Com. v. Postie, F. ( 2015 )

J-S24016-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
FREDRICK A. POSTIE,
Appellant No. 2442 EDA 2014
Appeal from the Order entered July 15, 2014,
in the Court of Common Pleas of Carbon County,
Criminal Division, at No(s): CP-13-CR-0000340-2012
and CP-13-CR-0000343-2012
BEFORE: GANTMAN, P.J., ALLEN, and MUSMANNO, JJ.
MEMORANDUM BY ALLEN, J.: FILED APRIL 13, 2015
Fredrick A. Postie (“Appellant”) appeals pro se from the order denying
and dismissing his “Motion to Dismiss Pursuant to Section 110 of the Crimes
Code.” We affirm.
The trial court summarized the factual and procedural background as
follows:
The pertinent facts in these two companion cases and the
relevant case in Schuylkill County are neither lengthy nor
complex. In later February of 2012, Police Officer Lori Lienhard,
of the Summit Hill Police Department, interviewed [Appellant] as
it related to various burglaries that occurred in Carbon and
Schuylkill Counties. After admitting his involvement in these
burglaries, a plethora of charges were filed against [Appellant] in
both counties.
More specifically, the Schuylkill County District Attorney’s
Office charged [Appellant] with: two counts of criminal
conspiracy, four counts of burglary, eight counts of criminal
trespass, four counts of theft by unlawful taking or disposition,
J-S24016-15
four counts of receiving stolen property, four counts of criminal
mischief, and three counts of loitering and prowling at night
time, for the alleged burglaries that occurred at 268 East Main
Street, Rush Township, 714 and 716 Claremont Avenue, Rush
Township, and 474 Fairview Street, Rush Township, respectively.
Moreover, the Schuylkill County District Attorney’s Office
contended that these burglaries occurred sometime between
December 12, 2011 and January 22, 2012.
Around the same time, the Carbon County District
Attorney’s Office filed similar charges against [Appellant],
namely, criminal conspiracy, burglary, theft by unlawful taking,
receiving stolen property, criminal mischief, and criminal
trespass. As alleged in the information to the case indexed 340
CR 2012, [Appellant] committed these various offenses at two
residences located at 211 Yard Street, Nesquehoning, Carbon
County, sometime between November 17, 2011 and December
3, 2011. Pursuant to the case identified as 343 CR 2012, the
Commonwealth has alleged that during the time period of
November 30, 2011 through December 21, 2011, [Appellant]
committed the offenses listed above at the residences located
at: 99, 100, 116, and 495 West White Bear Drive, with all four
residences located in the borough of Summit Hill, Carbon
County.
Thereafter, [Appellant] stood trial for the charges in
Schuylkill County where, by a jury of his peers, he was convicted
on twenty-five of twenty-nine counts. Subsequent to that trial,
[Appellant] filed the instant compulsory joinder motion here in
Carbon County. In the motion, [Appellant] argues that based
upon his convictions in Schuylkill County on similar charges, the
Carbon County District Attorney is barred from prosecuting him
for alleged offenses that might have happened in Carbon County.
After holding a hearing on the motion, [the trial court] by
Court Order dated July 15, 2014, denied [Appellant’s]
compulsory joinder motion, [from] which [Appellant] appealed
[]. [Although the trial court authored an opinion for submission
to the Superior Court, it did not order Appellant to comply with
Pa.R.A.P. 1925(b).]
Trial Court Opinion, 9/11/14, at 2-4 (footnotes referencing the applicable
statutes omitted).
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Appellant presents a single question for our review:
Did the Trial Court err in denying dismissal where the same
witnesses and testimony, same evidence, and same investigation
by the same officers that were used to produce a conviction in
Schuylkill County and will be used in Carbon County at trial
creates a Collateral Estoppel issue therefore barring the instant
trial where the Commonwealth should have moved for joinder?
Appellant’s Brief at 4.
We initially recognize that this interlocutory appeal is properly before
us because “an order denying a pretrial motion to dismiss on the grounds of
double jeopardy/collateral estoppel is a final, appealable order.” See, e.g.,
Commonwealth v. Winter, 471 A.2d 827, 828 n.1 (Pa. Super. 1984)
(citations omitted). Our standard of review of issues concerning [18
Pa.C.S.A. §] 110 is plenary. Commonwealth v. Reid, 35 A.3d 773, 776
(Pa. Super. 2012).
We thus consider Appellant’s assertion that “the instant case is nearly
an exact copy of the prior case, [and] the issues have previously and fully
been litigated, barring the current prosecution.” Appellant’s Brief at 9.
Appellant maintains that “the factors in [18 Pa.C.S.A. § 110] … have been
met and ultimately this case is violating [Appellant’s constitutional] rights
against double jeopardy.” Id.
The Commonwealth counters that the trial court “properly found that
[Appellant] failed to meet all of the criteria necessary under the Compulsory
Joinder Rule, and therefore, failed to show that the prosecution currently
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pending in Carbon County is barred.” Commonwealth Brief at 2. Upon
review, we agree with the Commonwealth.
With regard to compulsory joinder, the Crimes Code specifies:
§ 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:
(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.
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18 Pa.C.S.A. § 110(1).
In Commonwealth v. Fithian, 961 A.2d 66, 72 (Pa. 2008), our
Supreme Court explained:
As has been summarized by our Court, Section 110(1)(ii), which
is the focus in this appeal, contains four requirements which, if
met, preclude a subsequent prosecution due to a former
prosecution for a different offense:
(1) the former prosecution must have resulted in an acquittal or
conviction;
(2) the current prosecution is based upon the same criminal
conduct or arose from the same criminal episode as the former
prosecution;
(3) the prosecutor 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.
See Nolan, 579 Pa. at 308, 855 A.2d at 839; Commonwealth v.
Hockenbury, 549 Pa. 527, 533, 701 A.2d 1334, 1337 (1997).
Each prong of this test must be met for compulsory joinder to
apply.
Fithian, 961 A.2d at 72 (underline added for emphasis).
In the instant case, the Commonwealth conceded that the first and
third prongs articulated in 18 Pa.C.S.A. § 110 and Fithian had been met.
Upon review, we find that the Honorable Joseph J. Matika, sitting as the trial
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court, has provided a thoughtful analysis, concluding that the second and
fourth prongs (whether Appellant’s offenses arose from the same criminal
episode and in the same judicial district as the former prosecution) were not
met. In explaining his conclusion, Judge Matika has authored a
comprehensive and well-reasoned opinion in which he artfully applies
pertinent statutory and case law to the facts of record in this case, such that
further commentary by this Court would be redundant. Accordingly, we
adopt Judge Matika’s September 11, 2014 opinion as our own in disposing of
this appeal.
Order affirmed. Jurisdiction relinquished. Case remanded for further
proceedings.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/13/2015
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'
IN THE COURT OF COMMON PLEAS OF CARBON COUNTY, PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA
vs. No. CR 340-2012
No. CR 343-2012
FREDERICK ANDREW POSTIE,
Defendant
.Jean A. EngJ_er., Esquire Counsel for Commonwealth
.Assistant: t7!.L~-C'.L.::.Lct Attorney
Frederick A. Postie Pro Se
MEMORANDUM OPINION
Matika, J. - September H , 2014
On July 15, 2014, this Court issued an Order of court
denying and dismi·ssing Defendant's "Motion to Dismiss Pursuant
to Section 110 of the Crimes Code." Defendant, subsequent to
that order, and on the eve of trial, appealed this Court's
decision. This memorandumopinion is offered to the Superior
Court, in accordance with Pennsylvania Rule of Appellate
Procedure 1925 (a), ·to expand upon the brief holding and
1
rationale set forth in the July 15, 2014 order. Respectively,
1
A defendant is entitled to an immediate interlocutory appeal as of right
from an order denying a non-frivolous motion to dismiss on double jeopardy
grounds. Commonwealth v. Orie, 22 A.3d 1021 (Pa. 2011); see also,
Commonwealth v. Feaser, 723 A. 2d 197 (Pa. Super. Ct. 1999) (Pretrial orders
denying double jeopardy claims are immediately appealable in absence of
written finding of frivolousness by the hearing court.} Moreover, a claim
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this Court recommends to the Honorable Superior Court to dismiss
Defendant's appeal accordingly.
FACTUAL AND PROCEDURAL BACKGROUND
The pertinent facts in these two companion cases and the
relevant case in Schuylkill County are neither lengthy nor
complex. In later February of 2012, Police Officer Lori
Lienhard, of the Summit Hill Police Department, interviewed the
Defendant as it related to various burglaries -·ci?at occurred in
Carbon and Schuylkill Counties. After admitting his involvement
in these burglaries, a plethora of charges were filed against
the Defendant in both counties.
More specifically, the Schuylkill County District
Attorney's Office charged the Defendant with: two counts of
criminal conspiracy, 2 four counts of burglary, 3
eight counts of
criminal trespass,4 four counts of theft by unlawful taking or
5 6
disposition, four counts of receiving stolen property, four
that the compulsory joinder statute prohibits a subsequent prosecution of the
defendant implicates doubl e jeopardy principles. See, Commonwealth v.
Schmidt, 919 A.2d 241 (Pa. Super. Ct. 2007).
2
18 Pa.C.S.A. § 903 (a} {J.).
3
18 Pa.C.S.A. § 3502(a).
4
Four of the counts of criminal trespass alleged that the Defendant broke
into a building or occupied structure, a violation of 18 Pa.C.S.A. §
3503 (a) (J.) (ii). The other four counts of criminal trespass assert that the
Defendant violated subsection (a) (l) (i}, that.being the Defendant entered and
remained in the building or structure.
5
18 Pa.C.S.A. § 392l(a).
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counts of criminal mischief,7 and three counts of loitering and
prowling at night time,8 for the alleged burglaries that occurred
at 268 East Main Street, Rush Township, 714 and 716 Claremont
Avenue, Rush Township, and 474 Fairview Street, Rush Township,
respectively. Moreover, the Schuylkill County District
Attorney's Office contended that these burglaries occurred
sometime between December 12, ·2011 and January 22, 2012.
Around the ~ame time, the Carbon County District Attorney's
Office filed similar charges against the Defendant, namely,
criminal conspiracy, burglary, theft by unlawful taking,
receiving stolen property, criminal mischief,9 and criminal
trespass. As alleged in the information to case indexed 340 CR
,·1,
2012, Defendant committed these various offenses at two
'
,.
residences located at 211 Yard Street, Nesquehoning, Carbon
County, and 134 Stock Street, Nesquehoning, Carbon County,
sometime between November 17, 2011 and December 3, 2011.
Pursuant to the case identified as 343 CR 2012, the Commonwealth
has alleged that during the time period of November 30, 2011
through December 21, 2011, Defendant committed the offenses
listed above at the residences located at: 99, 100, 116, and 495
West White Bear Drive, with all four residences located in
6
7
18 Pa.C.S.A. s 392S(a).
18 Pa.C.S.A. § 3304 (a) (S).
8
18 Pa.C.S.A. s 5506.
9
18 Pa.C.S.A. § 3304 (~) (2) .
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borough of Summit Hill, Carbon County.
Thereafter, Defendant stood trial for the charges in
Schuylkill County where, by a jury of his peers, he was
convicted on twenty-five of twenty-nine counts. Subsequent to
that trial, Defendant filed the instant compulsory joinder
motion here in Carbon County. In the motion, Defendant argues
that based upon his convictions in Schuylkill County on similar
charges, Carbon . County District Attorney is barred from
prosecuting him for alleged offenses that might have happened in
Carbon County.
After holding a hearing on the motion, this Court, by Court
Order dated July lS, 2014, denied Defendant's compulsory joinder
motion, to which the Defendant has appealed that order.
DISCUSSION
The compulsory joinder rule, as set forth in Section 110 of
the Pennsylvania Crimes Code, bars a subsequent prosecution if
all of the following criteria are present: 1) the former
prosecution .re su l.t.ed in an acquittal or convi·ction; 2) the
current prosecution was based upon the same criminal conduct or
arose from the same criminal episode; 3) the prosecutor in the
subsequent trial was aware of the charges before the first
trial; and 4) all charges were within the same judicial district
as the former prosecution. See, 18 Pa.C.S.A. s llO{l) {ii);
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Commonwealth v. Hockenbury, 701 A.2d 1334 (Pa. 1997). In the
case at bar, the Commonwealth concedes that the first and third
prongs of this test are met; thus, the only consideration left
for the Court was to determine if the second and fourth prongs,
those being whether the offense arose from the same criminal
episode and in the same judicial district as the former
prosecution, were present. If so, then Section 110 of the
Pennsy.l vania Crimes Code would forb.id the Carbon County District
Attorney's Office from prosecuting the Defendant on these
related offenses.
The second prong of the compulsory joinder rule, also
labeled as the logical relationship prong, compares the present
prosecution to the former to determine if both prosecutions
..
arose from the same criminal conduct or episode. See,
Commonwealth v. Nolan, 855 A. 2d 834 (Pa. 2004) . As directed by
the Pennsylvania Supreme Court in Commonwealth v. Hude, 458 A.2d
177, 181-82 (Pa. 1983), the courts must examine the logical and
temporal relationship between the criminal a.cts to determine
whether they constitute the same ''episode. " Subsequent readings
of Rude have commented that such analysis of this prong cannot
be made "by merely cataloguing simple factual similarities or
differences be tween the various off enses with which the
defendant was charged." Commonwealth v. Bracalielly, 658 A. 2d
755, 761 (Pa. 1995). In deciding the logical relationship prong
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J
of the compulsory j oinder rule, "mere de minimis duplication of
factual and legal issues is insufficient to establish a logical
relationship between offenses. Rather what is required is a
substantial duplication of issues of law and fact." Id.Accordingly, the courts should not construe the phrases
"single criminal episode" in a strict sense especially when
considering the policy reasons of compulsory joinder, namely to
l protect a ·person accused of cr Lme s from "'.r.h,;;, ~l')'.':/'F.:l:·>::"Ue:nt
i harassment resulting from being forced to undergo successive
I trials for offenses originating from the same criminal episode,
as well as for judicial economy purposes. Hude, 458 A. 2d at
180. "However, 'these policy concerns must not be interpreted
to sanction "vo Lume discounting."'" Commonwealth v. Reid, 35
A.3d 773, 776 (Pa. Super. Ct. 2012) (quoting Nolan, 855 A.2d at
840) .
In examining the "temporal" and "logical" relationship
between the charges in this County and the charges in Schuylkill
county, the Court finds that th~ two prosecutions are temporally
related as the two matters overlap each other in terms of the
dates these alleged crimes occurred. The alleged crimes in
Carbon County occurred between November 17, 2011 and December
21, 2011, while the crimes Defendant was found guilty of in
Schuylkill County occurring between December 12, 2011 and
January 13, 20·12.
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Turning to the issue of the logical relationship between
the two prosecutions, there is some duplication between the two
matters; however, a substantial duplication of fact and law
between the matters in Carbon County and the former prosecution
in Schuylkill County does not exist. In this subsequent
prosecution of the Defendant, the alleged victims are all
different from the victims in Schuylkill County, as are all of
the Locat.Lons of the alleged burglaries, and thu...s-``ach required
different investigations by the police. See, Commonwealth v.
Spatz, 756 A.2d 1139, 1159 (Pa. 2000) (Spatz II) {Pennsylvania
Supreme Court ruled the subsequent action was not barred by
Section 110 of the compulsory joinder statute where three
homicides occurred within a three-day period as "there were
three victims in three different counties requiring three
different investigations, and different witnesses [] necessary
[for] each trial."); see also Hude, 458 A. 2d at 183 (The law and
facts between the two prosecution did not LnvoLve a situation
where different evidence was required as the Commonwealt:h's case
rested upon the credibility of a single witness.)
The Court views Defendant's alleged conduct to be that of
multiple episodes of the same criminal enterprise rather than
that of a single criminal episode. From mid-November of 2011
through mid-January of 2012, the Defendant allegedly burglarized
various properties, some being residences and others unoccupied
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structures, within a certain locality. The main commonality
between these properties was that they were vacant and they
contained copper, copper piping, copper wiring, or other various
scrap metal. As the Nolan Court so cleverly stated, '' [m] uch
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
enterpri.se ... Such is the scenario here; Ide r endaar l starred in
his own series with multiple episodes in each county." Nolan,
855 A.2d at 840.
Defendant, in his motion and argument to the Court, cited
to this Court's order dated September 9, 2013, in which the
Court addressed and disposed of Defendant's omnibus pre-trial
motion. Defendant points out that in footnote two of that
order, the phrase "single criminal episoden appears and thus, as
Defendant argued, since the Court concluded in the prior hearing
that the prosecutions in Carbon and Schuylkill Counties are
derived from the same criminal episode, the Court must likewise
conclude the same for this current motion. The Court finds it
is necessary to note that it was Defendant who defined these two
prosecutions as a single criminal episode as the sentence in
which Defendant is referring to reads: "Defendant recognized
that the two suppression motions are based upon a single
criminal episode." Nowhere did this Court make such a finding.
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More importantly, the issue in the previous hearing. was
whether this Court, in Carbon County, must adopt and incorporate
the ruling of Judge Domalakes in Schuylkill County to
Defendant's suppression motion, and if so, does the Defendant
have new evidence to present that was previously unavailable to
him at the first suppression hearing in Schuylkill. In citing
to Commonweal
th v. Lagana, 509 A. 2d 863 (Pa. 1986) and
Cozmnonwealth v. Camperson, 650 A.2d 65 (Pa. Super. Ct. 1994),
the Court answered that issue in the affirmative as the
Pennsylvania Supreme Court ruled that \\where two prosecutions
arise out of a single search and/or seizure, a decision by a
suppression judge during the first prosecution can, upon the
motion of the previous prevailing party, become part of the
second prosecution. 11
Lagana, 509 A. 2d at 866. At no point
prior to this order has this Court addressed the issue of
whether the prosecutions in Schuylkill County and Carbon County
originate from the same criminal episode.
As <;). re·s1,1l t, of the
f. • -·· • \
Court' • •
finding that ~
the. char qes in Carbon
County have not arose from the same criminal episode as the
charges in Schuylkill County, not all four criteria of
compulsory j oinder are present. Consequently, this Court need
not inquire into the fourth prong of this test, that being that
all charges in these two prosecutions were within the same
judicial district as the former prosecution. However, for
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purposes of being thorough, and since Defendant's appeal
implicates double jeopardy principles which have severe
ramifications if infringed upon, the Court feels it is necessary
to also address the compulsory joinder statute's fourth prong.
See, Commonwealth v. Rightley, 617 A.2d 1289 (Pa. Super. Ct.
1992) . •·
To fully understand what the General Assembly meant by the
phrase "judicial district,n it is necessary to review the
context that prompted the legislature to amend the former
compulsory j cinder statute. In Commonwealth v. McPhail, 692
A.2d 139 {Pa. 1997), the Pennsylvania Supreme Court, in a
plurality decision, held that Section 110· mandated that drug
transactions that occurred in two counties, which did constitute
a single criminal episode, had to be tried in a single
proceeding. Id. at 144-45. The McPhai 1 Court reasoned that
"counties are not separate sovereigns and do not derive their
power to try drug cases from independent sources of
power. " . Id. ·4tt 142.
•,". The;refore, "[t]heir subject matter
jurisdiction flows from the sovereign Corrmonwealth of
Pennsylvania and is not circumscribed by county territorial
limits." Id.
In reaching its conclusion, the McPhail Court analyzed the
Pennsylvania Constitution, and more specifically Article V
Section 5; this section reads in relevant part that: '' [t] here
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shall be one court of common pleas for each judicial district .
having unlimited original jurisdiction in all cases except
as may otherwise be provided by law." Id. at 141.
As stated by the Pennsylvania Supreme Court in Commonwealth
v. Fithian, 961 A.2d 66 (Pa. 2008), "[i]n direct response to our
Court's decision in McPhail, the General Assembly amended
Section 110 (1) (ii) to its current language. Specifically, the
legi,slo.t~r.e in pciX&:graph (l} (ii) s-. J.bs·tit.uted . .the: phl:as~ 'was
within the jurisdiction of a single court' with 'occurred within
the aame judicial district as the former prosecution.'" Id. at
76. (internal citation omitted) . Accordingly, the Fithian Court
concluded that the legislative intent of the compulsory joinder
s t atute was to limit mandatory j cinder to only those offenses
occurring in a single judicial district. Id. at 77.10 Moreover,
the Court held that 11 the General Assembly intended to preclude
from the reach of the compulsory joinder statute those current
offenses that occurred wholly outside of the geographic
boundaries of the judicial district in which the former
prosecution was brought, even though part of a single criminal
episode." Id.
10
The Fithian Court defined judicial district to mean "the geographical area
established by the General Assembly in which a court of commonpleas is
located." Fithian, 961.A,2d at 75.
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In evaluating all the charges in both Carbon County cases,
there can be no dispute that all the charges, except for the
criminal conspiracy charges, occurred in Carbon County, and thus
"wholly outside of the geographic boundaries of the judicial
d i s t ri c t in which the former prosecution was brought," that
being Schuylkill County. The crimes that the ·carbon County
District Attorney's Office charged the Defendant with are all
specifiG to certain properties, properties that are located
entirely in Carbon County. Thus, the elements for the crimes of
burglary, theft by unlawful taking, receiving stolen property,11
criminal mischief, and criminal trespass could have only
occurred in Carbon County, which is a separate judicial district
then Schuylkill County .12 Consequently, Defendant's contention
that the crimes that the Carbon County District Attorney's
Off ice charged him with, save for the conspiracy charges, are
meritless, for the reasons stated above.
Analogous to the charges before the Fithian Court, this
Court too had to consider whether the charges of criminal
conspiracy brought forth by the Carbon County District
1:
Although conceivably the charges of rece1v1ng stolen property could be
asserted against the Defendant for property that was stolen in Schuylkill
County and Defendant received the property within the carbon County boarder,
or vise-a-verse. However, the informations in both Carbon County cases and
Schuylkill county case do not charge such a scenario.
12
Similarly, the Schuylkill County District Attorney's Office charged the
Defendant with certain crimes that were only associated to a particular
property located in Schuylkill County.
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Attorney's Office were to be classified as occurring within the
same judicial district as Schuylkill County. As the Fithian
Court stated, "prosecution for criminal conspiracy may be
brought in any county where the unlawful combination was formed,
or in any county where an overt act was committed by any of the
conspirators in furtherance of the unlawful combination." Id.
at 78 (citing Commonwealth v. Thomas, 189 A.2d 255, 258 (Pa.
1·963) )• .
In Fithian, the Court permitted the subsequent prosecution
of the defendant for criminal conspiracy charges even though the
charges could have been brought against the defendant in the
former prosecution. Fithian, 961 A.2d at 79. The Court
affirmed that "the proper analysis, pursuant to our
interpretation of Section 110 (1) (ii), focuses upon whether the
offense occurred within the same judicial district. As these
offenses took place solely within [the former] county, they did
not occur 'within the same judicial district as the former
prosecution.'" Id.
At the hearing before this Court on the instant motion, the
Defendant only offered the transcript from the trial in
Schuylkill County. In reading the transcript, none of the
witnesses, which included Defendant's co-conspirators and the
Defendant himself, testified that there was a global agreement,
or conspiracy, to burglarize specific houses located in both
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Carbon and Schuylkill Counties. Moreover, as it related to the
Schuylkill County charges of criminal conspiracy, none of the
witnesses testified, whether explicitly or implicitly, that
either the agreement· or any overt act occurred within the
borders of Carbon County. Thus, in reading the transcript, and
the Defendant not proffering any additional evidence to this
Court at the hearing on his motion other than the transcript
from -t.he trial in Schuylkill County, this Court gleaned that all
the elements of the criminal conspiracy charges filed by the
Carbon County District Attorney's Off ice occurred within Carbon
County or are not based upon the same conduct as the criminal
conspiracy charges brought forth by Schuylkill County.
Accordingly, in addition to not proving that the charges in
Schuylkill and Carbon Counties are of the same criminal episode,
Defendant was also unsuccessful in establishing that the charges
in this subsequent prosecution are charges that were within the
same judicial district as the former prosecution, that being
Schuylkill County.
CONCLUSION
Based upon the foregoing, this Court respectfully asks that
Defendant's appeal be dismissed as the compulsory joinder
statute does not bar the Carbon County District Attorney's
Office from prosecuting the Defendant. Accordingly, this Court
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,.
respectfully recommends that this Court's order dated July 15,
2014 dismissing Defendant's compulsory joinder motion, be
affirmed.
BY THE COURT:
J-Oeph
~ J. Matika, J.
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