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COMMONWEALTH PENNSYLVANIA v. EDWARD E. STEWART (02/24/84)

filed: February 24, 1984.

COMMONWEALTH OF PENNSYLVANIA
v.
EDWARD E. STEWART, APPELLANT



No. 2706 Philadelphia, 1981, Appeal from Order of the Court of Common Pleas, Criminal Division, of Lycoming County, No. 81-10, 372.

COUNSEL

Peter T. Campana, Williamsport, for appellant.

Ellen Laura Cohen, Assistant District Attorney, Williamsport, for Commonwealth, appellee.

Wieand, McEwen and Montgomery, JJ. McEwen, J., filed a dissenting opinion.

Author: Wieand

[ 325 Pa. Super. Page 467]

Edward E. Stewart was arrested on the night of August 16, 1980 and charged with theft by receiving stolen property in connection with the taking of motor oil and tools from an auto shop earlier that evening. Following his arrest, police obtained a search warrant for his vehicle and conducted a search for the motor oil and mechanic's tools. During the search, which produced a case of motor oil and a box of tools, police also found luggage which contained drug paraphernalia and containers in which there appeared

[ 325 Pa. Super. Page 468]

    to be controlled substances. Police did not immediately seize the apparent drugs and drug paraphernalia, but on the following day a second search warrant was obtained, and the items were taken into custody.

Stewart was tried and acquitted of theft by receiving stolen property*fn1 on January 22, 1981. On that day, there still had been filed no complaint against him for possession of controlled substances. The substances seized from his vehicle on August 17, 1980 had been sent to the State Police Crime Lab for analysis on September 24, 1980, and an affirmative finding was reported to the Williamsport police on November 14, 1980. A criminal complaint alleging possession of controlled substances*fn2 was not filed until May 7, 1981. Stewart then moved to dismiss on grounds that the charge for possession of controlled substances had arisen from the same episode as the theft charge, and that prosecution, therefore, was barred by principles of double jeopardy and also by 18 Pa.C.S. § 110. The trial court denied the motion to dismiss, and Stewart appealed.*fn3 We affirm.

Appellant's prosecution for possession of controlled substances is not barred by principles of double jeopardy. "'The double jeopardy clause breaks down into three general rules which preclude a second trial or a second punishment for the same offense: (1) retrial for the same offense after acquittal; (2) retrial for the same offense after conviction; (3) multiple punishment for the same offense at one trial.'" Commonwealth v. Grazier, 481 Pa. 622, 630, 393 A.2d 335, 339 (1978), quoting Commonwealth v. Mills, 447 Pa. 163, 169, 286 A.2d 638, 641 (1971) (emphasis omitted).

[ 325 Pa. Super. Page 469]

Accord: Illinois v. Vitale, 447 U.S. 410, 415, 100 S.Ct. 2260, 2264, 65 L.Ed.2d 228, 235 (1980). Theft by receiving stolen property and possession of controlled substances clearly are not the same offense. The "same transaction" concept advanced by appellant has not been adopted by the Supreme Court of the United States. See: Robinson v. Neil, 409 U.S. 505, 93 S.Ct. 876, 35 L.Ed.2d 29 (1973) (Brennan, J., concurring); Grubb v. Oklahoma, 409 U.S. 1017, 93 S.Ct. 450, 34 L.Ed.2d 309 (1972) (Brennan, J., dissenting); Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970) (Brennan, Harlan, J.J., concurring). It was specifically rejected by this Court in Commonwealth v. Webster, 323 Pa. Super. 164, 470 A.2d 532 (1983).

The provisions of 18 Pa.C.S. § 110 require that all known charges based upon the same conduct or arising from the same criminal episode be consolidated for trial unless the court orders separate trials. Commonwealth v. Hude II, 500 Pa. 482, 490, 458 A.2d 177, 181 (1983); Commonwealth v. Webster, supra. This rule is "intended both to protect a person accused of crimes from governmental harrassment by forcing him to undergo successive trials for offenses stemming from the same event, and also, as a matter of judicial administration and economy, to assure finality without unduly burdening the judicial process by repetitious litigation." Commonwealth v. Holmes, 480 Pa. 536, 541, 391 A.2d 1015, 1017 (1978), quoting Commonwealth v. Tarver, 467 Pa. 401, 408, 357 A.2d 539, 542 (1976).

The crimes of theft by receiving stolen property and unlawful possession of controlled substances clearly are not the same criminal act. The law defining each of these offenses requires proof of facts not required by the other. The principal issue, therefore, is whether, under the circumstances of this case, the two alleged offenses were part of the same criminal episode.

"[I]n defining what acts constitute a single criminal episode, not only is the temporal sequence of events important, but also the logical relationship between the acts must be ...


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