concurring:
I agree with the majority that after his conditional plea of guilty had been accepted by the federal court, appellant was in the same position as if he had been convicted by a jury and had properly preserved issues for appellate review. I also agree with the result in this case because appellant’s federal conviction is now final. United States v. Fels, 620 F.2d 290 (3d Cir.) (lower court affirmed without opinion), cert. denied, 447 U.S. 925, 100 S.Ct. 3018, 65 L.Ed.2d 1117 (1980). However, when appellant made his motion in the lower court, and also when he took his appeal to this court, his federal conviction was not yet final. I write separately *237to explain what I think a Pennsylvania court should do when faced with that situation. I believe we should follow what might be described as a “wait and see” approach.
Section 111(1) provides that a subsequent prosecution in this Commonwealth is barred by a prior prosecution in another jurisdiction if the prior prosecution “resulted in an acquittal or a conviction as defined in section 109 of this title. . . . ” Typically, when an appellate court finds that a lower court erred in not granting the defendant’s pre-trial motion to suppress evidence, the appellate court vacates the judgment of sentence and grants the defendant a new trial. This, however, is not an “acquittal,” for section 109(1) defines an “acquittal” as a “prosecution [which] 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.” Neither is it a “conviction,” for section 109(3) defines a “conviction” as a “prosecution [which] resulted in a judgment of conviction which has not been reversed or vacated.”
Thus, it is inaccurate to say that an appeal of a conviction must result in either an “acquittal” or a “conviction.” Instead, the result cannot be known in advance. Accordingly, when an appeal is taken from a conviction, the prosecutor must wait and see what the appellate court does before he can know whether he may proceed with a subsequent prosecution. So long as the appeal is pending, and the conviction therefore remains undisturbed, the subsequent prosecution is barred. If the appellate court affirms the conviction, or if it determines that there was insufficient evidence to warrant the conviction, the subsequent prosecution will be forever barred. If, however, the appellate court reverses or vacates the conviction and remands for new trial, the subsequent prosecution may proceed.
Although it is, of course, our statutory provision, 18 Pa.C. S.A. § 111, that controls this case, I am confirmed in my belief that a “wait and see” approach is proper by an *238examination of the law in other states. To hold that a subsequent prosecution is forever barred by a prior conviction still on direct appeal would be to take a decidedly minority view. The editors of American Law Reports summarize an Annotation devoted to this point by saying:
The authorities are divided as to whether a plea of former conviction is available while an appeal from the judgment of conviction is pending. However, this conflict is more apparent than real. Even in jurisdictions in which the plea is not available while an appeal is pending from the judgment of conviction, the defendant is not without remedy, because in these jurisdictions he may move for a continuance of the second trial to await the disposition of the appeal from the judgment of conviction. On the other hand, in some jurisdictions in which the plea of former conviction is available notwithstanding the pendency of an appeal from the judgment of conviction, it seems that the plea results only in a stay of the proceeding in which the plea was made.
Annot: Conviction From Which Appeal is Pending as Bar to Another Prosecution for Same Offense, 61 A.L.R.2d 1224, 1224 (1958) (footnotes omitted).
Finally, I believe that a “wait and see” approach represents an appropriate balance between the defendant’s interest in not being tried twice for the same crime and the Commonwealth’s interest that a prosecution by some sovereign, be it the Commonwealth, the United States, or a sister state, should proceed to a point of decision that has withstood appellate scrutiny. Because appellant’s federal conviction has now withstood the scrutiny of the United States Court of Appeals for the Third Circuit and the United States Supreme Court has declined further review, the Commonwealth’s interest in this case has been vindicated.1
. A careful reading of appellant’s brief shows that appellant himself does not claim that the Commonwealth should be barred from trying him if his federal conviction were set aside. See Brief for Appellant at 6, 13, 15.