J-A27018-16

                                   2017 PA Super 51



COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

EMILY JOY GROSS

                            Appellant                  No. 375 EDA 2016


                    Appeal from the Order January 15, 2016
                In the Court of Common Pleas of Monroe County
              Criminal Division at No(s): CP-45-CR-0000045-2010


BEFORE: PANELLA, J., LAZARUS, J., and FITZGERALD, J.*

OPINION BY LAZARUS, J.:                           FILED FEBRUARY 28, 2017

        Emily Joy Gross appeals from the order entered in the Court of

Common Pleas of Monroe County, denying, inter alia, her motion to dismiss

on double jeopardy grounds. Upon careful review, we reverse.

        Our Supreme Court has previously set forth the facts of this matter as

follows:

        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 [County] Sheriff’s office went to Autenrieth’s
        residence (also in Northampton County) to serve the temporary
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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     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, [18 Pa.C.S.] § 6106(a)(1) (co-
     conspirator); possession of firearm prohibited, [18 Pa.C.S.] §
     6105(a)(1) (accomplice); and lending or giving of firearms
     prohibited, [18 Pa.C.S.] § 6115(a) (accomplice).

Commonwealth v. Gross, 101 A.3d 28, 31–32 (Pa. 2014).

     Following proceedings which are not relevant to our disposition here,

the matter was remanded by the Supreme Court to the Common Pleas Court

of Monroe County for trial. Prior to the date of remand, the United States


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Attorney filed an information in the U.S. District Court for the Eastern

District of Pennsylvania, charging Gross with making false statements to a

federal firearms licensee1 and aiding and abetting a prohibited person to

possess a firearm.2        The federal government alleged that Gross lied in

connection with her acquisition of the firearm and aided and abetted

Audenrieth in possessing a firearm when she knew him to be prohibited from

doing so.     Gross ultimately pled guilty in federal court to making false

statements to a federal firearms licensee.

        Upon remand of the Commonwealth case to the common pleas court,

Gross filed an omnibus pretrial motion, which she subsequently amended to

include the instant motion to dismiss based upon double jeopardy. The trial

court denied the motion and the instant appeal3 follows, in which Gross

raises the following question for our review:

____________________________________________


1
    18 U.S.C. § 924(a)(1).
2
    18 U.S.C. § 922(g)(8); 18 U.S.C. § 2.
3
  As a general rule of Pennsylvania law, a defendant can immediately appeal
as of right an order that denies a non-frivolous motion to dismiss on state or
federal double jeopardy grounds. Commonwealth v. Orie, 33 A.3d 17,
20–21 (Pa. Super. 2011). In this context, a frivolous double jeopardy claim
is “a claim clearly and palpably without merit; it is a claim [that] presents no
debatable question. Such futile claims, presumably interposed for purposes
of delay or disruption, are to be expressly identified by the trial court
through a written finding.” Id., quoting Commonwealth v. Gains, 556
A.2d 870, 874–75 (Pa. Super. 1989) (en banc). Pursuant to Pa.R.Crim.P.
587(B), in cases where the trial court denies a motion to dismiss on double
jeopardy grounds, the court is required to make a specific finding as to
(Footnote Continued Next Page)


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      Did the trial court err in failing to dismiss the information against
      [Gross], where the information arises out of the same conduct
      for which [Gross] has already been prosecuted . . ., convicted
      . . . and sentenced . . . by the federal government, and the
      Commonwealth did not carry its burden of proving that the
      federal government’s prior prosecution was intended to prevent
      a substantially different harm or evil than the Commonwealth’s?

Brief of Appellant, at 3.

      Our scope and standard of review is as follows: “An appeal grounded

in double jeopardy raises a question of constitutional law.       This [C]ourt’s

scope of review in making a determination on a question of law is, as

always, plenary.       As with all questions of law, the appellate standard of

review is de novo.”        Commonwealth v. Vargas, 947 A.2d 777, 780 (Pa.

Super. 2008) (citations and quotations marks omitted).

      Where a defendant asserts that her state prosecution is barred by a

prior federal action, our determination is governed by section 111 of the

Crimes Code, which provides in pertinent part:

      When conduct constitutes an offense within the concurrent
      jurisdiction of this Commonwealth and of the United States or
      another state, a prosecution in any such other jurisdiction is a
      bar to a subsequent prosecution in this Commonwealth under
      the following circumstances:

      (1) The first prosecution resulted in an acquittal or a conviction
      as defined in section 109 of this title (relating to when
                       _______________________
(Footnote Continued)

frivolousness. See Pa.R.Crim.P. 587(B)(4). Here, the trial court was silent
as to whether it considered Gross’ motion to be frivolous. However, in light
of the fact that the court determined that the Commonwealth sought to
prosecute Gross for the same conduct that led to her federal conviction, see
18 Pa.C.S.A. § 111, we conclude that the motion was not frivolous and, as
such, Gross’ interlocutory appeal is properly before this Court.



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      prosecution barred by former prosecution for the same offense)
      and the subsequent prosecution is based on the same conduct
      unless:

            (i) 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[.]

18 Pa.C.S. § 111(1).

      In applying section 111, the courts of this Commonwealth have

consistently held that there are three relevant inquiries to be made.     The

first inquiry is whether or not the prosecution which the Commonwealth

proposes to undertake involves the same conduct for which the individual

was prosecuted by the other jurisdiction. Commonwealth v. Traitz, 597

A.2d 1129, 1132-33 (Pa. 1991); Commonwealth v. Scarfo, 611 A.2d 242,

256 (Pa. Super. 1992). If the answer to this question is yes, then we must

determine whether each prosecution requires proof of a fact not required by

the other, and whether the law defining the state offense is designed to

prevent a substantially different harm or evil from the law defining the other

jurisdiction’s offense.   Scarfo, 611 A.2d at 257.     If the Commonwealth

cannot satisfy both of these requisites, then the prosecution may not

proceed.   Id.

      We begin with the first inquiry, i.e., whether the Commonwealth’s

prosecution of Gross involves the “same conduct” that formed the basis of

her federal prosecution.    In Commonwealth v. Mascaro, 394 A.2d 998

(Pa. Super. 1978), this Court defined “same conduct,” as “encompass[ing]

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all criminal behavior committed in support of a common and continuing

scheme.”      Id. at 1001.         Here, the trial court concluded – and the

Commonwealth does not dispute – that the Commonwealth sought to

prosecute Gross in state court for the same conduct that led to her federal

conviction. Accordingly, the burden shifts to the Commonwealth to “lift[] the

statutory bar against prosecution.”            Commonwealth v. Calloway, 675

A.2d 743, 748 (Pa. Super. 1996).

       In order     to   satisfy its    burden,   the   Commonwealth must first

demonstrate that each prosecution requires proof of a fact not required by

the other.      Here, Gross pled guilty in federal court to making false

statements to a federal firearms licensee in violation of 18 U.S.C. §

924(a)(1)(A).4      Specifically, the federal government alleged that Gross

knowingly lied to a licensed firearms dealer about her current residence

when completing ATF Form 4473 in connection with the purchase of a

firearm by stating that she resided at 24 Olde Penn Drive, Easton,

Pennsylvania, when she actually resided in Westfield, New Jersey.




____________________________________________


4
   A person commits an offense under section 924 when she “knowingly
makes any false statement or representation with respect to the information
required by this chapter to be kept in the records of a person licensed under
this chapter [e.g., a person licensed to sell firearms] or in applying for any
license or exemption or relief from disability under the provisions of this
chapter[.]” 18 U.S.C. § 924(a)(1)(A).



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        In Pennsylvania state court, Gross is charged with conspiracy to

commit unlawful possession of a firearm,5 firearms not to be carried without

a license,6 possession of firearm prohibited,7 and lending or giving of

firearms prohibited.8        As the trial court correctly observes in its opinion,


____________________________________________


5
    18 Pa.C.S.A. § 903(a).
6
  18 Pa.C.S.A. § 6106(a)(1). Gross was charged as a co-conspirator under
this section, which provides as follows:

        (a) Offense defined.--

        (1) Except as provided in paragraph (2), any person who carries
        a firearm in any vehicle or any person who carries a firearm
        concealed on or about his person, except in his place of abode or
        fixed place of business, without a valid and lawfully issued
        license under this chapter commits a felony of the third degree.

Id.

7
 18 Pa.C.S.A. § 6105(a)(1). Gross was charged as an accomplice under this
section, which provides as follows:

        (a) Offense defined.--

        (1) A person who has been convicted of an offense enumerated
        in subsection (b), within or without this Commonwealth,
        regardless of the length of sentence or whose conduct meets the
        criteria in subsection (c) shall not possess, use, control, sell,
        transfer or manufacture or obtain a license to possess, use,
        control, sell, transfer or manufacture a firearm in this
        Commonwealth.

Id. At the time Gross purchased the firearm, Audenrieth was subject to a
protection from abuse order which barred him from possessing firearms.
8
    18 Pa.C.S.A. § 6115(a). Section 6115(a) provides as follows:

(Footnote Continued Next Page)


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unlike Gross’ federal offense, none of these offenses requires proof that

Gross made false statements or misrepresentations to a firearms dealer.

Conversely, Gross’ federal offense did not require proof that Autenrieth was

not authorized or licensed to possess a firearm, or that Gross and Autenrieth

had any type of agreement.             Accordingly, the Commonwealth is able to

satisfy the first of the two requirements for lifting the bar to prosecution

under section 111.

      In order to proceed with its prosecution of Gross, the Commonwealth

must also demonstrate that the law defining the state offense is designed to

prevent a substantially different harm or evil from the law defining the

federal offense to which Gross pled guilty.       After reviewing the statutes in

question, the trial court concluded that:

      [t]he federal statute is aimed at preventing fraud in connection
      with the purchasing of firearms from licensed dealers. The
      statutes underlying the Commonwealth’s proposed prosecution
      are aimed at entirely different evils: the agreement with others
      to provide a firearm, and knowingly providing a firearm to
      someone not legally able to possess it.

Trial Court Opinion, 1/15/16, at 16.


                       _______________________
(Footnote Continued)

      (a) Offense defined.--No person shall make any loan secured by
      mortgage, deposit or pledge of a firearm, nor, except as
      provided in subsection (b), shall any person lend or give a
      firearm to another or otherwise deliver a firearm contrary to the
      provisions of this subchapter.

Id.




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     Gross argues that, in concluding that the Commonwealth satisfied the

“interest test” under section 111, the trial court’s focus was “unacceptably

narrow” in light of the applicable case law, and in light of the federal

government’s own description of the interests it sought to protect by

prosecuting Gross. For the reasons that follow, we agree.

     In Commonwealth v. Mills, 286 A.2d 638 (Pa. 1971), our Supreme

Court announced the “interest test” that was subsequently codified in section

111, stating:

     we now rule, that henceforth in Pennsylvania, a second
     prosecution and imposition of punishment for the same offense
     will not be permitted unless it appears from the record that the
     interests of the Commonwealth of Pennsylvania and the
     jurisdiction which initially prosecuted and imposed punishment
     are substantially different. In other words, [i]f it appears that
     the interests of this Commonwealth were not sufficiently
     protected in the initial prosecution, then a second prosecution
     and imposition of additional punishment in Pennsylvania will be
     allowed.

Id. at 642.

     The      Court   subsequently   applied   the   Mills   interest   test   in

Commonwealth v. Grazier, 393 A.2d 335 (Pa. 1978).                   There, the

defendants were accused of destroying a hotel by arson and using the U.S.

mail to submit fraudulent insurance claims. They were charged, tried, and

acquitted in federal court of mail fraud and conspiracy to commit mail fraud.

The Commonwealth also charged them with arson. Following their acquittal

in federal court, the defendants filed motions to quash their Commonwealth

indictments on the basis of section 111 and the Supreme Court’s holding in


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Mills. The trial court dismissed the informations against both defendants.

On appeal, this Court reversed and the Supreme Court subsequently granted

allowance of appeal.

     After concluding that section 111 was inapplicable because the crimes

in question predated the effective date of the act, the Court proceeded to

analyze the case under Mills.     The Court rejected the Commonwealth’s

argument that Mills was inapplicable because the offenses charged in the

two jurisdictions, i.e., mail fraud and arson, were different, finding this

distinction “to be one of form over substance.” Grazier, 393 A.2d at 339.

The Court noted:

     While the purpose of the federal mail fraud statute may arguably
     be to protect the integrity of the mails, when viewed realistically
     it can be seen that the use of the mails gives jurisdiction to
     federal authorities over areas in which Congress has not
     specifically acted. As one commentator has stated, “If the
     difference between the statutes involved is primarily
     jurisdictional for example based on the presence or absence of
     the use of interstate commerce it is likely that the Governmental
     interests involved are similar.” Comment, 80 Harv.L.Rev. 1538,
     1562.      Instantly, both the federal government and the
     Commonwealth’s principal interest is against the crime of arson.
     While federal mail fraud is a different crime from arson, both
     statutes as used in this case protect the same governmental
     interest. Under these facts, Mills will act as a bar to a state
     prosecution for arson following an acquittal in federal court for
     mail fraud in connection with a scheme to commit arson.

Id. at 339-40.

     Likewise, here, while the purpose of the federal statute prohibiting

false statements in connection with the purchase of a firearm may arguably

be, as the trial court found, to prevent fraud in connection with the


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J-A27018-16



purchasing of firearms from licensed dealers, Mills requires that we take a

broader view. The statute under which Gross was prosecuted was part of

the Gun Control Act of 1968, “[t]he principal purpose of [which] was to curb

crime by keeping ‘firearms out of the hands of those not legally entitled to

possess them because of age, criminal background, or incompetency.’”

Huddleston v. United States, 415 U.S. 814, 824 (1974). The legislation

was “aimed at restricting public access to firearms” by requiring those

seeking to purchase firearms to “provid[e] adequate and truthful information

about firearms transactions.”    Id.     Additionally, the U.S. attorney, in its

sentencing memorandum, urged the court to look beyond the apparent non-

violence of Gross’ crime, arguing that “[i]t would be wrong to view this crime

in a vacuum and claim that this is merely a fraud violation for lying on a

required form.”   Government’s Sentencing Memorandum, 4/19/11, at 7.

The government went on to note that “[o]ne need only read the newspapers

today to understand the devastating impact which gun crimes of this type

can have upon society.”     Id. at 8.      Accordingly, it is apparent that the

federal government – both generally by enacting the Gun Control Act as well

as specifically in its application of that law in this particular prosecution –

sought to vindicate a greater interest, separate and apart from the mere

prevention of fraud in the submission of federal paperwork.




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       The Pennsylvania statutes under which the Commonwealth seeks to

prosecute Gross – provisions of the Uniform Firearms Act9 – share that same

purpose. As this Court has previously observed, “[t]he apparent purpose of

the Act is to regulate the possession and distribution of firearms, which are

highly dangerous and are frequently used in the commission of crimes.”

Commonwealth v. Corradino, 588 A.2d 936, 940 (Pa. Super. 1991).

“[T]he mischief to be remedied was the unimpeded circulation of dangerous

instruments and the object to be attained was the regulation and

registration of transfers of same.” Id. at 940. Accordingly, “as used in this

case,” Grazier, 393 A.2d at 339, both the federal and state statutes under

which Gross was prosecuted are designed to vindicate substantially the same

interests, i.e., the protection of the public by prohibiting the transfer of

certain firearms to various categories of individuals.

       Because the Commonwealth has not demonstrated that the law under

which it seeks to prosecute Gross is designed to prevent a substantially

different harm or evil from the law defining Gross’ federal offense, see 18

Pa.C.S.A. § 111(1), the trial court erred in holding that the “interest test”

under section 111 was satisfied. Having failed to satisfy both requisites to

lifting the bar to prosecution under section 111, the Commonwealth is

prohibited from proceeding with its prosecution of Gross.

____________________________________________


9
  Gross is also charged with one count of conspiracy to commit a violation of
the Uniform Firearms Act.



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     Order reversed. Case dismissed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/28/2017




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