J-A02042-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

ROBERT J. KEARNS

                            Appellant                No. 1927 EDA 2014


                     Appeal from the Order June 20, 2014
                In the Court of Common Pleas of Bucks County
             Criminal Division at No(s): CP-09-CR-00006015-2013


BEFORE: LAZARUS, J., MUNDY, J., and WECHT, J.

MEMORANDUM BY LAZARUS, J.:                           FILED MARCH 27, 2015

       Robert J. Kearns appeals from the June 20, 2014 order of the Court of

Common Pleas of Bucks County that denied his omnibus pretrial motion to

dismiss based upon alleged violations of the compulsory joinder rule and

double jeopardy.1 After careful review, we affirm.

       The trial court summarized the facts and procedural history of this

case as follows:

       Municipal Energy Managers (“MEM”) was represented by
       [Kearns], the President of MEM, and Patrick Joseph McLaine, the
       Treasurer of MEM. As a measure to reduce costs, various
       townships in the Commonwealth hired MEM to facilitate the
       transfer of ownership of streetlights from Pennsylvania Power
____________________________________________


1
   “An order denying a motion to dismiss based upon alleged compulsory
joinder rule and Double Jeopardy violations is immediately appealable as of
right.” Commonwealth v. Dawson, 87 A.3d 825, 826 (Pa. Super. 2014)
(citing Commonwealth v. Bracalielly, 658 A.2d 755, 759-60 (Pa. 1995)).
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     and Light (“PPL”) to the respective townships in which the lights
     were located.

     In March 2009, Richland Township, located in Bucks County,
     contracted with MEM for the performance of this service.
     Richland Township paid over $165,000 to MEM, and in exchange,
     MEM was contractually obligated to negotiate with PPL for the
     streetlights, prepare the hardware for the transfer of the
     streetlights, perform maintenance work on the lights, set up a
     computer system for the township to report outages to MEM, and
     various other responsibilities before the transfer could be
     completed. The money was deposited into MEM’s corporate
     account in advance of these services.

     PPL ultimately determined that MEM should no longer perform
     the streetlight work, which prevented MEM from completing its
     contractual obligations to Richland Township. On March 20,
     2012, PPL representatives revealed that MEM had never even
     informed PPL of the contract with Richland Township let alone
     communicated an intent to purchase the streetlights.

     Sergeant Michael Kisthardt of the Richland Township Police
     Department investigated MEM’s financial records. On March 11,
     2009, Richland Township submitted payment to MEM’s corporate
     account via wire transfer. Thereafter, from March to December
     2009, [Kearns] withdrew approximately $457,000 from the
     account. During this same time period, McLaine withdrew over
     $486,000 from the account. MEM was unable to perform the
     required work because of PPL’s determination, and MEM was
     unable to return the funds tendered by Richland Township.

     [Kearns] is charged before this Court with theft by unlawful
     taking, theft by failure to make required disposition of funds
     received, and criminal conspiracy. Patrick Joseph McLaine is also
     charged before this Court in connection with these facts.

     On November 12, 2013, [Kearns] filed his omnibus pre-trial
     motion and supplemental brief. Included therein were [Kearns’]
     motion for habeas corpus, motion to dismiss and/or join
     pursuant to compulsory joinder, motion to dismiss due to double
     jeopardy, and motion for bill of particular[s]. McLaine filed a
     similar motion on November 22, 2013. On April 28, 2014, we
     held a hearing on the motions filed by [Kearns] and [McLaine].
     On June 20, 2014, after consideration of the pre-trial motions,
     the briefs filed by the parties, and arguments made at the
     hearing, this Court issued and order denying the motions. On

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      July 11, 2014, [Kearns] appealed the denial of the motions to
      dismiss. McLaine filed his notice of appeal on July 3, 2014.

      Both [Kearns] and McLaine were previously tried in Northampton
      County, where each [was] convicted and acquitted of various
      charges. Furthermore, both were charged with similar offenses
      in Cumberland County and Lehigh County.

Trial Court Opinion, 9/3/14, at 1-3 (citations omitted).

      On appeal, Kearns raises the following issues for our review:

      1. Whether the information should be dismissed pursuant to
         compulsory joinder because . . . Kearns was already tried for
         the same alleged offenses in Northampton County and is
         currently charged with the same offenses in Cumberland and
         Lehigh Counties.

      2. Whether the information should be dismissed because it
         violates . . . Kearns’ constitutional and statutory protections
         against double jeopardy where . . . Kearns has already been
         tried for the same alleged offenses in Northampton County.

Brief of Appellant, at 2.

      The issues raised by Kearns involve questions of law, and therefore

our standard of review is de novo and our scope of review is plenary.

Dawson, supra at 826-27 (citation omitted).

      The compulsory joinder rule provides, in relevant part:

      § 110.       When     prosecution      barred        by      former
                   prosecution for different offense

      Although a prosecution is for a violation of a different provision
      of the statute than a former prosecution or is based on different
      facts, it is barred by such former prosecution under the following
      circumstances:

      (1)   The former prosecution resulted in an acquittal or in a
            conviction as defined in section 109 of this title (relating to
            when prosecution barred by former prosecution for the
            same offense) and the subsequent prosecution is for:



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      (i)          any offense of which the defendant could have been
                   convicted in the first prosecution;

      (ii)         any offense based on the same conduct or arising from
                   the same criminal episode, if such offense was known to
                   the appropriate prosecuting officer at the time of the
                   commencement of the first trial and occurred within the
                   same judicial district as the former prosecution unless
                   the court ordered a separate trial of the charge of such
                   offense;

      (iii)        the same conduct, unless:

             (A)   the offense of which the defendant was formerly
                   convicted or acquitted and the offense for which he
                   is subsequently prosecuted each requires proof of a
                   fact not required by the other and the law defining
                   each of such offenses is intended to prevent a
                   substantially different harm or evil; or

             (B)   the second offense was not consummated when the
                   former trial began.

18 Pa.C.S. § 110.

      Our Supreme Court has summarized the requirements of section

110(1)(ii) as follows: (1) the former prosecution resulted in an acquittal or

a conviction; (2) the current prosecution is based upon the same criminal

conduct or arose from the same criminal episode as the former prosecution;

(3)   the     prosecutor   was   aware   of    the   instant   charges   before   the

commencement of the trial on the former charges; and (4) the current

offense occurred within the same judicial district as the former prosecution.

See Commonwealth v. Fithian, 961 A.2d 66, 72 (Pa. 2008).

      In this case, there is no dispute with regard to the first and third

requirements.        It is clear that Kearns was prosecuted in Northampton



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County, where he was convicted of some offenses and acquitted of others.

The Commonwealth also concedes that it was aware of the instant charges

before commencement of the trial in Northampton County.

      In deciding whether the current prosecution is based upon the same

criminal conduct or arose from the same criminal episode as the former

prosecution, courts consider “the temporal and logical relationship between

the charges to determine whether they arose from a single criminal

episode.” Commonwealth v. Reid, 77 A.3d 579, 582 (Pa. 2013). As the

trial court explained:

      The determination of what constitutes a single criminal episode
      must not be approached in a “hypertechnical and rigid” manner
      that would defeat the purposes underlying Section 110. A single
      criminal episode is also not found merely because evidence of
      Appellant’s other crimes are relevant and admissible in this
      prosecution. Commonwealth v. Spotz, 759 A.2d 1280, 1285
      (Pa. 2005). Rather, we must consider two factors: (1) the
      logical relationship between the acts, and (2) the temporal
      relationship    between   the   acts.   [Commonwealth        v.]
      Bracalielly, 658 A.2d [755,] 761 [(Pa. 1995)].

      In evaluating the logical relationship, “we must . . . be aware
      that a mere de minimis duplication of factual and legal issues is
      insufficient to establish a logical relationship between offenses.
      Rather what is required is a substantive duplication of issues of
      law and fact.” Id. Several factors may be considered including
      the number of different victims and witnesses, the location of the
      crimes, the days on which the crimes occurred, and the number
      of different investigations. Spotz, 759 A.2d at 1286.

      We further note that compulsory joinder serves two distinct
      policy considerations: “(1) to protect a criminal defendant from
      the governmental harassment of being subjected to successive
      trials for offenses stemming from the same criminal episode;
      and (2) as a matter of judicial administration and economy, to
      assure finality without unduly burdening the judicial process by


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     repetitious litigation.” Commonwealth v. Wittenburg, 710
     A.2d 69, 73 (Pa. Super. 1998).         However, “[th]ese policy
     concerns must not be interpreted to sanction ‘volume
     discounting’ or . . . to label an ‘enterprise’ an ‘episode.’ This
     Court has never categorized seven months of individual criminal
     activity, with distinct layer of illegality, as a single criminal
     episode.” Commonwealth v. Nelson, 855 A.2d 834, 840 (Pa.
     2004) (superseded by statue on other grounds). In Nolan, the
     [d]efendant stole at least twenty-five (25) vehicles from
     numerous individuals and eleven (11) dealerships over a seven-
     month period. The Nolan Court acknowledged [the d]efendant’s
     actions constituted one ongoing criminal enterprise, but viewed
     each week as a separate criminal episode. Further, the Nolan
     Court distinguished Commonwealth v. McPhail, 692 A.2d 139
     (Pa. 1997), where three months of activity were designated a
     single criminal episode because “that case involved one
     defendant selling drugs to one undercover officer.” Nolan, 855
     A.2d at 840.

     In the instant case, the logical and temporal relationship
     between the acts reveals several criminal episodes. [Kearns]
     was involved in a business that worked with various
     municipalities that spanned at least four counties across the
     Commonwealth. MEM, through [Kearns], entered into separate
     contracts with each municipality at different times. In particular,
     Richland Township obtained MEM’s services in March 2009.
     MEM, both prior to and after this date, entered into contracts
     with other municipalities. Further, MEM’s nonperformance varied
     under each of the separate contracts. For instance, while PPL
     had knowledge of some MEM contracts, MEM never informed PPL
     of their contractual relationship with Richland Township. In
     addition, each contract required MEM’s performance not in one
     single location, but rather, in the various townships in which the
     streetlights were located.

     Furthermore, much like in Nolan, MEM’s failure to perform on
     the various contracts resulted in numerous victims across
     several counties. Consequently, prosecuting [Kearns’] crimes
     would require material witnesses not used as well as testimony
     not elicited in the prior prosecution in Northampton County. The
     charges brought in Cumberland and Lehigh Counties would also
     require different material witnesses, including township officials
     that negotiated their respective contracts with MEM and
     [Kearns].      In addition, Sergeant Michael Kisthardt of the
     Richland Township Police Department investigated the crimes as

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J-A02042-15


      they pertained to Richland Township, which led to the charges
      before this Court. While some involvement or coordination may
      have taken place, Kisthardt and the authorities in the other
      counties each began and conducted separate investigations for
      their respective municipalities.

      Although [Kearns] may have engaged in a criminal enterprise
      involving a common scheme and method, the various contracts,
      victims, witnesses, locations, and investigations demonstrate
      that the crimes charged in this matter are a wholly separate
      criminal episode. Therefore, [Kearns] failed to establish a right
      to dismissal of the charges before this Court pursuant to
      compulsory joinder.

Trial Court Opinion, 9/3/14, at 5-7.

      The trial court further opined that the fourth requirement for

compulsory joinder, namely, that the current offense occurred within the

same judicial district as the former prosecution, was not established in this

case. Here, the offenses charged relate to the contract between MEM and

Richland Township for the transfer of streetlights located in Richland

Township, Bucks County.     Because the offenses charged do not relate to

conduct that occurred in Northampton County, compulsory joinder was

improper. Id. at 8.

      The trial court’s analysis and conclusions are consistent with 18

Pa.C.S. § 110 and the decisional law interpreting the statute. Accordingly,

we agree that Kearns is not entitled to relief on his compulsory joinder

claim.

      Kearns next asserts that the criminal information against him should

be dismissed because it violates his protections against double jeopardy. In

reviewing his claim, we note:

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      Consideration of the constitutional protections contained in the
      double jeopardy clauses is necessary where the statutory
      provisions relating to subsequent prosecutions are not
      applicable. Commonwealth v. Keenan, 530 A.2d 90, 93 (Pa.
      Super. 1987) (citations omitted). We employ a unitary analysis
      of the state and federal double jeopardy clauses since the
      protections afforded by each constitution are identical. Id. at 93
      (citations omitted). The protections afforded by double jeopardy
      are generally recognized to fall within three categories: (1)
      protection against a second prosecution for the same offense
      after an acquittal; (2) protection against a second prosecution
      for the same offense after conviction; and (3) protection against
      multiple punishments for the same offense. Id. at 93 (citations
      omitted). The constitutional prohibition of double jeopardy also
      protects the convicted defendant from multiple prosecutions for
      the same offense, requiring a “single criminal episode” analysis.
      See [Commonwealth v.] Gimbara, 835 A.2d [371,] 374 [(Pa.
      Super. 2003).]

Commonwealth v. Schmidt, 919 A.2d 241, 250 (Pa. Super. 2007).

      We agree with the trial court that, in light of its conclusion that Kearns’

actions in Bucks County and in Northampton County constituted separate

criminal episodes, the protections of the double jeopardy clauses of the state

and federal constitutions are inapplicable to this matter. Trial Court Opinion,

9/3/14, at 8-9.

      Order affirmed. Jurisdiction relinquished. Case remanded for further

proceedings.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/27/2015

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