Commonwealth v. Kolovich

• Decision Date: 23 August 2017
• Docket Number: No. 1505 MDA 2016.,1505 MDA 2016.
• Parties: COMMONWEALTH of Pennsylvania v. Robert Anthony KOLOVICH, Appellant
• Court: Pennsylvania Superior Court

170 A.3d 520

COMMONWEALTH of Pennsylvania

v.Robert Anthony KOLOVICH, Appellant

No. 1505 MDA 2016.

Superior Court of Pennsylvania.

Submitted April 3, 2017

Filed August 23, 2017

Justin P. Miller, Bellefonte, for appellant.

Christopher R. Torquato, District Attorney, Lewistown, for Commonwealth, appellee.

BEFORE: BOWES, DUBOW, AND FITZGERALD,^* JJ.

OPINION BY BOWES, J.:

Robert Kolovich appeals from his judgment of sentence of twenty-seven to seventy-two months imprisonment, which was imposed following his conviction of six counts of theft by deception, and twelve counts of deceptive business practices pursuant to 18 Pa.C.S. § 4107.¹ We affirm.

Appellant challenges the trial court's denial of his pre-trial motion to dismiss charges based on the mandatory joinder rule and double jeopardy. He also maintains that it was error to deny his motion to quash the Commonwealth's petition to amend the information to add twelve counts of deceptive or fraudulent business practices as he contends the statute, 18 Pa.C.S. §§ 4107(a)(2) and (6), is unconstitutional.

The facts relevant to the issues before us are as follows. Appellant ran a business, Lifetime Choice Windows, in Selinsgrove, Snyder County, Pennsylvania. Prior to and during 2013, he met with homeowners in their homes in numerous counties across the Commonwealth and contracted to sell and install decking, windows, and doors. The charges in this case arose from contracts between Appellant and six Mifflin County residents during the summer of 2013. The homeowners paid Appellant down payments for decking materials and construction services, but the date of performance passed without delivery of any product or service outlined in the contracts. Appellant did not return any portion of the down payments.

Appellant initially was charged with six counts of theft by deception. He sought several continuances over an eighteen-month period because he confronted similar charges in other counties. He was convicted in Snyder and Bradford counties on multiple theft counts, and acquitted on similar charges in Union County.

On April 28, 2016, Appellant filed a motion to dismiss pursuant to 18 Pa.C.S. § 110, the compulsory joinder provision, and the double jeopardy clauses of both the state and federal constitutions, alleging that the six theft charges herein were part of the same series of occurrences culminating in the charges in the other counties. According to Appellant, all of the offenses constituted one criminal episode that should have been prosecuted in Snyder County. N.T., 5/10/16, at 5–6. Appellant asked the trial court to dismiss/quash the Mifflin County criminal information and direct that the charges be joined and tried in Union County.² In the alternative, Appellant alleged that prior dismissals in Sullivan and Luzerne Counties resulted from the same criminal episode, and thus, the current prosecution was barred under double jeopardy. The trial court disagreed and denied the motion, reasoning that the prior charges in different counties were not part of the same criminal conduct or episode. Trial Court Opinion, 5/12/16, at 1. Further, the court declared Appellant's double jeopardy motion to be frivolous, thus precluding Appellant from pursuing an interlocutory appeal. Id. at 2.

On May 23, 2016, the Commonwealth sought leave to amend the information to add twelve additional counts pursuant to 18 Pa.C.S. § 4107(a)(2) and (a)(6), governing "deceptive or fraudulent business practices." Appellant moved to quash, arguing that § 4107(b) impermissibly shifted the burden of proof to the defendant to negate the intent to deceive element of the crime, and was unconstitutional.³ After a hearing, the court granted the Commonwealth leave to amend, and denied Appellant's motion to quash.

On July 11, 2016, a jury convicted Appellant of all counts. Appellant timely filed the within appeal and complied with the trial court's order to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. The trial court authored its Rule 1925(a) opinion and the matter is ripe for our review. Appellant raises the following contentions:

1. Whether the trial court erred in denying [Appellant]'s motion to dismiss pursuant to 18 Pa.C.S. § 110 and the double jeopardy clauses of the United States and Pennsylvania Constitutions?

2. Whether the trial court erred in determining [Appellant]'s motion to dismiss pursuant to 18 Pa.C.S. § 110 and the double jeopardy clauses of the United States and Pennsylvania Constitutions was a frivolous pleading?

3. Whether the trial court erred in overruling [Appellant]'s objection to the Commonwealth's motion to amend information and [Appellant]'s motion to quash amendment of information?

4. Whether the trial court erred in finding 18 Pa.C.S. § 4107(a) and § 4107(b) are not violative of the United States and Pennsylvania Constitutions?

Appellant's brief at 9 (unnecessary capitalization omitted).

Appellant's first issue is a challenge to the trial court's denial of his motion to dismiss for an alleged violation of the compulsory joinder rule, 18 Pa.C.S. § 110, and the double jeopardy clauses of the United States and Pennsylvania Constitutions. Since the issue presents a question of law, our standard of review is de novo and our scope of review is plenary. Commonwealth v. Fithian, 599 Pa. 180, 961 A.2d 66 (2008).

Appellant claims that the offenses herein occurred, at least in part, in Snyder County, where his business was located. He contends that the trial court should have dismissed the instant prosecution due to the Commonwealth's failure to consolidate it with the prior prosecution of the charges in the judicial district encompassing Snyder and Union counties.

The compulsory joinder rule, 18 Pa.C.S. § 110, is entitled, "When prosecution barred by former prosecution for different offense," and provides in pertinent part:

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 occurred within the same judicial district as the former prosecution 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.

18 Pa.C.S. § 110.

The rule "is a legislative mandate that a subsequent prosecution for a violation of a provision of a statute that is different from a former prosecution, or is based on different facts, will be barred in certain circumstances." Fithian, supra at 71. It was designed "(1) to protect a defendant from the governmental harassment of being subjected to successive trials for offenses stemming from the same criminal episode; and (2) to ensure finality without unduly burdening the judicial process by repetitious litigation." Id. at 75–76 (internal quotations omitted). To that end, our High Court held that the legislature intended that the compulsory joinder statute be limited to mandating joinder only of those offenses occurring in a single judicial district, even when offenses were part of the same criminal episode. Id. at 68.

Appellant contends that compulsory joinder was warranted on the facts herein. He argues that: all of the cases were filed within thirteen months and involved the same or similar offenses; the charges arose from his business's retention of monies despite the failure to perform construction agreements; and the business was located in the 17^th judicial district comprised of Snyder and Union Counties. He was previously convicted in Snyder and Bradford counties and acquitted in Union and Centre Counties on similar charges. Appellant's brief at 19. He alleges that the offenses herein occurred at least in part in Snyder County, the county where his business was based. Where, as here, the offenses occurred in more than one judicial district, and the former prosecution was brought in one of those judicial districts, Appellant maintains the subsequent prosecution in Mifflin County should have been consolidated. The consequence of the failure to consolidate is that the prosecution herein was barred.

The Commonwealth points out that § 110 has been construed as barring subsequent prosecution only if all of the following four prongs are satisfied:

(1) the former prosecution resulted in an acquittal or conviction;

(2) the current prosecution was based on the same criminal conduct or arose from the same criminal episode;

(3) the prosecutor in the subsequent trial was aware of the charges before the first trial; and

(4) all charges [are] within the same judicial district as the former prosecution.

Fithian, supra at 72 (quoting Commonwealth v. Nolan, 579 Pa. 300, 855 A.2d 834, 839 (2004) ).

The Commonwealth concedes the satisfaction of the first and third prongs, i.e ., that there was a former prosecution that resulted in an acquittal or conviction, and that the prosecutor herein was aware of the instant charges prior to the first trial. However, the Commonwealth contends that the facts herein do not meet the second prong of the test as the instant prosecution did not involve the same criminal...