Com. v. Hunter

• Decision Date: 08 February 2001
• Citation: 768 A.2d 1136
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Nathaniel HUNTER, Appellant.
• Court: Pennsylvania Superior Court

768 A.2d 1136

COMMONWEALTH of Pennsylvania, Appellee, v. Nathaniel HUNTER, Appellant.

Superior Court of Pennsylvania.

Submitted September 18, 2000.

Filed February 8, 2001.

Christopher A. Feliciani, Greensburg, for appellant.

Andrea F. McKenna, Asst. Dist. Atty., Harrisburg, for Com., appellee.

Before HUDOCK, HESTER, and OLSZEWSKI, JJ.

OLSZEWSKI, J.:

¶ 1 Nathaniel Hunter appeals his judgment of sentence. We affirm.

¶ 2 In 1996, a jury found appellant guilty "of third degree murder and three counts of violating Pennsylvania's Corrupt Organizations Act ("COA")," but found him not guilty of criminal conspiracy. Commonwealth v. Hunter, No. 914 Pittsburgh 1997, unpublished memorandum at 1, 726 A.2d 411 (Pa.Super. filed Aug. 6, 1998) (footnotes omitted). A panel of this Court vacated appellant's judgment of sentence and remanded for a new trial because of an evidentiary error. See id. at 6-7. Following a second trial, a jury found appellant guilty of corrupt organizations (acquire or maintain interest), corrupt organizations (conduct or participate), and corrupt organizations (conspiracy) but not guilty of criminal homicide. See Jury Verdict Form, 11/8/99; see also N.T., 11/8/99, at 978. The trial judge sentenced appellant to two to four years' imprisonment to be served consecutively to previous sentences. N.T. Sentencing Proceedings, 1/7/00, at 49-50. This appeal followed.

¶ 3 Appellant raises six dense issues:

I. Whether the lower court erred in finding that the Court of Common Pleas of Westmoreland County[,] Pennsylvania had subject matter jurisdiction over the within charges even though the Commonwealth failed to establish that any of the acts in [sic] which the appellant was convicted occurred in Westmoreland County, Pennsylvania.

II. Whether the court erred in upholding the verdicts at each of the corrupt organization charges in finding that the Commonwealth had established the existence of a "legitimate enterprise" within the meaning of the Pennsylvania corrupt organization statute and the Pennsylvania Supreme Court's ruling in Commonwealth vs. Besch [544 Pa. 1], 674 A.2d 655 (Pa.1996).

III. Whether the Commonwealth presented sufficient evidence to establish that the appellant "acquired or maintained an interest in or control of an enterprise while employed by or associated with an enterprise engaged in commerce consisting of trafficking in controlled substances" within the meaning of the Pa.C.O.A. Title 18 Pa.C.S. § 911(h)(1) or 911(b)(2) [sic] as charged, all of which was in contradiction with the holding in Commonwealth vs. Besch [ 544 Pa. 1], 674 A.2d 655 (Pa.1996).

IV. Whether the verdicts at all three counts of the corrupt organizations statute were against the weight of the evidence in that the Commonwealth failed to establish the appellant's involvement in the underlying predicate act of possession and possession with intent to deliver a controlled substance as designated by the jury on the verdict slip or that the appellant acquired or maintained any interest in the alleged enterprise.

V. Whether the trial court erred in imposing an improper sentence upon the appellant which was outside the standard sentencing guidelines while considering matters on the record concerning the appellant's prior convictions as well as prior bad acts of misconduct, all of which was unfair and in error[.]

VI. Whether the trial court erred in allowing the Commonwealth to introduce excerpts of the appellant's testimony from his first trial by reading the transcripts of the first trial to the jury at appellant's second trial[.]

Brief for Appellant at 3-4 (capitalization omitted). Appellant's Statement of Questions Involved spans forty lines and one and a half pages, contrary to Rule 2116(a), which says that such statement "should not ordinarily exceed 15 lines, [and] must never exceed one page." Pa.R.A.P. 2116(a). As we have before in such a case, we turn appellant's attention to the following quote:

With a decade and a half of federal appellate court experience behind me, I can say that even when we reverse a trial court it is rare that a brief successfully demonstrates that the trial court committed more than one or two reversible errors. .... [W]hen I read an appellant's brief that contains ten or twelve points, a presumption arises that there is no merit to any of them. I do not say that this is an irrebuttable presumption, but it is a presumption nevertheless that reduces the effectiveness of appellate advocacy. Appellate advocacy is measured by effectiveness, not loquaciousness. Aldisert, The Appellate Bar: Professional Competence and Professional Responsibility—A View from the Jaundiced Eye of One Appellate Judge, 11 Cap.U.L.Rev. 445, 458 (1982).

Estate of Lakatosh, 441 Pa.Super. 133, 656 A.2d 1378, 1380 n. 1 (quoting United States v. Hart, 693 F.2d 286, 287 n. 1 (3d Cir. 1982)). Further, appellant has failed to include a copy of the trial court opinion. This is a direct violation of Pa.R.A.P. 2111(b), which reads: "There shall be appended to the brief a copy of any opinions delivered by any court ... below relating to the order or other determination under review, if pertinent to the questions involved." Because we can still adequately review appellant's claims, though, we decline to dismiss his appeal.

¶ 4 Before we can discuss the merits of appellant's claims, however, we can dispose of one of his issues on other grounds. Appellant failed to comply sufficiently with Pa.R.A.P.1925(b), which allows the lower court to order the appellant to submit "a concise statement of the matters complained of on the appeal...." Pa. R.A.P.1925(b). While appellant completed a Rule 1925(b) statement, he neglected to raise issue six in that statement. Our Supreme Court has held:

From this date [October 28, 1998] forward, in order to preserve their claims for appellate review, Appellants must comply whenever the trial court orders them to file a Statement of Matters Complained of on Appeal pursuant to Rule 1925. Any issues not raised in a 1925(b) statement will be deemed waived.

Commonwealth v. Lord, 553 Pa. 415, 719 A.2d 306, 309 (1998) (emphasis added). Consequently, appellant has waived issue six on appeal. We now turn to appellant's five remaining issues.

¶ 5 Appellant first claims that the Court of Common Pleas of Westmoreland County, where appellant's trial took place, did not have jurisdiction because the Commonwealth failed to prove that any of appellant's criminal acts took place in Westmoreland County.¹See Brief for Appellant at 8. In fact, the Commonwealth charged appellant with criminal homicide arising from a homicide in Westmoreland County and with various corrupt organizations charges originating in Fayette County. See Trial Court Opinion in Support of Order Appealed Filed Pursuant to Pennsylvania Rule of Appellate Procedure No.1925(a) [hereinafter "Trial Court Opinion"], 4/14/00, at 8, 2. As noted above, the jury acquitted appellant of the criminal homicide charge. Appellant maintains that because none of his activities relating to corrupt organizations occurred in Westmoreland County, the Court of Common Pleas of Westmoreland County lacked subject matter jurisdiction over those charges. See Brief for Appellant at 9. Our Supreme Court spoke on this subject in Commonwealth v. McPhail, 547 Pa. 519, 692 A.2d 139 (1997) (plurality decision). In McPhail, the appellant sold drugs to an undercover police officer in both Allegheny and Washington Counties. See id. at 140. He was charged in both counties, pleaded guilty to the Washington County offenses, and moved to dismiss the Allegheny County charges pursuant to 18 Pa.C.S. § 110. Section 110 bars prosecution when a defendant's offenses in more than one county all "`aris[e] from the same criminal episode' " and were "`within the jurisdiction of a single court.'" Id. at 141 (quoting 18 Pa.C.S. § 110) (emphasis omitted). Consequently, the Court had to determine "whether all the offenses were within the jurisdiction of a single court." Id. A plurality of the Court determined that "the Court of Common Pleas of Washington County had subject matter ... jurisdiction over the offenses allegedly committed by appellant in Allegheny County", and that "the Court of Common Pleas of Allegheny County had jurisdiction over the offenses committed in Washington County" because all offenses arose from the same criminal episode. Id. at 144, n. 5. Section 110 therefore barred the appellant's prosecution in Allegheny County. See id. at 145. While certainly "the Supreme Court's decision in McPhail ... is a plurality decision, and thus has limited precedential value," Commonwealth v. Travaglia, 723 A.2d 190, 193 n. 2 (Pa.Super.1998), "it can no longer be disputed that courts of common pleas have statewide jurisdiction and may preside over trials which take place beyond the territorial limits of the county in which the court sits," Commonwealth v. Wittenburg, 710 A.2d 69, 73 (Pa.Super.1998).

¶ 6 Our own Court has recently spoken on this issue as well. In Commonwealth v. Bethea, 761 A.2d 1181, 1183-84 (Pa.Super.2000), the Commonwealth charged the appellant with illegal substance offenses in Cumberland County in 1998 and with driving with a suspended license in Franklin County in 1999. The appellant's trial was in Franklin County on all charges. See id. at 1184. This Court reversed, holding that the Court of Common Pleas of Franklin County had no jurisdiction over the illegal substance charges. See id. In doing so, the Court determined that "a condition precedent to the exercise by a single county of jurisdiction in a case involving multiple offenses in various counties is: the offenses must constitute a single criminal episode." Id. (emphasis omitted). Because "[t]he offenses were neither `logically or temporally related [nor did they] share common issue of law and fact,'" they did not constitute a single criminal episode. Id. (quoting McPhail, 692 A.2d at 141). Consequently, we...