HomeMy WebLinkAbout99-0471 CriminalCOMMONWEALTH
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CURTIS D. TURANE
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 99-0471 CRIMINAL TERM
IN RE: OPINION PURSUANT TO PA. R.A.P. 1925
OLER, J., February 3, 2000.
In this armed robbery case, Defendant has filed an interlocutory appeal~ from a
pretrial order denying his motion to dismiss the prosecution on grounds of double
jeopardy. Defendant's motion contended that the prosecution in this county was barred
by Defendant's prior convictions for three robberies in another county.
On the appeal, Defendant is pursuing the double jeopardy argument advanced in
this court, as indicated in his statement of matters complained of on appeal:
Defendant herein has filed this interlocutory appeal based upon
his claims of double jeopardy protections and related collateral
estoppel protections under the Pennsylvania and United States
Constitutions. This matter was litigated in a hearing ... and a brief
was submitted in support of Defendant's motion.
This opinion in support of the court's denial of Defendant's motion to dismiss the
prosecution is written pursuant to Pennsylvania Rule of Appellate Procedure 1925(a).
STATEMENT OF FACTS
In this case, Defendant has been charged with robbery, simple assault, terroristic
threats, and theft by unlawful taking or disposition 'as the result of an alleged incident on
Sunday, December 13, 1998.2 The complaint was filed by Detective Sergeant Wiliam H.
Goodhart of the Middlesex Township Poli~e Department in Cumberland County,
~ To the extent that a defendant's motion to dismiss a prosecution on state or federal
double jeopardy grounds is not frivolous, an immediate appeal from its denial has been
held to be permissible. See Commonwealth v. Wolfe, 454 Pa. Super. 93, 95 n.3,684 A.2d
642, 643 n.3 (1996).
2 Information, filed April 6, 1999.
Pennsylvania, on February 19, 1999.3 Defendant was formally arraigned on these
Cumberland County charges on April 27, 1999.4
No omnibus pretrial motion was filed on behalf of Defendant. Trial was
commenced on September 8, 1999, but a mistrial was declared, pursuant to an agreement
of counsel, due to a communication of a witness with a juror.5 On October 5, 1999, prior
to commencement of a second trial, Defendant filed the motion to dismiss on double
jeopardy grounds which is the subject of this opinion.
The motion to dismiss referred to "other robberies in York County on or about
[the] same date" as the alleged Cumberland County robbery,6 and contended "that it is a
violation of [Defendant's] constitutional rights under the State and Federal constitutions,
and that he is placed twice in jeopardy, where the Commonwealth has failed to prosecute
this case as a part of the York County proceedings and that he should not now be
prosecuted separately on this charge." A hearing was held on Defendant's motion to
dismiss on November 4, 1999.
The record demonstrates that Defendant pled guilty to three robberies (and related
offenses) in York County on May 4, 1999.7 He was sentenced on those charges on June
14, 1999.8 At sentencing, he attributed the offenses to a cocaine habit.9
3 See District Justice Transcript, filed March 8, 1999.
4 Order of Court, April 27, 1999 (Bayley, J.).
5 See Order of Court, September 9, 1999.
6 Defendant's Motion To Dismiss--Double Jeopardy, paragraph 2.
7 Commonwealth's Exhibit 1, Hearing, November 4, 1999.
8 Commonwealth's Exhibit 1, Hearing, November 4, 1999. The sentences, the most
severe of which was of a term of imprisonment of not less than six-and-a-half years nor
more than thirteen years, were made to run concurrently with each other.
9 Commonwealth Exhibit 1, Hearing, November 4, 1999.
2
The York County offenses had occurred on December 15, 1998, December 17,
1998, and December 21, 1998.l° The Cumberland County robbery, as noted previously,
allegedly occurred on December 13, 1998.
The December 13, 1998, Cumberland County incident purportedly occurred in
Middlesex Township, Cumberland County, and is described in an affidavit of probable
cause accompanying the criminal complaint as follows:
On 12-13-98 at 1658 hrs the victim was working the front desk at the
Travelodge Hotel. A black male, 20's dark skin wearing a black
jacket with yellow on the back, 5' 10" medium build entered the front
lobby. He asked if he could get a room the victim asked for how
many people. He said two and she walked behind the counter. As she
did the black male displayed a black in color hand gun and held it in
both hands. The victim could not tell if it was a revolver or semi-
automatic pistol. The male told the victim, "Give me your money or I
will blow a hole in you". After the victim handed the male the money
from the drawer he left the building. The male got into the passenger
side of a small gray car, unknown make or model, that had turned
around in the parking lot. The vehicle then left the parking lot but the
victim did not see what direction it went. l~
The December 15, 1998, York County incident occurred in York City, York
County, Pennsylvania, and is described in an affidavit of probable cause accompanying
the criminal complaint as follows:
On 12-15-98 at 1558 hrs, Arleen Hoffers clothing store located at 313
E. Market st was robbed by an unk suspect. The victims Arlene
Bambling and Sue Hoffman stated that an unk suspect entered the
store and went to the counter where he handed Bambling a note
stating "This is a stickup give up the money or you'll get shot.". The
store owner, Arleen Hoffer walked towards the counter and she was
grabbed by the suspect around her neck and pulled around the
counter. He put something into the small of her back and said "Give
me your money or I will shoot you." Hoffer told the suspect that they
did not have any money. The suspect then ran to the front of the store
and grabbed Hoffman's pocketbook as he left the store.
N.T. 14, Hearing, November 4, 1999.
See District Justice Transcript, filed March 8, 1999.
On 12-22-98 at approx 1600 hrs Arleen Hoffer was shown a
photoline up at her store. The line up consisted of six blk males, and
Hoffer picked out Curtis Denzel Turane as the suspect who robbed her
storeon 12-15-98 .... 12
The December 17, 1998, York County incident occurred in Spring Garden
Township, York County, Pennsylvania, and is described in an affidavit of probable cause
accompanying the criminal complaint as follows:
On December 17, 1998, at approx. 1411 hrs, officers of the Spring
Garden Twp. Police Department were dispatched to the Rent A Center
store located at 1041 Mt. Rose Ave. for a robbery that had just
occurred. This affiant, as well as other patrol officers responded to
the area. The employees of the Rent A Center advised that a black
male came into their store and walked around the store like a
customer and then went to the customer service counter area and
leaped over it. After leaping the counter, he produced a black colored
handgun and pointed at several of the employees and stated that this
was a stick up. After pointing the gun at one employee's head and
instructing her to stop writing, he also pointed the gun at another
employee and and ordered him to hang up the telephone he was
talking to. He then instructed another employee to open the two cash
drawers that were located at the customer service counter, at which
time he removed cash and change from both drawers. The amount of
this cash and change was later determined to be approx. $279.13. The
defendant did then run from the store and as exiting, he said to the
people in the store "Merry F---ing Christmas". The employees
described the robber as being a black male, in his mid to early 20's,
with a medium build. They also advised that he was wearing an
"American Perry Elles" jacket that he wore inside out and was black
and Yellow in color. He also wore blue jeans that had orange writing
on the right pants leg.
On December 21, 1998, the defendant was taken into cutody for
committing a robbery in the area of the West Manchester Mall. This
affiant obtained a photo of the defendant and placed it in a photo line
up which I then showed to two of the witnesses. On January 02,
1999, the two witnesses shown the line up, positively identified the
defendant, Curtis D. Turane, as the subject who robbed the Rent A
Center on December 17, 1998.
Defendant's Exhibit 3, Hearing, November 4, 1999.
4
This department also recovered a pair of pants, identified as
belonging to the defendant, and showed them to a witness who
advised that they were the same style as worn by the robber. This
based on the orange lettering insignia on the right pants leg. We were
also able to verify that the defendant owns the a jacket as described
worn by the robber. We were further able to recover a pair of Nike
sneakers that were identified as belonging to the defendant, which
have a tread pattern which is similar to that which was lef~ on the
counter at the Rent A Center, from where the robber leaped the
counter .... 13
The December 21, 1998, York County incident occurred in West Manchester
Township, York County, Pennsylvania, and is described in an affidavit of probable cause
accompanying the criminal complaint as follows:
On Monday, December 21, 1998, at approx. 1055 hrs., I was
dispatched to a robbery that just occurred in the Hecht's parking lot,
West Manchester Mall, 1800 Loucks Rd., West Manchester
Township, York County PA. Upon arrival, I met the victim of the
robbery, Patricia M. STAMBAUGH DOB/08-15-39 of 214 Stitt Dr.
York, PA 17404.
STAMBAUGH said that she was going to work at Hecht's and
was walking though the parking lot toward the north entrance of the
store. A B/M subject that she described at approx. 6' tall and well
built like a sports player, wearing jeans, a long sleeve shirt
approached her from the side angle. STAMBAUGH said that this
subject said, "give me your pocketbook". STAMBAUGH refused and
the subject grabbed her purse tearing the strap causing purse and
contents to fall to the ground. The subject grabbed STAMBAUGH'S
tan wallet, (valued at $40.00) and ran to a small powder blue 4 door
car which he was alone in and fled toward the Giant store.
Upon receiving -the call and the description, we had the
description transmitted to all York County Police Units. At approx.
11:05 hrs. Officer Jeffrey SPENCE (#122) of the York City Police
Department spotted a vehicle in the 400 block of W. Market St. in
York City that matched the description of the Actor and vehicle.
SPENCE followed the vehicle into Springettsbury Twp. Where at
approx. 11:11 hrs., Springettsbury Township Police attempted to stop
the vehicle. The vehicle fled and they pursued. At approximately
Defendant's Exhibit 3, Hearing, November 4, 1999.
5
11:14 hours, the vehicle lost control at the intersection of Route 24
and Windsor Rd. in York Township and came to stop on an
embankment. The operator and sole occupant of the vehicle fled on
foot into Coventry at Waterford Apt. Complex where at approx. 11:17
hrs. he was apprehended by Officer Michael STINE (#21) of the
Springettsbury Twp. Police.
Detective SMITH of this Department transported the victim to the
scene of the apprehension for identification. At 11:54 hrs.
STAMBAUGH saw the suspect vehicle upon arriving and said,
"That's the car. I am sure of it.". At 11:55 hrs. the subject was
transferred from the Springettsbury car to the West Manchester car at
which time STAMBAUGH said, "That's him.".
I transported the subject to York City Police Station for
processing and identification since the subject would not give his
name. At York City Police Station, Officer Tony FETROW identified
the subject as Curtis Denzel TURANE. TURANE'S former records
were obtained and compared. The subject in custody is in fact, Curtis
Denzel TURANE, DOB/05/05/73, No Fixed Address.
Officer Jeffrey SPENCE of York City Police saw a Dunkin
Donuts bag laying on the passenger seat of the involved vehicle.
SPENCE said that there was a tan wallet in the bag. STAMBAUGH
identified this wallet as being hers and it was returned to her .... ~4
Following the hearing held on November 4, 1999, the court denied Defendant's
motion to dismiss the Cumberland County prosecution on double jeopardy grounds. It
also denied, substantially, a Commonwealth motion in limine to permit introduction of
evidence of the York County offenses in the Cumberland County trial. The order of the
court read as follows:
AND NOW, this 15th day of November, 1999, upon consideration
of Defendant's Motion to Dismiss--Double Jeopardy, and the
Commonwealth's Motion in Limine, and following a hearing, it is
ordered and directed as follows:
1. Defendant's Motion To Dismiss--Double
Jeopardy is denied;
2. The Commonwealth's Motion in Limine is
denied to the extent that it seeks admission of evidence
14 Defendant's Exhibit 3, Hearing, November 4, 1999.
of the robberies and drug offenses in York County by
Defendant to show motive, a common plan, scheme or
design, or identity, except as provided in paragraph 3
hereof[;]
3. Nothing in this order is intended to preclude the
Commonwealth from introducing evidence tending to
show that an article of clothing allegedly worn by the
perpetrator of the offenses charged herein was on
another occasion possessed by Defendant, for purposes
of proving the identity of the perpetrator herein. The
degree to which this proof will be permitted to include
evidence of the commission of another crime by
Defendant will be left to a determination by the trial
judge, based upon the record as it exists at the time the
evidence is proffered.
Defendant's notice of appeal to the Pennsylvania Superior Court from this order
was filed on December 14, 1999.
DISCUSSION
Double jeopardy clauses and related statutory provisions. Under the fifth
amendment to the federal constitution, no person "shall ... be subject for the same
offence to be twice put in jeopardy of life or limb .... ,,is Under Section 10 of Article 1 of
the Pennsylvania constitution, "[n]o person shall, for the same offense, be twice put in
jeopardy of life or limb .... "
Section 109 of the Crimes Code provides, in pertinent part, as follows:
When a prosecution is for a violation of the same provision of the
statutes and is based upon the same facts as a former prosecution, it
is barred by such former prosecution ... [where t]he former
prosecution resulted in a conviction.
Act of December 6, 1972, P.L. 1482, §1, 18 Pa. C.S. §109(3).
This protection has been held to apply to state governments as well as the federal
government. Benton v. Maryland, 395 U.S. 784, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969).
7
Section 110 of the Crimes Code provides, in pertinent part, as follows:
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 ... [where t]he former
prosecution resulted ... in a conviction ... and the subsequent
prosecution is for ... any offense ... 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 was
within the jurisdiction of a single court unless the court ordered a
separate trial of the charge of such offense .... "
Act of December 6, 1972, P.L. 1482, §1, 18 Pa. C.S. §110(1)(ii) (emphasis added).
The method of determining whether various acts constitute "the same criminal
episode" for purposes of Section 110 of the Crimes Code has been described by the
Pennsylvania Supreme Court in the following terms:
To determine whether various acts constitute a single criminal
episode, we must examine two factors: first, the logical relationship
between the acts; and second, the temporal relationship between the
acts. In determining whether the "logical relationship" prong of the
test has been met, we are cautioned "that a mere de minimis
duplication of factual and legal issues is insufficient to establish a
logical relationship between the offenses. Rather what is required is a
substantial duplication of issues of law and fact."
Commonwealth v. Hockenbury, 549 Pa. 527, 533, 701 A.2d 1334, 1337 (1997) (citations
omitted).
Analysis. An application of the foregoing constitutional and statutory provisions
to the facts of the instant case led the court to conclude that Defendant's pretrial motion
to dismiss was unsustainable on the merits.16 With respect to the federal double jeopardy
clause, "[t]hat constitutional provision protects an individual against successive
punishments and successive prosecutions for the same criminal offense.''~7 Defendant's
York County crimes and his alleged Cumberland County criminal activity were distinctly
different offenses. Even if it were to be assumed that some overlap in proof was involved
in the prosecutions, "[t]he United States Supreme Court [has] explicitly stated that an
overlap in proof offered in two prosecutions does not constitute a double jeopardy
violation.''~8
With respect to the state double jeopardy clause, as a general proposition "[t]he
double jeopardy clause set forth in the Pennsylvania Constitution is coextensive with
federal constitutional standards." Commonwealth v. Kunish, 529 Pa. 206, 207, 602 A.2d
849, 849 (1992). Although in particularly compelling circumstances it may be that the
state clause will be more broadly interpreted than its federal counterpart,~9 the present
case does not present such circumstances?
With respect to Section 109 of the Crimes Code, the Cumberland County
prosecution herein is not based upon "the same facts" as the York County prosecutions.
16 In view of this conclusion on the merits, the issue of the timeliness of Defendant's
motion under Pennsylvania Rule of Criminal Procedure 307 (except in special
circumstances, omnibus pretrial motion for relief to be filed within thirty days of formal
arraignment) will be noted without disposition. Defendant was formally arraigned on the
Cumberland County charges on April 27, 1999; he pled guilty on the York County
charges on May 4, 1999; his motion to dismiss the Cumberland County charges on
double jeopardy grounds was filed on October 5, 1999.
Commonwealth v. Hockenbury, 549 Pa. 527, 534, 701 A.2d 1334, 1338 (1997).
~8 Commonwealth v. Hockenbury, 549 Pa. 527, 534, 701 A.2d 1334, 1338 (1997), citing
United States v. Felix, 503 U.S. 378, 386, 112 S. Ct. 1377, 1382, 118 L. Ed. 2d 25, 34
(1992).
~9 Cf. Commonwealth v. Smith, 582 Pa. 177, 615 A.2d 321 (1992).
2o See Commonwealth v. Hockenbury, 549 Pa. 527, 701 A.2d 1334 (1997).
9
The facts supporting the prosecutions in the two counties are almost wholly independent
of each other.
Finally, with respect to Section 110 of the Crimes Code, the court was unable to
agree with Defendant that the incidents in the two counties could be characterized as "the
same criminal episode." Different occasions, different locations, different police
departments, different victims, and different factual patterns, in the court's view,
outweighed the factors of a relatively short time span within which the offenses alleged
occurred (eight days) and the possibility of a common motivational influence (drug
dependency) for purposes of determining whether the crimes comprised a single criminal
episode. The offenses were not, in the court's view, "so logically interrelated that they
essentially involved the same issues of law and fact." Commonwealth v. Hude, 500 Pa.
482, 494-95, 458 A.2d 177, 183 (1983); see generally Commonwealth v. Hockenbury,
549 Pa. 527, 701 A.2d 1334 (1997); Commonwealth v. Travaglia, 723 A.2d 190 (Pa.
Super. Ct. 1998).21
In addition, it has been held that under certain circumstances the benefit of Section
110 of the Crimes Code to a defendant will be deemed waived. Thus, the Pennsylvania
Superior Court has stated as follows:
[I]f a defendant knowingly acquiesces in what appears to be an
advantageous separation of charges, he cannot later raise an objection
claiming the statutory protection from multiple trials. Thus, a
defendant having knowledge of charges filed in two separate
municipalities may not remain silent on the question of consolidation,
plead guilty to the charges at issue in one municipality, and seek the
dismissal of those that remain. As we have pointed out, Section 110
was intended to prevent harassment by the prosecution rather than
provide defendants with a procedural expedient for avoiding
prosecution.
23 In view of this determination, it is unnecessary to consider whether other prerequisites
for application of Section 110 of the Crimes Code were met. See Commonwealth v.
Hockenbury, 549 Pa. 527, 534 n.5,701 A.2d 1334, 1338 n.5 (1997).
10
Commonwealth v. Failor, 734 A.2d 400, 403 (Pa. Super. Ct. 1999) (citations omitted),
aff'g Nos. 98-0306 Criminal Term, 98-0307 Criminal Term (Cumberland Co., April 17,
1998) (Guido, J.), appeal granted, 4 M.D. 2000 (Pa. Supreme Ct., January 19, 2000);
see Commonwealth v. Catelli, 291 Pa. Super. 502, 436 A.2d 228 (1981). In the present
case, while Defendant's Cumberland County charges were pending, he pled guilty to the
York County charges; the record contains no suggestion that he attempted to consolidate
the prosecutions in the two counties;22 he subsequently moved to dismiss the charges that
remained. These are the circumstances which will generate a finding of waiver of the
benefit of Section 110.
Based upon the foregoing, it is believed that the court's pretrial denial of
Defendant's motion to dismiss on double jeopardy grounds was correct.
Jaime Keating, Esq.
Chief Deputy District Attorney
Samuel W. Milkes, Esq.
Assistant Public Defender
22 See Commonwealth v. McPhail, 547 Pa. 519, 692 A.2d 139 (1997).
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