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COMMONWEALTH PENNSYLVANIA v. DONALD RAY PINKSTON (05/17/85)

filed: May 17, 1985.

COMMONWEALTH OF PENNSYLVANIA
v.
DONALD RAY PINKSTON, APPELLANT



No. 952 Philadelphia 1981, Appeal from the Judgment of Sentence of March 20, 1981 by the Court of Common Pleas of Bedford County, Criminal No. C.A. No. 198 for 1979.

COUNSEL

Paul D. Boas, Pittsburgh, for appellant.

Daniel L. Howsare, District Attorney, Bedford, for Commonwealth, appellee.

Olszewski, Montgomery and Lederer,*fn* JJ.

Author: Olszewski

[ 342 Pa. Super. Page 336]

Donald Pinkston appeals from the judgment of sentence finding him guilty of receiving stolen property, 18 Pa.C.S. Sec. 3925, and sentencing him to a term of probation.

The facts are as follows. On November 14, 1978 David L. Gonsman burglarized the property of Mr. Ralph E. Kostolnick, located in Bedford County. Among other items, Gonsman removed a Suzuki mini-bike from a shed on the property. Eight months later, between July 23, 1979 and July 27, 1979 Gonsman burglarized the property of Mr. Paul Mark, also located in Bedford County. Gonsman removed, among other items, several antiques and a lawnmower from the house and shed on the property.*fn1

On September 28, 1979 three complaints were filed charging appellant with receipt of stolen property from the Gonsman burglaries. On October 1, 1979 appellant was arrested and both the mini-bike and the antiques were found on his property and in his possession. Appellant was acquitted by jury of the charge relating to the Mark burglary at No. 197, 1979 in Bedford County. Subsequently, on March 25, 1980 appellant was tried and convicted on the charge of receiving stolen property relating to the Kostolnick burglary, at No. 198, 1980 in Bedford County. Following the denial of post-trial motions, this appeal is before us.

Appellant raises two issues: first, he argues that his trial counsel was ineffective for failing to move for dismissal of the charges on the basis of double jeopardy, collateral

[ 342 Pa. Super. Page 337]

    estoppel or a violation of 18 Pa.C.S. Sec. 110. We hold that there is no merit to this issue and that appellant was provided with effective assistance of counsel.

Appellant argues that all charges arose out of the same criminal episode and, therefore, that the Commonwealth was obliged to join the charges for trial under 18 Pa.C.S. Sec. 110 and Commonwealth v. Campana, 452 Pa. 233, 304 A.2d 432 (1973).*fn2 Section 110 states in pertinent part:

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 ...


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