J-A14016-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

PATRICK JOSEPH MCLAINE

                            Appellant              No. 1755 MDA 2013


                Appeal from the Order Entered August 28, 2013
             In the Court of Common Pleas of Cumberland County
               Criminal Division at No(s): CP-21-0003459-2012


BEFORE: FORD ELLIOTT, P.J.E., OLSON and STRASSBURGER*, JJ.

MEMORANDUM BY OLSON, J.:                       FILED SEPTEMBER 08, 2014

       Appellant, Patrick Joseph McLaine, appeals from an order that denied

his omnibus pretrial motion, which was entered on August 28, 2013 in the

Criminal Division of the Court of Common Pleas of Cumberland County.1 We

affirm.

       The trial court aptly summarized the relevant factual and procedural

history in this case as follows:

       On April 30, 2009, the Hampden Township Board of
       Commissioners approved a Street Light Energy Savings Purchase
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1



joinder rule and the double jeopardy clause compelled dismissal. We have
jurisdiction over interlocutory appeals involving such claims.       See
Commonwealth v. Schmidt, 919 A.2d 241, 244 (Pa. Super. 2007), appeal
denied, 936 A.2d 40 (Pa. 2007).



* Retired Senior Judge assigned to the Superior Court.
J-A14016-14




     [Appellant].   Under this Agreement, MEM would acquire
     streetlight sy
     install energy saving equipment, provide other contractual



     Hampden Township and MEM signed a contract on June 26,
     2009. Also on June 26, 2009, Hampden Township Manager,
     Michael Gossert, met with Kearns and [Appellant] to discuss
     Hampden Township transferring money to MEM. As per the
     contract and discussions between the parties, Hampden
     Township transferred $1,312,000[.00] to MEM between June 26,
     2009, and June 29, 2009. Hampden Township transferred the
     approximately $1.3 million to MEM in three separate payments
     of $546,000[.00] and $266,000[.00] on June 26, 2009, and the
     remainder, $500,000[.00], on June 29, 2009. Kearns told the
     Township Officials that the $546,000[.00] was required to make
     a good faith payment to PPL and would be placed into a PPL
     account. The remaining balance of the $1.3 million was for
     make ready work that PPL required to complete the purchase of
     the streetlights. MEM would begin re-lamping, tagging, and
     mapping the street light system upon receipt of the money.
     Kearns stated that he needed the money to begin the make
     ready work the next week.

     On June 30, 2009, at a meeting between PPL and MEM, it was


     completely unrelated to Hampden Township. MEM had past due
     invoices with PPL in the amount of $473,000[.00]. MEM did not
     mention, and PPL was not aware, that the $546,000[.00] came
     from Hampden Township. MEM also provided PPL with a list of
     municipalities they were working in, and Hampden Township was
     not on the list.

     On August 5, 2009, PPL sent a letter to MEM, which was
     forwarded to Hampden Township, giving notice to MEM of
     unauthorized work being done on the streetlights in Hampden
     Township. This work was performed by a contractor hired by
     MEM to begin the make ready work on the streetlights. At this
     time, Hampden Township contacted PPL, and the Township was

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      informed that MEM had not paid PPL any money on its behalf or
      made agreements with PPL to work on its streetlights. It was
      not until September 2010 that a payment was finally made in
      relation to Hampden Township when PPL received a
      $55,000[.00] payment from MEM for an initial survey.

      On May 12, 2011, Kearns told Hampden Township Officials that
      he would provide evidence of the existence of the $546,000[.00]
      being held in a PPL account. The Township requested that MEM
      transfer all remaining funds to a separate account in the name of
      Hampden Township. This request was never complied with. The
      criminal information was filed in Cumberland County for this
      matter on March 25, 2013.

      Criminal informations were also filed against [Appellant] for
      similar offenses in Northampton County on May 2, 2012, in
      Lehigh County on May 2, 2013, and in Bucks County on October
      10, 2013. After trial during the week of January 7, 2013, in
      Northampton County, [Appellant] was convicted of [t]heft by
      [f]ailure to [m]ake [r]equired [d]isposition of [f]unds and
      acquitted of the charges for [c]onspiracy and [m]isapplicaton of
      [g]overnment [f]unds. [Appellant] filed an [o]mnibus [p]retrial
      [m]otion to th[e Cumberland County trial c]ourt that included a
      [m]otion to [d]ismiss [p]ursuant to [h]abeas [c]orpus claiming
      that the Commonwealth did not establish a prima facie case for
      any of the charges brought, a [m]otion to [d]ismiss/[j]oin
      [p]ursuant to [c]ompulsory [j]oinder and a [m]otion to [d]ismiss
      [p]ursuant to [d]ouble [j]eopardy.       After consideration of

      by the parties, and after argument on August 5, 2013, th[e trial
                                                        led a [n]otice
      of [a]ppeal on September 25, 2013, followed by a [concise
      s]tatement of [m]atters complained of on [a]ppeal on October 9,
      2013.

Trial Court Opinion, 11/22/13, at 1-4 (record citations omitted).

      In his brief, Appellant raises the following issue for our review:

      Whether, where [Appellant] was tried and convicted in
      Northampton County on charges related to the same criminal
      episode as subsequent charges in Cumberland County, the
      Cumberland County charges are barred by double jeopardy
      and/or compulsory joinder?

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J-A14016-14




      Appellant was convicted in Northampton County of theft by failure to

make required disposition of funds.        He now faces similar, subsequent

charges in Cumberland County, Lehigh County, and Bucks County.            In his

sole claim on appeal, Appellant alleges that the principles of compulsory

joinder and double jeopardy bar these subsequent charges because they

arose from the same criminal episode underlying the charges addressed in

Northampton County. To support his contention, Appellant points out that,



local municipalities.    All charges stem from contracts for the sale of

streetlights. All charges claim street lights were paid for and never received

by the municipalities.   These charges all involve a single company:       MEM.

They involve a single bank account in which funds from numerous counties

were comingled and are therefore inseparable. The charges are all related in




the following reasons, we conclude that Appellant is not entitled to relief.

      Section 110 of the Crimes Code governs compulsory joinder of criminal

prosecutions.   See 18 Pa.C.S.A. § 110.      We are guided by the following

principles in our review of claims that invoke § 110.

      The compulsory joinder statute is a legislative mandate that a
      subsequent prosecution for a violation of a provision of a statute
      that is different from a former prosecution, or is based on

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J-A14016-14


     different facts, will be barred in certain circumstances. 18
     Pa.C.S.A. § 110. As amended in 2002, Section 110 states in
     relevant part:


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

     Although a prosecution is for a violation of a different provision
     of the 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 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.

     18 Pa.C.S.A. § 110 (emphasis added).

     As has been summarized by our [Supreme] Court, Section
     110(1)(ii), which is the focus in this appeal, contains four


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J-A14016-14


       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 [Commonwealth v.] Nolan, 855 A.2d [834, 839 (Pa.
       2004)]; Commonwealth v. Hockenbury, 701 A.2d 1334, 1337
       ([Pa.] 1997).    Each prong of this test must be met for
       compulsory joinder to apply.

Commonwealth v. Fithian, 961 A.2d 66, 71-72 (Pa. 2008) (parallel

citation omitted).

       In deciding whether the current prosecution is based upon the same

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

prosecution,2

logical relationship prong [must look to] the temporal and logical relationship

between the charges to determine whether they arose from a single criminal

               Commonwealth v. Reid, 77 A.3d 579, 582 (Pa. 2013).


____________________________________________


2
                                                                            See
Commonwealth v. Reid, 77 A.3d 579, 582 (Pa. 2013).



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J-A14016-14




Commonwealth v. Hude, 458 A.2d 177, 181 (Pa. 1983). With respect to

whether a logical relationship exists, the Supreme Court has explained:

       In ascertaining whether a number of statutory offenses are
       logically related to one another, the court should initially inquire
       as to whether there is a substantial duplication of factual, and/or
       legal issues presented by the offenses. If there is duplication,
       then the offenses are logically related and must be prosecuted at
       one trial. The mere fact that the additional statutory offenses
       involve additional issues of law or fact is not sufficient to create
       a separate criminal episode since the logical relationship test
       does not require an absolute identity of factual backgrounds.

Id. (internal quotation marks omitted). Substantial duplication of issues of

law and fact is a prerequisite, as de minimis duplication is insufficient to

establish a logical relationship between offenses.         Commonwealth v.

Bracalielly, 658 A.2d 755, 761 (Pa. 1995).         Where different evidence is



substantial duplication is not demonstrated.3       See id. at 761 62.        Our

____________________________________________


3
  In considering the temporal and logical relationship between criminal acts,
we are guided by the policy considerations that § 110 was designed to
serve:

       (1) to protect a person accused of crimes from governmental
       harassment of being forced to undergo successive trials for
       offenses stemming from the same criminal episode; and (2) as a
       matter of judicial administration and economy, to assure finality
       without unduly burdening the judicial process by repetitious
       litigation.

Commonwealth v. Anthony, 717 A.2d 1015, 1018 1019 (Pa. 1998)
(citation omitted).



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J-A14016-14


Supreme Court has also recognized a per se disqualification for offenses that

occur in different judicial districts. See Fithian

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



      In the present case, the trial court offered the following explanation for



      In this case [], it is alleged that [Appellant] ran a profitable
      enterprise in which he and Kearns, through MEM, acquired funds
      from townships in at least four different counties under the
      impression that the funds would be paid to PPL so the townships
      could purchase the streetlights. Instead, it is alleged that the
      funds were used to pay past debt of MEM.           Although the
      Cumberland County charges and underlying facts are similar to
      those in Northampton [County], they do not rise to the level of
      compulsory joinder.

      Here, the Commonwealth will have to call a significant number of
      material witnesses that were not required for the Northampton
      County charges, including the Hampden Township Officials that
      negotiated the deal with MEM and [Appellant]. The pending
      charges in Bucks and Lehigh Counties will also require different
      material witnesses. The Cumberland County charges involved a
      separate investigation from the Northampton, Bucks and Lehigh
      County charges. See Bracalielly[, 658 A.2d] at 762 (finding
      that the independent involvement of two distinct law
      enforcement entities prevents a substantial duplication of issues
      of law and fact). Perhaps most importantly, each case involves a
      different victim. Overall, while the cases may involve an overlap
      of some witnesses and facts, the separate prosecutions in each
      of the four counties constitute separate criminal episodes that
      involved separate investigations, victims, witnesses and
      geographical boundaries culminating in one criminal enterprise.
      Therefore, the pending Cumberland County charges are not
      subject to compulsory joinder.

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J-A14016-14



      We now turn to the fourth prong, whether the pending charges
      occurred within the same judicial district as the former

      as the sam
      General Assembly intended that, for purposes of the compulsory

      geographical area established by the General Assembly in which
      a court of common pl                    Fithian, 961 A.2d at 75.
      The Pennsylvania Supreme Court further held that the General
      Assembly intended to preclude from the reach of the compulsory
      joinder statute current offenses that occurred 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. at 77. Since the current charges are pending in
      Cumberland County, which is outside the judicial district of the
      former prosecution in Northampton County, the fourth prong has

      therefore, not be dismissed.

      For all of the reasons stated supra, joinder of Cumberland
      County charges to the pending Bucks and Lehigh County charges
      is also inappropriate.   This Court did not err in denying

      [c]ompulsory [j]oinder.

Trial Court Opinion, 11/22/2013, at 6-7.



underlying the compulsory joinder statute, which we have stated above.

Thus, after careful review of the certified record and the submissions of the

parties, we conclude that Appellant is not entitled to relief on his compulsory

joinder claim.

      The following

jeopardy claim.

      Consideration of the constitutional protections contained in the
      double jeopardy clauses is necessary where the statutory

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J-A14016-14


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

      criminal                  See [Commonwealth v. Gimbara,
      835 A.2d 371, 374 (Pa. Super. 2003)] (citation omitted).

Schmidt, 919 A.2d at 250.

      The trial court concluded that the double jeopardy clause did not

                                                            rimes alleged in

Cumberland County were not part of the same criminal episode relating to

the prior prosecution that went forward in Northampton County. See Trial

Court Opinion, 11/22/13, at 8. We concur with this assessment. Hence, we

affirm.

      Order affirmed. Jurisdiction relinquished. Case remanded for further

proceedings.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/8/2014

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