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COMMONWEALTH PENNSYLVANIA v. EUGENE WALTER FRANK (02/16/79)

decided: February 16, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
EUGENE WALTER FRANK, APPELLANT



No. 1549 October Term 1976, Appeal from Judgment of Sentence of Court of Common Pleas of Lancaster Criminal County, Pennsylvania, No. 2132 of 1974.

COUNSEL

Edward F. Browne, Jr., Assistant Public Defender, Lancaster, for appellant.

Louise G. Herr, Assistant District Attorney, Lancaster, for Commonwealth, appellee.

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

Author: Spaeth

[ 263 Pa. Super. Page 459]

This is an appeal from judgment of sentence for first degree robbery, aggravated assault, and terroristic threats.

On August 24, 1974, at approximately 11:00 p. m., appellant and three accomplices entered the Green Acres Inn, a bar and restaurant located on U.S. Route 30 in Chester County, which was owned and operated by the victim. One of the accomplices, John Daniel, had been involved in an altercation with the victim a week previously, and the four men had gone to the bar, according to appellant, to allow Daniel to "straighten out" the matter. Once inside the bar, the men located the victim, and after appellant and Daniel each struck him, appellant escorted the victim out of the

[ 263 Pa. Super. Page 460]

    building and into a car. The four men then drove appellant to a secondary road located off U.S. Route 30 in Lancaster County. After they stopped the automobile and ordered him outside, appellant and Daniel threatened, kicked, and beat the victim. During the course of the beating, appellant demanded to know what was in the victim's pockets, and when the victim produced $200 in cash, appellant took it. After taking the money and striking the victim several more times, appellant, Daniel, and the other two accomplices drove off, leaving the victim behind. They returned to U.S. Route 30 and drove back into Chester County. As they were passing by the Green Acres Inn, however, they were stopped by policemen who had been summoned there by patrons of the establishment. Shortly thereafter, the victim also arrived at the inn and identified the men as his assailants.

Originally, all charges against appellant arising out of this episode were brought in Chester County. When it was discovered that the road where the victim was beaten and robbed was in Lancaster County, several of the charges in Chester County were dropped and brought in Lancaster County. Eventually, appellant was tried in both counties for the crimes that occurred in each respectively. Appellant now contends that his Lancaster County convictions must be reversed for more than twenty reasons.*fn1 Below we discuss appellant's most substantial arguments and conclude that although no reversible error was committed at trial, nevertheless, we must vacate the judgment of sentence and remand for the lower court to complete the record and make an adequate determination of whether appellant's rights under Pa.R.Crim.P. 1100 were violated.*fn2

[ 263 Pa. Super. Page 461]

I. Double Jeopardy

As already noted, the charges against appellant were brought originally in Chester County. The charges included three counts of simple assault, two counts of aggravated assault, two counts of kidnapping, one count of felonious restraint, one count of terroristic threats, two counts of robbery, and one count of criminal conspiracy. When it was discovered that the scene of the beating and robbery was located in Lancaster County, charges connected with those incidents were dismissed by the Chester County authorities, and appellant was re-indicted in Lancaster County. On February 27, 1975, appellant was convicted in Chester County, and on July 30, 1975, he was convicted in Lancaster

[ 263 Pa. Super. Page 462]

County. Appellant now claims that Chester County had jurisdiction over all the charges, and that because all the charges arose out of the same criminal episode, he was entitled under 18 Pa.C.S.A. § 110 (1973) and the Supreme Court's decision in Commonwealth v. Campana, 452 Pa. 233, 304 A.2d 432, vacated and remanded, 414 U.S. 808, 94 S.Ct. 73, 38 L.Ed.2d 44 (1973), addendum opinion per curiam, 455 Pa. 622, 314 A.2d 854, cert. denied, 417 U.S. 969, 94 S.Ct. 3172, 41 L.Ed.2d 1139 (1974), to a single trial on all the charges.*fn3 According to appellant, the Commonwealth's failure to consolidate the charges, and its decision to try him twice -- once in Chester County and again in Lancaster County -- violated his statutory and constitutional right not to be placed in double jeopardy.

Appellant's argument is based on the premise that Chester County had jurisdiction over the crimes committed in Lancaster County, by virtue of 19 P.S. § 525 (1964) (known as "The Journey Act"), which provides in part:

In order to obviate the difficulty of proof as to offenses committed during journeys from place to place, in any

[ 263 Pa. Super. Page 463]

    indictment for felony or misdemeanor committed on any person or on any property upon any stage coach, stage, wagon, railway car or other such carriage whatever employed in any journey, it shall be sufficient to allege that such felony or misdemeanor was committed within any county or place through any part whereof such coach, wagon, cart, car or other carriage shall have passed in the course of the journey during which such felony or misdemeanor shall have been committed; . . . and every such felony or misdemeanor . . . shall and may inquired of, tried, determined and punished in the county or place within which the same shall be so alleged to have been committed in the same manner as if it had actually been committed therein.

A review of previous interpretations of this provision, however, indicates that the Journey Act does not have the breadth appellant would give it.

[ 263 Pa. Super. Page 464]

In Commonwealth v. Tarsnane, 170 Pa. Super. 265, 85 A.2d 606 (1952), this court held that the Journey Act did not apply in a situation where the defendant had enticed a child into his car, driven to a vacant house, assaulted the child in the house, and then returned the child to the neighborhood where he had first met her. This court pointed out that the Act was intended to obviate difficulties in proof of the locus of a crime, whether in one county or another, committed in the course of a journey. Because the assault on the child was not committed in a moving automobile or during a temporary stop in a longer journey, but rather "in a fixed building susceptible of exact location," we held that the Act did not apply, and that the Commonwealth had failed to prove the trial court's jurisdiction. Id., 170 Pa. Super. at 268, 85 A.2d at 608. See also Commonwealth v. Mull, 316 Pa. 424, 426-27, 175 A. 418, 419 (1934). In the cases where the Journey Act has been held to give the trial court jurisdiction, one of the two conditions above has been present, that is, the crime was committed in a moving vehicle or during a temporary stop in a longer journey. See Commonwealth v. Hainds, 448 Pa. 67, 292 A.2d 337 (1972); Commonwealth v. Page 464} Ruby, 240 Pa. Super. 377, 367 A.2d 1100 (1976); Commonwealth v. Stefanowicz, 133 Pa. Super. 501, 3 A.2d 22 (1938); Commonwealth v. Brown, 71 Pa. Super. 575 (1919).

In the present case, as in Tarsnane, the crimes were committed at a place susceptible of exact location. Indeed, the victim led the police to the very place where he was beaten and robbed, in Lancaster County. The crimes occurred outside of the automobile, and whatever journey the victim had been on by virtue of his abduction, had terminated when he was taken from the automobile, beaten, and left at the scene. It is therefore apparent that the Journey Act is not applicable. Appellant having asserted no other basis for jurisdiction in Chester County, the general rule obtains the subject-matter jurisdiction of criminal courts extends only to offenses committed within the county of trial. See, e. g., Commonwealth v. Tumolo, 223 Pa. Super. 189, 299 A.2d 15 (1972), aff'd, 455 Pa. 424, 317 A.2d 295 (1974); Commonwealth v. Simeone, 222 Pa. Super. 376, 294 A.2d 921 (1972). Since Chester County lacked jurisdiction over the offenses that appellant committed in ...


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