HomeMy WebLinkAbout99-1408 criminal appealJ. A29002/00
COMMONWEALTH OF PENNSYLVANIA,
Appellee
V.
BRIAN KEITH HARMAN
Appellant
IN THE SUPERIOR COURT OF
PEN N SYLVAN IA
No. 446 MDA 2000
Appeal from the Judgment of Sentence entered January 14, 2000
in the Court of Common Pleas of Cumberland County,
Criminal, at No. 99-1408.
BEFORE: CAVANAUGH, DEL SOLE and TAMILIA, JJ.
MEMORANDUM: i= I L E ID SEP ~ D 2OO0
After a nonjuFy trial, Appellant Brian Keith Harman was convicted of
robbery, conspiracy, theft by unlawful taking, and theft by receiving stolen
property. He was sentenced to 7 to 20 years' imprisonment plus restitution.
The sole issue raised on this direct appeal is whether the trial court erred in
denying Appellant's motion to dismiss based on 18 Pa.C.S.A. § 110. We
affirm.
The present charges arose out of a robbery that occurred on February
18, 1999, at the Carlisle Plaza Mall in the borough of Carlisle. The Carlisle
Police filed the criminal complaint against Appellant on June 21, 1999. Trial
was set for the October trial term which began on October 25, 1999. The
codefendants are Shawn Gessler and Michael Powers. Appellant, Gessler,
and Powers were separately charged with the robbery of Karns Market in
South Middleton Township. That robbery occurred on March 23, 1999, and
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the complaint was filed by Pennsylvania State Police on April 1, 1999. Trial
was set for the September term of court. On August 4, :L999, the
Commonwealth served notice that it intended to try the two cases together.
The Commonwealth did not, however, obtain consolidation of the two cases
and only the Karns Market case was tried on September 21, 1999. Appellant
was convicted. On November 4, 1999, Appellant filed a motion to dismiss
the Carlisle Plaza case on the basis of § 110 of the Crimes Code. The trial
court denied the motion. Appellant then proceeded to a nonjury trial and
was convicted and sentenced. This appeal followed.
the basis of 18 Pa.C.S.A. § 110(1)(i). Section 110 provides
subsequent prosecution is barred by a former prosecution when:
(1) The former prosecution resulted in an acquittal or in
conviction ... 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 ... or
(iii) the same conduct ....
18 Pa.C.S.A. § 110(1).
Appellant
cases together
Commonwealth from trying him on the present case.
Appellant argues that the trial court should have granted his motion on
that a
contends that the Commonwealth could have tried both
and therefore subsection (i) applies to preclude the
We disagree.
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The compulsory joinder rule set forth in § 110 serves two distinct
policy considerations: (1) to protect a defendant from the governmental
harassment of being subjected to 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. Commonwealth v. Hude, 458
A.2d 177 (Pa. 1983); Commonwealth v. Couch, 731 A.2d 136 (Pa. Super.
1999). As stated in Commonwealth v. McPhail, 692 A.2d 139 (Pa. 1997),
the purpose behind Section 110 is to "shield the accused from duplicitous,
sequential trials. Such trials promise unnecessary delay, unnecessary
expense to the accused and the Commonwealth, unnecessary duplication
of judicial resources, and unnecessary aggravation to the accused and
witnesses." ~rd. at :L44 fn.4. Clearly the thrust of § 110 is to prevent
duplicate trials based on the same facts, witnesses, etc., rather than to
accommodate a defendant who has been charged as a result of two totally
separate incidents.
Presently, Appellant was charged by two separate police forces with
two separate robberies, occurring in different locations and over a month
apart. There is no doubt that the facts of these cases do not bring them
under subsection (ii). See, e.g., Commonwealth v. Woodrow, 743 A.2d
458 (Pa. Super. 1999), appeal denied, 2000 Pa. Lexis 841 (Pa. Filed Apr. 11,
2000) (18 residential burglaries committed in 17 days in 3 counties did not
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constitute a single criminal episode). ]Indeed Appellant does not even make
an argument under subsection (ii). Rather Appellant contends that, because
the Commonwealth stated its intention to try the cases together, the
Commonwealth could have consolidated the cases and he could have been
convicted on these charges, thus bringing him within the ambit of subsection
(i). However Appellant concedes that the Commonwealth did not present
any evidence relating to the Carlisle Plaza case at the previous trial. Since
no evidence of the Carlisle Plaza robbery was presented, Appellant could not
have been convicted of these charges at the previous trial and subsection (i)
does not apply. Therefore, Appellant's claim has no merit. Accordingly, we
affirm the judgment of sentence.
.ludgment of sentence affirmed.
Date: SEP 2 9 .q300
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