J-S47016-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MICHAEL LEE SCHMIDT                        :
                                               :
                       Appellant               :   No. 1598 WDA 2017

               Appeal from the Order Entered October 25, 2017
     In the Court of Common Pleas of Lawrence County Criminal Division at
                       No(s): CP-37-CR-0000973-2014


BEFORE:      OLSON, J., McLAUGHLIN, J., and STRASSBURGER*, J.

MEMORANDUM BY McLAUGHLIN, J.:                          FILED AUGUST 31, 2018

       The Commonwealth appeals from the order entered October 25, 2017,

which in part granted Michael Lee Schmidt’s motion to dismiss charges

pursuant to statutory double jeopardy as defined by 18 Pa.C.S.A. § 111.1 In

this case, the Commonwealth seeks to prosecute Schmidt for his role in a

conspiracy to distribute heroin in Lawrence County, Pennsylvania. However,

Schmidt has already pleaded guilty to conspiracy, based upon the same

conduct, in federal court in Ohio. As the Commonwealth failed to establish

that its prosecution requires proof of a fact not required by the federal

prosecution and that the harm it intends to prevent is substantially different,

we affirm.
____________________________________________


*    Retired Senior Judge assigned to the Superior Court.

1 The Commonwealth certifies that the order granting Schmidt’s motion
substantially handicaps the prosecution of this case. See Pa.R.A.P. 311(d).
J-S47016-18



        The trial court set forth facts and procedural history, which we adopt

and incorporate herein. Trial Court Pa.R.A.P. 1925(a) Opinion, filed November

8, 2017, at 1-8.

        The Commonwealth raises the following issues on appeal:

        1. Whether the trial court erred in dismissing Counts 2, 3, 4, 5,
        6, 7, 8, 10, 11 and 12 charging Conspiracy (18 Pa.C.S.A. § 903)
        pursuant to 18 Pa.C.S.A. § 111 through application of
        Commonwealth v. Savage, 566 A.2d 272 (Pa.Super. 1989) in
        finding that a single and broader conspiracy existed between the
        Ohio indictment and the Commonwealth’s prosecution.

        2. Whether the trial court erred in finding 18 Pa.C.S.A. § 111,
        through application of Commonwealth v. Wetton, 591 A.2d
        1067 (Pa.Super. 1991); Commonwealth v. Besch, 544 Pa. 1,
        674 A.2d 655 (1996) in dismissing the substantive corrupt
        organizations charge[2] at Count 1 of the Information.

Commonwealth’s Br. at 8 (unnecessary capitalization omitted) (issues

reversed for ease of analysis).

        The Commonwealth’s issues present questions of law, which are subject

to plenary review in this Court. See Commonwealth v. Williams, 151 A.3d

1113, 1114 (Pa.Super. 2016); Wetton, 591 A.2d at 1071.

        In Pennsylvania, the Commonwealth may not prosecute an individual

for criminal acts under certain circumstances where the individual has been

prosecuted for the same conduct in another jurisdiction.             A subsequent

prosecution is barred, in relevant part, where:

        [t]he first prosecution resulted in an acquittal or in a conviction as
        defined in section 109 of this title (relating to when prosecution
____________________________________________


2   See 18 Pa.C.S.A. § 911.

                                           -2-
J-S47016-18


       barred by former prosecution for same offense) and the
       subsequent prosecution is based on the same conduct unless:

       (i) 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[.]

18 Pa.C.S.A. § 111(1)(i) (emphasis added).

       The Pennsylvania Supreme Court has approved a three-part inquiry to

determine whether Section 111 bars a subsequent prosecution.

       (1) Is the prosecution the Commonwealth proposes to undertake
       based on the same conduct for which the individual was
       prosecuted by the other jurisdiction?

       (2) Do each of the prosecutions require proof of a fact not required
       by the other?

       (3) Is the law defining the state offense designed to prevent a
       substantially different harm or evil than the law defining the other
       jurisdiction's offense?

Commonwealth v. Traitz, 597 A.2d 1129, 1132-33 (Pa. 1991) (quoting

Commonwealth v. Abbott, 466 A.2d 644, 649 (Pa.Super. 1983)). Although

the statute is silent regarding the relevant burden of proof, it is well settled

that

       when a defendant raises a non-frivolous prima facie claim that a
       prosecution may be barred under 18 Pa.C.S.A. § 111, the
       prosecution bears a burden to prove by a preponderance of the
       evidence either that the “same conduct” is not involved, or that a
       statutory exception to the statutory bar on reprosecution applies.

Commonwealth v. Savage, 566 A.2d 272, 284 (Pa.Super. 1989) (emphasis

in original).



                                      -3-
J-S47016-18



       In its first issue, the Commonwealth contends the trial court erred in

failing to consider appropriately the evidence in support of its contention that

Schmidt engaged in multiple conspiracies to distribute heroin.             See

Commonwealth’s Br. at 40-64 (asserting, without supportive legal authority,

that federal investigation produced insufficient evidence and that Schmidt’s

guilty plea “bolstered” the federal investigation).3   However, the apparent

depth and detail of the Commonwealth’s investigation does not reveal

different criminal conduct by Schmidt. Rather, it merely confirms that the

conduct prosecuted by federal officials – and for which Schmidt has pleaded

guilty – encompasses the same conduct for which the Commonwealth seeks

to prosecute.

       In Savage, this Court similarly focused on an elaborate criminal

conspiracy to distribute narcotics. See Savage, 566 A.2d at 273-74. At issue

was the role of a single defendant, who the Commonwealth asserted was the

sole link between multiple conspiracies. Id. at 275. Based on facts similar to

those present here, we rejected the Commonwealth’s assertion.


____________________________________________


3 The Commonwealth’s repeated citations to Exhibit A, including an affidavit
signed by Special Agent James C. McCann in support of a federal wiretap
application are inappropriate. See, e.g., Commonwealth’s Br. at 44, 45, 46,
49, etc. Based on our review of the record, Exhibit A was never introduced or
incorporated into the certified record. We caution the Commonwealth that
“for purposes of appellate review, what is not of record does not exist.”
Commonwealth v. Johnson, 33 A.3d 122, 126 n.6 (Pa.Super. 2011). We
need not sanction the Commonwealth, as the affidavit does not impair our
analysis. Incidentally, even if it were of record, it would not change the
outcome of this appeal.

                                           -4-
J-S47016-18


       Plainly, the distribution of cocaine from an importer to a
       wholesaler or retailer envisions and in fact requires the wholesaler
       or retailer to enter into further agreements with others to
       profitably dispose of the wholesaler’s or retailer’s inventory,
       thereby providing capital for future intended purchases from the
       importer. Thus, the fact that appellant was the sole link between
       the conspiracies was rendered virtually insignificant in light of
       appellant’s roles as a buyer in the federal conspiracy, and as a
       seller in the alleged state conspiracy.

Id. at 285 (concluding that state-alleged conspiracy “merely a necessary facet

of the broader federal conspiracy”).

       Here, as concluded by the trial court, Schmidt distributed heroin from

the wholesale level to retailers. See Trial Ct. Pa.R.A.P. 1925(a) Op. at 14.

Essentially, Schmidt’s distribution network in Lawrence County was merely a

facet of the broader conspiracy based in Ohio. Thus, Schmidt’s link between

an importer and the retail distribution network did not establish separate

conspiracies. Id. (citing in support Savage). After review of the record, the

parties’ briefs, and the relevant law, we affirm on the basis of the well-

reasoned opinion of the Honorable J. Craig Cox, which we incorporate herein.

Id. at 7-17.4

       In its second issue, the Commonwealth similarly contends that, with

regard to its substantive, corrupt organizations charge, the trial court erred in

concluding that it seeks to prosecute Schmidt for the same conduct for which

____________________________________________


4 The Commonwealth’s argument focuses solely on the first part of the Traitz
inquiry. See Commonwealth’s Br. at 38-64. Thus, it has conceded that it
cannot meet the “different required facts/substantially different interests”
exception to the bar on re-prosecution. See Savage, 566 A.2d at 285; see
also Pa.R.A.P. 2119 (Argument).

                                           -5-
J-S47016-18



he has already pleaded guilty. See Commonwealth’s Br. at 65-68. For the

reasons set forth above, we reject this contention. The Commonwealth further

suggests that proper analysis of the second part of the Traitz inquiry, i.e.,

the “different required facts” exception, militates in favor of its prosecution.

Id. at 68-71. However, the Commonwealth seemingly concedes that it cannot

establish the “substantially different interests” exception to the bar on re-

prosecution. Id. (failing to address this exception in its analysis); see also

18 Pa.C.S. § 111(1)(i) (requiring Commonwealth to establish both different

required facts and substantially different interests exceptions before re-

prosecution permitted). Accordingly, the Commonwealth is due no relief.

      As described succinctly in the trial court’s opinion, resolution of this issue

hinges upon the proper understanding of the harm the General Assembly

intended to address in the corrupt organizations statute. See 18 Pa.C.S. §

911. The Assembly’s legislative response to Commonwealth v. Besch, 674

A.2d 655 (Pa. 1996), is instructive. In Besch, our Supreme Court concluded

that the “clear intent” of Section 911 was to prevent infiltration of legitimate

businesses by organized crime. Besch, 674 A.2d at 659 (thereafter vacating

appellant’s judgment of sentence for corrupt organizations where drug

conspiracy was entirely illegitimate). However, following this interpretation,

the General Assembly amended Section 911, prohibiting racketeering

activities in both “legitimate as well as illegitimate entities.” See 18 Pa.C.S.A.

§ 911(h)(3); see also, e.g., Commonwealth v. Williams, 141 A.3d 440,

449 n.8 (Pa. 2016) (recognizing Besch superseded by statute)

                                       -6-
J-S47016-18



      Effectively, the General Assembly’s amendment breathed new life into

a prior, plurality opinion of the Court.   In circumstances similar to those

present here, in Commonwealth v. Wetton, 641 A.2d 574 (Pa. 1994), the

Court stated the following:

      While federal drug conspiracy is a different crime from substantive
      corrupt organizations, both statutes are used in this case to
      protect the same governmental interest the elimination of the
      pervasive drug trafficking network in our society. … [T]herefore,
      … the proper application of Section 111 of the Crimes Code bars
      [a]ppellant[’]s   prosecution    on     all   substantive   corrupt
      organizations charges, 18 Pa.C.S.A. § 911(b)(3). To hold
      otherwise would be to apply Section 111 in such a narrow and
      limiting manner so that dual prosecution would effectively be
      barred only where exact crimes match exact dates - crime for
      crime and date for date. Because the federal drug conspiracy
      statute and the state substantive corrupt organizations statute
      protect the same governmental interest, … the third Traitz
      question is answered in the negative and therefore the statutory
      bar of 18 Pa.C.S.A. § 111 cannot be lifted.

Id. at 579-80 (plurality opinion in support of reversal). Thus, after review of

the record, the parties’ briefs, and the relevant law, we affirm on the basis of

the well-reasoned opinion of the Honorable J. Craig Cox, which we incorporate

herein. Id. at 17-21.

      Order affirmed; case remanded for further proceedings; jurisdiction

relinquished.



Judgment Entered.




                                     -7-
J-S47016-18


Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/31/2018




                          -8-
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                                                                                                            Circulated 08/21/2018 09:57 AM




                        COMfv1QNWEALTH OF PENNSYLVANIA                            IN THE COURT OF COMMON PLEAS

                                          VS.                                     LAWRENCE COUNTY. PENNSYLVANIA

                               MICHAEL LEE SCHMIDT.                               CRIMINAL. DIVISION

                                                      Defendant                   NO. 973 OF 2014


                                                               APPEARANCES.
                        For The Commcnweelth;                                Diane M. Shaffer, Esq.
                                                                             Office of the District Attorney
                                                                             430 Court Street              ·
                                                                             New Castle, PA 16.101
                        For The Defendant                                    Thomas N.          Farrell, Esq.
                                                                             100 RossStreet, Suite 1
                                                                             Pittsburgh, PA 15219


                                                                    OPINION

                        COX.J ..                                                                                November 8, 2017

                               This Court authored tbis Opinion pursuant to Pa.R.A.P. 1925(a) regarding the

                        appeal filed by the Commonwealth of Pennsylvania. from this Court's partial grant of·

                        DefendantMichae.1 Lee Schmidt's Motion·.fo Dismiss Based on Doubt�Jeopardy and. 18

                        Pa.C.S. § 111. This Court granted the Motion                      as   to .the. Conspiracy and Corrupt

                        Organi:Zations charges and left in place the charges of Corruption of Minors and Delivery

                        of a Controlled Substance.

                              The. case was. before this. Court on May 27, 2016, .July B,. 2016, and August .8,.

                        2016., for hearings   on   Omnibus Pretrial Motions. filed by the Defendant. Following the

                        hearinQs, a briefing s.chedule was s.et, with numerous extensions requested by both the

      ··$3RC            Commonwealth and the Defendant
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                               The. evidence presented for this Court's consideration included the Preliminary

                      Hearing transcripts of the Defendant, the Preliminary Hearing transcripts of his alleged

                      co-eonspitators, as well as the transcripts from the Omnibus Pretrial Hearings held

                      before this Court, transcripts and evidence. from the Defendant's- Federal case, and other·

                      exhibits relating to the inve�tigation of the.case before this Court. Taken together, the

                      facts are    as follows.
                               Frank Drew, head of the District Attorney's                     Drug Task Force ("Task Force") ln •
                      Lawrence County and former Drug Enforcement Agency group supervisor, investigated

                      the manner in. which heroin               was distributed in Lawrence County and he discovered a
                      structure concerning the drug's distribution. The �ommonwealths.ubr:nitted the. transcript

                      of the preliminary hearings of Defendant's aileged co-conspirators in which Detective .

                      Drew testified there was a hierarchy spanning from the drug supplier to street-level

                     · distributors. According to Detective Drew, this hierarchy consisted of three levels, which

                     · included the source .of supply, as many as four upper.. level dealers and an indeterminate

                      numberof.street-tevel dealers: The upper-level dealers determined the number o.f street-

                      level dealers      who worked         for them. Detective Drew also stated the.                     lower two      levels

                      crossed over concerning their roles in the organization.as they were interllnked.'

                               Detective Thomas. Costa of the New Castle Police Department, · assigned to the

                      Drug Task Force," stated that frr June . or July of 2013, he and other detecuves

                      c.ommenced an investigation into heroin distribution in New Castle due to the number of

                      people. overdosing from thetsubstence and the frequency at which ponce nottC.ed the

                     1
                       .Notes of Testirnoriy of Defendant's co-conspiratorsar Case Nos. 390 .. 71>3, 704,. 705, 706,and 107 o(2()J4;
      .5lRD          testimony of Frank Drew, pp. 12..:24 (general description of hierarchy),
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                     J Testimony in. the heating referred  to   the Dnfgj'[�lf.t���j�l�ff��geably with the. "Special lrivcstig�tions Unit"
                     The Court wi 11 refer to both un.i.ts as the Qn,g Task force, See. e.g, Notes ofTestimcin)\ On'lri ibus Pretrial Hearing,
                     Augus18, 201.6, p. 4,
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                           orug appeared in their investigations. The police officers received aid from ten

                           confidential informants (''Cl") and a· confidential source as well as outside law

                           enforcement agencies.

                                  Detectives from the Lawrence Cou�ty Drug Task. Force intervie.wed sever-al of

                           these confidential informants; each of whom indicated the Defendant was purchasing.

                           heroin from a source in the Youngstown, Ohio area, though the informan\s prpvid�d

                           differing aliases of the source. The informants further described the source as either

                           bein9 black or Puerto Rican,

                                  The co.nfidential informants described the nature of the drug distribution· network

                           of Vihich the Defendant. is accused of operating.         One confidential   informant described

                           driving the Defendant to Youngstown to pick up fifty thousand dollars wo.rth of heroin.

                           Other informants described tha.t the Defendant would.            act   as a wholesaler to three

                           different individuals: M:S,, Christopher Gravatt, and Defendant's brother Anthony

                           Schmidt. These three individuals would then distribute to lower level dealers who would

                           themselves sen smaller amounts       at retail.
                                  Jamie Clobus, M.S.'s girlfriend, corroborated the statements of the co.nficJen.tial

                           informants. At the heir;1ht   of these events.    M,.S. did not .have a driver's. license. Clobus

                           Would drive him.   As part of the driving she did for M.S�. Clobus would drive M.S. to
                           Youngstown, Ohio for M.S. to purchase. heroin front a black male called 'Face'. During

                          • one trip to Youngstown, Clobus and M,S. were pulled over by police. Afterthat, M:S, had

                          a discussion with his father, the Defendant, who told M.S; from then on to buy the heroin

                          directly from him. Clobus was present durihg at least some of the purchases by M.S.
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                           from the Defendant. Clobus told Detective Costa M.S. would re-supply from the

                           Defendant a feW times     a week.

                                   On May 29, 2014, Detective                     Costa was contacteo by Ohio law enforcement
                           indicating they. were aware who the Defendant's. supplier                                            was, .and th�y believed the
                           Defendant would be coming       to Younqstownon that day for a meeting                                         with the supplier.

                           The Ohio police told Detective Costa the identity of the supplier was Alberto Delgado,

                           also. referred to as Poppy; Because of this tnterlurisdictionat cooperation; a joint

                           investigation. began between · the Lawrence County Drug Task Force and authorities in

                           Ohio.

                                   The same     day as this fi�t contact with the Ohio authorities, the Lawrence County

                           Drug Task Force engaged in surveillance of a' black Pontiac which they previously had.

                           determined to belong to the Defendant. Anthony' Sinibaldi got into the driver's side of the

                           vehicle and the Defendant got into the passenger's side. The police then su.rveme.d the

                           Defendant as they drove into Ohio on State. Route 422. When the Defendant's vehicle

                           reached the Ohio border, the Task force discontinued survejllance, all.owing the Ohi.o

                           police to take over. The Lawrence ColJnty Drug Task Force maintained contact with the

                           Ohio, authorities. The Lawrence Courity Drug Task Force was unable to follow the -,

                           Defendant on his return from Ohio, however Lieiitenant · Anthony Lagne�e had set up .

                           surveillance at the Defendant's residence. Ueutenant Lagnese observed the Defen��nt

                           enter the. front door of his residence. A -short time after this observation Christopher

                           Gravatt went into the residence and then eventually left the scene.

                                   Statements    from c.1. 3.   indicated the Defendant was buying heroin in such
        53AD
      JUDICIAL             significant quantities that Delgado W;?LJLl�rr,9me· 1G9:·,t,.aLwrence<County to make deliveries.
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                                On May 30th, the Task Force was able. to corroborate this informatlon. In the interim time

                                between the Ohio authorities'. first contact with the Task Force regarding the. Defendant,

                           ·. the. agencies had kept .in contact On the 30th, the Ohio authorities indicated Delgado

                             was soppcsed to be travelling to the Defendant's residence in New Castle. The next day,

                             the. Task Force reinitiated surveillance of the Defendant's residence.. The Ohio

                            authorities indicated Delgado               was in route.           in a green Nissan with a                New York license
                             plate.

                                        The surveillance of the Defendant's residence first observed Anthony Siniba.ldi.

                             and Anthony Schmidt pull ln front of the residence and get out of a car: Then, as

                            Anthony S�hmJdt was exiting the vehicle, a green Nissan with New York plates was

                            observed and photoqraphed, Anthony Schmidt went inside the residence and the green

                            Nissan parallel parked tn front. Two Puerto Rican males exited the green Nissan and

                            Detective Costa was able to identify Delgado as the passenqer based on a photograph

                            they had received from the Ohio authorities. The Task Force was unable to identify the

                            driver. The tw.o Puerto Rican males entered the. residence. Approximately ten minutes

                            later, M.S. pulled up .in an Acura and entered the residence. A· short time after that.

                            Delgado left the residence with his driver and he appeared to be carrying som.ething .in

                            his pockets. Delgado and the driver left and the Task Force J9llowed them to the

                            Pennsylvania-Ohio border.

                                       On June 24th, the Task. Force applied for and received search and arrest

                            warrants for the Defendant and Anthony Schmidt. The warrants were served at their

                            residence the same day.3 The Defendant was arrested                                         at his residence.
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                                Anthony Sctimid! panially resided at ihe Defendant's residence and partially resided in orher locations.
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                                      Eventually, the Defendant was formally interviewed. As a result of this interview,

                              Schmidt made a verbal statement .explaining in significant detail the extent of the drug

                             trafficking organization. Relevant to issues before this Court, the Defendant stated he

                             was purchasing heroln       from Delgado 1A2 times a week over a period of two years. He
                             funheradvissd he progressed from buying10-15 grams at a time to up to 500 gram� at

                            · a time. Originally, he had been .going to Youngstown to meet Delgado and obtain the

                             ·heroin,. but   that problems in Youngstown everitu�lly led Delgado to deliver the heroin to
                             the Defendant in New Castle..

                                      Defendant raised several issues in its. Omnibus Pretrial. Motio.ns. The appeal

                             concerns the Defendant's final issue which argued the commonwealth's case was

                             barred   by Pennsylvania's statutory double jeopardy provision at 18 Pa.C -, S. § 11 t.
                                      The Commonwealth raises two issues in its Concise Statement of Matters

                             Complainedof on Appeal:

                                      1.      Whether the trial court erred in finding 18 Pa.C.S.A. § 11 f through

                             application      of   Commonwealth      v,   Welton. 591 A.2d 1067 (Pa. Super. 1991);

                             Comm.onwe�lth v, Be.sch, 544 Pa. 1, 674 A.2d 655 (1996.) in dismissing the. substantive

                             Corrupt Organizations: charge .(18 Pa.C.S.A. § 91.1 (b)(2)). at Count 1 of the Information ..

                                      2..     Whether the .trial court erred in dismissing ccunts.z, 3; 4, 5, 6, 7� 8, 10, 1.1,

                             and 12 charging Conspiracy (18 Pa.C.S.A. § 9.03) pursuant to 1.8 Pa.C.S,A. § 111

                             through application of      Commonwealth        v, Savage, 566 A.2d 272 (Pa. Super. 1989);

                             Commonwealth. v. Abbott,.466 A:2d 644 (Pa. Super. 1983); and U.nited States v, Lanzc1.

                             26.0 U.S. 377, 382,43 S.Ct.. 1411 14,�. 64 L.Ed. 314 (1922),           rn finding   that a single c1nd
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                            broader conspiracy existed between the Ohio lndictrnent and th� Commonwealth's

                            prosecution.

                                     The appeal arises out of this Court's gr.ant·o.f the Defendant's Motion to Dismiss

                            the charges .of Corrupt Organizations and Conspiracy. This Court's. reasoning was as
                            fi:>llows:

                                     18 Pa.c.s. §       111 provides:

                                     ''When conduct constitutes an .offense within the. cencurrentjurlsdicnon of this

                            Commonwealth and of the Uni.led States or another state,                       a   prosecution i11 any such

                            other jurisdiction    ts   a bar to a subsequent prosecution in this Commonwealth under the

                            foHQwing circumstances:

                                     (t) The first prosecution resulted ln an acquittal or i.n a convkfion                as defined   in

                            section 109 of this title (relating to when prosecution barred by former prosecution for

                            same offense;) and the subsequent prosecution is based on the same conduct unless:

                                    (i) 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 diffet�nt harm or evil..or

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

                                    (,2) The former prosecution was terminated, after the indictment was found, by ,an

                            acquittal Or'   by a 'final order orjudgment for the. defendant Which              has not been set aside,

                            reversed or vacated and which acqulttal, final order or judgment necessarily required a

                            deterrntnatton inconsistent with a fact which must be establis.hed, for conviction of the
        53RO
                            offense of Which the defendant is $U�.S E;.g�en�!y,p,rosecuted:··
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  PENNSYI.VANIA
                                    The case. before this Court fell under the analyti�al framework of subsection (1)(1).

                             The Criminal Complaint was filed against the Defendant in Pennsylvania on June 23,

                             2014. The Defendant was arrested by authorities ·in Pennsylvania on June 24, 2014. The

                             Informafion wasfiled against Defendant on October 1, 2014. On December 21 2014,                         a
                             Federal Indictment was filed against the D.efendaotand others in the Northern. District of

                             Ohio, On December 3, 2014, by Preliminary Order of Court, President Judge Dominic.k.

                             Motto scheduled    a Hearing on the Omnibus Pretrial Motion on February 2, 2015, before
                             now Senior Judge, Thomas M. Piccione. On January 6, 2015, Judge Piccione continued

                             the case on the Court's own motion to February 6, 2015. On January 13, 2015, March

                             18, 2015, and May 5; 2015, three Motions tor Continuance were filed by the Defendant,

                             not opposed .by   the Commonwealth, and Granted by Judge Piccione. On May 27, 2015,
                             the Defendant pleaded guilty pursuant to a plea a.greernen.t to count 1 of the Federal

                             crimin.al indictment alleging a violation of 21 U.S.C ..§ 846 and violations of 21 U:S.C. §

                             841. He was sentenced in the Federal case on October 1; 2015. Several additional

                            . Motions for Connnuanee and additional Omnibus Pretrial .Motions delayed. the first

                             hearing   on the Mo.tions to May 27,   2016.

                                   Defendant avers the. conduct      lo Vllhich he pleaded gUilty in Federal Court is part of
                            the overall criminal enterprise of drug trafficking comprising both the Ohio and the

                             Lawrence C.ounty distribution network. "[W]hen a defendant raises a non.:ftivolqus prima

                            facle claim. that a prosecution may be barr.ed under 18 Pa.C.S. § 111, the prosecution

                            bears a burden to prove by a preponderance of the evidence .either that the 'same

                            conduct' is not involved, or that a                 statutory exception          to   the statutory bar on
        'S·JF!C
      JUDICiAL.             reprosecution applies." Com: v. Sayaqe,,c56f3·, �4d 272, 284 {Pa. Super. 1989). "A
      DIST�ICT.                                                      f' I LC IJ/   J K I l:d 1: ;':'\ L


Lll.YfJU;:Nc:£ ··couN't'V
  l'f::NNSYt..,.V!ltNtA
                                                                .. ,u-
                                                                2         liiQ\Ii - ·�
                                                                   U I I .i:<
                                                                                    g'
                                                                                          ' •• I
                                                                                          /;;1'1'0'•   so
                                                                                                       .J.
                           frivolous claim is a claim clearly and palpably without merit; it is a claim which presents

                           no debatable question." Com. v. Gains, 556 A.2d 870,.874 (Pa. Super. 1969). Despite

                           the Commonwealth's contention there is a low amount of overlap between the

                           conspiracies, the claim these conspiracies are part of a single larger criminal conspiracy

                           . is not so without merit to warrant a determination .of frivolousness. Therefore! the Court ·

                           finds Defendanthas put forward anon-frlvolous prfrnafacie claim. that a prosecution may

                           be barred under 18   PaaC.S. §   111.

                                  Applicable througho.ut the analysis, the Commonwealth stated in its brief the

                           Defendant pleaded guilty to.21 U.S.C. § 841 and not to Section 846 of the same Title.

                           This is incorrect. While Count 1 of the federal indictment does nor explicitly reference

                           Section 846., it does state ··As to Michael L. Schmidt, aka "Big Mike'' , .. , those defendants

                           conspired to possess with inteJ'it · to distribute and to distribut� a niixt�re or substance

                           containing a detectable amount of heroin,    a Schedule I controlled substance     in violation

                           .of Title 21,. United States Code, Sections 8.41(a)(1} and 841(b)(1)(c)." (emphasis

                           supplied). Section 841 charges substantive crimes relating to possession. manufacture,.

                           and deliyeiy ofcontrolled substances; Section    846 is the general conspiracy and attempt
                           provision whi.ch covers all conspiracies. under t�e same subchapter .. including Sec.tion

                           841. Because Defendant was charged with conspinng to violate 21 U.S,C. § 841, he was

                           charged under Section 846, .even though it was not explicitly stated in Count     t.
                                  While this is evident from a precise reading of Count 1, it is reinforced in the

                           federal guilty plea proceeding. Assistant United States Attorney David           M.    Toepfer,

                           Esquire. states, 'Yovr Honor, the defendant is pleading guilty to 2 r, .United States· Code,
       ·53,.p
     JUOl<;:IAL
     0.ISTRI.CT



LAWRENCE· COUHT·V
  PEf4 N.� � L \t'� HI A
                                                   ·�




                                   The Commonwealth made a second . generally applicable· a rgurnent as to doubl.e

                            jeopardy resting on .the reasoning of United States v. Roman, 13141.-05, 2015 WL

                            .224�70, at *2 (ED.. Pa.. Jan. 14. 2015), for th.e proposition "there is no double jeopardy

                            bar to prosecllting   a d.efendant in federal court for the same conduct for which he was ·
                            prosecuted in state    court." kl

                                   This �rgument relies on a misinterpretation of the asymmetric natureof theretes

                            of Federal Courts     and those of tne commonwealth            of Pennsylvania. In United States   v.. ·
                            Lanza,. 260 U.S. 377, 382, 43 S.Ct. 141, 1421 67 L.Ed� 314. (1922), the Supreme Court of

                            the. United States first set forth the theory of separate sovereigns when it held: "It follows

                            that an act denounced as      a. crime by both national and state sovereignties is an offense
                            agc;1inst the peace and dignity of both .and may             be punished by each." Id. Since that
                            pronouncement; courts, commentators, and some states have expressed the inequity

                            which they believed resulted from this allowance of separate. prcsecunons for the same

                            act. As the Commonwealth itself acknowledges; even the               Roman Court on which     they

                            rely expressed distaste     for the separate sovereigns theory which required the: result in
                            .that case. In 1973.; 18 Pa.C.S. § 111 was enacted es P.L. 14.82 likely in response to the

                            devefopirig law   of separate sovereignty. With      that enactment. Pennsylvania bound itself

                            to notprosecute under certain circumstances where an ind.i.vidual wasprosecuted forthe

                            same conduct in another .Jurisdiction. This enactment does not affect Feder.at Courts.•

                            even those based       in Pennsylvania, and it. does not affect . a constitutional double

                            jeopardy analysis. WhE;m Roman stated "there is no double jeopardy bar to prosecuting a

                            defendant in federal court for the same conduct for which he was prosecuted in state
           5.JRD
        JUDICl�L            court," Roman; at *2, the court was. referring only to the constitutional double jeopardy
                             ·.        ·    .·         . .  t f !..tD./OR·l;�i .. }  .·    ..                   .
        .01STR1.c::r                                                    ... -···•,'-\L

f   LA.WR.E.HCE COUNl' Y
      P�N,.;�v�vA·�.•..,.
                                                            wrn�ov -.a Ncrto= so
                                                                ........... ,




                                       · protections and not the additional state protections                    by whic.h the Federal Courts are not
                                       bound: IJ\lhile it is hue there             is   generaily no bar    to   prosecuting -a defendant in Federal

                                       Court for tt,le same 'conduct forwhich he· was prosecuted' in state court, the converse .is .

                                       notaccutate '; Ccnstitutionat ,qoublejeopardy. issues may· not bar the prosecutlon, .buUhe..

                                       ultlmate outcome concerns tl')e. application · of Section 111.

                                                 The Corhh'lo('IW_e·alth., in- its Concise .Staternent                of Matters   Complained     of on
                                       Appeal states this C:ourt relied on Lanza ip finding a si.ng_le corrspiracy.
                                                          '                                        .
                                                                                                                                        To   be   dear,

                                       Lanza. only-forms the background                   ofJhe doctrine ofseparate sovereiqnty ·and :does          not.

                                       control this Court's application of Section 11 t.

                                                 Contiri0in·g to.the gravamen of the argument; :app.lyin.g :Coni. _v. Abbott1. 4.66 A.2d

                                       644 (Pa: Super: 198-3), the Pennsylvania Supreme Court in Com.- v. Traitz; '597 A_.2d

                                       1'129, t132.:...33 (Pa, 1991) created a· three question inquiry with regard to whether

                                       Section 11 i applies
                                                      .
                                                            to bar a subsequent
                                                                           .
                                                                                prosecunon.

                                                 (1)   r�   the prosecution the Cornmonweatth ·:proposes                 to undertake based on Jhe, .
                                       same ttin,9l:IG.t for whi.ch the. individual was _prosecuted by the. other jurisdiction?

                                                 (2) Do each ofthe presecutiensrequire proof ot.a                    fad not required by theother?
                                                 (3,l _I� the law. defining .the state offense g_esignec;i to pr�V.ent -a substantially

                                       differentharm or evil thanfne.law definin_g the other jurisdiction's offense?

                                              AbbotUurtherprovid_es:th� method with wh.iot:i to _apply.the.se three .pronqs.

                                              "If we .conclude that the subsequent prosecution is not based on the· same

                                       conduct as. the -fec;l�H�I prosecution, then our analysis is concluded since the statute

                                       makes clear that in s.uch situation subsequent prosecution by the Commonwealth is not

                                                  it
              S)RO

                                                                                               . . ��ent
         ·JUDICIAL                     barred.         however,         we conc1/Jft.ecl9.f!J�,Ht>,S. .
                                                                                                            prosecution bythe Commonwealth Mis
          OIS'TR)CT



f
     -��,. ,. ,. ,. _
    LAWRE.t'C£,, COUl'(T.Y'
                                                                                2011
                                                                                 .
                                                                                     HOV .;3 ·Ari :11
                                                                                                   !O: 50
I
                        v·.. ,..,,..
                         based on the same conduct" for which appellant was prosecuted by the federal

                         government,.the prosecution can proceed only if both of the following conditions .exlst;

                         (1) each ofthe prosecutions requires. proof of a fact not requited ofthe other; and (2) the

                         statute upon which the Commonwealth prosecution is based is intencfed to               prevent
                        substantially different harm than is the federal statute ... It would seem that   an affirmative
                        answer to the initial inquiry lowers the bar to the subsequent prosecution and that only

                        an affirmative response to both of the remaining inquities can lift the bar:" Abbott, 466

                        A2d at 649 (emphasis supplied).

                               Then, the first question for this Court was Whether the prosecution the

                        Commonwealth proposes       to undertake is based on the same conduct for which the
                        individual was prosecuted   by the other jurisdiction. For the Commonwealth to avoid the
                        second .and third Traitz questions, they. must prove by a preponderance of the evidence

                        the 'federal and state charges are not based on the same conduct. Savage, 566 A.2d at

                        284.

                               With regards to the similarity of the conduct involved in the   case before this Court,
                        the Cemrnouwealth's argument was, rather than         a single conspiracy, there are two
                        . separate conspiracies which were charged separately and should· be treated separately

                        ·here. In its brief in support, the Commonwealth asserts "[t)he only overlapping evidence

                        between-the Ohio lndlctment.and this case and its consolidated co-defendants is (1)the

                        detendant was obtaining his supply of heroin. for distribution within Lawr.ence County

                        from Delgado; and (2) the commonwealth presented photographic evidence of Delgado

                        meeting with the defendant at the. defendant's residence.. here iri New Castle in May of
        S3RO.-
     JIJOlt·IA.L
    ·01STRICT                                            FILEDJO RlG iN.•\L

L·A.WRl!NCE COUNT"W:
   eE:NN$YL·V4'.NI.._
                                                       2on HOV-8 f.f!O� 50
                                                   ...-...,                                          .   ..___



                           2015, evidencing the delivery of heroin from Delgado to this defendant as arranged and

                           recorded by the federal authorities in. Ohio.;;.ii

                                   The Defendant does notarg!Je the contacts betweerr the lower levels of tn.eNew

                           Cast!� conspiracy are significant and intertWined with all levels in the. Ohio co.h$piracy,

                           but rather, the contacts between the Defendant and Delgado are sufficient to establish · a

                           single conspiracy involvin9. both locations and each network of individuals.

                                  The Superior Court in Com. v. Savage, 566 A.2d 272 (Pa. Super, 1989). analyzed
                           the distinction between a single conspiracy and multiple conspiracies in the context of

                           drug trafficking operations as follows.
                                   "The relevant overt acts in the federal conspiracy were a series of bulk purchases

                       of cocaine for resale, by appellant from Moskovitz. The relevant overt act in the state

                       conspiracy was a single sale of a smaller bulk amount of cocaine for resale, by appellant.

                       to Ms. Janoski' and Mr. Lipinski. Appellantis th� only person designated as a named

                       conspirator in both conspiracies. The overt act alleged in furtherance of the state

                       conspiracy occurred during the continuance .of the federal conspiracy. The acts of both

                       conspiracies occurred in· the same ,general area'. Both conspiracies involved the illegal

                       sale of cocaine:

                                  In light of the absence of any indication that appellant used any source other than

                       Moskovitz as a supply for his· wholesale/retail cocaine distribution operation! it w.ould

                       appear that. vis a vis appellant, the sale of. cocaine which formed the basis of the

                       present state conspiracy charge could quite possibly have been a necessary facet of his ·

                       ongoing conspiracy with Mos.kovitz to wholesale and/or retail cocaine. Plainly, the.
      s.,l'lo
    juoic;iAL         . c:lisfribtition of.cocaine from ap.1L�'60,B�i�?ii�ir.holesaler·or retailer               envisions .and in   fact
    DISTRICT-

                           Cornmonweahh 's Brief in Opposition ·of Omnibus Pretrial Motions, p;22.
                       4


LAWRCNC£ ·c<>uN·1 V
  P.ENN.SV\.VANIA·
                                       ·                ·     201u:ov -a Atqg: so ·
                         requires the wholesaler or retailer to enter into further agreements with others to

                         profitably dispose of the wholesaler's or retailer's inventory, thereby providing capital for

                         future intended purchases fromthe importer. Thus, the fact that.appellant.was the sole .

                         link be�een the conspiracies was rendered virtually insignificant in. light of appellant's

                         roles as a buyer in the federal conspiracy, and as a seller in the. alleged state

                         conspiracy." Id .. at 284-285 (emphasJs ih original):

                                   Savage ultimately·held "[w]hile.it'is possible that appellant had a.separatecccaine

                         source for the sale to Ms «, Jan.owski and Mr. Lipinski and' that the state conspiracy was

                         entirely unrelated tothe federal conspiracy', on this record. it is at least equally likely that

                         the state conspiracy was merely a necessary facet       ol the broader federal conspiracy." IQ..
                         at 2�5,

                                The circumstances before: the Court closelY. mirror those in Savage�         In Savage,
                         the evidence presented was the Appellant was the distributo.r from 'the wholesale. level to

                         retailers. the equivalent ofthe Defendant; Moskovitz was an importer who provided the

                         cocaine to the distributor, the equivalent of Delgado; and Janoski .and Lipinski were

                         ultimate retailers, th� equiya.lent of the rna.ny retailers in this case; including M.S.,

                         Gravatt AnthcnySchrmdt, and others.

                               Without addressing the prior precedent in Savage and ttie factual similarities that

                         case presents, the Commonwealth rested. its argt.Jment on Delgado and the Defendant

                         being the only members of the federal indictment who are focused on in .the Lawrence

                         County Corrupt Organizations case, with only the Defendant being charged· in both

                         cases. The Savage. holding is     clear that .this factor is not dispositive. In any complex
       .,53RD
     JUDICIAL
     015.TR)c·:r
                                                          · fll.EO/OHIGiNAL

LAW'R.£NCE c:·ouN·.T.V
                                                          2011 f�OV -8 AN 10: 50
  fl€.�tf.5V�VAN.JA.                                                   14
                         import-distribution-retail network, the handling of the distribution leg by .a single party

                         does not necessarily isolate the retail side ofthe network from the import side.

                                  Additional factual .aspects of this case did not require this Court to rest merely

                         upon the reasoning it! Savage. Restated, Savage's h.olding is that a single conspiracy

                         may be established in a drug distribution                network    when the eonnection between the

                       · import-distribution conspiracy and the distribution-retail conspiracy is a single person,

                         and further it is the. Oornmonwealth's burden to show the separateness              of the networks.
                         This case involves more than this singular connection between the                 two   networks. The

                         Commonwealth glazes over the· $ignificance of the observed May 31, 2014, meeting at

                         the Defendant's residence, stating, "the Comrr;ionwealth presented. photographic

                         evidence of Delgado meeting With the defendant at the defendant's residence he.r(! in

                         New Castle in May of 2015 (sic), evidencing the delivery of heroin from Delgado to this

                         defendant as arranged and recorded by the federal authoritles in Ohio.;,s What the

                         Commonwealth fails to state is that also preserit at the meeting were many p.layers in the

                         retail conspiracy, including        Anthony     Schmidt, M.S., and Anthony Sinibaldi. With this

                         meeting, the attenuated connection between the two conspiracies is strengthened and is

                        far from solely consisting offhe· Defendant and Delgado.

                                 Lastly, in favor of finding the conduct und�r the federal and state cases to be .the.

                        same, the.. Court looks to the Federal lndictment,
                                                                 .     .   ln describing
                                                                                  .      the. "Manner
                                                                                               .   .  and Means of

                        the Conspiracy" the Federal indictment states: "It was further part of the conspiracy that

                        [Delgado] supplied heroin to [the Defendant] for distribution in· the New Castle, ·

                        Pennsylvania, area:" The Federal Indictment itself considers the New Castle distribution


                        ���������-FILEDiORIGl!·IAL
        .SJR.D
    J.UDiCIAL
    i:1tS:rR1CT

                       · s Commonwealth's. Brief in Op�sition of Omnibus Pretrial Mo!ions,.p.22.
LAW"' ENCE COl:JHT Y
                                                      Z017NOV
                                                       . .    ·�  v A·II
                                                                 _Q   ::11·0·• ;-n
                                                                              "J'.S
  Pi:NNSVt..YANIA·
                           network to be part of the broader conspiracy to which De.fendant p.leaded .guilty in •

                           Federal Court.

                                    As iii . Savage, the Commonwealth did not                         meet their      burden of showing            by a
                           preponderance of the evidence the conduct'involved in the stats and federal cases is not

                           tne same.
                                    Because the first of the Traitz questions was; answered in the affirmative.

                           indicating the       same     conduct was involved                in   the federal and state cases. this                Court
                           turned   to the second. and third prongs to determine if the charges constitute statutory
                           double jeopardy under Sectiont t t.

                                    Th� most recent Amended Information, fih�d on May 14, 2015, charges the

                           Defendantwith five types of charges: Corrupt Organizations- Control in Enterprise. 18

                           Pa.C.S. § �11{b)(2); Crimin�I Conspiracy to Violate 35 P.S. § 780�113(a)(30), 18

                      · · Pa.C.S, § 903; Possession With Intentto Deliver, 35 P.S. § 780-113'(a)l30); Corruption of

                       Minors. 18 Pa.C.S. § 6301(a)f 1)(ii); and Cqnspiracy to Violate Corrupt Organizafrons, 18

                        Pa.C.S. § 9-11(b)(4).6

                                    Beginning with the several charges of Conspiracy; the holding in Savage bars the

                       state prosecution for Conspiracy to Violate 35 P.S. § 780,.;113(a)(30). While the principal

                       issue in Savage was not the a.pplica,tion of the second and third Traitz questions; the

                       application of those questions to the fact pattern did not go unresolved. Savage held:

                       "the Commonwealth failed to meet its burden to establish by a preponderance of the

                       evidence. that separate conspiracies were involved, and likewise failed to estc:1blish the

                       existence of substantially different interests to be protected by the second conspiracy
       53.RD
    JUDit:IAL
                           The Defendant in their Brief in Supptirt b[ib'ef ,.;16.io'ii ib'..6.ismiss addresses the additional, charge ofCorrupf
                       6
    l)ISTff IC:T
                       brgan izatlons ...:. Employee, pursuanr to l 8 Pa. C'S, § .9 ll (b)(.J), bowever from the most recent amended in formauon,

l:AWflENC£ cov.t<TY
                                ·                   · · · - wnimv -s
                       the Commonwealth is not charging the Defendant on that issue.
                                                                                   AM 10:    so
  PEHHSVL.V:ANIA,                                                                      l'6
                                         prosecution Wiihin the· meaning of the "different requited facts/substantially different

                                         interests" excepfion to the bar on reprosecution ... Appellant is· DISCHARGED as to the

                                         state conspiracy charqe." Savage; 566 A.2d at 285. The second and third Traitz

                                         questions regarding the nature of the government interests involved do not depend on

                                         factual distinctions from case to case but rather rely on the. legal principles behind

                                    . specific .charqes, For this reason. the application of Savage to this aspect of the present

                                         Conspiracy charges did not require relitigation. For these reasons Counts 2, 3',4, 5, 6, 7,

                                         8, 1 o, 1 ti and 12 were DISMISSED with prejudice.

                                               Next, the Court addressed Count 1 of the Information, the charge of Corrupt

                                     Organizations - Control in Enterprise, and .Count 14, the charge of Conspiracy to Violate

                                     the. CorrupLOrganizations statute pursuant to Section 91 t(b)(4).7

                                               Wtiether the. charges of Corruption Organizations under Section 911(b)(3J and

                                     911(b)(4) in Pennsylvania are barred by the statutory double jeopardy provision of 18

                                     Pa.C.S. § 111 was discussed at lehgth by the Superior Co1,1rt in Com. v. Wetton, 591

                                     A.2.d 1067 (Pa. Super, 1991) and on appeal                               to       the Supreme Court in Com. v. Wetton,

                                     641 A.2d 574 (Pa. 1994.).

                                               As .a preliminary matter, the Superior Court held Section 111 barred prosecution

                                    of a Section 9f1(b)(4) charge where if. .Iollowed a federal prosecution of the same

                                    conduct under 21 U.S:C. § 846. Because this issue was left undisturbed by the Supreme

                                    Court, this Court held Count 14 ofthe Information charging Conspiracy                                     to   violate the

                                    Corrupt Organizations statute pursuant to. Sectic;m 911 (b){4) was DISMISSED with

                                    prejudice.
          53,.o
                                                      ·                     ··     r-·11 [::-- /-"P' �'"':\I
                                   . 'In its Concise'Statementof'Maners CofupTa�niid�foht;ipp�ar. the Commonwealth did not slate the Court erred wit.h
      JI.JDiCIAL
     .Dl.$TR !CT
                                     regard io its dismissal of Section .9 I I (b)(4). This Court addresses it here merely.as it -cohereswith boih the conspiracy
                                     dismissal and the remajnderofthe COl'TllObOr�nizations·anelysiso
                                     .              .           .   ·   ·   · Llll I nu'I     -o.     fU1 HJ'· .J
             CE.
                                                                                                        17
t.:A.WR.£N         CO.UNT·>'.
  ilfCN.HSV�v..     .-..t-1•�· -
                                                                              '·�:-:�-·1·t1 .:: . .
                                                                              t: ::i e ' . : : := 0 R G        '· f'
                                                                                                '.it•�:. �;:(···
                                                                               .,-: ;, ' . • ' . s. I,, Lt: r.' I.;
                              Wetton presents. a nearly identical factual scenario           to   that before the. Court.

                       Defendant Wetton was subject to a federal prosecution and convicted of violating federal

                       drug trafficking law under 21 U.S.C. § 84.6, as was the Defendant in this case. Defendant

                       Wetton · then challenged whether his conviction for Section 846. barred subsequent

                       prosecution under Section 911 where the federal             drug conspiracy was based on the
                       same   conduct as the Pennsylvania Section 911 charge. Despite                 the. simple   factual

                       similarity o.f the. cases. the three applicable opinions discussing Section $11(b.){3) in

                       .Wetton present a somewhat complex a.nalytical posture.

                              The Watton Superior Court· held Section 911(b){3) is not .barred by double

                       jeopardy conslderations because it targets a separate evil from the federal drug

                       conspiracy statute. In. coming to this conclusion, the. Superior Court held:

                                           "The evil targeted by the corrupt organization statute is the covert
                                 introduction of organized criminal activity into the law�abiding business
                                 community. Such permeation of the business community with criminal
                                 elements is .accomplished by violence and intimidation:                 18   Pa.C.S. §
                                 .9.1.1ca)(3) ..
                                           The federal conspiracy statute targets illegal agreements to violate the
                                 federal drug laws. 21 U.S.C.A. § 846. The federal drug trafficking laws are .
                                 . directed at controlling the illegal use of contr9iied substances to prevent the •
                                 .detrimental effect otsuctr use. See, 21 V,S.C.A. § 801(2), This activity is
                                 totally criminal. It does not directly impact upon legitimate business activity,
                                 nor   is it an a:tteinpt to gain control otthat community." Id. at 1074.

                              The basis     for the   Superior   q>urt's   decision was that the Pennsylvania Corrupt

                       Organizations charge targeted the permeation of illegal activity       into legitimate business
      .53Ro:
    JVDIC.tAi..
    D.15.TRic't        whereas the Federal drug       cdii��cf1jflargeltargeted wholly illegitimate activity.

                                                      2011 NOi/ -8 AM. iO: 50
LAW�ENca: COUNTY
  f"E�NsY·.LvA,..IA.                                                       18..
                                   The second and third Traitz questions were thus both answered in the

                           affirmative. The Corrupt Organizations charge had an additlona! element, and lt targeted

                           a separate evil from the federal conspiracy charge. The appeal                         1ri Wettor.r   to the

                           Supreme Court of Pennsylvania resulted in an equally divided court By . rule, this

                           resulted in the Opinion of the Superior        Court remaining in effect.

                                  The sole. area of difference between the Opinion in Support of Affirmance and the

                           Opinion in Support of Reversal was the result of the third Traitz question. The Opinion in

                           Support ofAffirmance adopted the rationale                espoused by the Superior Court and did not           ·

                           perform a.separate analysis.

                                  The Opinion ih Support of Reversal described the disfinction-ot the SuperiorCourt

                          as one of form over substance .. The. Opinion further described the governmental interest

                          as�the elimination ofthe pervasive drug trafficking network in our society." Id.               at 579.
                                  Subsequentto the decisions in the Wetton appeals and in response to the case of

                          Com. v. Besch, 544 .Pa. 1, 674 A.2d 655 (199,6.), the Pennsylvania Legislature modified

                          the Corrupt Organizations law in Section 9.11. Besch addressed whether the Corrupt

                                               . . .. could extend
                          ·.O. rganizations. statute                 to   the . prosecution of·a wholly. illegitimate enterprise.
                                                                                                                           .


                          The. Pennsylvania.Supreme Court. held that based                  on .it,e   statute as it than read (and

                          ho'>.' it read in the.Wetton opinions). the C�:>rrupt Organizations charge did not extend to

                          wholly illegitirnate.·enterprises.

                                 Modifications by the legislature following the Besch decision controverted the

                          interpretation of the Wetton Superior Court, the Opinion in Support                 of Affirmante by tt,e
                          Wetton 'Supreme Court. and the ultim.at� holding of the Besch case. The legislature, in
        !13RD
     JUDICiAL             r:edefining "Enterprlse" underE the. 0··. Jtatute, stated; "Enterprise' means any individu,al,
     ·0·1sTR.fcr                                       IIL.olJ/   n.fGINAL

1.AWPENc-. .1;01,JN."rY
   P£HNs·vLvA·N·•A
                                                    nn NOV -8        AM 10':   S.�
                             partnership, corporation, .associatlon or other legal entity, and                    any   union or group of

                             individuals associated in fact although not a legal entity, engaged in commerce and

                             includes legitimate ,as    well as ;!legitimate entities and governmental entities." 18 Pa:C:S.

                             § 911 (h )(3) .(emphasis supplied). The changes made to the statute modified the law in a

                             manner resulting in congruence                 with the      reasoning of the Opinion in Support of

                             Reversal. Because       the   Opinion ih Support           of Affitrnanc.e in   Wettoil was C.on.clitioned on

                             the Superior Court's reasoning regarding the targeting of the statute tow.a·rd legitin,ate

                             enterprises, only the reas.bning set forth. in the Opimon in Support of Reversal remains

                             .applicable and ot persuasive value.

                                    For   .ttrese   reasons, the Court held the. charge· of Corrupt Organizations under

                             Section 911(b)(3) targeted substantially the same evil as the Federal conspiracy charge

                             and would .be barred under the statutory double jeopardy provision pursuant to 18

                             Pa.c.s.   § t'11. While Defendant is charged with Section 911(b){2) rather than (b)(3), the

                             difference being the Defendant is the alleged ringleader of the enterprise as- opposed to

                             .ah employee, the evil again$t which the statute is targeted is the same. Count 1 of the

                             information. charging Corrupt Organizations - Control in Enterprise was DISMISSED with

                             prejudice.

                                    In its Concise Statement the Commonwealth contends this Court found the

                             Corrupt Organizations charge to be barred based on application ofWetfon and Besch. ln ·

                             further ctarlflcanon of this court's position, while the Wetton opinions and the Besch

                             opinion form the background. of iti present holding, the modifications of the Corrupt

                             Organization$ statute made t;>y the legislature rattler                  than    these cases themselves
      . SJRO
                             controlled this Court's reasqning. In the case of Welton. the changes made by the
                                                           r I Lt:iJ I a t(I G iN/\ L
    JUOICI� L·
   ·DISTRICT.                                                                                           .

LAWAENo;·E COUN1
 �E.f'.iNS.VLVA·N1J1tr
                         V                             2011NOV -8 AH IQ: sow
                         legislature now mandate the.opposite of the orif,inal Superior Court result,   and this Court
                         proceeded to apply the law in that manner.

                               The Order of this Cou.rt partially granting Defendant's Moti.on toDismiss Based on

                         Double Jeopardy and 18 Pa.C.S, § 111 should be AFFIRMED and the appealshould be

                         DENIED.




       !llRD
     JU,OICIA.L
                                                       FILED/ORIGINAL
     DISTR.ICT

                                                     2017NOV-8 AHIO: 50
._ .. WIU:NCIE .COUNTY
  P£N'N$Y C..�AN.,A
