J-A27018-16
2017 PA Super 51
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: PANELLA, J., LAZARUS, J., and FITZGERALD, J.*
OPINION BY LAZARUS, J.: FILED FEBRUARY 28, 2017
Emily Joy Gross appeals from the order entered in the Court of
Common Pleas of Monroe County, denying, inter alia, her motion to dismiss
on double jeopardy grounds. Upon careful review, we reverse.
Our Supreme Court has previously set forth the facts of this matter as
follows:
Emily 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 [County] Sheriff’s office went to Autenrieth’s
residence (also in Northampton County) to serve the temporary
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*
Former Justice specially assigned to the Superior Court.
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PFA order and to transfer custody of the children to Autenrieth’s
wife. 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 Gross the temporary PFA order
prohibited Autenrieth from possessing firearms. 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.
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, Gross obtained a Pennsylvania driver’s license using
Autenrieth’s address; within hours, Gross and Autenrieth went to
a Berks County store, where Gross used her new license to buy a
9 millimeter handgun. Later, at his residence, Autenrieth
showed 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 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; 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 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 firearm prohibited, [18 Pa.C.S.] §
6105(a)(1) (accomplice); and lending or giving of firearms
prohibited, [18 Pa.C.S.] § 6115(a) (accomplice).
Commonwealth v. Gross, 101 A.3d 28, 31–32 (Pa. 2014).
Following proceedings which are not relevant to our disposition here,
the matter was remanded by the Supreme Court to the Common Pleas Court
of Monroe County for trial. Prior to the date of remand, the United States
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Attorney filed an information in the U.S. District Court for the Eastern
District of Pennsylvania, charging Gross with making false statements to a
federal firearms licensee1 and aiding and abetting a prohibited person to
possess a firearm.2 The federal government alleged that Gross lied in
connection with her acquisition of the firearm and aided and abetted
Audenrieth in possessing a firearm when she knew him to be prohibited from
doing so. Gross ultimately pled guilty in federal court to making false
statements to a federal firearms licensee.
Upon remand of the Commonwealth case to the common pleas court,
Gross filed an omnibus pretrial motion, which she subsequently amended to
include the instant motion to dismiss based upon double jeopardy. The trial
court denied the motion and the instant appeal3 follows, in which Gross
raises the following question for our review:
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1
18 U.S.C. § 924(a)(1).
2
18 U.S.C. § 922(g)(8); 18 U.S.C. § 2.
3
As a general rule of Pennsylvania law, a defendant can immediately appeal
as of right an order that denies a non-frivolous motion to dismiss on state or
federal double jeopardy grounds. Commonwealth v. Orie, 33 A.3d 17,
20–21 (Pa. Super. 2011). In this context, a frivolous double jeopardy claim
is “a claim clearly and palpably without merit; it is a claim [that] presents no
debatable question. Such futile claims, presumably interposed for purposes
of delay or disruption, are to be expressly identified by the trial court
through a written finding.” Id., quoting Commonwealth v. Gains, 556
A.2d 870, 874–75 (Pa. Super. 1989) (en banc). Pursuant to Pa.R.Crim.P.
587(B), in cases where the trial court denies a motion to dismiss on double
jeopardy grounds, the court is required to make a specific finding as to
(Footnote Continued Next Page)
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Did the trial court err in failing to dismiss the information against
[Gross], where the information arises out of the same conduct
for which [Gross] has already been prosecuted . . ., convicted
. . . and sentenced . . . by the federal government, and the
Commonwealth did 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?
Brief of Appellant, at 3.
Our scope and standard of review is as follows: “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 marks omitted).
Where a defendant asserts that her state prosecution is barred by a
prior federal action, our determination is governed by section 111 of the
Crimes Code, which provides in pertinent part:
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:
(1) The first prosecution resulted in an acquittal or a conviction
as defined in section 109 of this title (relating to when
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(Footnote Continued)
frivolousness. See Pa.R.Crim.P. 587(B)(4). Here, the trial court was silent
as to whether it considered Gross’ motion to be frivolous. However, in light
of the fact that the court determined that the Commonwealth sought to
prosecute Gross for the same conduct that led to her federal conviction, see
18 Pa.C.S.A. § 111, we conclude that the motion was not frivolous and, as
such, Gross’ interlocutory appeal is properly before this Court.
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prosecution barred by former prosecution for the 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[.]
18 Pa.C.S. § 111(1).
In applying section 111, the courts of this Commonwealth have
consistently held that there are three relevant inquiries to be made. The
first inquiry is whether or not the prosecution which the Commonwealth
proposes to undertake involves the same conduct for which the individual
was prosecuted by the other jurisdiction. Commonwealth v. Traitz, 597
A.2d 1129, 1132-33 (Pa. 1991); Commonwealth v. Scarfo, 611 A.2d 242,
256 (Pa. Super. 1992). If the answer to this question is yes, then we must
determine whether each prosecution requires proof of a fact not required by
the other, and whether the law defining the state offense is designed to
prevent a substantially different harm or evil from the law defining the other
jurisdiction’s offense. Scarfo, 611 A.2d at 257. If the Commonwealth
cannot satisfy both of these requisites, then the prosecution may not
proceed. Id.
We begin with the first inquiry, i.e., whether the Commonwealth’s
prosecution of Gross involves the “same conduct” that formed the basis of
her federal prosecution. In Commonwealth v. Mascaro, 394 A.2d 998
(Pa. Super. 1978), this Court defined “same conduct,” as “encompass[ing]
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all criminal behavior committed in support of a common and continuing
scheme.” Id. at 1001. Here, the trial court concluded – and the
Commonwealth does not dispute – that the Commonwealth sought to
prosecute Gross in state court for the same conduct that led to her federal
conviction. Accordingly, the burden shifts to the Commonwealth to “lift[] the
statutory bar against prosecution.” Commonwealth v. Calloway, 675
A.2d 743, 748 (Pa. Super. 1996).
In order to satisfy its burden, the Commonwealth must first
demonstrate that each prosecution requires proof of a fact not required by
the other. Here, Gross pled guilty in federal court to making false
statements to a federal firearms licensee in violation of 18 U.S.C. §
924(a)(1)(A).4 Specifically, the federal government alleged that Gross
knowingly lied to a licensed firearms dealer about her current residence
when completing ATF Form 4473 in connection with the purchase of a
firearm by stating that she resided at 24 Olde Penn Drive, Easton,
Pennsylvania, when she actually resided in Westfield, New Jersey.
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4
A person commits an offense under section 924 when she “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 [e.g., a person licensed to sell firearms] or in applying for any
license or exemption or relief from disability under the provisions of this
chapter[.]” 18 U.S.C. § 924(a)(1)(A).
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In Pennsylvania state court, Gross is charged with conspiracy to
commit unlawful possession of a firearm,5 firearms not to be carried without
a license,6 possession of firearm prohibited,7 and lending or giving of
firearms prohibited.8 As the trial court correctly observes in its opinion,
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5
18 Pa.C.S.A. § 903(a).
6
18 Pa.C.S.A. § 6106(a)(1). Gross was charged as a co-conspirator under
this section, which provides as follows:
(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.
Id.
7
18 Pa.C.S.A. § 6105(a)(1). Gross was charged as an accomplice under this
section, which provides as follows:
(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.
Id. At the time Gross purchased the firearm, Audenrieth was subject to a
protection from abuse order which barred him from possessing firearms.
8
18 Pa.C.S.A. § 6115(a). Section 6115(a) provides as follows:
(Footnote Continued Next Page)
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unlike Gross’ federal offense, none of these offenses requires proof that
Gross made false statements or misrepresentations to a firearms dealer.
Conversely, Gross’ federal offense did not require proof that Autenrieth was
not authorized or licensed to possess a firearm, or that Gross and Autenrieth
had any type of agreement. Accordingly, the Commonwealth is able to
satisfy the first of the two requirements for lifting the bar to prosecution
under section 111.
In order to proceed with its prosecution of Gross, the Commonwealth
must also demonstrate that the law defining the state offense is designed to
prevent a substantially different harm or evil from the law defining the
federal offense to which Gross pled guilty. After reviewing the statutes in
question, the trial court concluded that:
[t]he federal statute is aimed at preventing fraud in connection
with the purchasing of firearms from licensed dealers. The
statutes underlying the Commonwealth’s proposed prosecution
are aimed at entirely different evils: the agreement with others
to provide a firearm, and knowingly providing a firearm to
someone not legally able to possess it.
Trial Court Opinion, 1/15/16, at 16.
_______________________
(Footnote Continued)
(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.
Id.
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Gross argues that, in concluding that the Commonwealth satisfied the
“interest test” under section 111, the trial court’s focus was “unacceptably
narrow” in light of the applicable case law, and in light of the federal
government’s own description of the interests it sought to protect by
prosecuting Gross. For the reasons that follow, we agree.
In Commonwealth v. Mills, 286 A.2d 638 (Pa. 1971), our Supreme
Court announced the “interest test” that was subsequently codified in section
111, stating:
we now rule, that henceforth in Pennsylvania, a second
prosecution and imposition of punishment for the same offense
will not be permitted unless it appears from the record that the
interests of the Commonwealth of Pennsylvania and the
jurisdiction which initially prosecuted and imposed punishment
are substantially different. In other words, [i]f it appears that
the interests of this Commonwealth were not sufficiently
protected in the initial prosecution, then a second prosecution
and imposition of additional punishment in Pennsylvania will be
allowed.
Id. at 642.
The Court subsequently applied the Mills interest test in
Commonwealth v. Grazier, 393 A.2d 335 (Pa. 1978). There, the
defendants were accused of destroying a hotel by arson and using the U.S.
mail to submit fraudulent insurance claims. They were charged, tried, and
acquitted in federal court of mail fraud and conspiracy to commit mail fraud.
The Commonwealth also charged them with arson. Following their acquittal
in federal court, the defendants filed motions to quash their Commonwealth
indictments on the basis of section 111 and the Supreme Court’s holding in
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Mills. The trial court dismissed the informations against both defendants.
On appeal, this Court reversed and the Supreme Court subsequently granted
allowance of appeal.
After concluding that section 111 was inapplicable because the crimes
in question predated the effective date of the act, the Court proceeded to
analyze the case under Mills. The Court rejected the Commonwealth’s
argument that Mills was inapplicable because the offenses charged in the
two jurisdictions, i.e., mail fraud and arson, were different, finding this
distinction “to be one of form over substance.” Grazier, 393 A.2d at 339.
The Court noted:
While the purpose of the federal mail fraud statute may arguably
be to protect the integrity of the mails, when viewed realistically
it can be seen that the use of the mails gives jurisdiction to
federal authorities over areas in which Congress has not
specifically acted. As one commentator has stated, “If the
difference between the statutes involved is primarily
jurisdictional for example based on the presence or absence of
the use of interstate commerce it is likely that the Governmental
interests involved are similar.” Comment, 80 Harv.L.Rev. 1538,
1562. Instantly, both the federal government and the
Commonwealth’s principal interest is against the crime of arson.
While federal mail fraud is a different crime from arson, both
statutes as used in this case protect the same governmental
interest. Under these facts, Mills will act as a bar to a state
prosecution for arson following an acquittal in federal court for
mail fraud in connection with a scheme to commit arson.
Id. at 339-40.
Likewise, here, while the purpose of the federal statute prohibiting
false statements in connection with the purchase of a firearm may arguably
be, as the trial court found, to prevent fraud in connection with the
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purchasing of firearms from licensed dealers, Mills requires that we take a
broader view. The statute under which Gross was prosecuted was part of
the Gun Control Act of 1968, “[t]he principal purpose of [which] was to curb
crime by keeping ‘firearms out of the hands of those not legally entitled to
possess them because of age, criminal background, or incompetency.’”
Huddleston v. United States, 415 U.S. 814, 824 (1974). The legislation
was “aimed at restricting public access to firearms” by requiring those
seeking to purchase firearms to “provid[e] adequate and truthful information
about firearms transactions.” Id. Additionally, the U.S. attorney, in its
sentencing memorandum, urged the court to look beyond the apparent non-
violence of Gross’ crime, arguing that “[i]t would be wrong to view this crime
in a vacuum and claim that this is merely a fraud violation for lying on a
required form.” Government’s Sentencing Memorandum, 4/19/11, at 7.
The government went on to note that “[o]ne need only read the newspapers
today to understand the devastating impact which gun crimes of this type
can have upon society.” Id. at 8. Accordingly, it is apparent that the
federal government – both generally by enacting the Gun Control Act as well
as specifically in its application of that law in this particular prosecution –
sought to vindicate a greater interest, separate and apart from the mere
prevention of fraud in the submission of federal paperwork.
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The Pennsylvania statutes under which the Commonwealth seeks to
prosecute Gross – provisions of the Uniform Firearms Act9 – share that same
purpose. As this Court has previously observed, “[t]he apparent purpose of
the Act is to regulate the possession and distribution of firearms, which are
highly dangerous and are frequently used in the commission of crimes.”
Commonwealth v. Corradino, 588 A.2d 936, 940 (Pa. Super. 1991).
“[T]he mischief to be remedied was the unimpeded circulation of dangerous
instruments and the object to be attained was the regulation and
registration of transfers of same.” Id. at 940. Accordingly, “as used in this
case,” Grazier, 393 A.2d at 339, both the federal and state statutes under
which Gross was prosecuted are designed to vindicate substantially the same
interests, i.e., the protection of the public by prohibiting the transfer of
certain firearms to various categories of individuals.
Because the Commonwealth has not demonstrated that the law under
which it seeks to prosecute Gross is designed to prevent a substantially
different harm or evil from the law defining Gross’ federal offense, see 18
Pa.C.S.A. § 111(1), the trial court erred in holding that the “interest test”
under section 111 was satisfied. Having failed to satisfy both requisites to
lifting the bar to prosecution under section 111, the Commonwealth is
prohibited from proceeding with its prosecution of Gross.
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9
Gross is also charged with one count of conspiracy to commit a violation of
the Uniform Firearms Act.
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Order reversed. Case dismissed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/28/2017
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