J-A20004-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                      Appellee                 :
                                               :
               v.                              :
                                               :
    JEFFERY LLOYD ROHRBAUGH                    :
                                               :
                      Appellant                :       No. 1683 MDA 2016

              Appeal from the Order Entered September 19, 2016
                  In the Court of Common Pleas of York County
              Criminal Division at No(s): CP-67-CR-0000422-2015


BEFORE: GANTMAN, P.J., PANELLA, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY GANTMAN, P.J.:                         FILED OCTOBER 13, 2017

       Appellant, Jeffery Lloyd Rohrbaugh,1 appeals from the order entered in

the York County Court of Common Pleas, which denied his pre-trial motion

to dismiss pursuant to 18 Pa.C.S.A. § 110. We affirm.

       In its opinion, the trial court fully and correctly sets forth the relevant

facts and procedural history of this case. Therefore, we have no reason to

restate them.

       Appellant raises the following issue for our review:

          WHETHER THE TRIAL COURT ERRED IN DENYING
          APPELLANT’S MOTION TO DISMISS WHEN IT FOUND THAT
          THE FORMER OFFENSE AND THE CURRENT OFFENSE WERE
          NOT BASED ON THE SAME CRIMINAL CONDUCT OR DID
____________________________________________


1Appellant’s first name is spelled variously throughout the certified record as
both “Jeffery” and “Jeffrey.”
J-A20004-17


          NOT ARISE FROM THE SAME CRIMINAL EPISODE FOR THE
          PURPOSES OF DISMISSAL UNDER [18 PA.C.S.A § 110]?

(Appellant’s Brief at 4).

        A claim regarding compulsory joinder pursuant to 18 Pa.C.S.A. § 110,

although interlocutory, is immediately appealable.         Commonwealth v.

Barber, 940 A.2d 369, 376 (Pa.Super. 2007), appeal denied, 599 Pa. 686,

960 A.2d 835 (2008). This type of claim raises a question of law, thus, our

scope of review is plenary and our standard of review is de novo.          Id.;

Commonwealth v. Vargas, 947 A.2d 777 (Pa.Super. 2008).

        Section 110 of the Pennsylvania Crimes Code provides, 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 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 was within the same judicial district
                   as the former prosecution unless the court

                                      -2-
J-A20004-17


                  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.     Section 110(1)(ii) contains four requirements that

would preclude a subsequent prosecution based upon a prior prosecution:

     (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.

Commonwealth v. Fithian, 599 Pa. 180, 191, 961 A.2d 66, 72 (2008).

“Each prong of this test must be met for compulsory joinder to apply.” Id.

     The determination of a single criminal episode must not be approached

in a rigid or hypertechnical manner.   Commonwealth v. Miskovitch, 64

A.3d 672 (Pa.Super. 2013), appeal denied, 621 Pa. 702, 78 A.3d 1090

(2013). Rather:

                                   -3-
J-A20004-17


         [W]e consider (1) the temporal relationship between the
         acts in question and (2) the logical relationship between
         the acts. In determining whether a number of offenses are
         “logically related” to one another, a court should inquire
         into whether there is a substantial duplication of factual
         and/or legal issues presented by the offenses; if there is
         substantial duplication, then the offenses are logically
         related and must be prosecuted at one trial.

Id. at 686.

       After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Richard K.

Renn, we conclude Appellant’s issue merits no relief. The trial court opinion

comprehensively discusses and properly disposes of the question presented.

(See Trial Court Opinion, filed February 14, 2017, at 2-5) (finding: offenses

at issue were neither based on “same criminal conduct” nor arose from

“same criminal episode”; Appellant committed offenses at different locations

on different dates, and different witnesses would be required for prosecution

of each offense; no logical relationship exists between facts of each incident;

there was “clear break” between offenses; Appellant is sole common thread

between two criminal incidents; Appellant’s acts do not constitute part of

same    criminal   episode,   therefore,   Appellant’s   issue    is   meritless).

Accordingly, we affirm on the basis of the trial court opinion.

       Order affirmed.




                                     -4-
J-A20004-17


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/13/2017




                          -5-
                                                                        Circulated 09/21/2017 09:26 AM




      IN THE COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYLVANIA
                          CRIMINAL DIVISION



Commonwealth of Pennsylvania                                   CP-67-CR-00004 22 - 2015
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      OPINION PRUSUANT TO RULE 1925( a) OF THE PENNSYLVANIA RULES OF
                         APPELLATE PROCEDURE

           This matter is before the Court on the Appellant,Jeffery Rohrbaugh's motion to
dismiss on grounds, generally, of double jeopardy, filed on September 14, 2016. We denied
the motion on September 19, 2016. On October 11, 2016, the Appellant filed a timely notice of
appeal to the Superior Court. We directed him to file his 1925(b) statement, which he did on
November 3, 2016. Pursuant to Rule 1925(a) of Pennsylvania Rules of Appellate Procedure,
the following is our opinion addressing the merits of Appellant's argument on appeal


Factual and Procedural History:
           In this case, the Appellant was charged with one count of Sale of Firearms', and one
count of Unsworn Falsification to Authorities' for offenses committed on or about August 3,
2014. H~ was charged with the same offenses, committed on a different date-August 9,
2014. in case CP-67-CR-0005388-2015 (former case). On September 13, 2016, following a jury




1
    18 Pa.C.S. §61ll(g)(4)(11).
2
    18 Pa.C.S. §4904(a)(1).

                                                  l
trial in the former case, he was found not guilty of Sale of Firearms and guilty of Unsworn
Falsification. (Motion to Dismiss, C:.V6.)
                   · The charges in the instant case concern an incident at a Wal-Mart on August 3, 2014,
whereas the charges in the former case concern an incident at a Dick's Sporting Goods on
August 9, 2014. Id. at ':ll4. Because the Appellant was charged with the same offenses,he filed
a motion to dismiss the instant case, claiming that pursuant to 18 Pa.CS. §110, the
Commonwealth is barred from bringing the present action against him and that it should
have tried the present charges with the former case. Id at ':ll8.
                                  We denied the Motion to Dismiss on September 19, 2016. On October11, 2016,
Appellant filed a timely notice of appeal to the Superior Court followed by a timely Statement of
Errors Complained of on Appeal on November 3, 2016.

    \     •'II                  ·,'    •




Issue(s:):
·. ·. I.                                   Whether the trial court erred in denying Appellant's Motion to Dismiss when it
                                           found that the former offense and the current offense were not based on the same
               j   ••••
                                           criminal conduct or did not arise from the same criminal episode for purposes of
                                           dismissal under 18 Pa.CS. §110.


Discussion: ·
                      . ·. Same. Criminal. Conduct or Same Criminal Episode:
                    · .:' TheAppellantargues that a dismissal of the instant case is warranted pursuant to 18
Pa.C.S.§110. We disagree .
      . Instantly, we clearly have a situation that involves the question of whether the two
;       ....    . .       •,,

offen~esshould be considered a "single criminal episode." Our appellate courts have
fashioned the following test to assist in making this determination:
                                      (1) the former prosecution resulted in an acquittal or conviction; (2) the
                                      current prosecution was based on the same criminal conduct or arose from
                                      the same criminal episode; (3) the prosecutor in the subsequent trial was


                                                                              2
                     aware of the charges before the first trial; and ( 4) all charges were within the
                     samejudicial district as the former prosecution.


Com. v. Pries, 861 A.2d 951, 954 (Pa.Super. Ct. 2004).
          · The only question here is whether or not the instant offenses that Appellant is
charged with are based on the "same criminal conduct" or arise from the "same criminal
episode" as the former case. For the reasons that follow, we do not believe the two offenses
can be considered as one criminal episode. We understand the Appellant's argument that
these two offenses occurred within a few days of one another and the only difference was a
location, but a temporal relationship is just one factor to consider when determining
whether a single criminal action has occurred. We must also consider the facts in a logical
manner. See Com. V. Wittenburg, 710 A.2d 69, 73 (Pa.Super. Ct.1998).
                     In Miskovitch, the Superior Court undertook a double jeopardy analysis but relied on
18.Pa.C:.S; §110 as a tool to explain the "same criminal episode." The Court stated that
                   [t]he determination of what constitutes a single criminal episode must not be
                   approached in a rigid or hypertechnical manner that would defeat the purposes
  · · .·' -, · .underlying Section 110. Rather, when determining what constitutes a single criminal
.. · .: , . _episode, y.;e consider (1) the temporal relationship between the acts in question and
                   (2) thelogical relationship between the acts. In determining whether a number of
         · · . · ; offenses.are "logically related" to one another, a court should inquire into whether
: _..,.·         . thereis a substantial duplication of factual and/or legal issues presented by the
             · · offenses; if there is substantial duplication, then the offenses are logically related and
     . . .... must be prosecuted at one trial.
 ,a~. v: Miskovitch,_64 A.3d 672, 686, reargument denied (Apr. 29, 2013), appeal denied, 621 Pa. 702,
78 A.3d 1090{2013).- · ...
i,   '                              .           ·-                ·.       ,,                .


                     there, the defendant committed two robberies - one on July 31st and another on
                     ;     :                ··.
August ~st. 64 A.3d at 675,76. The trial court noted that "[t]he only linking factor between
                               .                  .. . .
these crimes was that the car that Miskovitch stole on July 31, 2004 was used in the robbery
                      ·'                    •             •        'r      ,        :·   •



that he committed on August 1, 2004," thereby clearly stating that there was "no substantial
duplic~don.oflegaf
                               ,·       .         .   .                .        \
                                                                                         ot. factual issues."   Id. at 687. The Superior Court agreed with the trial
court's analysis. Id. Specifically, the Court noted that "the crimes occurred on different days

                      . r~ .

                     'I                     i.•,              .
                                                                                                                        3

     ~ ·. ~   '.
                   ..
                   ;:_,. .
 and at cliffer~ht locations, and, not surprisingly, different witnesses were required for the
p~os~cutfon· df the separate crimes." Id. Thus, there was no logical relationship between the
 two crimes, sci. the trial court's determination was affirmed. Id.
                                        .                Here, the situation is not much different. The appellant first committed the offense
 on August 3, 2014, at a Wal-Mart and then again on August 9, 2014, at a Dick's Sporting
 Goods store. Just as the Court in Miskovitch noted, the offenses here were committed at
 different locations on different dates, and different witnesses would be required for the
 prosecution ofthe offenses, Therefore, albeit the Appellant committed and was charged with
 the same offenses, there is no logical relationship between the two crimes .
                                                 . "The facts of Lee are similar to the facts in the present case as well. In Lee, the
 defendant stabbed one.victim around midnight on August 31st. Com. v. Lee, 435 A.2d 620
...                     ',          .                                                                    .      ..                                             .

 (Pa.Super. Ct.19.81). Approximately twenty minutes later, around 12:20AM on September
  r', the defendant
           .·                           ,         ..           · ..                         t',·'
                                                                                                                                stabbed another victim. Id. The defendant was arrested, but he was
                                                                                                                                                       .                       .                       -


  charged under two sets of information. Id. The defendant proceeded to a bench trial in the
  ftrs.t s~~bbing_and was ultimately found guilty. Id. About a month later, the Commonwealth
  called the defendant'ssecond                                                                                                                                                             case to trial; however, the defendant moved to have the second
      • ,I                  ·,     ,.                   ',      '       •               •       : '· •• ' ',                     :.                '               .," •



  case dismissed 011. the grounds that it violated.double jeopardy because the two stabbings
    . :·...... · .' ..... ·.'. : . . .

  'Yere part of one criminal episode. Id. at 621.
     . • I ··~ . .                                     ...          ".•         I           • '.                '       ;                  •               •




 .. · , .. Jn additionto the double jeopardy analysis, the court endeavored to explain "same
 .         ..                      . .
                                    .                   ..      . .                             ~    .              .                 .    '       •'.         .           .
     conduct'torconduct arising from "same criminal episode" under 18 Pa.CS. §110. Id. To that
                .                                                       .           ,:      , .. ;             ·.                              .               .
     end, the Court stated that even though the stabbings occurred just minutes apart, they were
  '. ,,.;•:                                      ·.·,'c...,.·.:.                    I        ;t              I.,:,'                        , , "                                   •

     to be "properly viewed as two separate episodes." Id. at 622. Additionally, even though the
·,I         ~               ,'      , •     r,          )", ,:                  .           '            ~ • ,.' :..                                                   •

     stabbings were proximately close in time, the Court noted that there was a "clear break in
      •.            .             • , .'               ~-           :           .. :                . ;, .;                           I~

  criminal activiry of the defendant" because after the first stabbing, he had a conversation
            1girll;'.i°~;~J

  ~t·h··hi~                 fo~ approximately twenty minutes before stabbing her as well. Id .
  ." ~                                             : '. . . .                   . .......-. ./ :~ ~ · ..~
                        .                   . · Here.the Appellant's acts are also similar to those of the defendant in Lee. The
  '·:·                      •••     1 -. ;_:             .;,                ·                        :.:.,;:                    •••            -v ".                                   .

     A.,ppeµa~t ~i~.it commitred the offense by filling out false information on August 3, 2014 at a
 \.v;l,M~rt, i~(at/~tt~mpt to purchase a firearm. Thereafter, when his application was
                            ·'. .' ~ ~--: ', . :                                            .                               :   ..

                                                                                                         ;     ,· · .. :                                                                                   4
.
    rejected,. he
               ~
                  tned.
                    ...
                        to fill a similar application at a Dick's Sporting Goods store on August 9,
                                                           ',


    2011.: AstheCourt in Lee noted, there was a "clear break" between the offense committed by
     . . . ~ . . . •. . . . ·. . .. . .
    the:APP~Ua~.~ Ol} August 3 and the one committed on August 9. Furthermore, much like Lee,
    where ~he ~Nb victims had nothing in common except the defendant who stabbed them,
    here, theonly common thread between the two offenses is the Appellant who committed the
             .                                                       .
    same offense on two different dates, at two different locations.
                              .Thus.we conclude that the Appellant's acts do not constitute a part of the same
    criminal episode because there was a clear break between the offenses he committed..

    Conclusion::·.·
                             .. iFor the aforementioned reasons, we respectfully submit that the Appellant's
                                                       '.,.·.

     arguments
      .   1-.....
                  on' appeal
                        . .
                             are without merit.
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