filed: August 27, 1982.
COMMONWEALTH OF PENNSYLVANIA
GEORGE ROBERT HOLLIS, SR., APPELLANT (TWO CASES)
Nos. 297 & 1006 October Term, 1979, Appeals from the Order and Judgment of Sentence of the Court of Common Pleas of Montgomery County, Criminal Division, No. 4489-78.
Charles J. Weiss, Ambler, for appellant.
Ronald T. Williamson, Assistant District Attorney, Norristown, submitted a brief on behalf of Commonwealth, appellee.
Price, Cavanaugh and Watkins, JJ.
Author: Per Curiam
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The instant appeals*fn1 are from the order of the Court of Common Pleas of Montgomery County denying appellant's
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Omnibus Pre-Trial Motion to Quash Information and the judgment of sentence imposed following the denial of post-verdict motions on his conviction for driving while under the influence of alcohol. For the reasons that follow, we affirm the order denying appellant's motion to quash, but vacate the judgment of sentence and remand for proceedings consistent with this opinion.
Appellant, George Robert Hollis, Sr., was charged with the misdemeanor of driving while under the influence of alcohol*fn2 and the summary offense of fleeing or attempting to elude a police officer*fn3 following an incident in Whitemarsh Township, Montgomery County. A preliminary hearing was scheduled*fn4 and, on the appointed day, appellant's
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attorney met with the arresting officer and suggested that both charges against his client be dropped and that either the charge of public drunkenness*fn5 or disorderly conduct*fn6 be substituted. (N.T. 20). Although this particular suggestion was refused, an agreement was reached nonetheless. The arresting officer agreed to withdraw the summary charge of fleeing or attempting to elude a police officer. The district magistrate was advised that the summary charge was withdrawn and that the only charge thus pending against appellant was driving while under the influence. Appellant thereafter waived his right to a preliminary hearing on the drunken driving charge. The matter came before the court of common pleas and was tried before a judge sitting without a jury on February 6 and 7, 1979.
Prior to trial, appellant filed a motion to quash the information on the driving under the influence charge, claiming that his prosecution for drunk driving was barred on the basis of double jeopardy, Commonwealth v. Campana, 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), explained on remand, 455 Pa. 622, 314 A.2d 854 (1974), cert. denied, 417 U.S. 969, 94 S.Ct. 3172, 41 L.Ed.2d 1139 (1974), and/or section 110 of the Crimes Code, 18 Pa. C.S.A. § 110, since the "dismissal" of the summary offense was tantamount to an acquittal. The trial court denied the motion to quash and
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appellant appealed.*fn7 Despite receiving notice of the appeal, the trial judge proceeded with the trial and found appellant guilty of driving while under the influence of alcohol. Following the denial of post-verdict motions, appellant was sentenced to pay a fine of $350.00 and costs of prosecution. Thereafter, appellant filed a second appeal which was subsequently consolidated with his appeal from the denial of his motion to quash the information.
Regarding the denial of his motion to quash, appellant posits that, because
a "discharge" is equivalent to an "acquittal," the only issue herein is whether the summary offense filed against the defendant at the same time as the misdemeanor was "discharged" or "withdrawn." If "withdrawn," double jeopardy, sec. 110, Campana, etc., do not come into play. If "discharged," then defendant's pre-trial motion to quash the information should have been granted.
Brief for Appellant at 26. Consequently, appellant contends that the charge of fleeing or attempting to elude a police officer was discharged, the equivalent of an acquittal, thus precluding his prosecution for driving while under the influence of alcohol. This contention is ludicrous.*fn8
Section 110 of the Crimes Code, 18 Pa. C.S.A. § 110, embodies rules establishing when a prosecution is barred by
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an earlier prosecution for a different offense. That section provides, in pertinent part:
Although a prosecution is for a violation of a different provision of the statutes than a former prosecution or is based on different facts, it is barred by such former prosecution under the following circumstances:
(1) The former prosecution resulted in an acquittal or in a conviction as defined in section 109 of this title (relating to when prosecution barred by former prosecution for same offense) and the subsequent prosecution is for:
(i) any offense of which the defendant could have been convicted on the first prosecution;
(ii) any offense based on the same conduct or arising from the same criminal episode, if such offense was known to the appropriate prosecuting officer at the time of the commencement of the first trial and was within the jurisdiction of a single court unless the court ordered a separate trial of the charge of such offense; or
(iii) the same conduct, unless:
(A) the offense of which the defendant was formerly convicted or acquitted and the offense for which he is subsequently prosecuted each requires proof of a fact not required by the other and the law defining each of such offenses is intended to prevent a substantially different harm or evil; or
(B) the second offense was not consummated when the former trial began.
18 Pa. C.S.A. § 110(1)(i)-(iii) (emphasis added). The definition of "acquittal" set forth in section 109 of the Crimes Code includes a prosecution that results "in a finding of not guilty by the trier of fact or in a determination that there was insufficient evidence to warrant a conviction." 18 Pa. C.S.A. § 109(1).
Appellant strains logic to the extreme in contending that he was "acquitted" of fleeing or attempting to elude a police officer. A preliminary hearing was never held. Absolutely no evidence was presented. Indeed, the only conversation
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between the parties and the magistrate occurred when the arresting officer informed the magistrate that he had decided not to pursue the summary charge. At that point, appellant's attorney advised the magistrate that appellant waived the misdemeanor to court. This does not constitute "a finding of not guilty by the trier of fact" or "a determination that there was insufficient evidence to warrant a conviction."*fn9 The trial judge thus properly denied appellant's motion to quash the information.
Appellant also advances several arguments challenging the merits of his conviction for driving while under the influence of alcohol.*fn10 For purposes of this appeal, however,
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we need only address one such argument. Appellant contends that the trial judge erred in proceeding to trial after receiving notice that appellant had appealed to this court following the denial of his motion to quash. We agree.
We ruled in Weise v. Goldman, 229 Pa. Super. 187-8, 323 A.2d 31 (1974), that "When an appeal is taken to an appellate court, it is well-established that the jurisdiction of the lower court is removed and the court of first instance may not further proceed with a cause as long as the appeal is still pending."
Curcio v. Diluzio, 245 Pa. Superior Ct. 578, 580, 369 A.2d 778, 779 (1977). This common law rule has, with several exceptions not here relevant, been codified in the Pennsylvania Rules of Appellate Procedure, Pa. R.A.P. 1701(a).*fn11 See, e.g., Marlow v. Zoning Hearing Board of Haverford, 52 Pa. Commonwealth Ct. 224, 228, 415 A.2d 946, 947 (1980). Thus, although "the lower court may have properly determined the merits of [appellant's motion to quash], it should not have acted while an appeal was before this Court." Weise v. Goldman, 229 Pa. Superior Ct. 187, 189, 323 A.2d 31, 32 (1974). Since jurisdiction no longer existed in the trial court as of the time of trial, moreover, the trial was a nullity, and it is of no consequence that this court was able to consider the merits of both of appellant's appeals.
Accordingly, the order denying appellant's motion to quash is affirmed. Because the trial below was a nullity, however, the conviction cannot stand. The judgment of sentence, therefore, is vacated and the case remanded to the trial court for proceedings consistent with this opinion. Jurisdiction of this case is transferred to the Court of Common Pleas of Montgomery County.