No. 1063 PHILADELPHIA, 1982, Appeal from the Judgment of Sentence In the Court of Common Pleas, Criminal Division, of Delaware County, No. 2812-81.
Howard J. Gallagher, III, Assistant Public Defender, Media, for appellant.
Dennis C. McAndrews, Assistant District Attorney, Media, for Commonwealth, appellee.
Spaeth, President Judge, and Hester and Lipez, JJ. Spaeth, President Judge, concurs in the result.
[ 326 Pa. Super. Page 196]
On February 9, 1982, appellant was adjudged guilty of burglary in a non-jury trial by the Court of Common Pleas of Delaware County. Charges of criminal trespass, theft by unlawful taking, and criminal mischief merged into the aforesaid conviction.*fn1 Following the denial of post-verdict motions, appellant filed this appeal.
Three issues are raised herein: first, whether the trial court erred in denying appellant's motion to dismiss for double jeopardy; second, whether appellant's motion to dismiss under Rule 1100 was properly denied; and third, whether the trial court properly refused appellant's demurrer. After reviewing the record, we conclude that all the contentions are lacking in merit. Hence, we affirm.
The facts which led to the prosecution in this case are as follows. On May 11, 1981, at 11:39 p.m., police in Delaware County were notified that a flatbed truck had been stolen from Blenheim Motors, Inc. Approximately three and onehalf hours later, appellant was apprehended by Montgomery County police while he was operating said vehicle. The police discovered that appellant was also in possession of a stolen farm tractor which he was transporting on the flatbed truck. In addition to the above-cited Delaware County charges, appellant was also charged by the Montgomery authorities with two counts of theft by receiving stolen property, unauthorized use of a motor vehicle, and possession of a controlled substance. On October 19, 1981, in Montgomery County, appellant entered a plea of guilty to one count of receiving stolen property and possession of a controlled substance. The remaining counts were dismissed.
[ 326 Pa. Super. Page 197]
Herein, appellant contends that the Commonwealth purposely engaged in piecemeal litigation, thereby subjecting him to repeated prosecutions for offenses stemming from the same criminal episode. In light of the prohibition of double jeopardy, appellant argues that his Montgomery County conviction barred any further prosecution in Delaware County.
Appellant's argument is premised upon 18 Pa.C.S.A. § 110 which states in relevant part:
"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 . . . and the subsequent prosecution is for:
(i) any offense of which the defendant could have been convicted on the first prosecution;
(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 ...