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COMMONWEALTH PENNSYLVANIA v. MALCOLM KYSOR (10/05/84)

filed: October 5, 1984.

COMMONWEALTH OF PENNSYLVANIA
v.
MALCOLM KYSOR, APPELLANT



No. 00074 PITTSBURGH, 1983, Appeal from the order entered January 11, 1983 in the Court of Common Pleas, Criminal Division, of Erie County, No. 1455 of 1982.

COUNSEL

Dennis G. Kuftic, Edinboro, for appellant.

Shad Connelly, Assistant District Attorney, Erie, for Commonwealth, appellee.

Brosky, Watkins and Hester, JJ.

Author: Hester

[ 334 Pa. Super. Page 91]

On May 26, 1981, the victim, Barney Fenton, and appellant, Malcolm Kysor, were imbibing at the Conneaut Shores Country Club in Conneaut, Ashtabula County, Ohio. The victim and appellant left together around midnight. Afterwards, the victim was not seen until his body was discovered in a wooded area in Erie County, Pennsylvania on July 13, 1982.

On June 13, 1981, appellant was arrested in Corry, Pennsylvania for driving while intoxicated and theft by receiving stolen property. He was driving the victim's 1979 Chevrolet Monte Carlo. Many months following the prosecution of

[ 334 Pa. Super. Page 92]

    these charges, the victim's body was discovered in Erie County. As a result, appellant was charged with criminal homicide.

Appellant filed a motion to quash the criminal information for homicide on grounds that it placed him in double jeopardy and violated § 110 of the Crimes Code. The motion was denied, and this appeal followed.

Appellant contends that sufficient evidence concerning homicide was available at the time prosecution for theft and drunk driving was instituted; therefore, the homicide prosecution violated § 110 of the Crimes Code and the double jeopardy clauses of the United States and Pennsylvania Constitutions. According to appellant, the following circumstantial evidence was known by investigating officers prior to the earlier criminal proceeding: 1) appellant was identified as the victim's companion at the Country Club; 2) he was arrested while driving the victim's automobile; 3) his explanations to officers of how he came upon the vehicle, that he borrowed it from his uncle and that he purchased it in Columbus, Ohio, were disproved; 4) the victim was last seen alive with appellant; and 5) the victim neither reported for work nor contacted relatives or friends following his evening at the country club with appellant.

A plurality of our Pennsylvania Supreme Court in Commonwealth v. Campana, 452 Pa. 233, 304 A.2d 432 (1973), vacated, Pennsylvania v. Campana, 414 U.S. 808, 94 S.Ct. 73, 38 L.Ed.2d 44 (1973), reinstated on remand, Commonwealth v. Campana, 455 Pa. 622, 314 A.2d 854 (1974), cert. den., Pennsylvania v. Campana, 417 U.S. 969, 94 S.Ct. 3172, 41 L.Ed.2d 1139 (1974), required the Commonwealth to prosecute the defendant on "all known charges" originating in a "single criminal episode". Commonwealth v. Campana, 452 Pa. at 253, 304 A.2d at 441. The Campana plurality adopted the definition of "episode" as set forth in the ABA Project on Minimum Standards for Criminal ...


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