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.

OPINION BY OLSON, J.:                              FILED SEPTEMBER 24, 2018

       The Commonwealth of Pennsylvania (Commonwealth) appeals from the

order entered on August 15, 2017 which granted Sabine I. Graham’s

(Graham) motion to transfer venue and transferred this case from Centre

County to Clinton County.1           After careful consideration, we vacate and

remand.

       The trial court summarized the relevant facts as follows:

       The Commonwealth alleges that on February 13, 2016, [Graham],
       along with Maria Gilligan [(Gilligan)] and Corinne Pena [(Pena)],
       traveled from State Collage, in Centre County, to Lock Haven, in
       Clinton County. The purpose of this trip was for [Graham] to
       obtain heroin to sell to Gilligan and Pena. [Graham] met with a
       man named “Jay” in the Lock Haven area and obtained twenty-two
       (22) bags of what [Graham] believed to be heroin. [Graham] then
       gave fourteen (14) of those bags to Pena before [Graham],
       Gilligan, and Pena drove back to State College. When Pena
       returned to State College, her friend[,] Robert Moir [(Moir),]
____________________________________________


1 An appeal from an interlocutory order transferring venue in a criminal case
is reviewable as of right. See Pa.R.A.P. 311(3).
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        picked her up from the parking lot near Walmart on North Atherton
        Street and drove her to his home. Later that evening, Pena
        ingested eight (8) bags of what she believed was heroin. The bags
        actually contained fentanyl[,] and Pena subsequently died of a
        fentanyl overdose [in Moir’s home].

Trial Court Opinion, 8/15/17, at 1-2.

        Graham was charged in Centre County with one count of drug delivery

resulting in death, possession with intent to deliver a controlled substance,

and delivery of a controlled substance.2 See 18 Pa.C.S.A. § 2506(a); 35 P.S.

§ 780-113(a)(30).       Graham filed a motion to transfer on June 28, 2017,3

asserting that venue in Centre County was improper, and that the case should

be transferred to Clinton County. Following a hearing and an opportunity for

both parties to submit briefs on the issue, the trial court granted Graham’s

motion to transfer and directed that the case be transferred to Clinton County.

        The Commonwealth filed a timely notice of appeal. On September 14,

2017, the trial court ordered the Commonwealth to file a concise statement of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). After receiving

an extension of time to file its concise statement, the Commonwealth

complied.

        The Commonwealth’s brief raises the following question for our review:


____________________________________________


2 Gilligan was also charged as a result of the incident, and on June 1, 2017,
the Commonwealth issued notice of its intent to consolidate the cases
pursuant to Pa.R.Crim.P. 582. Gilligan, however, is not a party to the instant
appeal.

3   The motion was docketed on June 29, 2017.

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       Whether Centre County has properly exercised venue over a
       prosecution for a criminal episode that began in Centre County
       with an agreement to obtain heroin and ended in Centre County
       with a deceased overdose victim whose body was found in Centre
       County?

Commonwealth’s Brief at 4.

       “Appellate review of venue challenges, similar to that applicable to other

pre-trial motions, 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.”

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

       The Commonwealth argues that the trial court erred in granting

Graham’s motion to transfer. Commonwealth’s Brief at 10. Characterizing

this case as a homicide, the Commonwealth argues that “jurisdiction is

conferred upon Centre County by statute” because Pena’s body was recovered

in Centre County. Id. (quotation and ellipses omitted); see also 18 Pa.C.S.A.

§ 102(c) (stating that [w]hen the offense is homicide …, either the death of

the victim … or the bodily impact causing death constitutes a ‘result’ …, and if

the body of a homicide victim … is found within this Commonwealth, it is

presumed      that   such    result   occurred   within   this   Commonwealth[]”).4

Additionally, the Commonwealth argues that Centre County is the proper


____________________________________________


4 The Commonwealth in its brief cites to Commonwealth v. Ludwig, 874
A.2d 623 (Pa. 2005) and asserts that 18 Pa.C.S.A. § 2506 classifies drug
delivery resulting in death a murder of the third degree. Although the version
of § 2506 challenged in Ludwig defined the offense as third-degree murder,
the current version of § 2506 defines drug delivery resulting in death as a
felony of the first-degree. See 18 Pa.C.S.A. § 2506.

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venue because it is the county where (1) law enforcement started an

investigation; (2) the autopsy was performed; (3) witnesses reside; and, (4)

physical evidence was collected.        Commonwealth’s Brief at 15.           The

Commonwealth also points out that both Graham and co-defendant Gilligan

were residents of Centre County. Id.

      Our Supreme Court has explained the concept of venue under

Pennsylvania law and contrasted that concept with the closely-related subject

of jurisdiction.

      Jurisdiction relates to the court's power to hear and decide the
      controversy presented. Commonwealth v. Bethea, 828 A.2d
      1066, 1074 (Pa. 2003) (citation omitted). “[A]ll courts of common
      pleas have statewide subject matter jurisdiction in cases arising
      under the Crimes Code.” Id. … Venue, on the other hand, refers
      to the convenience and locality of trial, or “the right of a party to
      have the controversy brought and heard in a particular judicial
      district.” Bethea, at 1074 (citation omitted). Venue assumes
      jurisdiction exists and it “can only be proper where jurisdiction
      already exists.” Id. at 1074–1075 (citation omitted). Even
      though all common pleas courts may have jurisdiction to resolve
      a case, such should only be exercised in the judicial district in
      which venue lies. See id. at 1075 (“Rules of venue recognize the
      propriety of imposing geographic limitations on the exercise of
      jurisdiction.”). “Venue in a criminal action properly belongs in the
      place where the crime occurred.” Id. (citation omitted).

      Our criminal procedural rules provide a system in which
      defendants can seek transfer of proceedings to another judicial
      district due to prejudice or pre-trial publicity. Such decisions are
      generally left to the trial court's discretion. See Commonwealth
      v. Chambers, 685 A.2d 96, 103 (Pa. 1996) (citation omitted).
      Venue challenges concerning the locality of a crime, on the other
      hand, stem from the Sixth Amendment to the United States
      Constitution and Article I, § 9 of the Pennsylvania Constitution,
      both of which require that a criminal defendant stand trial in the
      county in which the crime was committed, protecting the accused
      from unfair prosecutorial forum shopping. Thus, proof of venue,

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      or the locus of the crime, is inherently required in all criminal
      cases.

      The burden of proof in relation to venue challenges has not been
      definitively established in our decisional law or our criminal
      procedural rules. Because the Commonwealth selects the county
      of trial, we now hold it shall bear the burden of proving venue is
      proper—that is, evidence an offense occurred in the judicial
      district with which the defendant may be criminally associated,
      either directly, jointly, or vicariously. Although our sister states
      are not in agreement as to the requisite degree of proof, [the
      Pennsylvania Supreme Court finds that] the Commonwealth
      should prove venue by a preponderance of the evidence once the
      defendant properly raises the issue. Venue merely concerns the
      judicial district in which the prosecution is to be conducted; it is
      not an essential element of the crime, nor does it relate to guilt or
      innocence. Because venue is not part of a crime, it need not be
      proven beyond a reasonable doubt as essential elements must be.
      Accordingly,      applying    the    preponderance-of-the-evidence
      standard to venue challenges allows trial courts to speedily resolve
      this threshold issue without infringing on the accused's
      constitutional rights. Like essential elements of a crime, venue
      need not be proven by direct evidence but may be inferred by
      circumstantial evidence. See, e.g., Commonwealth v. Cooper,
      941 A.2d 655, 662 (Pa. 2007) (citation omitted)[.]

Commonwealth v. Gross, 101 A.3d 28, 32-34 (Pa. 2014) (parallel citations

omitted).

      Although there is no exclusive provision which sets forth the statutory

grounds for establishing venue in a particular county within Pennsylvania, “our

courts frequently [look to 18 Pa.C.S.A. § 102] in determining the proper

county in which a criminal trial should take place.” Commonwealth v. Field,

827 A.2d 1231, 1233 (Pa. Super. 2003) (citing cases), appeal denied, 847

A.2d 1279 (Pa. 2004). Looking to this provision, § 102 provides, in relevant

part, that an individual may be convicted in a county if, among other things,


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his “conduct which is an element of the offense or the result of which is such

an element occurs within the [county].” 18 Pa.C.S.A. § 102(a)(1) (emphasis

added).   Under § 102, then, venue is proper in a county where either an

element of an offense or a required result occurs. An “element of an offense”

consists of conduct which is “included in the description of the forbidden

conduct in the definition of the offense.” See 18 Pa.C.S.A. § 103. Section

102 further provides that in the case of a homicide, “either the death of the

victim ... or the bodily impact causing death constitutes a result within the

meaning of paragraph (a)(1) of this section[.]” 18 Pa.C.S.A. 102(c) (internal

citations omitted).   In the present case, the Commonwealth charged the

defendant with drug delivery resulting in death, which involves two principal

elements:    (1) an intentional conveyance of any controlled substance or

counterfeit controlled substance, and (2) death resulting from the use of the

conveyed substance. See Commonwealth v. Kakhankham, 132 A.3d 986,

991-992 (Pa. Super. 2015), appeal denied, 138 A.3d 4 (Pa. 2016).


      The trial court concluded that while the victim died in Centre County,

and while the death of an individual is an element of the instant offense, it

would be inappropriate for Centre County to exercise venue since the only

overt act was the defendant’s conveyance of drugs to the victim, which

occurred in Clinton County.     See Trial Court Opinion, 8/15/17, at 3.        In

resolving the venue question presented in this case, the trial court relied solely




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on the defendant’s overt act of conveying a controlled substance to the victim

without regard to the resulting death that occurred in Centre County.

      The trial court misconstrued the plain language of § 102.     The court

seems to conclude that venue is proper only where an overt act occurred,

regardless of the location where an elemental result transpires. Under the

plain terms of § 102, however, venue is proper where either an element of

the offense occurred or a required result took place. Here, the defendant

conveyed a controlled substance to the victim in Clinton County and,

thereafter, the victim ingested the drugs and died in Centre County. Under

§ 102, the statutory requirements for venue exist in both Clinton and Centre

Counties. Since venue would be proper in either county under § 102, it was

incumbent upon the trial court to assess the convenience of the parties in

going forward with the proceedings in either Clinton County or Centre County.

See Bethea, 828 A.2d at 1074-1075 (“venue pertains to the locality most

convenient to the proper disposition of a matter”). Because it was error for

the trial court to exclude Centre County as a viable venue option, we vacate

the court’s transfer order and remand this matter for further proceedings in

which the convenience of the parties can be assessed.




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     Order vacated. Case remanded. Jurisdiction relinquished.

     Judge Kunselman joins.

     Judge Musmanno files a Dissenting Opinion.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/24/2018




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