to the return of the indictments, appellant filed a motion to quash the complaint and transcript, raising the following three procedural issues, which along with his claim of insufficiency of the evidence, were made the subject of the instant appeal.

First, appellant complains of a violation of Rule 131(b) of the Pa.Rules of Criminal Procedure. Pa.R.Crim.P. 131(b) provides, "when more than one offense is alleged to have been committed by one person arising from the same incident, the issuing authority shall accept only one complaint, and shall docket the matter as a single case." (Emphasis added.) Appellant concedes that neither magistrate violated Rule 131(b) in that neither magistrate was aware of the charges having been filed before another magistrate and, therefore, could not have been held responsible for failure to docket the matters as a single case. Nevertheless, the appellant argues that since the prosecuting officers were aware of all the charges at the time they filed the first complaint, they should have included all offenses in that single complaint, citing Commonwealth v. Campana, 452 Pa. 233, 304 A.2d 432 (1973). Appellant argues that the rationale of Campana, which forbids subjecting a defendant to a

[ 253 Pa. Super. Page 43]

    multitude of trials, also extends to preventing multiple preliminary hearings.

We hold that the trial judge was not in error in denying appellant's alleged violation of Rule 131(b). This rule is limited and specifically aimed at preventing misconduct by "issuing authorities," making no reference whatsoever to police conduct. It is conceded that neither magistrate knew of the charges filed before the other and, accordingly, both filings were proper. Neither magistrate violated Rule 131(b) because neither of them had an opportunity to consolidate the offenses into a single case. Moreover, the case of Commonwealth v. Campana, supra, holds only that all charges resulting from a single criminal episode must be consolidated at one trial. Furthermore, in Commonwealth v. Smith, 232 Pa. Super. 546, 549, 334 A.2d 741 (1975), this court construed Campana to bar only successive trials, not successive preliminary proceedings. It is ...

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