Commonwealth v. Bethea

761 A.2d 1181, 2000 Pa. Super. 264, 2000 Pa. Super. LEXIS 2493, 2000 WL 1273574

• Court: Superior Court of Pennsylvania
• Decided: September 8, 2000
• Docket: 1614 MDA 1999
• Status: Published

Opinions

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 /£ 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 6503.1 of the Vehicle Code, 75 Pa.C.S. § 6503.1, after being arrested for driving while his license was suspended under the habitual offender provisions of the Vehicle Code at 75 Pa.C.S. § 1543. For the reasons hereinafter described, we vacate the judgment of sentence in part, and affirm the judgment of sentence in part.

¶ 2 Appellant has provided a concise summary of the procedural and factual history relevant to our review:

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), 35 P.S. § 780-113(30) and conspiracy, 18 Pa.C.S. § 903, for an alleged delivery of 12.0 grams of crack cocaine schedule 2 controlled substance, to a confidential informant on April 15, 1998 in exchange for the sum of $400.00.

The defendant was also arrested and charged for being a habitual offender under 75 Pa.C.S. § 1542 (relating to revocation of habitual offender’s driver’s license) pursuant to 75 Pa.C.S. § 6503. After a jury trial was held on June 24, 1999, the defendant was found guilty on both counts, delivery and conspiracy to deliver crack cocaine, No. 1222-98.

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, 75 Pa.C.S. § 1542],

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 state 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 confidential 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 defendant was nonetheless tried and convicted in Franklin County.

On March 7, 1999, the defendant was arrested for driving a car in Chambers-burg, 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; namely, 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:

(1) that the underlying claim is of arguable merit, (2) that counsel’s course of conduct was without a reasonable basis designed to effectuate his client’s interest; and (3) that he was prejudiced by counsel’s ineffectiveness.... Counsel’s assistance is deemed constitutionally effective once we are able to conclude that the underlying claim is not of arguable merit, ... or that the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interests.

Commonwealth v. O’Donnell, 559 Pa. 320, 332, 740 A.2d 198, 204-205 (1999) (citations omitted). “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, 118, 661 A.2d 352, 357 (1995), cert. denied, 516 U.S. 1121, 116 S.Ct. 931, 133 L.Ed.2d 858 (1996).

¶ 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 a 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) (“[ejmbedded 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 Commonwealth v. 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, 18 Pa.C.S. § 110. When the motion to dismiss was granted by the Allegheny County Court, the Commonwealth successfully argued on appeal to this Court that, since the trial court in Washington County lacked jurisdiction to try the offenses committed in Allegheny County, the Allegheny County charges could not be consolidated for disposition in Washington County. Thus, we held, Section 110 did not bar the disposition by the Allegheny Court of the offenses committed in Allegheny County.

¶8 The Pennsylvania Supreme Court, however, concluded that since all offenses comprised a single criminal transaction, all charges should have been consolidated. As a result, the Supreme Court reversed the decision of this Court and discharged the accused. The Court, in rejecting the contention that Washington County was without jurisdiction to try the offenses committed in Allegheny County, reasoned that the offenses, although committed in separate counties, constituted a single criminal transaction and, therefore, could and should have been consolidated in a single prosecution.

¶ 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 was 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 75 Pa.C.S. § 6503.1 is affirmed.¹

¶ 12 Judgment of sentence vacated in part and affirmed in part. Case remanded. Jurisdiction relinquished.

¶ 13 LALLY-GREEN, J., files a dissenting statement.

1 . As the judgment of sentence imposed upon the illegal substance offenses has been vacated, we need not address the remaining contentions recited in the brief of appellant, namely, that counsel was ineffective by reason of a failure (1) to challenge the sufficiency of evidence at the preliminary hearing, and (2) to challenge the evidence by filing a habeas corpus motion or a suppression motion. While these claims are rendered moot by this decision, our study of this appeal reveals that both contentions are meritless.