HomeMy WebLinkAbout99-1408 criminalCOMMONWEALTH
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
BRIAN KEITH HARMAN 99-1408 CRIMINAL TERM
IN RE: MOTION TO DISMISS PURSUANT TO
SECTION 110 OF THE CRIMES CODE_
BEFORE BAYLEY. J_.
OPINION
Bayley, J., November 16, 1999:-
This opinion is filed in support of an order entered on November 10, 1999,
denying defendant's motion to dismiss pursuant to Section 110 of the Crimes Code. ·
Defendant, Brian Keith Harman, is charged at this term and number, 99-1408, with
counts of robbery? conspiracy? theft? and receiving stolen property.4 These charges
arise out of an incident that allegedly occurred on February 18, 1999, at the Carlisle
Plaza Mall in the Borough of Carlisle. The Carlisle Police filed a criminal complaint
against defendant on June 21, 1999. Shawn Gessler and Michael Powers are
' 18 Pa.C.S. § 3701(a)(1) (ii) (iii) and (iv).
2 18 Pa.C.S. § 903.
3 18 Pa.C.S. § 3921(a).
"18 Pa.C.S. § 3925.
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codefendants. On August 10, 1999, defendant was formally arraigned for the October
trial term commencing on October 25, 1999. Defendant has been continuously
represented in the case by assistant public defender, William Braught, Esquire.
In a separate case docketed at 99-0736, a complaint was filed against defendant
by the Pennsylvania State Police on April 1, 1999, charging multiple counts of robbery,
simple assault, recklessly endangering another person, theft and-receiving stolen
property that allegedly occurred on March 23, 1999, at a Karns Market in South
Middleton Township. Codefendants in the case are Shawn Gessler and Mike Powers.
Defendant was formally arraigned on May 21, 1999, and trial was set for the September
term of court commencing on September 7, 1999. Defendant has been continuously
represented in this Karns Market case by assistant public defender Samuel Milkes,
Esquire.
When defendant was formally arraigned on the within Carlisle Plaza charges on
August 10, 1999, and his trial date was set for October 25, 1999, the Commonwealth
served him with a notice stating that "[t]he Commonwealth intends to try the above-
captioned cases together." (Emphasis added.) The cases listed in the notice are the
Carlisle Plaza case, the Karns Market case, and the cases involving the codefendants
Shawn Gessler and Michael Powers.
In the Karns Market case, defendant filed a second supplemental omnibus
pretrial motion for relief on July 6, 1999. He sought, inter alia, consolidation of the
Karns Market case with the Carlisle Plaza case and other charges that were pending
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against him in Dauphin County. A hearing was conducted on August 17, 1999. On
September 14, 1999, an order was entered, supported by a written opinion by Guido,
J., denying defendant's motion for consolidation. The court rejected defendant's
argument that the cases involved one single episode and should be consolidated under
the holding in Commonwealth v. McPhail, 547 Pa. 519 (1997). The Commonwealth
called the Karns Market case to trial on September 21, 1999. Defendant was
convicted of various counts, and sentenced on October 19, 1999, to not less than
seven years or more than twenty years in a state correctional institution.
On November 4, 1999, pursuant to the Crimes Code at 18 Pa.C.S. Section
110(1)(i), defendant filed the within motion in this Carlisle Plaza case to dismiss these
charges for which he is now scheduled to commence trial on November 15, 1999. A
hearing was conducted on November 8, 1999.
Section 110 of the Crimes Code provides in its entirely:
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 same
offense) and the subsequent prosecution is for:
(i) any offense of which the defendant could have
been convicted on the first prosecution;
(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
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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; or
(iii) the same conduct, unless:
(A) the offense of which the defendant was
formerly convicted or acquitted and the offense for
which he is subsequently prosecuted each requires
proof of a fact not required by the other and the law
defining each of such offenses is intended to prevent
a substantially different harm or evil; or
(B) the second offense was not consummated
when the former trial began.
(2) The former prosecution was terminated, after the indictment
was found, by an acquittal or by a final order or judgment for the
defendant which has not been set aside, reversed or vacated and which
acquittal, final order or judgment necessarily required a determination
inconsistent with a fact which must be established for conviction of the
second offense.
(3) The former prosecution was improperly terminated, as
improper termination is defined in section 109 of this title (relating to when
prosecution barred by former prosecution for same offense) and the ..
subsequent prosecution is for an offense of which the defendant could
have been convicted had the former prosecution not been improperly
terminated. (Emphasis added.)
In Commonwealth v. Beatty, 500 Pa. 284 (1983), the Supreme Court of
Pennsylvania stated that the purpose of Section 110 of the Crimes Code is to prevent
the type of governmental harassment of a defendant that would offend double jeopardy
concerns. It also stated that it is fundamental that a rule of law should not be applied
where its application fails to serve the purpose for which it was designed. In
Commonwealth v. Kresge, 317 Pa. Super. 405 (1983), the Superior Court of
Pennsylvania stated:
It]he provisions of § 110 were designed to promote two distinct policy
considerations (1) the protection of a person accused of crimes from
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governmental harassment by being forced to undergo successive trials for
offenses stemming from the same criminal episode; and (2) as a matter of
judicial administration and economy, the promotion of finality in litigation
and the avoidance of unnecessarily burdening the judicial process by
repetitious litigation. Commonwealth v. Hude, 500 Pa. 482,458 A.2d 177
(1983). An interpretation that would enable appellant to escape
prosecution for the more serious firearms violation, by the payment of a
fine for a summary game law violation, would ridicule reason and defy the
logic and purpose of the principles that have been established in this area
of the law by both judicial and legislative edict.
Pa.R.Crim. P. 1127 titled "Joinder- Trial of Separate Indictments or
Informations," provides:
A. Standards.
(1) Offenses charged in separate indictments or
informations may be tried together if:
(a) the evidence of each of the offenses would be
admissible in a separate trial for the other and is capable of
separation by the jury so that there is no danger of confusion; or
(b) the offenses charged are based on the same act or
transaction.
(2) Defendants charged in separate indictments or informations
may be tried together if they are alleged to have participated in the same
act or transaction or in the same series of acts or transactions constituting
an offense or offenses. B. Procedure,
(1) Written notice that offenses or defendants charged in
separate indictments or informations will be tried together shall be
served on the defendant at or before arraignment. A copy of the
notice shall be filed with the clerk of courts,
(2) When notice has not been given under paragraph B(1), any
party may move to consolidate for trial separate indictments or
informations, which motion must ordinarily be included in the omnibus
pretrial motion. (Emphasis added.)
The Comment to Rule 1127 states that:
Under the scheme set forth in this rule, it can be assumed that offenses
charged in the same indictment or information will be tried together ....
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99-1408 CRIMINAL TERM
Absent joinder in the same indictment or information or absent written
notice pursuant to paragraph B(1), a motion for consolidation is required
under paragraph B(2). A party may oppose such a motion either on the
ground that the standards in paragraph A are not met, or pursuant to Rule
1128.
Rule 1128 provides:
SEVERANCE OF OFFENSES OR DEFENDANTS
The court may order separate trials of offenses or defendants or
provide other appropriate relief, if it appears that any party may be
prejudiced by offenses or defendants being tried together.
In Commonwealth v. Lark, 518 Pa. 290 (1988), the Supreme Court of
Pennsylvania stated that Rules 1127 and 1128 were adopted:
[i]n order to conform to this Court's decision in Commonwealth v. Morris,
493 Pa. 164, 425 A.2d 715 (1981), (see comment to Pa.R.Crim. P. Rule
1127) which first enunciated the above standards after weighing the
conflicting interests of the defendant (who wishes to avoid the possibility
of prejudice and injustice caused by consolidation of offenses) and of the
Commonwealth and her citizens (judicial economy and legitimate
evidentiary considerations). In Morris, we held that the propriety of joinder
of offenses, consolidation of separate indictments and severance of
offenses for separate trials were matters addressed to the sound
discretion of the trial court and that the exercise of discretion by the trial
court would only be reversed on appeal for manifest abuse of discretion or
prejudice and clear injustice to the defendant.
Although the Carlisle Plaza and Karns Market cases were allegedly committed
by the same perpetrators, the offenses were in different municipalities and separated
by twenty-six days. Separate informations were filed against defendant in each case.
We agree with Judge Guido, when he denied defendant's motion to consolidate the
cases, that under Commonwealth v. Hude, 500 Pa. 482 (1983), the cases are not
logically related to each other. The Commonwealth was under no requirement to join
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the cases, and it only provided a notice_ to defendant on August 10, 1999, pursuant to
Pa.R.Crim.P. 1127B(1), that it was its intent to try the cases together. The order of
Judge Guido on September 14, 1999, superseded that notice. When the Karns Market
case went to trial on September 21, 1999, a trial date of October 25, 1999, that had
already been ordered in the Carlisle Plaza case was still in effect. Accordingly, the
situation does not involve defendant having to undergo excessive trials for offenses
stemming from the same criminal episode. Separately trying the cases arising from
separate incidents does not burden the judicial process by repetitious litigation.
Defendant has not been harassed such as would offend double jeopardy concerns.
Dismissing the Carlisle Plaza charges against defendant would ridicule reason and
defy the logic and purpose of the principles that have been established by the
legislature in Section 110 of the Crimes Code, and by the Pennsylvania Supreme
Court in Pa.R.Crim. P. 1127B(1). As set forth by the Supreme Court in
Commonwealth v. Beatty, supra, "lilt is fundamental that a rule of law should not be
applied where its application fails to serve the purposes for whic..hj[,was designed."
' (Date) ! Edgar B. Ba~ley, J. ~
William I. Gabig, Esquire
For the Commonwealth
William Braught, Esquire
For the Defendant
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