Com. v. Johnson, A.

• Court: Superior Court of Pennsylvania
• Decided: June 6, 2023
• Docket: 67 WDA 2022
• Status: Unpublished

Opinion

J-A02009-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : AARON ERNEST JOHNSON : : Appellant : No. 67 WDA 2022

Appeal from the Judgment of Sentence Entered August 26, 2020 In the Court of Common Pleas of Clarion County Criminal Division at No(s): CP-16-CR-0000168-2019

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : AARON ERNEST JOHNSON : : Appellant : No. 68 WDA 2022

Appeal from the Judgment of Sentence Entered August 26, 2020 In the Court of Common Pleas of Clarion County Criminal Division at No(s): CP-16-CR-0000169-2019

BEFORE: BOWES, J., MURRAY, J., and PELLEGRINI, J.*

CONCURRING AND DISSENTING MEMORANDUM BY PELLEGRINI, J.:

FILED: JUNE 6, 2023

While I otherwise join the majority in its resolution of the other claims

raised in this appeal, I respectfully dissent from the majority’s holding that

____________________________________________

* Retired Senior Judge assigned to the Superior Court. J-A02009-23

venue was proper in Clarion County for Case 169-2019 when all the events

upon which it was based took place in Allegheny County.

The case had its origins in the November 20, 2018 death of William

Stout in Clarion County from a drug overdose. Stout had purchased drugs

from Spencer Rudolph, a co-worker in Clarion County, who, in turn, purchased

the drugs from Joseph Hoffman in Jefferson County. Hoffman had, in turn,

obtained those drugs from William Fourness in Elk County. Fourness had

obtained the drugs either personally or with others who acted on his behalf in

Monroeville, which is outside Pittsburgh in Allegheny County. Charges were

filed against Johnson for the conduct that resulted in Stout’s death at Clarion

County Case 168-2019.

Johnson’s business relationships in Clarion County had ended by

February 2019 but he continued his drug-dealing activity in Allegheny County,

which are the basis for the charges filed at Case 169-2019 for offenses that

occurred from March 9, 2019, to March 12, 2019. Johnson claimed that venue

on this case was improper in Clarion County because those charges were not

part of the same criminal episode involved in Case 168-2019.

Johnson argues that there was no single criminal episode because no

witness or co-conspirator in Case 168-2019 had any involvement with the

criminal activity alleged in Case 169-2019. Further, he contends there was

no temporal relationship between the cases because the allegations in Case

168-2019 primarily occurred in November 2018 and ended on or before

-2- J-A02009-23

February 2019, while the activity at issue in Case 169-2019 did not occur until

March 2019. The majority dismisses these arguments, reasoning that because

Johnson operated a continuous drug distribution in Allegheny County, even

after his association with Fourness ended, he continued to sell the same drugs

using the same packaging from the same location in the following weeks.

Thus, it concludes that the March 2019 deliveries were not a second, different

criminal episode but a continuation of what Johnson had been doing all along.

I disagree with the majority that this continued criminal enterprise

represented the same criminal episode, as contemplated by our law

governing venue. Because the charges at Case 169-2019 arose out of a drug-

dealing operation located exclusively in Allegheny County from March 9, 2019,

to March 12, 2019, I would hold that the trial court erred in denying Johnson’s

motion to dismiss for lack of venue.

I.

The requirement that a defendant be tried in the locality where the crime

took place is rooted in the Sixth Amendment to the United States Constitution

and Article I, Section 9 of the Pennsylvania Constitution. Commonwealth v.

Callen, 198 A.3d 1149, 1157 (Pa. Super. 2018) (citation omitted). The venue

requirement “provides a number of protections to the defendant, including

protecting the defendant from prosecutorial forum shopping (as to both judges

and juries) and providing the defendant with the convenience of having

relevant evidence and witnesses more readily accessible.” Id. at 1158. Thus,

-3- J-A02009-23

as the majority explains, “‘a condition precedent to the exercise by a single

county to jurisdiction in a case involving multiple offenses in various counties

is [that] the offense must constitute a single criminal episode.’” Majority

Memorandum at 24 (alterations in original) (quoting Commonwealth v.

Witmayer, 144 A.3d 939, 946 (Pa. Super. 2016)); see also Pa. R. Crim. P.

130(A)(3).

To determine whether multiple crimes are part of a single criminal

episode, we look to whether they are “logically or temporally related and share

common issues of law and fact.” Callen, supra at 1160 (quoting Witmayer,

supra, at 946-47). In addressing this question, we look to whether there is

“substantial duplication” of the factual and legal issues presented by the

offenses, though the factual backgrounds of the cases do not need to be wholly

identical. Id. Offenses may constitute a single criminal episode even when

the offenses represent multiple occurrences over a period of time, as long as

there is a logical relationship between the offenses. Id. Finally, in conspiracy

cases, the Commonwealth may bring charges in any county in which the

conspiracy was formed or an overt act in furtherance of the conspiracy was

committed. Commonwealth v. Gross, 110 A.3d 28, 34 (Pa. 2014).

My review of the record in this case reveals that all crimes that were

committed in Clarion County, and any conspiracy to commit further crimes

there, were complete by February 2019 at the latest. At the evidentiary

hearing on Johnson’s motion, the Commonwealth relied on the preliminary

-4- J-A02009-23

hearing transcript for its argument that venue for both cases was proper in

Clarion County. N.T., 8/12/19, at 9. At the preliminary hearing, the

Commonwealth’s only witness, Chief William H. Peck of the Clarion Police

Department, admitted that the criminal conspiracy and corrupt organization

involved in Case 168-2019 was “pretty much over with” by February 2019,

since almost all of its participants were in jail by that time. N.T., 4/9/19, at

56-57.

Just because Chief Peck’s investigation into Stout’s death in Clarion

County eventually led to Johnson’s arrest in Allegheny County does not

necessarily compel the conclusion that the arrest and search were part of the

same criminal episode as Stout’s death. We recently acknowledged as much

in Commonwealth v. Copes, __ A.3d __, 1275 EDA 2022 (Pa. Super. May

26, 2023), a case involving compulsory joinder.1 There, the defendant

assaulted the victim near a SEPTA station and fled the scene. After reviewing

surveillance footage, police officers recognized the defendant about an hour

later and approached him to effectuate an arrest. Id. at *2. As they

approached, the defendant discarded a backpack containing a firearm. As a

1 The “single criminal episode test” that we rely upon in assessing venue claims “originates from Pennsylvania’s compulsory joinder statute.” Commonwealth v. Callen, 198 A.3d 1149, 1160 (Pa. Super. 2018) (citation omitted).

-5- J-A02009-23

result, he was charged at separate dockets: one docket for the assault charge

and one for charges related to his illegal possession of a firearm. Id.

We concluded that the dockets did not arise out of a single criminal

episode, so compulsory joinder was not required. Even though a mere hour

passed between the two crimes, and the first crime undoubtedly precipitated

the arrest that uncovered the firearms offense, we found that there was no

logical relationship between the two crimes or substantial duplication of facts

that would compel joinder. Id. at *6. The victim in the assault case would

not be a witness to the firearms offense, and the officers who arrested the

defendant did not witness the assault. Id. The surveillance footage of the

assault had no relevance to the firearms offense. Id. Even though it was an

investigation of the assault that led to the firearms charge, we concluded that

“any duplication of evidence would be de minimus and inadequate to establish

the charges were logically related.” Id. at *6-7.

II.

The same logic applies here. Chief Peck’s investigation into Stout’s

death and Johnson’s trafficking of heroin in Clarion County ultimately

culminated in a search of Johnson’s base of operations in Allegheny County.

That is where the overlap between the two cases ends. As the majority

acknowledges, Johnson’s business relationships in Clarion County had been

severed by February 2019, though he apparently continued his drug dealing

activity thereafter in Allegheny County. In investigating Johnson’s activities

-6- J-A02009-23

at 331 Noel Drive in March 2019, Chief Peck coordinated with the Monroeville

Police Department to conduct surveillance, examine the home’s curbside

trash, and recover a stamp bag of suspected narcotics from a third party’s

vehicle leaving the residence. They eventually stopped Johnson while he was

leaving the residence in a car driven by Timothy Smith, who had just

purchased narcotics from Johnson. After the arrest, law enforcement spoke

with Johnson’s girlfriend, Wakita Owens, to learn more about Johnson’s

dealings with Fourness.

Nothing in the record suggests that Smith, Owens or the Monroeville

Police Department were involved in the drug-dealing activities or investigation

in Clarion County or that their testimony would be relevant in the case

involving Stout’s death. Nor did any of the essential witnesses to the Clarion

County case—including Fourness, Gleixner and Hoffman—offer testimony that

was required to prosecute the Allegheny County charges. There is no

substantial duplication of facts and law between the two cases; any connection

between the two, such as Chief Peck initiating further investigation by the

Monroeville Police Department, is of the de minimus nature that we found

insufficient to compel joinder in Copes. Even the transcript of the trial

confirms this conclusion, as there is a clear demarcation between the

witnesses and evidence presented in support of both cases.

Put simply, the evidence presented establishes that Johnson continued

to deal drugs after his connection with Fourness into the Clarion County

-7- J-A02009-23

market had evaporated. That he continued this enterprise in Allegheny

County after his co-defendants were arrested in Clarion County does not

establish that a single criminal episode connects both cases. Under the

majority’s analysis, a drug dealer who makes a sale in one county can be

prosecuted in that county for all of his future dealings, merely because he

continues to engage in the same type of criminal activity. I would not hold

that the federal or state constitutions or our rules of procedure governing

venue allow such a broad result.

Finally, unlike the majority, I would not conclude beyond a reasonable

doubt that the error is harmless. First, the majority points out that Johnson

did not challenge the ruling on the Commonwealth’s joinder motion and

asserts that it finds no error in the trial court’s ruling joining the two cases for

trial. Majority Memorandum at 26 n.14. As we explained in Callen:

Simply stated, our permissive joinder rules do not override the constitutional requirement that “the accused hath a right to ... a speedy public trial by an impartial jury of the vicinage” or its corollary that “[v]enue in a criminal action properly belongs in the place where the crime occurred.” To be sure, our venue rules are far more narrow than our permissive joinder rules. Thus, where Pennsylvania Rule of Criminal Procedure 582 permits offenses in separate informations to be tried together if “the evidence of each of the offenses would be admissible in a separate trial for the other,” our venue rules borrow the language of our compulsory joinder statute – and only allow an offense to be tried in a foreign judicial district if it is part of a “single criminal episode” as an offense that occurred within the district. Hence, in cases where our venue and permissive joinder rules are in irreconcilable conflict, the more specific venue rules control over the more general permissive joinder rule.

-8- J-A02009-23

Callen, supra, at 1160 (citations omitted; emphasis added). Accordingly, I

do not find the trial court’s ruling on a permissive joinder motion to be relevant

or dispositive to a venue or harmless error analysis.2

Second, I attach no significance to there being no evidence of the

Commonwealth engaging in impermissible forum shopping in having both

cases tried in Clarion County. Majority Memorandum at 26-27 n.14. While

evidence of forum shopping would likely always weigh against finding

harmless error, I do not believe that the absence of such evidence should

affect our analysis of whether an error—especially one of a constitutional

nature like venue—was harmless. To that end, as I do not believe that

2 Indeed, the trial court seems to have recognized in its opinion on the permissive joinder motion that Johnson’s criminal enterprise in Clarion County had ceased well before his arrest in Allegheny County:

In the present case No. 169, numerous charges are based on alleged possession and deliveries by the Defendant of the same type of drugs, heroin and fentanyl, in the same area, Monroeville, Allegheny County, during the period from March 9, 2019 to March 12, 2019. The police obtained this information in connection with the investigation into the death of [Stout]. The evidence may show that the Defendant was involved in a conspiracy and a corrupt enterprise or organization for the sale and delivery of heroin and fentanyl in the Monroeville area at that time. The evidence may be relevant in establishing the Defendant’s involvement in activities that lead to the charges at case No. 168, even though the conspiracy and corrupt organization had ended prior to March of 2019. The alleged activities in the separate cases took place within a short period of several weeks.

Order, 8/28/19, at 2-3 (pagination supplied; emphasis added).

-9- J-A02009-23

Johnson’s two cases involved the same criminal episode, mere efficiency in

trying Johnson’s two cases together in the same county does not overcome

his constitutional right to be tried in the locality where the crimes of which he

is alleged to have committed took place.

For the foregoing reasons, I would reverse Johnson’s convictions at Case

169-2019 and remand for the case to be transferred for a new trial in

Allegheny County. Accordingly, I dissent.

- 10 -