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May 23, 1997


Appeal from the Order of December 29, 1995 in the Court of Common Pleas of Greene County, Criminal Division, at No. 160 Crim. Sess. 1995. Before GRIMES, J.

Before: Cirillo, P.j.e., Johnson, J. and Cercone, P.j.e. Opinion BY Cirillo, P.j.e.

The opinion of the court was delivered by: Cirillo


FILED May 23, 1997

John Willis Teagarden *fn1 appeals from the order entered in the Court of Common Pleas of Greene County denying his motion to dismiss on double jeopardy grounds. *fn2 We affirm.

On November 19, 1994, Troopers Edward Schick and Thomas Reed of the Pennsylvania State Police were engaged in routine patrol when they received a radio communication that a truck had been stolen in nearby Waynesburg. Shortly thereafter, Troopers Schick and Reed saw a truck matching the description of the stolen vehicle. They attempted to stop the truck, but the truck sped off the road and onto a field. The Troopers gave chase. The occupants of the truck exited and fled on foot into the surrounding forest. Troopers Schick and Reed alighted from their cruiser and pursued the occupants on foot. The Troopers finally caught up to and arrested the occupants, one of whom was Teagarden. Upon arresting Teagarden and the others, the Troopers impounded the vehicle and its contents, which included various appliances.

The next day, Brian Waychoff arrived at his mobile home finding that it had been burglarized. He immediately went to the state police barracks to report the burglary. He told Trooper Brian A. Baker that he had left the mobile home at 5:30 p.m. the previous day and returned home at 10:00 a.m. the next morning to find the home burglarized. After conducting a thorough investigation, Trooper Baker suspected that Teagarden and the others had burglarized Waychoff's mobile home and had used the stolen truck to carry out the burglary. Trooper Baker showed Waychoff the appliances recovered from the truck which Waychoff identified as his. Teagarden and the other occupant of the vehicle were then charged with the burglary of Waychoff's mobile home.

Due to the length of time between Teagarden's arrest for the stolen truck and his subsequent arrest for burglary, the Commonwealth filed two separate actions against Teagarden. On April 26, 1995, nine days after arraignment on the burglary charge and four days prior to the commencement of jury selection in the stolen truck case, the Commonwealth filed a motion to consolidate the cases. After hearing argument, the trial court issued a rule to show cause as to why the cases should not be consolidated. In the meantime the court commenced jury selection in the stolen truck case. On June 2, 1995, the court ordered that the stolen truck case and the burglary case be consolidated and discontinued jury selection. Thereafter Teagarden filed a petition for writ of habeas corpus in the burglary case; this was denied. Teagarden then appealed the denial of the petition to our court. The trial court became concerned that if the consolidated cases were continued until our Disposition of Teagarden's appeal that it "may have Rule 1100 problems." Accordingly, the trial court de-consolidated the cases and the stolen truck case proceeded to trial. Three days prior to jury selection in the stolen truck case, this court quashed Teagarden's appeal. A copy of our order quashing Teagarden's appeal was not given to the trial court, however, until after the jury had been impanelled in the stolen truck case. Due to our disposal of Teagarden's appeal, the Commonwealth sought to re-consolidate the cases. This motion, however, was denied.

The Commonwealth proceeded to trial in the stolen truck case after which a jury acquitted Teagarden. Following acquittal, Teagarden filed a motion to dismiss the charges in the burglary case based on double jeopardy grounds. This appeal followed. Teagarden presents the following issue for our consideration:

Whether prosecution on the charges contained at the subject case number are barred pursuant to 18 Pa.C.S.A. section 110.2 and / or pursuant to the principles of collateral estopple [sic] as embodied in the Double Jeopardy Rule based on the verdicts of acquittal on the charges contained at case number 663 criminal sessions, 1994?

Teagarden asserts that pursuant to 18 Pa.C.S.A. § 110(2) the Commonwealth is prohibited from trying him on the burglary offense because in order to convict him, the jury would have to find his alibi witnesses incredible, directly contradicting the findings of the jury in the stolen truck case in which he was acquitted.

Section 110 of the Crimes Code governs situations where the prosecution is barred from a subsequent prosecution of the same defendant for different offenses. The relevant portion of

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:

(2) The former prosecution was terminated, after the indictment was found, by an acquittal . . . which acquittal . . . necessarily required a determination inconsistent with a fact which must be ...

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