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HomeMy WebLinkAboutCP-21-CR-2768-2007 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : DONALD A. MAURICE : CP-21-CR-2768-2007 IN RE: MOTION TO DISMISS INFORMATION OPINION AND ORDER OF COURT Bayley, J., March 20, 2008:-- Defendant, Donald A. Maurice, is charged in an information with theft of property lost, mislaid or delivered by mistake in violation of the Crimes Code at 18 Pa.C.S. Section 3924, which provides: A person who comes into control of property of another that he knows to have beendelivered under a mistakeas lost, mislaid, or tothe identity of the recipientis the nature or amount of the property or guilty of theft if,with intent to deprive the owner thereof, he fails to take reasonable measures to restore the property to a person entitled to have it . (Emphasis added.) The following facts are not in dispute: 1. Defendant is a resident of New York and was a resident there at the time of the alleged crime on or about September 6, 2006. 2. A check was sent by Highmark Blue Shield from its corporate office in Cumberland County, Pennsylvania, to defendant and his wife in New York. 3. The check was sent to defendant and his wife under a mistake. CP-21-CR-2768-2007 1 4. Neither defendant nor his wife returned the funds to Highmark Blue Shield. Defendant filed a motion to dismiss the information on the basis that there is no subject matter jurisdiction in Pennsylvania because there is no alleged criminal activity sufficiently connected to Pennsylvania to support jurisdiction. The Commonwealth maintains that although the first four elements of the alleged crime occurred in New York: (1) that defendant came into control of property, (2) of another, (3) which was property he knew was delivered under a mistake, and (4) that he intended to deprive the owner of that property, the fifth element, that defendant failed to take reasonable measures to restore the money that was delivered to him by mistake, occurred in Pennsylvania. That, the Commonwealth argues, is sufficient to vest subject matter jurisdiction in Pennsylvania. Subject matter jurisdiction relates to the competency of a court to hear and Commonwealth v. Bethea, decide the type of controversy presented. 828 A.2d 1066 (Pa. 2003). Statewide subject matter jurisdiction over a person charged with violating the Crimes Code of Pennsylvania lies in the Courts of Common Pleas of Pennsylvania. Id. The Crimes Code of Pennsylvania, at 18 Pa.C.S. Section 102, provides: (a) General rule.— Except as otherwise provided in this section, a person may be convicted under the law of this Commonwealth of an offense committed by his own conduct or the conduct of another for which he is legally accountable if either: __________ 1 There is no allegation that defendant filed a false claim or false statement in support of a claim for the funds in Pennsylvania. Nor is there any allegation that defendant converted or delivered funds of Highmark Blue Shield Corporation to his own use in Pennsylvania. -2- CP-21-CR-2768-2007 (1) the conduct which is an element of the offense or the result which is such an element occurs within this Commonwealth; (2) conduct occurring outside this Commonwealth is sufficient under the law of this Commonwealth to constitute an attempt to commit an offense within this Commonwealth. (3) conduct occurring outside this Commonwealth is sufficient under the law of this Commonwealth to constitute a conspiracy to commit an offense within this Commonwealth and an overt act in furtherance of such conspiracy occurs within this Commonwealth; (4) conduct occurring within this Commonwealth establishes complicity in the commission of, or an attempt, solicitation or conspiracy to commit, an offense in another jurisdiction which also is an offense under the law of this Commonwealth; the offense consists of the omission to perform a (5) legal duty imposed by the law of this Commonwealth with respect to domicile, residence or a relationship to a person, thing or transaction in this Commonwealth ; or (6) the offense is based on a statute of this Commonwealth which expressly prohibits conduct outside this Commonwealth when the conduct bears a reasonable relation to a legitimate interest of this Commonwealth and the actor knows or should know that his conduct is likely to affect that interest. (Emphasis added.) (b) Exception.— Paragraph (a)(1) of this section does not apply when causing a particular result is an element of an offense and the result is caused by conduct occurring outside this Commonwealth which would not constitute an offense if the result had occurred there, unless the actor intentionally or knowingly caused the result within this Commonwealth. Section 103 of the Crimes Code defines “Conduct” as: An action or omission and its accompanying state of mind, or, where relevant, a series of acts and omissions. In contrast to criminal cases involving venue among the several counties of Pennsylvania, there are a dearth of appellate cases dealing with subject matter -3- CP-21-CR-2768-2007 2 jurisdiction. The Commonwealth cites three similar tax cases in support of its position: Commonwealth v. Bershad, Commonwealth v. 693 A.2d 1303 (Pa. Super. 1997); Boyle, Commonwealth v. Bennardo, 516 Pa. 105 (1987); and 369 Pa. Super. 333 Bershad, (1987). In a controller of a corporation in Bucks County was charged with underpaying sales taxes on returns that were required to be filed with the Commonwealth of Pennsylvania, Department of Revenue, in Dauphin County. The defendant was tried in Dauphin County despite his objection “that the trial court did not have subject matter jurisdiction over his case and that venue was improper in Dauphin County.” The Superior Court of Pennsylvania noted: The locus of a crime is always in issue and a criminal court will have jurisdiction over a criminal case if some overt act involved in the crime, or a culpable failure to act, occurred within the county where the charges are brought. Commonwealth v. Boyle, 516 Pa. 105, 112, 532 A.2d 306, 309 (1987). In Boyle, our supreme court stated: A determination of the locus of a crime becomes more difficult when the crime consists of a failure to act. In determining the locus of a failure to act, it is necessary to consider the nature of the duty and that specific act which the defendant failed to perform. We must also look to the nature of the offense and the elements thereof to determine whether the crime was sufficiently related to the locus where the defendant is being prosecuted. Boyle, supra, at 113, 532 A.2d at 310. Commonwealth v. Bennardo, supra, The Court, in upholding the conviction, cited for the proposition that “jurisdiction and venue to try crimes of omission were properly vested in the county where performance of the act was due,” and concluded that the __________ 2 Venue relates to the right of a party to have a controversy brought and heard in a Bethea Id. particular judicial district within the Commonwealth. -4- CP-21-CR-2768-2007 Bershad 3 crime for which was convicted was sufficiently related to Dauphin County. Using the analogy of venue in these tax cases does not support the Common- wealth’s position that there is subject matter jurisdiction over defendant. In the tax cases there was a legal duty to file the tax returns and pay taxes due in Dauphin County. That was the county where the performance of those acts was due. Here, there is a legal duty to make reasonable efforts to restore money that Highmark Blue Shield delivered in New York under a mistake as to the identity of the recipient. The element of the crime is the failure to take reasonable measures to restore the money to the person entitled to have it. The residency of the person suffering the loss is incidental. The fact that Highmark Blue Shield delivered its money in New York is not that much different than if John Doe, a Pennsylvania resident, while in New York, mislaid his wallet and then returned to Pennsylvania, and a defendant found the wallet and did not take reasonable measures to return it to Doe. There would be no subject matter jurisdiction in Pennsylvania because the duty is not to return the money at the particular location, it is simply to take reasonable measures to return it. The performance of that act is not due in Pennsylvania. Section 102(a)(5) of the Crimes Code is not applicable because the offense in Section 3924 does not consist of the omission to perform a legal duty imposed by the __________ 3 Bethea When the Supreme Court decided in 2003, it stated that “[t]here remains some confusion regarding the concepts of venue and subject matter jurisdiction. The instant case presents us with another opportunity to explicate this confusion.” In light Bethea, Bershad, Bennardo, Boyle, of we now know that in andthe real issue was venue, not jurisdiction. -5- CP-21-CR-2768-2007 law of the Commonwealth with respect to domicile, residence or a relationship to the 4 person, thing or transaction in this Commonwealth. There is no subject matter 5 jurisdiction in Pennsylvania. Therefore, the following order is entered. ORDER OF COURT AND NOW, this _________ day of March, 2008, the motion of defendant to IS dismiss the information charging him with theft of property delivered by mistake, GRANTED. IS DISMISSED. The information, By the Court, Edgar B. Bayley, J. Matthew Smith, Esquire Assistant District Attorney Taylor P. Andrews, Esquire For Defendant :sal __________ 4 Defendant argues that if there is subject matter jurisdiction under Section 102 of the Crimes Code, the exercise of such jurisdiction in this case is unconstitutional. In light of our disposition we do not have to address this constitutional argument. 5 Subject matter jurisdiction is in New York under a very similar statute defining larceny at N.Y. Penal Law § 155.05(2)(b) (McKinney 2008). -6- COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : DONALD A. MAURICE : CP-21-CR-2768-2007 IN RE: MOTION TO DISMISS INFORMATION ORDER OF COURT AND NOW, this _________ day of March, 2008, the motion of defendant to IS dismiss the information charging him with theft of property delivered by mistake, GRANTED. IS DISMISSED. The information, By the Court, Edgar B. Bayley, J. Matthew Smith, Esquire Assistant District Attorney Taylor P. Andrews, Esquire For Defendant :sal