Sandra Preuhs, Assistant District Attorney, Pittsburgh, for Com., appellant.
Harold Gondelman, Pittsburgh, for appellee.
Cirillo, President Judge, and Rowley and Tamilia, JJ.
[ 379 Pa. Super. Page 475]
This is an appeal by the Commonwealth from the Order of the court below dismissing, on the grounds of double jeopardy, Information No. CC 8512795A which included
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counts of obstructing administration of law or other governmental function and criminal conspiracy.
The pertinent events giving rise to this appeal are as follows. On September 5, 1984, defendant-appellee entered a plea of guilty to one count of driving under the influence of alcohol or controlled substance, 75 Pa.C.S. § 3731(a)(2). That same day, appellee was sentenced to undergo a term of imprisonment of forty-eight hours at ARC House commencing on November 2, 1984. Appellee was also sentenced to pay a fine of $300; the costs of prosecution; a one year period of probation; attend alcohol safe driving school; undergo evaluation; and pay a $250 fee. This plea was received, and the sentence imposed by the Honorable Bernard L. McGinley.
Sometime thereafter, it was learned that appellee had failed to personally appear at ARC House to serve his sentence and another person appeared in his stead. As a result, a hearing was scheduled before Judge McGinley. At that hearing, on January 18, 1985, it was revealed appellee failed to report for his sentence on November 2, 1984 and had also failed to report to serve his sentence on December 7, 1984, January 4, 1985 and January 11, 1985. To explain this failure, appellee informed the court his attorney obtained a postponement of the first date because of family illness, that he didn't know about the date of reporting in December, that January 4th was his son's birthday and he was given permission not to report that day; and on January 11, one Riccardo Smith took it upon himself to find someone else to serve appellee's sentence. After hearing appellee's explanation, Judge McGinley stated he was not going to change his position and implemented the same sentence as before with the exception that appellee was to serve his forty-eight hours in the Allegheny County Jail rather than ARC House.
On November 11, 1985, a complaint was filed against appellee charging him with obstructing administration of law or other governmental function, 18 Pa.C.S. § 5101, and criminal conspiracy, 18 Pa.C.S. § 903. The complaint alleged
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appellee "did actively solicit, and pay one Riccardo Smith the sum of fifty dollars, ($50.00), for the purpose of a partial payment to one Russell Kunkle, so that Kunkle would serve the actor's sentence at the A.R.C. House . . . ." Named as co-conspirators were Anthony Lagattuta and Riccardo Smith. Both charges were held for court and the information charging both offenses was filed on January 7, 1986.
On May 23, 1986, appellee filed a "Motion to Dismiss and/or Quash the Criminal Information." The motion alleged, inter alia, that the information should be dismissed "as jeopardy has attached due to the earlier sentence of the Honorable Bernard McGinley." It was contended the actions charged in the information constituted contempt of court and had been the subject of a contempt ...