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Commonwealth v. Viglione1/29/2004
We granted en banc review to determine whether the law of the case doctrine precludes our consideration of appellant's double jeopardy claim. Having concluded that an exception to that doctrine allows our review, we nonetheless find no merit to the claim. We therefore affirm appellant's judgment of sentence for driving with license suspended. In order to reach that result, however, we must address and surmount several procedural roadblocks along the way.
A summary of the facts and procedure follows. The complainant, Eric Dorsch, who operates a wrecker as part of his job as a provider of emergency road service, spotted appellant riding his motorcycle in the emergency lane of an interstate highway and traveling at a high rate of speed. Dorsch, who was patrolling the interstate at the time, therefore radioed ahead to Trooper Jolando Hinton, who was finishing his investigation of an accident farther up the interstate, to watch out for the motorcycle. As a result, Trooper Hinton stopped appellant. Dorsch arrived at the scene while Trooper Hinton was talking with appellant and stopped to obtain some information. Following this incident, appellant returned to the interstate on two different dates and threatened Dorsch. The first incident allegedly involved verbal threats while both individuals were operating their vehicles. The second incident, however, involved appellant's allegedly stopping Dorsch and threatening to shoot him while pointing a gun at him. (Notes of testimony, 3/31/00 at 10-18.)
Appellant was subsequently arrested and charged with numerous counts, including disorderly conduct and driving with license suspended. The case proceeded to a non-jury trial before the Honorable Lester G. Nauhaus ("The Court"). At the close of the Commonwealth's case in chief, the following exchange, which is the core of appellant's double jeopardy claim, occurred:
Patrick Thomassey Esq. (defense counsel): Just for the record I make a motion for judgment of acquittal on all counts, Your Honor.
[THE COURT]: Come forward, Mr. Spurgeon (Assistant District Attorney David Spurgeon, Esq. ('Commonwealth counsel')). All right. Driving while under suspension, the record is not enough. That motion is granted.
You have to force me -- I will get you the case -- but the Supreme Court has said that report without anything more is not enough to convict anybody of driving while under suspension. Has to be some, some indication that the defendant knew he was under suspension. There just hasn't been any testimony so far as that's concerned.
Recklessly endangering another person charge the statute --
[COMMONWEALTH COUNSEL]: Your Honor --
[THE COURT]: I am talking. Yes, sir.
[COMMONWEALTH COUNSEL]: As in terms of the driving while suspended I believe the defendant made statements to Officer Hinton that he knew his license was suspended. I believe Officer Hinton testified as to that.
[THE COURT]: Okay. You are right. I withdraw that.
Id. at 35-36.
At the close of the evidence, the trial court found appellant guilty of summary disorderly conduct and driving while under suspension. Appellant waived a pre-sentence investigation and was immediately sentenced to pay a fine of $300 for summary disorderly conduct and $200 for driving while operating privileges were suspended. (Id. at 66.)
Appellant filed an immediate appeal on April 24, 2000, docketed at No. 785 WDA 2000. The trial court ordered appellant to file a Rule 1925(b) statement and appellant complied, raising issues of insufficiency of the evidence as to both convictions. Appellant also claimed the c
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