Pennsylvania Consolidated Statutes

18 Pa. Cons. Stat. § 109 (2026)

When prosecution barred by former prosecution for the same offense.

✓ current as of May 2026

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§ 109. When prosecution barred by former prosecution for the same offense.

When a prosecution is for a violation of the same provision of the statutes and is based upon the same facts as a former prosecution, it is barred by such former prosecution under the following circumstances:

(1) The former prosecution resulted in an acquittal. There is an acquittal if the prosecution resulted in a finding of not guilty by the trier of fact or in a determination that there was insufficient evidence to warrant a conviction. A finding of guilty of a lesser included offense is an acquittal of the greater inclusive offense, although the conviction is subsequently set aside.

(2) The former prosecution was terminated, after the indictment had been found, by a final order or judgment for the defendant, which has not been set aside, reversed, or vacated and which necessarily required a determination inconsistent with a fact or a legal proposition that must be established for conviction of the offense.

(3) The former prosecution resulted in a conviction. There is a conviction if the prosecution resulted in a judgment of conviction which has not been reversed or vacated, a verdict of guilty which has not been set aside and which is capable of supporting a judgment, or a plea of guilty accepted by the court. In the latter two cases failure to enter judgment must be for a reason other than a motion of the defendant.

(4) The former prosecution was improperly terminated after the first witness was sworn but before a verdict, or after a plea of guilty was accepted by the court.

Cross References. Section 109 is referred to in sections 110, 111, 112 of this title.

Notes of Decisions

Cited in 78 cases (6 in the last 5 years), 1976–2024 · leading case: Commonwealth v. McCane, 539 A.2d 340 (Pa. 1988).

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Commonwealth v. McCane, 539 A.2d 340 (Pa. 1988). · cites it 10× “, by section 109 of the Crimes Code (18 Pa.C.S. § 109), and by the double jeopardy provisions of the Pennsylvania and United States Constitutions.”

Commonwealth v. Hockenbury, 701 A.2d 1334 (Pa. 1997). · cites it 10× “The trial court held that the prosecution was barred by the Fifth Amendment of the United States Constitution, Article I, § 10 of the Pennsylvania Constitution, and 18 Pa.C.S. §§ 109 and 110. The Superior Court reversed the trial court.”

Commonwealth v. Rosario, 652 A.2d 354 (Pa. Super. Ct. 1994). · cites it 8× “The relevant provision of 18 Pa.C.S. § 109, referred to above, states: There is a conviction if the prosecution resulted in a judgment of conviction which has not been reversed or vacated, a verdict of guilty which has not been set aside and which is capable of supporting a…”

Commonwealth v. Rosario, 679 A.2d 756 (Pa. 1996). · cites it 12× “Rosario subsequently appealed to the Superior Court and alleged that her continued prosecution in this case was prohibited by the double jeopardy clauses of the United States and Pennsylvania Constitutions as well as the statutory principles of double jeopardy embodied in the…”

Commonwealth v. Gibbons, 784 A.2d 776 (Pa. 2001). · cites it 5× “Since the judgment of acquittal was based on a ruling by the municipal court that the evidence was insufficient to convict, the Commonwealth was precluded from appealing that order.”

Commonwealth v. Laird, 988 A.2d 618 (Pa. 2010). · cites it 2× “See 18 Pa.C.S. § 109, official cmt. (clarifying that the purpose of subsection (3) is to codify the existing rule that “a former conviction of the accused bars a later prosecution of him for the same offense” (emphasis added)); accord id.”

Commonwealth v. Hale, 85 A.3d 570 (Pa. Super. Ct. 2014). · cites it 2× “§ 109, pertaining to when a prosecution is barred by a former prosecution, There is a conviction if the prosecution resulted in a judgment of conviction which has not been reversed or vacated, a verdict of guilty which has not been set aside and which is capable of supporting a…”

Com., Dept. of Transp. v. McCafferty, 758 A.2d 1155 (Pa. 2000). · cites it 2× “18 Pa.C.S. §§ 109, 111. PennDOT argues that there was no "prosecution" by the Commonwealth in this *1162 matter such that § 111 would be implicated, and instead characterizes the proceedings initiated by PennDOT against appellees as the imposition of collateral civil…”

Commonwealth v. Jones, 166 A.3d 349 (Pa. Super. Ct. 2017). · cites it 4× “18 Pa.C.S. § 109 provides, in relevant part: When a prosecution is for a violation of the same provision of the statutes and is based upon the same facts as a former prosecution, it is barred by such former prosecution under the following circumstances: (1) The former…”

Commonwealth v. Terry, 521 A.2d 398 (Pa. 1987). · cites it 2× “The Beck majority relied on double jeopardy and the statute set out at 18 Pa.C.S. § 109 [7] . It also held these rights non-waivable.”

Commonwealth v. Walker, 954 A.2d 1249 (Pa. Super. Ct. 2008). · cites it 2× “See also 18 Pa.C.S. § 109(1). These rights are paramount and may never be subordinated to rigid adherence to a Rule of Evidence, especially where the record reveals that the Rule's requirement was satisfied in substance, and the Rule itself permits its relaxation in the…”

Commonwealth v. Williams, 496 A.2d 31 (Pa. 1985). · cites it 2× “Although it is frequently overlooked, it cannot be overemphasized that the "same offense" test of double jeopardy does not prohibit cumulating punishments at a single trial for multiple statutory offenses simply because they all arise from the same act or transaction.”

Show all 78 citing cases →

— 18 Pa. Cons. Stat. § 109(1) — 20 cases

Commonwealth v. Gibbons, 784 A.2d 776 (Pa. 2001). “Since the judgment of acquittal was based on a ruling by the municipal court that the evidence was insufficient to convict, the Commonwealth was precluded from appealing that order.”

Commonwealth v. Walker, 954 A.2d 1249 (Pa. Super. Ct. 2008). “See also 18 Pa.C.S. § 109(1). These rights are paramount and may never be subordinated to rigid adherence to a Rule of Evidence, especially where the record reveals that the Rule's requirement was satisfied in substance, and the Rule itself permits its relaxation in the…”

Commonwealth v. Williams, 496 A.2d 31 (Pa. 1985). “Although it is frequently overlooked, it cannot be overemphasized that the "same offense" test of double jeopardy does not prohibit cumulating punishments at a single trial for multiple statutory offenses simply because they all arise from the same act or transaction.”

Commonwealth v. Jones, 166 A.3d 349 (Pa. Super. Ct. 2017). “18 Pa.C.S. § 109 provides, in relevant part: When a prosecution is for a violation of the same provision of the statutes and is based upon the same facts as a former prosecution, it is barred by such former prosecution under the following circumstances: (1) The former…”

Com. v. Wilson, E., 227 A.3d 928 (Pa. Super. Ct. 2020).

— 18 Pa. Cons. Stat. § 109(2) — 3 cases

Com. v. Porter, S. (Pa. Super. Ct. 2019).

Com. of PA v. T.W. Olick (Pa. Commw. Ct. 2024).

Commonwealth v. Carsia, 500 A.2d 84 (Pa. Super. Ct. 1985).

— 18 Pa. Cons. Stat. § 109(3) — 18 cases

Commonwealth v. Rosario, 679 A.2d 756 (Pa. 1996). “Rosario subsequently appealed to the Superior Court and alleged that her continued prosecution in this case was prohibited by the double jeopardy clauses of the United States and Pennsylvania Constitutions as well as the statutory principles of double jeopardy embodied in the…”

Commonwealth v. Laird, 988 A.2d 618 (Pa. 2010). “See 18 Pa.C.S. § 109, official cmt. (clarifying that the purpose of subsection (3) is to codify the existing rule that “a former conviction of the accused bars a later prosecution of him for the same offense” (emphasis added)); accord id.”

Commonwealth v. Rosario, 652 A.2d 354 (Pa. Super. Ct. 1994). “The relevant provision of 18 Pa.C.S. § 109, referred to above, states: There is a conviction if the prosecution resulted in a judgment of conviction which has not been reversed or vacated, a verdict of guilty which has not been set aside and which is capable of supporting a…”

Commonwealth v. Hale, 85 A.3d 570 (Pa. Super. Ct. 2014). “§ 109, pertaining to when a prosecution is barred by a former prosecution, There is a conviction if the prosecution resulted in a judgment of conviction which has not been reversed or vacated, a verdict of guilty which has not been set aside and which is capable of supporting a…”

Commonwealth v. Thomas, 743 A.2d 460 (Pa. Super. Ct. 1999).

— 18 Pa. Cons. Stat. § 109(4) — 5 cases

Commonwealth v. Dowling, 959 A.2d 910 (Pa. 2008).

Commonwealth v. Theodorou, 777 A.2d 1203 (Pa. Commw. Ct. 2001).

Commonwealth v. Smalis, 545 A.2d 284 (Pa. Super. Ct. 1988).

Com. v. Englert, W. (Pa. Super. Ct. 2024).

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