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COMMONWEALTH PENNSYLVANIA v. GREGORY M. FISCHL (05/11/87)

filed: May 11, 1987.

COMMONWEALTH OF PENNSYLVANIA
v.
GREGORY M. FISCHL, APPELLANT



Appeal from the Judgment of Sentence of the Court of Common Pleas of Lehigh County, Criminal Division, No. 496-S/1984.

COUNSEL

John E. Freund, III, Allentown, for appellant.

Cirillo, President Judge, and Rowley and Beck, JJ.

Author: Rowley

[ 363 Pa. Super. Page 175]

OPINION OF THE COURT

This is an appeal from the judgment of sentence imposed on appellant after he was convicted of operating a motor vehicle while under suspension for driving under the influence of alcohol ("DUI"). Appellant was sentenced to 90 days confinement and fined $1,000. Post-trial motions were timely filed, but denied and a timely appeal was then taken.

On January 5, 1983, appellant was convicted of DUI which resulted in a six month suspension of his driving privileges, effective February 28, 1983. On July 10, 1983, during the period of suspension, appellant was stopped by a Pennsylvania State Trooper because the tires on appellant's car were studded in violation of § 4525 of the Pennsylvania Motor Vehicle Code. When asked, appellant first stated that he left his driver's license at home. The trooper then radioed his headquarters and was told that appellant's license had been suspended, but was not told the reason therefor. When confronted with this information, appellant stated that his license had been suspended for DUI. At that time appellant was issued a citation for driving with studded tires to which he pled guilty. Subsequently, after the trooper had received confirmation from the Bureau of Motor Vehicles, a second citation was issued to appellant for driving while under suspension for DUI in violation of

[ 363 Pa. Super. Page 176]

§ 1543(b) of the Motor Vehicle Code. The District Justice found appellant guilty as charged. Appellant then appealed to the Court of Common Pleas which, subsequent to a hearing on the issues raised, dismissed the appeal. After the denial of his post-trial motions and his sentencing, appellant appealed to this Court seeking reversal of his conviction and discharge or a new trial by jury.

Four issues are presented for our review. The first two allege that the prosecution under § 1543(b) should be quashed (1) because the trooper issued the second citation late in violation of Pa.R.Crim.P. 51 and (2) that his prosecution is barred under § 110 of the Pa. Crimes Code. The third issue raised is that appellant was unconstitutionally denied a jury trial. The last issue argued is that application of § 1543(b) of the Motor Vehicle Code is a violation of the prohibition against ex post facto laws.

In his first issue, appellant claims that the trooper's failure to issue the second citation at the time he was stopped for the studded tires offense is a violation of the compulsory joinder rules and § 110 of the Crimes Code, 18 Pa.C.S. § 110. Appellant relies on Commonwealth v. Campana, 452 Pa. 233, 304 A.2d 432, vacated, 414 U.S. 808, 94 S.Ct. 73, 38 L.Ed.2d 44 (1973), reinstated on remand, 455 Pa. 622, 314 A.2d 854, cert. denied, 417 U.S. 969, 94 S.Ct. 3172, 41 L.Ed.2d 1139 (1974), which held that the constitutional provisions against double jeopardy require that all known charges arising from a single criminal episode be brought against the defendant in a single proceeding. This principle is also set forth in § 110 of the Pennsylvania Crimes Code.

A prior panel of this Court, in Commonwealth v. Hoburn, 335 Pa. Super. 536, 485 A.2d 24 (1984), has addressed this issue. Relying on our Supreme Court's decision in Commonwealth v. Breitegan, 500 Pa. 384, 456 A.2d 1340, cert. denied, 464 U.S. 991, 104 S.Ct. 480, 78 L.Ed.2d 678 (1983), the panel in Hoburn held that a prior conviction for a summary offense ...


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