No. 80-3-821, Appeal from the Order of the Superior Court dated May 9, 1980, No. 448 October Term, 1979, Affirming the Order Entered February 16, 1979, by the Lehigh County Court of Common Pleas, Nos. 1263, 1264, 1268, 1271, 1274, 1275, 1276 and 1279 of 1975, Criminal Division.
Thomas F. Traud, Jr., Sp. Asst. Public Defender, Allentown, for appellant.
Jerry A. Snyder, Asst. Dist. Atty., Allentown, for appellee.
Roberts, C.j., Nix, Larsen, Flaherty, McDermott, Hutchinson and Zappala, JJ. McDermott, J., concurred in the result.
This is an appeal by allowance from the order of the Superior Court*fn1 affirming the order of the Court of Common Pleas of Lehigh County which dismissed appellant's motion to quash an indictment on the grounds that the scheduled trial would violate the protections afforded by the double jeopardy clauses of both the federal*fn2 and state constitutions*fn3 under the theory of collateral estoppel, and section 110 of the Crimes Code, 18 Pa.C.S.A. § 110. The complexity of the instant appeal requires a full recitation of both the facts and procedural history.
Appellant, Manfred Hude, was arrested in March, 1975 and charged with twenty (20) counts of possession and delivery of marijuana and one count of corruption of a minor. The charges arose out of a series of sales to the same individual which were alleged to have occurred on twenty (20) separate days between October, 1974 and January, 1975. Three of the possession and delivery charges were dismissed following the preliminary hearing. Prior to trial, in a proceeding in the nature of habeas corpus contesting the committing magistrate's prima facie determination, six (6) other counts were dismissed by stipulation of counsel.
In June, 1975 the Commonwealth brought Hude to trial on three (3) of the remaining eleven (11) possession and delivery charges and on the corruption charge. Hude was acquitted of these charges. The Commonwealth's evidence, rejected by the jury, consisted solely of the testimony of one Barry Hagemus, a self-confessed drug seller, who asserted that on at least three occasions between the end of October,
and the middle of January, 1975, Hude had sold him varying amounts of marijuana.
Specifically, Hagemus testified at the first trial that at the end of October, 1974, while seeking a new source of supply of marijuana to sell to students at Allen High School in Allentown, Pennsylvania, he was introduced to Hude. Hagemus sought to purchase six (6) pounds of marijuana and testified that the price allegedly quoted by Hude was $135.00 per pound. A meeting to consummate the transaction was set for the next night at 7:00 p.m. at an establishment called Dempsey's Restaurant. Hagemus testified that he met Hude the next night at Dempsey's Restaurant and drove with Hude in a small white, 2-door car to another location in Allentown.
Once at this second location, Hude allegedly left the car, went around the corner into an unknown house and returned approximately one hour later with six pounds of marijuana. Hagemus had already paid Hude for this marijuana from money he had received from prospective buyers. Hude then drove Hagemus back to Dempsey's. Prior to leaving, Hagemus requested another meeting in four days to purchase an additional four to six pounds of marijuana. The second meeting occurred approximately four days later, on November 2, 1974, as prearranged, at 7:00 p.m. again at Dempsey's. Hagemus gave Hude the money ($135.00 per pound) and Hude left on his own and returned to Dempsey's approximately one hour later with the marijuana. Hagemus then requested an additional six pounds of marijuana at the same price, at the same location and at the same time to be delivered on November 7, 1974. This third transaction was also consummated as prearranged. The defense consisted of a complete denial of the existence of any association between Hude and Hagemus.
Subsequent to the acquittal of the above charges, the Commonwealth brought Hude to trial on the remaining eight (8) possession and delivery charges. The primary testimony presented at this second trial was again that of Hagemus. Hagemus' testimony covered the alleged transactions
consummated between the end of November, 1974 and the middle of January, 1975. The dates of the transactions were different and the quantities purchased varied slightly. The remainder of Hagemus' testimony reflected that these transactions were made at Dempsey's Diner, at 7:00 p.m. at intervals prearranged by Hagemus and the marijuana was priced at $135.00 per pound. Thus, the testimony of Hagemus in both the first trial and the instant trial reflected an identical pattern of behavior. Moreover, no additional corroborative testimony was presented in the second trial which would have provided a logical basis for concluding a dissimilarity of the issues before the fact finders in the two proceedings. Hude was convicted of seven (7) of the eight (8) counts of possession and delivery.
Between the first and second drug trials, the Commonwealth charged Hude with perjury based on certain statements he made at the first trial wherein Hude denied being a drug seller. At the perjury trial, subsequent to the second drug trial, the Commonwealth again called Barry Hagemus who testified to the alleged purchases of marijuana from Hude. The trial judge, sitting without a jury, found Hude guilty of perjury.
In all three trials the Commonwealth relied upon the credibility of Hagemus to support the charges. In each instance, Hude insisted that he had no involvement with Hagemus. Thus, as in the case of both drug trials, the issue in dispute in ...