Com. v. Kemick, J. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JAMES PATRICK KEMICK :
:
Appellant : No. 53 WDA 2021
Appeal from the Order Entered December 4, 2020
In the Court of Common Pleas of McKean County Criminal Division at No:
CP-42-CR-0000390-2019
BEFORE: LAZARUS, J., MURRAY, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED: FEBRUARY 25, 2022
Appellant, James Partick Kemick, appeals from the December 4, 2020
order denying his motion to dismiss the criminal charges currently pending
against him on the grounds that the prosecution of those charges violates the
compulsory joinder rule.1 Appellant is charged with one count each of
burglary, theft by unlawful taking, theft by receiving stolen property, and
criminal trespass.2 Order affirmed.
This appeal follows a remand from this Court in Commonwealth v.
Kemick, 240 A.3d 214 (Pa. Super. 2020). On September 15, 2020, this Court
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* Retired Senior Judge assigned to the Superior Court.
1 The compulsory joinder rule is codified at 18 Pa.C.S. § 110 and is set forth
in detail, infra.
2 18 Pa.C.S. §§ 3502(a)(2), 3921(a), 3925(a), and 3503(a)(1)(ii),
respectively.
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vacated the trial court’s order dismissing Appellant’s motion to dismiss and
remanded the case to the trial court. Id., at 220-21. This Court noted that
the trial court did not hold a hearing to provide Appellant and the
Commonwealth the opportunity to present testimony in support of, or to
refute, the claim that the Appellant’s prosecution for the aforementioned
criminal charges violates double jeopardy protections or the compulsory
joinder rule. Id. This Court directed the trial court to hold a hearing, in
compliance with Pa.R.Crim.P. 587(B).3 Id. Additionally, this Court directed
____________________________________________
3 (B) Double Jeopardy
(1) A motion to dismiss on double jeopardy grounds shall state
specifically and with particularity the basis for the claim of double
jeopardy and the facts that support the claim.
(2) A hearing on the motion shall be scheduled in accordance with
Rule 577 (Procedures Following Filing of Motion). The hearing shall
be conducted on the record in open court.
(3) At the conclusion of the hearing, the judge shall enter on the
record a statement of findings of fact and conclusions of law and
shall issue an order granting or denying the motion.
(4) In a case in which the judge denies the motion, the findings
of fact shall include a specific finding as to frivolousness.
(5) If the judge makes a finding that the motion is frivolous, the
judge shall advise the defendant on the record that a defendant
has a right to file a petition for review of that determination
pursuant to Rule of Appellate Procedure 1573 within 30 days of
the order denying the motion.
(6) If the judge denies the motion but does not find it frivolous,
the judge shall advise the defendant on the record that the denial
is immediately appealable as a collateral order.
Pa.R.Crim.P. 587(B).
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the trial court to memorialize its findings of fact and conclusions of law on the
record, as well as make a specific finding, upon denial of Appellant’s motion
to dismiss, as to the frivolousness of the motion to dismiss and provide the
requisite notice for appellate review. Id.
The trial court held a hearing on October 12, 2020, at which Appellant
introduced the following documents as evidence:
• The criminal complaint, supplemental narrative, main
narrative and criminal information for theft at Thrifty
Cleaners (375 CR 2017). See Defense Exhibit, 1A-1D.
• The criminal complaint, incident report, two witness
statements from Crystal Sirline, witness statement of John
Burns, and criminal information for loitering and prowling at
52 Bedford Street (470 CR 2017). See Defense Exhibit, 2A-
2F.
• The criminal complaint and criminal information for bicycle
theft case (453 CR 2017). See Defense Exhibit, 3A and 3B.
• The criminal complaint, incident report, witness statement
of Melissa Kemick, witness statement of Dale Miller, and
criminal information for loitering and prowling at Melissa
Kemick’s house (493 CR 2017). See Defense Exhibit, 4A-
4E.
• The incident report dated 9/5/2017 regarding inmate John
Hallock. See Defense Exhibit, 5.
• The incident report regarding pending burglary charges
(390 CR 2019). See Defense Exhibit, 6.
• The guilty plea orders at cases 375 CR 2017, 470 CR 2017,
453 CR 2017, and 493 CR 2017. See Defense Exhibit, 7A-
7D.
• The sentencing order for the cases 375 CR 2017, 470 CR
2017, 453 CR 2017, and 493 CR 2017. See Defense
Exhibit, 8.
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Appellant did not include the notes of testimony from the November 9, 2017,
guilty plea hearing in the certified record.
The trial court issued an Order and made the following findings of facts.
James Kemick, the Defendant, has been charged with Burglary,
Theft by Unlawful Taking, Receiving Stolen Property, and Criminal
Trespass at 390 CR 2019. It is alleged that between August 18,
2017 and August 22, 2017 the Defendant broke into 956 South
Avenue in Bradford, Pennsylvania, a residence belonging to Ann
Glady.4 The Defendant is alleged to have stolen jewelry, money,
coins, and other household items valued at over $14,000. The
Defendant then allegedly disposed of or sold some of the property,
knowing that it was stolen, between August 22, 2017 and August
28, 2017. It is alleged that Kemick disposed of the items with the
assistance of Melissa Kemick, who resides at 952 South Ave.
Bradford, Pennsylvania.5
Lt. Jefferey Shade of the [Bradford] Township Police Department6
testified at the hearing to address the Defendant’s Motion to
Dismiss. The court finds Lt. Shade’s testimony to be credible. He
testified that he collected a used cigarette in the victim’s closet.
The cigarette was then sent to the crime laboratory for DNA
analysis. On December 5, 2017 the Defendant was served with a
search warrant for a buccal swab, but he did not comply and no
swab was taken. On December 19, 2017 the Defendant was again
____________________________________________
4 We note that although the trial court states this residence is in “Bradford,
Pennsylvania” the residence is in Custer City, Pennsylvania. See Defense
Exhibit, 6 (Incident Report, 390 CR 2019); N.T., 10/12/20, at 9 (stating the
complainant’s address as “956 South Avenue, Custer City, Bradford
Township.”). The residence is within Bradford Township. Id. Throughout the
memorandum separate locales will be discussed, City of Bradford, Foster
Township, and Bradford Township. They are all neighboring, but distinct,
locations.
5 This residence is also in Custer City, Bradford Township.
6The trial court erroneously stated that Lt. Shade is from Foster Township
Police Department. See Defense Exhibit, 6; N.T. 10/12/20, at 8 (stating his
name and affiliation for the record “Lieutenant Jeff Shade, Bradford Township
Police Department.”).
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served with a search warrant for a buccal swab, which was taken
by force. The DNA report indicating a match between the buccal
swab and cigarette was dated January 2018, but officers did not
receive that report until April 2019 despite frequently checking for
the results.
Lt. Shade agreed that he was aware that officers in the City of
Bradford, which is a neighboring jurisdiction to [Bradford]
Township, were investigating burglaries in the city; and, he had
obtained the Defendant’s name from City Police Officers.
However, the burglaries that the City were investigating occurred
on different dates than the incident he was investigating. Lt.
Shade was adamant that the obtainment of the DNA results was
essential before he could proceed with his case and file a criminal
complaint against the Defendant.
Prior to April 2019, and specifically on November 9, 2017, the
Defendant entered a global guilty plea to charges in cases at 375
CR 2017, 453 CR 2017, 470 CR 2017, and 493 CR 2017. . . . In
the case at 375 CR 2017 the Defendant was arrested on July 27,
2017 by officers from the Bradford City Police Department and
Bradford Township Police Department for stealing a cash register
from the Thrifty Cleaners building in Bradford on July 26, 2017.
In the case at 453 CR 2017 the Defendant conspired to steal a
bicycle with John Hallock on September 2, 2017. In the case at
470 CR 2017 the Defendant was convicted of Loitering and
Prowling at Night Time around a residence at 52 Bedford St. In
Bradford, Pennsylvania on August 28, 2017. At the case in 493
CR 2017 the Defendant was convicted of Loitering and Prowling
around the residence of Melissa Kemick on September 6, 2017.
Trial Court Order and Opinion, 12/4/20. The trial court denied Appellant’s
motion to dismiss. Order, 12/4/20. The trial court also found the appeal was
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not frivolous and substantially complied with the mandates of Rule 587(B).7
Appellant filed a timely appeal.8
Appellant presents the following issue for our review:
[W]hether the trial court erred in denying a Motion to Dismiss
Charges/Criminal Information pursuant to 18 Pa.C.S. Section 110.
Appellant’s Brief at 4 (suggested answer omitted).9
“In determining if cases are barred by Section 110, or the double
jeopardy provisions of the constitutions of the United States or Pennsylvania,
our scope of review is plenary.” Commonwealth v. Peifer, 730 A.2d 489,
491 (Pa. Super. 1999) (citations omitted). “As with all questions of law, the
appellate standard of review is de novo.” Commonwealth v. Taylor, 120
A.3d 1017, 1021 (Pa. Super. 2015) (citation omitted).
The compulsory joinder rule states, in relevant part,
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7 The order did not make a specific finding as to frivolousness, as dictated in
Rule 587(B), however, the trial court included notice to Appellant of his right
to immediately appeal the order “in accordance with Rule 587(B)(6).” Rule
587(B)(6) states:
(6) If the judge denies the motion but does not find it frivolous,
the judge shall advise the defendant on the record that the denial
is immediately appealable as a collateral order.
Pa.R.Crim.P. 587(B)(6) (emphasis added).
8 Appellant and the trial court complied with Pa.R.A.P. 1925(a).
9Appellant filed a request with this Court, on August 30, 2021, to withdraw
Stephanie Smith, Esq. as counsel of record, and to enter the appearance of
Philip Clabaugh, Esq. as counsel for Appellant. The request is granted.
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§ 110. When prosecution barred by former prosecution for
different offense
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:
...
(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[.]
18 Pa.C.S. § 110.
Generally, to determine whether a prosecution is barred by 18 Pa.C.S.
§ 110(1)(ii), a four-part test is used.
Under Section 110(1)(ii), the Commonwealth is prohibited
from prosecuting a defendant based on its former
prosecution of the defendant if the following four-part test
is met: (1) the former prosecution resulted in an acquittal
or a conviction; (2) the current prosecution must be based
on the same criminal conduct or have arisen from the same
criminal episode as the former prosecution; (3) the
prosecutor must have been aware of the current charges
before the commencement of the trial for the former
charges; and (4) the current charges and the former
charges must be within the jurisdiction of a single court.
Commonwealth v. Schmidt, 919 A.2d 241, 245 (Pa. Super. 2007) (citations
omitted). “Each prong of this test must be met for compulsory joinder to
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apply.” Commonwealth v. Fithian, 961 A.2d 66, 72 (Pa. 2008). “By
requiring compulsory joinder of all charges arising from the same criminal
episode, a defendant need only once ‘run the gauntlet’ and confront the
awesome resources of the state.” Schmidt, 919 A.2d at 241 (quoting Peifer,
730 A.2d at 492).
There is no dispute that the former prosecutions resulted in a conviction
and all occurred within the same judicial district. See Appellee’s brief, at 13.
Appellant argues that the trial court erred in denying his motion to dismiss
because the pending charges are part of the same criminal episode as the
charges for which Appellant was already convicted and sentenced. Id.Appellant also argues that the prosecuting authorities were aware of the
underlying offenses in the current prosecution prior to the commencement of
the plea proceedings in the former prosecutions. Id., at 23.
“Where a number of charges are logically and/or temporally related and
share common issues of law and fact, a single criminal episode exists, and
separate trials would involve substantial duplication and a waste of scarce
judicial resources.” Schmidt, 919 A.2d at 246 (citation omitted). This Court
has provided further guidance and stated,
[i]n ascertaining whether a number of statutory offenses are
“logically related” to one another, the court should initially inquire
as to whether there is a substantial duplication of factual, and/or
legal issues presented by the offenses. . . . The single criminal
episode analysis essentially considers the totality of the
circumstances.
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Id. A determination of substantial duplication “depends ultimately on how
and what the Commonwealth must prove in the subsequent prosecution.”
Commonwealth v. Reid, 77 A.3d 579, 585 (Pa. 2013). “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.” Id.(brackets in original) (quoting Commonwealth v. Hude, 458 A.2d 177, 183
(Pa. 1983)). “[O]ur Supreme Court noted that in determining if the ‘logical
relationship’ prong of the test has been met, we must also be aware that a
mere de minimus duplication of factual and legal issues is insufficient to
establish a logical relationship between offenses.” Schmidt, 919 A.2d at 247(quoting Commonwealth v. Bracalielly, 658 A.2d 755, 761 (Pa. 1995)).
Further, we must take into consideration the temporal sequence
of events to aid our determination of whether both prosecutions
are part of the same criminal episode. The temporal relationship
between criminal acts will be a factor that frequently determines
whether the acts are logically related.
Schmidt, 919 A.2d 248.
This Court has previously stated,
[t]wo separate offenses may constitute the same criminal episode
if one offense is a necessary step toward the accomplishment of a
given criminal objective or if additional offenses occur because of
an attempt to secure the benefit of a previous offense or conceal
its commission.
Commonwealth v. Perillo, 626 A.2d 163, 166 (Pa. Super. 1993) (citation
omitted).
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Section 110’s “compulsory joinder rule was designed to serve two
distinct policy considerations: (1) to protect a person accused of crimes from
governmental harassment by being forced to undergo successive trials for
offenses stemming from the same criminal episode, and (2) to ensure judicial
economy.” Commonwealth v. Nolan, 855 A.2d 834, 840 (Pa. 2004)
(superseded by statute on other grounds) (citation omitted). Important to
this appeal, “[t]hese policy considerations must not be interpreted to sanction
‘volume discounting’ or . . . to label an ‘enterprise’ an ‘episode.’ Id. In Nolan,
the Pennsylvania Supreme Court found appellee’s separate crimes were not
part of the same criminal episode and stated,
over a seven-month period appellee ran a profitable enterprise in
which he stole at least 25 vehicles from numerous individuals and
11 dealerships and then resold them, creating even more victims.
Much like a television sitcom, each week’s story has similar
characters, producers, and continuity of storyline, but each week
is a separate episode- the series of episodes is an enterprise.
Such is the scenario here; appellee starred in his own series with
multiple episodes in each county.
Id.Appellant argues that each offense was a necessary step toward the
accomplishment of a given criminal objective and part of a larger
comprehensive series arising from the same criminal episode. Appellant’s
Brief, at 22. A determination of whether the crimes are part of the same
criminal episode “cannot be made ‘by merely cataloguing simple factual
similarities or differences between the various offenses with which the
defendant was charged[,]’” rather the courts must ascertain whether there is
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a substantial duplication of issues of fact and law. Reid, 77 A.3d at 586
(quoting Bracalielly, 658 A.2d at 761). We conclude that none of Appellant’s
previous convictions satisfy the same criminal episode prong. There is no
substantial duplication of law or facts in each case and the pending burglary
charges, where Appellant is accused of breaking into the complainant’s home,
stealing her jewelry and other possessions and disposing of the stolen
property.
375 CR 2017 -Thrifty Cleaners
In this case, Appellant pleaded guilty to burglary for breaking into the
Thrifty Cleaners building on July 26, 2017, in the City of Bradford, Pa., and
taking a cash register. See Defense Exhibit, 7A. There is no substantial
duplication of facts or legal issues between this case and the pending burglary
prosecution. The complaining witness in this case and the current prosecution
are different. The police officers involved in this case are from the City of
Bradford Police Department, while the officers involved in the pending
prosecution are from Bradford Township Police Department. The charges
involved in both cases include burglary; however, how and what the
Commonwealth must prove in each is different. See Reid, 77 A.3d at 586.
Nor is there a temporal relationship between the two events. The current
charges are alleged to have occurred between August 18, 2017 and August
28, 2017. The theft of the cash register occurred on July 26, 2017, almost a
full month before this current prosecution. See Commonwealth v.
Miskovitch, 64 A.3d 672, 687 (Pa. Super. 2013) (aggravated assault and
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robbery occurring one day after theft of stolen car not same criminal episode
where the only linking factor between the crimes was that the car appellant
stole was used in the robbery).
Although Appellant states that each offense was a necessary step
toward the accomplishment of a given criminal objective, the evidence of
record demonstrates that Appellant's acts of theft of the cash register and the
pending burglary charges are akin to a criminal enterprise and not part of the
“same criminal episode.” Nolan, 855 A.2d at 840 (not the same criminal
episode where Appellant, over seven-month period ran a profitable enterprise
in which he stole at least 25 vehicles from numerous individuals and 11
dealerships and then resold them, creating even more victims.); See also
Commonwealth v. Woodrow, 743 A.2d 458, 460 (Pa. Super. 1999)
(eighteen residential burglaries over the course of seventeen days in three
counties confessed to single officer not same criminal episode, but is instead
a “business.”).
We find there is no logical relationship between the pending prosecution
and this case. We conclude the two cases are not a part of the same criminal
episode. The second prong of the compulsory joinder rule is not satisfied. 18
Pa.C.S. § 110(1)(ii) does not bar prosecution of the pending charges and we
need not analyze the remaining prong. See Schmidt, 919 A.2d at 249, n.6;
Fithian, 961 A.2d at 72.
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453 CR 2017- Bicycle Theft
At 453 CR 2017, Appellant pleaded guilty to Conspiracy to commit Theft,
for conspiring with John Hallock to steal two bicycles on September 2, 2017.
See Defense Exhibit, 7C. There is no substantial duplication of facts or legal
issues between the two acts. The complaining witnesses in each case are
different. The police officers involved, Officers Shephard and Fugua, are from
the City of Bradford Police Department, different than the officers in the
pending case. See Criminal Complaint, 453 CR 2017. The pending burglary
charges and the stolen bicycles have no similarities besides the de minimus
overlap of one person.
Appellant notes that his co-conspirator in this case gave a statement to
City of Bradford police officers on September 5, 2017, stating that Appellant
burgled houses in the Bradford area and stored stolen property at an
abandoned house on Sherman Street. Appellant’s Brief, at 21. That his co-
conspirator gave a voluntary statement to police implicating Appellant in
“burglaries in the Bradford area” is not the type of substantial duplication of
facts contemplated by the compulsory joinder rule, but rather mere de
minimus. See Schmidt, 919 A.2d at 247-48 (that same witness testified in
both of appellant’s grand jury proceedings is a de minimus duplication of facts
where appellant’s charges were not based solely upon the testimony of that
one witness and there were not enough similarities between the investigations
to consider them logically related). Even if the Commonwealth would
introduce John Hallock as a witness in each case, the Commonwealth’s cases
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would not rely on the veracity of a single witness, ie. John Hallock, in either
case. See Id., at 247.
The pending charges are alleged to have occurred between August 18,
2017 and August 28, 2017 and this theft case occurred on September 2, 2017.
There does not appear to be a temporal relationship between the two acts,
and certainly not one that would tip the scales toward determining a logical
relationship between the two acts existed. See Miskovitch, 64 A.3d at 687.
Although Appellant states that each offense was a necessary step toward the
accomplishment of a given criminal objective, the evidence of record
demonstrates that Appellant's acts of stealing two bicycles and the pending
burglary are akin to a criminal enterprise and not the “same criminal episode.”
See Nolan, 855 A.2d at 840; See also Woodrow, 743 A.2d at 460.
We find there is no logical relationship between the pending prosecution
and this case. We conclude the two are not a part of the same criminal
episode. The second prong of the compulsory joinder rule is not satisfied. 18
Pa.C.S. § 110(1)(ii) does not bar prosecution of the pending charges and we
need not analyze the remaining prong. See Schmidt, 919 A.2d at 249, n.6;
Fithian, 961 A.2d at 72.
493 CR 2017- Loitering at 952 South Avenue
In 493 CR 2017, Appellant was convicted of loitering and prowling based
on his presence at 952 South Avenue, the residence of Melissa Kemick,
Appellant’s wife, on September 6, 2017. See Criminal Complaint, 493 CR
2017. There is no substantial duplication of facts or legal issues between this
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case and the pending prosecution. The complaining witnesses are different in
each case. The police officers involved, Officers Gigliotti, Lamade, McDonald
and Szafran, are from Bradford Township Police Department and Foster
Township Officers, but are different officers than in the pending case.
The complaining witness in this case, Melissa Kemick, provided a piece
of evidence to the police in the pending prosecution, permitted the police to
execute a search warrant on her car and was observed on surveillance
dropping Appellant off at jewelry shops in the area. See Defense Exhibit, 6
(Incident Report, 390 CR 2019). Melissa Kemick could be a witness in both
the Commonwealth’s cases, however, she is not the only witness. Most
important, even if the Commonwealth would introduce her as a witness in
each case, the Commonwealth’s cases would not rely on the veracity of her
testimony as a single witness in either case. See Schmidt, 919 A.2d at 247;
See Commonwealth v. Spotz, 756 A.2d 1139, 1158-59 (Pa. 2000) (the
Court found no substantial duplication of issues of facts or law although same
person was key witness in appellant’s two murder cases, where “she was
hardly the only witness.”).
The pending charges are alleged to have occurred between August 18,
2017 and August 28, 2017. This incident occurred on September 6, 2017.
There does not appear to be a temporal relationship between the two acts.
See Miskovitch, 64 A.3d at 687.
Appellant argues that the items stolen in the current prosecution were
stored or recovered from Melissa Kemick’s residence, therefore, the former
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prosecution of loitering and prowling were an attempt to secure the benefit of
the current offenses and conceal its commission. Appellant’s Brief, at 13.
Appellant was not permitted to be present at Melissa Kemick’s residence. See
Criminal Complaint, 493 CR 2017. Melissa Kemick was notified by her
neighbor that Appellant was walking around her house. Id. Melissa Kemick
called 9-1-1 and requested a patrol car to be sent to the house. Id. The
responding officers spoke to the eyewitness neighbor who knew Appellant and
saw him around Melissa Kemick’s house at nighttime. Id. The eyewitness
neighbor stated that Appellant asked to use his phone to call Melissa because
he stated he wanted to speak with her. Id. Appellant is correct that items
from the pending burglary were recovered from this location, however, the
items were recovered at earlier dates: pursuant to a garbage pull on August
25, 2017, from Melissa Kemick on August 28, 2017, and pursuant to a search
warrant executed by police on August 29, 2017. See Defense Exhibit, 6
(Incident Report, 390 CR 2019). Appellant’s argument that his presence at
the location on September 6, 2017 was an attempt to secure the benefit of
the pending burglary charges and conceal the commission of the burglary
charges is belied by the record. The eyewitness neighbor stated that Appellant
told him he was at the location to speak to Melissa. See Criminal Complaint,
493 CR 2017. Appellant’s argument is without merit.
We find there is no logical relationship between the pending prosecution
and this case. We conclude that the two acts are not a part of the same
criminal episode, and the second prong of the compulsory joinder rule is not
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satisfied. 18 Pa.C.S. § 110(1)(ii) does not bar prosecution of the pending
charges and we need not analyze the remaining prong. See Schmidt, 919
A.2d at 249, n.6; Fithian, 961 A.2d at 72.
470 CR 2017- 52 Bedford St.
In 470 CR 2017, Appellant was convicted of loitering and prowling
around a residence at 52 Bedford St., in the City of Bradford, Pa., on August
28, 2017. There is no substantial duplication of facts or legal issues between
the two acts. The complaining witnesses are different, the eye witnesses are
different, and the officer involved, Officer Walters, is from the City of Bradford
Police Department. The pending charges are alleged to have occurred
between August 18, 2017 and August 28, 2017. This case occurred on August
28, 2017. There appears to be a temporal relationship between the two
events, however, a closer look shows the temporal relationship will not tip the
scales toward determining a logical relationship between the two acts existed.
The evidence of record demonstrates that the complaining witness in the
pending burglary case reported the burglary on August 22, 2017, the day she
returned from vacation. See Defense Exhibit, 6 (Incident Report, 390 CR
2019). Therefore, Appellant’s presence at this location on August 28, 2017 is
not temporally related to the pending burglary charge. See Miskovitch, 64
A.3d at 687.
Appellant’s presence at this location is temporally related to the
receiving stolen property (RSP) charge in the pending prosecution; however,
the RSP charge in the current prosecution is based on evidence and
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surveillance demonstrating that Appellant sold the proceeds of the pending
burglary at various shops around the area between August 18, 2017 and
August 28, 2017. See Defense Exhibit 6 (Incident Report, 390 CR 2019).
There is nothing in the record to demonstrate that any of the charges in the
pending prosecution are related to this location. Therefore, any temporal
relationship between this case and the pending RSP charges does not tip the
scale to find a logical relationship. See Schmidt, 919 A.2d at 248 (overlap
in time of two investigations, and subsequent presentments, concerning
appellant was not dispositive and temporal relationship did not lead to
conclusion they were part of the same criminal episode where appellant
simultaneously participated in two different drug organizations).
Appellant argues that the items stolen in the current prosecution were
stored or recovered from this location, therefore, the former convictions for
loitering and prowling were an attempt to secure the benefit of the pending
burglary charges and conceal the commission of the pending burglary charges.
Appellant’s Brief, at 13. In the loitering case, neighbors reported to police
that they observed Appellant at this abandoned location, in their own backyard
and observed him throwing unidentified items into another backyard. See
Criminal Complaint, 470 CR 2017. Appellant was not arrested on the scene
but was arrested based on these charges on September 6, 2017. Id.Appellant states that John Hallock, his co-conspirator in the bicycle theft case
at 453 CR 2017, gave a statement to City of Bradford police on September 5,
2017, and stated that Appellant has stashed stolen property at this location.
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Appellant’s Brief, at 22. However, there is nothing in the record demonstrating
that any items from the pending burglary charges were stored at or recovered
from this location. That Appellant’s co-conspirator in a different criminal case
told police that Appellant stored stolen goods at this location is not relevant
to the prosecution of the pending burglary charges, particularly where no
items were recovered at the location. Therefore, Appellant’s argument is
without merit.
We find there is no logical relationship between the pending prosecution
and this case. We conclude that the two acts are not a part of the same
criminal episode, and the second prong of the compulsory joinder rule is not
satisfied. 18 Pa.C.S. § 110(1)(ii) does not bar prosecution of the pending
charges and we need not analyze the remaining prong. See Schmidt, 919
A.2d at 249, n.6; Fithian, 961 A.2d at 72.
Lastly, Appellant argues that the prior prosecutions for loitering and
prowling were for crimes committed by Appellant in order to secure the benefit
and conceal the commission of the prior thefts of the cash register and
bicycles. Appellant’s Brief, at 22. However, this argument is not relevant to
the question on appeal, whether the prosecution of the pending burglary
charges are barred by the compulsory joinder rule. Therefore, this argument
is without merit.
Order affirmed. Jurisdiction relinquished. Appellant’s request, filed
August 30, 2021, is GRANTED. The Prothonotary of this Court is directed to
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withdraw Stephanie Smith, Esq. as counsel for Appellant and enter Philip
Clabaugh, Esq.’s appearance as counsel for Appellant.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 02/25/2022
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