No. 465 Philadelphia, 1984, Appeal from the Order entered January 25, 1984, Court of Common Pleas, Philadelphia County, Criminal Division at Nos. M.C. 83-03-0670 and C.P. Misc. 83-915092.
John Packel, Chief, Appeals, Assistant Public Defender, Philadelphia, for appellant.
Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Olszewski, Del Sole and Johnson, JJ. Olszewski, J., files a dissenting opinion.
[ 342 Pa. Super. Page 38]
John Kaminski appeals from the denial of a pre-trial motion to dismiss, on double jeopardy grounds, charges of conspiracy, delivery of a controlled substance and knowing and intentional possession of a controlled substance.*fn1
On March 8, 1983, Appellant sold one ounce of cocaine to a Philadelphia undercover police officer for $200 down and
[ 342 Pa. Super. Page 39]
$1,900 dollars to be paid at a later date. Three days later, on March 11th, Appellant sold an additional three ounces of cocaine to the same undercover police officer.
Appellant was tried and convicted for his involvement in the March 8th sale. Charges against Appellant in the instant case stem from the sale on March 11th.
On October 18, 1983 Appellant moved to dismiss the instant charges arguing that his conviction on charges arising from the March 8th sale barred a separate trial based upon charges from the March 11th incident. Initially, the trial court agreed with Appellant's position but, upon reconsideration, the trial court rescinded its earlier order which granted Appellant's motion and issued its February 29, 1984 order denying Appellant's motion to dismiss.
Appellant argues that the Commonwealth failed to comply with 18 Pa.C.S. § 110. We agree. Section 110 provides in pertinent 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 conviction . . . and the subsequent prosecution is for:
(ii) any offense 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 commencement of the first trial and was within the jurisdiction of a single court unless the court ...