J-S67022-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    RICHARD ALLEN MESSNER                      :
                                               :
                       Appellant               :   No. 1238 MDA 2019

         Appeal from the Judgment of Sentence Entered June 25, 2019
       In the Court of Common Pleas of Berks County Criminal Division at
                        No(s): CP-06-CR-0004631-2017


BEFORE:      OLSON, J., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY DUBOW, J.:                              FILED JANUARY 09, 2020

        Appellant, Richard Allen Messner, appeals from the Judgment of

Sentence of seventy-two hours to six months of incarceration imposed on June

25, 2019, following his conviction for Driving Under the Influence of Alcohol

(DUI) and one count of Careless Driving.1 We affirm.

        In August 2017, Pennsylvania State Police observed signs that Appellant

was intoxicated while driving in Berks County. See Trial Ct. Op., 8/20/19, at

2. The police arrested Appellant and charged him with the above listed crimes.

        Prior to his trial, Appellant filed a Motion to Dismiss the charges against

him. According to Appellant, prior to his arrest in Berks County, Appellant had

caused a motor vehicle accident in Chester County.          Appellant’s Motion to

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*   Former Justice specially assigned to the Superior Court.

1   75 Pa.C.S. §§ 3802(a)(1),(c), 3714(a), respectively.
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Dismiss, 10/30/18, at 1-2. This conduct resulted in criminal charges against

him.    See id.    In July 2018, according to Appellant, he pleaded guilty in

Chester County to one count of Recklessly Endangering Another Person

(REAP).2 Id. at 2.

        According to Appellant, the incidents in Chester and Berks Counties were

related.   Id.    Therefore, according to Appellant, the former prosecution of

related conduct in Chester County barred the subsequent prosecution of the

Berks County charges. Id. at 3 (citing 18 Pa.C.S. § 110(1)(iii)(A)).

        The trial court denied Appellant’s Motion to Dismiss. Trial Court Order,

1/28/19.    In June 2019, following a bench trial, the court found Appellant

guilty as charged and sentenced him accordingly. Appellant timely appealed

and filed a court-ordered Pa.R.A.P. 1925(b) Statement; the trial court issued

a responsive Opinion.

        In his sole issue on appeal, Appellant contends the trial court erred in

denying his Motion to Dismiss, which he premised upon the compulsory

joinder statute. See Appellant’s Br. at 7. No relief is due.

        The issue before this Court is one of law. Thus, “[o]ur scope of review

is plenary, and our standard of review is de novo.”        Commonwealth v.

Jefferson, --- A.3d ---, 2019 PA Super 302, at *3 (filed Oct. 9, 2019) (quoting

Commonwealth v Perfetto, 207 A.3d 812, 821 (Pa. 2019).




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2   18 Pa.C.S. § 2705.

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     The purpose of the compulsory joinder statute is twofold: “(1) to protect

a defendant from the governmental harassment of being subjected to

successive trials for offenses stemming from the same criminal episode; and

(2) to ensure finality without unduly burdening the judicial process by

repetitious litigation.” Commonwealth v. Fithian, 961 A.2d 66, 75-76 (Pa.

2008) (internal quotation marks omitted; citations omitted).

     That 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 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.

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18 Pa.C.S. § 110.

       In Commonwealth v. Geyer, 687 A.2d 815 (Pa. 1996), our Supreme

Court clarified that “[e]ach subsection, 110(1)(i), 110(1)(ii) and 100(1)(iii),

provides an alternative basis for the bar of a subsequent prosecution, as

indicated by the disjunctive ‘or’ in the text of the statute.” Id. at 817 n.4.

Thus, the compulsory joinder statute provides several, separate grounds for

relief. Id.

       It is well settled that an appellant may not raise “a new and different

theory of relief for the first time on appeal.” Commonwealth v. Wanner,

158 A.3d 714, 717 (Pa. Super. 2017) (quoting Commonwealth v. York, 465

A.2d 1028, 1032 (Pa. 1983); Pa.R.A.P. 302(a).        “[I]ssues, even those of

constitutional dimension, are waived if not raised in the trial court.”

Commonwealth v. Cline, 177 A.3d 922, 927 (Pa. Super. 2017) (quoting

Commonwealth v. Santiago, 980 A.2d 659, 666 (Pa. Super. 2009).

       In his Motion to Dismiss, Appellant sought relief pursuant to Section

110(1)(iii)(A). Appellant’s Motion to Dismiss at 3. In his appeal, however,

Appellant seeks relief on separate grounds, citing instead Section 110(1)(ii).

Appellant’s Br. at 13. Because Appellant did not preserve this claim in the

first instance before the trial court, it is waived. Wanner; Cline, supra.3

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3 We observe further that Appellant has failed to ensure that the certified
record is complete. There are neither transcripts of the proceedings below
nor any documentary evidence substantiating Appellant’s claims regarding his
Chester County conviction included in the record certified to this Court. Thus,



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       Judgment of Sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 01/09/2020




____________________________________________


even if we were to reach the merits of Appellant’s claim, our review would be
severely hampered. This, too, is grounds for waiver or the dismissal of
Appellant’s appeal. See Pa.R.A.P. 1911(d). Nevertheless, absent all waiver,
we note that Appellant’s claim is devoid of merit. Essentially, Appellant
suggests that his conduct in Chester and Berks Counties comprised a single,
criminal event. See Appellant’s Br. at 16. Thus, according to Appellant, his
conviction in Chester County precluded any subsequent prosecution in Berks
County. See id. We disagree. Apparently, Appellant fled the scene of the
accident he caused in Chester County. See Trial Ct. Op. at 2 (suggesting
there was no evidence that Appellant was intoxicated at the time). According
to Appellant, based on this conduct, he determined to plead guilty to REAP.
Motion to Dismiss at 2. Thereafter, police in Berks County observed signs that
Appellant was operating his vehicle while intoxicated, resulting in DUI-related
charges in that county. These are separate incidents, (1) occurring in different
judicial districts, (2) involving distinct criminal conduct, and (3) requiring
different proofs. Compare 18 Pa.C.S. § 2705, with 75 Pa.C.S. § 3802(c).
Thus, Appellant is due no relief pursuant to any subsection of the compulsory
joinder statute.

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