Com. v. Forrester-Westad, J. ( 2022 )

J-A05038-22
2022 PA Super 150COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
JOSHUA CHRISTIAN FORRESTER- : No. 893 MDA 2021
WESTAD :
Appeal from the Order Entered June 18, 2021
In the Court of Common Pleas of Snyder County Criminal Division at
No(s): CP-55-CR-0000160-2020
BEFORE: OLSON, J., KUNSELMAN, J., and STEVENS, P.J.E.*
OPINION BY OLSON, J.: FILED: SEPTEMBER 1, 2022
The Commonwealth appeals from the June 18, 2021 order that granted
a motion filed by Joshua Christian Forrester-Westad (“Forrester-Westad”) to
withdraw his guilty plea and quash the criminal information filed against him
in the Court of Common Pleas of Snyder County. We affirm.
The trial court summarized the factual history as follows:
[On January 17, 2020, Forrester-Westad] was released from an
inpatient rehabilitation facility in western Snyder County[,
Pennsylvania. Forrester-Westad] then walked approximately 15
miles to the Middleburg Auction Barn[, located in Snyder County,]
and stole a 1986 Ford truck. Inside the truck were a cordless drill,
cordless impact gun[,] and bank bag.
[Forrester-Westad] then drove the [truck] to Luzerne County[,
Pennsylvania,] and was stopped by the Kingston Police
Department [on February 9, 2020]. According to the affidavit of
probable cause[,] the Kingston Police Department interviewed
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* Former Justice specially assigned to the Superior Court.
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[Forrester-Westad] at which time he admitted to taking the
[truck] in Snyder County and driving it to Luzerne County.
The Kingston Police Department[, in Luzerne County,] and the
Middleburg Police Department[, in Snyder County,] were aware of
[Forrester-Westad’s] actions in both counties.
Trial Court Opinion, 9/22/21, at 2 (extraneous capitalization omitted).
On February 12, 2020, Forrester-Westad was charged in Snyder County
with two counts of receiving stolen property and two counts of theft by
unlawful taking.1 On May 29, 2020, Forrester-Westad pled guilty to one count
of receiving stolen property in Luzerne County stemming from his traffic stop
involving the aforementioned truck and was sentenced the same day.
Thereafter, in Snyder County, Forrester-Westad failed to appear for his
preliminary hearing on June 3, 2020, and for his formal arraignment on
October 12, 2020. At a bench warrant hearing on November 9, 2020,
Forrester-Westad was formally arraigned and advised of his right to retain
counsel. That same day, the Commonwealth amended its criminal
information, charging Forrester-Westad in Snyder County with one count each
of receiving stolen property and theft by unlawful taking.
This case was scheduled for jury selection on January 11, 2021, which
was ultimately cancelled due to the COVID-19 global pandemic. Nonetheless,
the trial court held a status conference on January 11, 2021, at which
Forrester-Westad appeared pro se via video from the Luzerne County prison.
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1 18 Pa.C.S.A. §§ 3925(a) and 3921(a), respectively.
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That same day, Forrester-Westad pled guilty in Snyder County to one count
of theft by unlawful taking.
On June 1, 2021, and prior to imposition of Forrester-Westad’s Snyder
County sentence, Forrester-Westad’s counsel, Theron J. Solomon, Esquire
(“Attorney Solomon”), filed a motion to withdraw Forrester-Westad’s guilty
plea and quash the criminal information.2 Forrester-Westad sought to
withdraw his guilty plea based upon 18 Pa.C.S.A. § 110, alleging that “[t]he
offense [he] plead[ed] guilty to in Luzerne County is of the same course of
conduct and criminal episode as he is now being prosecuted for in Snyder
County.” Motion to Withdraw Guilty Plea and Quash the Information, 6/1/21
at ¶¶ 8-9.
The trial court held a hearing on Forrester-Westad’s motion on June 18,
2021. Following said hearing, the trial court entered an order granting
Forrester-Westad’s motion to withdraw his guilty plea and quash the criminal
information. The Commonwealth filed a timely notice of appeal and an
amended notice of appeal. Although not ordered to do so, the Commonwealth
filed a concise statement of errors complained of on appeal, in accordance
with Pa.R.A.P. 1925(b), on July 30, 2021. The trial court filed its Rule 1925(a)
opinion on September 22, 2021.
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2 Attorney Solomon entered his appearance as counsel-of-record for
Forrester-Westad in the Court of Common Pleas of Snyder County on January
25, 2021. Attorney Solomon also represented Forrester-Westad in the
criminal matter before the Court of Common Pleas of Luzerne County.
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The Commonwealth raises the following issues for our review:
1. Whether the trial court abused its discretion in permitting
[Forrester-Westad] to withdraw his guilty plea and [in]
quash[ing] the [criminal] information despite the fact that
both requests were untimely?
2. Whether the trial court abused its discretion in permitting
[Forrester-Westad] to withdraw his guilty plea when
[Forrester-Westad] failed to plead or prove that he had a
fair and just reason to do so and that the Commonwealth
would not suffer substantial prejudice as a result of the plea
being withdrawn?
3. Whether the trial court abused its discretion in quashing the
[criminal] information despite the fact that
[Forrester-Westad] previously entered a plea of guilty which
should have resulted in a waiver of his claims under 18
Pa.C.S.A. § 110?
4. Whether the trial court abused its discretion in quashing the
[criminal] information pursuant to 18 Pa.C.S.A. § 110?
Commonwealth’s Brief at 2-3 (extraneous capitalization omitted).3
Our standard of review of a trial court’s decision to grant a motion to
withdraw a guilty plea is as follows:
A trial court's decision regarding whether to permit a guilty plea
to be withdrawn should not be upset absent an abuse of
discretion. An abuse of discretion exists when a defendant shows
any “fair and just” reasons for withdrawing his plea absent
“substantial prejudice” to the Commonwealth. In its discretion, a
trial court may grant a motion for the withdrawal of a guilty plea
at any time before the imposition of sentence. Pa.R.Crim.P.
591(A). Although there is no absolute right to withdraw a guilty
plea, properly received by the trial court, it is clear that a request
made before sentencing should be liberally allowed.
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3 We note that Forrester-Westad did not file an appellate brief with this Court.
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Commonwealth v. Elia, 83 A.3d 254, 261-262 (Pa. Super. 2013) (original
quotation marks and some citations omitted), appeal denied, 94 A.3d 1007(Pa. 2014).
Similarly,
A motion to quash a criminal information or indictment is
addressed within the sound discretion of the trial [court].
Discretion is abused when the course pursued by the trial court
represents not merely an error in judgment, but where the
judgment is manifestly unreasonable or where the law is not
applied or where the record shows that the action is a result of
partiality, prejudice, bias[,] or ill will.
Commonwealth v. Kane, 188 A.3d 1217, 1227 (Pa. Super. 2018) (citations,
original brackets, and quotation marks omitted), appeal denied, 197 A.3d
1180 (Pa. 2018).
Part I – Motion to Withdraw Guilty Plea
We begin with a discussion of the fundamental constitutional principles
of the right to counsel and the right to self-representation that are hallmarks
of our criminal justice system, as this discussion is dispositive of the
Commonwealth’s challenges to the portion of the order granting
Forrester-Westad’s motion to withdraw his guilty plea.4
“Both the right to counsel and the right to self-representation are
guaranteed by the Sixth Amendment to the United States Constitution and by
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4For the reasons discussed herein, we find the Commonwealth’s second issue,
and the portion of its first issue concerning the trial court’s decision to grant
Forrester-Westad’s motion to withdraw his guilty plea to be moot.
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Article I, Section Nine of the Pennsylvania Constitution. Deprivation of these
rights can never be harmless.” Commonwealth v. Johnson, 158 A.3d 117,
121 (Pa. Super. 2017), citing Commonwealth v. Payson, 723 A.2d 695, 700
(Pa. Super. 1999). Given the inherent importance of the right to counsel and
the right to self-representation, this Court has a duty to review, sua sponte,
whether a defendant waived his or her right to counsel knowingly, voluntarily,
and intelligently before proceeding in every critical stage of a criminal
proceeding, including, inter alia, a plea hearing.5 Johnson, 158 A.3d at 122
(stating, “[t]he inherent importance of the right to counsel justifies its
overwhelming protection and the rigorous requirements necessary to find
waiver”); see also Commonwealth v. Murphy, 214 A.3d 675, 679
(Pa. Super. 2019) (stating, “it is apparent that this Court has a duty to review
whether [a defendant] properly waived his[, or her,] right to counsel” (original
quotation marks omitted)).
“A [trial court’s] thorough inquiry into the accused's appreciation of both
the right to counsel and the right to represent oneself must be used in certain
summary proceedings, at trial, guilty plea hearings, sentencing, and every
‘critical stage’ of a criminal proceeding.” Johnson, 158 A.3d at 122(citations, original quotation marks, and original brackets omitted; emphasis
added). “A critical stage in a criminal proceeding is characterized by an
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5 We are cognizant that “once a defendant has made a competent waiver of
counsel, that waiver remains in effect through all subsequent proceedings in
that case absent a change of circumstances.” Johnson, 158 A.3d at 122.
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opportunity for the exercise of judicial discretion or when certain legal rights
may be lost if not exercised at that stage.” Id. (citation omitted). It is
well-established that “when a defendant seeks to waive the right to counsel,
the trial court is required to conduct, on the record, a full and complete waiver
colloquy to determine whether the defendant's waiver is knowing, voluntary,
and intelligent.”6 Commonwealth v. Brazil, 701 A.2d 216, 219 (Pa. 1997).
Pennsylvania Rule of Criminal Procedure 121 sets forth the minimum
requirements for a valid waiver-of-counsel colloquy as follows:
Rule 121. Waiver of Counsel
(A) Generally.
(1) The defendant may waive the right to be represented by
counsel.
(2) To ensure that the defendant's waiver of the right to counsel
is knowing, voluntary, and intelligent, the [trial court] or issuing
authority, at a minimum, shall elicit the following information from
the defendant:
(a) that the defendant understands that he or she has the
right to be represented by counsel, and the right to have
free counsel appointed if the defendant is indigent;
(b) that the defendant understands the nature of the
charges against the defendant and the elements of each of
those charges;
(c) that the defendant is aware of the permissible range of
sentences and/or fines for the offenses charged;
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6 A defendant’s request to waive counsel must be clear and unequivocal.
Commonwealth v. Davido, 868 A.2d 431, 438 (Pa. 2005), cert. denied, 546
U.S. 1020 (2005).
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(d) that the defendant understands that if he or she waives
the right to counsel, the defendant will still be bound by all
the normal rules of procedure and that counsel would be
familiar with these rules;
(e) that the defendant understands that there are possible
defenses to these charges that counsel might be aware of,
and if these defenses are not raised at trial, they may be
lost permanently; and
(f) that the defendant understands that, in addition to
defenses, the defendant has many rights that, if not timely
asserted, may be lost permanently; and that if errors occur
and are not timely objected to, or otherwise timely raised
by the defendant, these errors may be lost permanently.
(3) The [trial court] or issuing authority may permit the
attorney for the Commonwealth or defendant's attorney to
conduct the examination of the defendant pursuant to paragraph
(A)(2). The [trial court] or issuing authority shall be present
during this examination.
Pa.R.Crim.P. 121(A)(1-3). “A [trial] court's failure to conduct a valid colloquy
before allowing a defendant to proceed pro se constitutes reversible error.”
Commonwealth v. Floyd, 257 A.3d 13, 18 (Pa. Super. 2020). “[W]here the
[trial] court fails to conduct a waiver[-]of[-]counsel colloquy, a defendant's
alleged waiver of counsel is ineffective, even if the [trial] court [] appointed
standby counsel.” Id.Here, as part of Forrester-Westad’s hearing on January 11, 2021, the
following dialogue occurred between the trial court, Forrester-Westad, and the
Commonwealth:
[Trial Court]: [] We are here for a pre-trial conference[
and possible ]guilty plea hearing.
[Forrester-Westad] is participating by
[video] from the Luzerne County jail.
[Forrester-Westad] what are your
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intentions? Do you intend to enter a
[guilty] plea today or go to trial?
[Forrester-Westad]: I intend to [enter] a [guilty] plea but I'm
not sure if we're on the same - I'm not
sure what the - if we're on the same page
if you understand what I'm saying.
[Trial Court]: Nope. I have no idea what you're saying.
[Commonwealth]: Your Honor, if I may, for the benefit of the
court, [Forrester-Westad] indicated that
he has an attorney, [Attorney Solomon],
that he spoke to yesterday. I indicated to
him that I checked. [Attorney Solomon]
has not entered his appearance. So that
might be an issue we need to resolve.
[Trial Court]: We went down this road before didn't
we?[7]
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7 At Forrester-Westad’s arraignment hearing and hearing to set bail on
November 9, 2020, the trial court asked Forrester-Westad if he were
represented by an attorney, to which Forrester-Westad replied that he was
represented by Attorney Solomon. N.T., 11/9/20, at 3. The trial court then
stated, “Well, I don’t have anything in [the trial court case] file indicating that
you have an attorney.” Id. The trial court then proceeded to discuss the
Commonwealth’s amendment of the criminal information filed against
Forrester-Westad and, later, during the arraignment portion of the hearing,
the trial court informed Forrester-Westad as follows:
You have certain rights at this stage of the proceedings. The first
right is to be represented by an attorney. If you wish
court-appointed counsel, you must fill out an application and send
it to the public defender's office here in Snyder County. If you
wish court-appointed representation, you must fill that application
out and mail it today. If you don't, when we get to further
proceedings, if you want a continuance to get counsel, it's highly
unlikely I will agree to that unless you've applied for counsel
today. Do you understand that?
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[Commonwealth]: Yes.
[Trial Court]: So your attorney hasn't entered his
appearance, he's not here, I'm
proceeding. I don't know what's going on.
We did this once before. I continued it
back --
[Forrester-Westad]: I understand.
[Trial Court]: Okay. Back on December 22[, 2020,] it
was the same story. So are you entering
a [guilty] plea today or do I schedule you
to pick a jury on -
[Forrester-Westad]: I'd like to make a [guilty] plea but I
believe the [Commonwealth] spoke with
my attorney in the past. I'm not sure.
[Trial Court]: I don't know.
[Commonwealth]: Your Honor, the plea offer in the matter,
and I don't have notes that I spoke with
his attorney, and as a matter of practice,
I would not have spoken to [counsel] until
he entered his appearance, the plea offer
would be if he [pleaded] to Count 1 which
is theft of the [truck], then he would
receive a sentence in the bottom-half of
the standard range. [Forrester-Westad]
has some questions about what his prior
record score would be and he also
indicated that there are some
arrangements in the works for him to go
to another [rehabilitation center]
involving his Luzerne County cases,
although I have no knowledge about
those arrangements.
____________________________________________
Id. at 4-6 (extraneous capitalization omitted). Forrester-Westad replied,
“Yes, I’ll apply today.” To which, the trial court responded, “If you have your
own attorney that’s just fine,” and Forrester-Westad stated, “I’ll apply for
counsel in Snyder County.” Id.
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N.T., 1/11/21, at 2-3 (extraneous capitalization omitted).
Based upon a review of the record, although Forrester-Westad indicated
at his plea hearing that he wished to plead guilty in this matter, he was not
asked specifically whether, nor did he indicate that, he intended to waive his
right to counsel and wanted to proceed with self-representation. Id. Rather,
Forrester-Westad indicated to both the Commonwealth and the trial court that
he was represented by Attorney Solomon, that he believed Attorney Solomon
negotiated certain guilty plea arrangements with the Commonwealth, and that
he was uncertain whether the guilty plea agreement being represented to him
that day was, in fact, the same as the negotiated plea agreement.8 Id. Based
upon these circumstances and a review of the certified record, we cannot find
that Forrester-Westad clearly and unequivocally waived his right to counsel
before proceeding to enter a guilty plea. See Davido, 868 A.2d at 438.
More troublesome, however, is that even if the trial court believed that
Forrester-Westad intended to waive his right to counsel at the plea hearing,
the trial court failed to conduct a waiver-of-counsel colloquy before permitting
Forrester-Westad to plead guilty. Instead, the trial court simply stated, “So
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8 In its answer in opposition to Forrester-Westad’s motion to withdraw his
guilty plea and quash the criminal information, the Commonwealth concedes
that on December 7, 2020, Attorney Solomon contacted the Commonwealth
and “said he might be entering his appearance” on behalf of Forrester-Westad.
Commonwealth’s Answer in Opposition, 6/9/21, at 3 ¶e. In its answer, the
Commonwealth further stated that on December 7, 2020, it sent
Forrester-Westad “a letter noting the contact with Attorney Solomon,
suggesting that getting an attorney was advisable, and outlining the current
plea offer.” Id. at 3 ¶f.
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your attorney hasn't entered his appearance, he's not here, I'm proceeding.”9
N.T., 1/11/21, at 2. It cannot be over-emphasized, that a trial court bears
the ever-important duty to make a “searching and formal inquiry into the
questions of (1) whether the defendant is aware of his[, or her,] right to
counsel or not[,] and (2) whether the defendant is aware of the consequences
of waiving that right or not.” Commonwealth v. Starr, 664 A.2d 1326, 1335
(Pa. 1995); see also Commonwealth v. Houtz, 856 A.2d 119, 124
(Pa. Super. 2004) (stating, “[r]egardless of the defendant's prior experience
with the justice system, a penetrating and comprehensive colloquy is
mandated” (citation and original quotation marks omitted)). The trial court’s
election to proceed without first conducting a waiver-of-counsel colloquy
constitutes reversible error. For this reason, we affirm that part of the June
18, 2021 order that granted Forrester-Westad’s motion to withdraw his guilty
plea.
Part II – Motion to Quash Criminal Information
The Commonwealth also challenges the portion of the June 18, 2021
order that granted Forrester-Westad’s motion to quash the criminal
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9 In its Rule 1925(a) opinion, the trial court admirably expressed its concern
that “it pressured [Forrester-Westad] into entering an uncounseled guilty plea
without having the benefit of counsel.” Trial Court Opinion, 9/22/21, at 3.
The trial court further stated, “[a]lthough [Forrester-Westad] made
representations of this [nature] in the past, the [trial c]ourt’s concern is that
the [trial c]ourt put [Forrester-Westad] in a position of making an uncounseled
decision in violation of his constitutional rights to counsel.” Id.- 12 -
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information on the ground that Forrester-Westad is not entitled to relief under
18 Pa.C.S.A. § 110. Commonwealth’s Brief at 10-12.
To reiterate, Forrester-Westad was charged, ultimately, with one count
of receiving stolen property and one count of theft by unlawful taking in
Snyder County. Forrester-Westad pleaded guilty to one count of receiving
stolen property in Luzerne County. The Pennsylvania Crimes Code defines the
offenses of receiving stolen property and theft by unlawful taking, in pertinent
part, as follows:
§ 3925. Receiving stolen property
(a) Offense defined.--A person is guilty of theft if he
intentionally receives, retains, or disposes of movable property of
another knowing that it has been stolen, or believing that it has
probably been stolen, unless the property is received, retained, or
disposed with intent to restore it to the owner.
18 Pa.C.S.A. § 3925(a) (emphasis added).
§ 3921. Theft by unlawful taking or disposition
(a) Movable property.--A person is guilty of theft if he
unlawfully takes, or exercises unlawful control over, movable
property of another with intent to deprive him thereof.
18 Pa.C.S.A. § 3921(a) (emphasis added).
Importantly, Section 3902 of the Crimes Codes states,
Conduct denominated theft in this chapter [(Chapter 39 of the
Crimes Code, which includes the offenses of receiving stolen
property and theft by unlawful taking)] constitutes a single
offense. An accusation of theft may be supported by evidence
that it was committed in any manner that would be theft under
this chapter, notwithstanding the specification of a different
manner in the complaint or indictment, subject only to the power
of the court to ensure fair trial by granting a continuance or other
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appropriate relief where the conduct of the defense would be
prejudiced by lack of fair notice or by surprise.
18 Pa.C.S.A. § 3902 (emphasis added).
Thus, for purposes of our review in the case sub judice, the criminal
charges of receiving stolen property and theft by unlawful taking are
considered to be the same offense, which we shall refer to simply as “theft,”
pursuant to Section 3902. Id.; see also Commonwealth v. Young, 35 A.3d
54, 63 (Pa. Super. 2011), appeal denied, 48 A.3d 1249 (Pa. 2012) (stating
that, a conviction of either, or both, receiving stolen property and theft by
unlawful taking “may be used to punish the same course of conduct” and that
each criminal offense is a lesser-included offense of the other).
Section 110 of the Crimes Code, which codifies the compulsory joinder
rule,10 states, in pertinent part, as follows:
§ 110. When prosecution barred by former prosecution
for different offense
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10Our Supreme Court’s decisions in Commonwealth v. Campana, 304 A.2d
432 (Pa. 1973), vacated and remanded, 414 U.S. 808 (1973) (“Campana I”)
and Commonwealth v. Campana, 314 A.2d 854 (Pa. 1974), cert. denied,
417 U.S. 969 (1974) (“Campana II”)
ultimately designed a rule of compulsory joinder which required
the criminal offenses arising from the same criminal episode to be
disposed of in one prosecution. In the interim between
Campana I and Campana II, the legislature promulgated
[S]ection 110 which set forth when prosecution would be barred
by former prosecution for a different offense.
Commonwealth v. Hude, 458 A.2d 177, 179-180 (Pa. 1983) (citation
omitted).
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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.A. § 110(1)(ii) (emphasis added). Thus, Section 110 bars a
subsequent prosecution if each prong of the following test is met:
(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.[11]
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11 We note that within the Commonwealth of Pennsylvania, Snyder County
and Union County comprise Judicial District 17. Luzerne County is in Judicial
District 11. See https://www.pacourts.us/courts/courts-of-common-
pleas/judicial-districts (last visited June 10, 2022).
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Commonwealth v. Fithian, 961 A.2d 66, 72 (Pa. 2008); see also
Commonwealth v. Reid, 77 A.3d 579, 582 (Pa. 2013).
[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); see also Fithian, 961 A.2d at 75-76. “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.” Commonwealth v. Schmidt, 919 A.2d
241, 245 (Pa. Super. 2007), appeal denied, 936 A.2d 40 (Pa. 2007).
Here, the Commonwealth asserts that Forrester-Westad failed to satisfy
the second prong of the Fithian test. Commonwealth’s Brief at 11-12. In so
arguing, the Commonwealth concedes that Forrester-Westad satisfied the
remaining three prongs of the test.12 As such, we limit our review to
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12 In particular, we note that Forrester-Westad satisfied the fourth prong of
the four-part Fithian test because the crimes of receiving stolen property and
theft by unlawful taking constitute a single offense, “theft,” pursuant to
Section 3902. Thus, the single offense of “theft” of the truck occurred in both
Snyder County and in Luzerne County. As such, the current offense of “theft”
of the truck occurred within the same judicial district as the former prosecution
for “theft” of the same truck See Fithian, 961 A.2d at 77 (stating, “the
compulsory joinder statute extends to those offenses which occurred in more
than one judicial district, when one of those judicial districts was where the
former prosecution was brought).
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examining whether the trial court erred in determining Forrester-Westad
satisfied the second prong of the Fithian test. See N.T., 6/18/21, at 15-16.
When examining whether a defendant has satisfied the second prong,
which is also known as the logical relationship prong, courts should consider
both the “‘temporal’ and ‘logical’ relationship between the charges to
determine whether they arose from a ‘single criminal episode.’” Reid, 77 A.3d
at 582, citing Hude, supra. The logical relationship prong of the test requires
“a substantial duplication of issues of law and fact.” Reid, 77 A.3d at 582-583
(reasoning that, “an absolute identity of factual backgrounds” is not required
but “a mere de minimis duplication of factual and legal issues is insufficient to
establish a logical relationship”).
In granting Forrester-Westad’s motion to quash the criminal
information, the trial court stated,
Law enforcement in Luzerne County was aware that the [truck]
was stolen in [Snyder County]. The [Commonwealth] made an
issue that there are different witnesses [for each prosecution].
The [trial] court disagrees. In the Luzerne County prosecution,
[the Commonwealth] would have had to [establish] that the
[truck] was stolen so [it] could have required the testimony of the
victim[, who was from Snyder County]. [The Commonwealth]
would have assumably had to place [Forrester-Westad] in [Snyder
County] so [an individual from the inpatient rehabilitation facility
in Snyder County] would have been a witness. And from that
point forward, all the witnesses were [from] Luzerne County. The
[trial] court does not find that the witnesses would have been
different.
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N.T., 6/18/21, at 16 (extraneous capitalization omitted).13
Upon review, we concur with the trial court that Forrester-Westad
satisfied the second prong of the four-part Fithian test, and Section 110 bars
the prosecution of the theft charges in Snyder County. As the trial court noted,
and the record supports, the evidence necessary to convict Forrester-Westad
of the theft charges in both Luzerne County and Snyder County is substantially
the same. In order to place Forrester-Westad in Snyder County on the date
he unlawfully took the truck from the auction barn lot, both prosecutions would
have needed to provide testimony from an individual from the inpatient
rehabilitation facility located in Snyder County where Forrester-Westad was
released on the date of the theft. Moreover, both prosecutions would have
needed to provide the testimony of the truck owner to demonstrate that the
truck was indeed stolen and that Forrester-Westad was not lawfully operating
the truck with the owner’s permission. Finally, both prosecutions would have
benefited from introducing the testimony from police officers involved in
investigating the taking of the truck in Snyder County and operating the truck
in Luzerne County at the time of the traffic stop. Therefore, we discern no
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13 The Commonwealth baldly asserts, without specificity or detail, that “[t]he
prosecution in Snyder County involves witnesses that have no relevance to
the Luzerne County prosecution. The charges of theft [by unlawful taking] in
Snyder County and of receiving stolen property in Luzerne County, albeit
involving the same truck, rely on evidence independent of from one another.”
Commonwealth’s Brief at 12.
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J-A05038-22
abuse of discretion in the trial court order granting Forrester-Westad’s motion
to quash the criminal information.14
Order affirmed.
Judge Kunselman joins this Opinion.
President Judge Emeritus Stevens files a Dissenting Statement.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 09/01/2022
____________________________________________
14 Moreover, we find Forrester-Westad is entitled to quashal of the criminal
information on the ground the prosecution in Snyder County violated the
Double Jeopardy Clause, which prohibits successive prosecutions and multiple
punishments for the same offense. See Commonwealth v. Barber, 940
A.2d 369, 377 (Pa. Super. 2007) (stating, “[t]he double jeopardy protections
afforded by the United States and Pennsylvania Constitutions are coextensive
and prohibit successive prosecutions and multiple punishments for the same
offense” (original quotation marks and citation omitted)), appeal denied, 960
A.2d 835 (Pa. 2008). Because receiving stolen property and theft by unlawful
taking constituted a single offense, “theft”, pursuant to Section 3902, the
Double Jeopardy Clause prohibits Forrester-Westad from being prosecuted for
theft of the truck in Snyder County when he was already convicted of theft of
the same truck in Luzerne County.
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