Com. v. Larue, L., III

J-A25015-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

LENNE LARUE, III,

Appellant No. 77 MDA 2016

Appeal from the Order Entered December 21, 2015
In the Court of Common Pleas of Franklin County
Criminal Division at No(s): CP-28-CR-0000536-2015, CP-28-CR-0000564-
2015, CP-28-CR-0000565-2015

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, J., and STEVENS, P.J.E.*

MEMORANDUM BY SHOGAN, J.: FILED JANUARY 27, 2017

Appellant, Lenne LaRue, III, appeals from the order denying his

motion to quash and/or dismiss criminal informations in the above-captioned

matters. We affirm.

The trial court set forth the underlying facts of this case as follows:

Officer Jason Wolfgang of the Washington Township Police
Department was dispatched to the Walmart in Washington
Township, Franklin County, Pennsylvania for the report of a retail
theft on August 28, 2014. Upon arriving at Walmart, Officer
Wolfgang came into contact with [Appellant] who was in the
computer aisle. Based upon information received from Holly
Martin,2 Officer Wolfgang placed [Appellant] under arrest. At the
time Officer Wolfgang arrested [Appellant], he was unaware of
any criminal investigations by the Pennsylvania State Police
involving [Appellant]. However, Officer Wolfgang was aware of
____________________________________________

*
Former Justice specially assigned to the Superior Court.
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another investigation being conducted by Officer Schmidt of the
Washington Township Police Department; said investigation
involved an alleged retail theft by [Appellant].
2
Holly Martin is a Loss Prevention Officer for
Walmart.

Officer Wolfgang transported [Appellant] to the
Washington Township Police Department to interview him. At
some point during or shortly after his interview of [Appellant],
Officer Wolfgang learned of a pending investigation by the
Pennsylvania State Police (PSP). Trooper Cox3 of PSP arrived at
the Washington Township Police Department and interviewed
[Appellant] in relation to the PSP investigation. Officer Wolfgang
did not participate in the interview of [Appellant] by Trooper
Cox, nor was he aware at the time of the exact nature of the PSP
investigation, i.e., he was unaware of the victims/witnesses, nor
was he aware of a pending Driving Under the Influence charge.
Officer Wolfgang also did not speak with anyone in the District
Attorney’s Office at the time he filed charges. The investigations
by Officers Wolfgang and Schmidt resulted in charges being
brought against [Appellant]; those charges were docketed and
disposed of at CP-28-CR-1708-2014 & CP-28-CR-1709-2014.
3
Trooper Cox was conducting an investigation with
Trooper Sebastian; Trooper Sebastian testified at the
hearing on November 23, 2015.

On August 28, 2014, Trooper Sebastian was on duty with
his coach, Trooper Cox. He and Trooper Cox received a dispatch
to respond to Sunrise Electronics for an active burglary alarm at
approximately 11:00 p.m. Sunrise Electronics is located in
Guilford Township, Franklin County, Pennsylvania. While
investigating the burglary alarm, the Troopers discovered a
barcode next to the door of Sunrise Electronics. The barcode
was from Walmart; the Troopers traveled to Walmart in Guilford
Township4 to investigate further.
4
Sunrise Electronics is located within walking
distance of the Walmart in Guilford Township.

Upon arriving at Walmart, the Troopers consulted with the
shift manager. The shift manager showed the Troopers
surveillance video of an individual the manager described as

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“suspicious.” Upon viewing the video, the Troopers observed the
person, later identified by the Troopers as [Appellant], arrive
without a jacket. The video also revealed [Appellant] attempting
to countermand security measures in the electronics section.
The troopers also observed [Appellant] leave the store with a
jacket/hoodie that he had not paid for.

While conducting the investigation, the Troopers received a
report that an individual had just been arrested for Retail Theft
at the Washington Township Walmart. The Troopers traveled to
the Walmart in Washington Township and viewed their
surveillance video. The Troopers determined that the individual
in the Washington Township video was the same person as the
Guilford Township video. The Troopers then proceeded to the
Washington Township Police Department and interviewed
[Appellant]. During the interview, [Appellant] made the
Troopers aware of the pending DUI investigation in the Borough
of Chambersburg.

Both Officer Wolfgang and Trooper Sebastian indicated
that they did not discuss their cases with the District Attorney’s
Officer prior to filing charges. Officer Wolfgang prepared his
charges against [Appellant] the night of [Appellant’s] arrest and
submitted them for filing at that time. Officer Wolfgang further
testified that it may have been a few days until the charges were
processed through the department and at the Magisterial District
Judge.

Trooper Sebastian testified that he was never instructed by
the District Attorney’s Office to withhold filing of his charges. He
testified that he prepared his incident report, prepared the
relevant police criminal complaint, and turned everything over to
Trooper Cox for review on or about September 8, 2015. There
was a review process within the State Police barracks for the
charges, and after approval by Trooper Sebastian’s supervisors,
the charges were submitted for filing to the Magisterial District
Judge. The charges were filed on September 22, 2015. At no
time did Trooper Sebastian consider delaying the filing of his
charges in order to increase the grading of any charged offense.

Trial Court Opinion, 12/21/15, at 2-4.

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At CP-28-CR-536-2015, Appellant was charged with three counts of

DUI and one count of driving during suspension for an incident that allegedly

occurred in the afternoon of August 27, 2014, in Chambersburg, Franklin

County. At CP-28-CR-564-2015, Appellant was charged with retail theft for

conduct that allegedly occurred on August 28, 2014, at the Walmart in

Guilford Township, Franklin County. At CP-28-CR-565-2015, Appellant was

charged with criminal attempt-burglary and criminal attempt-criminal

trespass for conduct that allegedly occurred on August 28, 2014, at the

Sunrise Computer & Electronics Store in Guilford Township, Franklin County.

The criminal informations for these three cases were filed on April 24, 2015.

Appellant filed a motion to quash/dismiss the cases at CP-28-CR-536-

2015, CP-28-CR-564-2015, and CP-28-CR-565-2015, claiming that the

compulsory joinder rule set forth at 18 Pa.C.S. § 110 required the

Commonwealth to join for one trial these three charges with the charges

filed by Officers Wolfgang and Schmidt at CP-28-CR-1708-2014 and CP-28-

CR-1709-2014. The trial court held a hearing on Appellant’s pretrial motion

on November 23, 2015. On December 21, 2015, the trial court entered an

order denying Appellant’s pretrial motion to quash/dismiss the informations.

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This timely appeal followed. Both Appellant and the trial court have

complied with Pa.R.A.P. 1925.1

Appellant presents the following issues for our review:

I. WHETHER APPELLANT’S CURRENT PROSECUTION IS
BARRED BY THE COMPULSORY JOINDER RULE CODIFIED IN
18 Pa.C.S.A §110(1)(i) BECAUSE IT IS FOR OFFENSES
WHICH APPELLANT COULD HAVE BEEN CONVICTED OF IN A
PREVIOUS CONVICTION DOCKETED AT 1708-2014 AND
1709-2014?

II. WHETHER APPELLANT’S CURRENT PROSECUTION IS
BARRED BY THE COMPULSORY JOINDER RULE CODIFIED IN
18 Pa.C.S.A § 110(1)(iI) [sic] BECAUSE IT IS FOR CONDUCT
THAT AROSE FROM THE SAME CRIMINAL EPISODE AS THAT
OFFENSE FOR WHICH APPELLANT WAS PREVIOUSLY
CONVICTED OF AND DOCKETED AT 1708-2014 AND 1709-
2014?

____________________________________________

1
On February 11, 2016, this Court issued a “rule to show cause” order
directing Appellant to show cause why the appeal should not be quashed as
taken from an unappealable order. On February 16, 2016, Appellant filed an
answer to the show-cause order. On February 19, 2016, this Court issued
an order quashing the appeal. Appellant sought reconsideration on February
22, 2016, and filed a supplement on March 3, 2016, claiming the appeal is
an interlocutory appeal as of right because the trial court indicated that the
joinder claim was not frivolous. Thereafter, upon determination by the trial
court that Appellant’s motion to quash/dismiss was not frivolous, this Court
reinstated the appeal in an order filed March 4, 2016. We note that the
order denying Appellant’s motion to dismiss is not a final order. However,
because 18 Pa.C.S. § 110 statutorily “embodies the same basic purposes as
those underlying the double jeopardy clauses, the interlocutory appealability
of double jeopardy claims has been applied to claims based on Section 110.”
Commonwealth v. Bracalielly, 658 A.2d 755, 759-760 (Pa. 1995).
Therefore, we may properly consider this appeal. Commonwealth v.
M.D.P., 831 A.2d 714, 717 n.1 (Pa. Super. 2003).

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J-A25015-16

Appellant’s Brief at 5. Both of Appellant’s issues pertain to whether

prosecution is barred under the compulsory joinder statute.

We set forth our well-settled standard of review: “An appeal grounded

in double jeopardy raises a question of constitutional law. This [C]ourt’s

scope of review in making a determination on a question of law is, as

always, plenary. As with all questions of law, the appellate standard of

review is de novo….” Commonwealth v. Vargas, 947 A.2d 777, 780 (Pa.

Super. 2008) (citations and quotations omitted); see also Commonwealth

v. Simmer, 814 A.2d 696, 698 (Pa. Super. 2002) (Our review is plenary

when the issue is whether the compulsory joinder rule, 18 Pa.C.S. § 110,

bars prosecution.).

“The compulsory joinder statute [18 Pa.C.S. § 110,] is a legislative

mandate that a subsequent prosecution for a violation of a provision of a

statute that is different from a former prosecution, or is based on different

facts, will be barred in certain circumstances.” Commonwealth v. Fithian,

961 A.2d 66, 71 (Pa. 2008). Section 110 provides, in relevant part:

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

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

(1) The former prosecution resulted in an acquittal or in a
conviction as defined in section 109 of this title (relating to when
prosecution barred by former prosecution for same offense) and
the subsequent prosecution is for:

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

(ii) any offense based on the same conduct or arising
from the same criminal episode, if such offense was
known to the appropriate prosecuting officer at the
time of commencement of the first trial and occurred
within the same judicial district as the former
prosecution unless the court ordered a separate trial
of the charge of such offense; or

(iii) the same conduct, unless:

(A) 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

(B) the second offense was not
consummated when the former trial
began.

18 Pa.C.S. § 110.

Our Supreme Court has stated:

[18 Pa.C.S. § 110] reflects Pennsylvania’s compulsory joinder
rule, which is designed to protect a defendant’s double-jeopardy
interests where the Commonwealth initially declines to prosecute
him for the present offense, electing to proceed on different
charges stemming from the same criminal episode.

Commonwealth v. Laird, 988 A.2d 618, 628 (Pa. 2010) (citations

omitted).

The purpose behind section 110 is two-fold. “First, it protects a

defendant from the governmental harassment of being subjected to

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J-A25015-16

successive trials for offenses stemming from the same criminal episode.

Secondly, the rule assures finality without unduly burdening the judicial

process by repetitious litigation.” Commonwealth v. Failor, 770 A.2d 310,

313 (Pa. 2001).

Appellant first argues that his prosecution is barred pursuant to section

110(1)(i). Appellant’s Brief at 10-15. Essentially, Appellant contends that

the charges at CP-28-CR-564-2015 and CP-28-CR-565-2015 should be

dismissed under the compulsory joinder rule because Appellant could have

been convicted of the offenses during his first prosecution on September 9,

2014, for offenses also committed in Franklin County.

However, before we address the merits of this issue, we must

determine whether Appellant preserved this claim for appeal.2 Pursuant to

Pennsylvania Rule of Appellate Procedure 302, issues that are not raised in

the lower court are waived and cannot be raised for the first time on appeal.

Pa.R.A.P. 302(a). Moreover, we have long held that “[a] claim which has

not been raised before the trial court cannot be raised for the first time on

appeal.” Commonwealth v. Lopata, 754 A.2d 685, 689 (Pa. Super.

2000). Even issues of constitutional dimension cannot be raised for the first

time on appeal. Commonwealth v. Strunk, 953 A.2d 577, 579 (Pa. Super.

2008). See Commonwealth v. Ryan, 909 A.2d 839, 845 (Pa. Super.
____________________________________________

2
We note the Commonwealth has averred that Appellant failed to preserve
this issue for appeal. Commonwealth’s Brief at 2.

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2006) (noting that “[a] theory of error different from that presented to the

trial jurist is waived on appeal, even if both theories support the same basic

allegation of error which gives rise to the claim for relief.”). Thus, only

claims properly presented in the trial court are preserved for appeal. In

addition, it is an appellant’s obligation to demonstrate which appellate issues

were preserved for review. Pa.R.A.P. 2117(c), 2119(e).

Here, we are constrained to conclude that such arguments by the

Appellant are waived because Appellant failed to present them to the trial

court in the first instance. The trial court properly notes in its opinion:

[Appellant] cites to both 18 Pa.C.S. § 110(1)(i) and § 110(1)(ii)
in his Amended Motion. See Amended Motion [to Quash, filed
July 16, 2015], ¶ 13. However, upon review of the substantive
averments and arguments in his Amended Motion, it is
abundantly clear to the Court that [Appellant] is raising his claim
under § 110(1)(ii) alone. See Amended Motion [to Quash], ¶¶
14-18; see also Defendant’s Brief in Support of Motion to Quash
and/or Dismiss Information, filed August 21, 2015[, at 12-28].

Trial Court Opinion, 12/21/15, at 6 n.5.

We have reviewed the filing presented to the trial court and agree

that, although Appellant cited section 110(1)(i), he did not present an

argument or discussion to the trial court to support a claim that dismissal of

the charges was appropriate under that section. Rather, our review reflects

that Appellant focused his argument on section 110(1)(ii). Consequently,

any claim under section 110(1)(i) is waived.

Furthermore, as the Commonwealth has observed in its appellate

brief, Appellant failed to include in his Pa.R.A.P. 1925(b) statement a claim

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that the trial court erred in failing to grant him relief pursuant to section

110(1)(i). In Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998), our

Supreme Court held that if an appellant is directed to file a concise

statement of matters to be raised on appeal pursuant to Pa.R.A.P. 1925(b),

any issues not raised in that statement are waived. In Commonwealth v.

Butler, 812 A.2d 631 (Pa. 2002), the Court further expanded the Lord

holding, stating that waiver automatically applies when a Pa.R.A.P. 1925(b)

statement is not filed or if an issue is not included in the Pa.R.A.P. 1925(b)

statement, even when the question of waiver has not been raised by the

other party, and even when the trial court has chosen to overlook the failure

by addressing the issues it assumed would be raised. We have thoroughly

reviewed Appellant’s Pa.R.A.P. 1925(b) statement and agree with the

Commonwealth’s position that Appellant has failed to include the issue

pertaining to section 110(1)(i) in his Pa.R.A.P. 1925(b) statement. Hence,

for this reason too, the issue is waived. Moreover, even if Appellant had

included the issue in his Pa.R.A.P. 1925(b) statement, we have stated that

“[a] party cannot rectify the failure to preserve an issue by proffering it in

response to a [Pa.R.A.P.] 1925(b) order.” Commonwealth v. Kohan, 825

A.2d 702, 706 (Pa. Super. 2003) (citations omitted).

Appellant next argues that prosecution is barred under section

110(1)(ii). Appellant’s Brief at 16-21. Appellant posits that he has met the

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appropriate four-part test set forth in the associated caselaw pertaining to

section 110(1)(ii).

As explained by our Supreme Court:

The compulsory joinder rule bars a subsequent prosecution if
each prong of the following test is met: (1) the former
prosecution resulted in an acquittal or conviction; (2) the current
prosecution was based on the same criminal conduct or arose
from the same criminal episode; (3) the prosecutor in the
subsequent trial was aware of the charges before the first trial;
and (4) all charges were within the same judicial district as the
former prosecution.

Commonwealth v. Nolan, 855 A.2d 834, 839 (Pa. 2004) (footnote and

citations omitted). “Each prong of this test must be met for compulsory

joinder to apply.” Fithian, 961 A.2d at 72.

In the instant case, the parties do not dispute that elements one and

four of the four-prong test set forth in Nolan are met. It is undipusted that

on September 9, 2014, Appellant pled guilty and was sentenced for retail

thefts at the Walmart store in Washington Township, which were docketed at

CP-28-CR-1708-2014 and CP-28-CR-1709-2014. A guilty plea constitutes a

conviction for purposes of pursuing further prosecution pursuant to 18

Pa.C.S. § 110. Commonwealth v. Bracalielly, 658 A.2d 755, 760 (Pa.

1995). Thus, the first element is satisfied. Additionally, the current charges

and the former charges are within the same judicial district as required by

the fourth prong. Accordingly, we agree that elements one and four have

been met.

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J-A25015-16

Appellant posits that the second prong of the four-part test has also

been met and therefore, the compulsory joinder rule applies. Appellant’s

Brief at 18-21. Regarding the second prong, Appellant argues that a single

criminal episode exists in this matter because the charges at CP-28-CR-564-

2015 and CP-28-CR-565-2015 are logically and temporally related and share

common issues of law and fact with the charges from the prosecution at CP-

28-CR-1708-2014 and CP-28-CR-1709-2014. Id. at 19. We disagree.

The seminal decision discussing the term “same criminal episode” is

Commonwealth v. Hude, 458 A.2d 177 (Pa. 1983). Our Supreme Court

summarized that holding as follows:

In Hude, the defendant (Hude) was arrested and charged
with twenty counts of possession and delivery of marijuana and
one count of corruption of a minor. These charges arose from a
series of sales to the same individual which allegedly occurred
between October 1974 and January 1975. After nine possession
and delivery counts were dismissed, the Commonwealth brought
Hude to trial on three of the remaining possession and delivery
charges and the corruption of a minor charge. Hude was
acquitted. The Commonwealth then brought Hude to trial on the
remaining eight possession and delivery charges.

We held that these remaining eight charges arose from
conduct which formed part of the same criminal episode as the
conduct on which the initial three possession and delivery
charges were based. Therefore, we concluded that the Section
110 barred the second attempt at prosecution and quashed the
subsequent indictments. We reasoned:

[t]o interpret the “single criminal episode” test in
such a manner as to permit successive trials for each
of the alleged transactions would clearly be offensive
to the prohibition against successive prosecutions as
well as an unjustifiable expenditure of judicial
resources. The interpretation of the term “single

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criminal episode” must not be approached from a
hypertechnical and rigid perspective which defeats
the purposes for which it was created. Thus, where
a number of charges are logically and/or temporally
related and share common issues of law and fact, a
single criminal episode exists, and separate trials
would involve substantial duplication and waste of
judicial resources. In such cases, failure to
consolidate will bar successive prosecutions.

Hude [500 Pa.] at 494, 458 A.2d at 183.

Bracalielly, 658 A.2d at 761. See also Commonwealth v. Reid, 77 A.3d

579, 582 (Pa. 2013) (applying earlier holding from Hude and instructing

that courts considering the logical-relationship prong should look at the

temporal and logical relationship among the charges to determine whether

they arose from a single criminal episode). “In Hude, both prosecutions

contained a substantial duplication of issues of fact and law, which not only

forced a defendant to ‘run the gauntlet’ repeated times and confront the

‘awesome resources of the state’ successively, but also sanctioned ‘an

unjustifiable expenditure of judicial resources.’” Nolan, 855 A.2d at 839

(quoting Hude, 458 A.2d at 180, 183).

Thus, to determine whether various acts constitute a single criminal

episode warranting compulsory joinder, a court must consider two factors:

1) the logical relationship between the acts; and 2) the temporal relationship

between the acts. Commonwealth v. Spotz, 759 A.2d 1280, 1285 (Pa.

2000). In ascertaining whether a number of statutory offenses are “logically

related” to one another, the court should initially inquire as to whether there

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is a substantial duplication of factual or legal issues presented by the

offenses. Commonwealth v. M.D.P., 831 A.2d 714, 718-719 (Pa. Super.

2003).

If there is duplication, then the offenses are logically related and
must be prosecuted at one trial. The mere fact that the
additional statutory offenses involve additional issues of law or
fact is not sufficient to create a separate criminal episode since
the logical relationship test does not require ‘an absolute identity
of factual backgrounds.’

***

The temporal relationship between criminal acts will be a factor
which frequently determines whether the acts are ‘logically
related.’ However, the definition of a ‘single criminal episode’
should not be limited to acts which are immediately connected in
time.... ‘Transaction’ is a word of flexible meaning. It may
comprehend a series of many occurrences, depending not so
much upon the immediateness of their connection as upon their
logical relationship.

Commonwealth v. Hunter, 768 A.2d 1136, 1140-1141 (Pa. Super. 2001)

(quoting Hude, 458 A.2d at 182-183).

“[T]he inquiry as to whether a series of criminal acts constitutes a

single criminal episode is fact dependent.” Bracalielly, 658 A.2d at 757.

Furthermore, the single criminal episode analysis essentially considers the

totality of the circumstances. M.D.P., 831 A.2d at 719 n.3.

In addressing whether the charges stem from the same criminal

episode, the trial court offered the following pertinent analysis, which we set

forth as our own:

CP-28-CR-564-2015

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[Appellant] is charged in this case with Retail Theft by the
Pennsylvania State Police. The charge stems from an incident
that occurred on or about August 28, 2014 in Guilford Township.
[Appellant] argues that these charges are barred by the entry of
his pleas in cases CP-28-CR-1708-2014 (Retail Theft, Criminal
Mischief, and Possession of Instruments of Crime) & CP-28-CR-
1709-2014 (Retail Theft). The parties agree that the charges at
CP-28-CR-1708-2014 occurred on or about August 28, 2014 at
approximately 11:45 p.m.; the charge at CP-28-CR-1709-2014
occurred on or about August 27, 2014 at approximately 4:01
a.m. See Amended Motion, ¶¶ 2, 5; Answer, ¶¶ 2, 5. The
parties also agree that the charges at CP-28-CR-564-2015
occurred at approximately 10:00 p.m. on August 28, 2014. See
Amended Motion, ¶ 3; Answer, ¶ 3.

***

Same Criminal Conduct /Criminal Episode

In the former prosecutions,19 the evidence presumably
consisted of witnesses from the retail store who would have
testified to their observations of [Appellant] taking items offered
for sale and removing them or attempting to remove them from
the Walmart in Washington Township. Further, presumably
20
Officers Schmitt and Wolfgang, the charging officers, would
have testified and presented evidence regarding their
investigations. The legal questions presented in those
prosecutions would have centered upon the taking/attempted
taking of property from a store without paying the full retail
value,21 intentionally damaging another person’s property,22 and
whether [Appellant] possessed an instrument of crime with the
intent to employ it criminally.23
19
CP-28-CR-1708-2014 (Retail Theft, Criminal
Mischief, and Possession of Instruments of Crime) &
CP-28-CR-1709-2014 (Retail Theft).
20
Of the Washington Township Police Department.
21
18 Pa.C.S. § 3929(a) (relating to Retail Theft).
22
18 Pa.C.S. § 3304 (a) (relating to Criminal
Mischief).

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23
18 Pa.C.S. § 907 (a) (relating to Possessing
Instruments of Crime).

The instant charge presumably consists of evidence in the
nature of testimony from employees/witnesses at the Walmart
store in Guilford Township. Trooper Sebastian would presumably
testify as his investigation, and as to his and Trooper Cox’s
interview of [Appellant].24 In essence, the former prosecutions
arose from Retail Thefts involving the Walmart located in
Washington Township, and involved investigations and
interviews by officers of the Washington Township Police
Department. The current prosecution involves Retail Theft from
the Walmart located in Guilford Township, and involves an
investigation and interview by Troopers from the Pennsylvania
State Police. The officers and Troopers did not conduct a joint
interview of [Appellant], and presumably different employees
from each of the Walmarts in question would be required to
testify in the each respective prosecution to establish the
evidence alleged by the Commonwealth.
24
While [Appellant] was interviewed by both Officer
Wolfgang and the Troopers Sebastian & Cox at
Washington Township Police Department, Officer
Wolfgang’s interview was conducted separate and
apart from the Troopers’ interview; as such, Officer
Wolfgang could not testify as to any statements
made by [Appellant] in relation to the Troopers’
interview, and the Troopers[] cannot testify to any
statements made by [Appellant] in relation to Officer
Wolfgang’s interview.

While the legal questions are similar, i.e., related to
whether [Appellant] committed Retail Theft, there is no
substantial duplication of facts/evidence between the former
prosecution and the instant case. The only duplication is that
they are the same statutory offense and are alleged to have
been committed by the same person; there is no other
commonality between the former and current prosecutions.
Again, while the offenses may be temporally related, that alone
does not end the inquiry. Considering the lack of any substantial
duplication in the evidence to be presented, the Court finds that
the instant offense did not arise from the same criminal conduct
or were not part of the same criminal episode as the former
prosecution.

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***

CP-28-CR-565-2015

[Appellant] is charged in this case with Criminal Attempt -
Burglary,25 and Criminal Attempt - Criminal Trespass,26 by the
Pennsylvania State Police. The charge stems from an incident
that occurred on or about August 28, 2014 in Guilford Township.
[Appellant] argues that these charges are barred by the entry of
his pleas in cases CP-28-CR-1708-2014 (Retail Theft, Criminal
Mischief, and Possession of Instruments of Crime) & CP-28-CR-
1709-2014 (Retail Theft). The parties agree that the charges at
CP-28-CR-1708-2014 occurred on or about August 28, 2014 at
approximately 11:45 p.m.; the charge at CP-28-CR-1709-2014
occurred on or about August 27, 2014 at approximately 4:01
a.m. See Amended Motion, ¶¶ 2, 5; Answer, ¶¶ 2, 5. The
parties also agree that the charges at CP-28-CR-565-2015
occurred at approximately 11:04 p.m. on August 28, 2014. See
Amended Motion, ¶ 4; Answer, ¶ 4.
25
18 Pa.C.S. § 901 (relating to Criminal Attempt) to
18 Pa.C.S. § 3502 (relating to Burglary).
26
18 Pa.C.S. § 901 (relating to Criminal Attempt) to
18 Pa.C.S. § 3503 (relating to Criminal Trespass).

***

Same Criminal Conduct/Criminal Episode

In the former prosecutions,27 the evidence presumably
consisted of witnesses from the retail store who would have
testified to their observations of [Appellant] taking items offered
for sale and removing them or attempting to remove them from
the Walmart in Washington Township. Further, presumably
28
Officers Schmitt and Wolfgang, the charging officers, would
have testified and presented evidence regarding their
investigations. The legal questions presented in those
prosecutions would have centered upon the taking/attempted
taking of property from a store without paying the full retail
value,29 intentionally damaging another person’s property,30 and
whether [Appellant] possessed an instrument of crime with the
intent to employ it criminally.31

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27
CP -28 -CR -1708 -2014 (Retail Theft, Criminal
Mischief, and Possession of Instruments of Crime) &
CP -28 -CR -1709 -2014 (Retail Theft).
28
Washington Township Police Department.
29
18 Pa.C.S. § 3929(a) (relating to Retail Theft).
30
18 Pa.C.S. § 3304(a) (relating to Criminal
Mischief).
31
18 Pa.C.S. § 907(a) (relating to Possessing
Instruments of Crime).

In the instant case, the evidence would consist of
testimony from the owner of the building alleged to be
burglarized, namely Sunrise Computer & Electronics. It would
also presumably include testimony from witnesses for the alarm
company as Trooper Sebastian testified that they responded to
the report of an “active burglary alarm” at Sunrise Computer &
Electronics. Troopers Sebastian and Cox would testify regarding
their investigation and interview of [Appellant]. The legal
questions involved in the instant matter center upon whether
[Appellant] attempted to enter Sunrise Computer and Electronics
with the intent to commit a crime therein (Attempted Burglary)
or attempted to enter any building knowing he was not licensed
or privileged to do so (Attempted Criminal Trespass).

Considering the evidence/witnesses and legal issues in the
instant matter do not substantially, duplicate those involved in
the former prosecution, the Court finds that the instant matter is
not the result of the same criminal conduct or part of the same
criminal episode as the former prosecution. Further, while the
offenses in the instant matter are not necessarily temporally
distant from the former offenses, such temporal relationship
does not overshadow the lack of logical relationship in the
evidence and legal issues presented. Therefore, [Appellant’s]
Amended Motion must fail as to CP-28-CR-565-2015.

Trial Court Opinion, 12/21/15, at 12-16 (footnote omitted).

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Upon review, we are constrained to agree with the trial court that,

although temporally related, the instant charges relating to Appellant’s

conduct in Guilford Township do not stem from the same criminal episode

that resulted in the former prosecution relating to Appellant’s conduct in

Washington Township. Hence, Appellant’s claim lacks merit.

In an abundance of caution, we also address whether Appellant has

established the third prong of the four-prong test, i.e., whether the

prosecutor in the subsequent trial was aware of the charges before the first

trial. In addressing this issue for purposes of our 18 Pa.C.S. § 110 analysis,

this Court has noted that “the test is not whether [the a]ppellee could be

charged, but whether prosecuting officers knew of the offense.”

Commonwealth v. George, 38 A.3d 893, 898-899 (Pa. Super. 2012).

Indeed, prosecuting authorities do not “know” of additional charges, within

the meaning of section 110, when they only suspect that other offenses

have been committed but do not have admissible evidence sufficient to

support conviction of an accused. Commonwealth v. Hall, 538 A.2d 43,

47 (Pa. Super. 1988).

In Hall, the defendant sought to have charges of burglary, theft, and

conspiracy dismissed because there was evidence that the police had

knowledge of those offenses when police charged him with receiving stolen

property and unlawful sale of firearms in connection with the same incident.

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Hall, 538 A.2d at 45. We find our ruling in Hall to be persuasive. In

rejecting the defendant’s argument, the Hall Court noted the following:

[C]ounsel for [defendant] is of the mind that mere ‘knowledge’
on the part of the police that a burglary occurred at the
[victim’s] camp site in 1986 necessitated that the [defendant] be
charged at that time with such an offense in conjunction with the
others initially lodged against him. Failure to do so, counsel
would have us believe, brings this case within the prohibition of
Commonwealth v. Campana, 452 Pa. 233, 304 A.2d 432
(1973) and § 110 barring a subsequent prosecution because
‘such offense was known to the appropriate prosecuting officer
at the time of the commencement of the first trial[.]’ 18 Pa.C.S.
§ 110(1)(ii). The fact that the police may not have had
sufficient evidence to either arrest or convict [the defendant] is
of no moment. Rather, ‘knowledge’ on the part of the police of
the burglary, when viewed in conjunction with the weapon
offenses brought against the [defendant], renders this second
prosecution as one ‘arising out of the same episode’ as the
former prosecution and therefore, is prohibited, so argues
counsel for the [defendant]. We disagree.

Id.

The court in Hall held that police “knowledge” of a crime is not “the

equivalent of the quantum of evidence necessary to support a conviction for

such a charge so as to activate the barring effect of § 110.” Hall, 538 A.2d

at 48. Our discussion in Hall demonstrates that although offenses may arise

from the “same criminal episode,” they may properly be charged and tried

separately. Such is the case with Appellant.

As the trial court aptly explained in its recitation of the facts of this

case:

At some point during or shortly after his interview of [Appellant],
Officer Wolfgang learned of a pending investigation by the
Pennsylvania State Police (PSP). Trooper Cox of PSP arrived at

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the Washington Township Police Department and interviewed
[Appellant] in relation to the PSP investigation. Officer Wolfgang
did not participate in the interview of [Appellant] by Trooper
Cox, nor was he aware at the time of the exact nature of the PSP
investigation, i.e., he was unaware of the victims/witnesses, nor
was he aware of a pending Driving Under the Influence charge.
Officer Wolfgang also did not speak with anyone in the
District Attorney’s Office at the time he filed charges. The
investigations by Officers Wolfgang and Schmidt resulted in
charges being brought against [Appellant]; those charges were
docketed and disposed of at CP-28-CR-1708-2014 & CP-28-CR-
1709-2014.

***

Both Officer Wolfgang and Trooper Sebastian
indicated that they did not discuss their cases with the
District Attorney’s Officer prior to filing charges.

Trial Court Opinion, 12/21/15, at 3-4 (footnote omitted) (emphases added).

Our review of the record supports the finding of fact made by the trial

court that Officer Wolfgang was unaware of the nature of the investigation

being conducted by the State Police. N.T., 11/23/15, at 14-15. The record

further reflects that Officer Wolfgang filed retail theft charges against

Appellant in relation to the incidents at the Washington Township Walmart

on August 28, 2014, the night that Appellant was arrested. Id. at 15. In

addition, Officer Wolfgang stated that he did not speak to the District

Attorney’s office about the charges. Id. at 20. Also, Trooper Sebastian

testified at Appellant’s pretrial hearing and explained that he participated in

the investigation regarding the incidents in Chambersburg and was present

with Trooper Cox at the interview of Appellant at the Washington Township

Police Department. Id. at 23-27. Trooper Sebastian testified that he

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ultimately filed charges against Appellant on September 22, 2014. Id. at

29. Trooper Sebastian stated that he did not follow Appellant’s Washington

Township retail-theft case, was not aware that Appellant had entered a

guilty plea in that case, and did not contact the District Attorney’s office

prior to filing the charges against Appellant. Id. at 30.

Therefore, Appellant has failed to demonstrate that the prosecutor

knew of the instant charges before the proceedings in the prior charges as

required by section 110(1)(ii). To the extent Appellant argues that the

requirement that the present offenses be known by the “prosecutor” includes

knowledge by the “police” prior to his pleading guilty on the prior charges,

this Court has rejected that argument. See Hall, 538 A.2d at 45

(concluding that where the appellant was previously charged with receiving

stolen property and unlawful sale of firearms, knowledge on the part of the

police that a burglary also occurred did not require, under section 110(1)(ii),

that the appellant be charged with burglary when the other charges were

lodged).

Accordingly, we conclude that the trial court properly denied

Appellant’s pretrial motion seeking to dismiss the charges. Therefore, we

affirm the order.

Order affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/27/2017

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