No. 498 January Term, 1978, Appeal from Order of the Superior Court of Pennsylvania, No. 293 October Term, 1977, affirming the Judgment of Sentence of the Court of Common Pleas of Lancaster County, Criminal Division, Pennsylvania, No. 2475 of 1974.
Thomas G. Klingensmith, Asst. Public Defender, Lancaster County, for appellant.
Joseph C. Madenspacher, Asst. Dist. Atty., Lancaster County, for appellee.
O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty and Kauffman, JJ.
At approximately 9:20 p. m. April 25, 1974, appellant Walter Stewart was stopped and frisked by two police officers on a public street in Lancaster. After finding a pistol on appellant's person and ten glassine packets containing what later proved to be heroin lying near him on the street, the police placed appellant under arrest.
At issue is whether the Commonwealth's prosecution of appellant in separate trials, over two months apart, on charges arising from this incident violated the mandate of 18 Pa.C.S. § 110 (effective June 6, 1973), Commonwealth v. Page 26} Campana [I], 452 Pa. 233, 304 A.2d 432 (1973), vacated and remanded, 414 U.S. 808, 94 S.Ct. 73, 38 L.Ed.2d 44 (1973), on remand, [ Campana II ], 455 Pa. 622, 314 A.2d 854 (1974), cert. denied, 417 U.S. 969, 94 S.Ct. 3172, 41 L.Ed.2d 1193 (1974), and Commonwealth v. Holmes, 480 Pa. 536, 391 A.2d 1015 (1978), that all charges arising from the same criminal episode and known to the prosecution at the time of trial be brought in a single trial. The Court of Common Pleas of Lancaster County and the Superior Court on appeal held that the indictment and trial of appellant on a charge of possession of heroin were not barred by his previous conviction for unlawful possession of a firearm. We disagree and preverse.*fn1
On the day of the arrest, the police filed a criminal complaint charging appellant with carrying a firearm on his person without a license, 18 Pa.C.S. § 6106(a). On May 30, 1974, after laboratory tests had established the contents of the packets, a complaint was filing charging appellant with possession of heroin, 35 P.S. § 780-113(a)(16). On June 5, 1974, appellant was indicted on the firearms charge. Two days later, appellant was given a preliminary arraignment on the heroin charge. A preliminary hearing was scheduled for August 1, but the record contains no indication that appellant ever received notice of that hearing until he was arrested pursuant to a bench warrant on September 16 for his failure to appear. Another preliminary hearing was then scheduled for November 4. Although notice of this hearing was mailed to appellant, he did not appear on that day. He claimed to have received the notice only after the hearing date, having moved temporarily to another address in Lancaster after a disagreement with his wife. Finally, on December 18, 1974, a preliminary hearing was held on the heroin charge, at which the Commonwealth established a prima facie case against appellant.
On January 24, 1975, the Commonwealth brought appellant to trial on the firearms charge. Appellant entered a plea of guilty to this charge, after which the court sentenced him to one year's probation and ordered him to pay a fine of two hundred dollars plus the cost of prosecution.
On February 6, following this conviction, the Commonwealth filed a petition for an extension of time for the commencement of appellant's trial on the heroin charge. On March 3, appellant was indicted for that offense, after which he immediately entered pleas of double jeopardy and autrefois convict and filed an application to suppress evidence. At a hearing on March 13, the court granted the Commonwealth's extension request over defense objection, and after another hearing on April 1, the court denied all of appellant's pretrial motions. Appellant was tried on the same day and convicted by a ...