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HomeMy WebLinkAbout97-1196 CriminalCOMMONWEALTH VS. KEVIN MICHAEL O'HARA IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 97-1196 CRIMINAL CHARGE: (1) FORGERY (2 CTS) (2) CREDIT CARDS (3) THEFT BY DECEPTION (4) THEFT BY UNLAWFUL TAKING OR DISPOSITION AFFIANT: TPR. SALLY WORST IN RE: DEFENDANT'S MOTION TO DISMISS BEFORE HESS. J. ORDER AND NOW, this 2 ~ day of July, 1998, the motion of the defendant to dismiss the charges is DENIED. BY THE COURT, John A. Abom, Esquire Assistant District Attorney William Braught, Esquire Assistant Public Defender Kevin/A/. Hess, J. / :tim COMMONWEALTH VS. KEVIN MICHAEL O'HARA IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 97-1196 CRIMINAL CHARGE: (1) FORGERY (2 CTS) (2) CREDIT CARDS (3) THEFT BY DECEPTION (4) THEFT BY UNLAWFUL TAKING OR DISPOSITION AFFIANT: TPR. SALLY WORST IN RE: DEFENDANT'S MOTION TO DISMISS BEFORE HESS, J. OPINION AND ORDER This matter is before us on defendant's motion to dismiss. The defendant contends that pursuant to 18 Pa.C.S.A. Section 110 his prior conviction in Snyder County should bar his prosecution in Cumberland County. For the following reasons, the defendant's motion is denied. On August 2, 1995, Darlene Maus, the defendant's ex-girlfriend, began serving a prison sentence in SCI Cambridge Springs. She remained there until June 23, 1996. While she was incarcerated, Ms. Maus had three checking accounts. Two accounts were from the Members First Bank in Cumberland County and one account was from a bank in Snyder County. Ms. Maus also had one VISA credit card issued to her by Members First. The defendant, who was staying at Ms. Maus' house while she was incarcerated, wrote numerous checks in Snyder and Cumberland Counties without her authorization. By his own admission, the defendant wrote unauthorized checks in the amount of $15,940.82 from one Members First account and $31,534.38 from another Members First account. He also charged $1,872.48 on the VISA card. 97-1196 CRIMINAL From the Snyder County Bank, the defendant wrote three checks, each for $500.00. In March of 1996, Darlene Maus contacted Pennsylvania State Police and informed them money was missing from her accounts at Members First. In April of 1996, State Police from Snyder County, Selinsgrove Barracks, begatl investigating thefts concerning the Members First accounts in Cumberland County. On April 23, 1996, the Selinsgrove Barracks transferred the case to State Police in Cumberland County, Carlisle Barracks. On June 23, 1996, Ms. Maus was released from custody and discovered that three unauthorized checks were written from the bank in Snyder County. She reported these thefts in late August. On September 10, 1996, a criminal complaint was filed in Snyder County based on these thefts. The defendant entered a no contest plea to one count of theft by unlawful taking on April 7, 1997. He was sentenced on May 29, 1997, and ordered to pay restitution for the three checks written on the account in Snyder County. On October 14, 1997, State Police from the Carlisle barracks took the statement of the defendant relative to the eighty-seven bad checks written in Cumberland County and the $1,872.48 charged on Ms. Maus' VISA card. State Police filed a criminal complaint on November 7, 1997. On December 3, 1997, the defendant had his preliminary hearing, and was formally arraigned on January 16, 1998. The defendant has moved to dismiss the charges against him because he alleges that under Section 110(1)(ii) of the Crimes Code his prosecution in Cumberland County is barred by his prior prosecution in Snyder County. The rule is as follows: § 110. When prosecution barred by former prosecution for different offense. 97-1196 CRIMINAL 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 was within the jurisdiction of a single court unless the court ordered a separate trial of the charge of such offense; 18 Pa.C.S.A. Section 110(1)(ii). In the case sub judice, we find controlling the Supreme Court's decision in Commonwealth v. Hockenbury, 549 Pa. 527, 701 A.2d 1334 (1997). In Hockenbury, the defendant, Lisa Hockenbury, sold thirty-four pieces of jewelry to a jewelry store in Harrisburg. Suspecting it was stolen, the jewelry store contacted the State Police in Dauphin County. The police then sent a copy of the receipt issued by the jeweler to State Police in Lycoming County. The police in Lycoming then contacted the victim of a burglary that occurred almost two years earlier in which three hundred pieces of jewelry were stolen. The State Police in Dauphin County continued investigating the case and went to the Hockenbury residence to question her about the sale to the Harrisburg jeweler. When confronted, she denied stealing the jewelry but admitted selling it, contending that the jewelry belonged to her recently deceased grandfather and that she had taken the jewelry without her 97-1196 CRIMINAL mother's knowledge. Two months later, however, a relative of the robbery victim from Lycoming County went to a porch sale at the Hockenbury residence, where she recognized some jewelry that had been taken in the robbery two years before. As a result, a criminal complaint was filed against Hockenbury in Lycoming County charging her with receiving stolen property. A criminal complaint was also filed against her in Dauphin County charging her with the same crime. Hockenbury pled guilty to receiving stolen property in Dauphin County, and then filed a motion to dismiss the criminal information in Lycoming County, contending that the Lycoming Charge was a second prosecution for the same offense. Id.~. at 529-531,701 A.2d at 1335-1336. The Superior Court held that Section 110 of the Crimes Code did not bar the subsequent prosecution in Lycoming County, and the Supreme Court affirmed. We believe the fact situation in Hockenbury is analogous to the case sub judice in that the individual checks are akin to the individual pieces of jewelry. The Superior Court in Hockenbury reasoned that "the two prosecutions for receiving stolen property involve separate and distinct criminal episodes, distinguishable by the facts supporting each charge, the locations and times at which each occurred, as well as the substance of the stolen property." Commonwealth v. Hockenbury, 446 Pa. Super. 593,606, 667 A.2d 1135, 1142 (1995). The court went on to say that the two prosecutions have "no logical relationship aside from the source of the property ... principles of double jeopardy only operate to bar prosecutions for the same offense." Id_.~. at 610, 667 A.2d at 1143. The Supreme Court affirmed the Superior Court's decision and held that "[d]ouble jeopardy does not forbid the Commonwealth from prosecuting a defendant at a second 4 97-1196 CRIMINAL prosecution simply because that defendant had earlier been convicted of violating that same statutory provision. The additional necessary element is that the two prosecutions must arise out of the same criminal offense." Hockenbury at 535,701 A.2d at 1338. The Superior Court and the Supreme Court both relied on the seminal cases of Commonwealth v. Bracalielly, 540 Pa. 460, 658 A.2d 755 (1995) and Commonwealth v. Hude., 500 Pa. 482, 458 A.2d 177 (1983). These two cases examine the "same criminal episode" requirement and hold that "[t]o 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. Hockenbury at 533, 701 A.2d at 1337. "[A] mere de minimis duplication of factual find 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." Id~ (quoting Bracalielly at 472, 658 A.2d at 761). The Supreme Court also clarified the four requirements to bar a subsequent prosecution under Section 110(1)(ii). [F]irst, the former prosecution must have resulted in an acquittal or a conviction; second, the instant prosecution is based on the same criminal conduct or arose from the same criminal episode as the former prosecution; third, the prosecutor was aware of the instant charges before the commencement of the trial on the former charges; and fourth, the instant charges and the former charges were within the jurisdiction of a Single court. In the case sub judice, we do not believe that the act of writing three bad checks in Snyder 5 97-1196 CRIMINAL County and writing eighty-seven bad checks in Cumberland County are part of the same criminal episode. The only relationship between each bad check is their common source: they were all taken from Ms. Maus' residence without her permission while she was incarcerated. Other than this, each separate prosecution would rely on different facts, times, and dates to determine whether in fact the defendant actually committed each crime. The defendant has violated the same criminal laws in two different counties, and with each bad check he committed a separate crime. He has not committed the same criminal act in two different counties. Therefore, the principles of issue preclusion and Section 110 will not bar the defendant's prosecution in Cumberland County, and the defendant will not be placed in double jeopardy. Additionally, we do not believe that the Supreme Court's decision in Commonwealth v McPhail., 547 Pa. 519, 692 A.2d 139 (1997)~ is controlling. The McPhail case involved a situation where police were conducting an undercover investigation of a drug dealer. The police followed the suspect over a period of time and witnessed him committing crimes which were all part of the same criminal act. Here, there was no ongoing criminal investigation or undercover police work occurring in an attempt to gather evidence of the defendant's illicit check writing. The police only learned about the defendant's criminal activity until after the fact. ORDER AND NOW, this ¢~' '~ day of July, 1998, the motion of the defendant to ~Interestingly, the Hockenberry case on which we rely refers to the earlier McPhail case only in the dissent. 6 97-1196 CRIMINAL dismiss the charges is DENIED. BY THE COURT, John A. Abom, Esquire Assistant District Attomey Kev~K. Hess, J. William Braught, Esquire Assistant Public Defender :rlm 7