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August 28, 1997


Appeal from the Judgment of Sentence August 15, 1996 In the Court of Common Pleas of Montgomery County, Criminal No. 7086-95. Before HODGSON, J.

Before: Mcewen, P.j., Cavanaugh, J. And Montemuro, J.* Opinion BY Montemuro, J.

The opinion of the court was delivered by: Montemuro


Filed August 28, 1997

John Kirkland appeals from the judgment of sentence imposed following his conviction at a non-jury trial of possession with intent to deliver cocaine, 35 P.S. § 780-113(a)(30), possession of cocaine, 35 P.S. § 780-113(a)(16), and criminal conspiracy, 18 Pa.C.S. § 903(a)(1). We affirm.

The trial court has aptly summarized the facts of this case as follows:

On November 20, 1995, Montgomery County Narcotics Enforcement Team Detective Anthony Spagnoletti, working undercover, negotiated with appellant/defendant John Kirkland, a.k.a. "Pooch," to purchase five (5) pounds of marijuana and five (5) ounces of cocaine for $10,000.

On November 22, 1995, at approximately 3:30 p.m., Detective Spagnoletti, along with a confidential informant, met the appellant at the Cheltenham Square Mall in Montgomery County. The confidential informant proceeded into the mall where he was observed by the surveillance team and met with the appellant at the designated location within the mall. The appellant was observed carrying a black bag. After a brief Discussion the two proceeded through the mall, stopping at one point to allow the confidential informant to examine the contents of the bag.

The appellant and the confidential informant emerged from the mall and approached Detective Spagnoletti's car located in the mall parking lot. After Detective Spagnoletti showed the appellant the $10,000, the appellant informed Spagnoletti that he did not personally have the cocaine but that his "boy" had it inside the mall. The appellant informed Detective Spagnoletti that the exchange would happen across the street at the Mobil station, located in Philadelphia County. The appellant left the parking lot and returned to the mall where surveillance was broken. The appellant was then spotted at the Mobil station approximately ten (10) to fifteen (15) minutes later. Detective Spagnoletti proceeded to the Mobil station as instructed where he noticed the appellant and another individual, Terrell Griffin, approach his car, each carrying a McDonald's bag. Undercover officers then attempted to execute an arrest, however, the appellant dropped the bag and fled. After a short chase the defendant was apprehended and the McDonald's bag, containing 123.58 grams of cocaine, was recovered.

(Trial Ct. Op. at 1-2) (citations omitted).

Following Appellant's conviction at trial, the court ordered a pre-sentence investigation report and the Commonwealth sent notice invoking the mandatory minimum sentence, pursuant to 18 Pa.C.S. § 7508(a)(3)(iii). On August 15, 1996, Appellant was sentenced to the mandatory minimum term of four to ten years imprisonment for possession with intent to deliver and a consecutive term of two years probation for criminal conspiracy. The possession charge merged for purposes of sentencing. Appellant filed post-sentence motions, which were denied, and this appeal followed.

In the one issue raised on appeal, Appellant challenges the sufficiency of the evidence to support his conviction, arguing that the Montgomery County court lacked proper jurisdiction to try the case because "the sole evidence of Kirkland's possession of cocaine indicates that the cocaine was possessed within Philadelphia County." (Appellant's Brief at 9). Unfortunately for Appellant, the Pennsylvania Supreme Court specifically rejected the jurisdictional argument he presents and reversed the single case upon which he relies in support of his claim. See Commonwealth v. McPhail, 429 Pa. Super. 103, 631 A.2d 1305 (1993), reversed, 547 Pa. 519, 692 A.2d 139 (1997).

In McPhail, the defendant sold cocaine to an undercover agent on four separate occasions, three times in Washington County and once in Allegheny County. McPhail, 547 Pa. at 521-522, 692 A.2d at 140. Charges were filed in both counties for the offenses which took place therein. Id. McPhail pled guilty to the offenses in Washington County, then moved to dismiss the charges in Allegheny County on the basis that the subsequent prosecution was barred by the conviction in the first proceeding pursuant to the mandates of 18 Pa.C.S. § 110. *fn1 Id. The trial court granted the motion, but the Superior Court reversed, although both courts agreed that all the offenses formed a single criminal episode. Id. at 521-524, 692 A.2d at 140-41. Our Supreme Court allowed an appeal in order to determine whether all the offenses were within the jurisdiction of a single court.

The Supreme Court reversed this Court, concluding that when multiple charges bear a close logical and temporal relationship, a single criminal episode exists and all charges are within the jurisdiction of a "single" court and should have been joined in a single trial in one county, despite the fact ...

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