Commonwealth v. Bethea

• Decision Date: 22 July 2003
• Citation: 828 A.2d 1066,574 Pa. 100
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. Rondu A. BETHEA, Appellee.
• Court: Pennsylvania Supreme Court

828 A.2d 1066

574 Pa. 100

COMMONWEALTH of Pennsylvania, Appellant, v. Rondu A. BETHEA, Appellee.

Supreme Court of Pennsylvania.

Argued May 14, 2002.

Decided July 22, 2003.

John Michael Lisko, Waynesboro, for Commonwealth of Pennsylvania, Appellant.

Gregory Barton Abein, for Appellee.

Before ZAPPALA, Former Chief Justice, and CAPPY, CASTILLE, NIGRO, NEWMAN, SAYLOR, AND EAKIN, JJ.

OPINION OF THE COURT

Chief Justice CAPPY.

This appeal concerns the distinction between venue and subject matter jurisdiction. The discrete question presented is whether the Court of Common Pleas of Franklin County had subject matter jurisdiction to hear and decide the case against Rondu Bethea involving violations of the Pennsylvania Crimes Code, ("Crimes Code") when the underlying criminal episode occurred in Cumberland County. As we find that the Franklin County Court of Common Pleas did have subject matter jurisdiction, the decision of the Superior Court is reversed.

The factual predicate for the convictions at issue can be briefly summarized. On April 14, 1998, Mr. Bethea, Appellee herein, delivered 12 grams of crack cocaine to a confidential informant in exchange for $400. The exchange occurred at a business establishment known as "All That Stuff", located at 3 North Earl Street, in Shippensburg, Cumberland County, Pennsylvania. As a result of this incident in Cumberland County Appellee was arrested on August 21, 1998 and charged with delivery of a controlled substance, 35 P.S. § 780-113(30), and conspiracy to deliver a controlled substance, 18 Pa.C.S.A. § 903. Appellee was scheduled for trial on these charges in Franklin County, Pennsylvania.

On March 7, 1999, Appellee was arrested for driving a car while under a suspended license which led to his being charged as a habitual offender under 75 Pa.C.S. § 1542. The March arrest took place in Chambersburg, Franklin County, Pennsylvania and the matter proceeded to trial in Franklin County.

Appellee was tried before a jury in Franklin County on June 24, 1999 and convicted on the drug and conspiracy charges arising from the incident in Cumberland County. In an unrelated proceeding, on July 9, 1999, Appellee entered a plea of guilty to the habitual offender charge in Franklin County. As Appellee's jury trial and his plea had been presided over by the same trial judge, the sentencing hearing for both convictions occurred on the same day, September 8, 1999, in Franklin County.¹ On the delivery charge, Appellee was sentenced to a term of imprisonment, not less than 36 months nor more than 120 months. A consecutive term of not less than 6 months nor more than 60 months was imposed on the conspiracy charge. A sentence of not less than 6 months nor more than 24 months incarceration was imposed on the habitual offender violation, to run concurrent to the sentence for conspiracy.

Appellee filed an appeal from the judgment of sentence. In his statement of matters complained of on appeal, he raised three issues, all of which challenged the ineffective assistance of trial counsel.² Appellee argued that trial counsel was ineffective for 1) failing to challenge the sufficiency of the evidence at the preliminary hearing; 2) failing to challenge the evidence by filing a habeas corpus or suppression motion; and 3) failing to object to improper venue. The trial court found all three ineffectiveness claims to be without merit. As to the final issue challenging venue, the trial court agreed that venue was not proper in Franklin County. However, the court went on to consider whether Appellee had suffered prejudice by having the matter tried before a jury chosen in Franklin, rather than Cumberland, County. The court observed that Appellee failed to assert any specific claim of prejudice stemming from the location of the trial. Further, the trial court noted that Franklin and Cumberland are neighboring counties and that the residents share similar socioeconomic backgrounds. In conclusion, the trial court found that Appellee suffered no prejudice from trial counsel's failure to object to venue. (Opinion of Walker, J., filed 1/4/2000, p. 3).

The Superior Court reversed the decision of the trial court. The Superior Court granted relief on Appellee's third allegation of error and noted that although its decision rendered the two remaining issues moot, it found no merit to those claims.³

As to the claim upon which relief was granted, the Superior Court framed the question as "the failure of trial counsel to make a jurisdictional challenge to the trial being held in Franklin County when the alleged drug transaction took place in Cumberland County." Commonwealth v. Bethea, 761 A.2d 1181, 1182 (Pa.Super.2000) (emphasis supplied). The Superior Court analyzed the issue as one of subject matter jurisdiction, not venue, and concluded that Franklin County could not exercise subject matter jurisdiction over a single offense committed in Cumberland County. The Superior Court rejected Appellant's argument that the decision in Commonwealth v. McPhail, 547 Pa. 519, 692 A.2d 139 (Pa.1997), controlled on the question of subject matter jurisdiction.⁴ The Superior Court majority distinguished McPhail as that case involved the consolidation of criminal charges that occurred in multiple counties but were part of a single criminal transaction, pursuant to 18 Pa. C.S. § 110. Looking at the circumstances in the present case, the Superior Court majority found that, since the drug charges and the habitual offender violation were not part of a single criminal episode, the charges could not be consolidated under § 110, and the reasoning in McPhail was not applicable. Bethea, 761 A.2d at 1183.

Judge Lally-Green dissented. The dissent asserted that in McPhail, this Court held that general subject matter jurisdiction to hear charges involving violations of the Crimes Code is not prescribed by territorial limitations. Bethea, 761 A.2d at 1187. See 18 Pa.C.S. § 102. Therefore, where there is only one criminal episode, the question is one of venue, not jurisdiction. Addressing the issue from that perspective, the dissent focused on whether trial counsel was ineffective in failing to object to venue. Finding that Appellee could not establish prejudice under the accepted test for ineffectiveness, the dissent concluded that the claim of error failed.

Appellant sought review of the order of the Superior Court, arguing that under McPhail, the Franklin County Court of Common Pleas did have subject matter jurisdiction over the offense committed in Cumberland County. This Court granted Allowance of Appeal to address the Superior Court's interpretation of McPhail.⁵

Appellant asserts that in McPhail, this court established that each county court in this Commonwealth has statewide jurisdiction to hear charges arising from the Crimes Code. Appellant argues that the Superior Court erred in its discussion of the decision in McPhail, as it concluded that a county court could only exercise jurisdiction beyond its territorial boundaries within the context of a criminal action consolidated under 18 Pa.C.S. § 110. This error by the Superior Court led it to incorrectly review the present legal challenge as one involving subject matter jurisdiction, when in fact the issue is purely one of venue. Finally, when viewed as a question of venue, and specifically as a claim that trial counsel was ineffective in failing to challenge venue, the claim fails, as Appellee cannot establish prejudice.

Appellee argues that the Superior Court correctly distinguished McPhail from the present case, as McPhail is limited to cases arising within the context of a § 110 prosecution. Appellee does not believe the Superior Court erred in deciding this case as one raising a claim of subject matter jurisdiction, since venue is a question of subject matter jurisdiction. The error in venue reflects a unilateral action by the prosecutor to alter the venue of this case without having to show good cause for its action. Commonwealth v. Reilly, 324 Pa. 558, 188 A. 574 (Pa.1936). As for the question of prejudice, since jurisdiction is a question of law, the failure of trial counsel to challenge the venue of the trial in Franklin County is per se ineffectiveness.

The obvious starting point for our analysis is a discussion of the decision in McPhail. Roosevelt McPhail sold cocaine to the same undercover Pennsylvania State Police officer on several occasions during the summer of 1990. The first sale occurred in Washington County, Pennsylvania. When the undercover officer asked to buy a larger quantity of drugs, McPhail took the officer from Washington County into neighboring Allegheny County, Pennsylvania to complete the second sale. A few weeks later a final sale of a small amount of cocaine occurred, again in Washington County, Pennsylvania. Charges were filed against McPhail in both Washington and Allegheny Counties regarding the transactions that had occurred in the respective counties. McPhail pled guilty to the charges in Washington County and then moved to dismiss the pending charges in Allegheny County pursuant to 18 Pa.C.S. § 110. The portion of 18 Pa.C.S. § 110 pertinent to the discussion in McPhail states:

§ 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 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

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