J-A14010-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :    IN THE SUPERIOR COURT OF
                                         :         PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 SONYA CHARMAIN PORTER                   :
                                         :
                   Appellant             :    No. 1528 WDA 2017

        Appeal from the Judgment of Sentence September 20, 2017
            In the Court of Common Pleas of Allegheny County
           Criminal Division at No(s): CP-02-CR-0011779-2016


BEFORE: OTT, J., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.:                            FILED OCTOBER 18, 2019

     Sonya Charmain Porter appeals from the judgment of sentence imposed

September 20, 2017, in the Allegheny County Court of Common Pleas. The

trial court sentenced Porter to a term of three years’ probation, and ordered

her to pay $2,770.00 in restitution, after she was convicted by a jury of one

count of Fraud in Obtaining Food Stamps, 62 P.S. § 481(a). On appeal, she

contends the trial court erred by denying her pretrial motion to dismiss the

charge based on collateral estoppel and/or double jeopardy grounds. For the

reasons below, we affirm.

     The facts relevant to this appeal are as follows. On April 29, 2016, the

Pennsylvania Office of Inspector General filed a private criminal complaint

against Porter, alleging she unlawfully obtained $2,770.00 in food stamp

benefits between February 1, 2015, and July 31, 2015, by failing to disclose

the correct income of her household.         See Private Criminal Complaint,
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5/24/2016, at 2. Specifically, the probable cause affidavit alleged Porter failed

to report to the Department of Human Services that she was employed by the

United States Postal Service during the relevant period, and, accordingly,

obtained benefits to which she was not entitled.        See id. at Affidavit of

Probable Cause. A criminal information charging her with one count of False

Statements under the Human Services Code, 62 P.S. § 481(a), was filed on

November 16, 2016, at Docket No. 2016-11779.

       On March 23, 2017, Porter filed a pretrial motion to dismiss the charge

based on collateral estoppel and double jeopardy grounds. She averred that

on December 4, 2015, she was charged at Docket No. 2015-14956, with

violating Section 481(a) for an overpayment she received during the prior

period of August 1, 2014, through January 31, 2015. See Motion to Enforce

Rule 586 Disposition and To Dismiss on Collateral Estoppel and Double

Jeopardy Grounds, 3/23/2017, at ¶ 1-2. That case was resolved on March 21,

2016, via Pennsylvania Rule of Criminal Procedure 586,1 when she “paid the
____________________________________________


1 Rule 586 permits a trial court to dismiss a criminal offense, “which is not
alleged to have been committed by force or violence or threat thereof” under
the following conditions:

       (1) the public interest will not be adversely affected; and

       (2) the attorney for the Commonwealth consents to the dismissal;
       and

       (3) satisfaction has been made to the aggrieved person or there
       is an agreement that satisfaction will be made to the aggrieved
       person; and



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entirety of the restitution requested by the Commonwealth and Rule 586 civil

penalties were imposed.” Id. at ¶ 3. Nevertheless, 39 days later, she was

charged with the present offense. Porter argued the present prosecution was

“barred by the double jeopardy clauses of both the federal and state

constitutions, under the theory of collateral estoppel, and [S]ection 110 of the

Crimes Code[.]” Id. at ¶ 7. Following a hearing on May 12, 2017, the trial

court denied the motion, and concluded it was frivolous.2

       The case proceeded to a jury trial, and, on September 17, 2017, the

jury found Porter guilty of violating Section 481(a). On September 20, 2017,

the trial court sentenced Porter to a term of three years’ probation, and

ordered her to pay $2,770.00 in restitution. This timely appeal follows. 3

       On appeal, Porter contends the trial court erred when it failed to dismiss

the charge in this case based upon her previous prosecution for the same

offense, which resulted in a Rule 586 disposition. Porter insists the Rule 586
____________________________________________


       (4) there is an agreement as to who shall pay the costs.

Pa.R.Crim.P. 586.

2 The trial court’s determination that the motion was frivolous precluded Porter
from filing a pretrial interlocutory appeal. See Pa.R.Crim.P. 587(B).

3  On October 25, 2017, the trial court ordered Porter to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b)
by November 27, 2017. After requesting, and being granted, an extension of
time because the notes of testimony were not yet transcribed, Porter
ultimately complied with the court’s Rule 1925(b) order on July 13, 2018. The
trial court filed an opinion addressing Porter’s claims on November 14, 2018.




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disposition at Docket No. 2015-14956 involved the same criminal episode,

and, therefore, the instant prosecution was barred by 18 Pa.C.S. §§ 109 or

110, or the double jeopardy clause of the Pennsylvania or United States

Constitutions. See Porter’s Brief at 15. “Since the issue presents a question

of law, our standard of review is de novo and our scope of review is plenary.”4

Commonwealth v. Kolovich, 170 A.3d 520, 523 (Pa. Super. 2017), appeal

denied, 182 A.3d 429 (Pa. 2018).

       First, Porter argues the instant prosecution should have been barred by

Section 109, which codifies the doctrine of res judicata for application in

criminal cases.5 See Porter’s Brief at 17. However, Porter failed to argue the


____________________________________________


4 The Commonwealth suggests in its brief that our review should be limited to
the evidence presented during the pretrial hearing, similar to appellate review
of a suppression ruling. See Commonwealth’s Brief at 9, n.5, citing In re
L.J., 79 A.3d 1073 (Pa. 2013). We need not consider this argument, however,
because our review is focused on the criminal complaints and accompanying
affidavits of probable cause. The criminal complaint for Docket No. 2015-
14956 was attached to Porter’s pretrial motion as Defendant’s Exhibit A. See
Motion to Enforce Rule 586 Disposition and To Dismiss on Collateral Estoppel
and Double Jeopardy Grounds, 3/23/2017, at 1 n.1.

5 Section 109 provides, in relevant part, that when a prosecution is for a
violation of the same provision and based upon the same facts as a former
prosecution, it is barred by the former prosecution when, inter alia:

          The former prosecution was terminated, after the
          indictment had been found, by a final order or judgment for
          the defendant, which has not been set aside, reversed, or
          vacated and which necessarily required a determination
          inconsistent with a fact or a legal proposition that must be
          established for conviction of the offense.



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applicability of Section 109 in her pretrial motion to dismiss, during the

hearing on that motion, or in her concise statement of issues complained of

on appeal.6 “Issues not raised in the lower court are waived and cannot be

raised for the first time on appeal.” Pa.R.A.P. 302(a). See also Pa.R.A.P.

1925(b)(4)(vii) (issues not raised in concise statement are waived).

Accordingly, we conclude Porter’s first issue is waived.

       Next, Porter contends the present prosecution should have been barred

by application of Section 110, also known as the compulsory joinder rule.

       Section 110 was enacted to address two specific policy concerns:

       (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. Hude, 458 A.2d 177, 180 (Pa. 1983).                  The statute

provides, in relevant part:

       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
____________________________________________



18 Pa.C.S. § 109(2).

6 See Motion to Enforce Rule 586 Disposition and To Dismiss on Collateral
Estoppel and Double Jeopardy Grounds, 3/23/2017; N.T., 5/12/2017, at 2-
13; Concise Statement of Errors Complained of on Appeal, 7/13/2018.


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      prosecution barred by former prosecution for the same offense)
      and the subsequent prosecution is for:

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

         (ii) any offense based on the same conduct or arising from
         the same criminal episode, if such offense was known to the
         appropriate prosecuting officer at the time of the
         commencement of the first trial and occurred within the
         same judicial district as the former prosecution unless the
         court ordered a separate trial of the charge of such offense;
         or

         (iii) the same conduct, unless:

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

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

      (2) The former prosecution was terminated, after the indictment
      was found, by an acquittal or by a final order or judgment for the
      defendant which has not been set aside, reversed or vacated and
      which acquittal, final order or judgment necessarily required a
      determination inconsistent with a fact which must be established
      for conviction of the second offense.

18 Pa.C.S. § 110(1)-(2).

      Porter insists her case “fits into each of [Section 110(1)’s] three

provisions.”      Porter’s Brief at 22.      However, we find Porter cannot

demonstrate, initially, that “[t]he former prosecution resulted in an acquittal

or in a conviction as defined in section 109[.]” 18 Pa.C.S. § 110(1). Neither

Porter nor the Commonwealth address this preliminary provision, seemingly




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conceding that Porter’s Rule 586 disposition qualifies as an acquittal or

conviction pursuant to Section 109. However, we find that not to be the case.

      By way of background, Sections 109, 110, and 111 of the Crimes Code

apply res judicata, collateral estoppel, and double jeopardy considerations to

bar present prosecutions when the allegations could have, or should have,

been addressed in a former prosecution. Section 109 applies when the

prosecutions are for the “same provision of the statutes and based upon the

same facts[.]” 18 Pa.C.S. § 109. Section 110 applies when the prosecutions

involve different statutory provisions or are based upon different facts. See

18 Pa.C.S. § 110. Lastly, Section 111, not relevant here, is applicable when

the former prosecution was in another jurisdiction. See 18 Pa.C.S. § 111.

      We note that as a preliminary matter when considering the applicability

of Sections 109, 110, or 111, the trial court must categorize the disposition of

the former prosecution. A conviction or acquittal in the former prosecution

leads to further inquiry. Section 109 provides the definitions for an acquittal

and a conviction. A former prosecution ends in an acquittal if “the prosecution

resulted in a finding of not guilty by the trier of fact or in a determination that

there was insufficient evidence to warrant a conviction.” 18 Pa.C.S. § 109(1).

Pursuant to Subsection 109(3), a former prosecution results in a conviction

when “the prosecution resulted in a judgment of conviction which has not been

set aside or vacated, a verdict of guilty which has not be set aside and which

is capable of supporting a judgment, or a plea of guilty accepted by the court.”

18 Pa.C.S. § 109(3).

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       The Rule 586 disposition in the present case does not qualify as either

an acquittal or a conviction as defined above. Rather, Rule 586 permits a trial

court to dismiss a case, which does not involve force or violence, when: (1)

“the public interest will not be adversely affected;” (2) the Commonwealth

“consents to the dismissal;” (3) satisfaction has been, or will be, made to the

person aggrieved by the offense; and (4) “there is an agreement as to who

shall pay costs.” Pa.R.Crim.P. 586. Clearly, a Rule 586 disposition does not

involve a finding of not guilty or insufficient evidence, nor does it qualify as a

judgment of conviction, a guilty verdict, or a guilty plea. Rather, a Rule 586

disposition fits into a third category outlined in Section 110(2):

       The former prosecution was terminated, after the indictment was
       found, by an acquittal or by a final order or judgment for the
       defendant which has not been set aside, reversed or vacated and
       which acquittal, final order or judgment necessarily required a
       determination inconsistent with a fact which must be established
       for conviction of the second offense.

18 Pa.C.S. § 110(2). See also 18 Pa.C.S. § 109(2).7 Here, Porter’s former

prosecution was terminated by a final order, which has not been set aside,

reversed or vacated.       Accordingly, the relevant inquiry is whether Porter’s

present prosecution should have been barred under Section 110(2). However,

____________________________________________


7 The description of this third category in Section 110(2) is virtually identical
to the description in Section 109(2). Furthermore, it merits emphasis that
Porter cited to this third category of dispositions in arguing her present case
should have been barred under Section 109. See Porter’s Brief at 17, citing
18 Pa.C.S. § 109(2).




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in her brief, Porter’s argument focuses solely on how Subsections (1)(i), (ii),

and (iii) apply to her case.8 See Porter’s Brief at 22-31. Therefore, she has

waived any claim that her prosecution is barred under Section 110(2).9

       Nevertheless, even if we were to find Porter did not waive this claim, we

would conclude no relief is warranted.10 “Section 110(2) codifies the ancient

doctrine of collateral estoppel[,]” and precludes the “relitigation between

parties of an issue where that issue has been previously decided by a

competent legal forum.” Commonwealth v. Teagarden, 696 A.2d 169, 171

(Pa. Super. 1997), appeal denied, 702 A.2d 1060 (Pa. 1997). However, we

have cautioned:

       [W]here one or several other rational explanations for the jury’s
       actions exist, admission of evidence in a subsequent prosecution
       will not be excluded on collateral estoppel grounds. Only if it is
       “clear that the jury has spoken with respect to a particular fact,
       [will] the Commonwealth no longer [be] permitted to request that
       another jury consider the same.”

Id. (internal citations omitted).

       Pursuant to Section 110(2), a prosecution, based upon different facts,

is barred by a former prosecution if the former prosecution “necessarily

required a determination inconsistent with a fact which must be established
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8As will be discussed infra, Porter’s Section 110(1)(ii) argument is relevant to
her constitutional due process claim.

9 We note “[w]e are not limited by the trial court’s rationale and may affirm
its decision on any basis.” Commonwealth v. Cramer, 195 A.3d 594, 607
(Pa. Super. 2018).
10As noted supra, Porter addressed this same exception in her Section 109(2)
argument. See Porter’s Brief at 17-20.

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for conviction of the second offense.” 18 Pa.C.S. § 110(2). The facts which

had to be established for the present prosecution were set forth in the affidavit

of probable cause – namely, Porter failed to report to DHS her own

employment by the United States Postal Service in order to obtain food

stamp benefits that she was not entitled to during the period from February

1, 2015, through July 31, 2015. See Private Criminal Complaint, 5/24/2016,

at Affidavit of Probable Cause. The prior prosecution, however, involved an

overpayment of food stamp benefits for the period from August 2014 to

January 2015, as a result of Porter’s failure to report her daughter’s

employment and income. See Docket No. 2015-14956, Private Criminal

Complaint, 6/26/2015, at Affidavit of Probable Cause. Therefore, the former

prosecution did not require a determination inconsistent with a fact which had

to be established in the present case.             To the extent Porter asserts the

Commonwealth agreed “all the money owed to it was represented in [the]

Rule 586 disposition,”11 we find the damages owed do not constitute a relevant

fact for purposes of a Section 110(2) analysis.12 As noted above, the relevant

facts determined in the Rule 586 disposition were that Porter failed to alert

____________________________________________


11   Porter’s Brief at 19. See also id. at 34.

12 We note this is not a case in which the Commonwealth filed separate
charges in an attempt to affect the grading of the offense. Pursuant to 62
P.S. § 481(b), the crime is graded as a felony of the first degree when the
amount of damages exceeds $1,000. See 62 P.S. § 481(b). Here, the
damages alleged in both prosecutions exceeded that amount.



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DHS of her daughter’s employment for a six-month period of time. Those

facts have no bearing on the present prosecution where the Commonwealth

proved Porter failed to alert DHS of a change in her own employment and

income during a separate six-month period.       Accordingly, even if Porter’s

Section 110(2) claim were not waived, she would be entitled to no relief.

      Lastly, Porter contends “[t]he Commonwealth violated [her] right under

the Double Jeopardy Clauses of the Federal and Pennsylvania Constitutions to

be free from multiple prosecution for one criminal act.” Porter’s Brief at 32.

“Consideration of the constitutional protections contained in the double

jeopardy clauses is necessary where[, as here,] the statutory provisions

relating to subsequent prosecutions are not applicable.” Commonwealth v.

Keenum, 530 A.2d 90, 93 (Pa. Super. 1987).

      We employ a unitary analysis of the state and federal double
      jeopardy clauses since the protections afforded by each
      constitution are identical.

      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. (internal citations omitted).     When considering whether a second

prosecution is for the same offense as a former prosecution, “a ‘single criminal




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episode’ analysis” is employed.13 Commonwealth v. Miskovitch, 64 A.3d

672, 686 (Pa. Super. 2013) (quotation omitted), appeal denied, 70 A.3d 1090

(Pa. 2013).

       In Hude, supra, the Pennsylvania Supreme Court held “where a

number of charges are logically and/or temporally related and share common

issues of law and fact, a single criminal episode exists[.]” Hude, supra, 458

A.2d at 494.      In Commonwealth v. Reid, 77 A.3d 579 (Pa. 2013), the

Supreme Court further explained that offenses are “logically related” to one

another if there is “a substantial duplication of factual, and/or legal issues

presented by the offenses.”          Id. at 582 (quotation omitted).   The Court

emphasized, however, the duplication must be substantial and not merely de

minimis. See id. at 582-583. Furthermore, the Reid Court explained the

determination of whether the logical relationship prong is met “depends

ultimately on how and what the Commonwealth must prove in the subsequent

prosecution.” Id. at 585.

       Here, Porter insists the former and present prosecution are “temporally

and logically related – the two time periods abut one another and the case at

bar clearly involves a continuation of Ms. Porter’s actions in her first case.”

____________________________________________


13 The “single criminal episode” analysis for double jeopardy claims appears
to be the same as the analysis for a Section 110 claim. See Commonwealth
v. Hockenbury, 701 A.2d 1334, 1338-1339 (Pa. 1997) (referring to prior
Section 110 discussion when concluding separate prosecutions did not violate
constitutional double jeopardy protection). See also Commonwealth v.
Schmidt, 919 A.2d 241 (Pa. Super. 2007) (same), appeal denied, 936 A.2d
40 (Pa. 2007).

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Porter’s Brief at 27.      We disagree.        The fact the time periods “abut one

another” has no bearing on whether the crimes involve the same criminal

episode. Indeed, each false statement covered a different, and distinct, time

period. Had they overlapped, Porter’s argument may have more merit.

       Nonetheless,     the    most    significant   difference   between   the   two

prosecutions is that they involved separate false statements that had to be

proven by the introduction of distinct evidence. In the Rule 586 disposition,

the Commonwealth was required to prove Porter failed to disclose to DHS that

her daughter was employed at a restaurant during the period from August 1,

2014, through January 31, 2015. That false statement/omission was in her

initial application for benefits filed in August of 2014.14 As the Commonwealth

pointed out at the pretrial hearing, the present prosecution involved a different

false statement/omission Porter made “on a separate form … about her

employment as of April 2, 2015.” N.T., 5/12/2017, at 6. The second form

was a semiannual reporting form that required Porter to confirm, update,

and/or correct her household income.            The present prosecution was based

upon Porter’s failure to report that she, herself, was employed by the United

States Post Office from February 1, 2015, though July 31, 2015. In summary,

the present prosecution involved a separate false statement made on a

separate form concerning the employment of a different beneficiary by a
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14 The parties referred to the relevant forms during the pretrial hearing.
Although they were not introduced into evidence at that hearing, they were
introduced at trial, and are included as a supplement to the certified record.
See N.T., 5/12/2017, at 6-8.

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different employer over a different time period. Consequently, we agree with

the trial court’s finding that the two prosecutions did not constitute a single

criminal episode, and, therefore, Porter’s second prosecution did not violate

her double jeopardy rights. Accordingly, no relief is warranted.15

       Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/18/2019




____________________________________________


15We note that in her double jeopardy claim, Porter also raises a collateral
estoppel claim. See Porter’s Brief at 33-35. However, we have already
addressed and rejected that claim in our discussion of Section 110(2). See
supra at 9-11.


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