J-S23010-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    CHRISTOPHER CHARLES CUSH                   :
                                               :
                       Appellant               :   No. 1965 EDA 2017

             Appeal from the Judgment of Sentence April 24, 2017
      In the Court of Common Pleas of Bucks County Criminal Division at
                       No(s): CP-09-CR-0006327-2016


BEFORE:      SHOGAN, J., NICHOLS, J., and STEVENS*, P.J.E.

MEMORANDUM BY SHOGAN, J.:                                 FILED JUNE 08, 2018

       Appellant, Christopher Charles Cush, appeals1 from the judgment of

sentence entered on April 24, 2017 in the Court of Common Pleas of Bucks

County. We affirm.

       The trial court summarized the factual and procedural history of this

case as follows:

            On April 24, 2017, Appellant appeared before this [c]ourt
       and pled nolo contendere to one count of Receiving Stolen
       Property.1 These charges arose when, on May 6, 2016, victim
       [Ms. M.] left her home in Newtown Township, Bucks County,
       Pennsylvania at noon and returned at approximately 3:00 P.M. to
____________________________________________


1 In his notice of appeal, Appellant purports to appeal “from the withdrawal of
post-sentence motions, entered on June 13, 2017.” Notice of Appeal,
6/16/17, at 1. It is evident however, that Appellant is challenging the
judgment of sentence imposed on April 24, 2017. See Commonwealth v.
Shamberger, 788 A.2d 408, 410 n.2 (Pa. Super. 2001) (“In a criminal action,
appeal properly lies from the judgment of sentence made final by the denial
of post-sentence motions.”).
____________________________________
* Former Justice specially assigned to the Superior Court.
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       find that the interior door, basement door and kitchen window
       [were] open, and that her kitchen and master bedroom [were] in
       disarray. [Ms. M.] found that various items of jewelry, cash, a
       violin and two DeWalt cordless drills were missing from the home.
       An investigation by Detective Christopher Bush of the Newtown
       Township Police Department revealed that Appellant had sold one
       Yamaha violin and one DeWalt Cordless drill to a Philadelphia
       pawnshop on the same day at approximately 4:39 P.M.2 Two shoe
       tread impressions were found on the first floor of the victim’s
       home between the kitchen and second floor stairway. Detective
       Bush identified one of these partial impressions as being
       consistent with that of a Converse sneaker.          According to
       Detective Bush, this sneaker tread impression was consistent with
       the tread impression and design of a pair of Converse sneakers
       worn by the Appellant. Ms[.] M[.] did not recognize the Converse
       sneaker tread impression as belonging to any member of her
       household.

              1   18 Pa.C.S. § 3925(a).

              2 Specifically, Appellant received $75 cash for the
              violin, sold at 4:39 P.M., and $40 cash for the DeWalt
              Cordless drill, sold at 4:44 P.M.

             On August 2, 2016, Newtown Township Police charged
       Appellant with Burglary,3 Criminal Conspiracy to commit
       Burglary,4 Criminal Trespass by Entering a Building or Occupied
       Structure,5 Theft by Unlawful Taking,6 and Receiving Stolen
       Property.7 On January 3, 2017, Appellant filed a Petition for Writ
       of Habeas Corpus arguing that Counts 1 through 4 were
       improperly held for court following his preliminary hearing. On
       March 2, 2017, a hearing was held before The Honorable Albert J.
       Cepparulo in which Counts 1 [through] 4[2] were dismissed. Upon
       request of the Bucks County District Attorney’s Office, the
       Philadelphia District Attorney’s Office issued a McPhail8 letter on
       March 8, 2017, allowing Bucks County to prosecute Appellant’s
       case. Appellant proceeded to trial on Count . . . . 5, and on March
       28, 2017, after a two-day jury trial before The Honorable Diane E.
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2 While the trial court in its opinion indicates that Counts 1, 3, and 4 were
dismissed by Judge Cepparulo, the parties at Appellant’s plea hearing
indicated that Counts 1 through 4 were dismissed. N.T., 4/24/17, at 27. The
same is indicated on Appellant’s sentencing order. Order, 4/24/17, at 1.

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      Gibbons, the court declared a mistrial due to a hung jury. On April
      24, 2017, Appellant appeared before this [c]ourt for a second trial
      and subsequently entered a negotiated nolo contendere plea to
      Count 5.9 Upon the Commonwealth’s recommendation, this
      [c]ourt sentenced Appellant to one day less than 1 year to one
      day less than 2 years [of] incarceration.

            3   Count 1: 18 Pa.C.S. § 3502(a)(2).

            4   Count 2: 18 Pa.C.S. § 903(a).

            5   Count 3: 18 Pa.C.S. § 3503(a)(1)(i).

            6   Count 4: 18 Pa.C.S. § 3921(a).

            7   Count 5: 18 Pa.C.S. § 3925(a).

            8   Commonwealth v. McPhail, 692 A.2d 139 (Pa. 1997).

            9  Specifically, Appellant pled nolo contendere to
            “retaining a violin and DeWalt drill knowing that they
            had been stolen or probably been stolen.”

            On April 27, 2017, Appellant filed a pro se Motion for
      Reconsideration of Sentence, followed by a counseled Motion to
      Modify and Reconsider Sentence on May 3, 2017. In both Motions,
      Appellant argued that he intended to cooperate with the
      Commonwealth in exchange for a reduced sentence. On May 24,
      2017, prior to the disposition of his motions to reconsider
      sentence, Appellant filed a pro se Notice of Appeal to the Superior
      Court from this court’s sentence imposed April 24, 2017.
      Commonwealth v. Christopher C. Cush, No. 1697 EDA 2017. On
      June 13, 2017, a hearing was held and Appellant withdrew his pro
      se Motion for Reconsideration and his Motion to Modify and
      Reconsider Sentence. Appellant subsequently filed a counseled
      Notice of Appeal to the Superior Court on June 16, 2017.
      Commonwealth v. Christopher C. Cush, No. 1965 EDA 2017. On
      August 7, 2017, the Superior Court dismissed Appellant’s pro se
      Notice of Appeal, No. 1697 EDA 2017, as duplicative of the appeal
      docketed at No. 1965 EDA 2017.

Trial Court Opinion, 10/18/17 at 1-3 (internal citations omitted).




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       Appellant presents the following issue for our review: “Whether it was

improper for the Bucks County Court of Common Pleas to exercise venue when

the alleged crime of receiving stolen property occurred in Philadelphia

County?” Appellant’s Brief at 4. Appellant asserts that once the charges of

burglary, criminal trespass, and theft by unlawful taking were dismissed, the

nexus between Appellant’s charges and Bucks County was broken, and

therefore, Bucks County was no longer the proper venue in which to prosecute

Appellant for receiving stolen property. Id. at 8, 10-12. Appellant further

maintains that because venue was improper, his conviction for receiving stolen

property should be reversed and the sentence vacated. Id. at 8.

       “[W]hen a defendant enters a guilty plea,[3] he or she waives all defects

and defenses except those concerning the validity of the plea, the jurisdiction

of the trial court, and the legality of the sentence imposed.” Commonwealth

v. Stradley, 50 A.3d 769, 771 (Pa. 2012). As noted, Appellant is challenging

venue in this case. Our Supreme Court has explained that “[s]ubject matter

jurisdiction and venue are distinct.” Commonwealth v. Bethea, 828 A.2d

1066, 1074 (Pa. 2003). “Subject matter jurisdiction relates to the competency

of a court to hear and decide the type of controversy presented. Jurisdiction

is a matter of substantive law.” Id. (internal citation omitted). “Venue relates


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3 “It is well established that a plea of nolo contendere is treated as a guilty
plea in terms of its effect upon a given case.” Commonwealth v. V.G., 9
A.3d 222, 226 (Pa. Super. 2010).


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to the right of a party to have the controversy brought and heard in a

particular judicial district.     Venue is predominately a procedural matter,

generally prescribed by rules of this Court. Venue assumes the existence of

jurisdiction.” Id. (internal citations omitted).

       Thus, Appellant’s challenge to venue is not a challenge to the court’s

jurisdiction. Additionally, Appellant’s claim does not contest the validity of the

plea or the legality of sentence. Accordingly, Appellant’s challenge to venue

has been waived by entry of his plea of nolo contendere.

       Assuming arguendo that Appellant had not waived his claim, we agree

with the trial court’s conclusion that venue in this case was proper.4 “Venue

in a criminal action properly belongs in the place where the crime occurred.”

Commonwealth v. Gross, 101 A.3d 28, 33 (Pa. 2014). “Generally, venue

begins in the court with a geographic connection to the underlying crime. If

a litigant moves to change venue, that litigant must demonstrate some

necessity to justify the change in venue.” Commonwealth v. Dixon, 985

A.2d 720, 722 (Pa. 2009).          The Pennsylvania Rules of Criminal Procedure

contemplate that there may be a choice of venue in a criminal case and that

cases may be transferred when necessary and appropriate. Rule 130(A)(3)



____________________________________________


4 Appellant challenged venue by oral motion on March 2, 2017. The trial court
denied this motion by order entered March 24, 2017. Although the notes of
testimony from these proceedings are not in the record, the parties agree that
the motion was made orally on March 2, 2017. Appellant’s Brief at 5;
Commonwealth’s Brief at 9.

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of the Pennsylvania Rules of Criminal Procedure states, “When charges arising

from the same criminal episode occur in more than one judicial district, the

criminal proceeding on all the charges may be brought before one issuing

authority in a magisterial district within any of the judicial districts in which

the charges arising from the same criminal episode occurred.” Pa.R.Crim.P.

130(A)(3).    Moreover, this Court has held that where multiple offenses

committed across several counties are to be prosecuted in one county, “it is

not necessary that the county so chosen be the situs of each and every crime

charged. It is enough that one of the offenses being tried occurred in that

county.”   Commonwealth v. Brookins, 10 A.3d 1251, 1259 (Pa. Super.

2010). Venue may be changed

      “when it is determined after hearing that a fair and impartial trial
      cannot be [sic] otherwise be had in the county where the case is
      currently pending.” Pa.R.Crim.P. 584(A). The moving party bears
      the burden of showing that such a change is necessary and must
      demonstrate that he or she cannot receive a fair and impartial trial
      in the county in which venue was originally established. See
      Bethea, 828 A.2d at 1075 (“[I]t is important to keep in mind the
      primary concern in change of venue cases; does the location of
      the trial impact on the ability of the parties to have their case
      decided before a fair and impartial tribunal?”). In evaluating the
      likelihood of prejudice, our Supreme Court has considered
      whether trial in the original venue caused the defendant to incur
      undue expense, whether the location of the trial rendered the
      defendant unable to obtain the presence of defense witnesses or
      evidence, whether the prosecution was engaged in forum
      shopping to obtain an advantage over the defense, see id. at
      1077, and of course, whether pre-trial publicity rendered a fair
      trial unlikely.

Id. at 1259 (internal citation omitted).




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       Here, the evidence presented at the preliminary hearing established that

the theft of the goods occurred in Bucks County. N.T., 9/26/17, at 5-8. While

Appellant pled nolo contendere to receiving the stolen property, it is unclear

where Appellant received those goods.5 The evidence is sufficient, therefore,

to establish that at least one incident in this criminal episode occurred in Bucks

County.      Moreover, this Court has provided the following analysis in

addressing charges of receiving stolen property:

       It is ... well established that unexplained possession in the
       defendant of property recently stolen is evidence that he is the
       thief. . . . if the indictment charges receiving stolen goods only,
       the unexplained possession is evidence of guilt of that crime.
       However, such evidence is not conclusive and may be rebutted.
       It is for the trier of fact alone to say whether the guilt of the
       defendant is a reasonable inference, fairly deducible from his
       possession of recently stolen property, in light of all the
       circumstances, including the reasonableness of his explanation, if
       any, as to how he came into possession.

Commonwealth v. Thomas, 451 A.2d 470, 473 (Pa. Super. 1982).

       At the preliminary hearing, evidence established that Appellant sold the

items stolen in Bucks County at the pawn shop in Philadelphia County.

Documentation acquired from the pawn shop reflects that the stolen items

were presented for sale by Appellant.            N.T., 9/26/16 at 17-20.     Video

surveillance from the pawn shop reflected that Appellant was the individual



____________________________________________


5 There is no evidence supporting Appellant’s claim that “it is undisputed that
the alleged crime of receiving stolen property occurred in Philadelphia.”
Appellant’s Brief at 10. The evidence establishes only that Appellant sold the
stolen property in Philadelphia.

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who sold the stolen goods. Id. at 20. Further, the evidence establishes that

Appellant was at the pawn shop selling the stolen items within hours of the

theft in Bucks County. Id. at 18. Additionally, testimony established that

shoe impressions were discovered at the scene of the burglary in Bucks

County. N.T., 9/26/16, at 20-21. The treads were consistent with Converse

foot wear.     Id. at 21-22.       Appellant was identified as wearing Converse

sneakers. Id. at 24. Moreover, Ms. M. testified that no one in her home wore

Converse shoes. Id. at 15. Thus, the rebuttable inference that Appellant was

the thief due to his possession of the stolen goods is supported by the

additional evidence regarding Appellant’s presence at the pawn shop with the

stolen items within hours of the theft and the shoe tread marks found at the

scene of the crime. Accordingly, the totality of circumstances supports the

conclusion that Appellant was involved in the crime that occurred in Bucks

County. Venue was therefore proper in Bucks County.6

       Appellant cites to Thomas in support of his position that Bucks County

was an improper venue. Appellant’s Brief at 10-11. In Thomas, a Delaware


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6Our Supreme Court has held that “[b]ecause the Commonwealth selects the
county of trial, . . . it shall bear the burden of proving venue is proper-that is,
evidence an offense occurred in the judicial district with which the defendant
may be criminally associated, either directly, jointly, or vicariously.” Gross,
101 A.3d at 33. The Court determined that venue should be proven by a
preponderance of evidence. Id. “Because venue is not part of a crime, it
need not be proven beyond a reasonable doubt as essential elements must
be.” Id. Furthermore, “venue need not be proven by direct evidence but may
be inferred by circumstantial evidence.” Id. For reasons discussed, venue in
Bucks County has been proven by a preponderance of the evidence.

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County home was burglarized, and a vehicle was stolen. Thomas, 451 A.2d

at 470-471. Thomas was later found and arrested in Montgomery County.

Id. at 471. The stolen vehicle was recovered in Montgomery County. Id.

Thomas was charged in Delaware County with burglary, theft by unlawful

taking, theft by receiving stolen property, and unauthorized use of a motor

vehicle. Id. Thomas was acquitted of the burglary and theft-by-unlawful-

taking charges. Id. As a result, this Court concluded that the nexus between

the remaining charges, receiving stolen property and unauthorized use of a

motor vehicle, and Delaware County was broken. Id. As a result, this Court

reversed the conviction because Delaware County did not have jurisdiction to

prosecute the crime. Id.

      Thomas is distinguishable from the current case. As noted, in this case,

additional evidence tying Appellant to the theft in Bucks County supported the

inference that Appellant had committed the crimes of burglary and theft in

Bucks County. That evidence included Appellant’s possession of the stolen

items shortly after the theft, his pawning of those items, and the fact that he

wore shoes having similar tread marks to those discovered at the scene of the

burglary and theft.     Moreover, Appellant has failed to present evidence

rebutting that inference. Thomas, 451 A.2d at 473. Thus, we find Thomas

to be inapplicable to this case.

      Furthermore, Appellant has failed to establish that he could not receive

a fair and impartial trial in Bucks County. Brookins, 10 A.3d at 1259. Thus,


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even if Appellant’s claim had not been waived, venue was proper in Bucks

County, and the trial court did not err in denying Appellant’s motion to transfer

venue to Philadelphia County.7

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/8/18




____________________________________________


7 We note that even if venue were not proper, Appellant would not be entitled
to vacation of his sentence. When improper venue is determined, the
appropriate remedy is transfer of the case to another judicial district. Gross,
101 A.3d at 36. “[D]ismissal is disproportionate and unjust where a court
merely finds another judicial district provides a more appropriate forum.” Id.

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