Com. v. Winter

• Decision Date: 14 March 1984
• Citation: 324 Pa.Super. 258,471 A.2d 827
• Parties: COMMONWEALTH of Pennsylvania v. Roger Lee WINTER, Appellant. COMMONWEALTH of Pennsylvania v. Matt S. HILL, Appellant. COMMONWEALTH of Pennsylvania v. Ferron CROMWELL, Appellant.
• Court: Pennsylvania Superior Court

Page 827

471 A.2d 827

324 Pa.Super. 258

COMMONWEALTH of Pennsylvania v. Roger Lee WINTER, Appellant.

COMMONWEALTH of Pennsylvania v. Matt S. HILL, Appellant.

COMMONWEALTH of Pennsylvania v. Ferron CROMWELL, Appellant.

Superior Court of Pennsylvania.

Submitted March 9, 1983.

Filed Jan. 20, 1984.

Reargument Denied March 14, 1984.

George H. Newman, Philadelphia, for Winter, appellant.

Robert C. Fogelnest, Philadelphia, for Hill, appellant.

Alan Ellis, Philadelphia, for Cromwell, appellant.

Merrill W. Kerlin, Dist. Atty., McConnellsburg, for Commonwealth, appellee.

Before WICKERSHAM, BECK and MONTEMURO, JJ.

WICKERSHAM, Judge:

This is a consolidated appeal from orders of the Court of Common Pleas of Fulton County, denying the appellants' pre-trial motions to dismiss based on double jeopardy/collateral estoppel grounds. ¹

The facts are not in dispute. The appellants, Roger Winter, Matt Hill, and Ferron Cromwell, were charged with having committed several burglaries and theft related offenses in Fulton County as part of a multi-county ² burglary ring operating in south-central Pennsylvania in 1980-81.

One of the appellants, Ferron Cromwell, was tried in the Court of Common Pleas of Somerset County on a number of charges which arose in that county, and was acquitted by a jury on October 30, 1981. Appellants Hill and Winter were not tried for any offenses in Somerset County.

Subsequently, all three appellants filed pre-trial motions to dismiss the Fulton County cases on the ground that the prosecutions were barred by the doctrines of double jeopardy and collateral estoppel. Appellants claimed that the evidence presented at Cromwell's Somerset County trial was substantially the same as the evidence to be presented at the Fulton County trials; that the question of the accomplices' credibility as to appellants' involvement in the multi-county burglary ring had been litigated and rejected by the jury in Somerset County; and that the Commonwealth was attempting to relitigate an issue finally litigated in the Somerset County proceeding.

The lower court dismissed the pre-trial motions without hearings on November 20, 1981 and December 1, 1981. The court also filed an opinion in support of the decision to dismiss the motions, which we have examined closely. It is from the lower court's orders dismissing the motions that appellants have now appealed to this court.

Appellants present to us the following question:

Does collateral estoppel bar the instant prosecutions where the issue of appellants' involvement in a multi- county burglary ring was previously litigated in Somerset County and decided adversely to the Commonwealth?

Consolidated Brief for Appellants at 10. ³

In Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), the United States Supreme Court held that collateral estoppel was part of the fifth amendment's protection against double jeopardy and is applicable to the states through the fourteenth amendment under Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). Collateral estoppel means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot be litigated between the same parties in any future lawsuit. Ashe v. Swenson, supra, 397 U.S. at 443, 90 S.Ct. at 1194, 25 L.Ed.2d at 475. Even where the offense charged is not literally the same as the one previously tried, collateral estoppel bars relitigation between the same parties of issues actually determined at the previous trial. For example, in Ashe, the defendant had been tried and acquitted by a general verdict of the robbery of one of six poker players. The state then tried and convicted him of the robbery of another player. The Supreme Court reversed, holding that the issue of identity having once been determined by a jury in the defendant's favor, the state could not relitigate it in a subsequent prosecution against the same defendant for a "separate" offense.

Pennsylvania has a statute on the subject of collateral estoppel, 18 Pa.C.S.A. § 110, ⁴ which states in pertinent part:

§ 110. 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 the 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 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.

The differences between collateral estoppel and the traditional aspects of double jeopardy were laid out by the Pennsylvania Supreme Court in Commonwealth v. Hude, 492 Pa. 600, 425 A.2d 313 (1980):

First, collateral estoppel does not require that the offenses charged in the two prosecutions be the same. Second, collateral estoppel only bars a redetermination of those issues necessarily determined between the parties in the first proceeding. Third, collateral estoppel requires a final judgment in the first proceeding. Thus it becomes clear that while the traditional aspects of double jeopardy could readily be deemed inapplicable to a subsequent perjury prosecution of a criminal defendant, such is not the case with collateral estoppel. As the Ashe Court noted, collateral estoppel was intended to enhance the traditional double jeopardy protection and to provide relief from the growing threat of multiple prosecutions. To that end that Court directed the principle of collateral estoppel be applied with 'realism and rationality' and not 'applied with the hypertechnical and archaic approach of a 19th century pleading book.' Id. [397 U.S.] at 444, 90 S.Ct. at 1194.

Id. at 611-12, 425 A.2d at 319.

The approach set forth by Ashe to determine the applicability of the principle of collateral estoppel where a previous judgment of acquittal was based upon a general verdict, requires the court to

examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration. The inquiry must be set in a practical frame and viewed with an eye to all the circumstances of the proceedings.

Ashe v. Swenson, supra, 397 U.S. at 444, 90 S.Ct. at 1194, 25 L.Ed.2d at 475-76 (quotations omitted).

With this standard in mind, we now examine the appellants' arguments herein. Appellants contend that the issue litigated and finally decided in the Somerset County trial was the credibility of the prosecution witnesses as to appellants' involvement in a multi-county burglary ring, and that this is the very issue to be decided in the Fulton County cases. We find this contention to be erroneous.

Jurisdiction in criminal matters in Pennsylvania is countywide. Commonwealth v. Nichelson, 294 Pa.Super. 438, 440 A.2d 545 (1982). A court has no jurisdiction unless the act charged occurred in the county where the defendant is tried. Commonwealth v. Firestone, 253 Pa.Super. 577, 385 A.2d 489 (1978). Appellants Winter and Hill were not charged with burglary in Somerset County at all. Appellant Cromwell was charged with four counts of burglary related offenses in Somerset County and four unrelated burglaries in Fulton County. Therefore, appellants could only be tried in separate proceedings in the two counties. The crimes allegedly committed in Fulton County were on a different day, at a different place, in a different county. Different property was taken and different persons were involved. The factual situation of the crimes alleged in Fulton County is completely different from those crimes alleged in Somerset County.

In Commonwealth v. Harris, 275 Pa.Super. 18, 418 A.2d 589 (1980), the defendant was convicted in Montgomery County of an assortment of offenses, including terroristic threats. Earlier, he had been convicted in Philadelphia County of several crimes arising from the same incident, in which the victim had been forcibly taken from her home in Philadelphia to Montgomery County. Our court held that since the Court of Common Pleas of Philadelphia County had no jurisdiction to try the defendant for making terroristic threats in Montgomery County, prosecution for that crime in Montgomery County was not barred by the defendant's earlier convictions in Philadelphia County arising from the same incident.

In Commonwealth v. Nichelson, supra, the defendant was charged in Philadelphia County with a number of crimes arising from an incident in which the victim was kidnapped in Philadelphia and taken to Chester County where a number...