J-S24016-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

FREDRICK A. POSTIE,

                         Appellant                   No. 2442 EDA 2014


               Appeal from the Order entered July 15, 2014,
             in the Court of Common Pleas of Carbon County,
           Criminal Division, at No(s): CP-13-CR-0000340-2012
                       and CP-13-CR-0000343-2012


BEFORE: GANTMAN, P.J., ALLEN, and MUSMANNO, JJ.

MEMORANDUM BY ALLEN, J.:                             FILED APRIL 13, 2015

      Fredrick A. Postie (“Appellant”) appeals pro se from the order denying

and dismissing his “Motion to Dismiss Pursuant to Section 110 of the Crimes

Code.” We affirm.

      The trial court summarized the factual and procedural background as

follows:

             The pertinent facts in these two companion cases and the
      relevant case in Schuylkill County are neither lengthy nor
      complex. In later February of 2012, Police Officer Lori Lienhard,
      of the Summit Hill Police Department, interviewed [Appellant] as
      it related to various burglaries that occurred in Carbon and
      Schuylkill Counties. After admitting his involvement in these
      burglaries, a plethora of charges were filed against [Appellant] in
      both counties.

            More specifically, the Schuylkill County District Attorney’s
      Office charged [Appellant] with:        two counts of criminal
      conspiracy, four counts of burglary, eight counts of criminal
      trespass, four counts of theft by unlawful taking or disposition,
J-S24016-15


     four counts of receiving stolen property, four counts of criminal
     mischief, and three counts of loitering and prowling at night
     time, for the alleged burglaries that occurred at 268 East Main
     Street, Rush Township, 714 and 716 Claremont Avenue, Rush
     Township, and 474 Fairview Street, Rush Township, respectively.
     Moreover, the Schuylkill County District Attorney’s Office
     contended that these burglaries occurred sometime between
     December 12, 2011 and January 22, 2012.

           Around the same time, the Carbon County District
     Attorney’s Office filed similar charges against [Appellant],
     namely, criminal conspiracy, burglary, theft by unlawful taking,
     receiving stolen property, criminal mischief, and criminal
     trespass. As alleged in the information to the case indexed 340
     CR 2012, [Appellant] committed these various offenses at two
     residences located at 211 Yard Street, Nesquehoning, Carbon
     County, sometime between November 17, 2011 and December
     3, 2011. Pursuant to the case identified as 343 CR 2012, the
     Commonwealth has alleged that during the time period of
     November 30, 2011 through December 21, 2011, [Appellant]
     committed the offenses listed above at the residences located
     at: 99, 100, 116, and 495 West White Bear Drive, with all four
     residences located in the borough of Summit Hill, Carbon
     County.

            Thereafter, [Appellant] stood trial for the charges in
     Schuylkill County where, by a jury of his peers, he was convicted
     on twenty-five of twenty-nine counts. Subsequent to that trial,
     [Appellant] filed the instant compulsory joinder motion here in
     Carbon County. In the motion, [Appellant] argues that based
     upon his convictions in Schuylkill County on similar charges, the
     Carbon County District Attorney is barred from prosecuting him
     for alleged offenses that might have happened in Carbon County.

           After holding a hearing on the motion, [the trial court] by
     Court Order dated July 15, 2014, denied [Appellant’s]
     compulsory joinder motion, [from] which [Appellant] appealed
     []. [Although the trial court authored an opinion for submission
     to the Superior Court, it did not order Appellant to comply with
     Pa.R.A.P. 1925(b).]

Trial Court Opinion, 9/11/14, at 2-4 (footnotes referencing the applicable

statutes omitted).


                                   -2-
J-S24016-15



      Appellant presents a single question for our review:

      Did the Trial Court err in denying dismissal where the same
      witnesses and testimony, same evidence, and same investigation
      by the same officers that were used to produce a conviction in
      Schuylkill County and will be used in Carbon County at trial
      creates a Collateral Estoppel issue therefore barring the instant
      trial where the Commonwealth should have moved for joinder?

Appellant’s Brief at 4.

      We initially recognize that this interlocutory appeal is properly before

us because “an order denying a pretrial motion to dismiss on the grounds of

double jeopardy/collateral estoppel is a final, appealable order.” See, e.g.,

Commonwealth v. Winter, 471 A.2d 827, 828 n.1 (Pa. Super. 1984)

(citations omitted).      Our standard of review of issues concerning [18

Pa.C.S.A. §] 110 is plenary.    Commonwealth v. Reid, 35 A.3d 773, 776

(Pa. Super. 2012).

      We thus consider Appellant’s assertion that “the instant case is nearly

an exact copy of the prior case, [and] the issues have previously and fully

been litigated, barring the current prosecution.”     Appellant’s Brief at 9.

Appellant maintains that “the factors in [18 Pa.C.S.A. § 110] … have been

met and ultimately this case is violating [Appellant’s constitutional] rights

against double jeopardy.” Id.

      The Commonwealth counters that the trial court “properly found that

[Appellant] failed to meet all of the criteria necessary under the Compulsory

Joinder Rule, and therefore, failed to show that the prosecution currently




                                     -3-
J-S24016-15



pending in Carbon County is barred.”         Commonwealth Brief at 2.       Upon

review, we agree with the Commonwealth.

      With regard to compulsory joinder, the Crimes Code specifies:

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

     Although a prosecution is for a violation of a different provision
     of the statutes 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:



     (i) any offense of which the defendant could have been convicted
     on 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; or

     (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.



                                       -4-
J-S24016-15



18 Pa.C.S.A. § 110(1).

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

Supreme Court explained:

      As has been summarized by our Court, Section 110(1)(ii), which
      is the focus in this appeal, contains four requirements which, if
      met, preclude a subsequent prosecution due to a former
      prosecution for a different offense:



      (1) the former prosecution must have resulted in an acquittal or
      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 Nolan, 579 Pa. at 308, 855 A.2d at 839; Commonwealth v.
      Hockenbury, 549 Pa. 527, 533, 701 A.2d 1334, 1337 (1997).
      Each prong of this test must be met for compulsory joinder to
      apply.


Fithian, 961 A.2d at 72 (underline added for emphasis).

      In the instant case, the Commonwealth conceded that the first and

third prongs articulated in 18 Pa.C.S.A. § 110 and Fithian had been met.

Upon review, we find that the Honorable Joseph J. Matika, sitting as the trial


                                    -5-
J-S24016-15



court, has provided a thoughtful analysis, concluding that the second and

fourth prongs (whether Appellant’s offenses arose from the same criminal

episode and in the same judicial district as the former prosecution) were not

met.     In    explaining   his   conclusion,   Judge   Matika   has   authored   a

comprehensive and well-reasoned opinion in which he artfully applies

pertinent statutory and case law to the facts of record in this case, such that

further commentary by this Court would be redundant.              Accordingly, we

adopt Judge Matika’s September 11, 2014 opinion as our own in disposing of

this appeal.

       Order affirmed. Jurisdiction relinquished. Case remanded for further

proceedings.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/13/2015




                                        -6-
                                                                                                    Circulated 03/25/2015 01:39 PM
'


           IN THE COURT OF COMMON PLEAS OF CARBON COUNTY, PENNSYLVANIA

                                                CRIMINAL DIVISION

     COMMONWEALTH            OF PENNSYLVANIA

                      vs.                                            No. CR 340-2012
                                                                     No. CR 343-2012

    FREDERICK         ANDREW        POSTIE,

                               Defendant


    .Jean A. EngJ_er., Esquire                                        Counsel for Commonwealth
                                                                     .Assistant: t7!.L~-C'.L.::.Lct Attorney

    Frederick         A. Postie                                      Pro Se


                                            MEMORANDUM           OPINION

    Matika,     J.     - September             H ,     2014

             On July          15,     2014,       this    Court       issued        an     Order         of     court

    denying     and dismi·ssing                 Defendant's          "Motion       to    Dismiss          Pursuant

    to     Section      110 of        the      Crimes Code."              Defendant,           subsequent           to

    that     order,          and    on    the     eve     of     trial,         appealed       this           Court's

    decision.           This        memorandumopinion                is   offered         to    the       Superior

    Court,      in          accordance          with      Pennsylvania             Rule        of       Appellate

    Procedure          1925 (a),         ·to     expand        upon       the      brief        holding            and
                                                                                         1
    rationale         set     forth in the July                15,   2014 order.               Respectively,


    1
       A defendant     is entitled to an immediate   interlocutory appeal as of right
    from an order denying a non-frivolous       motion to dismiss on double jeopardy
    grounds.        Commonwealth   v.  Orie, 22 A.3d    1021   (Pa.   2011);  see also,
    Commonwealth v. Feaser, 723 A. 2d 197 (Pa. Super. Ct. 1999) (Pretrial         orders
    denying    double    jeopardy claims   are immediately appealable     in absence of
    written   finding    of frivolousness by the hearing court.}      Moreover, a claim

                                                     [FM-46-141
                                                          l
                                                                                  Circulated 03/25/2015 01:39 PM




    this Court recommends to the Honorable Superior Court to dismiss

    Defendant's appeal accordingly.

                          FACTUAL AND PROCEDURAL BACKGROUND

           The pertinent           facts     in these two companion cases                  and the

    relevant        case     in    Schuylkill       County   are     neither       lengthy       nor

    complex.           In    later      February     of   2012,     Police        Officer      Lori

    Lienhard,        of the Summit Hill         Police Department, interviewed                   the

    Defendant        as it     related     to various burglaries -·ci?at occurred in

    Carbon and Schuylkill               Counties.    After admitting his involvement

    in these        burglaries,         a plethora of charges         were       filed     against

    the Defendant in both counties.

          More         specifically,          the     Schuylkill           County        District

Attorney's            Office       charged    the Defendant         with:       two counts of

    criminal        conspiracy, 2 four counts of burglary,                 3
                                                                               eight counts of

    criminal        trespass,4 four counts of theft by unlawful taking or
                      5                                                                    6
disposition,               four counts of          receiving      stolen       property,       four


that the compulsory joinder statute prohibits a subsequent prosecution of the
defendant implicates   doubl e jeopardy principles.    See,  Commonwealth  v.
Schmidt, 919 A.2d 241 (Pa. Super. Ct. 2007).
2
     18 Pa.C.S.A.     § 903 (a} {J.).

3
     18 Pa.C.S.A.     § 3502(a).

4
  Four of the counts of criminal trespass alleged that the Defendant broke
into a building or occupied structure, a violation of 18 Pa.C.S.A.            §
3503 (a) (J.) (ii). The other four counts of criminal trespass assert that the
Defendant violated subsection (a) (l) (i}, that.being the Defendant entered and
remained in the building or structure.
5
     18 Pa.C.S.A.     § 392l(a).



                                             [FM-46-14]
                                                  2
                                                                                    Circulated 03/25/2015 01:39 PM




    counts of criminal mischief,7                   and three counts of loitering and

    prowling at night time,8 for the alleged burglaries that occurred

    at 268 East Main Street, Rush Township, 714 and 716 Claremont

    Avenue, Rush Township, and 474 Fairview Street,                               Rush Township,

    respectively.                 Moreover,        the         Schuylkill       County         District

    Attorney's           Office     contended           that     these       burglaries        occurred

    sometime between December 12, ·2011 and January 22, 2012.

            Around the ~ame time, the Carbon County District Attorney's

    Office     filed       similar        charges       against        the    Defendant,       namely,

    criminal        conspiracy,           burglary,        theft        by     unlawful        taking,

    receiving       stolen        property,        criminal        mischief,9      and     criminal

    trespass.       As alleged in the information to case indexed 340 CR
                                                                                                                     ,·1,
    2012,     Defendant           committed        these        various        offenses        at     two
                                                                                                                     '
                                                                                                                     ,.
    residences       located        at     211    Yard     Street,          Nesquehoning,       Carbon

    County,    and        134     Stock     Street,        Nesquehoning,         Carbon        County,

    sometime       between        November        17,     2011        and    December     3,        2011.

Pursuant to the case identified as 343 CR 2012,                                 the Commonwealth

has alleged that during the                        time period of November 30,                       2011

through        December          21,      2011,    Defendant          committed    the     offenses

listed above at the residences located at: 99, 100,                                 116, and 495

West        White    Bear        Drive,     with    all        four    residences located              in

6
7
    18 Pa.C.S.A.     s   392S(a).
    18 Pa.C.S.A.     §   3304 (a) (S).
8
    18 Pa.C.S.A.     s   5506.
9
    18 Pa.C.S.A.     §   3304 (~) (2) .

                                              [FM-46-14J
                                                    3
                                                                                                Circulated 03/25/2015 01:39 PM




borough of Summit Hill,                 Carbon County.

         Thereafter,           Defendant          stood         trial          for     the        charges              in

Schuylkill            County      where,       by        a     jury       of    his        peers,         he      was

convicted on twenty-five                     of twenty-nine                counts.           Subsequent to

that        trial,      Defendant           filed        the       instant        compulsory              joinder

motion here in Carbon County.                            In the motion, Defendant argues

that based upon his convictions in Schuylkill County on similar

charges,         Carbon        . County       District              Attorney          is        barred          from

prosecuting him for alleged offenses that might have happened in

Carbon County.

         After holding a hearing on the motion, this Court, by Court

Order dated July lS,                  2014, denied Defendant's                       compulsory joinder

motion, to which the Defendant has appealed that order.

                                             DISCUSSION

         The compulsory joinder rule,                        as set forth in Section 110 of

the Pennsylvania              Crimes Code,           bars a subsequent prosecution if

all      of     the    following            criteria          are        present:      1)         the      former

prosecution           .re su l.t.ed    in    an     acquittal             or    convi·ction;              2)      the

current prosecution was based upon the same criminal conduct or

arose from the same criminal episode; 3)                                    the prosecutor in the

subsequent           trial     was     aware        of       the        charges      before         the        first

trial;        and 4) all charges were within the same judicial district

as    the      former prosecution.                   See,          18    Pa.C.S.A.          s     llO{l)       {ii);


                                              [FM-46-141
                                                     4
                                                                                               Circulated 03/25/2015 01:39 PM




Commonwealth          v.       Hockenbury,           701    A.2d        1334     (Pa.     1997).          In the

case at bar,          the Commonwealth concedes that the first and third

prongs of this test                    are met;       thus,           the only consideration left

for the Court was to determine                             if    the second and fourth prongs,

those being whether                    the offense               arose from          the same           criminal

episode       and         in     the     same        judicial           district          as      the     former

prosecution,          were           present.         If        so,     then Section              110     of    the

Pennsy.l vania        Crimes Code would forb.id the Carbon County District

Attorney's           Office           from        prosecuting           the     Defendant            on     these

related offenses.

        The    second           prong        of     the     compulsory              joinder       rule,        also

labeled as the logical relationship prong,                                      compares the present

prosecution          to        the    former to            determine           if    both prosecutions
                                                                                                                                ..
arose     from        the        same        criminal            conduct        or      episode.               See,

Commonwealth v.             Nolan,       855 A. 2d 834                (Pa. 2004) .           As directed by

the Pennsylvania Supreme Court in Commonwealth                                        v. Hude, 458 A.2d

177,    181-82       (Pa.       1983),       the courts must examine the logical                                and

temporal      relationship               between           the    criminal           a.cts     to determine

whether they constitute                   the same ''episode. "                     Subsequent readings

of Rude have commented that such analysis of this prong cannot

be made       "by    merely           cataloguing           simple       factual         similarities or

differences          be tween           the        various            off enses         with      which         the

defendant was charged."                       Commonwealth v.                 Bracalielly,            658 A. 2d

755, 761      (Pa.    1995).           In deciding the logical relationship prong

                                                  [FM-46-14]
                                                       5
                                                                                                           Circulated 03/25/2015 01:39 PM

J
     of    the compulsory j oinder                      rule,             "mere     de minimis            duplication                     of

     factual        and legal            issues      is     insufficient                 to establish a logical

     relationship               between         offenses.                  Rather       what     is        required                 is        a

     substantial            duplication           of issues                of law and fact."                    Id.

             Accordingly,                the      courts          should          not     construe              the         phrases

     "single         criminal            episode"          in         a    strict        sense        especially                    when

    considering             the policy            reasons             of    compulsory         joinder,                namely            to

l   protect           a     ·person            accused           of        cr   Lme s    from "'.r.h,;;,             ~l')'.':/'F.:l:·>::"Ue:nt

i   harassment             resulting             from      being           forced        to    undergo               successive
I   trials         for     offenses         originating                   from the same criminal                          episode,

    as     well      as     for     judicial         economy purposes.                         Hude,            458 A. 2d at

    180.          "However,          'these       policy          concerns must                not        be     interpreted

    to     sanction             "vo Lume discounting."'"                            Commonwealth                v.      Reid,            35

    A.3d 773,             776     (Pa.     Super.         Ct.     2012) (quoting Nolan,                         855 A.2d                 at

    840) .

             In      examining             the      "temporal"                  and     "logical"               relationship

    between the charges                    in this County                   and the charges                in Schuylkill

    county,        the Court             finds that th~ two prosecutions are temporally

    related as             the      two matters            overlap              each other           in     terms            of       the

    dates         these         alleged        crimes       occurred.                   The    alleged               crimes in

    Carbon        County occurred between                             November          17,    2011 and December

    21,     2011,         while      the       crimes           Defendant             was found guilty                         of        in

    Schuylkill             County          occurring             between              December            12,         2011           and

    January        13,     20·12.

                                                          [FM-46-14]
                                                               6
                                                                                                                    Circulated 03/25/2015 01:39 PM




          Turning           to     the        issue         of        the         logical          relationship                    between

 the     two prosecutions,                        there        is      some duplication                       between          the         two

 matters;           however,             a        substantial                duplication                 of      fact         and          law

 between        the     matters              in     Carbon          County           and     the        former       prosecution

 in      Schuylkill               County            does         not         exist.                In     this           subsequent

 prosecution            of         the        Defendant,                    the      alleged             victims              are          all

 different           from        the        victims         in       Schuylkill              County,           as       are        all      of

 the     Locat.Lons         of        the     alleged            burglaries,                 and     thu...s-~~ach            required

different            investigations                   by        the        police.             See,           Commonwealth v.

Spatz,         756     A.2d            1139,        1159            (Pa.          2000) (Spatz            II) {Pennsylvania

Supreme         Court            ruled        the         subsequent                action          was       not       barred              by

Section         110         of         the        compulsory                joinder            statute              where            three

homicides            occurred               within         a        three-day               period        as        "there               were

three         victims            in         three          different                 counties             requiring                 three

different           investigations,                       and       different               witnesses               [] necessary

 [for]      each trial.");                   see also            Hude,        458      A. 2d at          183 (The law and

facts       between         the         two prosecution                       did      not      LnvoLve a situation

where different                  evidence           was required                    as the         Commonwealt:h's                       case

rested        upon the credibility                         of a single                witness.)

         The Court           views            Defendant's                  alleged           conduct          to     be that               of

multiple        episodes               of     the         same criminal                     enterprise              rather               than

that     of     a     single           criminal             episode.               From mid-November                          of     2011

through        mid-January               of 2012,            the       Defendant              allegedly             burglarized

various properties,                         some being              residences               and others               unoccupied

                                                          [FM-46-14]
                                                               7
                                                                                                                     Circulated 03/25/2015 01:39 PM




 structures,                   within            a     certain            locality.                    The main          commonality

 between             these           properties                   was that            they            were     vacant          and        they

 contained                copper,          copper            piping,          copper           wiring,         or   other        various

 scrap         metal.                As the            Nolan Court                   so     cleverly             stated,         '' [m] uch

 like          a      television                     sitcom,             each         week's             story       has         similar

 characters,                  producers,                 and        continuity                 of      storyline,              but        each

week           is         a     separate               episode-the                   series            of     episodes               is      an

enterpri.se ...                 Such        is        the     scenario           here;              Ide r endaar l starred                   in

his      own series                  with        multiple              episodes             in        each    county."               Nolan,
855 A.2d             at       840.

          Defendant,                  in     his        motion           and argument                   to    the    Court,           cited

to      this         Court's              order         dated          September                 9,     2013,       in     which           the

Court          addressed               and           disposed            of     Defendant's                  omnibus        pre-trial

motion.               Defendant                  points            out        that        in        footnote         two        of        that

order,         the        phrase           "single           criminal           episoden               appears       and thus,              as

Defendant             argued,              since        the        Court       concluded               in    the prior          hearing

that      the         prosecutions                      in        Carbon        and         Schuylkill              Counties               are

derived             from the            same criminal                    episode,              the      Court       must likewise

conclude             the       same for               this         current       motion.                 The Court             finds        it

is     necessary              to note            that        it     was Defendant                     who defined          these           two

prosecutions                   as     a     single            criminal               episode           as     the    sentence               in

which      Defendant                  is         referring               to     reads:              "Defendant           recognized

that      the             two        suppression                   motions            are         based        upon        a     single

criminal            episode."               Nowhere did this                         Court make such a finding.

                                                                  [FM-46-14]
                                                                         8
                                                                                                                                             Circulated 03/25/2015 01:39 PM




           More importantly,                                         the               issue          in        the         previous             hearing.        was

 whether            this           Court,                in        Carbon                County,            must            adopt         and      incorporate

 the          ruling                of          Judge                         Domalakes                    in             Schuylkill               County             to

 Defendant's                     suppression                             motion,                and        if         so,          does      the     Defendant

 have      new evidence                             to        present                    that       was previously                        unavailable               to

 him     at      the          first           suppression                                hearing            in            Schuylkill.                In    citing

 to      Commonweal
                 th                             v.                Lagana,                     509      A. 2d               863        (Pa.         1986)         and

 Cozmnonwealth                     v.     Camperson,                               650         A.2d        65         (Pa.          Super.         Ct.     1994),

 the       Court              answered                            that             issue              in        the           affirmative                 as     the

 Pennsylvania                      Supreme                    Court                    ruled        that             \\where         two        prosecutions

arise         out           of      a single                        search                 and/or           seizure,                 a decision                by a

suppression                      judge              during                    the         first            prosecution                    can,       upon        the

motion          of           the         previous                            prevailing                party,                 become         part         of     the

second          prosecution.                        11
                                                                   Lagana,                    509      A. 2d          at       866.           At     no point

prior          to           this         order                    has             this          Court               addressed              the       issue        of

whether          the          prosecutions                                   in        Schuylkill               County              and Carbon County

originate               from the                same criminal                                  episode.

         As     <;).    re·s1,1l t, of the
                                    f.    •   -··        •    \
                                                                    Court'    •    •
                                                                                        finding            that ~
                                                                                                                           the. char qes in Carbon

County         have              not      arose                     from                the      same criminal                         episode            as    the

charges                in          Schuylkill                                County,                not             all        four          criteria            of

compulsory                  j oinder                are present.                                  Consequently,                       this         Court       need

not     inquire               into        the                fourth                prong          of this                  test,      that         being       that

all     charges                  in       these                    two             prosecutions                       were          within          the        same

judicial               district                     as            the             former              prosecution.                         However,             for

                                                                                  [FM-46-14]
                                                                                       9
                                                                                                 Circulated 03/25/2015 01:39 PM




purposes         of      being           thorough,            and        since       Defendant's             appeal

implicates              double          jeopardy            principles              which        have        severe

ramifications            if infringed upon,                   the Court feels               it is necessary

to also         address        the compulsory                 joinder statute's               fourth prong.

See,      Commonwealth             v.    Rightley,            617 A.2d           1289     (Pa.      Super.          Ct.

1992) .                                                                                                                           •·

        To fully understand what the General                                     Assembly        meant by the

phrase      "judicial             district,n             it       is     necessary          to      review          the

context         that      prompted             the     legislature             to     amend         the      former

compulsory j cinder                    statute.          In       Commonwealth           v.      McPhail,           692

A.2d      139     {Pa.         1997),       the        Pennsylvania              Supreme         Court,        in     a

plurality         decision,             held that Section                  110·     mandated          that      drug

transactions            that occurred in two counties,                            which did constitute

a   single        criminal              episode,         had        to    be      tried       in      a      single

proceeding.              Id.      at    144-45.             The    McPhai 1         Court reasoned              that

"counties        are not          separate            sovereigns          and do not derive                   their

power     to     try                      drug        cases       from      independent             sources          of

power. "        . Id.      ·4tt    142.
                                   •,".              The;refore,          "[t]heir        subject           matter

jurisdiction              flows          from          the        sovereign             Corrmonwealth               of

Pennsylvania            and       is     not      circumscribed             by      county         territorial

limits."         Id.

       In reaching             its conclusion,                the McPhail            Court analyzed the

Pennsylvania             Constitution,                and     more        specifically              Article           V

Section     5;     this section                reads        in relevant part that:                        '' [t] here

                                                  [FM-46-14]
                                                         10
                                                                                           Circulated 03/25/2015 01:39 PM




     shall be one court of common pleas                  for each            judicial          district          .

         having   unlimited           original    jurisdiction              in all cases              except

     as may otherwise      be provided by law."               Id. at 141.

          As stated by the Pennsylvania Supreme Court in Commonwealth

     v. Fithian, 961 A.2d 66 (Pa.             2008), "[i]n direct response to our

 Court's      decision          in     McPhail,       the    General              Assembly         amended

 Section 110 (1) (ii)           to its current language.                          Specifically,           the

 legi,slo.t~r.e      in   pciX&:graph      (l} (ii)     s-. J.bs·tit.uted        . .the:   phl:as~        'was

 within the jurisdiction of a single court' with 'occurred within

 the aame judicial district as the former prosecution.'"                                            Id.     at

 76.     (internal citation omitted) .                Accordingly, the Fithian Court

 concluded that the legislative intent of the compulsory joinder

 s t atute was to limit mandatory j cinder to                               only those offenses

occurring in a single judicial district.                            Id. at 77.10               Moreover,

the Court held that              11   the General Assembly intended to preclude

from the reach of the compulsory joinder statute those current

offenses       that       occurred        wholly       outside              of      the      geographic

boundaries        of      the    judicial         district         in        which         the      former

prosecution was brought, even though part of a single criminal

episode."      Id.




10
   The Fithian   Court defined judicial district to mean "the geographical area
established    by the General  Assembly in which a court    of commonpleas    is
located."    Fithian, 961.A,2d at 75.


                                          [FM-46-14]
                                                 11
                                                                                           Circulated 03/25/2015 01:39 PM




             In evaluating            all    the    charges      in both       Carbon      County    cases,

     there     can    be    no   dispute        that      all    the    charges,        except      for    the

     criminal      conspiracy         charges,        occurred     in Carbon          County,     and thus

     "wholly       outside       of    the     geographic         boundaries          of   the    judicial

 d i s t ri c t      in    which      the     former prosecution                was     brought,"         that

 being         Schuylkill          County.           The crimes         that     the ·carbon         County

 District          Attorney's          Office       charged the Defendant                  with are all

 specifiG            to    certain          properties,         properties       that       are     located

 entirely in Carbon County.                         Thus,     the elements for the crimes of

 burglary,           theft by unlawful taking, receiving stolen property,11

 criminal            mischief,          and        criminal       trespass       could       have         only

 occurred in Carbon County, which is a separate judicial district

 then Schuylkill County .12                         Consequently,         Defendant's contention

 that        the     crimes        that      the     Carbon       County       District       Attorney's

Off ice charged him with, save for the conspiracy charges,                                                are

meritless,           for the reasons stated above.

         Analogous           to the          charges before            the Fithian         Court,      this

Court          too    had     to      consider        whether       the    charges         of     criminal

conspiracy                brought       forth        by     the        Carbon      County         District


1:
    Although    conceivably   the charges   of rece1v1ng   stolen  property  could be
asserted    against    the Defendant for property     that was stolen    in Schuylkill
County and Defendant received       the property  within the carbon County boarder,
or vise-a-verse.        However, the informations in both Carbon County cases and
Schuylkill county case do not charge such a scenario.
12
   Similarly,      the Schuylkill      County District   Attorney's  Office charged     the
Defendant     with    certain   crimes    that  were only associated    to a particular
property   located     in Schuylkill    County.

                                                   [FM-46-14]
                                                       12
                                                                                 Circulated 03/25/2015 01:39 PM




Attorney's Office were to be classified as occurring within the

same judicial district as                  Schuylkill County.               As the           Fithian

Court         stated,    "prosecution           for     criminal     conspiracy           may      be

brought in any county where the unlawful combination was formed,

or in any county where an overt act was committed by any of the

conspirators in furtherance of the unlawful combination."                                         Id.

at 78         (citing Commonwealth v.            Thomas, 189 A.2d               255,    258      (Pa.

1·963) )• .

        In Fithian,       the Court permitted the subsequent prosecution

of the defendant for criminal conspiracy charges even though the

charges could have been brought against the defendant in the

former prosecution.                  Fithian,     961       A.2d   at     79.          The     Court

affirmed         that         "the    proper          analysis,     pursuant             to      our

interpretation of Section 110 (1) (ii),                      focuses upon whether the

offense occurred within the same judicial district.                                     As these

offenses took place solely within [the former] county,                                  they did

not    occur      'within the         same      judicial district           as     the        former

prosecution.'"          Id.

       At the hearing before this Court on the instant motion, the

Defendant        only    offered        the     transcript         from     the        trial      in

Schuylkill County.               In    reading        the   transcript, none of                  the

witnesses, which          included        Defendant's co-conspirators                    and     the

Defendant himself,            testified that there was a global agreement,

or conspiracy, to              burglarize specific houses                 located in both

                                          [PM-46-l.4]
                                              13
                                                                                            Circulated 03/25/2015 01:39 PM




 Carbon     and Schuylkill               Counties.          Moreover,        as    it related         to the

 Schuylkill        County       charges         of     criminal        conspiracy,           none     of    the

 witnesses         testified,            whether        explicitly          or     implicitly,             that

 either      the      agreement·          or    any        overt      act    occurred         within        the

 borders     of Carbon         County.           Thus,       in reading       the     transcript,           and

 the     Defendant       not    proffering             any     additional          evidence         to     this

Court      at   the     hearing          on    his    motion        other    than     the       transcript

from -t.he      trial    in Schuylkill               County,       this Court gleaned              that all

the    elements         of    the    criminal          conspiracy           charges       filed      by    the

Carbon     County       District         Attorney's          Off ice occurred             within      Carbon

County     or are        not    based         upon    the      same    conduct       as     the criminal

conspiracy       charges       brought          forth by Schuylkill               County.

       Accordingly,            in addition to not proving that the charges in

Schuylkill       and Carbon Counties are of the same criminal episode,

Defendant was also unsuccessful in establishing                                     that the charges

in this subsequent prosecution are charges that were within the

same judicial           district          as     the former           prosecution,            that       being

Schuylkill County.

                                                 CONCLUSION

       Based upon the foregoing, this Court respectfully asks that

Defendant's          appeal         be     dismissed           as     the     compulsory            joinder

statute      does       not    bar        the    Carbon         County       District         Attorney's

Office     from prosecuting               the Defendant.               Accordingly, this Court


                                                [FM-46-14]
                                                      14
                                                                      Circulated 03/25/2015 01:39 PM
,.



     respectfully   recommends   that   this    Court's   order     dated          July             15,

     2014   dismissing   Defendant's      compulsory      joinder       motion,                      be

     affirmed.



                                                     BY THE COURT:


                                                     J-Oeph
                                                      ~       J.    Matika,           J.




                                                                                           ·~-~
                                                                                           C,.!!;




                                                                       ~@~
                                                                       ..C")Ai.?
                                                                             0
                                                                                           ......
                                                                                           (/'.'>
                                                                                           rri
                                                                                           -o
                                                                                                                  . -~


                                                                       ::t.o·::}:::
                                                                       \.-} ""t:<"·,
                                                                       f:2 ("') c:·~ ::;.,..,         ,,.11,r.::-·:
                                                                                                             ? ~
                                                                       ~g~ z                          :. .,-:~. ti
                                                                       rr.r·~: :
                                                                       -<~-<
                                                                                           -..
                                                                                           0
                                                                                                          , ...... ,/

                                                                                           .l='"




                                   [FM-46-14]
                                        15
