J-S22042-24
2024 PA Super 185
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
HERVEY FRANCES HOWELL, JR. :
:
Appellant : No. 1419 WDA 2023
Appeal from the PCRA Order Entered October 20, 2023
In the Court of Common Pleas of Potter County Criminal Division at
No(s): CP-53-CR-0000242-2021
BEFORE: PANELLA, P.J.E., LANE, J., and BENDER, P.J.E.
OPINION BY BENDER, P.J.E.: FILED: August 20, 2024
Appellant, Hervey Frances Howell, Jr., appeals from the post-conviction
court’s October 20, 2023 order denying his timely-filed petition under the Post
Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. After careful review,
we affirm.
The facts of Appellant’s underlying convictions can be briefly
summarized as follows. In August of 2021, Appellant communicated, via
telephone and Facebook messaging, with a confidential informant (CI) who
was located, and working with authorities, in Potter County. During the
conversations, Appellant was located in Tioga County. Appellant and the CI
arranged a drug sale, which ultimately occurred in Tioga County. Following
the sale, Appellant was taken into custody in Tioga County by officers with the
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Potter County Drug Task Force. Subsequent testing confirmed that Appellant
possessed and sold the CI narcotics, including methamphetamine.
Ultimately, Appellant was charged with various offenses in Potter
County. On March 25, 2022, he entered a negotiated plea agreement, in the
Potter County Court of Common Pleas, to attempted possession with intent to
deliver (PWID), 35 P.S. § 780-113(a)(30), and criminal use of a
communication facility, 18 Pa.C.S. § 7512(a). On May 23, 2022, Appellant
was sentenced to the agreed upon, aggregate term of 48 to 96 months’
imprisonment. His remaining charges were nolle prossed.
Appellant did not file a direct appeal. Instead, on May 30, 2023, he filed
a timely, pro se PCRA petition. Counsel was appointed and filed an amended
petition on Appellant’s behalf on July 14, 2023. On September 11, 2023, the
Commonwealth filed an answer and motion to dismiss Appellant’s petition. On
September 25, 2023, the PCRA court issued a Pa.R.Crim.P. 907 notice of its
intent to dismiss Appellant’s petition without a hearing. Appellant filed a
response, but on October 20, 2023, the court issued an order dismissing his
petition.
Appellant filed a timely notice of appeal, and also complied with the
court’s order to file a Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal. The PCRA court thereafter filed a Rule 1925(a)
opinion. Herein, Appellant states one claim for our review:
1. Whether the PCRA court’s conclusion of law[,] that the Potter
County Court of Common Pleas properly exercised its subject
matter jurisdiction over Appellant’s case[,] was incomplete and
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erroneous because the PCRA court failed to assess whether
Appellant’s case presented the type of limited circumstances
and good cause which would warrant the exercise of
jurisdiction outside of the geographically proper judicial
district, i.e., the district which was the locus of the crime, and
[because] in this case, no such limited circumstances or good
cause, in fact, existed?
Appellant’s Brief at 4.
We begin by noting that:
“In reviewing the propriety of an order granting or denying PCRA
relief, an appellate court is limited to ascertaining whether the
record supports the determination of the PCRA court and whether
the ruling is free of legal error.” Commonwealth v. Johnson, …
966 A.2d 523, 532 ([Pa.] 2009). We pay great deference to the
findings of the PCRA court, “but its legal determinations are
subject to our plenary review.” Id.
Commonwealth v. Matias,
63 A.3d 807, 810 (Pa. Super. 2013).
Here, Appellant contends that the PCRA court erred by dismissing his
petition challenging the Potter County Court of Common Pleas’ jurisdiction to
accept his plea and impose his sentence, when the “locus of the crime” was
Tioga County, and there were no circumstances or good cause for the case to
be heard in Potter County. Appellant’s Brief at 18, 19.
No relief is due. In Commonwealth v. Bethea, 828 A.2d 1066 (Pa.
2003), our Supreme Court examined “whether the Court of Common Pleas of
Franklin County had subject matter jurisdiction to hear and decide the case
against … Bethea involving violations of the Pennsylvania Crimes Code,
(‘Crimes Code’) when the underlying criminal episode occurred in Cumberland
County.”
Id. at 1069. The Court began by addressing the “confusion
regarding the concepts of venue and subject matter jurisdiction.”
Id. at 1074.
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As “[t]he initial step in this process[,]” the Court “clarif[ied] and expressly
[held] that all courts of common pleas have statewide subject matter
jurisdiction in cases arising under the Crimes Code.” Id. (emphasis
added). Thus, the Bethea Court concluded that the Franklin County Court of
Common Pleas “possess[ed] subject matter jurisdiction in [that] matter[,]”
and “the proper focus of th[e] appeal [was] upon the question of venue.”
Id.
(emphasis added). In support, the Bethea Court explained:
Subject matter jurisdiction relates to the competency of a court to
hear and decide the type of controversy presented. McGinley v.
Scott, … 164 A.2d 424 (Pa. 1960). Jurisdiction is a matter of
substantive law. Id. at 428; 42 Pa.C.S. § 931(a) (defining the
unlimited original jurisdiction of the courts of common pleas).
[Bethea] was charged with violations pursuant to the Crimes
Code. Controversies arising out of violations of the Crimes Code
are entrusted to the original jurisdiction of the courts of common
pleas for resolution. See 18 Pa.C.S. § 102. Every jurist within
that tier of the unified judicial system is competent to hear and
decide a matter arising out of the Crimes Code. Pa. Const. Art. 5,
§ 5 (establishing the jurisdiction of the courts of common pleas
within the unified judicial system).
Venue relates to the right of a party to have the controversy
brought and heard in a particular judicial district. McGinley, 164
A.2d at 427–28. Venue is predominately a procedural matter,
generally prescribed by rules of this Court. Id. at 429; 42 Pa.C.S.
§ 931(c). Venue assumes the existence of jurisdiction. 42 Pa.C.S.
§ 931(b) (referencing rules for change of venue in cases within
the jurisdiction of courts of common pleas); Pa.R.Crim.P. 584
(relating to the procedure for a change of venue amongst courts
of common pleas for the trial of criminal actions).
Id. Ultimately, the Court concluded that Bethea’s issue constituted a
challenge to the venue of his case being Franklin County, when he “was
accused of a criminal act that occurred in Cumberland County.” Id.
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In the instant case, although Appellant recognizes the distinction
between jurisdiction and venue discussed in Bethea, he argues that our
Supreme Court
expressly admonished courts of common pleas against exercising
jurisdiction outside of the territorial bounds of the judicial district
within which the Crimes Code violation occurred unless in “the
most limited of circumstances” required as much. [Bethea, 828
A.2d] at 1075. The Supreme Court further noted the “propriety
of imposing geographic limitations on the exercise of jurisdiction”
and advised that a criminal action is properly adjudicated “in the
place where the crime occurred.” Id. [(]citing Commonwealth
v. Mulholland, 702 A.2d 1027 (Pa. 1997)[)]. Therefore, per the
Supreme Court, despite the constitutional and statutory
conveyance of jurisdiction to all courts of common pleas, these
regulations cannot be read in a vacuum, and exercise of statewide
jurisdiction outside of the proper judicial district should not be
permitted in every instance, but rather only “upon good cause
shown.” Id.
Appellant’s Brief at 18 (emphasis in original).
Appellant’s attempt to recast his venue claim as a jurisdictional issue is
unconvincing. The Bethea Court said that the “[r]ules of venue recognize
the propriety of imposing geographic limitations on the exercise of jurisdiction.
Venue in a criminal action properly belongs in the place where the crime
occurred.” Bethea, 828 A.2d at 1075 (emphasis added). The Court then
continued:
This practice recognizes the necessity of bringing a party to
answer for his actions in the place where the crime itself occurred
because that is where the evidence and the witnesses will most
likely be located. It would be nonsensical to transport defendants,
evidence and witnesses from Philadelphia to Erie to resolve
criminal charges arising in the former location before a judge
and/or jury sitting in the latter location. A change of venue
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from the situs of the action to a different locale is permitted
only upon good cause shown. Pa.R.Crim.P. 584.
Id. (emphasis added).
Clearly, under the rationale of the Bethea Court, the Potter County
Court of Common Pleas had subject matter jurisdiction over Appellant’s
criminal case. Appellant’s contention that his case should have been heard in
Tioga County, because that was the situs of his crimes, is a challenge to the
venue of this action, not the court’s jurisdiction. Accordingly, the PCRA court
did not err in dismissing Appellant’s petition, as his venue claim is not
cognizable under the PCRA. See 42 Pa.C.S. § 9543(2)(i)-(viii) (setting forth
the claims that are cognizable under the PCRA).
Moreover, even if Appellant’s venue challenge were a cognizable PCRA
claim, Appellant waived it by failing to raise it before the trial court or on direct
appeal. See 42 Pa.C.S. § 9543(3) (stating that to be eligible for relief, a PCRA
petition must prove “[t]hat the allegation of error has not been previously
litigated or waived”); 42 Pa.C.S. § 9544(b) (stating “an issue is waived if the
petitioner could have raised it but failed to do so before trial, at trial, during
unitary review, on appeal or in a prior state post[-]conviction proceeding”).
Appellant also waived any challenge to the venue in this case by pleading
guilty in Potter County. It is well-settled that “[a] plea of guilty constitutes a
waiver of all non[-]jurisdictional defects and defenses. When a defendant
pleads guilty, he waives the right to challenge anything but the legality of his
sentence and the validity of his plea.” Commonwealth v. Jones, 929 A.2d
205, 212 (Pa. 2007) (citations omitted). Thus, for all these reasons, we
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conclude that the PCRA court did not err in dismissing Appellant’s PCRA
petition without a hearing.
Order affirmed.
DATE: 08/20/2024
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