No. 947 Philadelphia, 1981, Appeal from the Order of the Court of Common Pleas, Criminal Division, Montgomery County, at 575 (Misc) October Term, 1980.
Stuart F. Conston, Philadelphia, for appellant.
Joseph Hylan, Assistant District Attorney, Norristown, for Commonwealth, appellee.
Cercone, President Judge, and McEwen and Hoffman, JJ. McEwen, J. concurs in the result.
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Appellant, Joel C. Johnson, takes this appeal from his conviction on numerous traffic violations. Appellant's principal argument is that these convictions violate the Double Jeopardy Clause of the Fifth Amendment to the U.S. Constitution. We find appellant's position to have merit, and we reverse those convictions set forth more specifically below which were entered contra to this constitutional provision. However, regarding the remainder of appellant's convictions, we must remand for further hearings because the record does not contain all the relevant facts necessary for the disposition of those said convictions.
On September 26, 1979, appellant was charged with ten violations of the Vehicle Code*fn1 arising from his operation of a motor vehicle on that date. All of the offenses were said to have taken place during one uninterrupted episode lasting three minutes, from 12:39 a.m. to 12:42 a.m., on Route 100, between Colebrookdale, Berks County, passing through Douglasville Township, Montgomery County, and ending in Upper Pottsgrove, Montgomery County. Charges were filed against appellant in each municipality through which he passed. On October 2, 1979, appellant appeared at hearings before magistrates in two of the townships mentioned -- one in Montgomery County and one in Berks County -- and pleaded guilty. The record, unfortunately, does not, specify which of these two hearings was first in time, a relevant consideration for the double jeopardy question. In any event, on November 15, 1979, appellant appeared again without counsel before a third magistrate -- this one also being in Montgomery County -- and pleaded guilty to all charges then presented. In all, appellant was three times
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convicted of failing to wear protective headgear (75 Pa.C.S. § 3525); twice with speeding (75 Pa.C.S. § 3362); twice for refusing to stop (75 Pa.C.S. § 3733); twice for driving without lights (75 Pa.C.S. § 3734); and once for driving on the medial strip (75 Pa.C.S. § 3311). Appellant took no immediate appeal from these convictions.
Thereafter, on May 22, 1980, upon being notified of appellant's repeated convictions under sections 3733 and 3734 of the Vehicle Code, the Department of Transportation suspended appellant's operating privileges for five years. Appellant then retained counsel, who filed a petition with the Court of Common Pleas of Montgomery County for leave to withdraw his guilty pleas nunc pro tunc, arguing, inter alia, that appellant's double jeopardy rights were violated. The court denied this petition and appellant now appeals.*fn2
Appellant first argues that his rights under 18 Pa.C.S. § 110 (1973) were violated. In relevant part, section 110 provides:
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
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for same offense) and the subsequent prosecution is for:
(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 ...