Lead Opinion
OPINION
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 Sheriffs 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 possess
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.
Venue was held improper based on a lack of factual connection to Monroe County.
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
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 (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, 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, 961 A.2d 66, 78 (2008) (citing Commonwealth v. Thomas, 410 Pa. 160, 189 A.2d 255, 258 (1963)).
The record is sufficient to show a criminal conspiracy between Autenrieth and Gross, under which 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 Gross left the firearm with Autenrieth at his resi
The trial court also erred in finding dismissal was warranted for the counts charging Gross as an accomplice in the crimes of illegal possession of a firearm and lending or giving a firearm. The trial court found Gross could not be an accomplice in Monroe County because Autenrieth, not Gross, possessed the gun there. See Trial Court Opinion, 7/15/10, at 11-12. Also, both the trial court and the Superior Court
“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, 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, 387 A.2d 1268,1270 (1978) (emphasis in original). 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, 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.
Further, even if venue had been improper in Monroe County, the record does not warrant dismissal for that reason alone. See Pa.R.Crim.P. 109 (“A defendant shall not be discharged nor shall a case be dismissed because of a defect in the form or content of a complaint, citation, summons, or warrant, or a defect in the procedures of these rules[.]”); see also Commonwealth v. Zook, 532 Pa. 79, 615 A.2d 1, 6 (1992) (interpreting substantially similar predecessor to Rule 109, stating “this Rule clearly eschews the application of per se remedies for technical violations, and demands a showing of prejudice by the defendant before a dismissal of prosecution is warranted[, which] must be beyond the inherent prejudice of being subjected to a criminal prosecution”).
As the Commonwealth notes, no provision in our criminal procedural rules permits dismissal as a remedy for improper venue. To the contrary, our rules repeatedly speak to transferring cases to another judicial district when improper venue is determined. See, e.g., Pa.R.Crim.P. 130, 134, 555, 584. As “[v]enue is predominantly a procedural matter,” Bethea, at 1074 (citations omitted), and “pertains to the locality most convenient to the proper disposition of a matter,” id., at 1074-75, dismissal is disproportionate and unjust where a court merely finds another judicial district provides a more appropriate forum. Our rules promote transfer, not dismissal, and Gross brought not only a motion to dismiss, but “in the alternative” a motion to transfer for improper venue. The trial court did not transfer the case even though it expressly determined Northampton or Berks County were proper ven
In light of the foregoing, we conclude the trial 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. Jurisdiction relinquished.
. The omnibus motion consisted of a Motion for Bill of Particulars; Motion to Compel Pretrial Discovery and Inspection; Motion to Dismiss or, in the alternative, Transfer for Improper Venue; Motion for a Change of Venue or Venire to Avoid Prejudicial Pretrial Publicity; Motion to Quash Criminal Complaint or Return of Transcript, and/or Petition for Writ of Habeas Corpus; and Motion for Recusal/Appointment of Out-of-County Judge. Gross's Omnibus Pretrial Motion, 3/3/10, at 4-18.
. In its Rule 1925(a) opinion, the trial court reiterated dismissal was solely because Monroe County was not a county of proper venue, and not based on any allegation of pre-trial publicity or prejudice that would inhibit Gross from receiving a fair and impartial trial there. See Trial Court Opinion, 7/28/10, at 2-3 (citations omitted).
. Compare Bradley v. State, 272 Ga. 740, 533 S.E.2d 727, 730 (2000) (prosecution’s burden to prove venue beyond reasonable doubt (citation omitted)), with Morris v. State, 274 Ind. 161, 409 N.E.2d 608, 610 (1980) (proper venue must only be proven by preponderance of evidence (citation omitted)).
. Accord Evans v. State, 571 N.E.2d 1231, 1233 (Ind.1991) (requiring state prove venue by preponderance of evidence and noting circumstantial evidence may be sufficient (citation omitted)); State v. Allen, 293 N.W.2d 16, 20 (Iowa 1980) (explaining venue is not essential element of offense, not jurisdictional, and subject to waiver; thus, it may be adequately established by preponderance of evidence); State v. Valentine, 506 S.W.2d 406, 410 (Mo.1974) (reasoning that "venue is not an integral part of a criminal offense and need not be proven beyond a reasonable doubt or by direct evidence, but it may be inferred from all the evidence”). See generally Annotation, Necessity of Proving Venue or Territorial Jurisdiction of Criminal Offense Beyond Reasonable Doubt, 67 A.L.R.3d 988 (1975 & Supp.2013) (collecting cases).
. Possession is ongoing conduct, not a temporally limited act. As long as one is in unlawful possession of a firearm, one is committing an offense. See, e.g., United States v. Hull, 456 F.3d 133, 146 (3d Cir.2006) (Ackerman, J., concurring in part and dissenting in part) (citation omitted).
. All charges against Gross allege responsibility for Autenrieth’s illegal possession of the firearm; Gross was not charged with any of the other crimes committed by Autenrieth.
Concurrence Opinion
concurring.
I join the Majority Opinion, except for the discussion relating to the burden and degree of proof. See Majority Op. at 391,101 A.3d at 33 (“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.”). There are complexities in the area, as well as prior precedent, that are not accounted for in the parties’ briefs or by the Majority. See, e.g., Commonwealth v. Dixon, 603 Pa. 519, 985 A.2d 720, 722 (2009) (“If a litigant moves to change venue, that litigant must demonstrate some necessity to justify the change in venue.”) (citing Commonwealth v. Bethea, 574 Pa. 100, 828 A.2d 1066, 1075 (2003) (“The moving party bears the burden of demonstrating the necessity of a change of venue.”)). Meanwhile, as the Majority notes, other jurisdictions have split on the level of proof. I would leave open the prospect of adjustment in a case with targeted advocacy.