J-S57029-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT
                                                           OF PENNSYLVANIA
                             Appellee

                        v.

    ADAM JOHN COVALT

                             Appellant                     No. 917 MDA 2019


          Appeal from the Judgment of Sentence Entered May 28, 2019
            In the Court of Common Pleas of the 39th Judicial District
                               Fulton County Branch
                Criminal Division at No.: CP-29-CR-0000096-2018


BEFORE: BOWES, STABILE, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.:                             FILED DECEMBER 20, 2019

        Appellant Adam John Covalt appeals from the May 28, 2019 judgment

of sentence entered in the Court of Common Pleas of the 39th Judicial District,

Fulton County Branch (“trial court”), following his stipulated bench conviction

for driving under the influence of alcohol (“DUI”)—general impairment, DUI—

high rate of alcohol, and failure to give an appropriate signal.1 Upon review,

we affirm.

        The facts and procedural history of this case are undisputed. On April

12, 2018, Appellant and his wife, Jenna, were engaged in an ongoing

argument and Appellant had been drinking alcohol since 10 a.m. that day.

N.T. Hearing, 10/30/18 at 20-21.               At 5:00 p.m., Jenna “left the house


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1   75 Pa.C.S.A. §§ 3802(a), (b), and 3334(a), respectively.
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originally to take her kids to her parents’ house. Once she got to the parents’

house, she got a text from [Appellant]. So she went back and the argument

continued.” Id. at 22. At approximately 6:30 p.m., Appellant grabbed her,

causing a “red mark on her right bicep area.”        Id.   Jenna left the marital

residence and returned to her parents’ house, which was located about five

miles from the marital residence. Id. at 8-11, 22. At 6:47 p.m. that day,

Pennsylvania State Troopers Jason Pierotti and Samuel Lech were dispatched

to Jenna’s parents’ house for a reported domestic situation. Id. at 8. The

troopers arrived there at 7:04 p.m. Id. Jenna informed the troopers about a

domestic situation that had occurred at the marital residence. Id. at 20.

      While the troopers were obtaining Jenna’s statement, at approximately

7:30 p.m., Trooper Lech “observed a white Ford truck pull into the front yard

from Pleasant Ridge Road. It didn’t use its turn signal when pulling in. Jenna

identified the driver saying it was [Appellant]. She went inside the house.”

Id. at 8. Trooper Lech then approached the truck because “it was a domestic

situation” and he was “worried about safety.” Id. at 9. According to Trooper

Lech, Appellant showed up to Jenna’s parents’ house uninvited and on his own

accord.      Id. at 9.   Describing his interaction with Appellant, Trooper Lech

testified:

      [I]nitially in his truck, he gave me his driver’s license. I confirmed
      that he was, in fact, [Appellant]. After that, he got out of the
      truck. We started—I started interviewing him a little bit about the
      domestic situation, getting his side of the story. At some point,
      when he was filling out a written statement and I was going over
      it with him, I was close enough to observe the smell of alcohol on
      his breath.


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Id. at 9-10. Specifically, Trooper Lech smelled the odor of alcohol between

7:40 and 7:45 p.m. Trooper Lech further testified:

       After he had finished the written statement, I asked him about the
       alcohol. He informed me that he had drank [sic] six beers earlier
       that day. Based on that and seeing his eyes were glassy and
       bloodshot, smell of alcohol on his breath, that led me to
       investigate further into now a DUI. And I started conducted fields.

Id. at 10.       Eventually, Trooper Lech arrested Appellant for DUI and

transported him to Fulton County Medical Center for blood testing. Id. at 12.

       On April 17, 2018, the troopers issued a summary citation for

harassment (18 Pa.C.S.A. § 2709(a)(1)) to Appellant.2 On April 25, 2018, the

troopers filed a criminal complaint against Appellant, charging him with DUI

offenses and failure to use a turn signal. On May 23, 2018, Appellant pleaded

guilty to harassment. Id. at 4.

       Appellant waived his preliminary hearing on DUI and vehicle code

offenses. On August 16, 2018, Appellant filed an omnibus pretrial motion,

seeking to dismiss with prejudice (the DUI and vehicle code) charges based

on Section 110 of the Crimes Code, 18 Pa.C.S.A. § 110, relating to compulsory

joinder.    Following a hearing, the trial court denied Appellant’s omnibus

motion. On February 19, 2019, the case proceeded to a non-jury trial, at

which the parties submitted stipulated facts. At the conclusion of trial, the

court found Appellant guilty of two counts of DUI and failure to use a turn

signal. On May 28, 2019, the trial court sentenced Appellant to, inter alia, six

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2 Jenna also received a summary citation that day for injuries she had caused
to Appellant. N.T. Hearing, 10/30/18 at 23.

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months of intermediate punishment. Appellant did not file any post-sentence

motions. On June 4, 2019, Appellant appealed. Both Appellant and the trial

court complied with Pa.R.A.P. 1925.

      On appeal, Appellant raises a single issue for our review: “Did the trial

court err when it found there was not a logical and temporal relationship

between the DUI and harassment when both crimes occurred during the

course of an ongoing multi-location domestic dispute and all other elements

of compulsory joinder were present?”        Appellant’s Brief at 4 (unnecessary

capitalization omitted).

      Because the issue presents a question of law, our standard of review is

de novo and our scope of review is plenary. Commonwealth v. Kolovich,

170 A.3d 520, 523 (Pa. Super. 2017), appeal denied, 182 A.3d 429 (Pa.

2018); see Commonwealth v. George, 38 A.3d 893, 896 (Pa. Super 2012)

(noting that, in the context of Section 110, our standard of review is plenary).

The compulsory joinder rule, Section 110, entitled “When prosecution barred

by former prosecution for different offense,” provides in pertinent 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;



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            (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.

18 Pa.C.S.A. § 110 (emphasis added). The rule “is a legislative mandate that

a subsequent prosecution for a violation of a provision of a statute that is

different from a former prosecution, or is based on different facts, will be

barred in certain circumstances.” Kolovich, 170 A.3d at 524. Its purpose is

“(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.” Id.

      Section 110(1)(ii), the relevant provision for this appeal, bars

subsequent prosecution if all of the following four prongs are satisfied:

      (1) the former prosecution must have resulted in an acquittal or
      conviction;

      (2) the current prosecution is based on the same criminal conduct
      or arose from the same criminal episode as the former
      prosecution;




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       (3) the prosecutor[3] was aware of the instant charges before the
       commencement of the trial on the former charges; and

       (4) the current offense occurred within the same judicial district
       as the former prosecution.

Commonwealth v. Fithian, 961 A.2d 66, 72 (Pa. 2008); see George,

supra, at 896.

       Here, prongs (1), (3) and (4) are uncontested.       Thus, the dispute

centers on the second prong—known as the logical relationship prong. See

Commonwealth v. Reid, 77 A.3d 579, 582 (Pa. 2013). The second prong

involves whether the current prosecution was based on the same criminal

conduct or criminal episode as the former prosecution. A criminal episode has

been defined as “an occurrence or connected series of occurrences and

developments which may be viewed as distinctive and apart although part of

a larger or more comprehensive series.” Commonwealth v. Schmidt, 919

A.2d 241, 246 (Pa. Super. 2007), appeal denied, 936 A.2d 40 (Pa. 2007).

To determine whether various acts constitute a single criminal episode, one

must consider the logical relationship between the acts, i.e., whether there is

a substantial duplication of issues of law and fact, and whether the acts are

temporally related. See Commonwealth v. Hude, 458 A.2d 177, 181-83

(Pa. 1983) (“[I]n defining what acts constitute a single criminal episode, not

only is the temporal sequence of events important, but also the logical

relationship between the acts must considered.”).


____________________________________________


3George teaches that “prosecuting officers” include law enforcement officers
as well as prosecuting attorneys. See George, 38 A.3d at 898-99.

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      Our Supreme Court elaborated:

      [T]he determination of whether the logical relationship prong of
      the test is met turns on whether the offenses present a
      substantial duplication of issues of fact and law. Such a
      determination depends ultimately on how and what the
      Commonwealth must prove in the subsequent prosecution. There
      is a substantial duplication of issues of fact if the Commonwealth’s
      case rest[s] solely upon the credibility of [one witness] in both
      prosecutions. There is no substantial duplication if proof of each
      individual instance of possession and delivery in each county
      require the introduction of the testimony of completely different
      police officers and expert witnesses as well as the establishment
      of separate chains of custody[,] or if there were three victims in
      three different counties requiring three different investigations,
      and different witnesses were necessary at each trial. When
      determining if there is a duplication of legal issues, a court should
      not limit its analysis to a mere comparison of the charges, but
      should also consider whether, despite the variation in the form of
      the criminal charges, there is a commonality of legal issues within
      the two prosecutions. It should be remembered, however, the
      mere fact that the additional statutory offenses involve additional
      issues of law or fact is not sufficient to create a separate criminal
      episode since the logical relationship test does not require an
      absolute identity of factual backgrounds. Finally, in considering
      the temporal and logical relationship between criminal acts, we
      are guided by the policy considerations [Section] 110 was
      designed to serve, which must not be interpreted to sanction
      volume discounting[, procedural maneuvering], or to label an
      enterprise an episode.

Commonwealth v. Reid, 77 A.3d 579, 585-86 (Pa. 2013) (citations,

quotation marks and some brackets omitted) (formatting altered) (emphasis

added).

      Here, based on our thorough review of the evidence, as detailed above,

we conclude that the second prong of the test requiring both a logical and

temporal relationship was not met, and as a result, the trial court did not err

in declining to mandate joinder under Section 110. The instant DUI charges

and the summary harassment charges required different factual support. If

Appellant had not pleaded guilty to harassment, but instead had chosen to


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proceed to trial, the Commonwealth would have needed only the testimony of

Jenna and Trooper Pierotti to make its case against Appellant.         On the

contrary, if Appellant had not submitted to a stipulated DUI trial, the

Commonwealth would have needed only the testimony of Trooper Lech and

medical professionals to establish the DUI and failure to give an appropriate

signal charges. As noted earlier, Trooper Lech observed Appellant’s driving,

his condition at the scene, and his performance on the standardized field

sobriety testing.      Similarly, testimony by medical professionals (such a

phlebotomist) from the Fulton County Medical Center would have established

the circumstances surrounding the blood draw and the results of Appellant’s

blood test. Thus, the testimony of Jenna and Trooper Pierotti would have been

unnecessary to secure a conviction in the instant case.      To reiterate, the

altercation between Appellant and Jenna, which occurred one hour and five

miles away from Jenna’s parents’ residence, had little to do with the charges

at issue.    As Trooper Lech observed, about an hour after the altercation,

Appellant drove to the parents’ house, seemingly under the influence of

alcohol, and in the process, turned into their driveway without using a turn

signal. Accordingly, under the circumstances of this case, especially given the

lack of a temporal relationship4 and the absence of substantial duplication of

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4 See Commonwealth v. Caden, 473 A.2d 1047, 1049 (Pa. Super. 1984)
(relief denied under Section 110 where appellant stole both a truck and a
tractor on the same evening); see also Commonwealth v. Lee, 435 A.2d
620, 622 (Pa. Super. 1981) (relief denied under Section 110 where appellant



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issues of fact and law between the harassment charge and the vehicle code

offenses,5 Appellant is not entitled to relief under Section 110.

       Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/20/2019




____________________________________________


stabbed two people on the same block within a forty minute period);
Commonwealth v. Miller, 419 A.2d 1378, 1380 (Pa. Super. 1980)
(burglarized same residence six hours apart).
5 We note that Appellant does not develop any meaningful argument for why
a substantial duplication of facts or law would exist between the instant case
and the harassment charge to which he pleaded guilty.

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