J-E04004-17
2020 PA Super 107
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
EMILY JOY GROSS :
:
Appellant : No. 375 EDA 2016
Appeal from the Order January 15, 2016
In the Court of Common Pleas of Monroe County
Criminal Division at No(s): CP-45-CR-0000045-2010
BEFORE: GANTMAN, P.J., BENDER, P.J.E., BOWES, J., PANELLA, J.,
SHOGAN, J., LAZARUS, J., OLSON, J., STABILE, J., and DUBOW, J.
OPINION BY GANTMAN, P.J.: FILED APRIL 29, 2020
Appellant, Emily Joy Gross, appeals from the order entered in the
Monroe County Court of Common Pleas, which denied her omnibus pretrial
motion to dismiss on double jeopardy grounds. We affirm.
Our Supreme Court set forth the relevant facts of this case as follows:
[Ms.] Gross and Daniel Autenrieth began a romantic
relationship in early 2009. On May 4, 2009, Autenrieth’s
estranged wife filed a protection from abuse (PFA) petition
against him in Northampton County where she lived. The
court issued a temporary PFA order the same day
prohibiting Autenrieth from having contact with his wife or
children and evicting him from the marital residence. The
same day, deputies from the Northampton Sheriff’s office
went to Autenrieth’s residence (also in Northampton
County) to serve the temporary PFA order and to transfer
custody of the children to Autenrieth’s wife. [Ms.] Gross
was present, babysitting the children, and a deputy served
the order on her as the adult in charge of the residence.
The deputy incorrectly told [Ms.] Gross the temporary PFA
order prohibited Autenrieth from possessing firearms.
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Another deputy explained the PFA order’s terms to
Autenrieth over the phone. On May 18, 2009, a final PFA
order was issued, which prohibited Autenrieth from
possessing firearms.
[Ms.] Gross routinely stayed overnight at Autenrieth’s
residence, but she lived and worked in New Jersey. On
May 21, 2009, she attempted to acquire a New Jersey
firearm permit but was informed the process would take
several months. On May 29, 2009, [Ms.] Gross obtained a
Pennsylvania driver’s license using Autenrieth’s address;
within hours, [Ms.] Gross and Autenrieth went to a Berks
County store, where [Ms.] Gross used her new license to
buy a 9 millimeter handgun. Later, at his residence,
Autenrieth showed [Ms.] Gross how to use the gun, offered
to clean it for her, then put the gun in its box and stored it
and its ammunition above his washer and dryer. This was
the last time [Ms.] Gross saw the gun, though a few days
later she learned Autenrieth had taken the gun, fired it
with a friend, and replaced the ammunition used; [Ms.]
Gross made no objection.
On June 7, 2009, Autenrieth took the gun, went to his
estranged wife’s house, and kidnapped his nine-year-old
son at gunpoint. Police were called, Autenrieth fled, and
the chase went on for 40 miles, ending with a shoot-out in
Monroe County in which Autenrieth killed one Pennsylvania
State Trooper and wounded another before being shot to
death.
A criminal complaint was filed in Monroe County charging
[Ms.] Gross with criminal conspiracy, 18 Pa.C.S. § 903(a);
firearms not to be carried without a license, [18 Pa.C.S.] §
6106(a)(1) (co-conspirator); possession of a firearm
prohibited, [18 Pa.C.S.] § 6105(a)(1) (accomplice); and
lending or giving of firearms prohibited, [18 Pa.C.S.] §
6115(a) (accomplice). A preliminary hearing was held
January 15, 2010, before a Monroe County magisterial
district judge. Among other motions, [Ms.] Gross moved
for dismissal of the case for “lack of jurisdiction[.]”
Specifically, [Ms.] Gross argued “there [was] no
jurisdiction in [the magisterial] district or, in fact, in
Monroe County to hear these charges.” The judge denied
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the motion, …, and bound the charges over to the Monroe
County Court of Common Pleas….
On March 3, 2010, [Ms.] Gross filed an omnibus pre-trial
motion, which included a “Motion to Dismiss or, in the
alternative, Transfer for Improper Venue.”1 A hearing on
this motion was held May 24, 2010. The Commonwealth
did not introduce evidence other than the preliminary
hearing transcript and a license to carry firearm
certification regarding Autenrieth. Both parties filed briefs
to address the venue issue. After considering the evidence
and the parties’ arguments, the trial court found [Ms.]
Gross’s “Motion to Dismiss for Improper Venue” dispositive
and dismissed the case July 15, 2010, for improper venue.
The trial court addressed this motion only; it did not
consider [Ms.] Gross’s alternative motion to transfer for
improper venue, nor did it address the remaining motions
contained in her omnibus pre-trial motion.
1 The omnibus pretrial motion consisted of a Motion
for Bill of Particulars; Motion to Compel Pretrial
Discovery and Inspection; Motion to Dismiss or, in
the alternative, Transfer for Improper Venue; Motion
for a Change of Venue or Venire to Avoid Prejudicial
Pretrial Publicity; Motion to Quash Criminal
Complaint or Return of Transcript, and/or Petition for
Writ of Habeas Corpus; and Motion for
Recusal/Appointment of Out–of–County Judge.
Venue was held improper based on a lack of factual
connection to Monroe County.2 Specifically, both the trial
court and the Superior Court concluded the evidence
showed the alleged conspiracy was not reached in Monroe
County, [Ms.] Gross committed no acts in furtherance of
the conspiracy in Monroe County, and the conspiracy
ended in Northampton County. The Commonwealth
argues the lower courts erred in finding improper venue,
noting all charges filed against [Ms.] Gross were based on
conspiracy and accomplice liability and her co-conspirator,
Autenrieth, committed an overt act in Monroe County.
Alternatively, the Commonwealth contends that even if
venue was improper, the trial court should have
transferred the proceedings instead of dismissing them.
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2 In its Rule 1925(a) opinion, the trial court
reiterated dismissal was solely because Monroe
County was not a county of proper venue, and not
based on any allegation of pre-trial publicity that
would inhibit [Ms.] Gross from receiving a fair and
impartial trial there.
Commonwealth v. Gross, 627 Pa. 383, 388-90,
101 A.3d 28, 31-32
(2014) (internal citations omitted). In the context of venue as it relates to
conspiracy charges, the Supreme Court continued:
At the hearing on the omnibus motion filed by [Ms.] Gross,
the Commonwealth submitted the preliminary hearing
transcript, supporting its belief that venue in Monroe
County was proper. [Ms.] Gross only offered legal
argument in response; thus, the Commonwealth’s
evidence was uncontradicted and constituted the entire
factual record relative to [Ms.] Gross’s venue challenge.
The trial court held [Ms.] Gross could not be prosecuted in
Monroe County because the conspiracy between [Ms.]
Gross and Autenrieth was reached and completed in
Northampton County and Autenrieth’s possession of the
firearm in Monroe County did not constitute an overt act in
furtherance of the criminal agreement. In this, the court
misperceived the nature of the charges brought.
The material elements of conspiracy are: “(1) an intent to
commit or aid in an unlawful act, (2) an agreement with a
co-conspirator and (3) an overt act in furtherance of the
conspiracy.” Commonwealth v. Spotz, 562 Pa. 498,
[540-41], 756 A.2d 1139, 1162 (2000) (citation omitted).
An “overt act” means an act done in furtherance of the
object of the conspiracy. See 18 Pa.C.S. § 903(e);
Commonwealth v. Weimer, 602 Pa. 33, [39],
977 A.2d
1103, 1106 (2009). Additionally, in connection with
questions of venue, this Court noted “a prosecution for
criminal conspiracy may be brought in any county where
the unlawful combination was formed, or in any county
where an overt act was committed by any of the
conspirators in furtherance of the unlawful combination.”
Commonwealth v. Fithian, 599 Pa. 180, [201-02], 961
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A.2d 66, 78 (2008) (citing Commonwealth v. Thomas,
410 Pa. 160, [164],
189 A.2d 255, 258 (1963)).
The record is sufficient to show a criminal conspiracy
between Autenrieth and [Ms.] Gross, under which [Ms.]
Gross would purchase a firearm for the purpose of
providing Autenrieth with access to a gun he was
otherwise prohibited from possessing. Because of this
criminal agreement, Autenrieth was able to use the firearm
on two occasions, including the day he took the gun and
used it in Monroe County. The trial court determined the
conspiracy agreement ended May 29, 2009, at the time
[Ms.] Gross left the firearm with Autenrieth at his
residence in Northampton County. However, the trial court
failed to appreciate that the object of the conspiracy
articulated by the charges was to provide Autenrieth with
unlimited possession and unconditional access to a
firearm, and such was not completed or terminated May
29, 2009, but continued as long as [Ms.] Gross allowed
Autenrieth to possess her gun. See 18 Pa.C.S. §
903(g)(1) (“[C]onspiracy is a continuing course of conduct
which terminates when the crime or crimes which are its
object are committed or the agreement that they be
committed is abandoned by the defendant and by those
with whom he conspired[.]”); Commonwealth v. Evans,
489 Pa. 85, [92],
413 A.2d 1025, 1028 (1980) (“The
duration of a conspiracy depends upon the facts of the
particular case, that is, it depends upon the scope of the
agreement entered into by its members.” (…citation
omitted)). [Ms.] Gross did not object or withdraw her
authorization. Autenrieth’s taking the firearm and carrying
it constituted the overt act, and that possessory act did not
cease when he crossed into Monroe County. Accordingly,
the trial court erred in dismissing the conspiracy charges,
as the record was sufficient to establish [Ms.] Gross, as co-conspirator, could be found vicariously liable for
Autenrieth’s possession of the firearm, in Monroe County,
and thus, could be prosecuted in that county.
The trial court also erred in finding dismissal was
warranted for the counts charging [Ms.] Gross as an
accomplice in the crimes of illegal possession of a firearm
and lending or giving a firearm. The trial court found [Ms.]
Gross could not be an accomplice in Monroe County
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because Autenrieth, not [Ms.] Gross, possessed the gun
there. Also, both the trial court and the Superior Court
concluded [Ms.] Gross could not be charged as an
accomplice because “there is no evidence that she
intended to aid or promote Autenrieth's shootout with the
police.” Commonwealth v. Gross, No. 2006 EDA 2010,
unpublished memorandum at 7, 2011 WL 5111048
(Pa.Super. filed July 13, 2011) (citing Trial Court Opinion,
7/15/10, at 11)). This factual statement may be true, but
it is irrelevant, reflecting a misapprehension of the charges
filed. [Ms.] Gross was never charged as an accomplice in
the shooting; rather, she was charged as an accomplice in
the illegal possession of a firearm, and the evidence
offered was sufficient to prove she could be convicted as
an accomplice to such illegal possession in Monroe County.
“An actor and his accomplice share equal responsibility for
the criminal act if the accomplice acts with the intent of
promoting or facilitating the commission of an offense and
agrees or aids or attempts to aid such other person in
either the planning or the commission of the offense.”
Commonwealth v. Cox, 546 Pa. 515, [529],
686 A.2d
1279, 1286 (1996) (citations omitted). There is no
minimum amount of assistance or contribution
requirement, for “[i]t has long been established…that
intent of the parties is a consideration essential to
establishing the crime of aiding and abetting a felony.”
Commonwealth v. Flowers, 479 Pa. 153, [157],
387
A.2d 1268, 1270 (1978)…. Thus, even non-substantial
assistance, if rendered with the intent of promoting or
facilitating the crime, is sufficient to establish complicity.
See Commonwealth v. Pierce, 437 Pa. 266, [268],
263
A.2d 350, 351 (1970) (where assistance “is rendered to
induce another to commit the crime and actually has this
effect, no more is required.” (citation omitted)). Absence
or presence at the scene and the participant’s role in the
complicity are not dispositive of whether accomplice
liability exists. See Commonwealth v. Murphy, 577 Pa.
275,
844 A.2d 1228, 1234 (2004) (“[A] defendant cannot
be an accomplice simply based on evidence that he…was
present at the crime scene.” (citation omitted)).
Accomplice liability does not create a new or separate
crime; it merely provides a basis of liability for a crime
committed by another person. See 18 Pa.C.S. § 306.
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Because Autenrieth was present with the gun in Monroe
County, and [Ms.] Gross aided Autenrieth’s illegal
possession of that firearm, [Ms.] Gross could be found
liable as an accomplice for Autenrieth’s illegal possession
wherever he was, including Monroe County. Accordingly,
we conclude the Commonwealth proved by a
preponderance of the evidence that [Ms.] Gross could be
prosecuted under all criminal charges in Monroe County.
The trial court’s finding to the contrary was erroneous.
…
In light of the foregoing, we conclude the trial court erred
in finding venue improper in Monroe County and in
dismissing the case. Order reversed. Case remanded to
the trial court for consideration of any unaddressed issues.
Id. at 393-97, 101 A.3d at 34-36 (some internal citations omitted). In sum,
the Supreme Court held: (1) the Commonwealth met its burden to prove by
a preponderance of evidence that venue in Monroe County was proper on
conspiracy and accomplice liability, because the Commonwealth had
demonstrated Appellant could be found vicariously liable for Mr. Autenrieth’s
possession of a firearm in Monroe County; and (2) the record was sufficient
to show Appellant conspired with and aided Mr. Autenrieth in the illegal
possession of the firearm “wherever he was.”
Id. The Supreme Court
reversed and remanded the matter to the Monroe County Court of Common
Pleas for consideration of any unaddressed issues.
Id.
While the appeal on venue was pending in state court, the United
States Attorney filed an information in the U.S. District Court for the Eastern
District of Pennsylvania on November 4, 2009, charging Appellant with
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making false statements to a federal firearms licensee in violation of 18
U.S.C. § 922(a)(6), and aiding and abetting a prohibited person to possess a
firearm in violation of
18 U.S.C. § 922(g)(8) and
18 U.S.C. § 2. Specifically,
the federal government alleged Appellant had lied on a required federal
document in connection with her purchase of a firearm and then aided and
abetted Mr. Autenrieth’s possession of the firearm, even though she knew he
was not permitted to possess a firearm.
On February 2, 2011, Appellant pled guilty to only one federal charge,
i.e., making false statements to a federal firearms licensee; and the federal
authorities dropped the count of aiding and abetting prohibited possession of
a firearm. The federal court accepted the plea and sentenced Appellant on
May 9, 2011, to seven (7) months’ imprisonment followed by three (3) years
of supervised release, including a period of home confinement, plus a fine
and special assessment of $100.00.
Following our Supreme Court’s resolution of the state appeal, the state
case was remanded to the Monroe County Court of Common Pleas in 2014,
to consider any unaddressed issues. On remand, the trial court held more
pretrial hearings on May 4, 2015, May 11, 2015, and September 15, 2015.
At each of the pretrial hearings, Appellant focused almost exclusively on her
request for recusal of the entire Monroe County bench, or in the alternative,
recusal of each successive jurist assigned to the case, on the grounds of
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local publicity and excessive community pressure, because Appellant alleged
that no local jurist could appear impartial.
At the May 4, 2015 hearing, some of the outstanding omnibus pretrial
issues were disposed as law of the case, such as improper venue; by
agreement, such as request for discovery; held in abeyance, such as a
motion for change of venue pending voir dire; or by briefing, such as the
legal issues pertaining to Appellant’s motion for a bill of particulars and
recusal. The court also heard Appellant’s motion for habeas corpus relief for
lack of a prima facie case.
The proceedings on May 11, 2015, were for the specific purpose of
reinstating a defense motion for recusal on the new ground that defense
counsel was assisting in an investigation of issues arising from the court’s
use of non-shorthand reporters (voice recording reporters) to take notes of
testimony of court proceedings. Counsel argued these circumstances could
give the impression that President Judge Patti-Worthington was either
favoring the defense or “possibly bending over backwards not to give the
appearance of impropriety by favoring the Commonwealth.” (See N.T.
5/11/15, at 3.) By order filed on June 9, 2015, President Judge Patti-
Worthington denied Appellant’s motion to appoint an out-of-county judge
but granted Appellant’s motion for recusal and reassigned the case to the
Honorable Arthur L. Zulick.
After reassignment the Honorable Arthur L. Zulick held a
Status Conference on June 26, 2015. On July 16, 2015,
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[Appellant] filed a new Motion to Recuse, which was
granted on July 29, 2015, at which time the case was
assigned to [the Honorable Steven M. Higgins].
Following reassignment, [Judge Higgins] scheduled the
Status Conference for August 6, 2015, at which time
[Appellant] renewed [her] “Motion for Recusal and
Appointment of an Out-of-County [J]udge.”
(Trial Court Opinion, filed January 15, 2016, at 4).
At the hearing on September 15, 2015, the court declared the issue of
recusal of the entire Monroe County bench as having already been denied.
Appellant offered nothing unique to sustain her request for the personal
recusal of Judge Higgins, who explained he was inclined to deny the motion
but would take the request for his individual recusal under advisement. By
order filed on September 18, 2015, the court denied Appellant’s recusal
motion and set a briefing schedule for both sides to file supplemental briefs
in support of their positions on the remaining issues Appellant had raised in
her omnibus pretrial motion.
On October 16, 2015, Appellant filed a supplemental brief in support of
her omnibus pretrial motion and, for the first time, she raised a double
jeopardy challenge to the Commonwealth’s case. While recognizing the
continuing legal concept of “dual sovereignty,” Appellant nevertheless
argued that the federal and state prosecutions against her derived from the
same conduct, related to the same governmental interests, and the federal
government’s dismissal of the aiding and abetting count collaterally
estopped the Commonwealth from prosecuting Appellant for conspiracy. As
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she did at the habeas corpus hearing, Appellant asserted there was no
evidence to show she knew or had any reason to know of any firearm
prohibition against Mr. Autenrieth. Appellant concluded she had already
served a sentence in federal prison for charges arising from the same
allegations presently before the state court, which should be dismissed as a
matter of law under 18 Pa.C.S.A. § 111 and its progeny. (See
[Appellant’s] Supplemental Brief In Support of Omnibus Pretrial Motion, filed
10/16/15, at 4-8.) Essentially, Appellant relied on the same facts she had
raised in her habeas corpus motion and hearing, but she clad them in the
different legal theories of double jeopardy and collateral estoppel.
In its supplemental brief in opposition, the Commonwealth responded,
inter alia, to the three-part test of Section 111 by stating: (1) Appellant’s
false statements on ATF Form #4473 (federal firearms transactional record)
involved separate conduct and constituted distinct offenses, which included
different elements designed to prevent different harms; and (2) the mere
fact that some of the evidence used in the federal prosecution might overlap
with the state prosecution was not dispositive. (See Commonwealth’s Brief,
Supplemental, In Opposition to [Appellant’s] Omnibus Pretrial Motions, filed
11/9/15, at 1-8.)
Appellant filed a supplemental reply brief, where she argued again, in
relevant part, that the federal and state prosecutions were duplicative,
arising from the same facts and addressing the same governmental
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interests. Appellant concluded: “An objective review of the statutes reveals
that the purposes of these laws are the same—to prohibit the possession of
firearms by individuals not licensed to possess or prohibited from possessing
a firearm, and there is no reading of these statutes which would permit one
to find that the statutes were intended to prevent substantially different
harms.” (See [Appellant’s] Reply In Support of [Appellant’s] Omnibus
Pretrial Motion, filed 11/30/15, at 2-8.) Given the extensive pretrial
proceedings, the trial court denied Appellant’s remaining pretrial claims on
January 15, 2016, including, as a matter of law, her claims of double
jeopardy and collateral estoppel.
Appellant timely filed a notice of appeal on January 22, 2016. By
order entered on January 26, 2016, the court directed Appellant to file a
concise statement of errors complained of on appeal per Pa.R.A.P. 1925(b).
Appellant timely complied on February 16, 2016. On appeal, a three-judge
panel of this Court initially reversed the order on double jeopardy grounds
and dismissed the case against Appellant. The Commonwealth timely
sought en banc review, which this Court granted by order filed on May 12,
2017.
Appellant’s sole issue on appeal is as follows:
DID THE TRIAL COURT ERR IN FAILING TO DISMISS THE
INFORMATION AGAINST [APPELLANT], WHERE THE
INFORMATION ARISES OUT OF THE SAME CONDUCT FOR
WHICH [APPELLANT] HAS ALREADY BEEN PROSECUTED
FOR, CONVICTED OF AND SENTENCED ON BY THE
FEDERAL GOVERNMENT, AND THE COMMONWEALTH DID
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NOT CARRY ITS BURDEN OF PROVING THAT THE FEDERAL
GOVERNMENT’S PRIOR PROSECUTION WAS INTENDED TO
PREVENT A SUBSTANTIALLY DIFFERENT HARM OR EVIL
THAN THE COMMONWEALTH’S?
(Appellant’s Brief at 3).
As a prefatory matter, Pennsylvania law has traditionally provided a
criminal defendant the right to an immediate appeal from an order denying a
pretrial motion to dismiss on double jeopardy grounds. Commonwealth v.
Orie, 610 Pa. 552, ___,
22 A.3d 1021, 1024 (2011). See also
Commonwealth v. Haefner,
473 Pa. 154, 156,
373 A.2d 1094, 1095
(1977) (stating: “[D]enial of a pre-trial motion to quash an indictment,
where the motion alleges that a second trial will violate a defendant’s right
not to be placed twice in jeopardy, is a final, appealable order”);
Commonwealth v. Minnis,
83 A.3d 1047, 1049 n.1 (Pa.Super. 2014) (en
banc) (stating: “An appeal from a pre-trial order denying double jeopardy
protection is final and appealable”); Commonwealth v. Gains,
556 A.2d
870, 874 (Pa.Super. 1989) (en banc) (stating: “The Supreme Court of
Pennsylvania has determined that an immediate appeal may be taken from
an order denying a pretrial motion to dismiss on double jeopardy grounds”);
Commonwealth v. Feaser,
723 A.2d 197, 199 n.2 (Pa.Super. 1999)
(stating: “‘Pre-trial orders denying double jeopardy claims are immediately
appealable in the absence of a written finding of frivolousness’ by the
hearing court”); Commonwealth v. Davis,
708 A.2d 116, 117 n.1
(Pa.Super. 1998) (stating: “Pretrial orders denying double jeopardy claims
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are final orders for purposes of appeal”); Commonwealth v. Teagarden,
696 A.2d 169, 170 n.2 (Pa.Super. 1997), appeal denied,
549 Pa. 726,
702
A.2d 1060 (1997) (citing Commonwealth v. Brady,
510 Pa. 336,
508 A.2d
286 (1986); Commonwealth v. Wolfe,
684 A.2d 642 (Pa.Super. 1996);
Commonwealth v. Breeland,
664 A.2d 1355 (Pa.Super. 1995)) (stating:
“Pre-trial orders denying double jeopardy claims are immediately appealable
in the absence of a written finding of frivolousness by the trial court that
heard the claims. … Such a rule strikes the appropriate balance between
the defendant’s protection against being placed in double jeopardy against
the public’s interest in prompt trials of the criminally accused”);
Commonwealth v. Smith,
552 A.2d 292 (Pa.Super. 1988), appeal denied,
524 Pa. 596,
568 A.2d 1247 (1989) (noting generally that trial court’s denial
of pretrial motion to dismiss on double jeopardy claims is immediately
appealable, absent written finding that motion is frivolous).
Our Supreme Court outlined the genesis of the right to an immediate
appeal from a trial court’s pretrial decision on double jeopardy as follows:
Generally, criminal defendants have a right to appeal a
trial court’s pre-trial double jeopardy determination under
Commonwealth v. Bolden, 472 Pa. 602,
373 A.2d 90
(1977) (plurality opinion). While Bolden was a plurality
decision, a per curiam decision by the Court shortly
thereafter made clear that a Court majority agreed with
the important narrow proposition that “pretrial orders
denying double jeopardy claims are final orders for
purposes of appeal.” [Haefner, supra at 156, 373 A.2d
at 1095] (per curiam) (emphasis added).
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Eight years later, in [Brady, supra], this Court considered
the question of whether a Bolden of-right appeal should
be permitted to go forward when the trial court has
concluded that the double jeopardy motion is frivolous.
The Brady Court held that where the trial court makes a
written statement finding that the pre-trial double jeopardy
challenge is frivolous, a Bolden-style interlocutory appeal
will not be permitted because it would only serve to delay
prosecution.
In reaching this conclusion, the Brady Court noted that
precluding Bolden appeals and automatic stays of retrial
upon a written finding that the claim is frivolous still
affords the defendant “the opportunity to initially assert his
claim before a tribunal and retrial is not permitted unless
the claim is shown to the satisfaction of that court to be
frivolous.” As pertinent here, the Court explained that a
second double jeopardy protection was available: “a
defendant may challenge the finding of frivolousness in the
context of a request for a stay from an appellate court.”
The contemplated stay procedure provided “at least a
preliminary review by an appellate judge of the finding of
frivolousness prior to a retrial.” Third, Brady noted that
appellate review of the merits would be available on direct
appeal in the event of a conviction. The Court conceded
that it was possible that a meritorious double jeopardy
claim could be “overlooked by both a hearing court and the
appellate court in which a stay is sought.” But, on
balance, the Court concluded that this minimal risk was
justified by the need for prompt trials and expeditious
dispositions. The Court pointed out that the availability of
an automatic stay upon filing a Bolden appeal
“encourages the use of frivolous appeals as a means of
avoiding prosecution.” Such “needless delays engendered
by frivolous appeals hinder the administration of justice as
well as the public interest.”
Thus, the Brady Court envisioned a preliminary avenue for
limited appellate review of the trial court’s written finding
that a defendant’s double jeopardy challenge was frivolous
via a stand-alone stay procedure, which would be
unrelated to a pending appeal as of right. The Brady
Court did not further address exactly how such stay
reviews would proceed. Nor did the Court directly address
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which appellate court would conduct the review-via-stay,
albeit the Court spoke generically of a stay “from an
appellate court” and later adverted to “the appellate court
in which a stay is sought,” without suggesting that all such
appeals would proceed directly to this Court.
The Brady Court’s failure to explicitly identify which
appellate court should hear stay review challenges to a
pre-trial finding that a double jeopardy challenge was
frivolous became the controlling issue in the first published
opinion from the Superior Court to address the Brady
procedure. See Commonwealth v. Learn, 356 Pa.Super.
382,
514 A.2d 910, 911–12 (1986), overruled on other
grounds by [Gains, supra]. In Learn, the panel opined
that a stay request under Brady could not be made to that
appellate court because there was no appeal pending. In
the panel’s view, absent a pending appeal, the Superior
Court’s jurisdiction was not implicated by the trial court’s
action. Instead, the Learn court concluded that a Brady
stay request has to be made directly to this Court. The
Learn court did not transfer the stay request to this Court,
however, because the trial judge had made no written
finding that the double jeopardy motion was frivolous.
Instead, the panel remanded to the trial court for that
determination.4
4 The remand aspect of Learn was later overruled in
Gains. Gains held that a trial court’s failure to
make a written finding that the motion was frivolous
perfected the double jeopardy appeal under Bolden,
and no remand was proper or required.
…
We believe the most efficacious remedy is to employ the
existing procedures of Chapter[s 13 and] 15 of the Rules
of Appellate Procedure and permit a petitioner seeking
review of a trial court’s finding of frivolousness to file a
Petition for Review in the Superior Court, as Petitioner has
done here. The centerpiece of [these chapters] is the use
of the “petition for review” as the vehicle for implicating
the jurisdiction of the appellate court. …
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Given the appropriate use of a petition for review as the
vehicle for obtaining the narrow of-right appellate review
contemplated by Brady, any desired stay should be
sought per the ordinary stay procedure and in conformity
with the governing decisional law. See Pa.R.A.P. 1781
(stay pending petition for review); Pennsylvania Pub.
Utility Comm'n v. Process Gas Consumers Group, 502
Pa. 545,
467 A.2d 805 (1983). Finally, should the
Superior Court overturn the trial court’s finding of
frivolousness, the petitioner would be free to file a notice
of appeal as of right under Bolden. If the intermediate
court upholds the finding of frivolousness, any further
recourse to this Court is by [Petition for Allowance of
Appeal].
We emphasize that the appellate court’s consideration of a
petition for review in the Brady setting is preliminary in
nature. Thus, in a case such as this one, it does not
answer the merits of the underlying question of whether
the trial court abused its discretion in declaring a mistrial.
That question will be answered if the appeal is permitted to
go forward under Bolden. Again, at the Brady petition for
review stage, the appellate court’s focus is on the finding
of frivolousness.
Of course, the appellate court’s review of the trial court’s
finding of frivolousness may require some preliminary
assessment of the ruling or event giving rise to the double
jeopardy challenge—here, Petitioner’s challenge to the
underlying propriety of the trial court’s declaration of a
mistrial. Accordingly, we have granted review of the
second question raised by Petitioner, as quoted above, so
that our remand permits the Superior Court to address this
underlying question, to the degree necessary, in order to
assess the trial court’s finding of frivolousness.
Orie, supra at ___,
22 A.3d at 1024-28 (some internal citations and
footnotes omitted) (some emphasis added). The Orie Court addressed the
right to immediate appeal where the trial court expressly finds the double
jeopardy claim is frivolous.
Id. at ___,
22 A.3d at 1024. Essentially, the
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Orie Court modified Brady by holding that a defendant who has had a
pretrial double jeopardy challenge denied as frivolous could seek
interlocutory review of that decision if the defendant filed a petition for
permissive review under the applicable rules of appellate procedure. Orie,
supra at ___,
22 A.3d at 1026-27. Significantly, Orie reinforced the
general rule permitting an interlocutory appeal as of right from the denial of
a pretrial motion to dismiss on double jeopardy grounds if the trial court
made no finding of frivolousness.
Id. at ___,
22 A.3d at 1024 (stating
generally that pretrial orders denying double jeopardy claims are final orders
for purposes of appeal).
Consistent with the legal precedent recapped in Orie, an order
denying a double jeopardy motion, that makes no finding that the motion is
frivolous, is a collateral order under Rule 313 of the Pennsylvania Rules of
Appellate Procedure:
Rule 313. Collateral Orders
(a) General rule. An appeal may be taken as of right
from a collateral order of an administrative agency or
lower court.
(b) Definition. A collateral order is an order separable
from and collateral to the main cause of action where the
right involved is too important to be denied review and the
question presented is such that if review is postponed until
final judgment in the case, the claim will be irreparably
lost.
Pa.R.A.P. 313 (effective July 4, 2013). Rule 313 is jurisdictional in nature.
Commonwealth v. Blystone, 632 Pa. 260 269,
119 A.3d 306, 312 (2015).
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The Note to Rule 313 states that an established example of a collateral order
is an order denying a pretrial motion to dismiss “based on double jeopardy
in which the court does not find the motion frivolous.” Pa.R.A.P. 313 Note
(citing Orie, supra and
Brady, supra). The planned amendment to the
official note of Rule 313 continues this precedent and states in relevant part
as follows:
Official Note: If an order meets the definition of a collateral
order, it is appealed by filing a notice of appeal or petition
for review. Pa.R.A.P. 313 is a codification of existing case
law with respect to collateral orders.
…
Examples include…an order denying a pre-trial motion
to dismiss on double jeopardy grounds if the trial
court does not also make a finding that the motion
to dismiss is frivolous. See Commonwealth v. Brady,
508 A.2d 286, 289–91 (Pa. 1986) (allowing an
immediate appeal from denial of double jeopardy
claim under collateral order doctrine where trial
court does not make a finding of frivolousness);
Commonwealth v. Orie, 22 A.3d 1021 (Pa. 2011). An
order denying a pre-trial motion to dismiss on
double jeopardy grounds that also finds that the
motion to dismiss is frivolous is not appealable as of
right as a collateral order, but may be appealable by
permission under Pa.R.A.P. 1311(a)(3).
Pa.R.A.P. 313, Official Note (effective August 1, 2020). Bearing the relevant
version of Rule 313 in mind, along with the planned amendment,
Pennsylvania law makes clear that an order denying a double jeopardy
motion, which makes no finding that the motion is frivolous, is a collateral
order under Rule 313 an immediately appealable. See id.
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Instantly, we can answer any jurisdictional query regarding this appeal
by direct reference to Rule 313 of the appellate rules, together with Orie,
supra,Brady, supra and other longstanding and still viable precedent such
as
Haefner, supra;Minnis, supra;Gains, supra;Feaser, supra;Davis,
supra;Teagarden, supra;Wolfe, supra;Breeland, supra;Smith,
supra. Here, the trial court denied Appellant’s pretrial double jeopardy
motion as a matter of statutory law with no finding of frivolousness. Absent
a finding that Appellant’s claim was frivolous, the trial court’s order in this
case was immediately appealable as a collateral order. See Pa.R.A.P. 313
Note (stating “If an order falls under Rule 313, an immediate appeal may be
taken as of right simply by filing a notice of appeal”);
Blystone, supra.
Thus, we can state with confidence that this appeal is properly before us for
resolution.1
____________________________________________
1 After the Orie decision, Pa.R.Crim.P. 587 was also amended, effective July
4, 2013, to govern the procedure in the trial court filing and addressing a
double jeopardy motion to dismiss; it does not, however, govern or control
appellate jurisdiction. See Pa.R.Crim.P. 587. Whether the trial court
followed or deviated from Rule 587 does not deprive this Court of appellate
jurisdiction; our jurisdiction is conferred under Rule 313 of the appellate
rules and enduring precedent. Likewise, Rule 587 defects do not fall under
the aegis of the few non-jurisdictional matters appellate courts can raise sua
sponte, nonexclusively for example: an indigent petitioner’s right to counsel
in a first PCRA proceeding and, relatedly, the failure of the trial court to
conduct a hearing, per Commonwealth v. Guy Thomas Grazier,
552 Pa.
9,
713 A.2d 81 (1998), to ensure a defendant has knowingly and voluntarily
waived his right to counsel for his first PCRA petition; counsel’s failure to file
a court-ordered concise statement under Pa.R.A.P. 1925(b) in criminal
cases; the trial court’s lack of original jurisdiction in specific scenarios; the
(Footnote Continued Next Page)
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With respect to Appellant’s substantive double jeopardy issue, she
argues the state’s current prosecution is for the same conduct as her federal
prosecution. Appellant also submits the interests served by her prior federal
prosecution are substantially the same as the interests being served in the
current state prosecution, i.e., to prevent the dissemination of firearms to
persons, like Mr. Autenrieth, who was not permitted to possess firearms
because of the danger posed. Appellant insists the “identity of interest” can
be drawn from the purposes of the two statutory schemes at issue.
Although Appellant concedes the state charges of conspiracy (and
(Footnote Continued) _______________________
legality of a sentence (which is quasi-jurisdictional to the extent no court has
jurisdiction to impose an illegal sentence); and issues of mootness, but not
ripeness or standing. Thus, absent proper preservation and development,
Rule 587 errors or flaws are subject to the general tenets of waiver on
appeal. See Pa.R.A.P. 302(a) (stating generally: “Issues not raised in the
lower court are waived and cannot be raised for the first time on appeal”);
Pa.R.A.P. 1925(b) (generally waiving issues not properly preserved in court-ordered concise statement); Commonwealth v. Bishop, ___ A.3d ___,
___, 217 A.3d 833, 840 (2019) (reiterating proper issue preservation
“facilitates an orderly system of justice”; consistent and predictable
operation of appellate process depends on issue preservation, which
“enables the courts of original jurisdiction, in particular, to correct mistakes
and affords opposing parties a fair opportunity to respond” even if trial court
is bound by contrary appellate ruling); Commonwealth v. Colavita,
606
Pa. 1, 28-29,
993 A.2d 874, 891 (2010) (reiterating general rule that courts
should not reach claims for first time on appeal, or sua sponte raise claims
or theories not raised in trial court or on appeal).
Here, Appellant first raised her double jeopardy claim in a supplemental brief
and demanded relief as a matter of law. She neither preserved nor raised
any issue regarding the trial court’s method of resolving her claim. Under
the circumstances of this case, any deviations from the Rule 587 procedures
are not properly before us for analysis.
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accomplice liability) are not brought directly under the Uniform Firearms Act,
she contends we should look to the most serious criminal objective of the
alleged collusion to decide the Section 111 test for “substantially different”
interests. To that end, Appellant states her double jeopardy claim demands
more than just a mechanical comparison of the federal and state statutes to
ascertain whether the interests protected in the state’s case are substantially
different from the interests served in the federal case. Appellant maintains
the federal government’s sentencing memorandum makes clear Appellant’s
federal prosecution was not just for providing false information when she
purchased the firearm, but also for creating the conditions which allowed Mr.
Autenrieth to gain possession of her firearm and to use it in his crimes.
Even if the interests of the two prosecutions are not completely coextensive,
Appellant suggests the interests served by the prior federal and current state
prosecutions are substantially alike such that Section 111 and its progeny
precludes the Commonwealth’s sequential prosecution of Appellant.
Appellant concludes the Commonwealth’s prosecution violates her right
against double jeopardy, and this Court should reverse the trial court’s
decision to deny relief on this ground and dismiss the charges against
Appellant. We disagree.
“[T]he question of whether a defendant’s constitutional right against
double jeopardy [would be infringed by a successive prosecution] is a
question of law.” Commonwealth v. Hallman, 67 A.3d 1256, 1260
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(Pa.Super. 2013), appeal denied, 624 Pa. 662,
84 A.3d 1062 (2014). When
presented with a question of pure law, our standard of review is de novo and
our scope of review is plenary. Commonwealth v. Byrd,
209 A.3d 351,
353 (Pa.Super. 2019) (citing Commonwealth v. Vargas,
947 A.2d 777,
780 (Pa.Super. 2008)); Commonwealth v. Kositi,
880 A.2d 648, 652
(Pa.Super. 2005). See also Commonwealth v. Calloway,
675 A.2d 743
(Pa.Super. 1996) (discussing how 18 Pa.C.S.A. § 111 can operate to bar
successive prosecutions, which presents question of law subject to plenary
review).
Importantly, “The prohibition of double jeopardy, as it relates to
subsequent prosecutions, is irrelevant until jeopardy has once attached.”
Commonwealth v. Arelt, 454 A.2d 108, 111 (Pa.Super. 1982). In the
context of a plea deal, jeopardy does not attach to crimes, which were
dropped as part of a guilty plea agreement. Commonwealth v. Tabb,
491
Pa. 372, 376,
421 A.2d 183, 186 (1980), cert. denied,
450 U.S. 1000,
101
S.Ct. 1708,
68 L.Ed.2d 202 (1981) (describing concept of continuing
jeopardy, but holding that concept does not protect defendant against retrial
for crimes he pled guilty to, where plea is voided on appeal through
defendant’s own procurement). By the same token, the dismissal of a
charge in federal court, as part of a plea deal, does not represent a
conviction or an acquittal that might prevent a subsequent prosecution in
state court. Commonwealth v. Schmotzer,
831 A.2d 689 (Pa.Super.
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2003), appeal denied, 577 Pa. 695,
845 A.2d 817 (2004).
As a general rule, “The double jeopardy protections afforded by the
United States and Pennsylvania Constitutions are coextensive and prohibit
successive prosecutions and multiple punishments for the same offense.”
Commonwealth v. Crissman, 195 A.3d 588, 591 (Pa.Super. 2018). This
general rule applies in most cases, with the exception of those cases
involving allegations of prosecutorial misconduct, where our state
constitution provides greater double jeopardy protection than its federal
counterpart.
Minnis, supra at 1052 (recapping increased constitutional
protection against double jeopardy, where defendant alleges prosecutorial
misconduct; outcome of double jeopardy claim depends on nature of alleged
misconduct, i.e., whether misconduct was undertaken in bad faith to
prejudice or harass defendant);
Feaser, supra at 200 (reiterating that our
state constitution extends greater double jeopardy protection in cases of
intentional and egregious prosecutorial misconduct). If, however,
prosecutorial misconduct is not the basis of the defendant’s application for
double jeopardy relief, then we employ a unitary double jeopardy analysis to
the case at hand.
Id.
Our examination of Appellant’s claim involves the intersection of
specific legal doctrines, 18 Pa.C.S.A. § 111, and relevant case law. To
begin, the United States Supreme Court recently upheld longstanding
precedent based on the dual-sovereignty doctrine, which allows separate
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sovereigns to prosecute a defendant for the same conduct, without violating
the defendant’s constitutional double jeopardy protections. Gamble v.
United States, ___ U.S. ___, 139 S.Ct. 1960,
204 L.Ed.2d 322 (2019).
Specifically, the dual-sovereignty doctrine enables a state to prosecute a
defendant under state law even if the federal government has prosecuted
her for the same conduct under federal law.
Id. The rationale for this
doctrine is that the federal and state governments are separate and unique
authorities, each defining its own laws; therefore, even the same conduct
might violate two laws and still comprise two separate offenses.
Id. “A
close look at [our cases] reveals how fidelity to the Double Jeopardy Clause’s
text does more than honor the formal difference between two distinct
criminal codes. It honors the substantive differences between the interests
that two sovereigns can have in punishing the same act.”
Id. at ___,
139
S.Ct. at 1966,
204 L.Ed.2d at ___.
As between the state and the federal jurisdictions or between the
jurisdictions of the different states, Pennsylvania law approaches the test for
successive prosecutions, in the context of double jeopardy, via 18 Pa.C.S.A.
§ 111, which provides:
§ 111. When prosecution barred by former
prosecution in another jurisdiction
When conduct constitutes an offense within the concurrent
jurisdiction of this Commonwealth and of the United States
or another state, a prosecution in any such other
jurisdiction is a bar to a subsequent prosecution in this
Commonwealth under the following circumstances:
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(1) The first prosecution resulted in an acquittal or in a
conviction as defined in section 109 of this title (relating
to when prosecution barred by former prosecution for
same offense) and the subsequent prosecution is based
on the same conduct unless:
(i) the offense of which the defendant was
formerly convicted or acquitted and the offense for
which he is subsequently prosecuted each requires
proof of a fact not required by the other and the law
defining each of such offenses is intended to
prevent a substantially different harm or evil; or
(ii) the second offense was not consummated
when the former trial began.
(2) The former prosecution was terminated, after the
indictment was found, by an acquittal or by a final order
or judgment for the defendant which has not been set
aside, reversed or vacated and which acquittal, final
order or judgment necessarily required a determination
inconsistent with a fact which must be established for
conviction of the offense of which the defendant is
subsequently prosecuted.
18 Pa.C.S.A. § 111 (emphasis added).2 Section 111(1)(i) generally involves
the following study:
The first inquiry is whether…the prosecution which the
Commonwealth proposes to undertake involves the same
conduct for which the individual was prosecuted by the
other jurisdiction. If the answer to this question is yes,
____________________________________________
2 Section 111 derives directly from federal constitutional law, although our
Supreme Court recognized an argument could be made that our state
constitution provides “greater protection” because Section 111 retained the
“same conduct” test, which federal law subsequently overruled. See
Commonwealth v. Jones, 542 Pa. 464, 506 n.25,
668 A.2d 491, 511 n.25
(1996), cert. denied,
519 U.S. 826,
117 S.Ct. 89,
136 L.Ed.2d 45 (1996).
Nevertheless, we have found no cases which directly hold this proposition.
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then we must determine whether each prosecution
requires proof of a fact not required by the other, and
whether the law defining the Commonwealth offense is
designed to prevent a substantially different harm or evil
from the law defining the other jurisdiction’s offense. If
the Commonwealth cannot satisfy both of these requisites,
then the prosecution may not proceed.
Calloway, supra at 747 (emphasis in original). As a preliminary matter, “A
pretrial motion to dismiss a criminal prosecution based upon a double
jeopardy claim imposes certain procedural burdens upon the
Commonwealth. [W]hen a defendant raises a non-frivolous prima facie
claim that a prosecution may be barred under 18 Pa.C.S.A. § 111, the
[Commonwealth] bears a burden to prove by a preponderance of the
evidence either that the ‘same conduct’ is not involved, or that a statutory
exception to the statutory bar on reprosecution applies.” Commonwealth
v. Wetton,
591 A.2d 1067, 1070 (Pa.Super. 1991), affirmed,
537 Pa. 100,
641 A.2d 574 (1994) (emphasis omitted). A bold claim of “different
conduct” will not suffice; the Commonwealth must specifically address this
issue in the pretrial litigation.
Id. On the other hand, the “same conduct”
inquiry requires more than just a similarity of charges in the current and
prior prosecutions.
Id. A “mere overlap in proof between two prosecutions
does not establish a double jeopardy violation.” Commonwealth v.
Caufman,
541 Pa. 299, 304,
662 A.2d 1050, 1052 (1995).
When a conspiracy charge is at issue, the focus of a “same conduct”
analysis under Section 111 is the ultimate object or purpose of the
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agreement, which might not be the same in both prosecutions. Breeland,
supra at 1362 (reasoning federal prosecution for drug distribution
conspiracy involved acts which were only peripherally implicated in state
prosecution for conspiracy to kill, assault, and/or rob specific individuals;
Section 111 did not bar state prosecution). Section 111 does not bar a
subsequent conspiracy prosecution if the first prosecution was based on
different conduct.
Id.
Even before its passage, the concepts underlying Section 111 were
subject to a difficult interpretative evolution, beginning with a very broad or
descriptive view of the conduct assessed (and the jurisdictional interest
involved), whereas later cases employed a more analytical perspective.
Compare Commonwealth v. Mills, 447 Pa. 163,
286 A.2d 368 (1971)
(plurality) (holding defendant could not be prosecuted for bank robbery and
firearms offenses in state court, after his guilty plea to same bank robbery
and assault in federal court, where state interests were sufficiently protected
in federal prosecution) with Jones, supra (holding defendant’s conviction in
federal court for conspiracy to possess with intent to distribute cocaine in
ongoing criminal enterprise did not preempt state prosecution of defendant
for murder and conspiracy to commit murder, although several overt acts
alleged in federal case were introduced in state prosecution to prove motive
for murder, where conspiracy surrounding murder had been deleted from
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federal indictment and trial).3
If the same conduct is involved in the sequential prosecutions, then we
____________________________________________
3 See, e.g., Commonwealth v. Traitz, 528 Pa. 305,
597 A.2d 1129 (1991)
(holding prosecution for violations of federal Racketeer Influenced and
Corrupt Organizations Act (RICO) barred subsequent prosecution under
counterpart state statute of Corrupt Organizations Act, where both cases
involved same pattern of racketeering activity or same conduct for Section
111 purposes); Commonwealth v. Frank Grazier,
481 Pa. 622,
393 A.2d
335 (1978) (holding prior acquittal in federal court of mail fraud related to
arson scheme barred subsequent state trial for substantive crime of arson,
where both cases were based on substantially same evidence and federal
prosecution in case largely vindicated state’s interests); Commonwealth v.
Savage,
566 A.2d 272 (Pa.Super. 1989) (holding defendant’s federal
conviction for conspiracy barred state conspiracy charges, where relevant
overt acts in federal conspiracy were series of bulk purchases of cocaine for
resale and relevant overt act in state conspiracy was single sale of smaller
bulk amount of cocaine for resale; Commonwealth failed to prove cases were
based on separate conspiracies); Commonwealth v. Mascaro,
394 A.2d
998 (Pa.Super. 1978) (holding guilty plea in federal court to mail fraud and
false statements, related to defendant’s common and continuing scheme of
overcharging on service contract, barred state prosecution for theft by
deception, deceptive business practices, unsworn falsification to authorities,
and criminal conspiracy, where state charges were based on same conduct
of overcharging on contract; all statutes were aimed at preventing theft and
fraud, so federal prosecution protected state interests). But see
Breeland,
supra (holding federal prosecution for conspiracy to distribute illegal drugs
did not bar state prosecution for conspiracy to kill, assault, or rob two rival
drug dealers, because each prosecution was based on different conduct and
state conspiracy prosecution only peripherally implicated drug distribution).
Under the “same conduct” test for 18 Pa.C.S.A. § 110, this Court has held
that statutory double jeopardy does not bar successive prosecutions if the
offenses are based on different acts, even if the offenses occur close in time,
as long as there is no “substantial duplication” of factual or legal issues
presented. See, e.g., Commonwealth v. Jefferson, ___ A.3d ___,
2019
PA Super 302 (filed October 9, 2019); Commonwealth v. Miller,
198 A.3d
1187 (Pa.Super. 2018); Commonwealth v. Kolovich,
170 A.3d 520
(Pa.Super. 2017), appeal denied,
645 Pa. 689,
182 A.3d 429 (2018);
Commonwealth v. Hockenbury,
667 A.2d 1135 (Pa.Super. 1995),
affirmed,
549 Pa. 527,
701 A.2d 1334 (1997).
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next assess whether one prosecution requires proof of a fact, which the
other prosecution does not require; we do this evaluation by comparing the
elements of the statutes involved. Jones, supra at 506, 668 A.2d at 511
(utilizing historically espoused “same elements” test of Blockburger v.
United States, 284 U.S. 299,
52 S.Ct. 180,
76 L.Ed. 306 (1932) and
United States v. Dixon,
509 U.S. 688,
113 S.Ct. 2849,
125 L.Ed.2d 556
(1993)).
The federal statute relevant to this case provides as follows:
§ 922. Unlawful acts
(a) It shall be unlawful−
…
(6) for any person in connection with the acquisition or
attempted acquisition of any firearm or ammunition
from a licensed importer, licensed manufacturer,
licensed dealer, or licensed collector, knowingly to make
any false or fictitious oral or written statement or to
furnish or exhibit any false, fictitious, or misrepresented
identification, intended or likely to deceive such
importer, manufacturer, dealer, or collector with respect
to any fact material to the lawfulness of the sale or
other disposition of such firearm or ammunition under
the provisions of this chapter
18 U.S.C.A. § 922(a)(6). Section 924 is the companion penalties provision
to Section 922(a)(6) and states:
§ 924. Penalties
(a)(1) Except as otherwise provided in this subsection,
subsection (b), (c), (f), or (p) of this section, or in section
929, whoever─
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(A) knowingly makes any false statement or
representation with respect to the information required
by this chapter to be kept in the records of a person
licensed under this chapter or in applying for any
license or exemption or relief from disability under the
provisions of this chapter;
…
shall be fined under this title, imprisoned not more than
five years, or both.
(2) Whoever knowingly violates subsection (a)(6)…of
section 922 shall be fined as provided in this title,
imprisoned not more than 10 years, or both.
18 U.S.C. § 924(a)(1)(A), (a)(2).
Pennsylvania’s conspiracy statute states in relevant part:
§ 903. Criminal conspiracy
(a) Definition of conspiracy.─A person is guilty of
conspiracy with another person or persons to commit a
crime if with the intent of promoting or facilitating its
commission [she]:
(1) agrees with such other person or persons that they
or one or more of them will engage in conduct which
constitutes such crime or an attempt or solicitation to
commit such crime[.]
18 Pa.C.S.A. § 903(a)(1). “The material elements of conspiracy are: ‘(1) an
intent to commit or aid in an unlawful act, (2) an agreement with a co-
conspirator and (3) an overt act in furtherance of the conspiracy.’ An ‘overt
act’ means an act done in furtherance of the object of the conspiracy. See
18 Pa.C.S. § 903(e)….” Gross, supra at 393,
101 A.3d at 34.
The essence of a criminal conspiracy is a common
understanding, no matter how it came into being, that a
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particular criminal objective be accomplished. Therefore, a
conviction for conspiracy requires proof of the existence of
a shared criminal intent. An explicit or formal agreement to
commit crimes can seldom, if ever, be proved and it need
not be, for proof of a criminal partnership is almost
invariably extracted from the circumstances that attend its
activities. Thus, a conspiracy may be inferred where it is
demonstrated that the relation, conduct, or circumstances
of the parties, and the overt acts of the co-conspirators
sufficiently prove the formation of a criminal confederation.
The conduct of the parties and the circumstances
surrounding their conduct may create a web of evidence
linking the accused to the alleged conspiracy beyond a
reasonable doubt. Even if the conspirator did not act as a
principal in committing the underlying crime, [she] is still
criminally liable for the actions of his co-conspirators taken
in furtherance of the conspiracy.
Commonwealth v. Johnson, 180 A.3d 474, 479 (Pa.Super. 2018), appeal
denied, ___ Pa. ___,
205 A.3d 315 (2019) (quoting Commonwealth v.
Murphy,
795 A.2d 1025, 1038 (Pa.Super. 2002), affirmed,
577 Pa. 275,
844 A.2d 1228 (2004)).
Accomplice liability in Pennsylvania is defined as follows:
§ 306. Liability for conduct of another; complicity
(a) General rule.─A person is guilty of an offense if it is
committed by [her] own conduct or by the conduct of
another person for which [she] is legally accountable, or
both.
(b) Conduct of another.─A person is legally
accountable for the conduct of another person when:
…
(3) [she] is an accomplice of such other person
in the commission of the offense.
(c) Accomplice defined.─A person is an accomplice of
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another person in the commission of an offense if:
(1) with the intent of promoting or facilitating the
commission of the offense, [she]:
(i) solicits such other person to commit it; or
(ii) aids or agrees or attempts to aid such other
person in planning or committing it…
…
(g) Prosecution of accomplice only.─An accomplice
may be convicted on proof of the commission of the
offense and of [her] complicity therein, though the person
claimed to have committed the offense has not been
prosecuted or convicted or has been convicted of a
different offense or degree of offense or has an immunity
to prosecution or conviction or has been acquitted.
18 Pa.C.S.A. § 306(a), (b)(3), (c)(1)(i-ii), (g).
An actor and his accomplice share equal responsibility for
the criminal act if the accomplice acts with the intent of
promoting or facilitating the commission of an offense and
agrees or aids or attempts to aid such other person in
either the planning or the commission of the offense.
There is no minimum amount of assistance or contribution
requirement, for [i]t has long been established…that intent
of the parties is a consideration essential to establishing
the crime of aiding and abetting a felony. Thus, even non-substantial assistance, if rendered with the intent of
promoting or facilitating the crime, is sufficient to establish
complicity. Accomplice liability does not create a new
or separate crime; it merely provides a basis of
liability for a crime committed by another person.
Gross, supra at 395,
101 A.3d at 35 (internal citations omitted) (emphasis
added).
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Conspiracy and accomplice liability are essentially different legal
concepts with diverse requirements for mental culpability. Commonwealth
v. Roebuck, 612 Pa. 642, 657,
32 A.3d 613, 622 (2011). “[A]n accomplice
is equally criminally liable for the acts of another if [the accomplice] acts
with the intent of promoting or facilitating the commission of an offense and
agrees, aids, or attempts to aid such other person in either planning or
committing that offense.” Commonwealth v. Rios,
554 Pa. 419, 427,
721
A.2d 1049, 1053 (1998). Unlike conspiracy, the term “commission of the
offense” in the accomplice context focuses on the conduct of the accomplice,
not the result of the offense.
Roebuck, supra at 652,
32 A.3d at 619.
“This diffuses any impression that an accomplice must always intend results
essential to the completed crime.”
Id. (reasoning Section 306 of
Pennsylvania Crimes Code derives from Model Penal Code and does not
require accomplice necessarily to intend to cause prohibited result;
culpability can result from something less than purposeful, such as
recklessness; holding defendant could be convicted of third-degree murder
under complicity theory). “Again, accomplice liability does not require the
defendant to have the conscious objective to cause a particular result when
such an outcome is an element of the offense.”
Id. at 658,
32 A.3d at 623.
Accomplice liability simply requires the defendant to have the mental state
necessary for the commission of the crime, i.e., aiding the principal.
Id. at
659,
32 A.3d at 624.
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The final step in the Section 111 inquiry involves whether the law
defining the Commonwealth offense is designed to prevent a substantially
different harm or evil than the law defining the other jurisdiction’s offense.
Calloway, supra. “If the separate statutes are intended to prevent a
substantially different harm or evil, then the statutes are meant to protect
substantially different government interests.” Wetton, supra at 1072. A
prior prosecution of the same conduct does not automatically vindicate all
governmental interests. Id.
The primary interest of 18 U.C.S.A. § 922(a)(6) is to keep firearms out
of the hands of prohibited purchasers and to protect the integrity of the
federal record-keeping requirements needed to assist law enforcement in
investigating serious crimes through the tracing of guns to buyers.
Abramski v. United States, 573 U.S. 169,
134 S.Ct. 2259,
189 L.Ed.2d
262 (2014). “Before a federally licensed firearms dealer may sell a gun, the
would-be purchaser must provide certain personal information, show photo
identification, and pass a background check. To ensure the accuracy of
those submissions, a federal statute imposes criminal penalties on any
person who, in connection with a firearm’s acquisition, makes false
statements about ‘any fact material to the lawfulness of the sale.’” Id. at
171,
134 S.Ct. at 2262-63,
189 L.Ed.2d at 171 (stating main interest of
statute is to limit gun sales to bona fide purchasers and protect record-
keeping purpose of statute; extending statute to “straw purchasers”).
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Under Pennsylvania law, “The evil against which conspiracy statutes
are directed is the illegal agreement or combination for criminal purposes.
Separate underlying predicate acts are merely circumstantial proof of the
agreement.” Breeland, supra at 1362 (quoting
Savage, supra at 284)
(emphasis omitted). “[C]onspiracy is a continuing course of conduct which
terminates when the crime or crimes which are its object are committed or
the agreement that they be committed is abandoned by the defendant and
by those with whom [s]he conspired[.]” 18 Pa.C.S.A. § 903(g)(1). In the
context of “substantially different interests,” to support a conclusion that the
federal prosecution adequately protected the state’s interests, it is not
enough to say the statutes involved are all intended to prevent the same
general area of crime.
Calloway, supra at 748. Instead, “An examination
of the specific harm or evil targeted by the statute must be conducted, as
the evil to be deterred is one of the pivotal considerations in the Mills
interest analysis.” Wetton, supra at 1072.
Instantly, Appellant lived and worked in New Jersey, but she decided
to obtain a Pennsylvania driver’s license and use Mr. Autenrieth’s address as
her own, so she could purchase a firearm in Pennsylvania. That same day,
Appellant purchased a firearm at a Berks County store, where she used her
new Pennsylvania driver’s license with Mr. Autenrieth’s address to complete
the federal firearm paperwork.
The Commonwealth charged Appellant with criminal conspiracy (as co-
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conspirator to firearms not to be carried without a license), accomplice
liability (related to possession of a firearm prohibited), and accomplice
liability (related to lending or giving of firearms prohibited). Following
litigation of Appellant’s initial omnibus pretrial motions back in 2010, the
trial court dismissed the state claims against Appellant on the ground of
improper venue. While that decision was pending on appeal in the state
appellate Courts, the federal authorities charged Appellant with making false
statements to a federal firearms licensee and aiding and abetting a
prohibited person to possess a firearm. Pursuant to an agreement,
Appellant pled guilty only to the federal charge of making false statements,
and the aiding and abetting charge was dropped. Therefore, jeopardy did
not attach to the aiding and abetting charge. See Tabb, supra;Schmotzer, supra.
After our Supreme Court remanded this case to the trial court,
Appellant filed a new pretrial motion to bar prosecution on the basis of
double jeopardy, which the court denied. Under the dual sovereignty
doctrine, Appellant’s wrongdoings constituted separate offenses under
federal and state law. See Gamble, supra. Nevertheless, our analysis
does not end here.
The threshold inquiry under Section 111 is whether Appellant’s state
prosecution is based on the “same conduct” as her federal prosecution.
According to the background information for the written guilty plea
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agreement in the federal case, Appellant was charged with making false
statements to a federal firearms licensee when Appellant completed an ATF
Form 4473 during the purchase of a firearm in Pennsylvania on May 29,
2009. Appellant provided a temporary Pennsylvania photo driver’s license
and auto insurance card she had obtained earlier that day to a firearms
dealer, as proof of her Pennsylvania residence. When Appellant filled out the
ATF Form 4473, she listed Mr. Autenrieth’s address as her residence, when
she knew that information was false, because she did not actually live or
reside at Mr. Autenrieth’s place in Pennsylvania, nor was she a Pennsylvania
resident. Appellant knew at the time of gun purchase that she was a New
Jersey resident who lived with her parents in their New Jersey home, where
she had her own room, kept most of her clothes, and received her mail.
Nevertheless, Appellant signed the form swearing the information she had
provided was true, correct, and complete.
What Appellant did after acquiring the firearm, such as storing the
firearm at Mr. Autenrieth’s house or how she allowed him access to the
firearm and how he used the firearm, was not prosecuted. That information
was intended solely as background for the seriousness of the fraud charge
prosecuted. To be precise, the federal government expressly stated: “The
government has no evidence that [Appellant] knew that [Mr.] Autenrieth
would engage in this criminal episode or use the gun in this manner.” (See
Attachment Five to [Appellant’s] Supplemental Omnibus Pretrial Motion-
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Motion to Dismiss—Double Jeopardy, Collateral Estoppel, 18 Pa.C.S.A. §
111, and Speedy Trial (Government’s Sentencing Memorandum, filed
4/19/11, at 4).) The federal prosecutor included these facts (a) to
demonstrate that while Appellant’s offense was not a violent crime, the
ultimate consequences were both violent and deadly; and (b) to ensure a
sentence that would deter others from making false statements on the ATF
Form 4473. (Id. at 7-9). See, e.g., United States v. Thomas, 760 F.3d.
879 (2014), cert. denied, ___ U.S. ___,
135 S.Ct. 1013,
190 L.Ed.2d 883
(2015) (stating district court may consider uncharged or dismissed conduct
as relevant factor for sentencing purposes so long as court does not impose
sentence above statutory maximum for crime of conviction). The federal
sentencing memorandum made clear that the government prosecuted
Appellant solely for the fraudulent purchase of the firearm under federal law,
and the federal court sentenced Appellant solely on that conviction.
Appellant’s illegal purchase of the firearm is not the conduct that
actually led to Mr. Autenrieth’s appropriation of the firearm. Appellant’s
reliance on the federal sentencing memorandum, to insist the
Commonwealth is prosecuting Appellant for the same conduct is both
conclusory and misguided. The Commonwealth did not charge Appellant
with Pennsylvania’s counterpart statute under 18 Pa.C.S.A. § 6111(g)(4)
(stating: “Any person, purchaser or transferee commits a felony of the third
degree if, in connection with the purchase, delivery or transfer of a firearm
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under this chapter, he knowingly and intentionally: (i) makes any materially
false oral statement; (ii) makes any materially false written statement,
including a statement on any form promulgated by Federal or State
agencies; or (iii) willfully furnishes or exhibits any false identification
intended or likely to deceive the seller, licensed dealer or licensed
manufacturer”). Significantly, our Supreme Court already acknowledged:
The record is sufficient to show a criminal conspiracy
between [Mr.] Autenrieth and [Ms.] Gross, under which
[Ms.] Gross would purchase a firearm for the purpose of
providing [Mr.] Autenrieth with access to a gun he was
otherwise prohibited from possessing. Because of this
criminal agreement, [Mr.] Autenrieth was able to use the
firearm on two occasions, including the day he took the
gun and used it in Monroe County. The trial court
determined the conspiracy agreement ended May 29,
2009, at the time [Ms.] Gross left the firearm with [Mr.]
Autenrieth at his residence in Northampton County.
However, the trial court failed to appreciate that the object
of the conspiracy articulated by the charges was to provide
[Mr.] Autenrieth with unlimited possession and
unconditional access to a firearm, and such was not
completed or terminated May 29, 2009, but continued as
long as [Ms.] Gross allowed [Mr.] Autenrieth to possess
her gun. …
[Ms.] Gross did not object or withdraw her authorization.
[Mr.] Autenrieth’s taking the firearm and carrying it
constituted the overt act, and that possessory act did not
cease when he crossed into Monroe County. Accordingly,
the trial court erred in dismissing the conspiracy charges,
as the record was sufficient to establish [Ms.] Gross, as co-conspirator, could be found vicariously liable for [Mr.]
Autenrieth’s possession of the firearm….
The trial court also erred in finding dismissal was
warranted for the counts charging [Ms.] Gross as an
accomplice in the crimes of illegal possession of a firearm
and lending or giving a firearm. The trial court found [Ms.]
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Gross could not be an accomplice in Monroe County
because [Mr.] Autenrieth, not [Ms.] Gross, possessed the
gun there. Also, both the trial court and the Superior
Court concluded [Ms.] Gross could not be charged as an
accomplice because “there is no evidence that she
intended to aid or promote [Mr.] Autenrieth’s shootout
with the police.” Commonwealth v. Gross, No. 2006
EDA 2010, unpublished memorandum at 7, 2011 WL
5111048 (Pa.Super. filed July 13, 2011)…. This factual
statement may be true, but it is irrelevant, reflecting a
misapprehension of the charges filed. [Ms.] Gross was
never charged as an accomplice in the shooting; rather,
she was charged as an accomplice in the illegal possession
of a firearm, and the evidence offered was sufficient to
prove she could be convicted as an accomplice to such
illegal possession….
Gross, supra at 393-95,
101 A.3d at 34-35 (some internal citations
omitted).
When Appellant raised a “same conduct” argument on remand in the
context of double jeopardy, the Commonwealth opposed the motion to
dismiss by: (1) referring to the Supreme Court’s decision which is law of the
case; (2) stating Appellant provided no real analysis and misstated
Pennsylvania law on double jeopardy; (3) stating Appellant failed to analyze
or compare the facts underlying the federal charge with the facts underlying
the pending state charges; and (4) concluding the evidence used in the
federal case was only peripherally related to the state case against
Appellant. See Caufman, supra (emphasizing mere overlap of facts in
successive prosecutions will not establish double jeopardy violation);
Breeland, supra (stating ultimate object or purpose of agreement might
not be equivalent in both prosecutions). The certified record supports the
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Commonwealth’s position on all points. Thus, we conclude the federal and
state prosecutions in this case are not based on the same conduct; and
Appellant’s Section 111 double jeopardy claim fails at the outset.
In an abundance of caution, we will give some attention to the
remaining Section 111 inquiries (same-elements prong and the substantially
different-interests prong). Regarding the same elements test of Section
111, we employ the Blockburger and Dixon analysis. See Jones, supra.
The only federal statute at issue for purposes of this double jeopardy
analysis involves the making of false or fictitious oral or written statements
or furnishing or exhibiting any false, fictitious, or misrepresented
identification to a federal firearms licensee to acquire a firearm, where the
aiding and abetting charge was dropped as part of the plea agreement and
jeopardy did not attach to that offense. See Tabb, supra;Arelt, supra.
Section 922(a)(6) requires proof that a defendant knowingly made a false
statement to a federally licensed arms dealer. None of the state statutes at
issue contains this fraud element. Compare
18 U.S.C. § 922(a)(6) with 18
Pa.C.S.A. § 903 (§ 6106 related) and § 306 (§§ 6105 and 6115 related).
Likewise, the state charges contain elements not included in the federal
prosecution, namely, an illegal agreement for criminal purposes
(conspiracy), or promotion or intent to aid in the commission of the
underlying state offenses (accomplice liability) related to the unlicensed
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carrying, possession, and lending of firearms.4 See 18 Pa.C.S.A. §§ 306,
____________________________________________
4 Section 6106 states in relevant part:
§ 6106. Firearms not to be carried without a license
(a) Offense defined.−
(1) Except as provided in paragraph (2), any person
who carries a firearm in any vehicle or any person who
carries a firearm concealed on or about his person,
except in his place of abode or fixed place of business,
without a valid and lawfully issued license under this
chapter commits a felony of the third degree.
(2) A person who is otherwise eligible to possess a
valid license under this chapter but carries a firearm in
any vehicle or any person who carries a firearm
concealed on or about his person, except in his place of
abode or fixed place of business, without a valid and
lawfully issued license and has not committed any other
criminal violation commits a misdemeanor of the first
degree.
18 Pa.C.S.A. § 6106(a)(1)-(2). The relevant portion of Section 6105 is as
follows:
§ 6105. Persons not to possess, use, manufacture,
control, sell or transfer firearms
(a) Offense defined.−
(1) A person who has been convicted of an offense
enumerated in subsection (b), within or without this
Commonwealth, regardless of the length of sentence or
whose conduct meets the criteria in subsection (c) shall
not possess, use, control, sell, transfer or manufacture or
obtain a license to possess, use, control, sell, transfer or
manufacture a firearm in this Commonwealth.
…
(Footnote Continued Next Page)
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903; Murphy, supra. Thus, the prior federal and the current state charges
require different elements of proof. In other words, proof of the federal
offense did not establish a commission of the state offenses, and the state
offenses will not necessitate relitigating the federal fraud offense. See 18
Pa.C.S.A. § 111(1)(i); Calloway, supra. A mere overlap of some of the
facts in the two prosecutions does not establish a double jeopardy violation.
(Footnote Continued) _______________________
(c) Other persons.−In addition to any person who has
been convicted of any offense listed under subsection (b),
the following persons shall be subject to the prohibition of
subsection (a):
…
(6) A person who is the subject of an active final
protection from abuse order issued pursuant to 23 Pa.C.S.
§ 6108, is the subject of any other active protection from
abuse order issued pursuant to 23 Pa.C.S. § 6107(b),
which provided for the relinquishment of firearms during
the period of time the order is in effect…. This prohibition
shall terminate upon the expiration or vacation of the
order or portion thereof relating to the relinquishment of
firearms.
18 Pa.C.S.A. § 6105(a)(1), (c)(6). Section 6115 in pertinent part states:
§ 6115. Loans on, or lending or giving firearms
prohibited
(a) Offense defined.—No person shall make any loan
secured by mortgage, deposit or pledge of a firearm, nor,
except as provided in subsection (b), shall any person lend
or give a firearm to another or otherwise deliver a firearm
contrary to the provisions of this subchapter.
18 Pa.C.S.A. § 6115(a).
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See Caufman, supra.
Finally, the law defining the Commonwealth’s charges is designed to
avert a substantially different harm or evil than the federal offense. See 18
Pa.C.S.A. § 111(1)(i); Calloway, supra. Section 922(a)(1) seeks to limit
gun sales to bona fide purchasers and to protect the integrity of the federal
record-keeping requirements needed to assist law enforcement in
investigating serious crimes through the tracing of guns to buyers. See
Abramski, supra. In contrast, the state charge of conspiracy is directed at
the illegal agreement or combination for criminal purposes, in this case the
illegal possession, use, and lending of firearms.5 See 18 Pa.C.S.A. § 903;
Breeland, supra. The state’s accomplice liability seeks to prevent the aid,
solicitation, or agreement in the planning or commission of a related criminal
offense, but it does not necessarily involve the ultimate result of the related
offense. See 18 Pa.C.S.A. § 306;
Cox, supra. Importantly, the
____________________________________________
5 Section 6106 seeks to prevent the unlicensed possession of a firearm in
this Commonwealth. Commonwealth v. Toomer,
159 A.3d 956, 960
(Pa.Super. 2017), appeal denied,
642 Pa. 431,
170 A.3d 979 (2017). The
purpose of Section 6105 is to “protect the public from convicted criminals
who possess firearms….” Commonwealth v. Gillespie,
573 Pa. 100, 105,
821 A.2d 1221, 1224 (2003), cert. denied,
540 U.S. 972,
124 S.Ct. 442,
157
L.Ed.2d 320 (2003). See also Commonwealth v. Williams,
151 A.3d
1113, 1116 (Pa.Super. 2016), appeal denied,
641 Pa. 737,
169 A.3d 568
(2017) (stating: “The clear purpose of [Section] 6105 is to protect the public
from convicted criminals who possess firearms, regardless of whether the
previous crimes were actually violent...”). Section 6115 aims to prohibit all
lending of firearms, with some exceptions, even if the lender legally
possesses the firearm. Commonwealth v. Corradino,
588 A.2d 936, 940
(Pa.Super. 1991).
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Commonwealth did not charge Appellant with a violation of the correlative
state offenses of Section 6116 (relating to false evidence of identity) or
Section 4904 (relating to unsworn falsification to authorities).
We cannot step back so far that we lose proper perspective and blur
the differences among all of the statutes at issue simply because the
statutes are related to firearms. As between the federal statute and the
Pennsylvania statutes at issue, each requires proof of a fact the other does
not and each intends to prevent a substantially different harm or evil, even
though the statutes involve firearms generally. Said another way, the
federal and state statutes prosecuted might have overlapping purposes but
their interests are plainly distinct. Thus, we decline to disturb the court’s
ruling on Appellant’s motion to dismiss. See 18 Pa.C.S.A. § 111(1)(i);
Calloway, supra.6
Based upon the foregoing, we have interlocutory jurisdiction under
Rule 313 of the appellate rules over this timely appeal from the order
____________________________________________
6 Due to our disposition, we decline to distinguish or overrule Williams,
supra.
Further, the federal government dropped the charge of aiding and abetting
as part of Appellant’s plea deal in federal court, so the Commonwealth is not
“collaterally estopped” from charging Appellant under the theories of
conspiracy and accomplice liability related to Mr. Autenrieth’s access to or
possession and use of Appellant’s firearm, as these issues played no part in
her federal guilty plea. See
Teagarden, supra at 171 (stating collateral
estoppel will bar subsequent prosecution only if issue in both prosecutions is
sufficiently similar and sufficiently material, and issue was litigated and
necessarily decided in first action).
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denying Appellant’s double jeopardy motion to dismiss. We further hold that
the pending state charges in this case are not based on the “same conduct”
as the prior federal prosecution, so Appellant’s Section 111 double jeopardy
claim fails at the outset. Appellant’s Section 111 claim also fails the
remaining prongs of the statutory test. As presented, the trial court
correctly denied Appellant’s motion to dismiss on double jeopardy grounds.
Accordingly, we affirm, albeit on a slightly different basis, and remand for
further proceedings. See Commonwealth v. Reese, 31 A.3d 708, 727
(Pa.Super. 2011) (en banc) (stating appellate court may affirm order of trial
court on any basis if ultimate decision is correct).
Order affirmed; case remanded for further proceedings. Jurisdiction is
relinquished.
President Judge Emeritus Bender, Judge Bowes, Judge Panella, Judge
Lazarus, and Judge Olson join this opinion.
Judge Olson files a concurring opinion in which President Judge
Emeritus Bender and Judge Bowes join.
Judge Stabile files a dissenting opinion in which Judge Shogan and
Judge Dubow join.
Judge Dubow files a dissenting opinion in which Judge Shogan and
Judge Stabile join.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/29/2020
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