Appeal From Order, Court of Common Pleas, Criminal Division, Philadelphia County No. MC 85-01-1468, 1469, No. MC-85-01-1472.
Julius E. Fioravanti, Philadelphia, for appellants.
Andrew E. Kramer, Assistant District Attorney, Philadelphia, for Com., appellee.
Cavanaugh, Olszewski and Montemuro, JJ.
[ 365 Pa. Super. Page 438]
Appellant, John F. Keenan, challenges a ruling of the lower court denying his motion for dismissal of all charges based upon principles of double jeopardy.*fn1 Appellant was charged with eight counts of altered, forged, counterfeit documents, 75 Pa.C.S.A. § 7122, and one count of criminal conspiracy, 18 Pa.C.S.A. § 903. These charges grew out of appellant's alleged involvement in the possession and transfer of counterfeit automobile inspection certificates.
The origin of this action was a presentment dated March 24, 1983 by the Pennsylvania Multi-County Investigating Grand Jury which recommended to the court, the Honorable John C. Dowling, Supervising Judge, that appellant be charged with forgery, 18 Pa.C.S.A. § 4101, tampering with records or identification, 18 Pa.C.S.A. § 4104, altered, forged or counterfeit documents and plates, 75 Pa.C.S.A. § 71.22, and conspiracy, 18 Pa.C.S.A. § 903. The presentment was accepted by Judge Dowling on April 8, 1983, and
[ 365 Pa. Super. Page 439]
he directed Dauphin County to be the place of trial.*fn2 Pretrial motions raising the issues of subject matter jurisdiction and venue were filed by appellant. Judge Dowling denied these motions on March 13, 1984. The Commonwealth strenuously urged the court to retain jurisdiction. Although all actions taken by appellant and his two co-actors were within Philadelphia County, the Commonwealth based its claim for jurisdiction in Dauphin County on the authority of the supervising judge to pick the county of trial and on the effect the defendants' activities had in Dauphin County.
Prior to Judge Dowling's denial of the motion to dismiss, appellant had petitioned our Supreme Court for a writ of mandamus and/or prohibition. This petition was denied on December 1, 1983.
The case in Dauphin County came to trial on May 17, 1984 and was presided over by Judge Dowling sitting with a jury. Appellant was found guilty by the jury of violating 75 Pa.C.S.A. § 7122 and 18 Pa.C.S.A. § 903. Upon post-verdict motions filed by appellant, Judge Dowling determined that Dauphin County did not have jurisdiction to try the case and on December 3, 1984 granted appellant's motion for a new trial. 33 Pa.D. & C.2d 46 (1984).
Neither appellant nor the Commonwealth appealed from Judge Dowling's order for a new trial.
On January 18, 1985 the Commonwealth filed a complaint against appellant in Philadelphia County charging him with violation of eight counts of 75 Pa.C.S.A. § 7122 and one count of 18 Pa.C.S.A. § 903. There is no dispute between the parties that these charges are identical to the ones charged in the Dauphin County proceedings.
[ 365 Pa. Super. Page 440]
On January 21, 1985 appellant was arrested and was released on his own recognizance. The case was assigned for a preliminary hearing in Municipal Court before the Honorable Ronald Merriweather on April 15, 1985. Appellant waived his right to a preliminary hearing, entered a not guilty plea, and moved dismissal of the charges on double jeopardy grounds. Appellant's motion was granted by Judge Merriweather, after submission of briefs and a hearing, on June 4, 1985.
The Commonwealth appealed to common pleas court. Upon further briefing, the Honorable Ned L. Hirsh reversed the dismissal and remanded the case to Municipal Court for trial. Notice of appeal to this court of Judge Hirsh's order was filed on January 13, 1986.*fn3
Judge Hirsh, in an opinion filed on August 4, 1986, found that double jeopardy principles did not bar trial in Philadelphia County since appellant had not been placed in jeopardy by the Dauphin County proceedings as the court lacked jurisdiction. Judge Hirsh relied upon 18 Pa.C.S.A. § 112 as allowing retrial in a court of competent jurisdiction where a former prosecution was before a court which lacked jurisdiction. Additionally, appellant's claim of prosecutorial misconduct in pursuing the action in ...