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.
The instant appeals*fn1 are from the order of the Court of Common Pleas of Montgomery County denying appellant's
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
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 The district magistrate was advised that the summary charge was withdrawn and that the only charge thus pending against appellant was driving while under the influence.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. § ...