Commonwealth v. Gross

• Decision Date: 24 September 2014
• Docket Number: No. 28 MAP 2012,28 MAP 2012
• Citation: 101 A.3d 28,627 Pa. 383
• Court: Pennsylvania Supreme Court
• Parties: COMMONWEALTH of Pennsylvania, Appellant v. Emily Joy GROSS, Appellee.

627 Pa. 383

101 A.3d 28

COMMONWEALTH of Pennsylvania, Appellant

v.Emily Joy GROSS, Appellee.

No. 28 MAP 2012

Supreme Court of Pennsylvania.

Argued Oct. 17, 2012.

Decided Sept. 24, 2014.

Elmer D. Christine Jr., Esq., East Stroudsburg, Michael Mancuso, Esq., Stroudsburg, Bradley Andrew Schmidt, Esq., for Commonwealth of Pennsylvania.

Eric R. Breslin, Esq., Daniel Richard Walworth, Esq., Duane Morris, L.L.P., Philadelphia, George W. Westervelt, Jr., Esq., Stroudsburg, for Emily Joy Gross.

BEFORE: CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN, JJ.

OPINION

Justice EAKIN.

The Superior Court affirmed the trial court's dismissal of this criminal case for improper venue. Upon review, we conclude this was error, reverse the Superior Court's order, and remand to the trial court for further proceedings.

Emily Gross and Daniel Autenrieth began a romantic relationship in early 2009. On May 4, 2009, Autenrieth's estranged wife filed a protection from abuse (PFA) petition against him in Northampton County where she lived. The court issued a temporary PFA order the same day prohibiting Autenrieth from having contact with his wife or children and evicting him from the marital residence. The same day, deputies from the Northampton Sheriff's office went to Autenrieth's residence (also in Northampton County) to serve the temporary PFA order and to transfer custody of the children to Autenrieth's wife. Gross was present, babysitting the children, and a deputy served the order on her as the adult in charge of the residence. The deputy incorrectly told Gross the temporary PFA order prohibited Autenrieth from possessing firearms. Another deputy explained the PFA order's terms to Autenrieth over the phone. On May 18, 2009, a final PFA order was issued, which prohibited Autenrieth from possessing firearms.

Gross routinely stayed overnight at Autenrieth's residence, but she lived and worked in New Jersey. On May 21, 2009, she attempted to acquire a New Jersey firearm permit but was informed the process would take several months. On May 29, 2009, Gross obtained a Pennsylvania driver's license using Autenrieth's address; within hours, Gross and Autenrieth went to a Berks County store, where Gross used her new license to buy a 9 millimeter handgun. Later, at his residence, Autenrieth showed Gross how to use the gun, offered to clean it for her, then put the gun in its box and stored it and its ammunition above his washer and dryer. This was the last time Gross saw the gun, though a few days later she learned Autenrieth had taken the gun, fired it with a friend, and replaced the ammunition used; Gross made no objection.

On June 7, 2009, Autenrieth took the gun, went to his estranged wife's house, and kidnapped his nine-year-old son at gunpoint. Police were called, Autenrieth fled, and the chase went on for 40 miles, ending with a shoot-out in Monroe County in which Autenrieth killed one Pennsylvania State Trooper and wounded another before being shot to death.

A criminal complaint was filed in Monroe County charging Gross with criminal conspiracy, 18 Pa.C.S. § 903(a) ; firearms not to be carried without a license, id., § 6106(a)(1) (co-conspirator); possession of firearm prohibited, id., § 6105(a)(1) (accomplice); and lending or giving of firearms prohibited, id., § 6115(a) (accomplice). A preliminary hearing was held January 15, 2010, before a Monroe County magisterial district judge. Among other motions, Gross moved for dismissal of the case for “lack of jurisdiction [.]” N.T. Preliminary Hearing, 1/15/10, at 10. Specifically, Gross argued “there[ was] no jurisdiction in [the magisterial] district or, in fact, in Monroe County to hear these charges.” Id. The judge denied the motion, id., at 13, and bound the charges over to the Monroe County Court of Common Pleas, id., at 63–64.

On March 3, 2010, Gross filed an omnibus pre-trial motion, which included a “Motion to Dismiss or, in the alternative, Transfer for Improper Venue.”¹ A hearing on this motion was held May 24, 2010. The Commonwealth did not introduce evidence other than the preliminary hearing transcript and a license to carry firearm certification regarding Autenrieth. Both parties filed briefs to address the venue issue. After considering the evidence and the parties' arguments, the trial court found Gross's “Motion to Dismiss for Improper Venue” dispositive and dismissed the case July 15, 2010, for improper venue. The trial court addressed this motion only; it did not consider Gross's alternative motion to transfer for improper venue, nor did it address the remaining motions contained in her omnibus pre-trial motion.

Venue was held improper based on a lack of factual connection to Monroe County.² Specifically, both the trial court and the Superior Court concluded the evidence showed the alleged conspiracy was not reached in Monroe County, Gross committed no acts in furtherance of the conspiracy in Monroe County, and the conspiracy ended in Northampton County. The Commonwealth argues the lower courts erred in finding improper venue, noting all charges filed against Gross were based on conspiracy and accomplice liability and her co-conspirator, Autenrieth, committed an overt act in Monroe County. Alternatively, the Commonwealth contends that even if venue was improper, the trial court should have transferred the proceedings instead of dismissing them.

Jurisdiction relates to the court's power to hear and decide the controversy presented. Commonwealth v. Bethea, 574 Pa. 100, 828 A.2d 1066, 1074 (2003) (citation omitted). “[A]ll courts of common pleas have statewide subject matter jurisdiction in cases arising under the Crimes Code.” Id. Thus, there is no question the Monroe County Court of Common Pleas had jurisdiction to hear this case. See 42 Pa.C.S. § 931(a). Venue, on the other hand, refers to the convenience and locality of trial, or “the right of a party to have the controversy brought and heard in a particular judicial district.”

Bethea, at 1074 (citation omitted). Venue assumes jurisdiction exists and it “can only be proper where jurisdiction already exists.” Id., at 1074–75 (citation omitted). Even though all common pleas courts may have jurisdiction to resolve a case, such should only be exercised in the judicial district in which venue lies. See id., at 1075 (“Rules of venue recognize the propriety of imposing geographic limitations on the exercise of jurisdiction.”). “Venue in a criminal action properly belongs in the place where the crime occurred.” Id. (citation omitted).

Our criminal procedural rules provide a system in which defendants can seek transfer of proceedings to another judicial district due to prejudice or pre-trial publicity. Such decisions are generally left to the trial court's discretion. See Commonwealth v. Chambers, 546 Pa. 370, 685 A.2d 96, 103 (1996) (citation omitted). Venue challenges concerning the locality of a crime, on the other hand, stem from the Sixth Amendment to the United States Constitution and Article I, § 9 of the Pennsylvania Constitution, both of which require that a criminal defendant stand trial in the county in which the crime was committed, protecting the accused from unfair prosecutorial forum shopping. Thus, proof of venue, or the locus of the crime, is inherently required in all criminal cases.

The burden of proof in relation to venue challenges has not been definitively established in our decisional law or our criminal procedural rules. Because the Commonwealth selects the county of trial, we now hold it shall bear the burden of proving venue is proper—that is, evidence an offense occurred in the judicial district with which the defendant may be criminally associated, either directly, jointly, or vicariously. Although our sister states are not in agreement as to the requisite degree of proof,³ we find the Commonwealth should prove venue by a preponderance of the evidence once the defendant properly raises the issue.⁴ Venue merely concerns the judicial district in which the prosecution is to be conducted; it is not an essential element of the crime, nor does it relate to guilt or innocence. Because venue is not part of a crime, it need not be proven beyond a reasonable doubt as essential elements must be. Accordingly, applying the preponderance-of-the-evidence standard to venue challenges allows trial courts to speedily resolve this threshold issue without infringing on the accused's constitutional rights. Like essential elements of a crime, venue need not be proven by direct evidence but may be inferred by circumstantial evidence. See, e.g., Commonwealth v. Cooper, 596 Pa. 119, 941 A.2d 655, 662 (2007) (citation omitted). Appellate review of venue challenges, similar to that applicable to other pre-trial motions, should turn on whether the trial court's factual findings are supported by the record and its conclusions of law are free of legal error. See, e.g., Commonwealth v. Jones, 605 Pa. 188, 988 A.2d 649, 654 (2010).

At the hearing on the omnibus motion filed by Gross, the Commonwealth submitted the preliminary hearing transcript, supporting its belief that venue in Monroe County was proper. N.T. Pretrial Hearing, 5/24/10, at 3–4, 14. Gross only offered legal argument in response; thus, the Commonwealth's evidence was uncontradicted and constituted the entire factual record relative to Gross's venue challenge. The trial court held Gross could not be prosecuted in Monroe County because the conspiracy between Gross and Autenrieth was reached and completed in Northampton County and Autenrieth's possession of the firearm in Monroe County did not constitute an overt act in furtherance of the criminal agreement. In this, the court misperceived the nature of the charges brought.

The material elements of conspiracy are: “(1) an intent to commit or aid in an unlawful act, (2) an agreement with a co-conspirator and (3) an overt act in furtherance of the conspiracy.” Commonwealth v. Spotz, 562 Pa. 498, 756 A.2d 1139, 1162 (200...