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COMMONWEALTH PENNSYLVANIA v. ALLEN M. BUTLER (11/14/88)

filed: November 14, 1988.

COMMONWEALTH OF PENNSYLVANIA
v.
ALLEN M. BUTLER, APPELLANT



Appeal from the Order of the Court of Common Pleas, Clearfield County, Criminal Division, at No. 85-432-CRA, Before REILLY, J.

COUNSEL

George H. Newman, David M. McGlaughlin, Newman & McGlaughlin, Philadelphia, for appellant.

Joseph A. Curcillo, III, Assistant District Attorney, Harrisburg, for Com., appellee.

Brosky, Tamilia and Kelly, JJ.

Author: Brosky

[ 380 Pa. Super. Page 597]

This case is on remand*fn1 to the Superior Court for consideration of appellant's claim on appeal in light of Commonwealth v. Meyers, 516 Pa. 392, 532 A.2d 789 (1987).

The issue before us for consideration is, whether the trial court erred in denying appellant's motion to dismiss prosecution on the grounds that the present trial violates the provisions of 18 Pa.C.S.A. § 110, the Compulsory Joinder Rule. The trial court answered this question in the negative. We now, however, respectfully reverse the trial court's decision.

The facts of the case are relatively uncomplicated. On May 5, 1985, at approximately 3:49 a.m., Dennis Davis, a Lawrence Township police officer, stopped a vehicle driven by Berniece Longe. Officer Davis had previously observed this vehicle run a stop sign, then proceed onto the Interstate operating in an erratic manner. Ms. Longe was arrested by Officer Davis for driving under the influence, and related summary offenses.

Officer Davis had requested backup assistance for the vehicle stop. In response to that request Corporal Donald C. Smith, also of the Lawrence Township police, arrived on the scene. Corporal Smith determined the identity of appellant, who was a passenger in the vehicle, and radioed County control who determined that there was an outstanding bench warrant for appellant. Appellant was placed under arrest and a search incident to that arrest uncovered two suspected controlled substances, marijuana and cocaine.

On May 7, 1985, both Officer Davis and Corporal Smith appeared before the District Justice. Officer Davis swore out a complaint against appellant charging him with driving under the influence under the permitting statute, 75 Pa.C.S.A. § 1575, and Corporal Smith swore out a complaint charging appellant with violating the Controlled Substance Act. Both complaints allege the date and time of the offenses as being May 5, 1985, at approximately 3:49 a.m.

[ 380 Pa. Super. Page 598]

Two bills of information were filed against appellant. On April 16, 1986, in a jury trial on the driving under the influence charge only, appellant was acquitted. Prior to trial on the violation of the Controlled Substance Act, appellant filed a motion to dismiss on the basis of a violation of 18 Pa.C.S.A. § 110 and the double jeopardy ...


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