COMMONWEALTH of Pennsylvania, Appellee, v. Rondu A. BETHEA, Appellant.
No. 1222-98
Superior Court of Pennsylvania.
Sept. 8, 2000.
Reargument Denied Nov. 20, 2000.
761 A.2d 1181
Before McEWEN, President Judge, LALLY-GREEN, and HESTER, JJ.
Submitted May 23, 2000.
John M. Lisko, Asst. Dist. Atty., Waynesboro, for Com.
OPINION
McEWEN, President Judge.
¶ 1 Appellant, Rondu A. Bethea, has taken this direct appeal from the judgment of sentence to serve a total term of imprisonment of from 3 ½ years to 15 years, imposed after a jury found him guilty of the offenses of criminal conspiracy and delivery of a controlled substance. A concurrent sentence of from 6 months to 20 months was also imposed after appellant pleaded guilty to a violation of Section
¶ 2 Appellant has provided a concise summary of the procedural and factual history relevant to our rеview:
I. PROCEDURAL HISTORY
On or about August 21, 1998, the defendant was arrested and charged with delivery of a schedule II controlled substance (crack cocaine),
The defendant was also arrested and charged for being a habitual offender under
On July 9, 1999, the defendant entered a plea of guilty to the charge of habitual offender, No. 753-99 [revocation of habitual offender‘s license,
On September 8, 1999, on Count 1, the defendant was sentenced to pay the costs of prosecution, pay a fine of $15,000.00 and undergo imprisonment in a state correctional institution for not less than 3 years nor more than 10 years. On Count 2, the defendant was sentenced to pay the costs of prosecution, pay a fine of $250.00, and undergo imprisonment in a state correctional institution for a period of not less than 6 months nor more than 60 months to be served at the expiration of the sentence of Count 1. On No. 753-99, the defendant was sentenced to a term of imprisonment in the stаte correctional institution for a period of not less than 6 months nor more than 20 months to be served concurrently with the sentences imposed in Criminal Action No. 1222-98, Count 2.
Services of trial counsel were terminated, and the undersigned counsel was hired to file the instant appeal.
II. FACTUAL HISTORY
On April 14, 1998, it is alleged that the defendant did deliver 12 grams of crack cocaine, both directly and as an accomplice with Dominique Scalia, to a confidеntial informant for the sum of $400.00. At trial the special agent of the Pennsylvania Office of Attorney General testified that this incident occurred at the business of “All That Stuff“, located at 3 North Earl Street, in Shippensburg, Cumberland County, Pennsylvania. The trial and the sentencing took place in Franklin County, Pennsylvania.
Nothing in the criminal complaint, probable cause affidavit, or the criminal information indicated that any illegal activity occurred in Franklin County. The defеndant was nonetheless tried and convicted in Franklin County.
On March 7, 1999, the defendant was arrested for driving a car in Chambersburg, Franklin County, Pennsylvania under a suspended license. PennDot had listed him as a habitual offender. The defendant pleaded guilty, and was sentenced on the same date as the above charges.
¶ 3 Appellant contends that he is entitled to a new trial based upon the ineffective representation of trial counsel; namеly, as more specifically recited in the brief of appellant, the failure of trial counsel to make a jurisdictional challenge to the trial being held in Franklin County when the alleged drug transaction took place in Cumberland County.
¶ 4 Appellant, in order to be entitled to relief based upon a claim of ineffective assistance of counsel, must establish:
¶ 5 The record reveals that although the illegal substance offenses occurred in Cumberland County, Pennsylvania, the trial was held in the neighboring county of Franklin. This Court has recognized that “[t]he subject matter jurisdiction of а criminal court extends to the offenses committed within the county of trial. . . . Subject matter jurisdiction in the trial court exists by virtue of presentation of prima facie evidence that a criminal act occurred within the territorial jurisdiction of the court.” Commonwealth v. McNeil, 445 Pa.Super. 526, 665 A.2d 1247, 1251 (1995) (citations omitted). See also: Commonwealth v. Conforti, 533 Pa. 530, 537, 626 A.2d 129, 132 (1993) (citation omitted) (“[t]he locus of a crime is always in issue since a court has no jurisdiction over an offense unless it occurred within the county of the trial. . . .“); Commonwealth v. Simeone, 222 Pa.Super. 376, 294 A.2d 921, 922 (1972) (citation omitted) (footnote omitted) (“[e]mbedded in the common law is the proposition that the subject matter jurisdiction of criminal courts extends only to offenses committed within the county of the trial.“) (footnote omitted). As the criminal events relating to the drug offenses occurred in Cumberland County, Franklin County lacked subject matter jurisdiction over these offenses, and counsel should have objected to the jurisdiction of the court.
¶ 6 Contrary to the response of the Commonwealth, as well as the thoughtful dissent of our esteemed colleague Judge Maureen Lally-Green, we are of the mind that disposition of this appeal is not controlled by the Pennsylvania Supreme Court decision of Commonwealth v. McPhail, 547 Pa. 519, 692 A.2d 139 (1997), where the Pennsylvania Supreme Court held that one county possessed subject matter and personal jurisdiction over offenses committed in another county. That plurality decision is, in our view, distinguishable by reason of the variant factual history between that case and the instant case.
¶ 7 The defendant, in McPhail, supra, was charged with committing numerous drug violations in the counties of Washington and Allegheny which, as conceded by the Commonwealth, were all part of a single criminal episode. Defendant, after pleading guilty to the offenses which occurred in Washington County, filed a motion in Allegheny County to dismiss the Allegheny County charges on the basis of the Pennsylvania former prosecution statute,
¶ 8 The Pennsylvania Supreme Court, however, concluded that since all offenses
¶ 9 Our study of Commonwealth v. McPhail, supra, compels us to conclude that a condition precedent to the exercise by a single county of jurisdiction in a case involving multiple offenses in various counties is: the offenses must constitute a single criminal episode. As the esteemed Chief Justice John P. Flaherty there declared: “We emphasize that this case concerns only charges stemming from the same criminal episode under § 110.” Id. at 529, 692 A.2d at 144.
¶ 10 Instantly, appellant wаs arrested and charged, in 1998, with the drug offenses committed in Cumberland County. He was not, however, arrested for driving with a suspended license, in Franklin County, until one year later, in 1999. The offenses were neither “logically or temporally related [nor did they] share common issues of law and fact.” Id. at 523, 692 A.2d at 141, quoting Commonwealth v. Hude, 500 Pa. 482, 494, 458 A.2d 177, 183 (1983). Consequently, as the offenses did not constitute a single criminal episode, Commonwealth v. McPhail, supra, is not controlling, and Franklin County was precluded from the exercise of jurisdiction over the illegal substance offenses committed in Cumberland County. See, e.g., Commonwealth v. Keenan, 365 Pa.Super. 437, 530 A.2d 90 (1987).
¶ 11 Accordingly, as there could be no valid basis for the failure of counsel to challenge the jurisdiction of the court, we are constrained to find that counsel was ineffective and to remand for a new trial. The judgment of sentence imposed upon the violation of
¶ 12 Judgment of sentence vacated in part and affirmed in part. Case remanded. Jurisdiction relinquished.
¶ 13 LALLY-GREEN, J., files a dissenting statement.
COMMONWEALTH of Pennsylvania, Appellee, v. Rondu A. BETHEA, Appellant.
No. 1222-98
Superior Court of Pennsylvania.
¶ 1 I respectfully dissent with regard to the issue of whether counsel was ineffective for failing to make a jurisdictional challenge to the trial being held in Franklin County when the criminal episode occurred in Cumberland County.
¶ 2 I believe the resolution of the final issue is guided by our Supreme Court‘s decision in Commonwealth v. McPhail, 547 Pa. 519, 692 A.2d 139 (1997). In McPhail, the defendant sold cocaine in Washington County and in Allegheny County. The Commonwealth conceded that the transaсtions were all part of a single criminal episode. Charges were filed in both counties and the defendant pled guilty to the offenses in Washington County. The defendant then moved to dismiss the charges filed in Allegheny County on the basis of a violation of
§ 931. Original jurisdiction and venue
(a) General rule.—Except where exclusive original jurisdiction of an action or proceeding is by statute or by general rule adopted pursuant to section 503 (relating to reassignment of matters) vested in another court of this Commonwealth, the courts of common pleas shall have unlimited original jurisdiction of all actions and proceedings, including all actions and proceedings heretofore cognizable by law or usage in the courts of common pleas.
(b) Concurrent and exclusive jurisdiction.—The jurisdiction of the courts of common pleas under this section shall be exclusive except with respect tо actions and proceedings concurrent jurisdiction of which is by statute or by general rule adopted pursuant to section 503 vested in another court of this Commonwealth or in the district justices.
(c) Venue and process.—Except as provided by Subchapter B of Chapter 85 (relating to actions against Commonwealth parties), the venue of a court of common pleas concerning matters over which jurisdiction is conferred by this section shall be as presсribed by general rule. The process of the court shall extend beyond the territorial limits of the judicial district to the extent prescribed by general rule.
Id. at 141 (subsection (b) added).
¶ 4 The Court then observed:
The two counties are not separate sovereigns and do not derive their power to try felony drug cases from independent sources of power. Their subject matter jurisdiction flows from the sovereign Commonwealth of Pennsylvania and is not circumscribed by county territorial limits. Territorial applicability of the [C]rimes [C]ode refers strictly to conduct occurring inside or outside Pennsylvania, not to the county in which conduct occurred.
18 Pa.C.S. § 102 .
¶ 5 The Court next made clear that in a case involving a single criminal episode in separate counties, the question is one of proper venue and not of jurisdiction. Id. at 144. Thus, the McPhail Court concluded that, under
¶ 6 In Appellant‘s case, the record reflects that while the crime occurred only in Cumberland County, he was tried in Franklin County. Under McPhail, the Franklin County Court of Common Pleas had jurisdiction to hear the matter because it is a court of common pleas in the Commonwealth of Pennsylvania. See, McPhail, 692 A.2d at 141 (“By constitution and by statute, the court of common pleas has unlimited original jurisdiction in all cases, actions, and proceedings, and is thus empowered, subjеct to a few statutory exceptions, to decide any matter arising un-
¶ 7 The next question is whether the fact that no criminal activity occurred in Franklin County precluded the Franklin County Court of Common Pleas from hearing the case. Again, McPhail appears to say that venue may be proper in a county even though no criminal activity occurred in that county. Chief Justice Flaherty wrote:
A remaining difficulty is the Commonwealth‘s reliance on the common law rule that a criminal court lacks jurisdiction to try an offense that did not occur within the county. This court stated in Commonwealth v. Boyle, 516 Pa. 105, 112, 532 A.2d 306, 309 (1987):
The law is clear that ‘the locus of a crime is always in issue, for the court has no jurisdiction of the offense unless it occurred within the county of trial, or unless, by some statute, it need not. . . .’ Commonwealth ex rel. Chatary v. Nailon, 416 Pa. 280, 283, 206 A.2d 43, 45 (1965), quoting Commonwealth v. Mull, 316 Pa. 424, 426, 175 A. 418, 419 (1934). For a county to take jurisdiction over a criminal case, some overt act involved in that crime must have occurred within that county. Commonwealth v. Tumolo, 455 Pa. 424, 317 A.2d 295 (1974).
Appellant‘s rеsponse is that such a common law requirement is inconsistent with the Pennsylvania Constitution, adopted in 1968, Article V, section 1, which vests the judicial power of the Commonwealth in “a unified judicial system.”
* * *
From the foregoing discussion, we derive several points necessary to our decision in this case. . . . [T]he place of trial, whether within or without the county where the alleged crime occurred, is a matter of venue, not jurisdiction, notwithstanding the imprecise and confusing terminology used in Commonwealth v. Boyle, supra. . . . [T]rial in a county other than the one where the offense occurred is not constitutionally prohibited. . . . [T]rial outside the county is a mechanism which must be used sparingly, to prohibit dragging the accused all over the commonwealth and burdening him with an expensive trial at the whim of the prosecution.
We emphasize that this case concerns only charges stemming from the same criminal episode under § 110. Under Bracalielly and Hude, an accused has substantial safeguards against prosecutorial forum-shopping or being “dragged all over the Commonwealth,” for a single criminal episode exists only when multiple charges bear a close logical and temporal relationship and separate trials would involve substantial duplication and waste of judicial resources.
Id. at 142, 144 (footnotes omitted).
¶ 8 Justice Cappy concurred, making the following observation:
I concur in the result reached by the majority. I write to emphasize two points: 1) that at common law, the subject matter jurisdiction of the trial courts was not limited to crimes which occurred in the county in which the court sat and 2) even if there were such a common law rule, it was abrogated by enactment of Article V, Section 5 of the Constitution of 1968 and
42 Pa.C.S.A. § 931 .
¶ 9 Later in his concurrence, Justice Cappy stated:
While the General Assembly could have adopted by statute the alleged common law rule which restricted the subject matter of thе courts of common pleas to crimes which occurred in the county, the General Assembly did not do so. Rather, pursuant to Article V, Section 5, the General Assembly enacted
42 Pa.C.S.A. § 931 , defining the jurisdiction of the courts of common pleas.* * *
I note that these provisions, Art. V, Sec. 5 and
42 Pa.C.S.A. § 931(a) and (b) ,regarding jurisdiction do not in any way mention or imply that the courts of common pleas are bounded by county territorial limits. Indeed, if anything, both Article V, Section 5 and 42 Pa.C.S.A. [§] 931(a) speak in terms of “unlimited jurisdiction” and “unlimited original jurisdiction” respectively, clearly indicating the rejection of any county territorial limitations upon the jurisdiction of the courts of common pleas.That this is the case is made even more clear when we consider the predecessor statute to
42 Pa.C.S.A. § 931 which was17 P.S. § 251 and which provided thatThe courts of common pleas shall have jurisdiction and power within their respective counties to hear and determine all pleas, actions and suits, and causes, civil, personal, real and mixed. . .
(emphasis added). In enacting
42 Pa.C.S.A. § 931 , the legislature clearly rejected the language of17 P.S. § 251 which limited the jurisdiction of the courts of common pleas to “their respective counties.” Where words of a later statute differ from those of a previous one, they presumably are intended to have a different construction. Commonwealth v. Moon, 383 Pa. 18, 117 A.2d 96 (1955). If there were any ambiguity as to the Legislature‘s use of the phrase “the courts of common pleas shall have unlimited original jurisdiction of all actions and proceedings” in42 Pa.C.S.A. § 931(a) , the legislature‘s deliberate choice of dropping the previous statutory language which limited the jurisdiction of the courts of common pleas to “their respective counties” may be seen as evidence of legislative intent to reject such a limitation upon the jurisdiction of those courts.1 Pa.C.S.A. § 1921 . Accordingly, I find that if there ever existed a common law rule which limited the subject matter jurisdiction of the courts of common pleas to only those crimes which occurred within the county, such a rule was rejected by the enactment of Article V, Section 5 of the Pennsylvania Constitution and42 Pa.C.S.A. § 931(a) . Thus, if ever there were such a common law rule, it was abrogated.
Id. at 149-150 (footnote omitted). Then, Justice Cappy summarized his conclusions:
[T]he common law of Pennsylvania did not have a rule that limited the subject matter jurisdiction of the courts of common pleas in criminal cases to those crimes which occurred in the county. Rather, the cases cited for such a proposition аre best understood as dealing with the common law right of a defendant to be tried in the county in which the crime occurred. Secondly, even if there were such a common law rule, it was abrogated by the enactment of Article V, Section 5 of the Pennsylvania Constitution and
42 Pa.C.S.A. § 931 .
¶ 10 I recognize that McPhail is factually distinguishable for the reasons set forth by the Majority. Nevertheless, I find McPhail instructive as to the jurisdiction of county courts. Based on the analysis in McPhail set forth above, I would conclude that the subject matter jurisdiction of the Franklin County Court of Common Pleas is not limited to those crimes which occurred in the county. See, Commonwealth v. Couch, 731 A.2d 136, 141-142 (Pa.Super.1999) (“While McPhail is a plurality decision, and thus has limited precedential value, the result of that decision is clear: it can no longer be disputed that courts of common pleas have statewide jurisdiction and may preside over trials that concern events which take place beyond the territorial limits of the cоunty in which the court sits.“) (citations omitted), appeal denied, 560 Pa. 697, 743 A.2d 914 (1999).3
¶ 11 Appellant has raised this issue as one of ineffective assistance of counsel. To demonstrate ineffective assistance of trial counsel, Appellant must show that “(1) the underlying claim is of arguable merit; (2) counsel‘s action or inaction was not grounded on any reasonable basis designed to effеctuate his client‘s interest; and (3) counsel‘s omission or commission so undermined the trial that the verdict is unreliable.” Commonwealth v. Legg, 551 Pa. 437, 711 A.2d 430, 432-433 (1998).
¶ 12 “If it is clear that appellant has not met the prejudice prong of the ineffectiveness standard, the claim may be dismissed on that basis alone and this Court need not determine whether the first and second prongs have been met.” Commonwealth v. Fletcher, 561 Pa. 266, 750 A.2d 261, 274 (2000), citing Commonwealth v. Travaglia, 541 Pa. 108, 661 A.2d 352, 357 (1995), cert. denied, 516 U.S. 1121, 116 S.Ct. 931, 133 L.Ed.2d 858 (1996).
¶ 13 The record reflects the trial court‘s conclusion in this issue:
. . . Although the trial should have taken placе in Cumberland County, Bethea suffered no prejudice when the trial was held in Franklin County. In his statement of matters complained of on appeal and his supporting brief, Bethea does not suggest how he was prejudiced when the trial was held in Franklin County rather than Cumberland County. Furthermore, Bethea was tried by a jury of twelve who unanimously found him guilty of delivery and conspiracy. Also, the people of the neighboring counties, Franklin and Cumberland, have similar sociоeconomic backgrounds so there was no prejudice to Bethea by being tried by a jury composed of Franklin County residents rather than Cumberland County residents. Because Bethea was not prejudiced, his argument that his trial counsel was ineffective for failing to object to improper venue fails.
Trial Court Opinion, 1/4/2000, at 3.
¶ 14 Here, in Appellant‘s case, there is no underlying merit to the claim because the issue is not one of jurisdiction. The trial court had subject matter jurisdiction over his case. Furthermore, even assuming error had occurred, Appellant has failed to demonstrate that he suffered any prejudice. Consequently, I would affirm on this issue.
Notes
The purpose of joining all charges from the same criminal episode, pursuant to