Commonwealth v. McPhail

CAPPY, J.,

concurring.

I concur in the result reached by the majority. I write to emphasize two points: 1) that at common law, the subject matter jurisdiction of the trial courts was not limited to crimes which occurred in the county in which the court sat and 2) even if there were such a common law rule, it was abrogated by the enactment of Article V, Section 5 of the Constitution of 1968 and 42 Pa.C.S.A. § 931.

Both the majority and the dissent seem to accept the proposition that at common law the subject matter jurisdiction of the courts of common pleas was limited to crimes which occurred within the county in which the court sat. However, I question whether there was ever a common law rule which limited the subject matter jurisdiction of the courts of common pleas to crimes which occurred in the county in which the court sat. Indeed, in England there existed the practice of the Court of King’s Bench transferring criminal cases from the county in which the crime was committed to a different county wherein the crime was not committed so that the ends of justice may be served. See, e.g., Rex v. Cowle, 2 Burr. 834, 859-60 (Lord Mansfield wrote “[s]o, in ... England itself where an impartial Trial cannot be had in the proper County, it shall be tried in the next.”); Rex v. Harris, 3 Burr. 1330. See also, 2 John Bayly Moore, A Digested Index to the Term Reports, 234 (1819) (citing cases).

I readily admit that there certainly was a common law right on the part of the defendant to be tried in the county wherein the offense was committed. See Newberry v. Commonwealth, 192 Va. 819, 66 S.E.2d 841 (1951)(speaking in terms of the common law right of the defendant to be tried in the county in *532which the offense was committed and concluding that such right was not absolute). Cf. Commonwealth v. Reilly, 324 Pa. 558, 567, 188 A. 574, 578 (1936)(“In this country and England, the common law right of trial by jury of the county or vicinage was not unconditional.”) (emphasis added). The original reason for the defendant’s right to be tried in the county in which the crime occurred is apparent when one considers the original role of jurors in cases. As the New Jersey Supreme Court observed in State v. DiPaolo, 34 N.J. 279, 285, 168 A.2d 401, 404 (1961), cert. denied, 368 U.S. 880, 82 S.Ct. 130, 7 L.Ed.2d 80 (1961):

a rule developed at early common law that a prosecution be instituted in the county in which the crime was committed .... [T]he rule reflected a practice made necessary by circumstances which no longer exist. Communities were scattered and travel difficult. Petit jurors decided causes upon their personal knowledge rather than upon the testimony of witnesses____

See also Henry G. Connor, The Constitutional Right to a Trial by a Jury of the Vicinage, 57 U.Pa.L.Rev. 197, 204 (1909).

The ancient writ commanded the sheriff to summon “free and lawful men of the neighborhood, etc.” Glanville 32. “And the reason wherefor the jury must be of the neighborhood is for that vicinus facta vicine presumita scire.”[1] Coke Litt. 158 b. and so are all the old writers.

William W. Blume, The Place of Trial of Criminal Cases: Constitutional Vicinage and Venue, 43 Mich.L.Rev. 59, 61 (1944) (“[s]o long as jurors were expected to decide cases from their own knowledge or from information furnished by some of their own number, it was, of course, impossible for the jurors of one county to try a crime committed in another county or outside the country”). U.S. v. Guiteau, 1 Mackey 498, 535 (Supreme Ct. of the Dist. Col. 1882).

This power of the jury to find upon their own knowledge was recognized by the courts long after the time of Edward *533VI, and even as late as 1670, when it was said in Bushel’s case, by the court of common pleas, (Vaughan Rep., 135), that the jury being returned from the vicinage whence the cause of action arises, the law supposes them to have sufficient knowledge to try the matters in issue, “and so they must, though no evidence were given on either side in court.” It was only when the practice of new trials was introduced that juries were no longer allowed to give verdicts upon their own knowledge, [citations omitted] When this power was finally annulled by the remedy of new trials, the trial by jury had been practised for five centuries at least (Starkie, 398)[.]
This power to act on personal knowledge fixed the limitation of the inquiry, and the jury was understood to have cognizance of those matters only which they might thus know.

Not only do we no longer allow jurors to decide issues based upon their presumed knowledge of the case, we positively disapprove of such a practice. Even though the original rationale supporting the requirement that alleged criminals be tried in the county in which the crime occurred is no longer applicable, the requirement itself should not necessarily fall. Such a requirement may still serve the purposes of preventing oppressive conduct by the prosecution, e.g., dragging a defendant far away from friends and support and from ready access to the site and evidence of the crime and presumably the ready access to witnesses of the crime. In addition, such a requirement may serve the purpose of convenience to the court which sits in that county in the efficient administration of justice as well as the convenience of witnesses to the crime.

Nevertheless, just because the defendant had a personal right at common law to be tried in the county in which the offense was committed and just because such a right may continue to serve the efficient administration of justice, it does not follow that another county wherein the crime was not committed lacks subject matter jurisdiction over the case. Indeed, the mere fact that at common law, cases could be *534transferred from one county where the crime was committed to another county supports the idea that the second county had subject matter jurisdiction over the case. Even were it otherwise in England, the practice in the Commonwealth of Pennsylvania is too clear to be ignored; our history is replete with examples of criminal cases wherein venue was transferred from the county in which the crime was committed to another county and this fact supports the idea that the second county did not lack jurisdiction. Indeed the existence of 42 Pa.C.S.A. § 5106, which provides “[t]he power to change the venue in civil and criminal cases shall be vested in the courts, to be exercised in such manner as shall be prescribed by law” lends support to the idea that more than one county has jurisdiction.2 Pa.R.Crim.P. No. 312, which specifically contemplates a court of common pleas granting a change of venue of a trial from one county to another county, also supports the idea that more than one county has jurisdiction.3

At this point it would be helpful to review the distinction between subject matter jurisdiction and venue. In McGinley *535v. Scott, 401 Pa. 310, 316, 164 A.2d, 424, 427-28 (1960), this court stated that

[jurisdiction of subject matter relates to the competency of a court to hear and determine controversies of the general nature of the matter involved... .Venue is the right of a party sued to have the action brought and heard in a particular judicial district.

Thus, as the majority points out, the subject matter jurisdiction of the courts of common pleas as defined by the Constitution and statute is general and is not limited to the territory of the county wherein the court sits. On the other hand, the defendant’s common law right to be tried in the county wherein the crime occurred is, in my considered opinion, nothing more than the historical antecedent of what we refer to today as venue.4

Although the cases cited by the dissent do speak in terms of the “jurisdiction” of the court of common pleas based upon the locus of the crime, I believe that if those cases truly meant “jurisdiction” then they are irreconcilable with the cases, statutes and rules which permit a change of venue to a county other than that in which the crime occurred.5 It is better to understand the cases cited by the dissent as standing for the *536proposition that the defendant’s conditional right to be tried in the county in which the crime occurred was violated without a sufficient justification being shown by the Commonwealth for such a violation, and therefore, some remedy must be granted to the defendant to vindicate that right.

However, as stated before, to say that a defendant has a right to be tried in the county in which the crime occurred is *537not to imply that another county lacks jurisdiction of the case. With due respect, I believe that the cases relied upon by the dissent either confuse the concept of jurisdiction and venue or use the language of jurisdiction and venue loosely. That this is the case is not surprising, as we have previously observed, “in cases where the differentiation of Venue’ and ‘jurisdiction’ was not material to the decision, courts have at times inappropriately used the terms interchangeably. See, e.g., Merner v. Department of Highways, 375 Pa. 609, 101 A.2d 759.” McGinley v. Scott, 401 Pa. at 318 n. 2, 164 A.2d at 428 n. 2 (1960). See also Commonwealth v. Bracalielly, 540 Pa. 460, 478-79 n. 4, 658 A.2d 755, 764-5 n. 4 and accompanying text (1995)(Zappala, J., dissenting); Commonwealth v. Bertels, 260 Pa.Super. 496, 500 n. 5, 394 A.2d 1036, 1038 n. 5 (1978) aff'd, 491 Pa. 187, 420 A.2d 404 (1980)(“the question of venue between the counties has been treated as one of subject matter jurisdiction.” [citing cases]).

Even if there had been a common law rule which limited the subject matter jurisdiction of the courts of common pleas to crimes occurring in the county in which the court sat, I do not believe such a common law rule survived the enactment of Article V, Section 5 of the Pennsylvania Constitution of 1968 which provides that “[t]here shall be one court of common pleas for each judicial district .... having unlimited jurisdiction in all cases except as otherwise may be provided by law” (emphasis added).

The dissent appears to believe that word “law” in the phrase “except as may otherwise be provided by law” includes the alleged common law rule that subject matter jurisdiction is limited to the county in which the crime occurred. While one possible meaning of “law” is “common law,” “law” may also signify only statutory law enacted by the General Assembly. See e.g., McKinley v. School District of Luzerne, 383 Pa. 289, 118 A.2d 137 (1955); McCormick v. Fayette Co., 150 Pa. 190, 24 A. 667 (1892); Baldwin v. City of Philadelphia, 99 Pa. 164 (1881); County of Crawford v. Nash, 99 Pa. 253 (1881); Murphy v. Bradley, 113 Pa.Commw. 387, 537 A.2d 917 (1988).

*538As the term “law” may mean only statutory law or both statutory law and common law, it is ambiguous. The general principles governing the construction of statutes applies also to the interpretation of Constitutions. Perry County Telephone & Telegraph v. Public Service Commission, 265 Pa. 274, 108 A. 659 (1919); Booth & Flinn, Ltd. v. Miller, 237 Pa. 297, 85 A. 457 (1912). Those rules of statutory construction inform us that only where there is ambiguity, may we have resort to the rules of statutory construction. See 1 Pa.C.S.A. § 1921(b); See also In re Kritz’ Estate, 387 Pa. 223, 227, 127 A.2d 720, 723 (1956)(“rules of statutory construction are to be resorted to only when there is [patent or latent] ambiguity.”) Since the word “law” as used in Article V, Section 5 is ambiguous, we may resort to the rules of statutory construction. Those rules direct that where words are ambiguous, the object of resolving that ambiguity by interpretation is to ascertain and effectuate the intent of the drafters. 1 Pa. C.S.A. § 1921(a). Moreover, the “constitution is entitled, like other instruments, to a construction, as nearly as may be, in accordance with the intent of its makers.” Moers v. City of Reading, 21 Pa. 188, 200 (1853). See e.g., Booth & Flinn, 237 Pa. at 306, 85 A. at 459 (“There is nothing in Section 7, of Article III, that shows the framers of the Constitution intended that this section should apply____”) Accordingly, our task is to discover the intent of the drafters with regard to the meaning which should be ascribed to “law” as used in Article V, Section 5 of the Constitution of 1968.

In ascertaining the intent of the drafters, we may resort to the contemporaneous legislative history. 1 Pa.C.S.A. § 1921(c)(7). The only evidence which my research has been able to discover clearly indicates that the drafters did not intend the word “law” as used in Article V, Section 5, to include the common law. In Debates of the Pennsylvania Constitutional Convention: Journal of the Convention, vol. II, p. 1397 (1969) (hereinafter “Debates”) there is an “Address To The People of Pennsylvania” prepared which “presents the proposals for constitutional revision adopted by the limited Constitutional Convention which will be submitted to the *539voters of Pennsylvania____” In this Address there is a “Summary and Explanation” which gives explanations of the proposed constitutional amendments. The explanation accompanying Article V, section 5 states “[t]he jurisdiction of the several courts [of common pleas] and of the justice of the peace is left to the determination of the General Assembly.” Debates, vol. II, p. 1414 (emphasis added). I find this to be persuasive evidence that the drafters intended that the General Assembly determine the jurisdiction of the common pleas court by statute.6 Accordingly, unless the General Assembly enacted a statute which incorporated the alleged common law rule of county wide jurisdiction, such a rule would not survive the enactment of Article V, Section 5 of the Constitution of 1968.

While the General Assembly could have adopted by statute the alleged common law rule which restricted the subject matter of the courts of common pleas to crimes which occurred in the county, the General Assembly did not do so. Rather, pursuant to Article V, Section 5, the General Assembly enacted 42 Pa.C.S.A. § 931, defining the jurisdiction of the courts of common pleas. 42 Pa.C.S.A § 931, entitled “Original jurisdiction and venue” provides as follows:

(a) General rule. — Except where exclusive original jurisdiction of an action or proceeding is by statute or general rule adopted pursuant to section 503 (relating to reassignment of matters) vested in another court of this Commonwealth, the courts of common pleas shall have unlimited original jurisdiction of all actions and proceedings, including all actions and proceedings heretofore cognizable by law or usage in the courts of common pleas.
*540(b) Concurrent and exclusive jurisdiction. — The jurisdiction of the courts of common pleas under this section shall be exclusive except with respect to actions and proceedings concurrent jurisdiction of which is by statute or by general rale adopted pursuant to section 503 vested in another court of this Commonwealth or in the district justices.
(c) Yenue and process. — Except as provided by Sub-chapter B of Chapter 85 (relating to actions against Commonwealth parties), the venue of a court of common pleas concerning matters over which jurisdiction is conferred by this section shall be as prescribed by general rale.

(emphasis added). I note that these provisions, Art. V, Sec. 5 and 42 Pa.C.S.A. § 931(a) and (b), regarding jurisdiction do not in any way mention or imply that the subject matter jurisdiction of the courts of common pleas are bounded by county territorial limits. Indeed, if anything, both Article V, Section 5 and 42 Pa.C.S.A. §§ 931(a) speak in terms of “unlimited jurisdiction” and “unlimited original jurisdiction” respectively, clearly indicating the rejection of any county territorial limitations upon the jurisdiction of the courts of common pleas.

That this is the case is made even more clear when we consider the predecessor statute to 42 Pa.C.S.A. § 931 which was 17 P.S. § 251 and which provided that

The courts of common pleas shall have jurisdiction and power within their respective counties to hear and determine all pleas, actions and suits, and causes, civil, personal, real and mixed____

(emphasis added). In enacting 42 Pa.C.S.A. § 931, the legislature clearly rejected the language of 17 P.S. § 251 which limited the jurisdiction of the courts of common pleas to “their respective counties.” Where words of a later statute differ from those of a previous one, they presumably are intended to have a different construction. Commonwealth v. Moon, 383 Pa. 18, 117 A.2d 96 (1955). If there were any ambiguity as to the Legislature’s use of the phrase “the courts of common pleas shall have unlimited original jurisdiction of all actions *541and proceedings” in 42 Pa.C.S.A § 931(a), the legislature’s deliberate choice of dropping the previous statutory language which limited the jurisdiction of the courts of common pleas to “their respective counties” may be seen as evidence of legislative intent to reject such a limitation upon the jurisdiction of those courts. 1 Pa.C.S.A. § 1921. Accordingly, I find that if there ever existed a common law rule which limited the subject matter jurisdiction of the courts of common pleas to only those crimes which occurred within the county, such a rule was rejected by the enactment of Article V, Section 5 of the Pennsylvania Constitution and 42 Pa.C.S.A. § 931(a). Thus, if ever there were such a common law rule, it was abrogated.7

The dissent notes the fact that this Court decided Commonwealth v. Boyle, supra and Commonwealth v. Conforti, 533 Pa. 530, 626 A.2d 129 (1993) long after the enactment of Article V, Section 5 and 42 Pa.C.S.A. § 931. These cases cannot be read as this court’s approval by implication of the alleged common law rule restricting jurisdiction to the county in which the crime occurred. That we did not reach in those cases the issue of whether the alleged common law rule which limited jurisdiction to crimes occurring within the county survived the enactment of Article V, Section 5, and 42 Pa.C.S.A. § 931 is not surprising. A review of both the Superior Court opinion and this court’s opinion in Boyle suggests this issue was not raised, unlike in the case at bar where this precise issue was indeed squarely raised and ably argued. That this court will not reach issues which are not raised is a sound jurisprudential practice long adhered to by this court. A review of the briefs submitted in Commonwealth v. Conforti,8 as well as the opinion therein likewise reveals that this issue was not raised therein. Thus, this court’s silence with respect to this issue in *542both Boyle and Conforti cannot be construed as rendering an opinion on the constitutional viability of the alleged common law rule.

To summarize then, the common law of Pennsylvania did not have a rule that limited the subject matter jurisdiction of the courts of common pleas in criminal cases to those crimes which occurred in the county. Rather, the cases cited for such a proposition are best understood as dealing with the common law right of a defendant to be tried in the county in which the crime occurred. Secondly, even if there were such a common law rule, it was abrogated by the enactment of Article V, Section 5 of the Pennsylvania Constitution and 42 Pa.C.S.A. § 931.

For the foregoing reasons, I join the judgment of the majority in discharging the appellant because, the offenses he committed in Washington County and Allegheny County were within the jurisdiction of a single court.

. “Vicinus facta vicine presumita scire" means “one living in the neighborhood is presumed to know the things done in the neighborhood.”

. This statutory power of the courts to change venue is distinct from this court’s inherent power pursuant to its King’s Bench powers to change venue in criminal cases by writ of certiorari. Compare Commonwealth v. Balph, 111 Pa. 365, 3 A. 220 (1886)(setting forth this court’s King’s Bench power to transfer criminal cases to another county) with Commonwealth v. Sacarakis, 196 Pa.Super. 455, 175 A.2d 127 (1961) and Commonwealth v. Mangan, 31 Pa. D. & C.2d 635 (1963) (both cases discuss the statutory basis for the power of the courts of common pleas to change venue.)

. The dissent relies upon a quote from Commonwealth v. Boyle, 516 Pa. 105, 112-13, 532 A.2d 306, 309-10 (1987) which states

[t]he law is clear that " 'the locus of a crime is always in issue, for the court has no jurisdiction of the offense unless it occurred within the county of trial or unless by some statute, it need not....’” It should be noted that the statutes which authorize a change of venue are not such statutes which fall within the meaning of the quote from Boyle. While the venue statutes purport to give the courts power to change venue, those statutes do not purport to bestow subject matter jurisdiction. Indeed 42 Pa.C.S.A. § 931(c) specifically contemplates that a change of venue can only be made to a court which already possesses subject matter jurisdiction; "the venue of a court of common pleas concerning matters over which jurisdiction is conferred by this section [i.e., § 931(a) & (b)] shall be prescribed by general rule.” (emphasis added)

. The majority correctly notes that venue is the right of the party to have the case brought and heard in a particular judicial district. Majority slip op. at 10. However, the majority then goes on to assert that “Appellant’s right to a speedy trial by an impartial jury of the vicinage, Pa. Const. Article I, Section 9, is a matter of venue majority slip op. at 12. I cannot agree. Vicinage refers to the place from where the jury must be drawn which is distinct from venue which refers to the judicial district in which the case must be tried. For example, a crime may occur in Bucks County, even though as a matter of vicinage the jury may have to be chosen from the vicinity of Bucks County, nevertheless, the trial may take place outside of Bucks County as a matter of venue.

. Two cases in particular which are relied upon by the dissent must be mentioned. In Commonwealth v. Simeone, 222 Pa.Super. 376, 379, 294 A.2d 921 (1972), the court quotes Simmons v. Commonwealth, 5 Binney 617, 628-29 (Pa.1813) as follows

The historic foundation for the rule [that subject matter jurisdiction of criminal courts extends only to offenses committed within the county of trial] is that “by the ancient law, 'all offenses were said to *536be done against the peace of the county; contra pacem vice comitis,' 1 Black. 117”

In support of the contention that all offenses were said to be done against the peace of the county, Simmons v. Commonwealth cites 1 Blackstone 117. However, reading the sentence in context makes clear that offenses were not said to be done against the county because they were committed in the territorial limits of the county; rather, they were said to be committed against the county only when they were tried in the court of the sheriff. The following is the context of the sentence from 1 Blackstone 117:

Counties palatine are so called a palatio, because the owners thereof, the earl of Chester, the Bishop of Durham, and the duke of Lancaster, had in those counties jura regula, as fully as the king hath in his palace; regalem potestatem in omnibus, as Bracton expresses it (u). They might pardon treasons, murders, and felonies; they appointed all judges and justices of the peace; all writs and indictments ran in their names, as in other counties in the king’s; and all offenses were said to be done against their peace, and not as in other places, contra pacem domini regis (w). And indeed by the ancient law, in all peculiar jurisdictions, offenses were said to be done against his peace in whose court they were tried: in a court-leet, contra pacem domini; in the court of a corporation, contra pacem ballivorum; in the sheriffs’ court or toum, contra pacem vice-comitis (x).

Moreover, the phrase "in all peculiar jurisdictions” seems to indicate that the practice of saying the offenses were committed against his peace in whose court they were tried was limited to the three counties palatine.

The second case is Commonwealth v. Boyle, 516 Pa. 105, 112, 532 A.2d 306, 309 (1987) wherein this court stated that “ ‘the locus of a crime is always in issue, for the court has no jurisdiction of the offense unless it occurred within the county of the trial ....'” quoting Commonwealth ex rel. Chatary v. Nailon, 416 Pa. 280, 283, 206 A.2d 43, 45 (1965) which in turn quoted Commonwealth v. Mull, 316 Pa. 424, 426, 175 A. 418, 419 (1934). First, it should be noted that the court in Mull made the statement regarding the locus of the crime as delimiting the jurisdiction of the court without citation to any authority. Secondly, the court in Mull clearly confused the ideas of jurisdiction and venue. Although the court in Mull originally stated the issue as one of jurisdiction, the court then goes on to conclude "[t]he venue being substantially in issue, it was error for the trial judge to refuse defendants' request to charge as to it.” Mull, 316 Pa. 424, 427, 175 A. 418, 419 (1934)(em-phasis added).

. At the end of the explanatory comments, there appears the following:

The above Summary and Explanation is offered for the convenience of the people only and is not to be considered an official interpretation of the proposals to which it relates.

Debates, vol. II, p. 1431. Despite this caveat, I find the explanation of the term “law” as used in Article 5, Section 5 to constitute some evidence of the drafters’ intent and, as such, appropriate grist to resolve the ambiguity.

. While I am aware of the interpretive principle that a statute does not work a change in the common law unless the intent to alter it clearly appears, Commonwealth v. Hartung, 156 Pa.Super. 176, 39 A.2d 734 (1944), I believe that the foregoing clearly demonstrates the legislative intent to abrogate the alleged common law rule of county wide jurisdiction.

. Unfortunately, the briefs in the Boyle case are no longer available to this court.