HomeMy WebLinkAbout95-1130 Criminal (2)COMMONWEALTH
V.
JASON F. PIPER
OTN: E779323-6
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 95-1130 CRIMINAL TERM
CHARGES: (A) BURGLARY
(B) CRIMINAL TRESPASS
(C) THEFT BY UNLAWFUL
TAKING
(D) THEFT BY RECEIVING
STOLEN PROPERTY
(E) UNAUTHORIZED USE
OF MOTOR VEHICLE
IN RE: DEFENDANT'S OMNIBUS PRETRIAL MOTION TO DISMISS
BEFORE OLER, J.
ORDER OF COURT
AND NOW, this Ii~ day of January, 1996, after careful
consideration of Defendant's omnibus pretrial motion in the form of
a motion to dismiss for violation of Section 110 of the Crimes
Code, following a hearing and for the reasons stated in the
accompanying opinion, the motion is DENIED.
BY THE COURT,
Michael S. Schwoyer, Esq.
Sr. Assistant District Attorney
William C. Vohs, Esq.
Court-appointed Attorney for Defendant
COMMONWEALTH
Ve
JASON F. PIPER
OTN: E779323-6
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 95-1130 CRIMINAL TERM
CHARGES: (A) BURGLARY
(B) CRIMINAL TRESPASS
(C) THEFT BY UNLAWFUL
TAKING
(D) THEFT BY RECEIVING
STOLEN PROPERTY
(E) UNAUTHORIZED USE
OF MOTOR VEHICLE
IN RE: DEFENDANT'S OMNIBUS PRETRIAL MOTION TO DISMISS
BEFORE OLER, J.
OPINION and ORDER OF COURT
Oler, J.
This case presents the issue of whether Defendant's instant
prosecution for burglary, criminal trespass, theft by unlawful
taking (an automobile), theft by receiving stolen property (the
automobile) and unauthorized use (of the automobile) is barred
under Section 110 of the Crimes Code by a former prosecution for an
M-3 theft by receiving stolen property (keys to the automobile),
where (a) the former prosecution was brought by a state trooper who
had been investigating unrelated incidents in areas of the county
not protected by local police, (b) the present prosecution was
brought by a local police officer for offenses occurring in his
jurisdiction, (c) the instant and previously prosecuted offenses
occurred two days apart, in different municipalities, under
different circumstances, (d) neither law enforcement officer was
apparently aware of the other's prosecution, and (e) evidence in
addition to that known to the state trooper was gathered by the
local officer prior to bringing the instant charges. For the
NO. 95-1130 CRIMINAL TERM
reasons stated in this opinion, the present prosecution will not be
held barred.
STATEMENT OF FACTS
On Sunday, January 1, 1995, between the hours of 1:00 a.m. and
10:00 a.m., the residence of Daniel and Susan Lightner in North
Middleton .Township, Cumberland County, Pennsylvania, was
burglarized.~ Stolen during the burglary were a 1991 Nissan 240-SX
automobile, keys to the automobile and a case of beer.2 The
Lightners promptly reported this event to the North Middleton
Township Police Department.3
On Tuesday, January 3, 1995, Pennsylvania State Trooper Nolan
Brewbaker applied for and obtained a search warrant for a residence
occupied by Defendant and his brother4 in the Borough of Carlisle,
Cumberland County, Pennsylvania, to search for evidence of a
burglary committed at a commercial establishment on January 2,
1995, in South Middleton Township, Cumberland County (a
municipality patrolled by the state police),s The basis for the
~ N.T. 16, Hearing, November 20, 1995 (hereinafter N.T. );
Commonwealth's Exhibit 4 (hereinafter Commonwealth's/Defendant,s
Exhibit __).
garage.
4
5
N.T. 17; Commonwealth's Exhibit 4. These items were in the
Id.
N.T. 16; Commonwealth's Exhibit 4.
Defendant's Exhibit 1.
Commonwealth's Exhibit 1; N.T. 11.
NO. 95-1130 CRIMINAL TERM
search warrant was the discovery on January 3, 1995, of a rifle
stolen in the burglary, and a pry bar, in an automobile occupied by
Defendant and his brother.6
The search warrant was executed by state police, accompanied
by Carlisle Borough police, at 1:40 p.m., on January 3, 1995.? In
Defendant's residence they found evidence from two other commercial
burglaries which had occurred in a part of the county patrolled by
the state police, as well as drugs, drug paraphernalia and a set of
car keys.8 One or more of the Carlisle Borough police were aware
of the North Middleton Township burglary in which the Nissan was
stolen, and surmised that the keys might fit that automobile.9
Trooper Brewbaker evidently believed that he lacked probable
cause to arrest Defendant for any of the burglaries in question.
He arrested him, however, for receiving stolen property from the
non-North Middleton Township burglaries and for use or possession
of drug paraphernalia, said offenses occurring on January 3, 1995.~°
The North Middleton Township burglary, being within the
jurisdiction of a municipal police department, was not a focus of
Id.
Id.
Commonwealth's Exhibits 1, 5; N.T. 11.
N.T. 11-12.
Commonwealth's Exhibit 5.
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NO. 95-1130 CRIMINAL TERM
the state trooper's investigative interest,~ and he at no time
investigated that burglary.~2
By January 18, 1995, when the preliminary hearing was held in
Trooper Brewbaker's case, the set of keys discovered in Defendant's
Carlisle residence had been identified as stolen in the North
Middleton Township burglary, and the trooper's complaint was
amended to charge receipt of that item on January 3, 1995, as an
additional offense.~3 At no time, however, did the trooper charge
Defendant with any burglaries or other offenses occurring prior to
January 3, 1995, as a result of his discovery of Defendant in
possession of stolen goods.
In North Middleton Township, the investigation of the burglary
of the Lightners' residence was conducted by North Middleton
Township Police Officer John J. Sancenito.TM The stolen Nissan was
discovered on January 4, 1995, in a municipal parking lot across
the street from Defendant's residence by a Carlisle Borough police
officer.~5 On January 5, 1995, Officer Sancenito interviewed a
daughter of the Lightners and was told that she had dated
Defendant, that Defendant knew the garage door code for the
N.T. 11.
N.T. 13.
Commonwealth's Exhibit 5; N.T. 27.
N.T. 16-17.
N.T. 17; Commonwealth's Exhibit 4.
NO.' 95-1130 CRIMINAL TERM
Lightner residence, and that he knew where their car keys were
hidden.~6
Officer Sancenito completed his investigation of the Lightner
burglary in late January or early February, 1995, with an interview
of a Cumberland County Prison inmate.~? He filed the instant
complaint charging burglary, criminal trespass, theft by unlawful
taking (the Nissan), theft by receiving stolen property (the
Nissan) and unauthorized use (of the Nissan) on March 23, 1995.~8
Defendant was arrested on these charges on June 1, 1995.~9
Meanwhile, Defendant pled guilty on April 25, 1995, to Trooper
Brewbaker's charges, including the M-3 theft-by-receiving charge
involving the car keys.2° (At this time, he also pled guilty to
participating in an assault on a man in October of 1994, and to
possession of instruments of crime in January of 1995.2~) He was
sentenced on these charges on May 12, 1995, by the Honorable Kevin
Commonwealth's Exhibit 4.
x7 N.T. 19-20.
~8 N.T. 16; Commonwealth's Exhibit 4.
~9 N.T. 18-19. When he filed the complaint, Officer Sancenito
was unaware of Defendant's whereabouts. A homicide within the
township and an otherwise heavy caseload caused an additional delay
in serving the arrest warrant. N.T. 19.
20 N.T. 6; Defendant's Exhibit 1.
Defendant's Exhibit 1.
NO. 95-1130 CRIMINAL TERM
A. Hess of this court.22
On October 30, 1995, Defendant filed the omnibus pretrial
motion to dismiss in Officer Sancenito's case which is presently
before the court. The motion is based on the premise that this
prosecution is barred under Section 110 of the Crimes Code by the
former prosecution for receipt of the car keys, brought by Trooper
Brewbaker.23
Prior to the filing of this motion, Officer Sancenito had been
unaware that Trooper Brewbaker had brought such a charge.~4 There
is similarly no evidence to suggest that Trooper Brewbaker was
aware prior to disposition of his charge of any charges of Officer
Sancenito.
DISCUSSION
Section 110 of the Crimes Code provides, in pertinent part,
that a subsequent prosecution will be barred by a former
prosecution where the former prosecution resulted in a conviction
and the subsequent prosecution is for
any offense ... 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 ....
22 N.T. 6.
23 N.T. 3-4; Order of Court, November 20,
of amendment of Defendant's motion).
24 N.T. 23.
6
1995 (recognition
NO. 95-1130 CRIMINAL TERM
Act of December 6, 1972, P.L. 1482, §1, 18 Pa. C.S. Sll0(1)(ii).
However, the section also provides an exception to this rule
where
the offense of which the defendant was
formerly convicted ... 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 ....
Id., 18 Pa. C.S. Sll0(1)(iii)(A).
Thus, in Commonwealth v. Meyers, 345 Pa. Super. 520, 498 A.2d
945 (1985), offenses of aggravated assault, resisting arrest,
recklessly endangering and several Vehicle Code violations were
held not to have arisen from the same criminal episode as various
drug offenses discovered by police on the same occasion, because
the nature of the offenses was dissimilar. Id. at 527, 498 A.2d at
949.
For purposes of Section 110, the "former prosecution" is the
prosecution which first terminates. Commonwealth v. Beatty, 500
Pa. 284, 455 A.2d 1194 (1983); Commonwealth v. Hoburn, 335 Pa.
Super. 536, 485 A.2d 24 (1984).
"The provisions of [Section] 110 serve two distinct policy
considerations." Commonwealth v. Meyers, 345 Pa. Super. 520, 525,
498 A.2d 945, 948 (1983).
The purposes of this section are to protect
the private citizen from harassment and
oppression through repeated efforts by
authorities to obtain a conviction, and to
NO.' 95-1130 CRIMINAL TERM
protect society's interest in avoiding
piecemeal litigation of criminal cases which
drain judicial resources.
Id. at 525-26, 498 A.2d at 948.
Analyses as to whether offenses have arisen "out of the same
criminal episode[s]" are necessarily conducted on a case-by-case
basis. Commonwealth v. Flenory, 351 Pa. Super. 27, 504 A.2d 1341
(1986). Factors to be considered in the determination include "the
temporal sequence of events, the logical relationship between the
acts and whether the offenses share common issues of law or fact.''2~
The burden of proof appears to be upon the Defendant in this
regard.2~
In Commonwealth v. Bellezza, 412 Pa. Super. 469, 603 A.2d 1031
(1992), the Pennsylvania Superior Court held that an offense of
drunk driving which occurred at 2:00 a.m. and an offense of
disorderly conduct toward police investigating the incident at a
hospital an hour and a half later did not arise from the "same
criminal episode" for purposes of Section 110 of the Crimes Code.
Id. at 480, 603 A.2d at 1037.
Finally, a determination of whether an offense was "known to
the appropriate officer" at the time of the commencement of the
first trial involves more than a consideration of whether the
25 Commonwealth v. Bellezza, 412 Pa. Super. 469, 480, 603 A.2d
1031, 1037 (1992).
~ Commonwealth v. Meyers, 345 Pa. Super. 520, 498 A.2d 945
(1983).
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NO. 95-1130 CRIMINAL TERM
officer was aware of the occurrence of the crime. The focus of the
inquiry is on what the officer knew or should have known, in the
form of admissible evidence, that would be sufficient to sustain a
conviction for the crime. Commonwealth v. Hall, 371 Pa. Super.
333, 538 A.2d 43 (1988). In this regard, it should be noted that
courts have been resistant to the proposition that possession of
recently stolen goods creates a presumption that the possessor was
the party who stole them. See Packel & Poulin, Pennsylvania
Evidence S307 (1987).
In Commonwealth v. Hall, 371 Pa. Super. 333, 538 A.2d 43
(1983), the Pennsylvania Superior Court held that a former
prosecution for unlawful sale of firearms did not bar a subsequent
prosecution for burglary, theft and conspiracy in connection with
the theft of the firearms, even though police in the first
prosecution were aware that the burglary and theft had occurred,
where evidence supporting the subsequent prosecution remained to be
discovered. Id. at 344, 538 A.2d at 49.
And in Commonwealth v. Norman, 262 Pa. Super. 45, 396 A.2d 476
(1978), the Superior Court held that a former prosecution for
receiving stolen carpet did not bar a subsequent prosecution for
burglary in connection with the theft of the carpet, where police
in the first prosecution merely suspected the defendant's
commission of the burglary and theft. Id. at 48, 396 A.2d at 477.
In the present case, a number of considerations lead the court
9
NO. 95-1130 CRIMINAL TERM
to conclude, based upon the foregoing review of the law, that
Defendant's former prosecution for receiving stolen car keys does
not bar this subsequent prosecution for burglary, criminal
trespass, theft of an automobile and unauthorized use. First,
there was no intent on the part of the law enforcement officers
involved to harass Defendant through multiple prosecutions or to
otherwise defeat the purpose of Section 110; neither appears to
have been aware of the other's prosecution.
Second, the offenses involved are dissimilar in nature. The
criminalization of the possession of stolen car keys, for instance,
serves a far different purpose from that of criminalization of an
unlawful entry into a residence, with (or without) a certain
intent.
Third, the offenses involved are removed from each other in
time (two days), location (different municipal jurisdictions).and
necessary logical connection. One may be guilty of possession of
stolen car keys at a residence in Carlisle Borough while having no
knowledge of, let alone participation in, a burglary in which the
keys were taken in North Middleton Township two days previously.
Finally, on the basis of the information known to Trooper
Brewbaker, the trooper acted reasonably in not charging Defendant
with the instant offenses when he commenced his prosecution for
possession of the stolen car keys. There is no evidence to suggest
that Trooper Brewbaker was privy to all of the information being
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NO. 95-1130 CRIMINAL TERM
collected by Officer Sancenito, and, indeed, the North Middleton
Township officer was still gathering evidence to support a filing
of the charges herein after the trooper had commenced his
prosecution.
For these reasons, the following order will be entered:27
ORDER OF COURT
AND NOW, this llth day of January, 1996, after careful
consideration of Defendant's omnibus pretrial motion in the form of
a motion to dismiss for violation of Section 110 of the Crimes
Code, following a hearing and for the reasons stated in the
accompanying opinion, the motion is DENIED.
BY THE COURT,
s/ J. Wesley Oler, Jr.
J. Wesley Oler, Jr., J.
Michael S. Schwoyer, Esq.
Sr. Assistant District Attorney
William C. Vohs, Esq.
Court-appointed Attorney for Defendant
: rc
27 No opinion is expressed herein as to the effect, if any,
of the doctrine of merger in this case as it relates to burglary
and theft by receiving. Cf. Act of December 6, 1972, P.L. 1482,
§1, 18 Pa. C.S. S3502; Commonwealth v. Carter, Pa. ,
n.4, 656 A.2d 463, 464 n.4 (1995); see also Commonwealth v. Flynn,
314 Pa. Super. 162, 460 A.2d 816 (1983).
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