J-S28032-18

                               2018 PA Super 265

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :         PENNSYLVANIA
                   Appellant              :
                                          :
                                          :
              v.                          :
                                          :
                                          :
 SABINE I. GRAHAM                         :        No. 1438 MDA 2017

               Appeal from the Order Entered August 15, 2017
              in the Court of Common Pleas of Centre County,
            Criminal Division at No(s): CP-14-CR-0000758-2017


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

DISSENTING OPINION BY MUSMANNO, J.:            FILED SEPTEMBER 24, 2018

     I respectfully disagree with the Majority’s conclusion that the trial court

erred by failing to assess the convenience of the parties, relative to each

locality, before transferring the case from Centre County to Clinton County.

     “Venue in a criminal action properly belongs in the place where the crime

occurred.” Commonwealth v. Bethea, 828 A.2d 1066, 1075 (Pa. 2003).

Pursuant to 18 Pa.C.S.A. § 102(a)(1), a person may be convicted in this

Commonwealth if “the conduct which is an element of the offense or the result

which is such an element occurs within this Commonwealth.” 18 Pa.C.S.A.

§ 102(a)(1); see also Commonwealth v. Field, 827 A.2d 1231, 1233 (Pa.

Super. 2003) (stating that our courts have looked to the provisions of section

102 in determining the proper county in which a criminal trial should take

place). “For a county to exercise jurisdiction over a criminal case, an overt

act involved in the crime must have occurred within that county.”
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Commonwealth v. Passmore, 857 A.2d 697, 709 (Pa. Super. 2004). “In

order to base jurisdiction on an overt act, the act must have been essential to

the crime[.]”     Commonwealth v. Donohue, 630 A.2d 1238, 1243 (Pa.

Super. 1993) (citation omitted); see also Field, 827 A.2d at 1234 (stating

that, while not constitutionally prohibited, “trial outside the county [where the

offense occurred] is a mechanism which must be used sparingly, to prohibit

dragging the accused all over the [C]ommonwealth….” (citation omitted)).

       In   considering     Graham’s      Motion   to    Transfer,   the   trial   court

acknowledged that the death of an individual is an element of the crime of

drug delivery resulting in death, and that the death occurred in Centre County.

See Trial Court Opinion, 8/15/17, at 3.                 The trial court rejected the

Commonwealth’s argument, based on 18 Pa.C.S.A. § 102(c) (concerning

homicide offenses), that venue is proper in Centre County because Pena’s

body was found in Centre County.1 The trial court granted Graham’s Motion

to Transfer, reasoning that the only overt act, i.e., Graham’s delivery of the

drugs to Pena, occurred in Clinton County. See id. at 3-4. Here, Graham

traveled from Centre County to Clinton County for the purpose of obtaining
____________________________________________


1 The Commonwealth relied on—and the Majority cites to—section 102(c),
which permits the presumption that if the body of a homicide victim is found
within this Commonwealth, it is presumed that the death or bodily impact
resulting in death also occurred within this Commonwealth. However, because
the offense of drug delivery resulting in death is a first-degree felony, rather
than a homicide offense, see 18 Pa.C.S.A. § 2506, section 102(c) is irrelevant
to the venue analysis in the instant case. See generally Field, 827 A.2d at
1234 (noting that the specific provision in section 102(c), which permits trial
in the county where the victim is found, overrides the general rule that trial is
proper only in the county where the criminal conduct occurred).

                                           -2-
J-S28032-18



heroin, and delivered the drugs to Pena while they were in Clinton County.

After the delivery had been completed, Graham no longer exercised control

over the drugs, and did not control where or when Pena ingested the drugs,

the quantity of the drugs she consumed, or whether she died as a result.

Thus, the facts support the trial court’s determination.

      On review, the Majority concludes that the venue requirements set forth

in section 102 exist in both Clinton and Centre County, and remands the case

for the trial court to assess the convenience of the parties with respect to

proceeding in either locality. However, as the Majority acknowledges, venue

may be proper in either county, and therefore, I cannot agree that the trial

court’s decision to transfer the case to Clinton County was clearly erroneous.

See Commonwealth v. Gross, 101 A.3d 28, 33-34 (Pa. 2014) (stating that

our review of venue challenges “should turn on whether the trial court’s factual

findings are supported by the record and its conclusions of law are free of legal

error.”). While acknowledging that a venue challenge generally encompasses

the question of which locality is most convenient to the disposition of the case,

see Bethea, 828 A.2d at 1074-75, I cannot agree with the Commonwealth’s

assertion that “transferring this case … would significantly disrupt the

execution of justice.” Commonwealth’s Brief at 16. Indeed, Centre County

and Clinton County are adjacent to one another, and their respective

courthouses are located less than 30 miles apart. See Commonwealth v.

Miskovitch, 64 A.2d 672, 689 (Pa. Super. 2013) (concluding that appellant

was not prejudiced by transfer of venue from Allegheny to Westmoreland

                                      -3-
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County, because they are adjoining counties, and “the burdens associated

with traveling to the other venue are minimal”). Based upon the foregoing, I

would affirm the Order of the trial court.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/24/2018




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