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11/26/97 COMMONWEALTH PENNSYLVANIA v. SAMUEL F.

SUPERIOR COURT OF PENNSYLVANIA


November 26, 1997

COMMONWEALTH OF PENNSYLVANIA
v.
SAMUEL F. CADORA, APPELLANT; COMMONWEALTH OF PENNSYLVANIA
v.
SAMUEL F. CADORA, APPELLANT

Appeal from the ORDER ENTERED September 13, 1996. In the Court of Common Pleas of WAYNE County. CRIMINAL NO. 98-1996 CRIMINAL, NO. 97-1996 CRIMINAL.

Appeal from the ORDER ENTERED September 12, 1996. In the of Common Pleas of WAYNE County, CRIMINAL. Before CONWAY, J.

Before: Kelly, Schiller, Hoffman, JJ. Schiller, J. filed a Concurring Opinion.

The opinion of the court was delivered by: Hoffman

OPINION BY HOFFMAN, J.:

FILED Nov 26 1997

This is an appeal from a September 13, 1996 order denying appellant's motion to dismiss informations charging various violations of the Controlled Substance, Drug, Device, and Cosmetic Act. Appellant, Samuel F. Cadora, raises the following issue for our review:

Whether the "jurisdiction of a single court" language of 18 Pa. C.S. § 110 deals with the competency of a court to hear a matter as opposed to venue?

See Appellant's Brief at 3.

Appellant was arrested on February 15, 1996 and charged with two counts of delivery of a controlled substance *fn1 and two counts of possession of a controlled substance, *fn2 arising out of two incidents occurring in Wayne County. Appellant had previously been arrested for similar charges in Luzerne County on July 27, 1995, and in Lackawanna County on May 24, 1995, based on the same criminal episode.

On or about February 26, 1996, before the Court of Common Pleas of Luzerne County, appellant pled guilty to two counts of criminal conspiracy, *fn3 two counts of delivery of a controlled substance, and two counts of possession of a small amount of marijuana. *fn4 On March 26, 1996, the trial court of Luzerne County sentenced appellant to twenty-three (23) months probation, the first six (6) months in home confinement.

On August 29, 1996, appellant filed a motion to dismiss the Wayne County informations, arguing that the prosecution in Wayne County is barred under 18 Pa. C.S. § 110 because of the former prosecution in Luzerne County. On September 12, 1996, the trial court denied the motion to dismiss, reasoning that the instant prosecutions and the former prosecutions do not fall within the jurisdiction of a single court. Appellant contends that he has met all the requirements of 18 Pa. C.S. § 110 and therefore his prosecution in Wayne County is barred. This timely appeal followed.

Our supreme court has stated that:

Section 110(1) (ii) will only bar the instant prosecutions if: (1) the former prosecutions resulted in an acquittal or a conviction; (2) the instant prosecutions are based on the same criminal conduct or arose from the same criminal episode as the former prosecutions; (3) the prosecutor was aware of the instant charges before the commencement of the trials on the former charges; and (4) the instant charges and former charges were within the jurisdiction of a single court.

Commonwealth v. Bracalielly, 540 Pa. 460, 470, 658 A.2d 755, 760 (1995) (citing 18 Pa. C.S. § 110(1) (ii)). *fn5

In the instant case, the parties do not dispute that the first three requirements of Section 110 have been satisfied. Trial Court Opinion, 9/26/96 at 3. *fn6 Appellant claims that he also meets the fourth requirement of Section 110, because the instant charges filed in Wayne County and the former charges in Luzerne and Lackawanna counties were within the jurisdiction of a single court. Specifically, appellant argues that jurisdiction is the competency of a court to hear a matter, and that the legislature did not intend venue to be synonymous with jurisdiction.

Here, the trial court found that the prosecutions were not within the jurisdiction of a single court, basing its decision on Commonwealth v. McPhail, 429 Pa. Super. 103, 631 A.2d 1305 (1993), where this Court held that Section 110 does not apply to a situation where an initial prosecution occurred in one county and the prosecutor in another county attempts to prosecute the same defendant for related acts that arose from the same criminal episode but occurred solely in a different county.

However, our supreme court, in a plurality decision, *fn7 recently reversed the decision of this Court in McPhail, holding that the instant and the former charges in that case were within the jurisdiction of a single court for the same criminal episode, even though they occurred in different counties, because "counties are not separate sovereigns and do not derive their power to try ... drug cases from independent sources of power." Commonwealth v. McPhail, 547 Pa. 519, 692 A.2d 139, 142 (1997). Therefore, "their subject matter jurisdiction flows from the sovereign Commonwealth of Pennsylvania and is not circumscribed by county territorial limits." Id.

In reaching its determination, the supreme court analyzed the Pennsylvania Constitution, specifically Article V Section 5, which states in pertinent part that "there shall be one Court of Common Pleas for each judicial district ... having unlimited original jurisdiction in all cases except as may otherwise be provided by law." Id. at , 692 A.2d at 141. The supreme court also noted that the Pennsylvania legislature further refined the constitutional grant of jurisdiction to the Court of Common Pleas with 42 Pa. C.S. § 931, which states that "the Court of Common Pleas has unlimited original jurisdiction in all cases, actions and proceedings, and is thus empowered ... to decide any matter arising under the laws of this Commonwealth." Id.

In light of the supreme court decision in McPhail and prior statements by the supreme court on the effect of a guilty plea, *fn8 we find that appellant has satisfied all the elements of Section 110, and therefore could have been tried for the charges of all three counties in one single common pleas court. *fn9 Accordingly, we find that the trial court erred in denying appellant's motion to dismiss the Wayne County informations because that prosecution is barred by the former Luzerne County prosecution.

Accordingly, the order of the trial court is reversed and appellant is discharged.

Reversed. Appellant discharged.

SCHILLER, J. files a Concurring Opinion.

CONCURRING OPINION BY: SCHILLER, J.

FILED NOV 26 1997

Although I join in the majority's decision, I write separately to state my view that the result dictated by the plurality in Commonwealth v. McPhail, 547 Pa. 519, 692 A.2d 139 (1997), creates both a windfall for defendants and a potential impediment to the efficient administration of Justice. These detrimental effects are wrought without any concomitant benefit to the citizenry of this Commonwealth.

Although I do not take issue with the jurisdictional analysis employed by the McPhail plurality, *fn1 I do question the apparent underlying tenet that Section 110 applies when the first prosecution is terminated by a guilty plea. This tenet seems to have arisen out of a decision by this Court, i.e. Commonwealth v. Caden, 326 Pa. Super. 192, 473 A.2d 1047 (1984), which was accepted at face value by the Supreme Court in Commonwealth v. Bracalielly, 540 Pa. 460, 658 A.2d 755 (1995). *fn2 If and when the Supreme Court again tackles this issue it may wish to examine this threshold issue. (Query: Does a plea of nolo contendere produce the same result as a guilty plea for purpose of Section 110?)

In my view there is a significant difference between guilty plea and a trial which ends in "an acquittal or a conviction." See 18 Pa.C.S. § 110. For instance, guilty pleas are effectively always in the control of the defendant, because it is only with his or her consent that the proceedings can occur. Thus, a separate prosecution brought in a separate county following a guilty plea does not present a situation where the "awesome power of the state" is being utilized against the defendant for the purpose of wearing him down. *fn3

To apply a compulsory joinder rule in all situations will effectively curtail prosecutors from pleading out small cases in any situation where a bigger case exists in a separate county. In addition, it offers the possibility of the county with the small case having the ability, intentionally or unintentionally, to damage the other prosecutor's ability to prosecute the bigger case.

This issue should be reexamined by the Supreme Court, and hopefully that Court will be able to provide the bench and bar with definitive guidance on this issue.


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