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COMMONWEALTH PENNSYLVANIA v. DAVID KLOSS (04/13/78)

SUPERIOR COURT OF PENNSYLVANIA


decided: April 13, 1978.

COMMONWEALTH OF PENNSYLVANIA
v.
DAVID KLOSS, APPELLANT

No. 543 April Term 1976, Appeal from the Sentence of February 27, 1976 of the Court of Common Pleas of the County of Lawrence, Pa., Criminal Div. at No. 658 of 1975.

COUNSEL

James M. Keller, Ellwood City, for appellant.

Thomas M. Piccione, Assistant District Attorney, New Castle, for Commonwealth, appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, former President Judge, did not participate in the consideration or decision of this case.

Author: Spaeth

[ 253 Pa. Super. Page 561]

Appellant was convicted of robbery.*fn1 On this appeal he contends that the trial judge erred in ruling that as a matter of law, the lower court had jurisdiction of the crime. We affirm.*fn2

The Commonwealth's evidence was to the following effect. On June 20, 1975, at about 2:00 a. m., George Anderson, a customer at a bar in New Castle, Lawrence County,

[ 253 Pa. Super. Page 562]

Pennsylvania, asked a barmaid to summon a taxicab to take him to Youngstown, Ohio. (Lawrence County borders on Ohio.) The barmaid did so, and told the dispatcher that the driver should come to the door to escort the passenger because he was carrying a lot of money. (During the evening Anderson had asked the barmaid to hold $500 for him until he was ready to go home.) The dispatcher called a cab driver named Edward Stephenson to go to the bar. Appellant, who was another cab driver and was in the dispatcher's office when the barmaid called, immediately called Stephenson and suggested that they meet and rob Anderson. Stephenson picked up Anderson in New Castle, and Anderson got in the front seat of the cab. En route to Youngstown the cab was passed by a blue Ford owned by appellant, which was flicking its lights on and off. Further on, while still in Pennsylvania, Stephenson stopped and picked up appellant, who was then hitchhiking. Appellant got into the back seat. The cab then proceeded on back roads of Pennsylvania and Ohio and finally stopped near a graveyard. During much of this journey Anderson had been asleep. While Stephenson pretended that his cab had a flat tire, appellant pulled Anderson from the cab, beat him up, and took approximately $96 from his person. Anderson was placed back in the cab and the journey continued on back roads until Anderson was finally let out at the crossroads of routes 422 and 551 in Pennsylvania. Appellant denied any participation in the crime and presented three alibi witnesses.

Although the charge was that the place where the robbery had been committed was Lawrence County, the evidence failed to establish that. Stephenson testified that when he and appellant had agreed to commit the robbery they were in Brookfield, Ohio, N.T. 91-92, and that from there they had pursued many different back roads, N.T. 91-97, until they reached an unidentified graveyard. Anderson testified that he had no idea where the robbery occurred. N.T. 24. A police officer testified that he drove Anderson through the back roads of Lawrence County the next day, and Anderson

[ 253 Pa. Super. Page 563]

    was unable to find the graveyard. N.T. 224-225. He also testified that "[a]t the initial interview at the barracks, he [Anderson] recalled being brought back into Pennsylvania -- he felt -- after the crime occurred,". N.T. 225.

Appellant first demurred to the evidence on the ground that the Commonwealth had failed to establish that the robbery had been committed within the court's jurisdiction. When the trial judge refused to grant the demurrer, appellant asked the judge to submit to the jury the question whether the robbery had been committed in Pennsylvania, so that the jury might decide whether the court had jurisdiction. The judge refused to grant the request, instead charging the jury that "as a matter of law the question of jurisdiction is not for you in this case." N.T. 328.

Jurisdiction to try a person on a criminal charge lies only in the courts of the state or county where the crime was committed. Huntington v. Attrill, 146 U.S. 657, 13 S.Ct. 224, 36 L.Ed. 1123 (1892). While some evidence of the place of the crime must be offered by the prosecution to sustain a guilty verdict, Commonwealth ex rel. Chatary v. Nailon, 416 Pa. 280, 206 A.2d 43 (1965); Commonwealth v. Tarsnane, 170 Pa. Super. 265, 85 A.2d 606 (1952), where there is a real question as to the place, it is reversible error for the trial judge to refuse the defendant's request to submit that question to the jury. Commonwealth v. Mull, 316 Pa. 424, 175 A. 418 (1934). And see Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d 255 (1973); Commonwealth v. Hainds, 448 Pa. 67, 292 A.2d 337 (1972); Commonwealth v. Tarsnane, supra; Commonwealth v. Wojdakowski, 161 Pa. Super. 250, 53 A.2d 851 (1947). Thus in Commonwealth v. Tarsnane, supra, a sodomy conviction was reversed where the victim, a seven year old girl, was unable to indicate the location of the house she had been driven to, where the crime was alleged to have occurred. In Commonwealth v. Mull, supra, a murder case, the only evidence of where the crime was committed was that the body was found with a quantity of blood beneath it. Since on these facts there was a real question as to where the crime was committed, it was held

[ 253 Pa. Super. Page 564]

    error to refuse the defendant's request to submit that question to the jury.

Under these cases the question would be whether there was enough evidence to warrant submitting to the jury the question of where the crime was committed. Arguably there was not; as mentioned, neither Stephenson, nor Anderson, nor the police officer stated where the graveyard was.*fn3

Here, however, that is not the question, for the law has been changed by the promulgation of the Crimes Code, which provides in pertinent part:

(a) General rule. -- Except as otherwise provided in this section, a person may be convicted under the law of this Commonwealth of an offense committed by his own conduct or the conduct of another for which he is legally accountable if either:

(4) conduct occurring within this Commonwealth establishes complicity in the commission of, or an attempt, solicitation or conspiracy to commit, an offense in another jurisdiction which also is an offense under the law of this Commonwealth.

Act of Dec. 6, 1972, P.L. 1482, No. 334, § 1, eff. June 6, 1973, 18 Pa.C.S. § 102(a)(4).

Therefore, wherever the graveyard was, that is, whether the act of robbery itself was committed within Pennsylvania or Ohio, is not determinative.

If in fact the robbery was committed in Pennsylvania, no jurisdictional objection can be raised. If, on the other hand, in fact the robbery was committed in Ohio, still the lower court had jurisdiction if appellant engaged in such conduct in Pennsylvania as described in the Crimes Code. Here appellant did engage in such conduct. While still in

[ 253 Pa. Super. Page 565]

Pennsylvania, he called Stephenson and suggested that they rob Anderson. Also while still in Pennsylvania, he arranged to, and did, intercept Stephenson's cab and obtain passage in it, all to further his and Stephenson's plan to rob Anderson. This evidence was sufficient to support a finding of "conduct occurring within this Commonwealth . . . in the . . . solicitation or conspiracy to commit, an offense in another jurisdiction [Ohio] which also is an offense under the law of this Commonwealth." Crimes Code, supra.

It is true that the jury was not specifically instructed to make a finding as to whether such conduct, as described in the Crimes Code, occurred in Pennsylvania. However, appellant did not request such an instruction and therefore cannot complain now that it was not given.*fn4 See Commonwealth v. Hilton, 461 Pa. 93, 334 A.2d 648 (1975). It is clear from the verdict of guilty that the jury rejected appellant's alibi evidence, and rather decided that while in Pennsylvania appellant had called Stephenson and met him, and had later, with him, committed the robbery. It therefore appears that as acts constituting a conspiracy occurred in Pennsylvania, see 18 Pa.C.S. 903, the court had jurisdiction.*fn5

Affirmed.


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