No. 463 April Term, 1979, Appeal from the Order of the Court of Common Pleas of Mercer County, No. 47 Criminal 1979, Criminal Division.
Carl M. Moses, Sharon, for appellant.
David B. Douds, Assistant District Attorney, Mercer, submitted a brief on behalf of Commonwealth, appellee.
Price, Hester, and Cavanaugh, JJ.
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Appellant appeals from the order of the court of common pleas denying his motion to quash the information on which he is charged. The sole question on appeal is whether the information brought by the Commonwealth violates appellant's right against being twice placed in jeopardy. For the
[ 278 Pa. Super. Page 105]
reasons stated herein, we affirm the order of the court of common pleas.
The pertinent facts are as follows. Upon returning on July 16, 1978, from a week-long vacation, the Kettering family of Sharon, Pennsylvania discovered that their apartment had been burglarized and various belongings removed. Among the items removed were a police radio scanner and a stereo console. A police investigation ensued, and on the basis of a statement made by Mark Porterfield which implicated appellant, appellant was arrested and charged at indictment No. 305 Criminal 1978, with the theft of the police scanner, said theft occurring between July 9 and July 16, 1978. However, on the morning on which trial was to commence, Mr. Porterfield, the chief Commonwealth witness, renounced his previous account and instead maintained that he and appellant participated in a different burglary of the Kettering residence which occurred on July 15, and entitled the taking of a stereo console. The parties stipulated that at least six hours transpired between the theft of the police scanner and the theft of the stereo. This was the first time the Commonwealth had knowledge that appellant participated in the theft of the Kettering's stereo. As a result of this turn of events, the Commonwealth requested dismissal of indictment No. 305. The trial court did not grant the dismissal, but instead entered a directed verdict in appellant's favor. The Commonwealth then filed the criminal complaint challenged herein, No. 47 Criminal 1979, which charged appellant with theft by unlawful taking, theft by receiving stolen property, and criminal conspiracy-all stemming from the removal of the stereo from the Kettering residence on July 15, 1978. Appellant filed a motion to quash the indictment on the grounds that his previous acquittal on indictment No. 305 prevented the Commonwealth from subsequently charging him with theft at the same premises. The trial court found that the theft of the police scanner and the theft of the stereo were distinct incidents which involved separate entries into the Kettering residence. The trial court concluded that the second complaint
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was not barred by double jeopardy considerations, and appellant's motion accordingly was denied.
On appeal from that order, appellant contends that the theft of the Kettering stereo was part of a continuous course of conduct or a connected series of occurrences of which the theft of the police scanner was but a part, and that the police had knowledge of appellant's involvement in the theft of the stereo at the time indictment No. 305 was filed. Appellant therefore concludes that the filing of the second criminal complaint is prohibited. We disagree.
In the case of Commonwealth v. Campana, 452 Pa. 233, 304 A.2d 432, vacated and remanded, 414 U.S. 808, 94 S.Ct. 73, 38 L.Ed.2d 44 (1973), on remand, 455 Pa. 622, 314 A.2d 845, cert. denied, 417 U.S. 969, 94 S.Ct. 3169, 41 L.Ed.2d 1139 (1974), our supreme court held that double jeopardy considerations require a prosecutor to bring, in a single proceeding, all known charges against a defendant arising from a "single criminal episode." Shortly after ...