No. 982 April Term, 1978, Appeal from the Order of Judge Fred P. Anthony, Court of Common Pleas, Criminal Division, Erie County, Pennsylvania, at No. 106 of 1978.
John R. Wingerter, Erie, for appellant.
Shad Connelly, Assistant District Attorney, Erie, for appellee.
Spaeth, Van der Voort and Watkins, JJ. Spaeth, J., concurs in the result.
[ 272 Pa. Super. Page 314]
This is an appeal from the order of the Court of Common Pleas of Erie County, Criminal Division, by the defendant-appellant, Gary D. Hanlin, denying his application for pretrial relief.
Defendant was arrested on December 11, 1977, and charged with operating a motor vehicle while under the influence, (75 P.S. 3731),*fn1 a misdemeanor, failure to produce his driver's license (75 P.S. 1301),*fn2 a summary offense. All of these charges relate to a single incident which took place when the police found defendant mired in the snow with his vehicle and attempted to extricate him from his predicament. On January 20, 1978, a hearing was held on all of the
[ 272 Pa. Super. Page 315]
charges before a District Magistrate. Insofar as the misdemeanor (drunken driving) is concerned this "hearing" was a preliminary hearing and insofar as the summary charges are concerned the "hearing" constituted a trial. At the hearing, the Commonwealth was not represented by counsel. Defendant's attorney appeared with defendant and participated fully in the proceedings. The Commonwealth presented its case, after which the District Magistrate discharged defendant on the summary charges and bound him over for court on the misdemeanor. Defendant then filed his application for pre-trial relief in which he claimed defendant's rights under Commonwealth v. Campana, 455 Pa. 622, 314 A.2d 854 (1974) and Section 110 of the Crimes Code were violated. Defendant requested a discharge of the misdemeanor charge filed against him due to the alleged violations of the aforesaid rights. On April 11, 1978, the court below denied defendant's application. Defendant then took this appeal requesting that we dismiss the remaining charge against him.
The sole issue is whether Campana, supra, and/or Section 110 of Pennsylvania Crimes Code mandates a dismissal of the remaining charge filed against the defendant (operating under the influence, 75 P.S. 3731).*fn3
Defendant's claim is that the Supreme Court's decisions in Commonwealth v. Campana, 452 Pa. 233, 304 A.2d 432 (1973) (Campana I) and Commonwealth v. Campana, 455 Pa. 622, 314 A.2d 854 (1974) (Campana II) mandate that all charges resulting from the same criminal episode be brought in one criminal proceeding and that since the District Magistrate, in effect, bifurcated the charges in the instant case by discharging the summaries filed against defendant and binding the misdemeanor over to the court of common pleas that the mandates of Campana I and Campana II were violated. The mandates of the Campana cases are anything but clear. In Campana I, the Court appeared to hold that the defendant's federal and state double jeopardy protection had been violated when he was tried separately on different charges
[ 272 Pa. Super. Page 316]
which arose from the same criminal episode. After the Commonwealth's appeal to the United States Supreme Court in Pennsylvania v. Campana, 417 U.S. 969, 94 S.Ct. 3172, 41 L.Ed.2d 1131 (1974) resulted in a remand order in which the U.S. Supreme Court remanded the case, the Pennsylvania Supreme Court rendered its decision in Campana II which appeared to hold that the court's decision was based upon its supervisory powers and on Section 110 of Pennsylvania Crimes Code. Campana II was a Per Curiam Addendum Opinion in which one Justice concurred and from which another Justice dissented. In Campana II, the Court stated that its Campana I holding was based upon its supervisory powers pursuant to Article V, § 10 of the Pennsylvania Constitution. However, the court went on to state that " Campana " is entirely in harmony with Section 110 of the Pennsylvania Crimes Code, which became effective shortly after ...