Commonwealth v. Reid

• Decision Date: 04 January 2012
• Citation: 2012 PA Super 2,35 A.3d 773
• Parties: COMMONWEALTH of Pennsylvania, Appellant v. William Anthony REID, Appellee.
• Court: Pennsylvania Superior Court

2012 PA Super 2

35 A.3d 773

COMMONWEALTH of Pennsylvania, Appellant

v.William Anthony REID, Appellee.

Superior Court of Pennsylvania.

Submitted Sept. 20, 2011.Filed Jan. 4, 2012.

James P. Barker, Assistant District Attorney, Harrisburg, for Commonwealth, appellant.

Patrick A. Johnson, Public Defender, Lock Haven, for appellee.

BEFORE: STEVENS, P.J., BENDER, and PANELLA, JJ.

OPINION BY STEVENS, P.J.:

The Commonwealth of Pennsylvania files this appeal from the order entered in the Clinton County Court of Common Pleas, which dismissed, pursuant to Section 110 of the Pennsylvania Crimes Code, two charges of unlawful delivery of or possession with intent to deliver a controlled substance (“PWID”) and one count of criminal conspiracy charged against Appellee, William Anthony Reid. We hold that Appellee's alleged involvement in the criminal enterprise for the case sub judice, which involved a broad, drug-distribution ring, does not constitute the same criminal episode as a previous prosecution for a single, controlled buy involving Appellee. Accordingly, we reverse.

Appellee's direct involvement with police began in November 2006, when police conducted a controlled buy through a confidential informant, who called Appellee and arranged to purchase cocaine from him. The informant picked up Appellee in the informant's car, then drove to the Hilltop Bar, where they parked for two minutes. The informant dropped Appellee off at a plaza and gave police the cocaine purchased from Appellee.

Due to a number of circumstances, police did not arrest Appellee immediately. In March 2007, however, police encountered Appellee when he was the victim of a kidnapping. Detective Charles Shoemaker, who assisted in the 2006 controlled buy, interviewed Appellee and informed him about the 2006 investigation. Appellee eventually confessed to his involvement in selling drugs as part of a larger criminal enterprise, with his source of cocaine coming from New Jersey. Police soon charged Appellee with possession with intent to deliver (“PWID”),¹ and on June 25, 2007, Appellee pleaded guilty to that charge at case number CP–18–0000079–2007 (“Case 79”).

Prior to the controlled buy, Detective Shoemaker was involved in a larger-scale investigation targeting another seller, Damon Williams. This broader investigation largely began in August of 2006, when Williams was arrested. After the arrest, the Commonwealth investigated Williams's involvement in a larger drug-trafficking scheme. The investigation culminated in a grand jury investigation, which found Appellee to be one of the distributors in a cocaine trafficking organization. The grand jury presentment of March 11, 2009, specifically found that Appellee sold cocaine at his house and in bars, specifically mentioning the Two Tuesdays bar.² The presentment also noted that Appellee would, at times, have a “middleman” deliver the cocaine when buyers purchased it from Appellee. Although the presentment cited controlled buys involving another distributor in the trafficking organization, the presentment did not mention the November 2006 controlled buy, nor did it mention the Hilltop Bar or any controlled buys involving Appellee.³

The grand jury presentment is the basis for the charges in the case sub judice, CP–18–0000264–2010 (“Case 264”). Although the criminal information in Case 264 charged Appellee with two counts of PWID and one count of conspiracy ⁴ for acts occurring “between 2006 through 2007,” the Commonwealth later clarified that the time period is between sometime in 2006 until March 7, 2007.⁵ N.T., 8/30/10, at 19. Appellee filed a motion to dismiss the charges at Case 264, pursuant to Section 110 of the Pennsylvania Crimes Code.⁶ After a hearing and receiving briefs, the trial court granted Appellee's motion and dismissed the charges. The Commonwealth followed with this timely appeal.⁷

The Commonwealth argues that the charges sub judice, from Case 264, are not logically related to the charges from Case 79. The Commonwealth contends that the facts, evidence, and witnesses are substantially different between the two cases because Case 264 involves a much broader scope of activity than that of Case 79. The Commonwealth claims the only primary similarity in the two cases is that they overlap in time, with Case 79 having occurred sometime within the scope of the Case–264 investigation. The Commonwealth further suggests that the opinions relied upon by the trial court are substantially distinguishable from the case sub judice

and do not mandate dismissal of the charges from Case 264. The Commonwealth concludes that the trial court erred in granting Appellee's motion to dismiss the charges. We agree.

“Our standard of review of issues concerning section 110 is plenary.” Commonwealth v. Simmer, 814 A.2d 696, 698 (Pa.Super.2002). Section 110(1)(ii) provides:

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 ⁸ of this title (relating to when prosecution barred by former prosecution for same offense) and the subsequent prosecution is for:

(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....18 Pa.C.S. § 110(1)(ii).

The trial court, the Commonwealth, and Appellee agree that the test as stated by our Supreme Court in Commonwealth v. Fithian, 599 Pa. 180, 961 A.2d 66 (2008), applies. Fithian states that in order for a former prosecution to bar a subsequent prosecution pursuant to Section 110, the following four elements are required:

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

(2) the current prosecution is based upon the same criminal conduct or arose from the same criminal episode as the former prosecution;

(3) the prosecutor was aware of the instant charges before the commencement of the trial on the former charges; and

(4) the current offense occurred within the same judicial district as the former prosecution.

Id. at 191, 961 A.2d at 72.

“The purpose of the compulsory joinder statute ... is twofold: (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 197, 961 A.2d at 75–76 (quoting Commonwealth v. Failor, 564 Pa. 642, 647, 770 A.2d 310, 313 (2001)). However, “[t]hese policy concerns must not be interpreted to sanction ‘volume discounting.’ ” Commonwealth v. Nolan, 579 Pa. 300, 310, 855 A.2d 834, 840 (2004). In so analyzing, our courts must be careful not “to label an ‘enterprise’ an ‘episode.’ ” Id.

In large part, the parties agree that elements one and four of the Fithian test are met in the case sub judice. The Commonwealth makes no substantial effort to argue that element three applies, either. The focus, rather, is on whether Case 79 and Case 264 arose from the same criminal episode in relation to element two. We will therefore proceed to analyze element two.

Our Supreme Court in Nolan observed the following:

In the seminal case of [ Commonwealth v.] Hude, [500 Pa. 482, 458 A.2d 177 (1983),] courts were directed to look at the “logical and temporal relationship” between the criminal acts to determine whether they constituted the same “episode.” In Hude, both prosecutions contained a substantial duplication of issues of fact and law, which not only forced a defendant to “run the gauntlet” repeated times and confront the “awesome resources of the state” successively, but also sanctioned “an unjustifiable expenditure of judicial resources.” Hude, at 180, 182.

In later interpreting Hude 's duplication guidance, [the Pennsylvania Supreme] Court commented such an analysis cannot be made “by merely cataloguing simple factual similarities or differences between the various offenses with which the defendant was charged.” [ Commonwealth v.] Bracalielly, [540 Pa. 460, 658 A.2d 755,] 761 [ (1995) ]. We have been mindful to reaffirm Hude ' s expressed warning against interpreting “the term ‘single criminal episode’ ... [from a] hypertechnical and rigid perspective which defeats the purposes for which it was created.” Hude, at 183; Bracalielly, at 761; see Commonwealth v. Pinkston, , 492 A.2d 1146, 1149 ( [Pa.Super.]1985).

Nolan, 579 Pa. at 309, 855 A.2d at 839.

The Commonwealth concedes that a temporal relationship exists between Case 79 and Case 264. Commonwealth's Brief at 14. The Commonwealth, however, instead avers that a sufficient logical relationship does not exist to warrant Section 110 dismissal. The trial court disagreed, according great weight to Appellant's confession in Case 79 that he was importing cocaine from New Jersey and selling it in Clinton County, including to people named as co-defendants in Case 264.

In so holding, the trial court compared Case 264 to this Court's decision in Commonwealth v. Rocco, 375 Pa.Super. 330, 544 A.2d 496 (1988). In Rocco, a panel of this Court examined a case in which a confidential informant purchased methamphetamine from the appellant in June 1984, cocaine from the appellant in August 1984, and cocaine from a different individual in September 1984, but in the appellant's presence in the appellant's home. Id. at 497. Although the Rocco Court addressed the issue pursuant to Section 780–117 of The Controlled Substance, Drug, Device and Cosmetic Act,⁹ the Court also opined:

[A]ll of the charges brought against appellant arose out of the same factual...