J-S37009-19

                               2019 PA Super 302

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 NYJEE JEFFERSON                         :
                                         :
                   Appellant             :   No. 3684 EDA 2018

              Appeal from the Order Entered March 28, 2017
 In the Court of Common Pleas of Philadelphia County Criminal Division at
                    No(s): CP-51-CR-0012233-2015

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 NYJEE JEFFERSON                         :
                                         :
                   Appellant             :   No. 3685 EDA 2018

              Appeal from the Order Entered March 28, 2017
 In the Court of Common Pleas of Philadelphia County Criminal Division at
                    No(s): CP-51-CR-0012234-2015

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 NYJEE JEFFERSON                         :
                                         :
                   Appellant             :   No. 3686 EDA 2018

               Appeal from the Order Dated March 28, 2018
 In the Court of Common Pleas of Philadelphia County Criminal Division at
                    No(s): CP-51-CR-0012235-2015


BEFORE: BOWES, J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.

OPINION BY BOWES, J.:                              FILED OCTOBER 09, 2019
J-S37009-19



       Nyjee Jefferson appeals from the March 28, 2017 order denying his

motion to bar prosecution pursuant to 18 Pa.C.S. § 110 on double jeopardy

grounds.1 We affirm.

       The relevant facts were summarized by this Court in the prior appeal

from the notes of testimony at the joint preliminary hearing.

       Briefly, the testimony established that on October 19, 2015, a
       civilian observed Appellant and another individual in the backyard
       of a home located at 819 E. Rittenhouse Street. The civilian, who
       lived in the neighborhood and knew the homeowner, did not
       recognize the two men. After a brief conversation, Appellant and
       the other individual entered a vehicle and left. The civilian called
       911 to report the incident and supplied the license plate. For
       purposes of the preliminary hearing, the parties stipulated that
       the homeowner did not give Appellant permission to enter the
       home and that there were pry marks along the metal frame of the
       door. Appellant was thereafter charged with attempted burglary,
       criminal mischief, and conspiracy.

             Next, the Commonwealth called a resident of 7215
       Mansfield Avenue, who testified that on October 19, 2015, at
       approximately 5:30 p.m., he saw and heard Appellant and another
       man attempting to break into his home. The resident saw his
       basement door open, causing him to run outside to flag down a
       police officer. After finding an officer, he jogged back home and
       observed Appellant running across the awnings of his home as
       well as nearby buildings. As a result, Appellant was charged with



____________________________________________


1  Appellant filed a prior appeal from the order denying his motion for relief
under the compulsory joinder statute. See Commonwealth v. Jefferson,
192 A.3d 262 (Pa.Super. 2018) (unpublished memorandum). We determined
therein that we lacked jurisdiction to entertain the interlocutory appeal under
Commonwealth v. Diggs, 172 A.3d 661 (Pa.Super. 2017), as the trial court
had not rendered a specific finding of frivolousness when it denied the motion
to dismiss. We remanded for a Rule 587 determination. After the trial court
concluded that the issue was not frivolous, Appellant filed the instant appeals,
which this Court consolidated.

                                           -2-
J-S37009-19


      burglary, criminal trespass, criminal mischief, possession of an
      instrument of crime, and conspiracy.

            Finally, the parties stipulated for purposes of the preliminary
      hearing that Officer Joseph Campbell checked the license plate of
      a black SUV that was parked in the driveway of the Mansfield
      Avenue residence. That vehicle had been reported stolen on or
      about October 14, 2015. As a result, Appellant was charged with
      receipt of stolen property, unauthorized use of a vehicle, and
      conspiracy.

            While these charges were awaiting trial, Appellant was
      additionally charged at six separate dockets with one count of
      criminal mischief at each case. The charges stemmed from the
      aforementioned flight from 7215 Mansfield Avenue, which resulted
      in Appellant damaging six other awnings. Appellant pleaded guilty
      to all six cases.    The Commonwealth offered the following
      summary:

             [T]he Commonwealth’s evidence would show that on
             or about October 19th of 2015[,] officers responded to
             a burglary in progress. When they arrived, they
             observed the defendant coming out of a second floor
             window. He attempted to evade the police and in so
             doing ran on the awnings of several row houses to
             avoid those police apprehension [sic].        He was
             apprehended, but in the process of fleeing, he
             damaged no less than six awnings of six different
             individuals amounting to several hundred if not
             thousands of dollars in damage.

      N.T. Plea, 9/9/16, at 12. Appellant was sentenced to concurrent
      terms of eighteen months probation at each docket.

Commonwealth v. Jefferson, 192 A.3d 262 (Pa.Super. 2018) (unpublished

memorandum at 1-3).

      On March 8, 2017, Appellant filed motions seeking to bar prosecution of

all charges at three criminal dockets: No. 12233-2015; No. 12234-2015; and,

No. 12235-2015. For ease of reference, we designate the No. 12233 case,

consisting   of   charges   of   receiving   stolen   property,   conspiracy,   and


                                       -3-
J-S37009-19


unauthorized use of a motor vehicle related to the theft of the black SUV as

“the car case.”   No. 12234 will be referred to as the “Mansfield Avenue

burglary case.”   Finally, we will refer to the case at No. 12235 as the

“Rittenhouse attempted burglary case.” Appellant averred that prosecution

was barred pursuant to 18 Pa.C.S. § 110(1)(ii), as all three cases arose from

the same criminal episode as the six criminal mischief cases for damages to

awnings to which Appellant pled guilty in municipal court, which we refer to

as “the municipal court awnings cases.”

      Following a hearing on March 27 and 28, 2017, the trial court granted

partial relief with respect to the criminal mischief charge in the Mansfield

Avenue burglary case only.     However, the court refused to preclude the

prosecution for the burglary at that address, the car case, and the Rittenhouse

attempted burglary.

      Appellant appealed that interlocutory order, and this Court determined

that it lacked jurisdiction, and remanded for a determination whether the

motion was frivolous pursuant to Pa.R.Crim.P. 587(B).        The matter was

reassigned due to the retirement of the judge who had presided over the

motion initially, and the new judge assigned made findings of fact and

conclusions of law on November 27, 2018, based on the transcript and exhibits

from the earlier hearing. The trial court found that the Rittenhouse attempted

burglary case and the car case were unrelated to the municipal court awning




                                     -4-
J-S37009-19


cases.2 Findings of Fact and Conclusions of Law, 11/28/18, at 4, Nos. 24, 25.

It determined further that, despite that finding, “an appellate court could

conclude that the temporal proximity of the events [and] the use of the stolen

car at both locations . . . is sufficient to establish the requisite logical and

temporal connection between some or all of the remaining cases,” and thus,

it found the motion to be non-frivolous. Id. at 5, No. 28. Hence, the appeal

is properly before us.

       Appellant presents one issue for our review:

       I.     Did the lower court err in denying [Appellant’s] motion to
              bar prosecution on double jeopardy grounds and pursuant
              to 18 Pa.C.S. § 110 where [Appellant] had previously
              entered a guilty plea to criminal conduct arising from the
              same conduct and criminal episode?

Appellant’s brief at 4 (unnecessary capitalization omitted).

       Since the relevant facts are not in dispute, the issue before us is one of

law. In such cases, “[o]ur scope of review is plenary, and our standard of



____________________________________________


2  The court found no common issues of fact and no logical relationship
between the car case and the municipal court awning case. The only
connection was the fact that the vehicle was used as transportation to
Mansfield Avenue where the awning damage occurred. It also found no
common issues of fact and no logical relationship between the Rittenhouse
attempted burglary and the municipal court awnings cases, and that the only
connection was that the getaway vehicle at Rittenhouse was used as
transportation to Mansfield Avenue where the burglary and awning damage
occurred. Finally, it found no commonality of legal issues between the
municipal court awnings cases and the car case, the Rittenhouse attempted
burglary case, and the Mansfield burglary.



                                           -5-
J-S37009-19


review is de novo.” Commonwealth v. Perfetto, 207 A.3d 812, 821 (Pa.

2019).

       Appellant contends that the trial court erred in denying his motion to

bar prosecution based on double jeopardy grounds under 18 Pa.C.S. § 110,

known as the compulsory joinder rule, and our Supreme Court’s test for

application of that statute in Commonwealth v. Fithian, 961 A.2d 66 (Pa.

2008).3 That statute provides:

       § 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:
____________________________________________


3 The trial court also found that the instant prosecutions are not barred by the
5th Amendment of the United States Constitution, and Article I, section 10 of
the Pennsylvania Constitution.

                                           -6-
J-S37009-19



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

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

18 Pa.C.S. § 110. The foregoing statute bars a subsequent prosecution based

on double jeopardy if each prong of the test set forth in Fithian is met:

       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.

Fithian, supra at 72. See also Commonwealth v. George, 38 A.3d 893,

896 (Pa.Super. 2012).

       The Commonwealth concedes that three of the four Fithian prongs were

satisfied herein.4 The dispute involves the second prong of the test: whether

____________________________________________


4 The Commonwealth wisely did not argue that the fourth prong of the Fithian
test was not satisfied since the damaged awning cases proceeded in the
Municipal Court rather than the General Division. While the instant appeal
was pending, the Pennsylvania Supreme Court decided Commonwealth v.
Perfetto, 207 A.3d 812 (Pa. April 26, 2019). The Commonwealth conceded



                                           -7-
J-S37009-19


the current prosecutions are based on the same criminal conduct or criminal

episode as the former prosecutions in municipal court for criminal mischief

related to the awnings. The Commonwealth agreed not to prosecute Appellant

on the Mansfield Avenue burglary case.5 Thus, for purposes of this appeal,

only two current prosecutions remain, i.e., the car case and the Rittenhouse

attempted burglary case.

       As this Court reiterated recently, a criminal episode is “an occurrence or

connected series of occurrences and developments which may be viewed as

distinctive and apart although part of a larger or more comprehensive

series.” George, supra at 897. In making such a determination, “one must

consider the logical relationship between the acts, i.e., whether there is a

substantial duplication of issues of law and fact, and whether the acts are

temporally related.” Id. (quoting Hude, supra at 183).

____________________________________________


therein that the first three Fithian prongs were satisfied, but argued that since
the traffic court that adjudicated the summary traffic offense lacked
jurisdiction over the three driving while under the influence (“DUI”) charges,
the fourth prong was not met. The Commonwealth maintained that the
prosecution of the DUI offenses was not barred within the meaning of the
compulsory joinder statute due to the operation of subsection 112(1) of the
Crimes Code. See 18 Pa.C.S. § 112(1) (providing that a prior prosecution is
not a bar when “(1) The former prosecution was before a court which lacked
jurisdiction over the defendant or the offense”). The Supreme Court rejected
the Commonwealth’s argument, holding that the General Division had full
jurisdiction of the Municipal Court, including its traffic division, citing 42
Pa.C.S. § 1121(b)(3).
5The Commonwealth conceded in the prior appeal that, on remand, it will not
proceed on the Mansfield Avenue burglary case. See Commonwealth v.
Jefferson, 192 A.3d 262 (Pa.Super. 2018) (unpublished memorandum at 5
n.2).

                                           -8-
J-S37009-19


       Appellant contends that the trial court erred in its interpretation of § 110

as requiring that the prosecutions be based on the same facts. He maintains

that this case is controlled by Fithian and George, and that the prosecution

need only arise from the same criminal episode.             Moreover, Appellant

contends that the facts relating to the charges in the municipal court awning

incidents “clearly arose from the same criminal episode as the charges” herein,

and were both “logically and temporally related” to the cases before us.

Appellant’s brief at 12. He points out that the municipal court awning cases

arose from Appellant’s attempt to evade police after the burglary at 7215

Mansfield Avenue, and then concludes, without analysis, that all charges at

the three dockets must be dismissed.6 Id. at 12-13.

       The Commonwealth counters that Appellant’s reliance upon Fithian and

George is misplaced as the facts are inapposite. Commonwealth’s brief at

11. In Fithian, the parties agreed that the crimes were part of the same

criminal episode, and thus, the Commonwealth maintains the Supreme Court

did not actually decide that issue. George, according to the Commonwealth,

involved repetitive drug-related charges based on the same evidence as the

former prosecution and involving overlapping legal issues. Id.




____________________________________________


6Despite the Commonwealth’s prior representation to this Court that it would
not prosecute the Mansfield Avenue burglary case, Appellant persists in
arguing that the case must be dismissed.

                                           -9-
J-S37009-19


      The Commonwealth also argues that temporal proximity is not enough.

In support thereof, it cites Commonwealth v. Kolovich, 170 A.3d 520, 525

(Pa.Super. 2017), where we held that “simply committing the same crime

multiple times within the same short interval is not enough to constitute a

criminal episode.” It directs our attention to several other cases where relief

was denied under § 110 even though the crimes occurred close in time. See

Commonwealth’s brief at 9 (citing Commonwealth v. Caden, 473 A.2d 1047

(Pa.Super. 1984) (appellant stole both a truck and a tractor on the same

evening); Commonwealth v. Lee, 435 A.2d 620 (Pa.Super 1981) (appellant

stabbed two people on the same block within a forty-five minute period);

Commonwealth v. Miller, 419 A.2d 1378, 1380 (Pa.Super. 1980)

(burglarized same residence six hours apart)).

      The trial court relied upon Hude, supra, in reasoning that “when

defining what acts constitute a single criminal episode, not only is the temporal

sequence of events important, but also the logical relationship between the

acts must be considered.” Trial Court Opinion, 5/16/17, at 2. In determining

whether a logical relationship existed, the Hude Court looked to “whether

there is a substantial duplication of factual, and/or legal issues presented by

the offenses.” Id. at 181. The trial court also cited Commonwealth v. Reid,

35 A.3d 773 (Pa.Super. 2012), for the proposition that the determination of

whether a current prosecution is logically related, i.e., based on the same

criminal conduct or arose from the same criminal episode, turned on whether


                                     - 10 -
J-S37009-19


the offenses presented “a substantial duplication of issues of fact and law.”

Trial Court Opinion, 5/16/17, at unnumbered 3. The court concluded that,

with the exception of the awning incident at the site of the burglary on

Mansfield Avenue for which Appellant could not be prosecuted, “the burglary,

attempted burglary, and other related charges occurred at two separate

locations, involved different witnesses, different evidence of damages and

different criminal charges.” Id.

      We agree with the Commonwealth that Fithian and George are

factually distinguishable from the instant case. The only issue in Fithian was

whether the offenses being prosecuted by Delaware County “occurred within

the same judicial district” as the former prosecution as it was stipulated that

the prosecutions arose out of the same criminal episode. Fithian, supra at

72. In George, the subsequent charges were intertwined with the appellant’s

earlier criminal activity and prosecution. The grand jury evidence leading to

the later prosecution referenced the earlier arrest and the appellant’s

statement, and the evidence at the preliminary hearing on the subsequent

prosecution arose from the same factual nucleus as the 2007 prosecution.

The trial court found that the conspiracy and corrupt organization charges

were logically and temporally related to the earlier possession with intent to

deliver charges, and this Court affirmed. Such is not the case herein.

      We find that the trial court applied the proper legal analysis in concluding

that there was no logical relationship between the current prosecutions, i.e.,


                                     - 11 -
J-S37009-19


the car case and the Rittenhouse attempted burglary case, and the earlier

municipal court awnings cases. The witnesses who testified in the municipal

court awnings cases were the homeowners who sustained damages to their

awnings and the police officers who witnessed Appellant’s flight. While the

criminal mischief involving the awnings occurred close in time to the

Rittenhouse attempted burglary, the proof is distinct.          Presumably, in

prosecuting the Rittenhouse attempted burglary case, the Commonwealth will

elicit the testimony of the victim, the neighbor who witnessed the attempt,

and the investigating police officers. There is no overlap in the witnesses or

proof.

         The events giving rise to the car case occurred several days before the

Rittenhouse attempted burglary and the criminal mischief involving the

awnings.      The only connection between the crimes was the fact that the

eyewitness to the Rittenhouse attempted burglary wrote down the license

plate number of the car driven by the perpetrators.          The car was later

recovered at the site of the awning incidents, and police thereafter determined

that the vehicle was stolen.       As this Court held in Commonwealth v.

Miskovitch, 64 A.3d 672, 697 (Pa.Super. 2013), the fact that a stolen vehicle

may be used in a subsequent robbery does not provide the logical connection

between the two incidents to warrant relief under § 110.

         Absent herein is the logical nexus between the municipal court awning

cases on the one hand, and the car case and Rittenhouse attempted burglary


                                      - 12 -
J-S37009-19


case on the other, that would have made them part of the same criminal

episode and mandated joinder under § 110. Thus, the trial court properly

concluded that the current prosecutions, i.e., the car case and the Rittenhouse

attempted burglary, are not barred by double jeopardy.

      Order affirmed. Jurisdiction relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/9/19




                                    - 13 -
