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COMMONWEALTH PENNSYLVANIA v. CHARLES FLENORY (02/10/86)

filed: February 10, 1986.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
CHARLES FLENORY, JR., APPELLEE



Appeal from the Order Entered May 14, 1984 in the Court of Common Pleas of Westmoreland County, Criminal No. 1453 Criminal, 1983.

COUNSEL

Robert Johnson, Assistant District Attorney, Greensburg, for Com., appellant.

Irving M. Green, New Kensington, for appellee.

Olszewski, Popovich and Montgomery, JJ.

Author: Olszewski

[ 351 Pa. Super. Page 29]

This is a challenge to the order dismissing the criminal information against appellee. Appellee was convicted of a November 10, 1982 assault. At the time of trial, an information had been filed against appellee for the September 17, 1983 intimidation of a victim-witness to the assault. The court below found that the crimes rose from a single criminal episode and dismissed the information. We disagree.

Appellee and eight co-defendants were charged with criminal homicide, aggravated assault, and criminal conspiracy in connection with the death of one person and the injury of another on November 10, 1982. The cases against appellee and seven co-defendants were consolidated for trial. On September 17, 1983, appellee allegedly met with the surviving victim, a prosecution witness. The confrontation took place in a bar where appellee threatened and tried to bribe the witness, and brandished a handgun. On October 28, 1983, three days before trial began, the criminal information that is the subject of this appeal was filed against the appellee. The charges relating to the September, 1983 incident contained in the information were not raised at the trial for the November, 1982 incident.

Section 110 of the Pennsylvania Crimes Code provides in relevant part as follows:

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:

[ 351 Pa. Super. Page 30]

(1) The former prosecution resulted in an acquittal or in a conviction as defined in section 109 of this title (relating to when prosecution barred by former prosecution for the same offense) and the subsequent prosecution is for:

(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 was within the jurisdiction of a single court unless the court ordered a separate trial of the charge of such offense . . . .

18 Pa.Con.Stat.Ann.Sec. 110 (Purdon's 1985). The charges against appellee stemming from the September, 1983 incident were dismissed pursuant to Section 110 on the grounds that they arose from the same criminal episode as the November, 1982 charges for which appellee had already been tried. The only ...


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