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COMMONWEALTH PENNSYLVANIA v. JOHN WESLEY MUFFLEY (01/30/81)

decided: January 30, 1981.

COMMONWEALTH OF PENNSYLVANIA
v.
JOHN WESLEY MUFFLEY, APPELLANT



No. 91 January Term, 1979, Appeal from Order of the Superior Court at No. 2106 October Term, 1977, Affirming Judgment of the Court of Common Pleas of Lancaster County at No. 596 of 1977.

COUNSEL

R. S. Trigg, Lancaster, for appellant.

Richard A. Sheetz, Jr., Asst. Dist. Atty., Joseph C. Madenspacher, Lancaster, for appellee.

O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. Larsen, J., dissents.

Author: O'brien

[ 493 Pa. Page 33]

OPINION OF THE COURT

This interlocutory*fn1 pre-trial appeal is from a per curiam order of a three judge Superior Court panel, 261 Pa. Super. 414, 395 A.2d 972, which affirmed an order of the Court of Common Pleas, Lancaster County, denying appellant's motion to quash an information.

Appellant, John Wesley Muffley, was arrested on July 1, 1976 and charged with possession of marijuana. While appellant was being processed at the police station, he was required to empty his pockets. At this time, police found one hundred fifty microcaps of what the police believed to be LSD. A criminal complaint charging appellant with possession of marijuana was filed shortly after his arrest. As outside laboratory analysis was required for the LSD, no charges were filed at that time. When the lab analysis subsequently confirmed that the substance was, in fact, LSD, the police, on September 21, 1976, filed a complaint charging appellant with possession of LSD. Meanwhile, on September 1, 1976, an information had been filed charging appellant with possession of marijuana.

On June 9, 1977, a preliminary hearing was held on the LSD offense. On June 17, 1977, appellant pled guilty to

[ 493 Pa. Page 34]

    possessing marijuana. An information on the LSD charge was filed on July 18, 1977. Appellant immediately thereafter filed a motion to dismiss the information, alleging that prosecution on the LSD charge would violate § 110 of the Crimes Code.*fn2 The Court of Common Pleas, Lancaster County, denied appellant's motion. On appeal, the Superior Court affirmed. We granted appellant's petition for allowance of appeal and this appeal followed.

Appellant now again alleges that prosecution on the LSD charge is barred by § 110 of the Crimes Code. That section provides:

"Although a prosecution is for violation of a different provision of the statutes than the former prosecution . . ., it is barred by such former ...


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