Com. v. Schmidt, M.

J-S47016-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MICHAEL LEE SCHMIDT :
:
Appellant : No. 1598 WDA 2017

Appeal from the Order Entered October 25, 2017
In the Court of Common Pleas of Lawrence County Criminal Division at
No(s): CP-37-CR-0000973-2014

BEFORE: OLSON, J., McLAUGHLIN, J., and STRASSBURGER*, J.

MEMORANDUM BY McLAUGHLIN, J.: FILED AUGUST 31, 2018

The Commonwealth appeals from the order entered October 25, 2017,

which in part granted Michael Lee Schmidt’s motion to dismiss charges

pursuant to statutory double jeopardy as defined by 18 Pa.C.S.A. § 111.1 In

this case, the Commonwealth seeks to prosecute Schmidt for his role in a

conspiracy to distribute heroin in Lawrence County, Pennsylvania. However,

Schmidt has already pleaded guilty to conspiracy, based upon the same

conduct, in federal court in Ohio. As the Commonwealth failed to establish

that its prosecution requires proof of a fact not required by the federal

prosecution and that the harm it intends to prevent is substantially different,

we affirm.
____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 The Commonwealth certifies that the order granting Schmidt’s motion
substantially handicaps the prosecution of this case. See Pa.R.A.P. 311(d).
J-S47016-18

The trial court set forth facts and procedural history, which we adopt

and incorporate herein. Trial Court Pa.R.A.P. 1925(a) Opinion, filed November

8, 2017, at 1-8.

The Commonwealth raises the following issues on appeal:

1. Whether the trial court erred in dismissing Counts 2, 3, 4, 5,
6, 7, 8, 10, 11 and 12 charging Conspiracy (18 Pa.C.S.A. § 903)
pursuant to 18 Pa.C.S.A. § 111 through application of
Commonwealth v. Savage, 566 A.2d 272 (Pa.Super. 1989) in
finding that a single and broader conspiracy existed between the
Ohio indictment and the Commonwealth’s prosecution.

2. Whether the trial court erred in finding 18 Pa.C.S.A. § 111,
through application of Commonwealth v. Wetton, 591 A.2d
1067 (Pa.Super. 1991); Commonwealth v. Besch, 544 Pa. 1,
674 A.2d 655 (1996) in dismissing the substantive corrupt
organizations charge[2] at Count 1 of the Information.

Commonwealth’s Br. at 8 (unnecessary capitalization omitted) (issues

reversed for ease of analysis).

The Commonwealth’s issues present questions of law, which are subject

to plenary review in this Court. See Commonwealth v. Williams, 151 A.3d

1113, 1114 (Pa.Super. 2016); Wetton, 591 A.2d at 1071.

In Pennsylvania, the Commonwealth may not prosecute an individual

for criminal acts under certain circumstances where the individual has been

prosecuted for the same conduct in another jurisdiction. A subsequent

prosecution is barred, in relevant part, where:

[t]he first prosecution resulted in an acquittal or in a conviction as
defined in section 109 of this title (relating to when prosecution
____________________________________________

2 See 18 Pa.C.S.A. § 911.

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J-S47016-18

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[.]

18 Pa.C.S.A. § 111(1)(i) (emphasis added).

The Pennsylvania Supreme Court has approved a three-part inquiry to

determine whether Section 111 bars a subsequent prosecution.

(1) Is the prosecution the Commonwealth proposes to undertake
based on the same conduct for which the individual was
prosecuted by the other jurisdiction?

(2) Do each of the prosecutions require proof of a fact not required
by the other?

(3) Is the law defining the state offense designed to prevent a
substantially different harm or evil than the law defining the other
jurisdiction's offense?

Commonwealth v. Traitz, 597 A.2d 1129, 1132-33 (Pa. 1991) (quoting

Commonwealth v. Abbott, 466 A.2d 644, 649 (Pa.Super. 1983)). Although

the statute is silent regarding the relevant burden of proof, it is well settled

that

when a defendant raises a non-frivolous prima facie claim that a
prosecution may be barred under 18 Pa.C.S.A. § 111, the
prosecution 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. Savage, 566 A.2d 272, 284 (Pa.Super. 1989) (emphasis

in original).

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J-S47016-18

In its first issue, the Commonwealth contends the trial court erred in

failing to consider appropriately the evidence in support of its contention that

Schmidt engaged in multiple conspiracies to distribute heroin. See

Commonwealth’s Br. at 40-64 (asserting, without supportive legal authority,

that federal investigation produced insufficient evidence and that Schmidt’s

guilty plea “bolstered” the federal investigation).3 However, the apparent

depth and detail of the Commonwealth’s investigation does not reveal

different criminal conduct by Schmidt. Rather, it merely confirms that the

conduct prosecuted by federal officials – and for which Schmidt has pleaded

guilty – encompasses the same conduct for which the Commonwealth seeks

to prosecute.

In Savage, this Court similarly focused on an elaborate criminal

conspiracy to distribute narcotics. See Savage, 566 A.2d at 273-74. At issue

was the role of a single defendant, who the Commonwealth asserted was the

sole link between multiple conspiracies. Id. at 275. Based on facts similar to

those present here, we rejected the Commonwealth’s assertion.

____________________________________________

3 The Commonwealth’s repeated citations to Exhibit A, including an affidavit
signed by Special Agent James C. McCann in support of a federal wiretap
application are inappropriate. See, e.g., Commonwealth’s Br. at 44, 45, 46,
49, etc. Based on our review of the record, Exhibit A was never introduced or
incorporated into the certified record. We caution the Commonwealth that
“for purposes of appellate review, what is not of record does not exist.”
Commonwealth v. Johnson, 33 A.3d 122, 126 n.6 (Pa.Super. 2011). We
need not sanction the Commonwealth, as the affidavit does not impair our
analysis. Incidentally, even if it were of record, it would not change the
outcome of this appeal.

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J-S47016-18

Plainly, the distribution of cocaine from an importer to a
wholesaler or retailer envisions and in fact requires the wholesaler
or retailer to enter into further agreements with others to
profitably dispose of the wholesaler’s or retailer’s inventory,
thereby providing capital for future intended purchases from the
importer. Thus, the fact that appellant was the sole link between
the conspiracies was rendered virtually insignificant in light of
appellant’s roles as a buyer in the federal conspiracy, and as a
seller in the alleged state conspiracy.

Id. at 285 (concluding that state-alleged conspiracy “merely a necessary facet

of the broader federal conspiracy”).

Here, as concluded by the trial court, Schmidt distributed heroin from

the wholesale level to retailers. See Trial Ct. Pa.R.A.P. 1925(a) Op. at 14.

Essentially, Schmidt’s distribution network in Lawrence County was merely a

facet of the broader conspiracy based in Ohio. Thus, Schmidt’s link between

an importer and the retail distribution network did not establish separate

conspiracies. Id. (citing in support Savage). After review of the record, the

parties’ briefs, and the relevant law, we affirm on the basis of the well-

reasoned opinion of the Honorable J. Craig Cox, which we incorporate herein.

Id. at 7-17.4

In its second issue, the Commonwealth similarly contends that, with

regard to its substantive, corrupt organizations charge, the trial court erred in

concluding that it seeks to prosecute Schmidt for the same conduct for which

____________________________________________

4 The Commonwealth’s argument focuses solely on the first part of the Traitz
inquiry. See Commonwealth’s Br. at 38-64. Thus, it has conceded that it
cannot meet the “different required facts/substantially different interests”
exception to the bar on re-prosecution. See Savage, 566 A.2d at 285; see
also Pa.R.A.P. 2119 (Argument).

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J-S47016-18

he has already pleaded guilty. See Commonwealth’s Br. at 65-68. For the

reasons set forth above, we reject this contention. The Commonwealth further

suggests that proper analysis of the second part of the Traitz inquiry, i.e.,

the “different required facts” exception, militates in favor of its prosecution.

Id. at 68-71. However, the Commonwealth seemingly concedes that it cannot

establish the “substantially different interests” exception to the bar on re-

prosecution. Id. (failing to address this exception in its analysis); see also

18 Pa.C.S. § 111(1)(i) (requiring Commonwealth to establish both different

required facts and substantially different interests exceptions before re-

prosecution permitted). Accordingly, the Commonwealth is due no relief.

As described succinctly in the trial court’s opinion, resolution of this issue

hinges upon the proper understanding of the harm the General Assembly

intended to address in the corrupt organizations statute. See 18 Pa.C.S. §

911. The Assembly’s legislative response to Commonwealth v. Besch, 674

A.2d 655 (Pa. 1996), is instructive. In Besch, our Supreme Court concluded

that the “clear intent” of Section 911 was to prevent infiltration of legitimate

businesses by organized crime. Besch, 674 A.2d at 659 (thereafter vacating

appellant’s judgment of sentence for corrupt organizations where drug

conspiracy was entirely illegitimate). However, following this interpretation,

the General Assembly amended Section 911, prohibiting racketeering

activities in both “legitimate as well as illegitimate entities.” See 18 Pa.C.S.A.

§ 911(h)(3); see also, e.g., Commonwealth v. Williams, 141 A.3d 440,

449 n.8 (Pa. 2016) (recognizing Besch superseded by statute)

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J-S47016-18

Effectively, the General Assembly’s amendment breathed new life into

a prior, plurality opinion of the Court. In circumstances similar to those

present here, in Commonwealth v. Wetton, 641 A.2d 574 (Pa. 1994), the

Court stated the following:

While federal drug conspiracy is a different crime from substantive
corrupt organizations, both statutes are used in this case to
protect the same governmental interest the elimination of the
pervasive drug trafficking network in our society. … [T]herefore,
… the proper application of Section 111 of the Crimes Code bars
[a]ppellant[’]s prosecution on all substantive corrupt
organizations charges, 18 Pa.C.S.A. § 911(b)(3). To hold
otherwise would be to apply Section 111 in such a narrow and
limiting manner so that dual prosecution would effectively be
barred only where exact crimes match exact dates - crime for
crime and date for date. Because the federal drug conspiracy
statute and the state substantive corrupt organizations statute
protect the same governmental interest, … the third Traitz
question is answered in the negative and therefore the statutory
bar of 18 Pa.C.S.A. § 111 cannot be lifted.

Id. at 579-80 (plurality opinion in support of reversal). Thus, after review of

the record, the parties’ briefs, and the relevant law, we affirm on the basis of

the well-reasoned opinion of the Honorable J. Craig Cox, which we incorporate

herein. Id. at 17-21.

Order affirmed; case remanded for further proceedings; jurisdiction

relinquished.

Judgment Entered.

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J-S47016-18

Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/31/2018

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 -
'·
Circulated 08/21/2018 09:57 AM

COMfv1QNWEALTH OF PENNSYLVANIA IN THE COURT OF COMMON PLEAS

VS. LAWRENCE COUNTY. PENNSYLVANIA

MICHAEL LEE SCHMIDT. CRIMINAL. DIVISION

Defendant NO. 973 OF 2014

APPEARANCES.
For The Commcnweelth; Diane M. Shaffer, Esq.
Office of the District Attorney
430 Court Street ·
New Castle, PA 16.101
For The Defendant Thomas N. Farrell, Esq.
100 RossStreet, Suite 1
Pittsburgh, PA 15219

OPINION

COX.J .. November 8, 2017

This Court authored tbis Opinion pursuant to Pa.R.A.P. 1925(a) regarding the

appeal filed by the Commonwealth of Pennsylvania. from this Court's partial grant of·

DefendantMichae.1 Lee Schmidt's Motion·.fo Dismiss Based on Doubt�Jeopardy and. 18

Pa.C.S. § 111. This Court granted the Motion as to .the. Conspiracy and Corrupt

Organi:Zations charges and left in place the charges of Corruption of Minors and Delivery

of a Controlled Substance.

The. case was. before this. Court on May 27, 2016, .July B,. 2016, and August .8,.

2016., for hearings on Omnibus Pretrial Motions. filed by the Defendant. Following the

hearinQs, a briefing s.chedule was s.et, with numerous extensions requested by both the

··$3RC Commonwealth and the Defendant
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 The. evidence presented for this Court's consideration included the Preliminary

Hearing transcripts of the Defendant, the Preliminary Hearing transcripts of his alleged

co-eonspitators, as well as the transcripts from the Omnibus Pretrial Hearings held

before this Court, transcripts and evidence. from the Defendant's- Federal case, and other·

exhibits relating to the inve�tigation of the.case before this Court. Taken together, the

facts are as follows.
Frank Drew, head of the District Attorney's Drug Task Force ("Task Force") ln •
Lawrence County and former Drug Enforcement Agency group supervisor, investigated

the manner in. which heroin was distributed in Lawrence County and he discovered a
structure concerning the drug's distribution. The �ommonwealths.ubr:nitted the. transcript

of the preliminary hearings of Defendant's aileged co-conspirators in which Detective .

Drew testified there was a hierarchy spanning from the drug supplier to street-level

· distributors. According to Detective Drew, this hierarchy consisted of three levels, which

· included the source .of supply, as many as four upper.. level dealers and an indeterminate

numberof.street-tevel dealers: The upper-level dealers determined the number o.f street-

level dealers who worked for them. Detective Drew also stated the. lower two levels

crossed over concerning their roles in the organization.as they were interllnked.'

Detective Thomas. Costa of the New Castle Police Department, · assigned to the

Drug Task Force," stated that frr June . or July of 2013, he and other detecuves

c.ommenced an investigation into heroin distribution in New Castle due to the number of

people. overdosing from thetsubstence and the frequency at which ponce nottC.ed the

1
.Notes of Testirnoriy of Defendant's co-conspiratorsar Case Nos. 390 .. 71>3, 704,. 705, 706,and 107 o(2()J4;
.5lRD testimony of Frank Drew, pp. 12..:24 (general description of hierarchy),
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DISTRICT.
J Testimony in. the heating referred to the Dnfgj'[�lf.t���j�l�ff��geably with the. "Special lrivcstig�tions Unit"
The Court wi 11 refer to both un.i.ts as the Qn,g Task force, See. e.g, Notes ofTestimcin)\ On'lri ibus Pretrial Hearing,
Augus18, 201.6, p. 4,
.LAWRE�:ce �OUN.TV
l'ENHSY.LVANIA
 orug appeared in their investigations. The police officers received aid from ten

confidential informants (''Cl") and a· confidential source as well as outside law

enforcement agencies.

Detectives from the Lawrence Cou�ty Drug Task. Force intervie.wed sever-al of

these confidential informants; each of whom indicated the Defendant was purchasing.

heroin from a source in the Youngstown, Ohio area, though the informan\s prpvid�d

differing aliases of the source. The informants further described the source as either

bein9 black or Puerto Rican,

The co.nfidential informants described the nature of the drug distribution· network

of Vihich the Defendant. is accused of operating. One confidential informant described

driving the Defendant to Youngstown to pick up fifty thousand dollars wo.rth of heroin.

Other informants described tha.t the Defendant would. act as a wholesaler to three

different individuals: M:S,, Christopher Gravatt, and Defendant's brother Anthony

Schmidt. These three individuals would then distribute to lower level dealers who would

themselves sen smaller amounts at retail.
Jamie Clobus, M.S.'s girlfriend, corroborated the statements of the co.nficJen.tial

informants. At the heir;1ht of these events. M,.S. did not .have a driver's. license. Clobus

Would drive him. As part of the driving she did for M.S�. Clobus would drive M.S. to
Youngstown, Ohio for M.S. to purchase. heroin front a black male called 'Face'. During

• one trip to Youngstown, Clobus and M,S. were pulled over by police. Afterthat, M:S, had

a discussion with his father, the Defendant, who told M.S; from then on to buy the heroin

directly from him. Clobus was present durihg at least some of the purchases by M.S.
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 from the Defendant. Clobus told Detective Costa M.S. would re-supply from the

Defendant a feW times a week.

On May 29, 2014, Detective Costa was contacteo by Ohio law enforcement
indicating they. were aware who the Defendant's. supplier was, .and th�y believed the
Defendant would be coming to Younqstownon that day for a meeting with the supplier.

The Ohio police told Detective Costa the identity of the supplier was Alberto Delgado,

also. referred to as Poppy; Because of this tnterlurisdictionat cooperation; a joint

investigation. began between · the Lawrence County Drug Task Force and authorities in

Ohio.

The same day as this fi�t contact with the Ohio authorities, the Lawrence County

Drug Task Force engaged in surveillance of a' black Pontiac which they previously had.

determined to belong to the Defendant. Anthony' Sinibaldi got into the driver's side of the

vehicle and the Defendant got into the passenger's side. The police then su.rveme.d the

Defendant as they drove into Ohio on State. Route 422. When the Defendant's vehicle

reached the Ohio border, the Task force discontinued survejllance, all.owing the Ohi.o

police to take over. The Lawrence ColJnty Drug Task Force maintained contact with the

Ohio, authorities. The Lawrence Courity Drug Task Force was unable to follow the -,

Defendant on his return from Ohio, however Lieiitenant · Anthony Lagne�e had set up .

surveillance at the Defendant's residence. Ueutenant Lagnese observed the Defen��nt

enter the. front door of his residence. A -short time after this observation Christopher

Gravatt went into the residence and then eventually left the scene.

Statements from c.1. 3. indicated the Defendant was buying heroin in such
53AD
JUDICIAL significant quantities that Delgado W;?LJLl�rr,9me· 1G9:·,t,.aLwrencellows:

18 Pa.c.s. § 111 provides:

''When conduct constitutes an .offense within the. cencurrentjurlsdicnon of this

Commonwealth and of the Uni.led States or another state, a prosecution i11 any such

other jurisdiction ts a bar to a subsequent prosecution in this Commonwealth under the

foHQwing circumstances:

(t) The first prosecution resulted ln an acquittal or i.n a convkfion 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 diffet�nt 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 orjudgment for the. defendant Which has not been set aside,

reversed or vacated and which acqulttal, final order or judgment necessarily required a

deterrntnatton inconsistent with a fact which must be establis.hed, for conviction of the
53RO
offense of Which the defendant is $U�.S E;.g�en�!y,p,rosecuted:··
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PENNSYI.VANIA
 The case. before this Court fell under the analyti�al framework of subsection (1)(1).

The Criminal Complaint was filed against the Defendant in Pennsylvania on June 23,

2014. The Defendant was arrested by authorities ·in Pennsylvania on June 24, 2014. The

Informafion wasfiled against Defendant on October 1, 2014. On December 21 2014, a
Federal Indictment was filed against the D.efendaotand others in the Northern. District of

Ohio, On December 3, 2014, by Preliminary Order of Court, President Judge Dominic.k.

Motto scheduled a Hearing on the Omnibus Pretrial Motion on February 2, 2015, before
now Senior Judge, Thomas M. Piccione. On January 6, 2015, Judge Piccione continued

the case on the Court's own motion to February 6, 2015. On January 13, 2015, March

18, 2015, and May 5; 2015, three Motions tor Continuance were filed by the Defendant,

not opposed .by the Commonwealth, and Granted by Judge Piccione. On May 27, 2015,
the Defendant pleaded guilty pursuant to a plea a.greernen.t to count 1 of the Federal

crimin.al indictment alleging a violation of 21 U.S.C ..§ 846 and violations of 21 U:S.C. §

841. He was sentenced in the Federal case on October 1; 2015. Several additional

. Motions for Connnuanee and additional Omnibus Pretrial .Motions delayed. the first

hearing on the Mo.tions to May 27, 2016.

Defendant avers the. conduct lo Vllhich he pleaded gUilty in Federal Court is part of
the overall criminal enterprise of drug trafficking comprising both the Ohio and the

Lawrence C.ounty distribution network. "[W]hen a defendant raises a non.:ftivolqus prima

facle claim. that a prosecution may be barr.ed under 18 Pa.C.S. § 111, the prosecution

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
'S·JF!C
JUDICiAL. reprosecution applies." Com: v. Sayaqe,,c56f3·, �4d 272, 284 {Pa. Super. 1989). "A
DIST�ICT. f' I LC IJ/ J K I l:d 1: ;':'\ L

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 frivolous claim is a claim clearly and palpably without merit; it is a claim which presents

no debatable question." Com. v. Gains, 556 A.2d 870,.874 (Pa. Super. 1969). Despite

the Commonwealth's contention there is a low amount of overlap between the

conspiracies, the claim these conspiracies are part of a single larger criminal conspiracy

. is not so without merit to warrant a determination .of frivolousness. Therefore! the Court ·

finds Defendanthas put forward anon-frlvolous prfrnafacie claim. that a prosecution may

be barred under 18 PaaC.S. § 111.

Applicable througho.ut the analysis, the Commonwealth stated in its brief the

Defendant pleaded guilty to.21 U.S.C. § 841 and not to Section 846 of the same Title.

This is incorrect. While Count 1 of the federal indictment does nor explicitly reference

Section 846., it does state ··As to Michael L. Schmidt, aka "Big Mike'' , .. , those defendants

conspired to possess with inteJ'it · to distribute and to distribut� a niixt�re or substance

containing a detectable amount of heroin, a Schedule I controlled substance in violation

.of Title 21,. United States Code, Sections 8.41(a)(1} and 841(b)(1)(c)." (emphasis

supplied). Section 841 charges substantive crimes relating to possession. manufacture,.

and deliyeiy ofcontrolled substances; Section 846 is the general conspiracy and attempt
provision whi.ch covers all conspiracies. under t�e same subchapter .. including Sec.tion

841. Because Defendant was charged with conspinng to violate 21 U.S,C. § 841, he was

charged under Section 846, .even though it was not explicitly stated in Count t.
While this is evident from a precise reading of Count 1, it is reinforced in the

federal guilty plea proceeding. Assistant United States Attorney David M. Toepfer,

Esquire. states, 'Yovr Honor, the defendant is pleading guilty to 2 r, .United States· Code,
·53,.p
JUOl<;:IAL
0.ISTRI.CT

LAWRENCE· COUHT·V
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The Commonwealth made a second . generally applicable· a rgurnent as to doubl.e

jeopardy resting on .the reasoning of United States v. Roman, 13141.-05, 2015 WL

.224�70, at *2 (ED.. Pa.. Jan. 14. 2015), for th.e proposition "there is no double jeopardy

bar to prosecllting a d.efendant in federal court for the same conduct for which he was ·
prosecuted in state court." kl

This �rgument relies on a misinterpretation of the asymmetric natureof theretes

of Federal Courts and those of tne commonwealth of Pennsylvania. In United States v.. ·
Lanza,. 260 U.S. 377, 382, 43 S.Ct. 141, 1421 67 L.Ed� 314. (1922), the Supreme Court of

the. United States first set forth the theory of separate sovereigns when it held: "It follows

that an act denounced as a. crime by both national and state sovereignties is an offense
agc;1inst the peace and dignity of both .and may be punished by each." Id. Since that
pronouncement; courts, commentators, and some states have expressed the inequity

which they believed resulted from this allowance of separate. prcsecunons for the same

act. As the Commonwealth itself acknowledges; even the Roman Court on which they

rely expressed distaste for the separate sovereigns theory which required the: result in
.that case. In 1973.; 18 Pa.C.S. § 111 was enacted es P.L. 14.82 likely in response to the

devefopirig law of separate sovereignty. With that enactment. Pennsylvania bound itself

to notprosecute under certain circumstances where an ind.i.vidual wasprosecuted forthe

same conduct in another .Jurisdiction. This enactment does not affect Feder.at Courts.•

even those based in Pennsylvania, and it. does not affect . a constitutional double

jeopardy analysis. WhE;m Roman stated "there is no double jeopardy bar to prosecuting a

defendant in federal court for the same conduct for which he was prosecuted in state
5.JRD
JUDICl�L court," Roman; at *2, the court was. referring only to the constitutional double jeopardy
·. · .· . . t f !..tD./OR·l;�i .. } .· .. .
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· protections and not the additional state protections by whic.h the Federal Courts are not
bound: IJ\lhile it is hue there is generaily no bar to prosecuting -a defendant in Federal

Court for tt,le same 'conduct forwhich he· was prosecuted' in state court, the converse .is .

notaccutate '; Ccnstitutionat ,qoublejeopardy. issues may· not bar the prosecutlon, .buUhe..

ultlmate outcome concerns tl')e. application · of Section 111.

The Corhh'lo('IW_e·alth., in- its Concise .Staternent of Matters Complained of on
Appeal states this C:ourt relied on Lanza ip finding a si.ng_le corrspiracy.
' .
To be dear,

Lanza. only-forms the background ofJhe doctrine ofseparate sovereiqnty ·and :does not.

control this Court's application of Section 11 t.

Contiri0in·g to.the gravamen of the argument; :app.lyin.g :Coni. _v. Abbott1. 4.66 A.2d

644 (Pa: Super: 198-3), the Pennsylvania Supreme Court in Com.- v. Traitz; '597 A_.2d

1'129, t132.:...33 (Pa, 1991) created a· three question inquiry with regard to whether

Section 11 i applies
.
to bar a subsequent
.
prosecunon.

(1) r� the prosecution the Cornmonweatth ·:proposes to undertake based on Jhe, .
same ttin,9l:IG.t for whi.ch the. individual was _prosecuted by the. other jurisdiction?

(2) Do each ofthe presecutiensrequire proof ot.a fad not required by theother?
(3,l _I� the law. defining .the state offense g_esignec;i to pr�V.ent -a substantially

differentharm or evil thanfne.law definin_g the other jurisdiction's offense?

AbbotUurtherprovid_es:th� method with wh.iot:i to _apply.the.se three .pronqs.

"If we .conclude that the subsequent prosecution is not based on the· same

conduct as. the -fec;l�H�I prosecution, then our analysis is concluded since the statute

makes clear that in s.uch situation subsequent prosecution by the Commonwealth is not

it
S)RO

. . ��ent
·JUDICIAL barred. however, we conc1/Jft.ecl9.f!J�,Ht>,S. .
prosecution bythe Commonwealth Mis
OIS'TR)CT

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 based on the same conduct" for which appellant was prosecuted by the federal

government,.the prosecution can proceed only if both of the following conditions .exlst;

(1) each ofthe prosecutions requires. proof of a fact not requited ofthe other; and (2) the

statute upon which the Commonwealth prosecution is based is intencfed to prevent
substantially different harm than is the federal statute ... It would seem that an affirmative
answer to the initial inquiry lowers the bar to the subsequent prosecution and that only

an affirmative response to both of the remaining inquities can lift the bar:" Abbott, 466

A2d at 649 (emphasis supplied).

Then, the first question for this Court was Whether the prosecution the

Commonwealth proposes to undertake is based on the same conduct for which the
individual was prosecuted by the other jurisdiction. For the Commonwealth to avoid the
second .and third Traitz questions, they. must prove by a preponderance of the evidence

the 'federal and state charges are not based on the same conduct. Savage, 566 A.2d at

284.

With regards to the similarity of the conduct involved in the case before this Court,
the Cemrnouwealth's argument was, rather than a single conspiracy, there are two
. separate conspiracies which were charged separately and should· be treated separately

·here. In its brief in support, the Commonwealth asserts "[t)he only overlapping evidence

between-the Ohio lndlctment.and this case and its consolidated co-defendants is (1)the

detendant was obtaining his supply of heroin. for distribution within Lawr.ence County

from Delgado; and (2) the commonwealth presented photographic evidence of Delgado

meeting with the defendant at the. defendant's residence.. here iri New Castle in May of
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2015, evidencing the delivery of heroin from Delgado to this defendant as arranged and

recorded by the federal authorities in. Ohio.;;.ii

The Defendant does notarg!Je the contacts betweerr the lower levels of tn.eNew

Cast!� conspiracy are significant and intertWined with all levels in the. Ohio co.h$piracy,

but rather, the contacts between the Defendant and Delgado are sufficient to establish · a

single conspiracy involvin9. both locations and each network of individuals.

The Superior Court in Com. v. Savage, 566 A.2d 272 (Pa. Super, 1989). analyzed
the distinction between a single conspiracy and multiple conspiracies in the context of

drug trafficking operations as follows.
"The relevant overt acts in the federal conspiracy were a series of bulk purchases

of cocaine for resale, by appellant from Moskovitz. The relevant overt act in the state

conspiracy was a single sale of a smaller bulk amount of cocaine for resale, by appellant.

to Ms. Janoski' and Mr. Lipinski. Appellantis th� only person designated as a named

conspirator in both conspiracies. The overt act alleged in furtherance of the state

conspiracy occurred during the continuance .of the federal conspiracy. The acts of both

conspiracies occurred in· the same ,general area'. Both conspiracies involved the illegal

sale of cocaine:

In light of the absence of any indication that appellant used any source other than

Moskovitz as a supply for his· wholesale/retail cocaine distribution operation! it w.ould

appear that. vis a vis appellant, the sale of. cocaine which formed the basis of the

present state conspiracy charge could quite possibly have been a necessary facet of his ·

ongoing conspiracy with Mos.kovitz to wholesale and/or retail cocaine. Plainly, the.
s.,l'lo
juoic;iAL . c:lisfribtition of.cocaine from ap.1L�'60,B�i�?ii�ir.holesaler·or retailer envisions .and in fact
DISTRICT-

Cornmonweahh 's Brief in Opposition ·of Omnibus Pretrial Motions, p;22.
4

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 requires the wholesaler or retailer to enter into further agreements with others to

profitably dispose of the wholesaler's or retailer's inventory, thereby providing capital for

future intended purchases fromthe importer. Thus, the fact that.appellant.was the sole .

link be�een the conspiracies was rendered virtually insignificant in. light of appellant's

roles as a buyer in the federal conspiracy, and as a seller in the. alleged state

conspiracy." Id .. at 284-285 (emphasJs ih original):

Savage ultimately·held "[w]hile.it'is possible that appellant had a.separatecccaine

source for the sale to Ms «, Jan.owski and Mr. Lipinski and' that the state conspiracy was

entirely unrelated tothe federal conspiracy', on this record. it is at least equally likely that

the state conspiracy was merely a necessary facet ol the broader federal conspiracy." IQ..
at 2�5,

The circumstances before: the Court closelY. mirror those in Savage� In Savage,
the evidence presented was the Appellant was the distributo.r from 'the wholesale. level to

retailers. the equivalent ofthe Defendant; Moskovitz was an importer who provided the

cocaine to the distributor, the equivalent of Delgado; and Janoski .and Lipinski were

ultimate retailers, th� equiya.lent of the rna.ny retailers in this case; including M.S.,

Gravatt AnthcnySchrmdt, and others.

Without addressing the prior precedent in Savage and ttie factual similarities that

case presents, the Commonwealth rested. its argt.Jment on Delgado and the Defendant

being the only members of the federal indictment who are focused on in .the Lawrence

County Corrupt Organizations case, with only the Defendant being charged· in both

cases. The Savage. holding is clear that .this factor is not dispositive. In any complex
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 import-distribution-retail network, the handling of the distribution leg by .a single party

does not necessarily isolate the retail side ofthe network from the import side.

Additional factual .aspects of this case did not require this Court to rest merely

upon the reasoning it! Savage. Restated, Savage's h.olding is that a single conspiracy

may be established in a drug distribution network when the eonnection between the

· import-distribution conspiracy and the distribution-retail conspiracy is a single person,

and further it is the. Oornmonwealth's burden to show the separateness of the networks.
This case involves more than this singular connection between the two networks. The

Commonwealth glazes over the· $ignificance of the observed May 31, 2014, meeting at

the Defendant's residence, stating, "the Comrr;ionwealth presented. photographic

evidence of Delgado meeting With the defendant at the defendant's residence he.r(! in

New Castle in May of 2015 (sic), evidencing the delivery of heroin from Delgado to this

defendant as arranged and recorded by the federal authoritles in Ohio.;,s What the

Commonwealth fails to state is that also preserit at the meeting were many p.layers in the

retail conspiracy, including Anthony Schmidt, M.S., and Anthony Sinibaldi. With this

meeting, the attenuated connection between the two conspiracies is strengthened and is

far from solely consisting offhe· Defendant and Delgado.

Lastly, in favor of finding the conduct und�r the federal and state cases to be .the.

same, the.. Court looks to the Federal lndictment,
. . ln describing
. the. "Manner
. . and Means of

the Conspiracy" the Federal indictment states: "It was further part of the conspiracy that

[Delgado] supplied heroin to [the Defendant] for distribution in· the New Castle, ·

Pennsylvania, area:" The Federal Indictment itself considers the New Castle distribution

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· s Commonwealth's. Brief in Op�sition of Omnibus Pretrial Mo!ions,.p.22.
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 network to be part of the broader conspiracy to which De.fendant p.leaded .guilty in •

Federal Court.

As iii . Savage, the Commonwealth did not meet their burden of showing by a
preponderance of the evidence the conduct'involved in the stats and federal cases is not

tne same.
Because the first of the Traitz questions was; answered in the affirmative.

indicating the same conduct was involved in the federal and state cases. this Court
turned to the second. and third prongs to determine if the charges constitute statutory
double jeopardy under Sectiont t t.

Th� most recent Amended Information, fih�d on May 14, 2015, charges the

Defendantwith five types of charges: Corrupt Organizations- Control in Enterprise. 18

Pa.C.S. § �11{b)(2); Crimin�I Conspiracy to Violate 35 P.S. § 780�113(a)(30), 18

· · Pa.C.S, § 903; Possession With Intentto Deliver, 35 P.S. § 780-113'(a)l30); Corruption of

Minors. 18 Pa.C.S. § 6301(a)f 1)(ii); and Cqnspiracy to Violate Corrupt Organizafrons, 18

Pa.C.S. § 9-11(b)(4).6

Beginning with the several charges of Conspiracy; the holding in Savage bars the

state prosecution for Conspiracy to Violate 35 P.S. § 780,.;113(a)(30). While the principal

issue in Savage was not the a.pplica,tion of the second and third Traitz questions; the

application of those questions to the fact pattern did not go unresolved. Savage held:

"the Commonwealth failed to meet its burden to establish by a preponderance of the

evidence. that separate conspiracies were involved, and likewise failed to estc:1blish the

existence of substantially different interests to be protected by the second conspiracy
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The Defendant in their Brief in Supptirt b[ib'ef ,.;16.io'ii ib'..6.ismiss addresses the additional, charge ofCorrupf
6
l)ISTff IC:T
brgan izatlons ...:. Employee, pursuanr to l 8 Pa. C'S, § .9 ll (b)(.J), bowever from the most recent amended in formauon,

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 Wetton presents. a nearly identical factual scenario to that before the. Court.

Defendant Wetton was subject to a federal prosecution and convicted of violating federal

drug trafficking law under 21 U.S.C. § 84.6, as was the Defendant in this case. Defendant

Wetton · then challenged whether his conviction for Section 846. barred subsequent

prosecution under Section 911 where the federal drug conspiracy was based on the
same conduct as the Pennsylvania Section 911 charge. Despite the. simple factual

similarity o.f the. cases. the three applicable opinions discussing Section $11(b.){3) in

.Wetton present a somewhat complex a.nalytical posture.

The Watton Superior Court· held Section 911(b){3) is not .barred by double

jeopardy conslderations because it targets a separate evil from the federal drug

conspiracy statute. In. coming to this conclusion, the. Superior Court held:

"The evil targeted by the corrupt organization statute is the covert
introduction of organized criminal activity into the law�abiding business
community. Such permeation of the business community with criminal
elements is .accomplished by violence and intimidation: 18 Pa.C.S. §
.9.1.1ca)(3) ..
The federal conspiracy statute targets illegal agreements to violate the
federal drug laws. 21 U.S.C.A. § 846. The federal drug trafficking laws are .
. directed at controlling the illegal use of contr9iied substances to prevent the •
.detrimental effect otsuctr use. See, 21 V,S.C.A. § 801(2), This activity is
totally criminal. It does not directly impact upon legitimate business activity,
nor is it an a:tteinpt to gain control otthat community." Id. at 1074.

The basis for the Superior q>urt's decision was that the Pennsylvania Corrupt

Organizations charge targeted the permeation of illegal activity into legitimate business
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 The second and third Traitz questions were thus both answered in the

affirmative. The Corrupt Organizations charge had an additlona! element, and lt targeted

a separate evil from the federal conspiracy charge. The appeal 1ri Wettor.r to the

Supreme Court of Pennsylvania resulted in an equally divided court By . rule, this

resulted in the Opinion of the Superior Court remaining in effect.

The sole. area of difference between the Opinion in Support of Affirmance and the

Opinion in Support of Reversal was the result of the third Traitz question. The Opinion in

Support ofAffirmance adopted the rationale espoused by the Superior Court and did not ·

perform a.separate analysis.

The Opinion ih Support of Reversal described the disfinction-ot the SuperiorCourt

as one of form over substance .. The. Opinion further described the governmental interest

as�the elimination ofthe pervasive drug trafficking network in our society." Id. at 579.
Subsequentto the decisions in the Wetton appeals and in response to the case of

Com. v. Besch, 544 .Pa. 1, 674 A.2d 655 (199,6.), the Pennsylvania Legislature modified

the Corrupt Organizations law in Section 9.11. Besch addressed whether the Corrupt

. . .. could extend
·.O. rganizations. statute to the . prosecution of·a wholly. illegitimate enterprise.
.

The. Pennsylvania.Supreme Court. held that based on .it,e statute as it than read (and

ho'>.' it read in the.Wetton opinions). the C�:>rrupt Organizations charge did not extend to

wholly illegitirnate.·enterprises.

Modifications by the legislature following the Besch decision controverted the

interpretation of the Wetton Superior Court, the Opinion in Support of Affirmante by tt,e
Wetton 'Supreme Court. and the ultim.at� holding of the Besch case. The legislature, in
!13RD
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·0·1sTR.fcr IIL.olJ/ n.fGINAL

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 partnership, corporation, .associatlon or other legal entity, and any union or group of

individuals associated in fact although not a legal entity, engaged in commerce and

includes legitimate ,as well as ;!legitimate entities and governmental entities." 18 Pa:C:S.

§ 911 (h )(3) .(emphasis supplied). The changes made to the statute modified the law in a

manner resulting in congruence with the reasoning of the Opinion in Support of

Reversal. Because the Opinion ih Support of Affitrnanc.e in Wettoil was C.on.clitioned on

the Superior Court's reasoning regarding the targeting of the statute tow.a·rd legitin,ate

enterprises, only the reas.bning set forth. in the Opimon in Support of Reversal remains

.applicable and ot persuasive value.

For .ttrese reasons, the Court held the. charge· of Corrupt Organizations under

Section 911(b)(3) targeted substantially the same evil as the Federal conspiracy charge

and would .be barred under the statutory double jeopardy provision pursuant to 18

Pa.c.s. § t'11. While Defendant is charged with Section 911(b){2) rather than (b)(3), the

difference being the Defendant is the alleged ringleader of the enterprise as- opposed to

.ah employee, the evil again$t which the statute is targeted is the same. Count 1 of the

information. charging Corrupt Organizations - Control in Enterprise was DISMISSED with

prejudice.

In its Concise Statement the Commonwealth contends this Court found the

Corrupt Organizations charge to be barred based on application ofWetfon and Besch. ln ·

further ctarlflcanon of this court's position, while the Wetton opinions and the Besch

opinion form the background. of iti present holding, the modifications of the Corrupt

Organization$ statute made t;>y the legislature rattler than these cases themselves
. SJRO
controlled this Court's reasqning. In the case of Welton. the changes made by the
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 legislature now mandate the.opposite of the orif,inal Superior Court result, and this Court
proceeded to apply the law in that manner.

The Order of this Cou.rt partially granting Defendant's Moti.on toDismiss Based on

Double Jeopardy and 18 Pa.C.S, § 111 should be AFFIRMED and the appealshould be

DENIED.

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