No. 2735 Philadelphia, 1982, Appeal from the Order of the Court of Common Pleas, Philadelphia County, Criminal Division, at No. 81-12-2709-2710 December 1981.
Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.
Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Brosky, Wieand and Hester, JJ. Wieand, J., filed a dissenting opinion.
[ 333 Pa. Super. Page 190]
This appeal is from the denial of appellant's motion to quash certain informations filed against him. Appellant contends that his prosecution on those charges is barred by his prior prosecution for a different offense arising out of the same criminal episode. 18 Pa.C.S. § 110. We find, based on the peculiar facts of this case, that no violation of that statutory prohibition would be created by his prosecution and, accordingly, affirm.
The relevant procedural history is as follows. Appellant was charged in informations numbered 2705, 2706 and 2707 with terroristic threats, robbery and simple assault, respectively, for events occurring on May 12, 1981. He was also charged with informations numbered 2708, 2709 and 2710 for conspiracy, theft and robbery, respectively, for events occurring in an unrelated incident on November 3, 1981. The Commonwealth moved to continue numbers 2709 and 2710 from the second incident and proceeded to trial on the remaining charges. It is the Commonwealth's contention that it was through a mistake that information number
[ 333 Pa. Super. Page 1912708]
, also from the second incident, was not included in its motion to continue. This explanation is supported by the fact that the Commonwealth presented no evidence at trial relating to information number 2708; but presented evidence relating only to the first incident. The trial court, quite properly, granted a demurrer to number 2708. At this point the Commonwealth concedes that double jeopardy bars a retrial on number 2708, but wants to proceed to trial on the remaining two counts arising out of the second incident. Appellant counters that such a trial is barred by 18 Pa.C.S. § 110. His motion to quash these two informations on these grounds was denied and is appealed from here.
Preliminarily, the interlocutory appealability of the order denying appellant's motion to quash informations 2709 and 2710 must be decided. The statute in question is not mandated by either the Federal or Pennsylvania constitutional protections against double jeopardy. However, it does statutorily extend the protection of those provisions. The policy considerations underlying the double jeopardy clauses are also the basic purposes of the statute before us. Because of this, the interlocutory appealability of double jeopardy claims has been applied to claims based on this statute. See Commonwealth v. Buechele, 298 Pa. Super. 418 at 421, 444 A.2d 1246 at 1247 (1982). In short, this appeal is properly before us.
The relevant statutory provision states:
When prosecution barred by former prosecution for different offense
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 ...