                                 [J-125-2012]
                   IN THE SUPREME COURT OF PENNSYLVANIA
                               MIDDLE DISTRICT

 CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN, JJ.


COMMONWEALTH OF PENNSYLVANIA, :               No. 28 MAP 2012
                              :
               Appellant      :               Appeal from the order of the Superior Court
                              :               at No. 2006 EDA 2010 dated 07/13/2011
                              :               which affirmed the order of the Monroe
           v.                 :               County Court of Common Pleas, Criminal
                              :               Division, at No. CP-45-CR-0000045-2010
                              :               dated 07/15/2010.
EMILY JOY GROSS,              :
                              :               ARGUED: October 17, 2012
               Appellee       :


                                        OPINION

MR. JUSTICE EAKIN                                DECIDED: September 24, 2014

       The Superior Court affirmed the trial court’s dismissal of this criminal case for

improper venue. Upon review, we conclude this was error, reverse the Superior Court’s

order, and remand to the trial court for further proceedings.

       Emily Gross and Daniel Autenrieth began a romantic relationship in early 2009.

On May 4, 2009, Autenrieth’s estranged wife filed a protection from abuse (PFA) petition

against him in Northampton County where she lived. The court issued a temporary PFA

order the same day prohibiting Autenrieth from having contact with his wife or children

and evicting him from the marital residence.         The same day, deputies from the

Northampton Sheriff’s office went to Autenrieth’s residence (also in Northampton County)

to serve the temporary PFA order and to transfer custody of the children to Autenrieth’s

wife. Gross was present, babysitting the children, and a deputy served the order on her
as the adult in charge of the residence. The deputy incorrectly told Gross the temporary

PFA order prohibited Autenrieth from possessing firearms. Another deputy explained

the PFA order’s terms to Autenrieth over the phone. On May 18, 2009, a final PFA order

was issued, which prohibited Autenrieth from possessing firearms.

       Gross routinely stayed overnight at Autenrieth’s residence, but she lived and

worked in New Jersey. On May 21, 2009, she attempted to acquire a New Jersey

firearm permit but was informed the process would take several months. On May 29,

2009, Gross obtained a Pennsylvania driver’s license using Autenrieth’s address; within

hours, Gross and Autenrieth went to a Berks County store, where Gross used her new

license to buy a 9 millimeter handgun. Later, at his residence, Autenrieth showed Gross

how to use the gun, offered to clean it for her, then put the gun in its box and stored it and

its ammunition above his washer and dryer. This was the last time Gross saw the gun,

though a few days later she learned Autenrieth had taken the gun, fired it with a friend,

and replaced the ammunition used; Gross made no objection.

       On June 7, 2009, Autenrieth took the gun, went to his estranged wife’s house, and

kidnapped his nine-year-old son at gunpoint. Police were called, Autenrieth fled, and the

chase went on for 40 miles, ending with a shoot-out in Monroe County in which Autenrieth

killed one Pennsylvania State Trooper and wounded another before being shot to death.

       A criminal complaint was filed in Monroe County charging Gross with criminal

conspiracy, 18 Pa.C.S. § 903(a); firearms not to be carried without a license, id., §

6106(a)(1) (co-conspirator); possession of firearm prohibited, id., § 6105(a)(1)

(accomplice); and lending or giving of firearms prohibited, id., § 6115(a) (accomplice). A

preliminary hearing was held January 15, 2010, before a Monroe County magisterial




                                      [J-125-2012] - 2
district judge. Among other motions, Gross moved for dismissal of the case for “lack of

jurisdiction[.]”   N.T. Preliminary Hearing, 1/15/10, at 10.      Specifically, Gross argued

“there[ was] no jurisdiction in [the magisterial] district or, in fact, in Monroe County to hear

these charges.” Id. The judge denied the motion, id., at 13, and bound the charges

over to the Monroe County Court of Common Pleas, id., at 63-64.

        On March 3, 2010, Gross filed an omnibus pre-trial motion, which included a

“Motion to Dismiss or, in the alternative, Transfer for Improper Venue.”1 A hearing on

this motion was held May 24, 2010. The Commonwealth did not introduce evidence

other than the preliminary hearing transcript and a license to carry firearm certification

regarding Autenrieth.      Both parties filed briefs to address the venue issue.          After

considering the evidence and the parties’ arguments, the trial court found Gross’s “Motion

to Dismiss for Improper Venue” dispositive and dismissed the case July 15, 2010, for

improper venue. The trial court addressed this motion only; it did not consider Gross’s

alternative motion to transfer for improper venue, nor did it address the remaining motions

contained in her omnibus pre-trial motion.

        Venue was held improper based on a lack of factual connection to Monroe

County.2 Specifically, both the trial court and the Superior Court concluded the evidence



1 The omnibus motion consisted of a Motion for Bill of Particulars; Motion to Compel
Pretrial Discovery and Inspection; Motion to Dismiss or, in the alternative, Transfer for
Improper Venue; Motion for a Change of Venue or Venire to Avoid Prejudicial Pretrial
Publicity; Motion to Quash Criminal Complaint or Return of Transcript, and/or Petition for
Writ of Habeas Corpus; and Motion for Recusal/Appointment of Out-of-County Judge.
Gross’s Omnibus Pretrial Motion, 3/3/10, at 4-18.

2 In its Rule 1925(a) opinion, the trial court reiterated dismissal was solely because
Monroe County was not a county of proper venue, and not based on any allegation of
(continuedJ)

                                       [J-125-2012] - 3
showed the alleged conspiracy was not reached in Monroe County, Gross committed no

acts in furtherance of the conspiracy in Monroe County, and the conspiracy ended in

Northampton County. The Commonwealth argues the lower courts erred in finding

improper venue, noting all charges filed against Gross were based on conspiracy and

accomplice liability and her co-conspirator, Autenrieth, committed an overt act in Monroe

County. Alternatively, the Commonwealth contends that even if venue was improper,

the trial court should have transferred the proceedings instead of dismissing them.

       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. Thus, there is no question the Monroe

County Court of Common Pleas had jurisdiction to hear this case. See 42 Pa.C.S. §

931(a). 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 1074-75 (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).


(Jcontinued)
pre-trial publicity or prejudice that would inhibit Gross from receiving a fair and impartial
trial there. See Trial Court Opinion, 7/28/10, at 2-3 (citations omitted).



                                      [J-125-2012] - 4
       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, 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,3 we

find the Commonwealth should prove venue by a preponderance of the evidence once

the defendant properly raises the issue.4 Venue merely concerns the judicial district in



3 Compare Bradley v. State, 533 S.E.2d 727, 730 (Ga. 2000) (prosecution’s burden to
prove venue beyond reasonable doubt (citation omitted)), with Morris v. State, 409
N.E.2d 608, 610 (Ind. 1980) (proper venue must only be proven by preponderance of
evidence (citation omitted)).

4 Accord Evans v. State, 571 N.E.2d 1231, 1233 (Ind. 1991) (requiring state prove venue
by preponderance of evidence and noting circumstantial evidence may be sufficient
(citation omitted)); State v. Allen, 293 N.W.2d 16, 20 (Iowa 1980) (explaining venue is not
essential element of offense, not jurisdictional, and subject to waiver; thus, it may be
(continuedJ)

                                      [J-125-2012] - 5
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). 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. See, e.g., Commonwealth v. Jones, 988 A.2d

649, 654 (Pa. 2010).

      At the hearing on the omnibus motion filed by Gross, the Commonwealth

submitted the preliminary hearing transcript, supporting its belief that venue in Monroe

County was proper. N.T. Pretrial Hearing, 5/24/10, at 3-4, 14. Gross only offered legal

argument in response; thus, the Commonwealth’s evidence was uncontradicted and

constituted the entire factual record relative to Gross’s venue challenge. The trial court

held Gross could not be prosecuted in Monroe County because the conspiracy between

Gross and Autenrieth was reached and completed in Northampton County and

(Jcontinued)
adequately established by preponderance of evidence); State v. Valentine, 506 S.W.2d
406, 410 (Mo. 1974) (reasoning that “venue is not an integral part of a criminal offense
and need not be proven beyond a reasonable doubt or by direct evidence, but it may be
inferred from all the evidence”). See generally Annotation, Necessity of Proving Venue
or Territorial Jurisdiction of Criminal Offense Beyond Reasonable Doubt, 67 A.L.R.3d 988
(1975 & Supp. 2013) (collecting cases).



                                    [J-125-2012] - 6
Autenrieth’s possession of the firearm in Monroe County did not constitute an overt act in

furtherance of the criminal agreement. In this, the court misperceived the nature of the

charges brought.

       The material elements of conspiracy are: “(1) an intent to commit or aid in an

unlawful act, (2) an agreement with a co-conspirator and (3) an overt act in furtherance of

the conspiracy.” Commonwealth v. Spotz, 756 A.2d 1139, 1162 (Pa. 2000) (citation

omitted). An “overt act” means an act done in furtherance of the object of the conspiracy.

See 18 Pa.C.S. § 903(e); Commonwealth v. Weimer, 977 A.2d 1103, 1106 (Pa. 2009).

Additionally, in connection with questions of venue, this Court noted “a prosecution for

criminal conspiracy may be brought in any county where the unlawful combination was

formed, or in any county where an overt act was committed by any of the conspirators in

furtherance of the unlawful combination.” Commonwealth v. Fithian, 961 A.2d 66, 78

(Pa. 2008) (citing Commonwealth v. Thomas, 189 A.2d 255, 258 (Pa. 1963)).

       The record is sufficient to show a criminal conspiracy between Autenrieth and

Gross, under which Gross would purchase a firearm for the purpose of providing

Autenrieth with access to a gun he was otherwise prohibited from possessing. Because

of this criminal agreement, Autenrieth was able to use the firearm on two occasions,

including the day he took the gun and used it in Monroe County.              The trial court

determined the conspiracy agreement ended May 29, 2009, at the time Gross left the

firearm with Autenrieth at his residence in Northampton County.            See Trial Court

Opinion, 7/15/10, at 15. However, the trial court failed to appreciate that the object of the

conspiracy articulated by the charges was to provide Autenrieth with unlimited

possession and unconditional access to a firearm, and such was not completed or




                                      [J-125-2012] - 7
terminated May 29, 2009, but continued as long as Gross allowed Autenrieth to possess

her gun.5 See 18 Pa.C.S. § 903(g)(1) (“[C]onspiracy is a continuing course of conduct

which terminates when the crime or crimes which are its object are committed or the

agreement that they be committed is abandoned by the defendant and by those with

whom he conspired[.]”); Commonwealth v. Evans, 413 A.2d 1025, 1028 (Pa. 1980) (“The

duration of a conspiracy depends upon the facts of the particular case, that is, it depends

upon the scope of the agreement entered into by its members.” (quotation marks and

citation omitted)).   Gross did not object or withdraw her authorization.       Autenrieth’s

taking the firearm and carrying it constituted the overt act, and that possessory act did not

cease when he crossed into Monroe County.            Accordingly, the trial court erred in

dismissing the conspiracy charges, as the record was sufficient to establish Gross, as

co-conspirator, could be found vicariously liable for Autenrieth’s possession of the

firearm, in Monroe County, and thus, could be prosecuted in that county.6

       The trial court also erred in finding dismissal was warranted for the counts charging

Gross as an accomplice in the crimes of illegal possession of a firearm and lending or

giving a firearm. The trial court found Gross could not be an accomplice in Monroe

County because Autenrieth, not Gross, possessed the gun there.             See Trial Court

Opinion, 7/15/10, at 11-12. Also, both the trial court and the Superior Court concluded

Gross could not be charged as an accomplice because “there is no evidence that she

5 Possession is ongoing conduct, not a temporally limited act. As long as one is in
unlawful possession of a firearm, one is committing an offense. See, e.g., United States
v. Hull, 456 F.3d 133, 146 (3d Cir. 2006) (Ackerman, J., concurring in part and dissenting
in part) (citation omitted).

6  All charges against Gross allege responsibility for Autenrieth’s illegal possession of the
firearm; Gross was not charged with any of the other crimes committed by Autenrieth.



                                      [J-125-2012] - 8
intended to aid or promote Autenrieth’s shootout with the police.” Commonwealth v.

Gross, No. 2006 EDA 2010, unpublished memorandum at 7 (Pa. Super. filed July 13,

2011) (citing Trial Court Opinion, 7/15/10, at 11). This factual statement may be true, but

it is irrelevant, reflecting a misapprehension of the charges filed. Gross was never

charged as an accomplice in the shooting; rather, she was charged as an accomplice in

the illegal possession of a firearm, and the evidence offered was sufficient to prove she

could be convicted as an accomplice to such illegal possession in Monroe County.

       “An actor and his accomplice share equal responsibility for the criminal act if the

accomplice acts with the intent of promoting or facilitating the commission of an offense

and agrees or aids or attempts to aid such other person in either the planning or the

commission of the offense.” Commonwealth v. Cox, 686 A.2d 1279, 1286 (Pa. 1996)

(citations omitted).   There is no minimum amount of assistance or contribution

requirement, for “[i]t has long been established J that intent of the parties is a

consideration essential to establishing the crime of aiding and abetting a felony.”

Commonwealth v. Flowers, 387 A.2d 1268, 1270 (Pa. 1978) (emphasis in original).

Thus, even non-substantial assistance, if rendered with the intent of promoting or

facilitating the crime, is sufficient to establish complicity. See Commonwealth v. Pierce,

263 A.2d 350, 351 (Pa. 1970) (where assistance “‘is rendered to induce another to

commit the crime and actually has this effect, no more is required’” (citation omitted)).

Absence or presence at the scene and the participant’s role in the complicity are not

dispositive of whether accomplice liability exists.   See Commonwealth v. Murphy, 844

A.2d 1228, 1234 (Pa. 2004) (“[A] defendant cannot be an accomplice simply based on

evidence that he J was present at the crime scene.” (citation omitted)). Accomplice




                                     [J-125-2012] - 9
liability does not create a new or separate crime; it merely provides a basis of liability for a

crime committed by another person. See 18 Pa.C.S. § 306.

       Because Autenrieth was present with the gun in Monroe County, and Gross aided

Autenrieth’s illegal possession of that firearm, Gross could be found liable as an

accomplice for Autenrieth’s illegal possession wherever he was, including Monroe

County. Accordingly, we conclude the Commonwealth proved by a preponderance of

the evidence that Gross could be prosecuted under all criminal charges in Monroe

County. The trial court’s finding to the contrary was erroneous.

       Further, even if venue had been improper in Monroe County, the record does not

warrant dismissal for that reason alone. See Pa.R.Crim.P. 109 (“A defendant shall not

be discharged nor shall a case be dismissed because of a defect in the form or content of

a complaint, citation, summons, or warrant, or a defect in the procedures of these

rules[.]”); see also Commonwealth v. Zook, 615 A.2d 1, 6 (Pa. 1992) (interpreting

substantially similar predecessor to Rule 109, stating “this Rule clearly eschews the

application of per se remedies for technical violations, and demands a showing of

prejudice by the defendant before a dismissal of prosecution is warranted[, which] must

be beyond the inherent prejudice of being subjected to a criminal prosecution”).

       As the Commonwealth notes, no provision in our criminal procedural rules permits

dismissal as a remedy for improper venue. To the contrary, our rules repeatedly speak

to transferring cases to another judicial district when improper venue is determined.

See, e.g., Pa.R.Crim.P. 130, 134, 555, 584. As “[v]enue is predominantly a procedural

matter,” Bethea, at 1074 (citations omitted), and “pertains to the locality most convenient

to the proper disposition of a matter,” id., at 1074-75, dismissal is disproportionate and




                                      [J-125-2012] - 10
unjust where a court merely finds another judicial district provides a more appropriate

forum. Our rules promote transfer, not dismissal, and Gross brought not only a motion to

dismiss, but “in the alternative” a motion to transfer for improper venue. The trial court

did not transfer the case even though it expressly determined Northampton or Berks

County were proper venues. See Trial Court Opinion, 7/15/10, at 23. On this separate

basis, the trial court also erred in dismissing the charges filed.

       In light of the foregoing, we conclude the trial erred in finding venue improper in

Monroe County and in dismissing the case. Order reversed. Case remanded to the

trial court for consideration of any unaddressed issues. Jurisdiction relinquished.

           Former Justice Orie Melvin did not participate in the consideration or decision

of this case.

           Messrs. Justice Saylor and Baer, Madame Justice Todd and Mr. Justice

McCaffery join the opinion.

           Mr. Chief Justice Castille files a concurring opinion.




                                     [J-125-2012] - 11
