Com. v. Porter, S. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
SONYA CHARMAIN PORTER :
:
Appellant : No. 1528 WDA 2017
Appeal from the Judgment of Sentence September 20, 2017
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0011779-2016
BEFORE: OTT, J., KUNSELMAN, J., and MUSMANNO, J.
MEMORANDUM BY OTT, J.: FILED OCTOBER 18, 2019
Sonya Charmain Porter appeals from the judgment of sentence imposed
September 20, 2017, in the Allegheny County Court of Common Pleas. The
trial court sentenced Porter to a term of three years’ probation, and ordered
her to pay $2,770.00 in restitution, after she was convicted by a jury of one
count of Fraud in Obtaining Food Stamps, 62 P.S. § 481(a). On appeal, she
contends the trial court erred by denying her pretrial motion to dismiss the
charge based on collateral estoppel and/or double jeopardy grounds. For the
reasons below, we affirm.
The facts relevant to this appeal are as follows. On April 29, 2016, the
Pennsylvania Office of Inspector General filed a private criminal complaint
against Porter, alleging she unlawfully obtained $2,770.00 in food stamp
benefits between February 1, 2015, and July 31, 2015, by failing to disclose
the correct income of her household. See Private Criminal Complaint,
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5/24/2016, at 2. Specifically, the probable cause affidavit alleged Porter failed
to report to the Department of Human Services that she was employed by the
United States Postal Service during the relevant period, and, accordingly,
obtained benefits to which she was not entitled. See id. at Affidavit of
Probable Cause. A criminal information charging her with one count of False
Statements under the Human Services Code, 62 P.S. § 481(a), was filed on
November 16, 2016, at Docket No. 2016-11779.
On March 23, 2017, Porter filed a pretrial motion to dismiss the charge
based on collateral estoppel and double jeopardy grounds. She averred that
on December 4, 2015, she was charged at Docket No. 2015-14956, with
violating Section 481(a) for an overpayment she received during the prior
period of August 1, 2014, through January 31, 2015. See Motion to Enforce
Rule 586 Disposition and To Dismiss on Collateral Estoppel and Double
Jeopardy Grounds, 3/23/2017, at ¶ 1-2. That case was resolved on March 21,
2016, via Pennsylvania Rule of Criminal Procedure 586,1 when she “paid the
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1 Rule 586 permits a trial court to dismiss a criminal offense, “which is not
alleged to have been committed by force or violence or threat thereof” under
the following conditions:
(1) the public interest will not be adversely affected; and
(2) the attorney for the Commonwealth consents to the dismissal;
and
(3) satisfaction has been made to the aggrieved person or there
is an agreement that satisfaction will be made to the aggrieved
person; and
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entirety of the restitution requested by the Commonwealth and Rule 586 civil
penalties were imposed.” Id. at ¶ 3. Nevertheless, 39 days later, she was
charged with the present offense. Porter argued the present prosecution was
“barred by the double jeopardy clauses of both the federal and state
constitutions, under the theory of collateral estoppel, and [S]ection 110 of the
Crimes Code[.]” Id. at ¶ 7. Following a hearing on May 12, 2017, the trial
court denied the motion, and concluded it was frivolous.2
The case proceeded to a jury trial, and, on September 17, 2017, the
jury found Porter guilty of violating Section 481(a). On September 20, 2017,
the trial court sentenced Porter to a term of three years’ probation, and
ordered her to pay $2,770.00 in restitution. This timely appeal follows. 3
On appeal, Porter contends the trial court erred when it failed to dismiss
the charge in this case based upon her previous prosecution for the same
offense, which resulted in a Rule 586 disposition. Porter insists the Rule 586
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(4) there is an agreement as to who shall pay the costs.
Pa.R.Crim.P. 586.
2 The trial court’s determination that the motion was frivolous precluded Porter
from filing a pretrial interlocutory appeal. See Pa.R.Crim.P. 587(B).
3 On October 25, 2017, the trial court ordered Porter to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b)
by November 27, 2017. After requesting, and being granted, an extension of
time because the notes of testimony were not yet transcribed, Porter
ultimately complied with the court’s Rule 1925(b) order on July 13, 2018. The
trial court filed an opinion addressing Porter’s claims on November 14, 2018.
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disposition at Docket No. 2015-14956 involved the same criminal episode,
and, therefore, the instant prosecution was barred by 18 Pa.C.S. §§ 109 or
110, or the double jeopardy clause of the Pennsylvania or United States
Constitutions. See Porter’s Brief at 15. “Since the issue presents a question
of law, our standard of review is de novo and our scope of review is plenary.”4
Commonwealth v. Kolovich, 170 A.3d 520, 523 (Pa. Super. 2017), appeal
denied, 182 A.3d 429 (Pa. 2018).
First, Porter argues the instant prosecution should have been barred by
Section 109, which codifies the doctrine of res judicata for application in
criminal cases.5 See Porter’s Brief at 17. However, Porter failed to argue the
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4 The Commonwealth suggests in its brief that our review should be limited to
the evidence presented during the pretrial hearing, similar to appellate review
of a suppression ruling. See Commonwealth’s Brief at 9, n.5, citing In re
L.J., 79 A.3d 1073 (Pa. 2013). We need not consider this argument, however,
because our review is focused on the criminal complaints and accompanying
affidavits of probable cause. The criminal complaint for Docket No. 2015-
14956 was attached to Porter’s pretrial motion as Defendant’s Exhibit A. See
Motion to Enforce Rule 586 Disposition and To Dismiss on Collateral Estoppel
and Double Jeopardy Grounds, 3/23/2017, at 1 n.1.
5 Section 109 provides, in relevant part, that when a prosecution is for a
violation of the same provision and based upon the same facts as a former
prosecution, it is barred by the former prosecution when, inter alia:
The former prosecution was terminated, after the
indictment had been found, by a final order or judgment for
the defendant, which has not been set aside, reversed, or
vacated and which necessarily required a determination
inconsistent with a fact or a legal proposition that must be
established for conviction of the offense.
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applicability of Section 109 in her pretrial motion to dismiss, during the
hearing on that motion, or in her concise statement of issues complained of
on appeal.6 “Issues not raised in the lower court are waived and cannot be
raised for the first time on appeal.” Pa.R.A.P. 302(a). See also Pa.R.A.P.
1925(b)(4)(vii) (issues not raised in concise statement are waived).
Accordingly, we conclude Porter’s first issue is waived.
Next, Porter contends the present prosecution should have been barred
by application of Section 110, also known as the compulsory joinder rule.
Section 110 was enacted to address two specific policy concerns:
(1) to protect a person accused of crimes from governmental
harassment of being forced to undergo successive trials for
offenses stemming from the same criminal episode; and (2) as a
matter of judicial administration and economy, to assure finality
without unduly burdening the judicial process by repetitious
litigation.
Commonwealth v. Hude, 458 A.2d 177, 180 (Pa. 1983). The statute
provides, in relevant 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
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18 Pa.C.S. § 109(2).
6 See Motion to Enforce Rule 586 Disposition and To Dismiss on Collateral
Estoppel and Double Jeopardy Grounds, 3/23/2017; N.T., 5/12/2017, at 2-
13; Concise Statement of Errors Complained of on Appeal, 7/13/2018.
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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;
(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.
(2) The former prosecution was terminated, after the indictment
was found, by an acquittal or by a final order or judgment for the
defendant which has not been set aside, reversed or vacated and
which acquittal, final order or judgment necessarily required a
determination inconsistent with a fact which must be established
for conviction of the second offense.
18 Pa.C.S. § 110(1)-(2).
Porter insists her case “fits into each of [Section 110(1)’s] three
provisions.” Porter’s Brief at 22. However, we find Porter cannot
demonstrate, initially, that “[t]he former prosecution resulted in an acquittal
or in a conviction as defined in section 109[.]” 18 Pa.C.S. § 110(1). Neither
Porter nor the Commonwealth address this preliminary provision, seemingly
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conceding that Porter’s Rule 586 disposition qualifies as an acquittal or
conviction pursuant to Section 109. However, we find that not to be the case.
By way of background, Sections 109, 110, and 111 of the Crimes Code
apply res judicata, collateral estoppel, and double jeopardy considerations to
bar present prosecutions when the allegations could have, or should have,
been addressed in a former prosecution. Section 109 applies when the
prosecutions are for the “same provision of the statutes and based upon the
same facts[.]” 18 Pa.C.S. § 109. Section 110 applies when the prosecutions
involve different statutory provisions or are based upon different facts. See
18 Pa.C.S. § 110. Lastly, Section 111, not relevant here, is applicable when
the former prosecution was in another jurisdiction. See 18 Pa.C.S. § 111.
We note that as a preliminary matter when considering the applicability
of Sections 109, 110, or 111, the trial court must categorize the disposition of
the former prosecution. A conviction or acquittal in the former prosecution
leads to further inquiry. Section 109 provides the definitions for an acquittal
and a conviction. A former prosecution ends in an acquittal if “the prosecution
resulted in a finding of not guilty by the trier of fact or in a determination that
there was insufficient evidence to warrant a conviction.” 18 Pa.C.S. § 109(1).
Pursuant to Subsection 109(3), a former prosecution results in a conviction
when “the prosecution resulted in a judgment of conviction which has not been
set aside or vacated, a verdict of guilty which has not be set aside and which
is capable of supporting a judgment, or a plea of guilty accepted by the court.”
18 Pa.C.S. § 109(3).
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The Rule 586 disposition in the present case does not qualify as either
an acquittal or a conviction as defined above. Rather, Rule 586 permits a trial
court to dismiss a case, which does not involve force or violence, when: (1)
“the public interest will not be adversely affected;” (2) the Commonwealth
“consents to the dismissal;” (3) satisfaction has been, or will be, made to the
person aggrieved by the offense; and (4) “there is an agreement as to who
shall pay costs.” Pa.R.Crim.P. 586. Clearly, a Rule 586 disposition does not
involve a finding of not guilty or insufficient evidence, nor does it qualify as a
judgment of conviction, a guilty verdict, or a guilty plea. Rather, a Rule 586
disposition fits into a third category outlined in Section 110(2):
The former prosecution was terminated, after the indictment was
found, by an acquittal or by a final order or judgment for the
defendant which has not been set aside, reversed or vacated and
which acquittal, final order or judgment necessarily required a
determination inconsistent with a fact which must be established
for conviction of the second offense.
18 Pa.C.S. § 110(2). See also 18 Pa.C.S. § 109(2).7 Here, Porter’s former
prosecution was terminated by a final order, which has not been set aside,
reversed or vacated. Accordingly, the relevant inquiry is whether Porter’s
present prosecution should have been barred under Section 110(2). However,
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7 The description of this third category in Section 110(2) is virtually identical
to the description in Section 109(2). Furthermore, it merits emphasis that
Porter cited to this third category of dispositions in arguing her present case
should have been barred under Section 109. See Porter’s Brief at 17, citing
18 Pa.C.S. § 109(2).
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in her brief, Porter’s argument focuses solely on how Subsections (1)(i), (ii),
and (iii) apply to her case.8 See Porter’s Brief at 22-31. Therefore, she has
waived any claim that her prosecution is barred under Section 110(2).9
Nevertheless, even if we were to find Porter did not waive this claim, we
would conclude no relief is warranted.10 “Section 110(2) codifies the ancient
doctrine of collateral estoppel[,]” and precludes the “relitigation between
parties of an issue where that issue has been previously decided by a
competent legal forum.” Commonwealth v. Teagarden, 696 A.2d 169, 171
(Pa. Super. 1997), appeal denied, 702 A.2d 1060 (Pa. 1997). However, we
have cautioned:
[W]here one or several other rational explanations for the jury’s
actions exist, admission of evidence in a subsequent prosecution
will not be excluded on collateral estoppel grounds. Only if it is
“clear that the jury has spoken with respect to a particular fact,
[will] the Commonwealth no longer [be] permitted to request that
another jury consider the same.”
Id. (internal citations omitted).
Pursuant to Section 110(2), a prosecution, based upon different facts,
is barred by a former prosecution if the former prosecution “necessarily
required a determination inconsistent with a fact which must be established
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8As will be discussed infra, Porter’s Section 110(1)(ii) argument is relevant to
her constitutional due process claim.
9 We note “[w]e are not limited by the trial court’s rationale and may affirm
its decision on any basis.” Commonwealth v. Cramer, 195 A.3d 594, 607
(Pa. Super. 2018).
10As noted supra, Porter addressed this same exception in her Section 109(2)
argument. See Porter’s Brief at 17-20.
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for conviction of the second offense.” 18 Pa.C.S. § 110(2). The facts which
had to be established for the present prosecution were set forth in the affidavit
of probable cause – namely, Porter failed to report to DHS her own
employment by the United States Postal Service in order to obtain food
stamp benefits that she was not entitled to during the period from February
1, 2015, through July 31, 2015. See Private Criminal Complaint, 5/24/2016,
at Affidavit of Probable Cause. The prior prosecution, however, involved an
overpayment of food stamp benefits for the period from August 2014 to
January 2015, as a result of Porter’s failure to report her daughter’s
employment and income. See Docket No. 2015-14956, Private Criminal
Complaint, 6/26/2015, at Affidavit of Probable Cause. Therefore, the former
prosecution did not require a determination inconsistent with a fact which had
to be established in the present case. To the extent Porter asserts the
Commonwealth agreed “all the money owed to it was represented in [the]
Rule 586 disposition,”11 we find the damages owed do not constitute a relevant
fact for purposes of a Section 110(2) analysis.12 As noted above, the relevant
facts determined in the Rule 586 disposition were that Porter failed to alert
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11 Porter’s Brief at 19. See also id. at 34.
12 We note this is not a case in which the Commonwealth filed separate
charges in an attempt to affect the grading of the offense. Pursuant to 62
P.S. § 481(b), the crime is graded as a felony of the first degree when the
amount of damages exceeds $1,000. See 62 P.S. § 481(b). Here, the
damages alleged in both prosecutions exceeded that amount.
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DHS of her daughter’s employment for a six-month period of time. Those
facts have no bearing on the present prosecution where the Commonwealth
proved Porter failed to alert DHS of a change in her own employment and
income during a separate six-month period. Accordingly, even if Porter’s
Section 110(2) claim were not waived, she would be entitled to no relief.
Lastly, Porter contends “[t]he Commonwealth violated [her] right under
the Double Jeopardy Clauses of the Federal and Pennsylvania Constitutions to
be free from multiple prosecution for one criminal act.” Porter’s Brief at 32.
“Consideration of the constitutional protections contained in the double
jeopardy clauses is necessary where[, as here,] the statutory provisions
relating to subsequent prosecutions are not applicable.” Commonwealth v.
Keenum, 530 A.2d 90, 93 (Pa. Super. 1987).
We employ a unitary analysis of the state and federal double
jeopardy clauses since the protections afforded by each
constitution are identical.
The protections afforded by double jeopardy are generally
recognized to fall within three categories-(1) protection against a
second prosecution for the same offense after an acquittal; (2)
protection against a second prosecution for the same offense after
conviction; and (3) protection against multiple punishments for
the same offense.
Id. (internal citations omitted). When considering whether a second
prosecution is for the same offense as a former prosecution, “a ‘single criminal
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episode’ analysis” is employed.13 Commonwealth v. Miskovitch, 64 A.3d
672, 686 (Pa. Super. 2013) (quotation omitted), appeal denied, 70 A.3d 1090(Pa. 2013).
In Hude, supra, the Pennsylvania Supreme Court held “where a
number of charges are logically and/or temporally related and share common
issues of law and fact, a single criminal episode exists[.]” Hude, supra, 458
A.2d at 494. In Commonwealth v. Reid, 77 A.3d 579 (Pa. 2013), the
Supreme Court further explained that offenses are “logically related” to one
another if there is “a substantial duplication of factual, and/or legal issues
presented by the offenses.” Id. at 582 (quotation omitted). The Court
emphasized, however, the duplication must be substantial and not merely de
minimis. See id. at 582-583. Furthermore, the Reid Court explained the
determination of whether the logical relationship prong is met “depends
ultimately on how and what the Commonwealth must prove in the subsequent
prosecution.” Id. at 585.
Here, Porter insists the former and present prosecution are “temporally
and logically related – the two time periods abut one another and the case at
bar clearly involves a continuation of Ms. Porter’s actions in her first case.”
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13 The “single criminal episode” analysis for double jeopardy claims appears
to be the same as the analysis for a Section 110 claim. See Commonwealth
v. Hockenbury, 701 A.2d 1334, 1338-1339 (Pa. 1997) (referring to prior
Section 110 discussion when concluding separate prosecutions did not violate
constitutional double jeopardy protection). See also Commonwealth v.
Schmidt, 919 A.2d 241 (Pa. Super. 2007) (same), appeal denied, 936 A.2d
40 (Pa. 2007).
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Porter’s Brief at 27. We disagree. The fact the time periods “abut one
another” has no bearing on whether the crimes involve the same criminal
episode. Indeed, each false statement covered a different, and distinct, time
period. Had they overlapped, Porter’s argument may have more merit.
Nonetheless, the most significant difference between the two
prosecutions is that they involved separate false statements that had to be
proven by the introduction of distinct evidence. In the Rule 586 disposition,
the Commonwealth was required to prove Porter failed to disclose to DHS that
her daughter was employed at a restaurant during the period from August 1,
2014, through January 31, 2015. That false statement/omission was in her
initial application for benefits filed in August of 2014.14 As the Commonwealth
pointed out at the pretrial hearing, the present prosecution involved a different
false statement/omission Porter made “on a separate form … about her
employment as of April 2, 2015.” N.T., 5/12/2017, at 6. The second form
was a semiannual reporting form that required Porter to confirm, update,
and/or correct her household income. The present prosecution was based
upon Porter’s failure to report that she, herself, was employed by the United
States Post Office from February 1, 2015, though July 31, 2015. In summary,
the present prosecution involved a separate false statement made on a
separate form concerning the employment of a different beneficiary by a
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14 The parties referred to the relevant forms during the pretrial hearing.
Although they were not introduced into evidence at that hearing, they were
introduced at trial, and are included as a supplement to the certified record.
See N.T., 5/12/2017, at 6-8.
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different employer over a different time period. Consequently, we agree with
the trial court’s finding that the two prosecutions did not constitute a single
criminal episode, and, therefore, Porter’s second prosecution did not violate
her double jeopardy rights. Accordingly, no relief is warranted.15
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/18/2019
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15We note that in her double jeopardy claim, Porter also raises a collateral
estoppel claim. See Porter’s Brief at 33-35. However, we have already
addressed and rejected that claim in our discussion of Section 110(2). See
supra at 9-11.
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