*1 ORDER PER CURIAM. 2003, appeal July, NOW, day 22nd
AND granted. improvidently having as been dismissed 828 A.2d Pennsylvania, Appellant, v. COMMONWEALTH BETHEA, Appellee. A. Rondu Pennsylvania. Supreme Court May Argued July Decided *4 Lisko, for Waynesboro, Michael John Pennsylvania, Appellant. Abein, Appellee. for
Gregory Barton CAPPY, ZAPPALA, Justice, Former Chief Before NIGRO, NEWMAN, SAYLOR, EAKIN, CASTILLE, AND JJ. THE COURT
OPINION OF Chief Justice CAPPY. distinction venue and appeal
This concerns the between question presented The subject jurisdiction. matter discrete County Franklin Pleas of is whether Court Common jurisdiction to hear and decide the case subject had involving Pennsylvania violations of against Rondu Bethea (“Crimes Code”) Code, underlying when Crimes As we find episode occurred Cumberland did have Court of Common Pleas Superior jurisdiction, decision reversed. can for the convictions issue predicate
The factual Bethea, briefly April On Mr. summarized. herein, grams of crack cocaine to confidential delivered exchange occurred at a exchange informant $400. Stuff’, known as “All That located at business establishment Street, Shippensburg, County, North Earl Cumberland Pennsylvania. of this As result incident *5 County Appellee 21,1998 was on August arrested and charged substance, with delivery 780-113(30), of a controlled § 35 P.S. conspiracy substance, to deliver a controlled 18 Pa.C.S.A. Appellee 903. was scheduled for trial on charges these Franklin County, Pennsylvania. 7, 1999,
On March Appellee was driving arrested for a car while under a suspended license which led to being his charged as a habitual offender under 75 Pa.C.S. 1542. The March arrest took place Chambersburg, Franklin County, Pennsylvania and proceeded the matter to trial in Franklin County.
Appellee was tried a jury before in Franklin County on 24, June 1999 and convicted on drug and conspiracy charges arising from the incident County. In an 9, unrelated proceeding, July on Appellee entered a plea of guilty to the habitual offender charge Appellee’s As jury trial plea and his had been presided by over the same trial judge, the sentencing hearing for both convictions occurred on day, September 8, same 1999, in Franklin County.1 On the delivery charge, Appellee was sentenced to a term of imprisonment, not less than 36 months nor more than 120 months. A consecutive term not less than 6 months nor more than 60 months was imposed on conspiracy charge. A sentence not less than 6 months nor more than 24 months incarceration imposed was on the habitual violation, offender to run concurrent to the sentence for conspiracy. an appeal filed from judgment of sen
tence. In his statement matters complained of appeal, issues, he raised three all of which challenged the ineffective assistance of trial counsel.2 Appellee argued that trial counsel Although sentencing proceeding day, occurred on the same drug charges were not consolidated with the motor vehicle for adjudication, separate imposed sentences were at each informa- tion. Grant, (Pa.2002), announced, rule, general as a that claims of ineffective assistance of counsel should be raised for the first proceeding. time in a collateral 1) failing challenge sufficiency
was ineffective 2) failing challenge the hearing; preliminary evidence at the motion; and suppression or filing corpus evidence habeas *6 3) The trial found failing object improper venue. court to without As to the all three ineffectiveness claims merit. venue, agreed issue trial court that venue challenging final the However, County. Franklin court went proper was not in the Appellee had suffered prejudice on to consider whether Franklin, jury tried a chosen in having the matter before Cumberland, that County. court rather than The observed any claim of stem- Appellee specific prejudice failed to assert Further, court from trial. trial ming the location the neighboring that and counties noted Franklin Cumberland are that similar socioeconomic back- and the residents share conclusion, the trial court found that grounds. object to no from trial counsel’s failure to prejudice suffered 3). Walker, 1/4/2000, J., p. (Opinion of filed venue. trial court. Superior The Court reversed the decision allega- Superior granted Appellee’s The relief on third Court although that its decision tion error and noted rendered moot, merit claims.3 remaining two issues it found no to those granted, Superior upon As to claim which relief was question failure trial counsel Court framed the as “the jurisdictional being a to the trial held challenge make County alleged drug place Franklin when the transaction took Bethea, A.2d County.” Cumberland 1181,1182 supplied). Superior (Pa.Super.2000) (emphasis The applied retroactively and to all holding
The
was
to that case
of Grant
currently pending where
trial counsel
cases
a claim of ineffectiveness of
clarify
and
We now
properly
preserved.
had been
raised
apply
application
retroactive
of Grant
not
of ineffective
does
claims
appellate
where the
rendered
assistance
counsel
intermediate
disposition
As the
prior
merits
to the issuance of
decision in Grant.
Appellee’s
Superior
in this
addressed the merits of
Court decision
case
counsel,
the rule
does not
claims
ineffectiveness of trial
of Grant
apply to this case.
order,
Superior
judgment
affirmed
In its final
Court
violation,
judgment of
sentence on the habitual offender
vacated the
charges
delivery
and
of a controlled substance
sentence on the
substance,
conspiracy
the case to
to deliver
controlled
remanded
proceedings.
the trial court for further
Court analyzed the
subject
issue as one of
jurisdiction,
matter
venue,
and concluded that
could not
exercise
single
over a
offense com-
mitted
Superior
rejected
The
Court
Appellant’s argument
the decision
Commonwealth v.
(Pa.1997),
controlled on
of subject
jurisdiction.4
Superior
majority
Court
distinguished McPhail as that case involved
the consolidation of
charges
criminal
that occurred in multiple
part
counties but were
of a single
transaction,
pursu-
ant to
Looking
at the
circumstances
present case,
Superior
majority
that,
found
since
drug charges
and the habitual offender violation were not
part of a single criminal episode,
could not be
consolidated under
reasoning
in McPhail was
Bethea,
not applicable.
Judge Lally-Green dissented. The dissent asserted that in McPhail, this general Court held that subject jurisdic- matter tion to hear involving violations of the Crimes Code is not prescribed by Bethea, territorial limitations. A.2d 761 1187. § See 18 Therefore, Pa.C.S. only where there is episode, one criminal question venue, is one of jurisdic- tion. Addressing the issue from that perspective, the dissent focused on whether trial counsel was in failing ineffective to object to Finding venue. Appellee that could not establish prejudice under accepted ineffectiveness, test for dissent concluded that the claim of error failed.
Appellant sought review the order of Superior Court, arguing McPhail, that under the Franklin County Court of Common Pleas did subject have jurisdiction matter over the offense in committed This plurality opinion. McPhail is a Six participated Justices in the Opinion Announcing decision. The Judgment of the Court was by Justice, authored then Flaherty, joined Chief Justice by then now former Chief Zappala. Justice separate This author concurring filed a opinion specifically joined that opinion Flaherty. of Chief Justice Nigro Mr. Justice by concurred in the opinion result reached Flaherty. Chief Justice Madame Justice dissenting Newman filed a opinion joined by that was Mr. Justice Castille.
108 Superior granted Appeal Allowance of address the
Court interpretation McPhail.5 Court’s McPhail, in this court established Appellant asserts has county court this Commonwealth statewide that each charges arising from the Crimes Code. hear in its discus- Superior that the Court erred Appellant argues county it a as concluded that sion decision jurisdiction beyond only could its territorial exercise consolidated the context of a action boundaries within by Superior 110. This error Court led under legal as present challenge one incorrectly it to review issue involving jurisdiction, matter when in fact the is subject Finally, question one of when viewed as a purely venue. venue, as counsel was a claim trial specifically venue, fails, failing challenge claim as ineffective prejudice. cannot establish correctly Court distin- Appellee argues Superior that the case, present from the as McPhail is limited guished McPhail prosecution. of a arising to cases within the context Superior deciding Appellee does not believe erred raising subject jurisdiction, case as claim of one question jurisdiction. since venue is a prosecutor action error venue reflects unilateral having to good of this case without show cause alter venue Reilly, 188 A. for its action. Commonwealth (Pa.1936). question prejudice, jurisdic- for the since As law, is a the failure trial counsel to tion challenge of the trial in Franklin se per venue *8 ineffectiveness. starting point analysis a discussion
The obvious for our is of cocaine the decision in McPhail. Roosevelt McPhail sold to officer on Pennsylvania the same undercover State Police during of first the summer 1990. The sale several occasions jurisdic- question centers on 5. The issue for review law, purely is As this is our standard of review de tion. novo, one Jones, Twp. scope plenary. of review v. 571 our Buffalo Co., (Pa.2002); Phillips 813 542 Pa. A.2d 659 A-Best Products (Pa.1995). 665 1167 Pa. A.2d
109 Washington County, in Pennsylvania. occurred When the larger undercover officer to a buy quantity drugs, asked Washington McPhail took from into neigh- the officer boring County, Pennsylvania Allegheny complete to the sec- ond sale. A weeks a final amount few later sale a small occurred, again Washington Pennsylvania. cocaine County, Charges against Washington filed were McPhail both Allegheny regarding Counties had oc- transactions that respective pled guilty curred McPhail to counties. charges Washington County and then to dismiss moved pending charges Allegheny County pursuant § 110. portion of 18 Pa.C.S. pertinent discussion in McPhail states: prosecution prosecution by 110. When barred former
for different offense prosecution
Although a is for a a violation of different provision of the a prosecution statutes than former or is facts, different based on by prose- it is barred such former cution following under the circumstances:
(1) prosecution The former resulted in an or in a acquittal conviction as defined in (relating section of this title prosecution when prosecution barred former for same offense) subsequent and the prosecution is for:
(i) any offense which the defendant could have been prosecution; convicted on the first (ii) any offense based on the same or arising conduct from episode, the same criminal if such offense was known appropriate to the prosecuting officer the time of the commencement of first trial and was within the jurisdiction of single court unless the court ordered a separate trial of charge of such offense....
As the Commonwealth had conceded
multiple
co-
caine sales constituted a single
episode,
the court
determining
focused its
attention
all the
whether
offenses
single
were within
court.
no felony drug to power try of the trial court The source of the Pennsylva- sovereign the cases flows from within Common- no limitations the nia and contains territorial rule, limiting jurisdiction common law wealth. The arising within the pleas common to those offenses court of sits, with the court was declared inconsistent county where the power of the Com- judicial that the constitutional declaration at judicial system. Id. a unified monwealth is vested provision constitutional at Finally, explained Constitution, I, 9, Pennsylvania provid- Article Section impartial of an tried before “an right for the accused ing vicinage”, not a limitation jury of the is not a Vicinage, although A.2d at 143-44. term court. 692 limitation, readily can specific more designating a territorial referencing the of an action. proper as venue be understood conclusion, the McPhail court stated: Id. venue, or
First, synonymous county is with vicinage not Second, county. place may than one but embrace more trial, county where within or without the whether occurred, venue, jurisdic- is a not alleged crime tion, notwithstanding imprecise confusing [FN3] 105, Pa. Boyle, v. terminology [516 used Commonwealth (1987) Third, county than trial in a other ]. constitutionally pro- occurred is one where offense Fourth, county a mechanism trial outside the is hibited. prohibit dragging sparingly, which must be used burdening him with the commonwealth and accused all over expensive prosecution. trial at whim the an jurisdiction from FN3, important distinguish is It right judges legal is the which venue. Jurisdiction Venue, on the authority to decide cases. exercise their hand, the action right party is of a have other district, particular judicial or brought and heard in a litigants. locality, to the convenience of the related never attach nor be matter can Jurisdiction parties, while acquired by consent or waiver of the venue Scott, 310, Pa. may McGinley always be waived. (1960). 427-28 164 A.2d charges Alleghe- Accordingly, pending 692 A.2d ny pursuant dismissed for failure to consolidate were *10 §to concurring opinion, this author a which filed validity
questioned jurisdic- the of the common law rule that a by tion of court was limited territorial boundaries. The concurring opinion law merely asserted that the common rule county of an right reflected the accused be tried within the committed, where the offense was rather than a limitation on Otherwise, jurisdiction concurring the of the court. opinion the holding subject that opinion, endorsed the the the lead jurisdiction by the court matter trial was not constrained territorial within boundaries the Commonwealth. Id. at 145. Mr. in Nigro only Justice concurred the the by result reached opinion. lead Madame a dissenting Justice Newman filed opinion joined by that was Mr. Justice Castille. The dissent opined that the common law maintaining rule territorial limits jurisdiction of the trial court was not by diminished judicial of a concept system. unified The a court single only expand could to reach offenses committed within the territorial specif- boundaries another court under ic and exceptions provided by Legislature. limited as Id. Further, at 151. agree the dissent drug did that the sales a single issue constituted episode, accordingly, and not find a would 110 bar to prosecution in both Washington Allegheny Counties.
When a court is
a plurality opinion, usually
faced with
only
precedential
the result carries
weight;
reasoning
O.A.,
666,
does not.
Commonwealth v.
717 A.2d
(Pa.1998).
4n.
The
result McPhail is that the second
prosecution Allegheny
barred,
County was
provi
under the
sions of 18
by
prosecution
the former
Couch,
(Pa.Super.1999),
See also Commonwealth v.
context *11 case did involve § Pa.C.S. 110. As the current court arising single episode, the reasoned from therefore, to a resolu- and were not relevant § Superior that a instant case. The Court held tion the offenses arose from a presented of whether the determination question episode precedent is a to the single criminal condition pleas subject common can the court of exercise of whether territorial bound- jurisdiction beyond its traditional matter Bethea, words, question 761 A.2d at In the 1184. other aries. jurisdiction of a general subject matter of the extent the to on first pleas contingent was found court common particular pleas it for a common determining necessary if was beyond its territorial bound- jurisdiction its court exercise viewing question perspective, from this the aries. subjugated primary principle of whether Superior Court general subject jurisdic- matter pleas court of common has should secondary principle tion whether in a jurisdiction given case. exercise reveals, above there remains some As the discussion concepts subject of venue and matter regarding confusion oppor- with presents The instant us another jurisdiction. case agreed participating Four of the six Justices result. tunity to explicate this confusion. step The initial in this process is clarify expressly and hold that all courts of pleas common subject jurisdiction have statewide matter arising cases Thus, under the Crimes Code. possess Common subject Pleas does matter
jurisdiction Therefore, in this matter. proper focus of this appeal is upon addressing venue. Before merits, venue issue on prudent we it believe to restate the primary distinctions between jurisdiction matter venue.
Subject jurisdiction competen relates to the cy of a court to type hear decide the controversy presented. Scott, McGinley
(Pa.1960). Jurisdiction is a matter of substantive law. Id. 428; 931(a) § (defining Pa.C.S. original juris unlimited diction of the pleas). courts common Appellee was charged with pursuant violations to the Crimes Code. Controversies arising out of violations of the Crimes Code are entrusted to original jurisdiction of the courts of common pleas for resolution. See 18 Every jurist within that tier of the unified judicial system competent to hear and decide a arising out of the Crimes Code. Pa. Const. 5, Art. 5 (establishing of the courts of common pleas within judicial the unified system).
Venue
right
relates
party
of a
to have the
controversy brought and
particular
heard in a
judicial district.
McGinley,
Subject jurisdiction and venue are distinct. However, jurisdiction since power references the of a court adjudicate entertain and a matter while pertains venue to 114 matter, proper of a
locality disposition most convenient to the only jurisdiction already exists. proper can be where venue interchange- C.J.S., are used Venue 2. The terms often 92A for they simultaneously in order a ably must exist because power particular a properly its to resolve court exercise controversy. pleas within this
Although common each jurisdiction same possesses the Commonwealth Code, arising Pennsylvania cases under the Crimes to resolve beyond territori only should be exercised in district it sits the most judicial al boundaries which pro recognize Rules of of circumstances. venue limited imposing geographic limitations on the exercise priety belongs in properly in a criminal action jurisdiction. Venue v. Mul where occurred. Commonwealth place the crime (Pa.1997). holland, 634, practice This 549 Pa. for necessity bringing party to answer his recognizes the crime occurred because place where the itself actions likely will most and the witnesses that is where evidence defendants, to transport It would nonsensical be located. Philadelphia to Erie to resolve and witnesses from evidence a judge former charges arising location before sitting change location. A of venue jury the latter and/or permitted to a locale is from the situs the action different only upon good cause shown. Pa.R.Crim.P. geo with a
Generally, begins the court venue Typically, one of connection to the events issue. graphic asserting to change to that action moves venue parties original impartial a fair and trial in the inability to receive Drumheller, Pa. Commonwealth v. 570 808 tribunal. (Pa.2002). moving burden party 893 bears the A.2d necessity change of a of venue. Common demonstrating (Pa.2000). A.2d Bridges, v. 563 Pa. When wealth Commonwealth, request change moving party is the greater scrutiny. is examined with venue (1936). 558,188 A. petition requesting A Reilly,
Ho change a venue addressed to the discretion of the trial court. Mulholland. general legal
These principles are of limited assis case, in resolving tance this as we are faced with the typical question of whether the trial court abused its discretion failing grant change of venue. Instead we are faced completed with the fact that originated venue wrong county. However, in focusing claim, on specific this it is important to keep in mind primary change concern in cases; venue does the location of the trial impact ability on the parties to have their case decided before fair and impartial tribunal? Drumheller.
Appellee argues that his trial counsel was ineffective in failing to challenge the venue of his trial in Franklin County for a criminal charge that arose from an incident Cumber land To establish a claim of ineffective assistance of counsel, the defendant must show that the underlying issue the claim arguable merit, has that counsel had no reasonable basis for not advancing claim, and that as a direct result inaction, of counsel’s the defendant prejudice, suffered to the extent that the outcome of the proceedings would have been different absent the ineffectiveness. Commonwealth v. Jer myn, (Pa.1993). above,
As stated general rule is that venue lies at the situs of the crime. Mulholland. This defendant was accused of a criminal act that occurred in County, and, he should have been brought to trial on charges arising from that incident in However, Cumberland County. reason, for some not openly record, revealed on this was brought to answer for arising in Cumberland County in Franklin County. There is no that this issue raises an allegation of arguable merit as to trial counsel’s failure to objection raise an to venue.
Just as the record fails to any offer explanation why trial took place County, it is equally silent question strategy trial for failing challenge venue the trial. only references on regarding record during testimony this action occurred
venue of witness, Agent Dellarciprete of the Commonwealth’s first *14 General, Attorney Bureau of Nar- Pennsylvania Office of the of Investigation Drug Control. At the conclusion cotics and examination, provided the witness had the location direct after store, “All that at 3 North activity of the criminal as a Stuff’ Street, judge inquired the trial Shippensburg, Earl if store located or Franklin witness was Cumberland located responded witness that the business was County. The (Trial 24,1999 transcript p. County. June “T.T.”). redirect, to as On and hereinafter referred and exchange prosecutor witness Del- following between larciprete occurred: here in Franklin
Q Generally only prosecute we cases County. Why permissible prosecute is it to that Cumber- County? in Franklin County land case here Well, understanding I my preparing A it was when was they the counties. were consolidated between (T.T. 21). p. agreement to
If there was a valid consolidate certain performed by Attorney for the drug investigations General pros and for Franklin Cumberland counties may County, proper then venue have ecution within See, 4551(c) and ly in Franklin 42 Pa.C.S. resided (d) arising (discussing the choice of venue for the trial cases attorney multicounty investigations from for the Com monwealth). question this may pursued have Counsel However, was is proper. himself that venue there satisfied change was to reflect venue nothing record regard and to by court order reach conclusion accomplished on ing strategy inappropri such slim would trial evidence Nevertheless, hearing for a on the issue of trial ate. remand unnecessary Appellee is is not able strategy because counsel’s prejudice that he as of trial counsel’s to establish suffered question to raise the of erroneous venue. failure failing claim that counsel erred in prevail To his propriety of venue within Franklin challenge Appellee must that but for demonstrate the failure counsel trial outcome of would have been Jermyn. different. Appellee’s complaint Because that an error in oc- venue curred, prejudice flowing establish from trial counsel’s failure raise issue he must demonstrate that he was unable to a fair impartial receive trial in venue where the trial was held. Drumheller. fails to meet that burden. On the prejudice, Appellee argues challenge failure to of trial the location when no element charged county offense occurred where trial was per prejudicial. held is se Appellee attempts to demonstrate prejudice question by on the venue incorporating additional allegations However, of ineffectiveness. two the other issues ineffectiveness, petition failure to file a corpus habeas and a motion suppress, being were dismissed as without *15 merit in Superior the that decision was not further challenged Appellee. by Additionally, Appellee fails to con- particular nect those allegations of spe- ineffectiveness the cifics of prejudice analysis on the of As venue. possible the claims of harm stemming from of the venue the trial, Appellee by makes no that assertion virtue of the location of trial in the Franklin rather than Cumberland County, he suffered in expense appearing undue before the court in Franklin County, that he was unable to obtain presence of witnesses or evidence related to his defense location, because of the that engaged the Commonwealth in forum in shopping order to an advantage achieve over the defense, or that he deprived was of a fair impartial trial. showing Without a prejudice venue, of from in the error Appellee’s ineffectiveness claim must be denied. conclusion, we would caution existence state- subject
wide in matters arising under the Crimes Code not an ignore invitation to the rules venue. finding The absence of a prejudice in this on instance venue, question of does not equate right with a of the Com- engage monwealth shopping. in forum For herein, the reasons stated Superior decision of the Court is reversed and judgment sentence court of pleas common is reinstated.
118 participate did in the ZAPPALA not
Former Chief Justice of this decision case. in Mr. concurring which opinion files NEWMAN
Justice joins. Castille Justice
Justice NEWMAN. Specifically, agree expla- I with the
I respectfully concur. raising claims procedural framework for nation of in light of our decision Com- ineffectiveness recent counsel (Pa.2002), Grant, 813 726 v. A.2d monwealth 2. I concur with the forth footnote also Majority sets “subject matter concepts of way Majority distinguishes the Yet, agreement on despite my jurisdiction” and “venue.” reasoning previously issues, I to the committed these remain McPhail, my dissent articulated (Pa.1997), joined Justice Pa. A.2d 139 which was my opinion, the Court Common Accordingly, Castille. jurisdic- did have not Pleas of drug-related charges tion and decide the to hear underlying because against (Appellee), Rondu Bethea did charges source of these criminal conduct that became the place within Franklin take continues Presently, just Majority inas principle law that the locus deep-rooted common disregard pleas the court of common where crime determines relating brought. must be A.2d to the crime persists diluting Consequently, Majority placed on the courts common jurisdictional restrictions *16 by allowing Court Common pleas this Commonwealth adjudicate County present Franklin in the case Pleas of entirely drug-related as well as unconnect- Appellee’s charges, 101 et Code, ed violations the Motor Vehicle seq. previously,
IAs stated always crime is law is that the locus clear [t]he issue, offense jurisdiction for court has no unless, trial, by county or it occurred within the unless county statute, it For a to take need not.... some jurisdiction case, over a criminal some overt act in- volved that crime must have occurred within that county. In order to jurisdiction act, base on an overt act must crime, have been essential to the an act which is merely incidental to the crime is not sufficient. [Ejmbedded in the common law is proposition that of criminal only courts extends to offenses committed within county of trial. The historic foundation for law, the rule is that by the ancient all offenses were said to against be done peace county.
McPhail, (internal (Newman, A.2d at 151 J. dissenting) omitted, citations emphasis supplied). disparities factual between present case and
McPhail
amplify
further
the flaw in
analysis adopted
Majority.
McPhail
involved a consolidation of criminal
charges, originating
counties,
were,
several
nonethe-
less, part
single
of a
criminal episode (multiple incidences of
drug selling).
Yet,
suspended license. present counties, 2. While bordering facts concern two by the same logic, Majority would allow the Court of Common Pleas of Dela- *17 120 “locus flawed, it the well-established
cally disregards because forum principle prosecutorial facilitates crime” shopping. is as
Ultimately,
present
issue
raised
unlike
and,
points
Majority
as the
claim of counsel ineffectiveness
out,
prejudiced
has
to establish that he was
failed
Accordingly, I am constrained
counsel.
the conduct
his
Majority opinion,
resolution of the
agree with the ultimate
consistently
this
has
held that failure to estab
because
independently
is
fatal for claims of counsel
lish prejudice
Pierce,
186,
v.
Commonwealth
ineffectiveness. See
“[ajbsent
(Pa.2001)
203,
(stating that
786 A.2d
221
demonstra
cannot
claim
prevail
tion
prejudice, [a defendant]
into
and no further inquiry
assistance of counsel
ineffective
Fletcher,
Pa.
warranted”);
the claim
denied,
261(Pa.),
cert.
121 S.Ct.
A.2d
U.S.
(2000).
623,
Justice CASTILLE long adjudicate County, cases from Erie so as unrelated ware places, irrespec- any committed criminal mischief both defendant nature, location, timing or of the criminal conduct that is tive charges. for those basis