Dissenting Opinion by
Hoffman, J.:Appellant and another, bearing a shotgun and a pistol respectively, robbed the Crusader Savings and Loan Association in Philadelphia. They were indicted by the federal grand jury for violating 18 U.S.C. §2113(a), (b), and (d).1 Following their indictment, *278they pleaded guilty to all counts and were sentenced to a term of five years imprisonment. On the basis of the same acts, they were also indicted by the Philadelphia grand jury, for violating Sections 704 and 628(e) of The Penal Code. 18 P.S. §§4704 and 4628(e).2 They pleaded guilty to these charges and were sentenced to five and three years concurrent terms of probation to follow the federal sentences. From judgment of sentence, this appeal followed.3
The question raised by this appeal is whether the Commonwealth may try a defendant following his trial by the federal government for the same acts. It has been held that due process does not prohibit such a trial. Bartkus v. Illinois, 359 U.S. 121 79 S. Ct. 676 (1959); Commonwealth ex rel. Garland v. Ashe, 344 *279Pa. 407, 26 A. 2d 190 (1942); Commonwealth v. Taylor, 193 Pa. Superior Ct. 360, 165 A. 2d 390 (1960). These cases, however, all relied upon the continued vitality of Palko v. Connecticut, 302 U.S. 319, 58 S. Ct. 149 (1937), which was overruled by Benton v. Maryland, 395 U.S. 784, 89 S. Ct. 2056 (1969).
Palko’s overruling notwithstanding, it has been argued (as Judge Cercone ably does) that the Fifth Amendment itself does not prohibit the Commonwealth’s trying a defendant following his federal prosecution. Cf. Abbate v. United States, 359 U.S. 187, 79 S. Ct. 666 (1959); United States v. Lanza, 260 U.S. 377, 43 S. Ct. 141 (1922). A reading of Abbate and Lama indicates, however, that they, just as much as Bartkus, relied upon the validity of the rationale in Palko. “We have here two sovereignties, deriving power from different sources, capable of dealing with the same subject-matter within the same territory . . . Each government in determining what shall be an offense against its peace and dignity is exercising its own sovereignty, not that of the other. It follows that an act denounced as a crime by both national and state sovereignties is an offense against the peace and dignity of both and may be punished by each. The Fifth Amendment, like all the other guaranties in the first eight amendments, applies only to proceedings by the Federal Government,. . . and the double jeopardy therein forbidden is a second prosecution under authority of the Federal Government after a first trial for the same offense under the same authority.” 260 U.S. at 382, 43 S. Ct. at 142.
Today, the Fifth Amendment is a limitation upon both the federal and state governments. Regardless of the sources of these governments’ power, each must treat an earlier prosecution by the other as a prior prosecution for double jeopardy purposes. If the *280“peace and dignity” of these governments is affected differently by the same act, that is an issue touching the dimensions of the plea of double jeopardy and not its applicability.
In my opinion, therefore, the Fifth Amendment, now applicable to the states through the Fourteenth, requires that the plea of double jeopardy or autrefois acquit and convict be available to a state defendant after trial by the federal government. These pleas should, in most instances, constitute a bar to the state prosecution. See, e.g., Rex v. Thomas, 1 Keble 677, 83 Eng. Rep. 1180 (1663); Rex v. Hutchinson, 3 Keble 785, 84 Eng. Rep. 1011 (1677), reported in Beak v. Thyrwhit, 3 Mod. 194, 87 Eng. Rep. 124 (1688) ; Rex v. Roche, 1 Leach 134, 168 Eng. Rep. 169 (1775).
The constitutional dimensions of the pleas are not settled. It has been suggested that the state may be barred from prosecuting a defendant if he was tried by the federal court upon the “same evidence.” Cf. Hoag v. New Jersey, 356 U.S. 464, 78 S. Ct. 829 (1958), ovr’d in Ashe v. Swenson, 397 U.S. 436, 90 S. Ct. 1189 (1970). It has also been suggested that the test be whether the “same transaction” is the subject of both prosecutions. Waller v. Florida, 297 U.S. 387, 396, 90 S. Ct. 1184, 1189 (1970) (Brennan, J., concurring). I have discussed both tests in an analogous context. Commonwealth v. Brown, 216 Pa. Superior Ct. 81, 84-86, 260 A. 2d 476, 477-478 (1969). Both tests fail because they fail to take into account the separate interests of the state and federal governments.4 Cf. Abbate v. United States, 359 U.S. 187, 195, 79 S. Ct. 666, 671 (1959).
*281In my opinion, tbe state should be barred from prosecuting a defendant following a federal prosecution if tbe state is seeking to vindicate an interest not substantially different than tbe federal government’s.5 *282This test adequately balances the different interests of the state and federal governments and the defendant’s interest in avoiding multiple punishment and prosecution.. Cf. Commonwealth v. Brown, supra [multiple punishment]; Commonwealth v. Richbourg, 217 Pa. Superior Ct. 96, 266 A. 2d 534 (1970) [multiple prosecution].. I further believe the judiciary are competent to apply the proposed test without undue delay.
In the instant case, a review of the statutes in footnotes 1 and 2 indicates that the federal and states prosecutions were designed to protect similar interests. The federal prosecution aimed at protecting banks from robbery and, particularly, robbery by dangerous weapon. The state prosecution aimed at protecting persons from robbery and from possible assaults by deadly weapon. Under the circumstances, since the interests sought to be protected were identical, the state prosecution should have been barred.
I would vacate judgment of sentence and discharge appellant from service of his probationary sentences.
“(a) Whoever, by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another any property or money or any other thing of value belonging to, or in the care, custody, control, management, or possession of, any bank, or any savings and loan association; or
“Whoever enters or attempts to enter any bank, or any savings and loan association, or any building used in whole or in part as a bank, or as a savings and loan association, with intent to commit in such bank, or in such savings and loan association, or building, or part thereof, so used, any felony affecting such bank or such savings and loan association and in violation of any statute of the United States, or any larceny—
“Shall be fined not more than $5,000 or imprisoned not more than twenty years, or both.
“(b) Whoever takes and carries away, with intent to steal or purloin, any property or money or any other thing of value exceeding $100 belonging to, or in the care, custody, control, management, or possession of any bank, or any savings and loan association, shall be fined not more than $5,000 or imprisoned not more than ten years, or both; or
“Whoever takes and carries away, with intent to steal or purloin, any property or money or any other thing of value not exceeding $100 belonging to, or in the care, custody, control, management, or possession of any bank, or any savings and loan association, shall be fined not more than $1,000 or imprisoned not more than one year, or both.
*278“(d) Whoever, in committing, or in attempting to commit, any offense defined in subsections (a) and (b) of this section, assaults any person, or puts in jeopardy the life of any person by the use of a dangerous weapon or device, shall be fined not more than $10,-000 or imprisoned not more than twenty-five years, or both.”
“Whoever robs another, or steals any property from the person of another, or assaults any person with intent to rob him, or by monace or force, demands any property of another, with intent to steal the same, is guilty of a felony, and upon conviction thereof, shall be sentenced to pay a fine not exceeding five thousand dollars ($5,000), or undergo imprisonment, by separate or solitary confinement, not exceeding ten (10) years, or both.” Act of June 24, 1939, P. L. 872, §704.
“No person shall carry a firearm in any vehicle or concealed on or about his person, except in his place of abode or fixed place of business, without a license therefor as hereinafter provided . . . .” Act of June 24, 1939, P. L. 872, §628 (e), as amended.
It is not clear, on this record, whether appellant properly raised the plea of autrefois convict or double jeopardy. We have held, however, that we will consider such error unless competently and intelligently waived. Commonwealth v. Yahnert, 216 Pa. Superior Ct. 159, 264 A. 2d 180 (1970). There is no indication of such waiver in the record, especially in light of the recent developments in double jeopardy law.
In Brown, we faced the question whether two crimes were the “same offense” for the purposes of double jeopardy. I concluded there that the “same evidence” and “same transaction” tests failed to take into account the state’s interests in defining crimes.
“As a means of achieving a satisfactory balance between considerations of federalism and the interests of the individual defendant, a ‘separate interest’ test applied to successive prosecutions by the state and federal governments has much to recommend it. If, for example, the federal interest to be vindicated by prosecution were substantially different from the state interest involved in the initial trial, successive trials would be allowed; if both the federal and state statutes represented similar policies, on the other hand, a second prosecution would be prohibited.” Note, Double Prosecution by State and Federal Governments: Another Exercise in Federalism, 80 Harv. L. Rev. 1538, 1561 (1967).
Compare the following: “[I]t is submitted that a foreign conviction for an offence committed abroad would and should be recognized so as to bar an English trial. No material harm will result from adopting such a position. English extraterritorial legislation can be divided into two basic categories: those where the aim is to see that there is at least one forum where the accused can be tried, and those where there is a sound reason for having a subsequent English trial; and in the latter, the foreign and English offences would not be considered the same.” M. Friedland, Double Jeopardy 369 (1969).
The interest test would solve the difficulties expressed by Mr. Justice Brennan in Ablate. He feared that were the federal government barred from prosecuting following a state prosecution, then federal interests would be harmed in those cases where “the defendants’ acts impinge more seriously on a federal interest than on a state interest.” 359 U.S. at 195, 79 S. Ct at 671. In such situations, where the interests are substantially different, there would be no bar.
This test should also solve the problem raised by the district attorney in his very able brief. “If this Court were to overrule Abbate, effective state and federal law enforcement would be greatly damaged. The prohibiting of successive prosecutions by dual sovereigns with separate interest would mean that, for example, an individual improperly freed by a state court for the murder of a civil rights worker could not be prosecuted by the federal government for violating the worker’s federal civil rights. See, e.g., United States v. Guest, 383 U.S. 745 [86 S. Ct. 1170] (1966).” Given the test I have proposed, this problem answers itself.