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COMMONWEALTH PENNSYLVANIA v. ROBERT BETHEL (02/16/82)

February 16, 1982

COMMONWEALTH OF PENNSYLVANIA
v.
ROBERT BETHEL, APPELLANT



No. 1913 PHILADELPHIA, 1980, Appeal from an Order of the Court of Common Pleas, Civil Division, of Chester County, No. 279 March Term, 1980

COUNSEL

Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.

Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Spaeth, Popovich and Montgomery, JJ. Spaeth, J., files a concurring statement.

Author: Per Curiam

[ 295 Pa. Super. Page 314]

Appellant, Robert Bethel, filed this interlocutory appeal contending that the lower court erred when it refused to dismiss the charges against him on double jeopardy grounds.*fn1 We disagree and affirm the order of the lower court.

At 2:00 a. m. on May 6, 1980, Appellant and two other men entered the home of Sylvester Chester, brandishing a shotgun. They tied up Chester and the other residents of the house and robbed Chester. Appellant then asked Chester about a man named Wayne. Appellant struck Chester in the mouth with a gun and another man was somehow shot. At this point, the men asked for someone named Leo, whom they were trying to find. Appellant and one man then left the house with Chester and drove to a house at 1932 60th Street, the home of Gwendolyn Wright. They arrived around 4:00 a. m. but Wright would not let them in. They returned around 5:30 a. m. and again were refused admittance. Around 7:00 a. m. they returned to Wright's home, breaking in through a window. Wright called the police but the men left before they arrived. Appellant was arrested around 10:00 a. m. when he returned to Wright's house alone. Two days later, Appellant was arrested for the crimes committed in Chester's home.

All charges were consolidated for the preliminary hearing. Sometime afterwards, however, Bills No. 1916-1925 May Term, 1980 (committed in Chester's home) were listed for trial separately from Informations No. 2086-2090 May

[ 295 Pa. Super. Page 315]

Term, 1980 (committed in Wright's home).*fn2 On September 23, and 24, 1980, Appellant was convicted before the Honorable Marvin Halbert on Bills No. 2088, 2090, and 2091. He was found not guilty on Bills 2086, 2087, 2089 and 2092. Appellant then filed a Motion to Dismiss Bills No. 1916-1925 on the ground of double jeopardy. Following a hearing before the Honorable Stanley Kubacki, the motion was granted as to the kidnapping charge at No. 1925 May Term, 1980, but denied as to the other charges. It is from this order that the instant appeal arises.

Appellant first contends that all charges arose from the same criminal episode and thus his motion should have been granted under the principles set forth in Commonwealth v. Campana, 452 Pa. 233, 304 A.2d 432 (1973) and the codification of those principles in 18 Pa.C.S. ยง 110. In order to be granted relief on this basis, Appellant must prove that the two incidents arose from the same transaction. Commonwealth v. Shelhorse, 252 Pa. Super.Ct. 475, 381 A.2d 1305 (1977). Two separate offenses may constitute the same criminal episode if one offense is a necessary step in the accomplishment of a given criminal objective or if additional offenses occur because of an attempt to secure the benefit of a previous offense or conceal its commission. Commonwealth v. Edwards, 264 Pa. Super.Ct. 223, 399 A.2d 747 (1979).

Appellant argues that all of the above events had but one criminal objective -- to find the man named Leo. This theory is not borne ...


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