Commonwealth v. Kaminski , 342 Pa. Super. 37 ( 1985 )

JOHNSON, Judge:

John Kaminski appeals from the denial of a pre-trial motion to dismiss, on double jeopardy grounds, charges of conspiracy, delivery of a controlled substance and knowing and intentional possession of a controlled substance.¹

On March 8, 1983, Appellant sold one ounce of cocaine to a Philadelphia undercover police officer for $200 down and $1,900 dollars to be paid at a later date. Three days later, on March 11th, Appellant sold an additional three ounces of cocaine to the same undercover police officer.

Appellant was tried and convicted for his involvement in the March 8th sale. Charges against Appellant in the instant case stem from the sale on March 11th.

On October 18, 1983 Appellant moved to dismiss the instant charges arguing that his conviction on charges arising from the March 8th sale barred a separate trial based upon charges from the March 11th incident. Initially, the trial court agreed with Appellant’s position but, upon reconsideration, the trial court rescinded its earlier order which granted Appellant’s motion and issued its February 29, 1984 order denying Appellant’s motion to dismiss.

Appellant argues that the Commonwealth failed to comply with 18 Pa.C.S. § 110. We agree. Section 110 provides in pertinent part:

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:

(1) The former prosecution resulted in an acquittal or conviction ... and the subsequent prosecution is for:

(ii) any offense on the same conduct or arising from the same criminal episode, if such offense was known to the appropriate prosecuting officer at the time of commencement of the first trial and was within the jurisdiction of a single court unless the court ordered a separate trial of the charge of such offense. (Emphasis added).

In Commonwealth v. Hude, 500 Pa. 482, 458 A.2d 177 (1983) our supreme court held that Section 110 of the Crimes Code was violated when the Commonwealth attempted to try Appellant for his involvement in sales of marijuana made to a self-confessed drug dealer between the end of November 1974 and the middle of January, 1975, when Appellant had already been tried and acquitted for sales of marijuana in October, 1974 to the same drug dealer.

The facts in the instant case present an even more compelling case for finding that the alleged illegal conduct arose from the “same criminal episode.” As in Hude, the instant drug sales involve the same type of contraband and were made to a single individual; but, in the case at bar, the elapsed time between sales was only three days rather than several weeks. Justice (now Chief Justice) Nix, speaking for the supreme court in Hude, discussed the “same or single criminal episode” test in the following manner:

To interpret the “single criminal episode” test in such a manner as to permit successive trials for each of the alleged transactions would clearly be offensive to the prohibition against successive prosecutions as well as an unjustifiable expenditure of judicial resources. The interpretation of the term “single criminal episode” must not be approached from a hypertechnical and rigid perspective which defeats the purposes for which it was created____ Thus, where a number of charges are logically and/or temporally related and share common issues of law and fact, a single criminal episode exists, and separate trials would involve substantial duplication and waste of scarce judicial resources. In such cases, failure to consolidate will bar successive prosecutions.

Commonwealth v. Hude, 500 Pa. at 494, 458 A.2d at 183 (citations omitted).

We find Commonwealth v. Hude to be controlling. The drug sales on March 8th and 11th arose from the same criminal episode under 18 Pa.C.S. § 110. We, therefore, reverse the trial court’s order of February 29, 1984 and order Appellant discharged.

OLSZEWSKI, J., files a dissenting opinion.

1 . Denial of a motion to dismiss on double jeopardy grounds is immediately appealable despite the interlocutory aspects of the order. Commonwealth v. Edwards, 264 Pa.Super. 223, 399 A.2d 747 (1979).