Opinion
November 11, 1974.
March 31, 1975.
Criminal Law — Practice — Motion to dismiss indictment — Error of lower court in granting motion — Commonwealth v. Campana, 452 Pa. 233 (1973) to be applied prospectively only.
1. It was Held in this case that the court below erred in granting the defendant's motion to dismiss an indictment by applying Commonwealth v. Campana, 452 Pa. 233 (1973) retroactively.
2. Commonwealth v. Campana, supra, is to be applied prospectively only as it is based on the Supreme Court's supervisory powers over state criminal proceedings and not on federal constitutional grounds.
3. Commonwealth v. Campana, supra, forbids multiple prosecutions on charges arising out of a single criminal episode.
Before WATKINS, P.J., JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT, and SPAETH, JJ.
Appeal, No. 241, April T., 1974, from order of Court of Common Pleas, Criminal Division, of Allegheny County, Jan. T., 1973, No. 0273A, in case of Commonwealth of Pennsylvania v. William E. Wilson. Order reversed with a procedendo.
Proceedings upon motion by defendant to dismiss indictment.
Order entered dismissing indictment, opinion by SILVESTRI, J. Commonwealth appealed.
Robert L. Eberhardt, Assistant District Attorney, John M. Tighe, First Assistant District Attorney, and John J. Hickton, District Attorney, for Commonwealth, appellant.
Stuart E. Savage, for appellee.
Submitted November 11, 1974.
This is an appeal by the Commonwealth from a lower court order granting a motion to dismiss an indictment. The facts reveal that the appellee was arrested on July 19, 1972, following an altercation which resulted in the severe beating of a Pittsburgh police officer. Some two weeks later, on August 3, 1972, the appellee was found guilty by a police magistrate of the summary offense of disorderly conduct and was sentenced to pay a fine of $25.00 plus costs. Other charges including assault and battery with intent to kill, aggravated assault and battery on a police officer, and resisting arrest were held for the grand jury which returned an indictment on January 10, 1973.
It appears that the court below granted the motion to dismiss the indictment in reliance upon the decision in Commonwealth v. Campana, 452 Pa. 233, 304 A.2d 432 (1973), decided on May 4, 1973, which at that time appeared to most observers to forbid on federal constitutional grounds multiple prosecutions on charges arising out of a single criminal episode. If the Campana decision had been based on federal constitutional grounds the retroactive application given by the lower court might well have been proper. However, on January 24, 1974, seven days before the Order of the court below, the Pennsylvania Supreme Court on remand from the United States Supreme Court issued an addendum opinion which stated that its earlier decision was based on its "supervisory power over state criminal proceedings. . . ." This Court recently held in Commonwealth v. Hynd, 230 Pa. Super. 114, 326 A.2d 434 (1974) that such a nonconstitutional ground compels a prospective rather than retroactive application of the decision.
Pennsylvania v. Campana, 414 U.S. 808 (1973).
Commonwealth v. Campana, 455 Pa. 622, 314 A.2d 854 (1974) (addendum opinion).
Id. at 624, 314 A.2d at 855.
The first prosecution in the instant case occurred on August 3, 1972, well before the Campana decision; therefore, the lower court was incorrect in dismissing the indictment.
Order reversed with a procedendo.