Commonwealth v. Bethel , 295 Pa. Super. 312 ( 1982 )

SPAETH, Judge,

concurring:

I join in the majority’s opinion, but the case has an unusual aspect that I believe should be mentioned.

Appellant was convicted and sentenced for criminal trespass (No. 2088), possession of an instrument of crime and an offensive weapon (No. 2090), and possession of a firearm on a public street (No. 2091). All of these charges arose out of the events that occurred in the Wright home. In his motion to dismiss, appellant argued that the charges arising out of the events that occurred in the Chester home, see majority slip op. at 1249 n. 2, should be dismissed under Commonwealth v. Campana, 452 Pa. 233, 304 A.2d 432 (1973). This argument depended on the assertion that the events that occurred in the Chester home and the events that occurred in the Wright home were part of the same criminal episode. I agree with the majority that they were not.

In his brief to us appellant argues that he should not be prosecuted on the possession charges arising out of the events that occurred in the Chester home,—i.e., possession of an instrument of crime (No. 1916), carrying a firearm on a public street without a license (No. 1917), and former convict not to own firearms (No. 1918)—because “the act of possession represents a continuous course of conduct.” Appellant’s Brief at 20-21. Appellant did not make this argument in his motion to dismiss. However, in its brief the Commonwealth concedes that the argument has merit: “If the issue were preserved, the Commonwealth would agree that defendant’s continuous possession of a weapon would not be subject to further prosecution. See United States v. Jones, 533 F.2d 1387 (8th Cir. 1976).” Appellee’s Brief at 8.

In these circumstances I believe that it would be improper for the Commonwealth to attempt prosecution on the possession charges. It would also create needless litigation and delay. For if tried and convicted on those charges, appellant could in a PCHA proceeding assert trial counsel’s ineffectiveness and have the convictions set aside.