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HomeMy WebLinkAbout01-2391 CRIMINALCOMMONWEALTH VS. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 01-2391 CRIMINAL MICHAEL SCOTT GOODHART IN RE: DEFENDANT'S OMNIBUS PRETRIAL MOTION BEFORE HESS, J. OPINION AND ORDER Before the court is a motion to quash the information in this case which alleges Criminal Mischief. The events giving rise to the charges occurred on August 20, 2001. According to the police complaint, two white males, Anthony M. Smuro and the defendant, Michael S. Goodhart, yelled racial epithets at Chalmers Carpenter, an African-American. During the incident, which took place at the East Penn Commons Shopping Center in Enola, Cumberland County, Mr. Smuro allegedly smashed the windshield of Mr. Carpenter's vehicle. On or about August 29, 2001, Detective Richard Dougherty of the East Pennsboro Township Police Department filed a criminal complaint with District Justice Robert V. Manlove charging Mr. Goodhart with Criminal Mischief and Ethnic Intimidation. At the end of the preliminary hearing, the Criminal Mischief charge against the defendant was dismissed though the count of Ethnic Intimidation was bound over. On January 18, 2002, Assistant District Attorney Edmund Zigmund filed a criminal information charging the defendant with a count of Ethnic Intimidation and (notwithstanding the fact that it had been dismissed by the District Justice) a count of Criminal Mischief. 01-2391 CRIMINAL Rule 560(b)(5) of the Pennsylvania Rules of Criminal Procedure (2002) states that the criminal information must contain "a plain and concise statement of the essential elements of the offense substantially the same as or cognate to the offense alleged in the complaint." In this case, the offenses alleged in the complaint were Criminal Mischief and Ethnic Intimidation. The charge of Criminal Mischief, as we have noted, was dismissed at the preliminary hearing. The rather narrow question is thus presented: Whether an information may be filed alleging Criminal Mischief because it is "substantially the same as or cognate to" the offense of Ethnic Intimidation. Black's Law Dictionary defines a cognate offense as "[a] lesser offense that is related to the greater offense because it shares several of the elements of the greater offense and is of the same class or category." Black's Law Dictionary 1108 (7th ed. 1999). The first step in determining whether or not Criminal Mischief is "substantially the same as or cognate to" Ethnic Intimidation involves an analysis of the elements of both offenses. Defendant is being charged as an accomplice, under 18 Pa.C.S.A. {}3304(a)(2), which provides that a person is guilty of Criminal Mischief if he "intentionally or recklessly tampers with tangible property of another so as to endanger person or property." Under 18 Pa.C.S.A. {} 2710(a): A person commits the offense of ethnic intimidation if, with malicious intention toward the race, color, religion or national origin of another individual or group of individuals, he commits an offense under any other provision of this article or under Chapter 33 (relating to arson, criminal mischief and other property destruction) exclusive of section 3307 (relating to institutional vandalism) or under section 3503 (relating to criminal trespass) or under section 5504 (relating to harassment by communication or address) with respect to such individual or his or her property or 2 01-2391 CRIMINAL with respect to one or more members of such group or to their property. The Commonwealth argues that because Criminal Mischief is one of the offenses listed in § 2710(a), then the two offenses must be similar or cognate to each other. Answer to Def's Omnibus Pretrial Mot., filed April 15, 2002, para. 14. It is important to note however that Ethnic Intimidation can be found if the person committed a number of crimes independent of Criminal Mischief, including Arson, Harassment by Communication, or Criminal Trespass. 18 Pa.C.S.A. § 2710(a). The court in Commonwealth v. Kozac, 21 Pa. D. & C.4th 362 (1993), explained the relationship between Ethnic Intimidation and these aforementioned crimes, by stating, "[t]he offense [of Ethnic Intimidation] is predicated or 'piggybacked' on the conviction of the accused for one of these other crimes." Id. at 367. The court, in its analysis, never says that Criminal Mischief shares any elements of Ethnic Intimidation. According to the court, the only existing relationship between Ethnic Intimidation and the other crimes is that to obtain a conviction for Ethnic Intimidation, one of the other crimes must also have been committed. Id.~ Under the appropriate circumstances, courts have found that certain offenses are cognate to other offenses. In Commonwealth v. Slingerland, 358 Pa. Super. 531,518 A.2d 266 (1986), the defendant was charged with violating 75 Pa.C.S. § 373 l(a)(1), which states that a person should not drive a vehicle "while under the influence of alcohol to a degree which renders the person incapable of safe driving." After that, the Commonwealth filed an information that For this reason, the ruling of the District Justice in this case appears incongruous. 01-2391 CRIMINAL included a charge under § 373 l(a)(4), which states that a person should not operate a vehicle "while the amount of alcohol by weight in the blood of the person is 0.10% or greater." Id. at 532, 518 A.2d at 267. The court upheld a conviction under subsection (a)(4), even though it was not charged in the complaint. Id. at 535, 518 A.2d at 268. The court determined that the two offenses were cognate, because each subsection was intended to punish those who operate a vehicle after they have had too much alcohol, and to help prevent the accidents that occur when people drive while intoxicated. Id. In a case procedurally similar to our case, the court determined that an offense dismissed at the district justice level is not precluded from being entered into the information, if it is cognate to another offense that was not dismissed. Commonwealth v. Jacobs, 433 Pa. Super. 411, 640 S.2d 1326 (1994). The Jacobs case also dealt with § 373 l(a)(1) and (a)(4) of the Vehicle Code. Our case is distinguishable from the foregoing decisions in two important aspects. First, the offenses in those cases were both subsections of the same section. Second, the purpose behind each subsection was the same, making each offense "of the same class or category." Criminal Mischief and Ethnic Intimidation, however, do not deal with similar conduct. They are also not listed under a common section and they do not aim at punishing or deterring similar behavior. In Commottwealth v. Perdue, 387 Pa. Super. 473,564 A.2d 489 (1989), the court concluded that Criminal Mischief and Institutional Vandalism, both crimes involving destruction of property, do not share the same elements. The context of the court's discussion of the elements in Perdue pertained to merging offenses for the purpose of sentencing, and their 4 01-2391 CRIMINAL conclusion was that the two crimes did not share the same elements. Id. at 488, 564 A.2d 496. (Emphasis added). IN Commonwealth v. Slick, 14 Pa. D. & C.3d 129 (1980), the district attorney added to the information the offense of arson, after only filing attempted arson and conspiracy to commit arson in the criminal complaint. Id. at 132. The court found the offense of arson to be an additional and separate offense from attempted arson and conspiracy to commit arson. See Id. at 130-133. Although all three offenses in some way involved arson, the court stated: The offense of arson is legally distinguishable from the offense of attempted arson and conspiracy to commit arson. The elements of each offense are different and the difference is significant. We are satisfied that the offenses involved here are not cognate, and that under the circumstances, the district court was without the authority to charge the additional offense of arson in the information. Id. at 132. A similar situation occurred in Commonwealth v. Logan, 348 Pa. Super. 146, 501 A.2d 689 (1985). IN that case, the appellant had been charged in the complaint as a conspirator with an individual named Lewis Terry. Id. at 148, 501 A.2d at 690. A lower court found the appellant guilty as a conspirator with someone named Theodore Scott, but the Superior Court reversed the conviction. Id. "Finding appellant guilty of conspiracy with Mr. Scott, as the lower court opinion suggests, is finding her guilty of a separate offense, noncognate to the one charged in the complaint." Id. at 148, 149, 501 A.2d at 691. As can be seen by the foregoing discussion, the mere fact that Criminal Mischief is one of several offenses which could lead to a charge of Ethnic Intimidation, does not make the two offenses cognate. Criminal Mischief involves the willful or wanton destruction of property. 01-2391 CRIMINAL Ethnic Intimidation involves a malicious act directed at a person because of his race, ethnicity, etc. These offenses are clearly not "substantially the same." ORDER AND NOW, this day of June, 2002, the motion of the defendant to quash the information charging Criminal Mischief is GRANTED. BY THE COURT, Edmund Zigmund, Esquire Assistant District Attorney Christopher Marzzacco, Esquire For the Defendant :rlm KevinA. Hess, J. COMMONWEALTH VS. MICHAEL SCOTT GOODHART IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 01-2391 CRIMINAL IN RE: DEFENDANT'S OMNIBUS PRETRIAL MOTION BEFORE HESS, J. ORDER AND NOW, this day of June, 2002, the motion of the defendant to quash the information charging Criminal Mischief is GRANTED. BY THE COURT, Edmund Zigmund, Esquire Assistant District Attorney Christopher Marzzacco, Esquire For the Defendant :rlm KevinA. Hess, J.