Commonwealth v. McPhail

692 A.2d 139, 547 Pa. 519, 1997 Pa. LEXIS 628

• Court: Supreme Court of Pennsylvania
• Decided: April 1, 1997
• Docket: 49 W.D. Appeal Docket 1995
• Status: Published

Opinions

OPINION ANNOUNCING THE JUDGMENT OF THE COURT

FLAHERTY, Chief Justice.

This case involves the question whether four drug transactions constituting a single criminal episode, committed in two counties, were within the jurisdiction of a single court; if they were, then 18 Pa.C.S. § 110 mandates that the charges be tried in a single proceeding.

Appellant, Roosevelt E. McPhail, on two occasions in June, 1990, sold small amounts of cocaine to an undercover agent of the Pennsylvania state police in Washington County. On the second occasion, the trooper asked to buy a larger quantity, and appellant told him they would have to go to Allegheny County to obtain such a quantity. The following day, appellant and the trooper drove to Allegheny County, appellant went into an apartment, returned with the requested amount of cocaine, and sold the drug to the officer. Appellant made a final sale of a smaller amount of cocaine to the trooper in Washington County several weeks later.

Charges were filed in the two counties for the offenses which took place therein. Appellant pled guilty to the offenses in Washington County, then moved to dismiss the Allegheny County charges on the basis of 18 Pa.C.S. § 110. The trial court granted the motion; the Commonwealth appealed, the Superior Court reversed, and we allowed the appeal to review the application of § 110 in this prosecution.

Title 18 Pa.C.S. § 110 states:

§ 110. When prosecution barred by former prosecution for different offense

Although a prosecution is for a violation of a different provision of the statutes than a former prosecution or is based on different facts, it is barred by such former prosecution under the following circumstances:

(1) The former prosecution resulted in an acquittal or in a conviction ... and the subsequent prosecution is for:

(i) any offense of which the defendant could have been convicted on the first prosecution; [or]

(ii) any offense based on the same conduct or arising from the same criminal episode, if such offense was known to the appropriate prosecuting officer at the time of the commencement of the first trial and was within the jurisdiction of a single court unless the court ordered a separate trial of the charge of such offense____

(Emphasis added.) In this case, the issue in the second prosecution is whether all the offenses were “within the jurisdiction of a single court.”

The trial court and the Superior Court agreed that all the offenses formed a single criminal episode. We recently addressed the determination of when multiple offenses are part of the same criminal episode for purposes of § 110 in Commonwealth v. Bracalielly, 540 Pa. 460, 658 A.2d 755 (1995), wherein we discussed at length how to apply the standard earlier set forth in Commonwealth v. Hude, 500 Pa. 482, 494, 458 A.2d 177, 183 (1983). Hude held that “where a number of charges are logically or temporally related and share common issues of law and fact, a single criminal episode exists, and separate trials would involve substantial duplication and waste of judicial resources.” Under both Bracalielly and Hude, the charges in this case bore a close logical and temporal relationship so that a single criminal episode existed and separate trials would involve substantial duplication and waste of judicial resources. The Commonwealth concedes that all the offenses arose from the same criminal episode.

The only issue, therefore, is whether all the offenses were within the jurisdiction of a single court. The trial court held that they were but the Superior Court ruled they were not.

The jurisdiction of the courts of common pleas is set forth in Article V, section 5 of the Pennsylvania Constitution, which states: “There shall be one court of common pleas for each judicial district ... having unlimited original jurisdiction in all cases except as may otherwise be provided by law.” In title 42 of the Pennsylvania Consolidated Statutes, the legislature has refined the constitutional grant of jurisdiction to the courts of common pleas:

§ 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.

(c) Venue and process. — Except as provided by Sub-chapter 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 prescribed 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____

42 Pa.C.S. § 931 (emphasis added). By constitution and by statute, the court of common pleas has unlimited original jurisdiction in all cases, actions, and proceedings, and is thus empowered, subject to a few statutory exceptions,¹ to decide any matter arising under the laws of this commonwealth.

To answer the question whether appellant’s alleged cocaine sale in Allegheny County was within the jurisdiction of the Court of Common Pleas of Washington County, it is helpful to examine the reasoning of the Supreme Court of the United States in Heath v. Alabama, 474 U.S. 82, 106 S.Ct. 433, 88 L.Ed.2d 387 (1985). The issue was whether a kidnap-murder carried out in two states was punishable in both states without violating the prohibition against double jeopardy. The Supreme Court premised its answer on the sovereignty of the two states, each of which had independent power to define crimes against the sovereign.

The dual sovereignty doctrine, as originally articulated and consistently applied by this Court, compels the conclusion that successive prosecutions by two States for the same conduct are not barred by the Double Jeopardy Clause.

The dual sovereignty doctrine is founded on the common-law conception of crime as an offense against the sovereignty of the government. When a defendant in a single act violates the “peace and dignity” of two sovereigns by breaking the laws of each, he has committed two distinct “of-fences.” As the Court explained in Moore v. Illinois, 14 How. 13, 19, 14 L.Ed. 306 (1852), “[a]n offence, in its legal signification, means the transgression of a law.” Consequently, when the same act transgresses the laws of two sovereigns, “it cannot be truly averred that the offender has been twice punished for the same offense; but only that by one act he has committed two offenses, for each of which he is justly punishable.”

In applying the dual sovereignty doctrine, then, the crucial determination is whether the two entities that seek successively to prosecute a defendant for the same course of conduct can he termed separate sovereigns. This determination turns on whether the two entities draw their authority to punish the offender from distinct sources of power. Thus, the Court has uniformly held that the States are separate sovereigns with respect to the Federal Government because each State’s power to prosecute is derived from its own “inherent sovereignty,” not from the Federal Government----

The States are no less sovereign with respect to each other than they are with respect to the Federal Government. Their powers to undertake criminal prosecutions derive from separate and independent sources of power and authority originally belonging to them before admission to the Union and preserved to them by the Tenth Amendment.

Id. at 88-89, 106 S.Ct. at 437-38, 88 L.Ed.2d at 394-95 (citations omitted; emphasis added).

The logic of Heath leads to the conclusion that the offenses in this case were within the jurisdiction of a single court. 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 crimes code refers strictly to conduct occurring inside or outside Pennsylvania, not to the county in which conduct occurred. 18 Pa.C.S. § 102.

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 response² 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.” Moreover, appellant asserts, no such requirement exists in civil cases.

The viability of Boyle’s statement that “the court has no jurisdiction of the offense unless it occurred within the county” depends on its constitutional underpinnings. Two constitutional precepts lead in opposite directions. On the one hand, the concept of the “unified judicial system” undermines the territorial stricture stated in Boyle. On the other hand, Article I, section 9, stating the rights of those accused in criminal prosecutions, guarantees the right to “trial by an impartial jury of the vicinage.” The exact meaning of this right, however, is not clear, as “vicinage” is not a precise term.

Commonwealth v. Reilly, 324 Pa. 558, 188 A. 574 (1936), provides enlightenment. In Reilly, the district attorney of Fayette County and six prominent associates were indicted for murder, together with five others indicted as accessories. The Attorney General, prosecuting the case, moved for a change of venue, alleging that a concerted effort was being made by the defendants to create sympathy for the defendants and prejudice against the Commonwealth by means of litigation to quash the indictments, by public protest meetings, and by sensational, inflammatory newspaper headlines and articles. The issue was whether the Commonwealth was entitled to a change of venue in a criminal prosecution to secure a fair and impartial trial.

The defendants opposed the change of venue pursuant to Article I, section 9 of the state constitution which guarantees to an accused a speedy trial before an impartial jury of the vicinage. The court gave this history:

Blackstone states that at common law the accused traditionally had the right to be tried by a jury of the vicinage. When trial by jury began jurors were freeholders of the hundred who were familiar with the crime, the parties to it and the witnesses, but, as time advanced, it became apparent that the advantages derived from a jury so selected were overcome by the tendency of the juries “to intermix their prejudices and partialities in the trial of right.” For this reason courts and Parliament gradually extended the area from which jurors could be drawn, although they were still termed jurors of the vicinage. In this country and England, the common law right of trial by jury of the county or vicinage was not unconditional, but the trial might be removed to another county upon application of either the crown, the prosecution or the accused when it was thought to be necessary to assure a “fair and impartial trial.”

Id. at 566-67, 188 A. at 578 (citations omitted).

The court expounded on the meaning of the term “vicinage” in Article I, section 9:

“Vicinage,” used in our Constitution, is found in few others and is of uncertain meaning. It is not coterminus [sic] with a county and may, in fact, embrace more than one county; this is clearly established by our case of Commonwealth v. Collins, 268 Pa. 295, 110 A. 738.... “The primary and literal meaning of vicinage is neighborhood or vicinity, but neither of these terms definitely indicates just what territory it embraces. What to one man might be the neighborhood or vicinity in which an act is committed, might to another be regarded as far distant from it. A county, on the other hand, is a definitely designated territory ..., and what is embraced within it cannot be a matter of doubt or uncertainty. In this respect its meaning is vitally different from that of vicinity.”

While vicinage comprehends or includes the venue as is shown by Commonwealth v. Collins, supra, the two are not necessarily co-extensive. The main consideration is to give a speedy trial before an impartial jury drawn from an area broad enough to secure it. Therefore vicinage must expand itself to meet that situation and when, for potent reasons, the locality of the venue cannot produce such a jury, the venue must be moved within the vicinage to the place where an impartial jury can be obtained[ or, we might add, where a speedy trial can be had]. While we are not compelled, at this time, to define with exactness the extreme limits of “vicinage,” enough has been said to demonstrate the trial may be removed to another county or venue, without sacrificing this constitutional guarantee.

Id. at 568-69,188 A. at 579.

The court continued its discussion of the right of an accused to “an impartial jury of the vicinage” as follows:

In the states where the constitution provides that the jury shall be drawn from the “county” or “district” in which the offense is alleged to have been committed the higher courts do not agree on the right of the prosecutor to have a change of venue____ Some jurisdictions limit the right to change of venue to the accused alone and deprive the prosecutor of such relief----

There are other states where, under constitutional provisions similar to the above, courts have held a change of venue may be permitted upon the petition of the prosecutor. The conclusions in these cases are more consonant with sound reason and support the institutions they are designed to protect.

... The preservation of society, the enforcement of law and order in great crises would be severely impeded if our constitution would be so construed as to prevent in any case the Commonwealth from having a change of venue. But that right cannot be abused. The accused cannot be dragged all over the Commonwealth at its suggestion to be weighted down with the burden of an expensive trial. For this reason the prosecution’s request for a change of venue should be much more strictly scrutinized than one by the accused; before the court is moved to act, there should be the most imperative grounds.

Id. at 569-71, 188 A. at 579-80 (citations omitted; emphasis added).

From the foregoing discussion, we derive several points necessary to our decision in this case. First, vicinage is not synonymous with county or venue, but may embrace more than one county. Second, the place of trial, whether within or without the county where the alleged crime occurred, is a matter of venue, not jurisdiction,³ notwithstanding the imprecise and confusing terminology used in Commonwealth v. Boyle, supra. Third, trial in a county other than the one where the offense occurred is not constitutionally prohibited. Fourth, trial 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 safeguards⁴ 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.

In summary, we hold that the Court of Common Pleas of Washington County had subject matter and personal jurisdiction over the offenses allegedly committed by appellant in Allegheny County.⁵ Appellant’s right to a speedy trial by an impartial jury of the vicinage, Pa. Const. Article I, section 9, is a matter of venue, and there is no constitutional deprivation occasioned by joining all charges stemming from á single criminal episode for trial in one county despite the fact that some of the charges arose in a different county. Under 18 Pa.C.S. § 110, then, all the charges were within the jurisdiction of a single court and should have been joined in a single trial; the pending Allegheny County prosecution is barred by the former Washington County prosecution and conviction. The order of the Superior Court, permitting a second trial, must be reversed.

Order of the Superior Court reversed and appellant discharged.

NIX, former C.J., did not participate in the consideration or decision of this case. CAPPY, J., files a concurring opinion. NIGRO, J., concurs in the result. NEWMAN, J., files a dissenting opinion in which CASTILLE, J., joins.

1 . For statutory exceptions, see, e.g., 42 Pa.C.S. §§ 723, 725, 742, 761, 762, 763, 764.

2 . Amicus curiae, the Pennsylvania Association of Criminal Defense Lawyers, filed a helpful brief which elaborates the argument.

3 . It is important to distinguish jurisdiction from venue. Jurisdiction is the legal right by which judges exercise their authority to decide cases. Venue, on the other hand, is the right of a party to have the action brought and heard in a particular judicial district, or locality, and is related to the convenience of the litigants. Jurisdiction of subject matter can never attach nor be acquired by consent or waiver of the parties, while venue may always be waived. McGinley v. Scott, 401 Pa. 310, 316, 164 A.2d 424, 427-28 (1960).

4 . Ironically, the arguments in this case underscore those safeguards. The Commonwealth, which should have, but did not, seek trial of the Allegheny County offense in the Washington County court of common pleas, now argues that the Washington County court lacks jurisdiction over the Allegheny County charges. Commonwealth v. Reilly destroys that argument. The accused himself, joined by amicus Pennsylvania Association of Criminal Defense Lawyers, argues that his constitutional right to trial before a jury of the vicinage is not offended by trial of the Allegheny County charges in Washington County.

We agree. The purpose of joining all charges from the same criminal episode, pursuant to 18 Pa.C.S. § 110, is to shield the accused from duplicitous, sequential trials. Such trials promise unnecessary delay, unnecessary expense to the accused and the Commonwealth, unnecessary duplication of judicial resources, and unnecessary aggravation to the accused and witnesses.

5 . Likewise, the Court of Common Pleas of Allegheny County had jurisdiction over the offenses committed in Washington County as well as those committed in Allegheny County, when all the offenses arose from the same criminal episode.