COMMONWEALTH OF PENNSYLVANIA v. EMILY JOY GROSS
No. 375 EDA 2016
IN THE SUPERIOR COURT OF PENNSYLVANIA
FILED APRIL 29, 2020
2020 PA Super 107
OPINION BY GANTMAN, P.J.
J-E04004-17. Appeal from the Order January 15, 2016. In the Court of Common Pleas of Monroe County. Criminal Division at No(s): CP-45-CR-0000045-2010. BEFORE: GANTMAN, P.J., BENDER, P.J.E., BOWES, J., PANELLA, J., SHOGAN, J., LAZARUS, J., OLSON, J., STABILE, J., and
Appellant, Emily Joy Gross, appeals from the order entered in the Monroe County Court of Common Pleas, which denied her omnibus pretrial motion to dismiss on double jeopardy grounds. We affirm.
Our Supreme Court set forth the relevant facts of this case as follows:
[Ms.] 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. [Ms.] 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 [Ms.] 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. [Ms.] 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, [Ms.] Gross obtained a Pennsylvania driver‘s license using Autenrieth‘s address; within hours, [Ms.] Gross and Autenrieth went to a Berks County store, where [Ms.] Gross used her new license to buy a 9 millimeter handgun. Later, at his residence, Autenrieth showed [Ms.] 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 [Ms.] 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; [Ms.] 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 [Ms.] Gross with criminal conspiracy,
18 Pa.C.S. § 903(a) ; firearms not to be carried without a license, [18 Pa.C.S.] § 6106(a)(1) (co-conspirator); possession of a firearm prohibited, [18 Pa.C.S.] § 6105(a)(1) (accomplice); and lending or giving of firearms prohibited, [18 Pa.C.S.] § 6115(a) (accomplice). A preliminary hearing was held January 15, 2010, before a Monroe County magisterial district judge. Among other motions, [Ms.] Gross moved for dismissal of the case for “lack of jurisdiction[.]” Specifically, [Ms.] Gross argued “there [was] no jurisdiction in [the magisterial] district or, in fact, in Monroe County to hear these charges.” The judge denied the motion, ..., and bound the charges over to the Monroe County Court of Common Pleas....On March 3, 2010, [Ms.] 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 [Ms.] 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 [Ms.] 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, [Ms.] 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 [Ms.] 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.
Commonwealth v. Gross, 627 Pa. 383, 388-90, 101 A.3d 28, 31-32 (2014) (internal citations omitted). In the context of venue as it relates to conspiracy charges, the Supreme Court continued:
At the hearing on the omnibus motion filed by [Ms.] Gross, the Commonwealth submitted the preliminary hearing transcript, supporting its belief that venue in Monroe County was proper. [Ms.] Gross only offered legal argument in response; thus, the Commonwealth‘s evidence was uncontradicted and constituted the entire factual record relative to [Ms.] Gross‘s venue challenge. The trial court held [Ms.] Gross could not be prosecuted in Monroe County because the conspiracy between [Ms.] 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, [540-41], 756 A.2d 1139, 1162 (2000) (citation omitted). An “overt act” means an act done in furtherance of the object of the conspiracy. See
18 Pa.C.S. § 903(e) ; Commonwealth v. Weimer, 602 Pa. 33, [39], 977 A.2d 1103, 1106 (2009). Additionally, in connection with questions of venue, this Court noted “a prosecution for criminal conspiracy may be brought in any county where the unlawful combination was formed, or in any county where an overt act was committed by any of the conspirators in furtherance of the unlawful combination.” Commonwealth v. Fithian, 599 Pa. 180, [201-02], 961 A.2d 66, 78 (2008) (citing Commonwealth v. Thomas, 410 Pa. 160, [164], 189 A.2d 255, 258 (1963)). The record is sufficient to show a criminal conspiracy between Autenrieth and [Ms.] Gross, under which [Ms.] Gross would purchase a firearm for the purpose of providing Autenrieth with access to a gun he was otherwise prohibited from possessing. Because of this criminal agreement, Autenrieth was able to use the firearm on two occasions, including the day he took the gun and used it in Monroe County. The trial court determined the conspiracy agreement ended May 29, 2009, at the time [Ms.] Gross left the firearm with Autenrieth at his residence in Northampton County. However, the trial court failed to appreciate that the object of the conspiracy articulated by the charges was to provide Autenrieth with unlimited possession and unconditional access to a firearm, and such was not completed or terminated May 29, 2009, but continued as long as [Ms.] Gross allowed Autenrieth to possess her gun. See18 Pa.C.S. § 903(g)(1) (“[C]onspiracy is a continuing course of conduct which terminates when the crime or crimes which are its object are committed or the agreement that they be committed is abandoned by the defendant and by those with whom he conspired[.]“); Commonwealth v. Evans, 489 Pa. 85, [92], 413 A.2d 1025, 1028 (1980) (“The duration of a conspiracy depends upon the facts of the particular case, that is, it depends upon the scope of the agreement entered into by its members.” (...citation omitted)). [Ms.] Gross did not object or withdraw her authorization. Autenrieth‘s taking the firearm and carrying it constituted the overt act, and that possessory act did not cease when he crossed into Monroe County. Accordingly, the trial court erred in dismissing the conspiracy charges, as the record was sufficient to establish [Ms.] Gross, as co-conspirator, could be found vicariously liable for Autenrieth‘s possession of the firearm, in Monroe County, and thus, could be prosecuted in that county.The trial court also erred in finding dismissal was warranted for the counts charging [Ms.] Gross as an accomplice in the crimes of illegal possession of a firearm and lending or giving a firearm. The trial court found [Ms.] Gross could not be an accomplice in Monroe County because Autenrieth, not [Ms.] Gross, possessed the gun there. Also, both the trial court and the Superior Court concluded [Ms.] Gross could not be charged as an accomplice because “there is no evidence that she intended to aid or promote Autenrieth‘s shootout with the police.” Commonwealth v. Gross, No. 2006 EDA 2010, unpublished memorandum at 7, 2011 WL 5111048 (Pa.Super. filed July 13, 2011) (citing Trial Court Opinion, 7/15/10, at 11)). This factual statement may be true, but it is irrelevant, reflecting a misapprehension of the charges filed. [Ms.] Gross was never charged as an accomplice in the shooting; rather, she was charged as an accomplice in the illegal possession of a firearm, and the evidence offered was sufficient to prove she could be convicted as an accomplice to such illegal possession in Monroe County.
“An actor and his accomplice share equal responsibility for the criminal act if the accomplice acts with the intent of promoting or facilitating the commission of an offense and agrees or aids or attempts to aid such other person in either the planning or the commission of the offense.” Commonwealth v. Cox, 546 Pa. 515, [529], 686 A.2d 1279, 1286 (1996) (citations omitted). There is no minimum amount of assistance or contribution
requirement, for “[i]t has long been established...that intent of the parties is a consideration essential to establishing the crime of aiding and abetting a felony.” Commonwealth v. Flowers, 479 Pa. 153, [157], 387 A.2d 1268, 1270 (1978).... Thus, even non-substantial assistance, if rendered with the intent of promoting or facilitating the crime, is sufficient to establish complicity. See Commonwealth v. Pierce, 437 Pa. 266, [268], 263 A.2d 350, 351 (1970) (where assistance “is rendered to induce another to commit the crime and actually has this effect, no more is required.” (citation omitted)). Absence or presence at the scene and the participant‘s role in the complicity are not dispositive of whether accomplice liability exists. See Commonwealth v. Murphy, 577 Pa. 275, 844 A.2d 1228, 1234 (2004) (“[A] defendant cannot be an accomplice simply based on evidence that he...was present at the crime scene.” (citation omitted)). Accomplice liability does not create a new or separate crime; it merely provides a basis of liability for a crime committed by another person. See 18 Pa.C.S. § 306 . Because Autenrieth was present with the gun in Monroe County, and [Ms.] Gross aided Autenrieth‘s illegal possession of that firearm, [Ms.] Gross could be found liable as an accomplice for Autenrieth‘s illegal possession wherever he was, including Monroe County. Accordingly, we conclude the Commonwealth proved by a preponderance of the evidence that [Ms.] Gross could be prosecuted under all criminal charges in Monroe County. The trial court‘s finding to the contrary was erroneous.* * *
In light of the foregoing, we conclude the trial court erred in finding venue improper in Monroe County and in dismissing the case. Order reversed. Case remanded to the trial court for consideration of any unaddressed issues.
Id. at 393-97, 101 A.3d at 34-36 (some internal citations omitted). In sum, the Supreme Court held: (1) the Commonwealth met its burden to prove by a preponderance of evidence that venue in Monroe County was proper on conspiracy and accomplice liability, because the Commonwealth had demonstrated Appellant could be found vicariously liable for Mr. Autenrieth‘s possession of a firearm in Monroe County; and (2) the record was sufficient to show Appellant conspired with and aided Mr. Autenrieth in the illegal possession of the firearm “wherever he was.” Id. The Supreme Court reversed and remanded the matter to the Monroe County Court of Common Pleas for consideration of any unaddressed issues. Id.
While the appeal on venue was pending in state court, the United States Attorney filed an information in the U.S. District Court for the Eastern District of Pennsylvania on November 4, 2009, charging Appellant with making false statements to a federal firearms licensee in violation of
On February 2, 2011, Appellant pled guilty to only one federal charge, i.e., making false statements to a federal firearms licensee; and the federal authorities dropped the count of aiding and abetting prohibited possession of a firearm. The federal court accepted the plea and sentenced Appellant on May 9, 2011, to seven
Following our Supreme Court‘s resolution of the state appeal, the state case was remanded to the Monroe County Court of Common Pleas in 2014, to consider any unaddressed issues. On remand, the trial court held more pretrial hearings on May 4, 2015, May 11, 2015, and September 15, 2015. At each of the pretrial hearings, Appellant focused almost exclusively on her request for recusal of the entire Monroe County bench, or in the alternative, recusal of each successive jurist assigned to the case, on the grounds of local publicity and excessive community pressure, because Appellant alleged that no local jurist could appear impartial.
At the May 4, 2015 hearing, some of the outstanding omnibus pretrial issues were disposed as law of the case, such as improper venue; by agreement, such as request for discovery; held in abeyance, such as a motion for change of venue pending voir dire; or by briefing, such as the legal issues pertaining to Appellant‘s motion for a bill of particulars and recusal. The court also heard Appellant‘s motion for habeas corpus relief for lack of a prima facie case.
The proceedings on May 11, 2015, were for the specific purpose of reinstating a defense motion for recusal on the new ground that defense counsel was assisting in an investigation of issues arising from the court‘s use of non-shorthand reporters (voice recording reporters) to take notes of testimony of court proceedings. Counsel argued these circumstances could give the impression that President Judge Patti-Worthington was either favoring the defense or “possibly bending over backwards not to give the appearance of impropriety by favoring the Commonwealth.” (See N.T. 5/11/15, at 3.) By order filed on June 9, 2015, President Judge Patti-Worthington denied Appellant‘s motion to appoint an out-of-county judge but granted Appellant‘s motion for recusal and reassigned the case to the Honorable Arthur L. Zulick.
After reassignment the Honorable Arthur L. Zulick held a Status Conference on June 26, 2015. On July 16, 2015, [Appellant] filed a new Motion to Recuse, which was granted on July 29, 2015, at which time the case was assigned to [the Honorable Steven M. Higgins]. Following reassignment, [Judge Higgins] scheduled the Status Conference for August 6, 2015, at which time [Appellant] renewed [her] “Motion for Recusal and Appointment of an Out-of-County [J]udge.” (Trial Court Opinion, filed January 15, 2016, at 4).
At the hearing on September 15, 2015, the court declared the issue of recusal of the entire Monroe County bench as having already been denied. Appellant offered nothing unique to sustain her request for the personal recusal of Judge Higgins, who explained he was inclined to deny the motion but would take the request for his individual recusal under advisement. By order filed on September 18, 2015, the court denied Appellant‘s recusal motion and set a briefing schedule for both sides to file supplemental briefs in support of their positions on the remaining issues Appellant had raised in her omnibus pretrial motion.
On October 16, 2015, Appellant filed a supplemental brief in support of her omnibus pretrial motion and, for the first time, she raised a double jeopardy challenge to the Commonwealth‘s case. While recognizing the continuing legal concept of “dual sovereignty,” Appellant nevertheless argued that the federal and state prosecutions
In its supplemental brief in opposition, the Commonwealth responded, inter alia, to the three-part test of Section 111 by stating: (1) Appellant‘s false statements on ATF Form #4473 (federal firearms transactional record) involved separate conduct and constituted distinct offenses, which included different elements designed to prevent different harms; and (2) the mere fact that some of the evidence used in the federal prosecution might overlap with the state prosecution was not dispositive. (See Commonwealth‘s Brief, Supplemental, In Opposition to [Appellant‘s] Omnibus Pretrial Motions, filed 11/9/15, at 1-8.)
Appellant filed a supplemental reply brief, where she argued again, in relevant part, that the federal and state prosecutions were duplicative, arising from the same facts and addressing the same governmental interests. Appellant concluded: “An objective review of the statutes reveals that the purposes of these laws are the same—to prohibit the possession of firearms by individuals not licensed to possess or prohibited from possessing a firearm, and there is no reading of these statutes which would permit one to find that the statutes were intended to prevent substantially different harms.” (See [Appellant‘s] Reply In Support of [Appellant‘s] Omnibus Pretrial Motion, filed 11/30/15, at 2-8.) Given the extensive pretrial proceedings, the trial court denied Appellant‘s remaining pretrial claims on January 15, 2016, including, as a matter of law, her claims of double jeopardy and collateral estoppel.
Appellant timely filed a notice of appeal on January 22, 2016. By order entered on January 26, 2016, the court directed Appellant to file a concise statement of errors complained of on appeal per
Appellant‘s sole issue on appeal is as follows:
DID THE TRIAL COURT ERR IN FAILING TO DISMISS THE INFORMATION AGAINST [APPELLANT], WHERE THE INFORMATION ARISES OUT OF THE SAME CONDUCT FOR WHICH [APPELLANT] HAS ALREADY BEEN PROSECUTED FOR, CONVICTED OF AND SENTENCED ON BY THE FEDERAL GOVERNMENT, AND THE COMMONWEALTH DID NOT CARRY ITS BURDEN OF PROVING THAT THE FEDERAL GOVERNMENT‘S PRIOR PROSECUTION WAS INTENDED TO PREVENT A SUBSTANTIALLY
DIFFERENT HARM OR EVIL THAN THE COMMONWEALTH‘S?
(Appellant‘s Brief at 3).
As a prefatory matter, Pennsylvania law has traditionally provided a criminal defendant the right to an immediate appeal from an order denying a pretrial motion to dismiss on double jeopardy grounds. Commonwealth v. Orie, 610 Pa. 552, 22 A.3d 1021, 1024 (2011). See also Commonwealth v. Haefner, 473 Pa. 154, 156, 373 A.2d 1094, 1095 (1977) (stating: “[D]enial of a pre-trial motion to quash an indictment, where the motion alleges that a second trial will violate a defendant‘s right not to be placed twice in jeopardy, is a final, appealable order“); Commonwealth v. Minnis, 83 A.3d 1047, 1049 n.1 (Pa.Super. 2014) (en banc) (stating: “An appeal from a pre-trial order denying double jeopardy protection is final and appealable“); Commonwealth v. Gains, 556 A.2d 870, 874 (Pa.Super. 1989) (en banc) (stating: “The Supreme Court of Pennsylvania has determined that an immediate appeal may be taken from an order denying a pretrial motion to dismiss on double jeopardy grounds“); Commonwealth v. Feaser, 723 A.2d 197, 199 n.2 (Pa.Super. 1999) (stating: “‘Pre-trial orders denying double jeopardy claims are immediately appealable in the absence of a written finding of frivolousness’ by the hearing court“); Commonwealth v. Davis, 708 A.2d 116, 117 n.1 (Pa.Super. 1998) (stating: “Pretrial orders denying double jeopardy claims are final orders for purposes of appeal“); Commonwealth v. Teagarden, 696 A.2d 169, 170 n.2 (Pa.Super. 1997), appeal denied, 549 Pa. 726, 702 A.2d 1060 (1997) (citing Commonwealth v. Brady, 510 Pa. 336, 508 A.2d 286 (1986); Commonwealth v. Wolfe, 684 A.2d 642 (Pa.Super. 1996); Commonwealth v. Breeland, 664 A.2d 1355 (Pa.Super. 1995)) (stating: “Pre-trial orders denying double jeopardy claims are immediately appealable in the absence of a written finding of frivolousness by the trial court that heard the claims. ... Such a rule strikes the appropriate balance between the defendant‘s protection against being placed in double jeopardy against the public‘s interest in prompt trials of the criminally accused“); Commonwealth v. Smith, 552 A.2d 292 (Pa.Super. 1988), appeal denied, 524 Pa. 596, 568 A.2d 1247 (1989) (noting generally that trial court‘s denial of pretrial motion to dismiss on double jeopardy claims is immediately appealable, absent written finding that motion is frivolous).
Our Supreme Court outlined the genesis of the right to an immediate appeal from a trial court‘s pretrial decision on double jeopardy as follows:
Generally, criminal defendants have a right to appeal a trial court‘s pre-trial double jeopardy determination under Commonwealth v. Bolden, 472 Pa. 602, 373 A.2d 90 (1977) (plurality opinion). While Bolden was a plurality decision, a per curiam decision by the Court shortly thereafter made clear that a Court majority agreed with the important narrow proposition that “pretrial orders denying double jeopardy claims are final orders for purposes of appeal.” [Haefner, supra at 156, 373 A.2d at 1095] (per curiam) (emphasis added). Eight years later, in [Brady, supra], this Court considered the question of whether a Bolden of-right appeal should be permitted to go forward when the trial court has concluded that the double jeopardy motion is frivolous. The Brady Court held that where the trial court makes a written statement finding that the pre-trial double jeopardy challenge is frivolous, a Bolden-style interlocutory appeal will not be permitted because it would only serve to delay prosecution.
In reaching this conclusion, the Brady Court noted that precluding Bolden appeals and automatic stays of retrial upon a written finding that the claim is frivolous still affords the defendant “the opportunity to initially assert his claim before a tribunal and retrial is not permitted unless the claim is shown to the satisfaction of that court to be frivolous.” As pertinent here, the Court explained that a second double jeopardy protection was available: “a defendant may challenge the finding of frivolousness in the context of a request for a stay from an appellate court.” The contemplated stay procedure provided “at least a preliminary review by an appellate judge of the finding of frivolousness prior to a retrial.” Third, Brady noted that appellate review of the merits would be available on direct appeal in the event of a conviction. The Court conceded that it was possible that a meritorious double jeopardy claim could be “overlooked by both a hearing court and the appellate court in which a stay is sought.” But, on balance, the Court concluded that this minimal risk was justified by the need for prompt trials and expeditious dispositions. The Court pointed out that the availability of an automatic stay upon filing a Bolden appeal “encourages the use of frivolous appeals as a means of avoiding prosecution.” Such “needless delays engendered by frivolous appeals hinder the administration of justice as well as the public interest.” Thus, the Brady Court envisioned a preliminary avenue for limited appellate review of the trial court‘s written finding that a defendant‘s double jeopardy challenge was frivolous via a stand-alone stay procedure, which would be unrelated to a pending appeal as of right. The Brady Court did not further address exactly how such stay reviews would proceed. Nor did the Court directly address which appellate court would conduct the review-via-stay, albeit the Court spoke generically of a stay “from an appellate court” and later adverted to “the appellate court in which a stay is sought,” without suggesting that all such appeals would proceed directly to this Court.
The Brady Court‘s failure to explicitly identify which appellate court should hear stay review challenges to a pre-trial finding that a double jeopardy challenge was frivolous became the controlling issue in the first published opinion from the Superior Court to address the Brady procedure. See Commonwealth v. Learn, 356 Pa.Super. 382, 514 A.2d 910, 911–12 (1986), overruled on other grounds by [Gains, supra]. In Learn, the panel opined that a stay request under Brady could not be made to that appellate court because there was no appeal pending. In the panel‘s view, absent a pending appeal, the Superior Court‘s jurisdiction was not implicated by the trial court‘s action. Instead, the Learn court concluded that a Brady stay request has to be made directly to this Court. The Learn court did not transfer the stay request to this Court, however, because the trial judge had made no written finding that the double jeopardy motion was frivolous. Instead, the panel remanded to the trial court for that determination.4
* * *
We believe the most efficacious remedy is to employ the existing procedures of
Chapter[s 13 and] 15 of the Rules of Appellate Procedure and permit a petitioner seeking review of a trial court‘s finding of frivolousness to file a Petition for Review in the Superior Court, as Petitioner has done here. The centerpiece of [these chapters] is the use of the “petition for review” as the vehicle for implicating the jurisdiction of the appellate court. Given the appropriate use of a petition for review as the vehicle for obtaining the narrow of-right appellate review contemplated by Brady, any desired stay should be sought per the ordinary stay procedure and in conformity with the governing decisional law. See Pa.R.A.P. 1781 (stay pending petition for review); Pennsylvania Pub. Utility Comm‘n v. Process Gas Consumers Group, 502 Pa. 545, 467 A.2d 805 (1983). Finally, should the Superior Court overturn the trial court‘s finding of frivolousness, the petitioner would be free to file a notice of appeal as of right under Bolden. If the intermediate court upholds the finding of frivolousness, any further recourse to this Court is by [Petition for Allowance of Appeal].We emphasize that the appellate court‘s consideration of a petition for review in the Brady setting is preliminary in nature. Thus, in a case such as this one, it does not answer the merits of the underlying question of whether the trial court abused its discretion in declaring a mistrial. That question will be answered if the appeal is permitted to go forward under Bolden. Again, at the Brady petition for review stage, the appellate court‘s focus is on the finding of frivolousness.
Of course, the appellate court‘s review of the trial court‘s finding of frivolousness may require some preliminary assessment of the ruling or event giving rise to the double jeopardy challenge—here, Petitioner‘s challenge to the underlying propriety of the trial court‘s declaration of a mistrial. Accordingly, we have granted review of the second question raised by Petitioner, as quoted above, so that our remand permits the Superior Court to address this underlying question, to the degree necessary, in order to assess the trial court‘s finding of frivolousness.
Orie, supra at 22 A.3d at 1024-28 (some internal citations and footnotes omitted) (some emphasis added). The Orie Court addressed the right to immediate appeal where the trial court expressly finds the double jeopardy claim is frivolous. Id. at 22 A.3d at 1024. Essentially, the Orie Court modified Brady by holding that a defendant who has had a pretrial double jeopardy challenge denied as frivolous could seek interlocutory review of that decision if the defendant filed a petition for permissive review under the applicable rules of appellate procedure. Orie, supra at 22 A.3d at 1026-27. Significantly, Orie reinforced the general rule permitting an interlocutory appeal as of right from the denial of a pretrial motion to dismiss on double jeopardy grounds if the trial court made no finding of frivolousness. Id. at 22 A.3d at 1024 (stating generally that pretrial orders denying double jeopardy claims are final orders for purposes of appeal).
Consistent with the legal precedent recapped in Orie, an order denying a double jeopardy motion, that makes no finding that the motion is frivolous, is a collateral order under
Rule 313. Collateral Orders
(a) General rule. An appeal may be taken as of right from a collateral order of an administrative agency or lower court.
(b) Definition. A collateral order is an order separable from and collateral to the main cause of action where the right involved is too important to be denied review and the question presented is such that if review is postponed until final judgment in the case, the claim will be irreparably lost.
The Note to
Official Note: If an order meets the definition of a collateral order, it is appealed by filing a notice of appeal or petition for review.
Pa.R.A.P. 313 is a codification of existing case law with respect to collateral orders.* * *
Examples include...an order denying a pre-trial motion to dismiss on double jeopardy grounds if the trial court does not also make a finding that the motion to dismiss is frivolous. See Commonwealth v. Brady, 508 A.2d 286, 289–91 (Pa. 1986) (allowing an immediate appeal from denial of double jeopardy claim under collateral order doctrine where trial court does not make a finding of frivolousness); Commonwealth v. Orie, 22 A.3d 1021 (Pa. 2011). An order denying a pre-trial motion to dismiss on double jeopardy grounds that also finds that the motion to dismiss is frivolous is not appealable as of right as a collateral order, but may be appealable by permission under
Pa.R.A.P. 1311(a)(3) .
Instantly, we can answer any jurisdictional query regarding this appeal by direct reference to
Here, Appellant first raised her double jeopardy claim in a supplemental brief and demanded relief as a matter of law. She neither preserved nor raised any issue regarding the trial court‘s method of resolving her claim. Under the circumstances of this case, any deviations from the
“[T]he question of whether a defendant‘s constitutional right against double
Importantly, “The prohibition of double jeopardy, as it relates to subsequent prosecutions, is irrelevant until jeopardy has once attached.” Commonwealth v. Arelt, 454 A.2d 108, 111 (Pa.Super. 1982). In the context of a plea deal, jeopardy does not attach to crimes, which were dropped as part of a guilty plea agreement. Commonwealth v. Tabb, 491 Pa. 372, 376, 421 A.2d 183, 186 (1980), cert. denied, 450 U.S. 1000, 101 S.Ct. 1708, 68 L.Ed.2d 202 (1981) (describing concept of continuing jeopardy, but holding that concept does not protect defendant against retrial for crimes he pled guilty to, where plea is voided on appeal through defendant‘s own procurement). By the same token, the dismissal of a charge in federal court, as part of a plea deal, does not represent a conviction or an acquittal that might prevent a subsequent prosecution in state court. Commonwealth v. Schmotzer, 831 A.2d 689 (Pa.Super. 2003), appeal denied, 577 Pa. 695, 845 A.2d 817 (2004).
As a general rule, “The double jeopardy protections afforded by the United States and Pennsylvania Constitutions are coextensive and prohibit successive prosecutions and multiple punishments for the same offense.” Commonwealth v. Crissman, 195 A.3d 588, 591 (Pa.Super. 2018). This general rule applies in most cases, with the exception of those cases involving allegations of prosecutorial misconduct, where our state constitution provides greater double jeopardy protection than its federal counterpart. Minnis, supra at 1052 (recapping increased constitutional protection against double jeopardy, where defendant alleges prosecutorial misconduct; outcome of double jeopardy claim depends on nature of alleged misconduct, i.e., whether misconduct was undertaken in bad faith to prejudice or harass defendant); Feaser, supra at 200 (reiterating that our state constitution extends greater double jeopardy protection in cases of intentional and egregious prosecutorial misconduct). If, however, prosecutorial misconduct is not the basis of the defendant‘s application for double jeopardy relief, then we employ a unitary double jeopardy analysis to the case at hand. Id.
Our examination of Appellant‘s claim involves the intersection of specific legal doctrines,
As between the state and the federal jurisdictions or between the jurisdictions of the different states, Pennsylvania law approaches the test for successive prosecutions, in the context of double jeopardy, via
§ 111. When prosecution barred by former prosecution in another jurisdiction
When conduct constitutes an offense within the concurrent jurisdiction of this Commonwealth and of the United States or another state, a prosecution in any such other jurisdiction is a bar to a subsequent prosecution in this Commonwealth under the following circumstances:
(1) The first 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 based on the same conduct unless:
(i) 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
(ii) 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 offense of which the defendant is subsequently prosecuted.
The first inquiry is whether...the prosecution which the Commonwealth proposes to undertake involves the same conduct for which the individual was prosecuted by the other jurisdiction. If the answer to this question is yes, then we must determine whether each prosecution requires proof of a fact not required by the other, and whether the law defining the Commonwealth offense is designed to prevent a substantially different harm or evil from the law defining the other jurisdiction‘s offense. If the Commonwealth cannot satisfy both of these requisites, then the prosecution may not proceed.
Calloway, supra at 747 (emphasis in original). As a preliminary matter, “A pretrial
When a conspiracy charge is at issue, the focus of a “same conduct” analysis under
Even before its passage, the concepts underlying
Under the “same conduct” test for
The federal statute relevant to this case provides as follows:
§ 922. Unlawful acts
(a) It shall be unlawful—
* * *
(6) for any person in connection with the acquisition or attempted acquisition of any firearm or ammunition from a licensed importer, licensed manufacturer, licensed dealer, or licensed collector, knowingly to make any false or fictitious oral or written statement or to furnish or exhibit any false, fictitious, or misrepresented identification, intended or likely to deceive such importer, manufacturer, dealer, or collector with respect to any fact material to the lawfulness of the sale or other disposition of such firearm or ammunition under the provisions of this chapter
§ 924. Penalties
(a)(1) Except as otherwise provided in this subsection, subsection (b), (c), (f), or (p) of this section, or in section 929, whoever—
(A) knowingly makes any false statement or representation with respect to the information required by this chapter to be kept in the records of a person licensed under this chapter or in applying for any license or exemption or relief from disability under the provisions of this chapter;
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shall be fined under this title, imprisoned not more than five years, or both.
(2) Whoever knowingly violates subsection (a)(6)...of section 922 shall be fined as provided in this title, imprisoned not more than 10 years, or both.
Pennsylvania‘s conspiracy statute states in relevant part:
§ 903. Criminal conspiracy
(a) Definition of conspiracy.—A person is guilty of conspiracy with another
person or persons to commit a crime if with the intent of promoting or facilitating its commission [she]: (1) agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime[.]
The essence of a criminal conspiracy is a common understanding, no matter how it came into being, that a particular criminal objective be accomplished. Therefore, a conviction for conspiracy requires proof of the existence of a shared criminal intent. An explicit or formal agreement to commit crimes can seldom, if ever, be proved and it need not be, for proof of a criminal partnership is almost invariably extracted from the circumstances that attend its activities. Thus, a conspiracy may be inferred where it is demonstrated that the relation, conduct, or circumstances of the parties, and the overt acts of the co-conspirators sufficiently prove the formation of a criminal confederation. The conduct of the parties and the circumstances surrounding their conduct may create a web of evidence linking the accused to the alleged conspiracy beyond a reasonable doubt. Even if the conspirator did not act as a principal in committing the underlying crime, [she] is still criminally liable for the actions of his co-conspirators taken in furtherance of the conspiracy.
Commonwealth v. Johnson, 180 A.3d 474, 479 (Pa.Super. 2018), appeal denied, ___ Pa. ___, 205 A.3d 315 (2019) (quoting Commonwealth v. Murphy, 795 A.2d 1025, 1038 (Pa.Super. 2002), affirmed, 577 Pa. 275, 844 A.2d 1228 (2004)).
Accomplice liability in Pennsylvania is defined as follows:
§ 306. Liability for conduct of another; complicity
(a) General rule.—A person is guilty of an offense if it is committed by [her] own conduct or by the conduct of another person for which [she] is legally accountable, or both.
(b) Conduct of another.—A person is legally accountable for the conduct of another person when:
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(3) [she] is an accomplice of such other person in the commission of the offense.
(c) Accomplice defined.—A person is an accomplice of another person in the commission of an offense if:
(1) with the intent of promoting or facilitating the commission of the offense, [she]:
(i) solicits such other person to commit it; or
(ii) aids or agrees or attempts to aid such other person in planning or committing it...
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(g) Prosecution of accomplice only.—An accomplice may be convicted on proof of the commission of the offense and of [her] complicity therein, though the person claimed to have committed the offense has not been prosecuted or convicted or has been convicted of a different offense or degree of offense or
has an immunity to prosecution or conviction or has been acquitted.
An actor and his accomplice share equal responsibility for the criminal act if the accomplice acts with the intent of promoting or facilitating the commission of an offense and agrees or aids or attempts to aid such other person in either the planning or the commission of the offense. There is no minimum amount of assistance or contribution requirement, for [i]t has long been established...that intent of the parties is a consideration essential to establishing the crime of aiding and abetting a felony. Thus, even non-substantial assistance, if rendered with the intent of promoting or facilitating the crime, is sufficient to establish complicity. Accomplice liability does not create a new or separate crime; it merely provides a basis of liability for a crime committed by another person.
Gross, supra at 395, 101 A.3d at 35 (internal citations omitted) (emphasis added).
Conspiracy and accomplice liability are essentially different legal concepts with diverse requirements for mental culpability. Commonwealth v. Roebuck, 612 Pa. 642, 657, 32 A.3d 613, 622 (2011). “[A]n accomplice is equally criminally liable for the acts of another if [the accomplice] acts with the intent of promoting or facilitating the commission of an offense and agrees, aids, or attempts to aid such other person in either planning or committing that offense.” Commonwealth v. Rios, 554 Pa. 419, 427, 721 A.2d 1049, 1053 (1998). Unlike conspiracy, the term “commission of the offense” in the accomplice context focuses on the conduct of the accomplice, not the result of the offense. Roebuck, supra at 652, 32 A.3d at 619. “This diffuses any impression that an accomplice must always intend results essential to the completed crime.” Id. (reasoning
The final step in the
The primary interest of
Under Pennsylvania law, “The evil against which conspiracy statutes are directed is the illegal agreement or combination for criminal purposes. Separate underlying predicate acts are merely circumstantial proof of the agreement.” Breeland, supra at 1362 (quoting Savage, supra at 284) (emphasis omitted). “[C]onspiracy is a continuing course of conduct which terminates when the crime or crimes which are its object are committed or the agreement that they be committed is abandoned by the defendant and by those with whom [s]he conspired[.]”
Instantly, Appellant lived and worked in New Jersey, but she decided to obtain a Pennsylvania driver‘s license and use Mr. Autenrieth‘s address as her own, so she could purchase a firearm in Pennsylvania. That same day, Appellant purchased a firearm at a Berks County store, where she used her new Pennsylvania driver‘s license with Mr. Autenrieth‘s address to complete the federal firearm paperwork.
The Commonwealth charged Appellant with criminal conspiracy (as co-conspirator to firearms not to be carried without a license), accomplice liability (related to possession of a firearm prohibited), and accomplice liability (related to lending or giving of firearms prohibited). Following litigation of Appellant‘s initial omnibus pretrial motions back in 2010, the trial court dismissed the state claims against Appellant on the ground of improper venue. While that decision was pending on appeal in the state appellate Courts, the federal authorities charged Appellant with making false statements to a federal firearms licensee and aiding and abetting a prohibited person to possess a firearm. Pursuant to an agreement, Appellant pled guilty only to the federal charge of making false statements, and the aiding and abetting charge was dropped. Therefore, jeopardy did not attach to the aiding and abetting charge. See Tabb, supra; Schmotzer, supra.
After our Supreme Court remanded this case to the trial court, Appellant filed a new pretrial motion to bar prosecution on the basis of double jeopardy, which the court denied. Under the dual sovereignty doctrine, Appellant‘s wrongdoings constituted separate offenses under federal and state law. See Gamble, supra. Nevertheless, our analysis does not end here.
The threshold inquiry under
What Appellant did after acquiring the firearm, such as storing the firearm at Mr. Autenrieth‘s house or how she allowed him access to the firearm and how he used the firearm, was not prosecuted. That information was intended solely as background for the seriousness of the fraud charge prosecuted. To be precise, the federal government expressly stated: “The government has no evidence that [Appellant] knew that [Mr.] Autenrieth would engage in this criminal episode or use the gun in this manner.” (See Attachment Five to [Appellant‘s] Supplemental Omnibus Pretrial Motion—Motion to Dismiss—Double Jeopardy, Collateral Estoppel,
Appellant‘s illegal purchase of the firearm is not the conduct that actually led to Mr. Autenrieth‘s appropriation of the firearm. Appellant‘s reliance on the federal sentencing memorandum, to insist the Commonwealth is prosecuting Appellant for the same conduct is both conclusory and misguided. The Commonwealth did not charge Appellant with Pennsylvania‘s counterpart statute under
The record is sufficient to show a criminal conspiracy between [Mr.] Autenrieth and [Ms.] Gross, under which [Ms.] Gross would purchase a firearm for the purpose of providing [Mr.] Autenrieth with access to a gun he was otherwise prohibited from possessing. Because of this criminal agreement, [Mr.] Autenrieth was able to use the firearm on two occasions, including the day he took the
gun and used it in Monroe County. The trial court determined the conspiracy agreement ended May 29, 2009, at the time [Ms.] Gross left the firearm with [Mr.] Autenrieth at his residence in Northampton County. However, the trial court failed to appreciate that the object of the conspiracy articulated by the charges was to provide [Mr.] Autenrieth with unlimited possession and unconditional access to a firearm, and such was not completed or terminated May 29, 2009, but continued as long as [Ms.] Gross allowed [Mr.] Autenrieth to possess her gun. ... [Ms.] Gross did not object or withdraw her authorization. [Mr.] Autenrieth‘s taking the firearm and carrying it constituted the overt act, and that possessory act did not cease when he crossed into Monroe County. Accordingly, the trial court erred in dismissing the conspiracy charges, as the record was sufficient to establish [Ms.] Gross, as co-conspirator, could be found vicariously liable for [Mr.] Autenrieth‘s possession of the firearm....
The trial court also erred in finding dismissal was warranted for the counts charging [Ms.] Gross as an accomplice in the crimes of illegal possession of a firearm and lending or giving a firearm. The trial court found [Ms.] Gross could not be an accomplice in Monroe County because [Mr.] Autenrieth, not [Ms.] Gross, possessed the gun there. Also, both the trial court and the Superior Court concluded [Ms.] Gross could not be charged as an accomplice because “there is no evidence that she intended to aid or promote [Mr.] Autenrieth‘s shootout with the police.” Commonwealth v. Gross, No. 2006 EDA 2010, unpublished memorandum at 7, 2011 WL 5111048 (Pa.Super. filed July 13, 2011).... This factual statement may be true, but it is irrelevant, reflecting a misapprehension of the charges filed. [Ms.] Gross was never charged as an accomplice in the shooting; rather, she was charged as an accomplice in the illegal possession of a firearm, and the evidence offered was sufficient to prove she could be convicted as an accomplice to such illegal possession....
Gross, supra at 393-95, 101 A.3d at 34-35 (some internal citations omitted).
When Appellant raised a “same conduct” argument on remand in the context of double jeopardy, the Commonwealth opposed the motion to dismiss by: (1) referring to the Supreme Court‘s decision which is law of the case; (2) stating Appellant provided no real analysis and misstated Pennsylvania law on double jeopardy; (3) stating Appellant failed to analyze or compare the facts underlying the federal charge with the facts underlying the pending state charges; and (4) concluding the evidence used in the federal case was only peripherally related to the state case against Appellant. See Caufman, supra (emphasizing mere overlap of facts in successive prosecutions will not establish double jeopardy violation); Breeland, supra (stating ultimate object or purpose of agreement might not be equivalent in both prosecutions). The certified record supports the Commonwealth‘s position on all points. Thus, we conclude the federal and state prosecutions in this case are not based on the same conduct; and Appellant‘s
In an abundance of caution, we will give some attention to the remaining
See Caufman, supra.
Finally, the law defining the Commonwealth‘s charges is designed to avert a
We cannot step back so far that we lose proper perspective and blur the differences among all of the statutes at issue simply because the statutes are related to firearms. As between the federal statute and the Pennsylvania statutes at issue, each requires proof of a fact the other does not and each intends to prevent a substantially different harm or evil, even though the statutes involve firearms generally. Said another way, the federal and state statutes prosecuted might have overlapping purposes but their interests are plainly distinct. Thus, we decline to disturb the court‘s ruling on Appellant‘s motion to dismiss. See
Based upon the foregoing, we have interlocutory jurisdiction under
Further, the federal government dropped the charge of aiding and abetting as part of Appellant‘s plea deal in federal court, so the Commonwealth is not “collaterally estopped” from charging Appellant under the theories of conspiracy and accomplice liability related to Mr. Autenrieth‘s access to or possession and use of Appellant‘s firearm, as these issues played no part in her federal guilty plea. See Teagarden, supra at 171 (stating collateral estoppel will bar subsequent prosecution only if issue in
Order affirmed; case remanded for further proceedings. Jurisdiction is relinquished.
President Judge Emeritus Bender, Judge Bowes, Judge Panella, Judge Lazarus, and Judge Olson join this opinion.
Judge Olson files a concurring opinion in which President Judge Emeritus Bender and Judge Bowes join.
Judge Stabile files a dissenting opinion in which Judge Shogan and Judge Dubow join.
Judge Dubow files a dissenting opinion in which Judge Shogan and Judge Stabile join.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/29/2020
Notes
§ 6106. Firearms not to be carried without a license
(a) Offense defined.—
(1) Except as provided in paragraph (2), any person who carries a firearm in any vehicle or any person who carries a firearm concealed on or about his person, except in his place of abode or fixed place of business, without a valid and lawfully issued license under this chapter commits a felony of the third degree.
(2) A person who is otherwise eligible to possess a valid license under this chapter but carries a firearm in any vehicle or any person who carries a firearm concealed on or about his person, except in his place of abode or fixed place of business, without a valid and lawfully issued license and has not committed any other criminal violation commits a misdemeanor of the first degree.
§ 6105. Persons not to possess, use, manufacture, control, sell or transfer firearms
(a) Offense defined.—
(1) A person who has been convicted of an offense enumerated in subsection (b), within or without this Commonwealth, regardless of the length of sentence or whose conduct meets the criteria in subsection (c) shall not possess, use, control, sell, transfer or manufacture or obtain a license to possess, use, control, sell, transfer or manufacture a firearm in this Commonwealth.
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(c) Other persons.—In addition to any person who has been convicted of any offense listed under subsection (b), the following persons shall be subject to the prohibition of subsection (a):
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(6) A person who is the subject of an active final protection from abuse order issued pursuant to
23 Pa.C.S. § 6108 , is the subject of any other active protection from abuse order issued pursuant to23 Pa.C.S. § 6107(b) , which provided for the relinquishment of firearms during the period of time the order is in effect.... This prohibition shall terminate upon the expiration or vacation of the order or portion thereof relating to the relinquishment of firearms.
§ 6115. Loans on, or lending or giving firearms prohibited
(a) Offense defined.—No person shall make any loan secured by mortgage, deposit or pledge of a firearm, nor, except as provided in subsection (b), shall any person lend or give a firearm to another or otherwise deliver a firearm contrary to the provisions of this subchapter.