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filed: February 8, 1988.


Appeal from the Order of the Court of Common Pleas, Criminal Division, of Potter County at No. 29 of 1987.


Jack E. Reagle, Public Defender, Coudersport, for appellant.

Martha J. Duvall, Assistant District Attorney, Coudersport, for Com.

Wieand, Montemuro and Popovich, JJ. Montemuro, J., concurs in the result.

Author: Popovich

[ 371 Pa. Super. Page 335]

This is an appeal from the order of the Court of Common Pleas of Potter County denying an omnibus pre-trial motion to dismiss by the appellant, James Hall.*fn1 We affirm.

[ 371 Pa. Super. Page 336]

A review of the record discloses the following relevant facts: On February 10, 1986, the appellant was arrested for receiving stolen property, unlawful sale of firearms and unlawful loan on, lending or giving firearms. At the magistrate's hearing, two witnesses testified to the appellant selling them various rifles and guns. Also, a third witness (Richard Nelson) identified the items sold as having been stolen from his camp in Potter County. With the evidence presented, the magistrate concluded that a prima facie case against the appellant had been presented and bound the matter over to Common Pleas Court.

On May 5, 1986, the appellant pleaded guilty to unlawful sale of firearms. The other offenses were nol prossed by the Commonwealth. On June 5, 1986, the appellant was sentenced to a term of 1-6 months imprisonment, payment of a fine of $150 and 9 months probation. Upon completion of his sentence and term of probation, it appears that the appellant, while in a tavern, spoke to Nelson and admitted to removing the weapons from his camp site. Further, the appellant allegedly told Nelson that he could not be prosecuted for burglary since he had already served time for the weapon's offense and, thus, could not be re-charged again. Nonetheless, on February 6, 1987, the appellant was arrested and charged with burglary, theft and two counts of conspiracy.

Nelson testified at a preliminary hearing to what the appellant had admitted to him at the tavern. As a consequence, the burglary, theft and conspiracy charges were held for court. This, in turn, was followed by the submission

[ 371 Pa. Super. Page 337]

    of an omnibus pretrial motion (similar to the pro se one presented by the appellant at the preliminary hearing) seeking a dismissal of the charges as violative of the Double Jeopardy clause of the United States Constitution and 18 Pa.C.S. §§ 109, 110. Additionally, a memorandum of law was attached to the motion buttressing the Double Jeopardy and § 110 contentions that since the 1986 and 1987 charges "both ar[o]s[e] out of the same criminal conduct or episode all of the required elements for finding a violation [of the Double Jeopardy clause and § 110] ha[d] been met."

Thereafter, a rule to show cause was issued, briefs were submitted, argument was heard and a ruling entered denying the motion to dismiss. This appeal ensued.

It is the appellant's contention on appeal that, because the present (1987) prosecution arose out of the same transaction for which he had been tried, convicted and sentenced (in 1986), the principles of collateral estoppel, double jeopardy and § 110*fn2 warrant a dismissal of the charges.

More precisely, as is evident from his oral argument below and his brief to us, counsel for the appellant is of the mind that mere "knowledge" on the part of the police that a burglary had occurred at the Nelson's camp site in 1986 necessitated that the appellant be charged at that time with such an offense in conjunction with the others initially lodged against him. Failure to do so, counsel would have

[ 371 Pa. Super. Page 338]

    us believe, brings this case within the prohibition of Commonwealth v. Campana, 452 Pa. 233, 304 A.2d 432 (1973) and § 110 barring a subsequent prosecution because "such offense was known to the appropriate prosecuting officer at the time of the commencement of the first trial[.]" 18 Pa.C.S. § 110(1)(ii). The fact that the police may not have had sufficient evidence to either arrest or convict the appellant is of no moment. Rather, "knowledge" on the part of the police of the burglary, when viewed in conjunction with the weapon offenses brought against the appellant, renders this second prosecution as one "arising out of the same episode" as the former prosecution and, therefore, is prohibited, so argues counsel for the appellant. We disagree.

Initially, we will examine the claim of the appellant that his right to be free from being twice placed in jeopardy has been contravened by his arrest, and potential prosecution to follow, for burglary, theft and ...

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