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HomeMy WebLinkAbout02-1726 CRIMINAL COMMONWEALTH KENN GARWIN WILCOX IN RE: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 02-1726 CRIMINAL TERM MOTION TO DISMISS UNDER RULE 110 OPINION AND ORDER OF COURT Bayley, J., December 23, 2002:-- Defendant, Kenn Garwin Wilcox, is charged on this docket at 02-1726, with driving under the influence,~ and driving on the wrong side of a highway? He filed a motion to dismiss both charges pursuant to the Crimes Code at 18 Pa.C.S. Section 110. A hearing was conducted on December 3, 2002. We find the following facts. The charges arise as a result of an incident in which defendant allegedly operated a vehicle that left a road, went into a yard, and rolled over. The incident occurred at approximately 5:42 p.m., on January 18, 2002, in South Middleton Township, Cumberland County. The affiant is Trooper Matthew Maxey of the Pennsylvania State Police. He filed a criminal complaint on February 14, 2002, before District Justice Day. A preliminary hearing was waived on July 31, 2002. An information was filed on September 17, 2002. Defendant was arraigned on ~ 75 Pa.C.S. § 3731(a)(1)(4). This is a misdemeanor 1. 2 75 Pa.C.S. § 3309. This is a summary offense. 02-1726 CRIMINAL TERM September 24, 2002, with a trial set for the November Term of criminal court? At 02-1222, defendant was charged with leaving the scene of an accident involving damage to an attended vehicle in the Borough of Carlisle at approximately 5:25 p.m. on January 18, 2002.4 Officer Adolfo Heredia, of the Carlisle Police filed a complaint against defendant before District Justice Correal on February 11, 2002. At 02-1219, defendant was charged with another misdemeanor 3 of leaving the scene of an accident involving damage to an attended vehicle in the Borough of Carlisle at approximately 5:30 p.m. on January 18, 2002. This incident occurred a little less than a block from where the other incident that had just occurred at approximately 5:25 p.m. Officer Patrick O'Leary of the Carlisle Police filed a complaint against defendant before District Justice Correal on January 28, 2002. On May 31, 2002, preliminary hearings were waived on both of the hit-and-run charges that arose in the Borough of Carlisle. Informations were filed on July 16, 2002. Defendant was arraigned on August 2, 2002, and the cases were joined for trial. Trial was set for the September Term of criminal court. On September 16, 2002, defendant pled guilty to each offense. He was sentenced on both offenses on September 16, 2002. The current alleged offenses in South Middleton Township for which the affiant 3 Defendant and the Commonwealth have waived a trial by jury. A trial date will be set if this motion to dismiss is denied. -2- 02-1726 CRIMINAL TERM is Trooper Maxey occurred approximately two miles from where the two hit-and-runs in the Borough of Carlisle occurred a short time earlier the same day. When Trooper Maxey filed the complaint against defendant on February 14, 2002, he was aware of the two alleged hit-and-run incidents in Carlisle, although he was not aware that defendant had already been charged for those offenses. Defendant maintains that the current charges of driving under the influence and driving on the wrong side of the highway, which were not joined with the two hit-and-run charges to which he pled guilty and was sentenced on September 16, 2002, must be dismissed under the compulsory joinder provision in the Crimes Code at 18 Pa.C.S. Section 110(1 )(ii), that provides: 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... (ii) any offense based on the same conduct or arising from the same criminal episode, if such offense was known to the appropriate prosecution 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... In Commonwealth v. Anthony, 717 A.2d 1015 (Pa. 1998), the defendant, age 20, picked up several juveniles on March 28, 1994, in Corry, Erie County, 4 75 Pa.C.S. § 3743(a). This is a misdemeanor 3. -3- 02-1726 CRIMINAL TERM Pennsylvania. Together they burglarized a garage in which they stole some beer. They then drove to Erie committing two more burglaries on the way. After staying the night in Erie they drove to Florida. They were apprehended in Florida on April 1, 1994. Defendant was returned to Erie County and charged by the Carry County police with interference with the custody of children, three counts of corruption of minors, and the consumption and transportation of brewed beverages. On September 2, 1994, defendant pled guilty to the three counts of corruption of minors for transporting the juveniles to Florida during which time he enticed them to commit the burglaries and other crimes. Defendant was sentenced to prison for not less than five months or more than eleven months. On December 6, 1994, the Pennsylvania state police charged defendant with burglary, criminal trespass, criminal conspiracy, theft by unlawful taking and criminal mischief with respect to his activities on March 28, 1994, at a residence in Union Township, Erie County, which is where one of the burglaries occurred as the group drove from Carry to Erie. Defendant filed a motion to dismiss which was denied by the trial court, and from which he took an interlocutory appeal by right to the Superior Court of Pennsylvania. The Superior Court affirmed the trial court; however, the Supreme Court of Pennsylvania reversed for a violation of Section 110 of the Crimes Code and dismissed the charges. The issue addressed by the Supreme Court was whether the charges filed by the state police arose from the same criminal episode as the charges for which defendant had been charged by the Carry County police and pled guilty and was -4- 02-1726 CRIMINAL TERM sentenced. The Court stated: As this court stated in Hude, [520 Pa. 482 (1983)], 'in defining what acts constitute a single criminal episode, not only is the temporal sequence of events important, but also the logical relationship between the acts must be considered.' 500 Pa. at 491,458 A.2d at 181. In our consideration of the temporal and logical relationship between the criminal acts, we are guided by the policy considerations that § 110 was designed to serve: (1) to protect a person accused of crimes from governmental harassment of being forced to undergo successive trials for offenses stemming from the same criminal episode; and (2) as a matter of judicial administration and economy, to assure finality without unduly burdening the judicial process by repetitious litigation. See Commonwealth v. Stewart, 493 Pa. [24] 29, 425 A.2d [346] 348 [(1981)]; Commonwealth v. Holmes, 480 Pa. 536, 541,391 A.2d 1015, 1017 (1978); Commonwealth v. Tarver, 476 Pa. [401] 408, 357 A.2d [539] 542 [(1976)]. "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. [ * * '12] Campana (Campana I), 452 Pa. [233] 251,304 A.2d [432] 440-441 [(1973)]. Hude, 500 Pa. at 489, 458 A.2d at 180. With these policy considerations in mind we review the temporal and logical relationship between the charges in the first Information and those within the second information. In the first Information appellant is charged with corrupting the morals of Steven, Lucas and Sue Ann by removing them from Corry, Pennsylvania on March 28, 1994, encouraging their participation in various criminal acts, including burglary and theft, and transporting the juveniles to Florida where they were apprehended. The first information does not specify the location of the burglaries referenced in connection with the corruption charges. However, even without a specific delineation of which burglaries were at issue in the first Information, the burglary in Union City on the night of March 28, 1994 is temporally connected to the crimes appellant has already been convicted of, as the first Information charged criminal acts spanning from March 28, 1994 through April 1, 1994. The Commonwealth argues that the crimes in the present information are not logically related to the prior charges as they do not involve the same conduct. Here, the Commonwealth focuses on the -5- 02-1726 CRIMINAL TERM nature of the criminal acts: corrupting the morals of minors versus burglary and theft. This argument has surface appeal, but lacks substance. A logical relationship is not conditioned upon the duplication of identical criminal acts. A logical relationship exists where the sequence of criminal acts reveals a substantial duplication of issues of law and fact. Braca/ie//y, 540 Pa. at 460, 658 A2d at 755. In the present case, such a substantial duplication of issues of law and fact exists. The evidence to support appellant's original conviction is the statement of appellant as taken by the Carry Police; the testimony and/or statements of Steven, Lucas and Sue Ann and Angela; the parents of the juveniles; and the Carry Police officers involved in the investigation. In the present prosecution all of the above witnesses will again be required to present the same testimony. Given that a high percentage of the testimony from the first trial must be repeated in the second trial, a substantial duplication of factual issues is obviously present. The only additional witnesses that would be called in the present trial, that were not needed in the first trial are the victim of the burglary and the State Police. Although two different police departments are involved there is nothing of record indicating that two different investigations were ongoing, independent of each other, which led to the two separate prosecutions. To the contrary, the Carry Police were in possession of all relevant incriminating information regarding all the criminal activity set forth in both Informations prior to any involvement by the State Police. The Carry Police chose to forward the information to the State Police. The dual involvement of two different law enforcement offices is not sufficient to preclude jainder of charges given the facts of this case. Cf. Bracalielly. As for the legal issues, appellant's first conviction for corrupting the morals of the minors was grounded on his encouraging and enticing the minors to commit burglaries and thefts. The second Information also charges burglary and theft, the variation in the form of the criminal charges cannot disguise the commonality of the legal issues within the two informations. Thus, we find that the present charges did arise from the same criminal episode as the first set of charges as all of the criminal acts are temporally and logically related. Accordingly, we find that all four factors necessary to bar the present prosecution under § 110 have been met. Returning to the policy considerations which guide our review of this question, it is undeniable that the policy goals of § 110 would be thwarted by separate trials in this instance. Appellant will be forced to undergo two criminal prosecutions when all the evidence necessary to support both prosecutions was within the hands of the -6- 02-1726 CRIMINAL TERM Commonwealth at the same time. The vast majority of the witnesses will be forced to give up their time and again undergo the pressure of courtroom testimony, to repeat in the second trial virtually everything that was stated in the first trial. Both trials tax the resources of the same District Attorney, almost identical law enforcement personnel, and the same judicial system. The Commonwealth offers no reason for the unnecessary duplication caused by the failure to join the charges in this matter. Having found the four factors of § 110(1 )(ii) to be met in this case, we further find that the purpose of the compulsory joinder rule would be violated by permitting the present prosecution to go forward. (Emphasis added.) Appling these principles to the case sub judice, we find: (1) The two cases involving a hit-and-run and the current case involving an allegation of driving under the influence and driving on the wrong side of highway are within the jurisdiction of this court. (2) The current charges were waived into court on July 31, 2002, and were pending here well before defendant pled guilty and was sentenced on the two charges of hit-and-run on September 16, 2002. (3) The allegations of driving under the influence and driving on the wrong side of the highway occurred in South Middleton Township, which is adjacent to the Borough of Carlisle, seventeen minutes after the first, and twelve minutes after the second hit- and-runs occurred approximately two miles away in the Borough of Carlisle. Thus, there was a temporal sequence between the events. There is also a logical relationship between the events. Evidence on how defendant was driving when he committed the two hit-and-runs would be relevant on the issue of whether he was under the influence of alcohol to a degree that rendered him incapable of safe driving when -7- 02-1726 CRIMINAL TERM his vehicle left a road, went into a yard, and rolled over shortly thereafter. Likewise, evidence that defendant was driving his vehicle under the influence and on the wrong side of the highway at 5:42 p.m. would have been relevant on the issue of whether he was driving that vehicle a short time earlier when the vehicle was involved in the two hit-and-runs. Thus there is a substantial duplication of facts involving all three cases. Based upon the above findings we conclude that the within prosecution is barred under Section 110(1 )(ii) of the Crimes Code. We also find that the purpose of the compulsory joinder rule as set forth by the Supreme Court in Commonwealth v. Anthony, supra, would be violated if the present prosecution was allowed to go forward. Accordingly, the following order is entered. AND NOW, this case, ARE DISMISSED. ORDER OF COURT day of December, 2002, the charges on the within By the Court, Jonathan R. Birbeck, Esquire For the Commonwealth Timothy L. Clawges, Esquire For Defendant :sal Edgar B. Bayley, J. -8-