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COMMONWEALTH PENNSYLVANIA v. JOHN THOMAS NOLAND A/K/A NOLAN (02/03/86)

filed: February 3, 1986.

COMMONWEALTH OF PENNSYLVANIA
v.
JOHN THOMAS NOLAND A/K/A NOLAN, APPELLANT



Appeal No. 93 Pittsburgh, 1984 from the Judgments of Sentence of the Court of Common Pleas, Criminal Division, of Allegheny County, No. CC8303885A; CLARKE, Judge.

COUNSEL

Shelley Stark, Assistant Public Defender, Pittsburgh, for appellant.

Joel M. Kaufman, Assistant District Attorney, Pittsburgh, for Com., appellee.

Rowley, Olszewski and Del Sole, JJ. Olszewski, J., files a concurring and dissenting opinion.

Author: Per Curiam

[ 351 Pa. Super. Page 368]

Judgments of Sentence for rape and escape affirmed. Judgment of Sentence for burglary vacated and remanded for resentencing. Jurisdiction relinquished.

Disposition

Judgments of Sentence for rape and escape affirmed. Judgment of Sentence for burglary vacated and remanded for resentencing. Jurisdiction relinquished.

OLSZEWSKI, Judge, concurring and dissenting:

I agree with my colleagues' decision that the trial court did not err in finding that the crimes of rape and escape arose out of separate transactions. I disagree, however, with their finding that the lower court erred in concluding that the crimes of rape and burglary arose out of separate

[ 351 Pa. Super. Page 369]

    transactions. I would affirm the trial court's determination on both matters.

The majority draws the conclusion that the crimes of rape and burglary arose out of the same transaction because of their "close temporal and physical relationship." While this relationship is one factor that should be considered by this court in analyzing this problem, I hesitate to conclude my inquiry here. Our Supreme Court in Commonwealth v. Hude, 500 Pa. 482, 458 A.2d 177 (1983), was confronted with a similar problem in interpreting the phrase "single criminal episode" under 18 Pa.C.S.A. Sec. 110 (Purdon 1973). This statute was designed to prevent a second prosecution where charges have been joined with those raised in the first prosecution. Thus, in defining this term, this court considered the temporal sequence of events, the logical relationship between the acts and whether the criminal ...


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