Loading...
HomeMy WebLinkAbout03-1109 Criminal COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : JUSTIN MICHAEL SMITH : 03-1109 CRIMINAL TERM IN RE: MOTION OF DEFENDANT TO DISMISS PURSUANT TO 18 PA.C.S. SECTION 110 BEFORE BAYLEY, J. OPINION AND ORDER OF COURT Bayley, J., October 20, 2003:-- 03-1109 Defendant, Justin Michael Smith, is charged in this case at with: (1) 12 criminal attempt to robbery and theft, (2) criminal conspiracy to robbery and theft, (3) 3456 robbery, (4) simple assault, (5) harassment, and (6) corruption of minors. The charges were instituted by a complaint filed by Detective Timothy Lively of North May 14, 2003 Middleton Township on . The charges arise out of an attempted purse November 29, 200210:00 p.m. snatching from Barbara Bartles on at approximately __________ 1 18 Pa.C.S. § 901; 18 Pa.C.S. §3701; 18 Pa.C.S. §3921. 2 18 Pa.C.S. § 903; 18 Pa.C.S. §3701; 18 Pa.C.S. §3921. 3 18 Pa.C.S. § 3701(a)(1)(v). 4 18 Pa.C.S. § 2701(a)(3). 5 18 Pa.C.S. § 2709(a)(1). 6 18 Pa.C.S. § 6301. 03-1109 CRIMINAL TERM May 1, 200302-2663 On , in another case at , defendant pled guilty to robbery and criminal conspiracy to robbery involving a purse snatching from Patricia Mease that 11:24 p.m.November 29, 2002 occurred at approximately on , in front of Wal-Mart in Silver Spring Township. This incident was about 15 miles from the North Middleton Township incident. The charges were brought by Patrolman Leroy Hippensteel of the November 30, 2002 Silver Spring Township Police on . Based on his convictions at 02-2663, defendant has filed a motion to dismiss the charges at 03-1109 pursuant to the Crimes Code at 18 Pa.C.S. Section 110. In Commonwealth v. Shull, 811 A.2d 1 (Pa. Super. 2002), the Superior Court of Pennsylvania stated that: Under Section 110, the Commonwealth is prohibited from prosecuting a defendant based on its former prosecution of the defendant if the following four-part test is met: (1) the former prosecution resulted in an acquittal or a conviction; (2) the current prosecution must be based on the same criminal conduct or have arisen from the same criminal episode as the former prosecution; (3) the prosecutor must have been aware of the current charges before the commencement of the trial for the former charges; and (4) the current charges and the former 7 charges must be within the jurisdiction of a single court. __________ 7 North Middleton Township and Silver Spring Township are both in the jurisdiction of the Court of Common Pleas of Cumberland County. However jurisdiction, in contrast to Commonwealth v. Bethea, venue, is within any court in the Commonwealth. 828 A.2d See also Commonwealth v. McPhail, 1066 (Pa. 2003). 692 A.2d 139 (Pa. 1997). -2- 03-1109 CRIMINAL TERM In the Silver Spring Township case, Officer Hippensteel received a report of a description of the suspects and responded to the scene. When he arrived he saw Jared Neil walking to the rear of a store. Neil matched the description of one of the perpetrators. The officer stopped and talked to Neil who told him that he had gone to the Wal-Mart with some friends including Justin Smith. As they were about to go into Wal-Mart, Smith and his friend began to run. He heard screaming so he ran as well. He said that he had no idea what happened. Neil was taken into custody. Travis Mellott, who was taken into the custody near the scene, told the police that Smith and Neil decided to snatch a purse at the Wal-Mart after they had been unsuccessful in snatching a purse in North Middleton Township earlier in the evening. Mellott drove the getaway vehicle. In the present case, Detective Lively first learned of the allegations on March 1, 2003, when he received a report from a North Middleton Township Police Officer, Peter Castle, who had responded to the incident at approximately 10:00 p.m. on November 29, 2002. The report contained a statement, written on a piece of notebook paper signed by Travis Mellott on November 30, 2002 after he was arrested for the Silver Spring Township incident, that implicated Justin Smith and Jared Neil in the North Middleton Township incident. Detective Lively did not otherwise know what, if anything, had been done on the case by Officer Castle between November 29, 2002 and March 1, 2003. Detective Lively interviewed Mellott and obtained a more detailed written statement from him of the North Middleton Township incident. He then sought to speak -3- 03-1109 CRIMINAL TERM to Jared Neil but it took until May 10, 2003 to coordinate that interview with Neil’s attorney. Neil gave the detective a written statement implicating defendant. Detective th Lively filed the charges against defendant four days later on May 14. At that time he knew that Officer Hippensteel had filed charges against defendant for the other incident on November 29, 2002 in Silver Spring Township. Commonwealth v. Anthony, In 717 A.2d 1015 (Pa. 1998), defendant, age 20, picked up several juveniles on March 28, 1994, in Corry, Erie County, 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 Corry 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 by 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 Corry to Erie. Defendant filed a motion to dismiss which was denied by the trial court, and from -4- 03-1109 CRIMINAL TERM which he took an interlocutory appeal by right to the Superior Court of Pennsylvania. The Superior Court affirmed the trial court. The Supreme Court reversed. The issue was whether the charges filed by the state police arose from the same criminal episode as the charges for which defendant pled guilty and was sentenced in Eric County. The Supreme 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 -5- 03-1109 CRIMINAL TERM without a specific delineation of which burglaries were at issue in the first the burglary in Union City on the night of March 28, 1994 Information, 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 nature of the criminal acts: corrupting the morals of minors versus burglary and theft. This argument has surface appeal, but lacks A logical relationship is not conditioned upon the substance. 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. Bracalielly, 540 Pa. at 460, 658 A.2d 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 Corry Police; the testimony and/or statements of Steven, Lucas and Sue Ann and Angela; the parents of the juveniles; and the Corry Police officers involved in the investigation. In the present prosecution all of the above witnesses will again be Given that a high percentage required to present the same testimony. 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 Although two different police departments are and the State Police. 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 Corry 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 Corry Police chose to forward the information to the State Police. The dual involvement of two different law enforcement offices is not sufficient to preclude joinder of charges given the facts of this case. As for Cf. Bracalielly. 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 -6- 03-1109 CRIMINAL TERM 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 Appellant will be forced to thwarted by separate trials in this instance. undergo two criminal prosecutions when all the evidence necessary to support both prosecutions was within the hands of the 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.) sub judice, In the case the evidence of the Commonwealth is that defendant, Mellott and Neil were on a purse snatching spree on the evening of November 29, 2002. The first incident occurred in North Middleton Township at approximately 10:00 p.m. The second incident, for which defendant has already been convicted, occurred at 11:24 p.m. about 15 miles away in Silver Spring Township. The same modus operandi was utilized in both cases by the same three perpetrators. Clearly, the incidents are temporally related. However, unlike the incident in North Middleton Township, where the three alleged perpetrators got away, Mellott and Neil were caught near the scene in Silver Spring Township. In order to convict defendant in this North Middleton Township case, the Commonwealth must rely on the accomplice testimony. -7- 03-1109 CRIMINAL TERM The testimony of an accomplice is from a corrupt source and is to be carefully scrutinized and accepted Commonwealth v. Sisak, with caution. 436 Pa. 262 (1969). The testimony of one accomplice does not corroborate the testimony of another accomplice. Commonwealth v. Jones, 213 Pa. Super. 504 (1968). Anthony, In defendant pled guilty on September 2, 1994 to charges brought by the Corry police before he was charged by the state police on December 6, 1994 for the crimes committed in Union Township. In finding there was a logical relationship between the sequence of criminal acts which revealed a substantial duplication of issues of law and fact in both prosecutions, the Supreme Court concluded that the Corry police were in possession of all relevant information regarding all the criminal activities in both cases prior to the involvement of the state police in the Union Township case. Thus there was nothing indicating two different ongoing investigations, independent of each other, which led to the two separate prosecutions. In contrast in the present case, Detective Lively chose to obtain a statement from Jared Neil before he proceeded with this prosecution against defendant. Neil, a co-conspirator, could not be forced to give a statement to the detective or testify at trial against Smith. The statement was obtained on May 10, 2003 after Neil’s cooperation had been cleared with his attorney. At that point the investigation was completed and charges were filed th four days later on May 14, a half month after defendant pled guilty in the Silver Spring st Township case on May 1. -8- 03-1109 CRIMINAL TERM In his brief, defendant argues that, “The prosecutor who approved the complaint and affidavit of probable cause for the Silver Spring Township robbery could and should have instructed Officer Hippensteel to file the attempted robbery charge in the 8 complaint for the North Middleton Township robbery.” The Silver Spring Township police officer did not have jurisdictional authority to file any charges for an offense arising in North Middleton Township. Defendant further argues that, “Merely because [Detective Lively] chose to duplicate an already completed investigation does not protect the Commonwealth from the requirements of compulsory joinder. In a trial for the North Middleton Township robbery, Detective Lively’s testimony would not even be required.” Defendant fails to point out that accomplice testimony will be required and that the investigation was not completed until after defendant pled guilty in the other case. While there are statutes of limitations setting time constraints in bringing charges against defendants, it is not for the judiciary to tell law enforcement authorities how to investigate a case, how much evidence they should accumulate before charges are Anthony filed, and how they should prioritize investigations. Unlike the facts in , until the cooperation of Neil was obtained, the North Middleton Township Police were not in possession of all relevant admissible evidence considered necessary to prosecute defendant. Thus, the cases in North Middleton Township and Silver Spring Township __________ 8 Pursuant to Cumberland County Rule of Court 107.1, as provided for by Pa.R.Crim.P. 507, the Cumberland County District Attorney did approve filing the charges in both Silver Spring Township and North Middleton Township. -9- 03-1109 CRIMINAL TERM are not logically related. Therefore, on these facts the two cases cannot be considered as arising out of the same criminal episode for the purposes of Section 110 of the Crimes Code. ORDER OF COURT AND NOW, this _________ day of October, 2003, the motion of defendant to IS DENIED. dismiss all charges pursuant to Section 110 of the Crimes Code, By the Court, Edgar B. Bayley, J. Michael Mervine, Esquire Assistant District Attorney Linda Hollinger, Esquire For Defendant :sal -10- COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : JUSTIN MICHAEL SMITH : 03-1109 CRIMINAL TERM IN RE: MOTION OF DEFENDANT TO DISMISS PURSUANT TO 18 PA.C.S. SECTION 110 BEFORE BAYLEY, J. ORDER OF COURT AND NOW, this _________ day of October, 2003, the motion of defendant to IS DENIED. dismiss all charges pursuant to Section 110 of the Crimes Code, By the Court, Edgar B. Bayley, J. Michael Mervine, Esquire Assistant District Attorney Linda Hollinger, Esquire For Defendant :sal