No. 706 January Term, 1977, Appeal from Order of the Court of Common Pleas, Criminal, of Philadelphia, at No. 1047 January Term, 1977.
A. Benjamin Johnson, Jr., Philadelphia, for appellant.
Edward G. Rendell, Dist. Atty., Steven H. Goldblatt, Deputy Dist. Atty. for Law, Robert B. Lawler, Chief, Appeals Div., Asst. Dist. Atty., Glen S. Gitomer, Philadelphia, for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ. Manderino, J., files a concurring opinion. Pomeroy and Nix, JJ., concur in the result.
Appellant, Gerald T. Washington, was convicted on October 26, 1976, of aggravated assault and possessing instruments of crime for the February 23, 1976 shooting of Robert McFayden. Post-verdict motions were denied and appellant was sentenced to consecutive prison terms of five to ten years and two and one-half to five years, respectively.
On January 4, 1977, Robert McFayden died and appellant was charged with murder. On March 21, 1977, he filed a motion to quash the information, alleging that the murder trial would violate his right against double jeopardy. The motion was denied by the court below and this appeal followed.*fn1
Appellant claims that the Commonwealth should be barred from proceeding on the murder charge because of the double jeopardy guarantees as set forth in Commonwealth v. Campana, 452 Pa. 233, 304 A.2d 432, vacated, 414 U.S. 808, 94 S.Ct. 73, 38 L.Ed.2d 44 (1973), reinstated on remand, 455 Pa. 622, 314 A.2d 854, cert. denied, 417 U.S. 969, 94 S.Ct. 3172, 41 L.Ed.2d 1139 (1974). We disagree.
In Campana, we held that all charges arising from the same criminal episode must be tried at a single trial. In
reaching that decision, we were guided by the American Law Institute Model Penal Code (§ 1.07(2)) (proposed draft, 1962), which states:
". . . [A] defendant shall not be subject to separate trials for multiple offenses based on the same conduct or arising from the same criminal episode, if such offenses are known to the appropriate prosecuting officer at the time ...