Commonwealth v. Bracalielly

*477ZAPPALA, Justice,

concurring and dissenting.

I respectfully dissent from the decision of Commonwealth v. Bracalielly. As the majority notes, the principal case defining what constitutes a single criminal episode is Commonwealth v. Hude. In Hude, we applied Section 110 in determining that eleven charges of possession and delivery arising out of a series of transactions were so logically and temporally related as to require that all the charges be tried together. We relied on the fact that the offenses occurred in the same place over a four month period, were arranged by the same person with the same buyer of similar amounts of drugs, and no additional or corroborative testimony would have been required in a second trial.

Hude requires examination of two factors to determine whether various acts constitute one criminal episode: (1) the logical relationship between the acts and (2) the temporal relationship between the acts. In the instant case, the four transactions occurred within a thirteen day period, and the same confidential informant, Michael Deardon, arranged each transaction by calling Bracalielly at his home in Allegheny County. Also, Bracalielly testified that during each transaction, a future transaction was discussed (R. 48a). Thus, the facts are analogous to those in Hude where a temporal and logical relationship was found.

The majority finds that the critical factor which distinguishes this case from Hude is the “independent” involvement of the two distinct law enforcement agencies of Butler County and Allegheny County. Maj. op. at 472. It emphasizes the fact that these authorities were conducting separate undercover investigations of Bracalielly. I question the importance the majority assigns to this factor and whether the record supports the finding that the investigations were independent.

In footnote twenty-nine, the majority quotes testimony given by Detective Evanson of the Cranberry Township (Butler County) Police. The majority cites the portion of the testimony establishing that the informant merely advised Detective Evanson that he was working with Allegheny County authori*478ties. The majority, however, fails to note that the testimony of Detective Evanson also established that the informant specifically told him the names of several officers from Allegheny County with whom he was working and that Evanson himself spoke with those officers.1 Moreover, the majority also fails to note that agents of the Attorney General were involved in the transactions.2 Thus, it is not clear that the investigations were in fact independent.

The majority seemingly creates a per se rule that when two law enforcement authorities investigate a single defendant, the offenses cannot be one criminal episode. I disagree. As noted, the proper analysis is whether the acts are temporally and logically related. The fact that two different police departments investigated a single defendant does not, in itself, establish either requirement. The evidence presented in this case clearly establishes one criminal episode notwithstanding the fact that two police departments were involved.

Having determined that the offenses in Bracalielly constitute one criminal episode, we must examine the fourth prong of § 110, that the “instant charges and the former charges were within the jurisdiction of a single court.” 18 Pa.C.S. § 110(l)(ii).3

The Commonwealth relies on Superior Court cases which interpret the “within the jurisdiction of a single court” language of § 110 to mean venue.4 The term “venue,” however, *479does not appear in the statute. Had the Legislature intended such a meaning, it could have easily stated that the instant and former charges be “within the jurisdiction and venue of a single court.” In any event, the Superior Court cases are not controlling. Our Court has never addressed the application of § 110 in a case involving multi-county offenses. Moreover, when we have discussed the “jurisdiction of a single court” language of § 110, we intimated that the term dealt with the competency of a court, and not necessarily venue.

In Commonwealth v. Beatty, 500 Pa. 284, 455 A.2d 1194 (1983), we held that § 110 did not bar the prosecution of an aggravated assault charge when the defendant had previously pled guilty to the summary offense of failing to identify himself at the scene of an accident. Our Court distinguished the two offenses by asserting that one was a summary offense within the jurisdiction of the district justice, while the other was within the jurisdiction of the court of common pleas. Thus, the offenses were not “within the jurisdiction of a single court.”

We extended this holding in Commonwealth v. Taylor, 513 Pa. 547, 522 A.2d 37 (1987), to include summary offenses under the Crimes Code, again holding that the district justice had original jurisdiction over the summary offense of harass*480ment, while it lacked jurisdiction over a misdemeanor charge of carrying a concealed weapon.

Thus, when considering the purposes underlying the statute, I read “jurisdiction” in § 110 to mean just that. The fact that multiple offenses stemming from one criminal episode cross a county line should not require the Commonwealth to expend resources on two trials and thereby submit the defendant to successive prosecutions. To hold otherwise would be inconsistent with the rationale of § 110.5

It must be remembered that the other requirements of § 110 must still be satisfied in order to bar a subsequent prosecution. Obviously, the former prosecution must have resulted in an acquittal or a conviction, there must be one criminal episode, and the prosecutor must be aware of the instant charges before the commencement of the trial on the former charges.6 The jurisdictional requirement of § 110 would then ensure that a single court would be competent to hear the matter.

Even if one rejects this interpretation and finds that “jurisdiction” in § 110 means venue, the instant charges are still barred. The question to be answered is not necessarily whether Butler County had jurisdiction over all the offenses, but whether the four transactions were within the jurisdiction of a single court. The Crimes Code provides that if a person conspires to commit a number of crimes, he is guilty of only one conspiracy so long as such multiple crimes are the object of the same agreement or continuous conspiratorial relationship. 18 Pa.C.S. § 903(c). The multiple drug transactions in the present case were the object of the same ongoing conspiracy between Bracalielly and the informant. The agreement underlying this conspiracy was entered into in Allegheny *481County, since the informant arranged the transactions by continuously calling Bracalielly at his home.7 One conspiracy was therefore established, with Allegheny County the proper venue.

In conclusion, because the requirements of § 110 have been satisfied, I would reverse the judgment of the Superior Court affirming the denial of Bracalielly’s motion to quash.

Regarding Commonwealth v. Starr, I concur only in the result reached by the majority. I agree that the evidence of record was not sufficient to establish that the transactions there arose from one criminal episode. I reach this conclusion, however, solely because the evidence establishing that the same confidential informant facilitated both transactions was not part of the certified record and therefore is not to be considered in the analysis. Had the preliminary hearing testimony been made a part of the certified record, the required logical relationship would have clearly been established.

CAPPY, J., joins this Concurring and Dissenting Opinion.

. (N.T. 6/12/91 (Butler County) at 9) attached as Exhibit H to Defendant’s Memorandum in Support of Motion to Quash.

. Agent Barbara Roberts was involved in both the August 17, 1990, Allegheny County transaction and the August 20, 1990 Butler County transaction.

. This prong of a Section 110 analysis was not at issue in Commonwealth v. Starr as there was no multi-county prosecutions.

. See e.g. Commonwealth v. Cromwell, 329 Pa.Super. 329, 478 A.2d 813 (1984) (burglaries committed in Somerset and Bedford Counties could not have been consolidated for trial in Somerset County where some of the burglaries took place in Bedford County, even where it was subsequently determined that all of the burglaries were part of the same criminal episode, and therefore, prosecution was not barred by § 110); Commonwealth v. Nichelson, 294 Pa.Super. 438, 440 A.2d 545 (1982) (defendant’s prosecution for offenses in Philadelphia County including, *479inter alia, theft, robbery and conspiracy to commit the same, was not barred because jurisdiction was not proper in a single court); Commonwealth v. Caden, 326 Pa.Super. 192, 473 A.2d 1047 (1984) (defendant’s guilty plea in Delaware County to theft related offenses for tractor stolen in Delaware County did not bar subsequent prosecution in Montgomery County of offenses based upon possession of a stolen truck upon which the stolen tractor was sitting during arrest because the offenses were committed against the peace of the respective counties, and defendant was properly charged in both counties); Commonwealth v. Harris, 275 Pa.Super. 18, 418 A.2d 589 (1980) (prosecution in Montgomery County was not barred by prior convictions in Philadelphia County which arose out of the same criminal episode of forcibly abducting the victim from her home in Philadelphia, and taking her to Montgomery County where she was threatened); and Commonwealth v. Simeone, 222 Pa.Super. 376, 294 A.2d 921 (1972) (defendant’s acquittal of charges of receiving stolen property in Philadelphia County did not bar a subsequent prosecution for burglary, larceny and receiving stolen goods in Bucks County because those offenses occurred in Bucks County and were beyond the jurisdiction of Philadelphia County).

. My conclusion here is not meant to abrogate the well-established rule that the locus of the crime generally dictates the county in which charges must be brought. The conclusion I reach is limited to circumstances clearly fitting within the confines of § 110.

. Contrary to the Commonwealth’s contention, a criminal could not strategically plan his crimes so that the entrance of a guilty plea of a lesser offense in one county would negate the future prosecution of more serious offenses in another county.

. Bracalielly testified that as to all four transactions, planning and substantial steps were taken in Allegheny County. (R. 33a-41a.) Bra-calielly even picked up the informant in Allegheny County before driving to Cranberry Township, to conclude the August 20, 1990, Butler County transaction. (R. 48a-49a). Bracalielly further testified that it was the informant who suggested the locations where the transactions should take place, (R. 35a, 37a), and that as to the two Butler County transactions, the agreement to sell or buy the drags was entered into in Allegheny County (R. 36a-37a, 40a-41a).