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Commonwealth v. Fithian

December 17, 2008

COMMONWEALTH OF PENNSYLVANIA, APPELLANT
v.
MICHAEL FITHIAN, APPELLEE
COMMONWEALTH OF PENNSYLVANIA, APPELLANT
v.
EDWARD BORZELLECA, APPELLEE



Appeal from the Order of the Superior Court entered on July 10, 2007 at No. 89 EDA 2005, affirming the Order of the Court of Common Pleas of Delaware County, Criminal Division, entered on December 6, 2004 at Nos. 4110 & 4197 of 2003.

The opinion of the court was delivered by: Madame Justice Todd

CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, JJ.

ARGUED: May 13, 2008

OPINION

In this appeal by allowance, we interpret for the first time the General Assembly's 2002 amendments to 18 Pa.C.S.A. § 110, commonly known as the compulsory joinder statute. Generally speaking, the compulsory joinder statute sets forth the requirements for when a current prosecution is precluded due to a former prosecution for a different offense. For the reasons set forth below, we conclude the Superior Court properly found that the instant prosecution for criminal conspiracy was barred by the compulsory joinder statute because the offenses "occurred within the same judicial district" as a former prosecution.

18 Pa.C.S.A. § 110(1)(ii). Contrary to the Superior Court, however, we also find the offenses of possession of a controlled substance, possession with intent to deliver a controlled substance, and possession of drug paraphernalia did not occur in the same judicial district as the prior prosecution, and thus, were not barred by Section 110. Therefore, we affirm in part and reverse in part the order of the Superior Court.

The complexity of the background to the instant appeal requires a full recitation of the underlying facts and procedural history. The trial court found in relevant part that on June 24, 2003, Michael Boudwin, a Detective working for the Delaware County Criminal Investigation Division, contacted Montgomery County Detective Reginald Roberts and informed him that he had information concerning cocaine trafficking by Appellee Edward Borzelleca, a Montgomery County resident. Detective Boudwin described a meeting an undercover detective and Borzelleca had planned on June 26, 2003 at Barnaby's, a restaurant located in Havertown, Delaware County. Detective Boudwin informed Detective Roberts that Borzelleca owned a Subaru automobile and that Borzelleca would travel in his car from his Montgomery County residence to the meeting at Barnaby's.

On June 26, 2003, at 2:15 p.m., Montgomery County police set up a surveillance of Borzelleca's residence. Detective Boudwin spoke with Detective Roberts and told him that Borzelleca planned to meet with his supplier known as "Mike"  Appellee Michael Fithian  and thereafter travel with Fithian from Montgomery County to Delaware County to meet with Detective John Newell, an undercover detective employed by the Delaware County Criminal Investigation Division. At 4:00 p.m., Borzelleca, while at his Montgomery County residence, telephoned Detective Newell to arrange for the sale of two ounces of cocaine to Detective Newell for $1,900. The trial court noted that while Borzelleca told Detective Newell who the men wanted to meet at Barnaby's, it was Detective Newell that requested Borzelleca and Fithian come to Delaware County to Barnaby's to make the sale. At 4:30 p.m., Fithian called Detective Newell to ask him to "front" the money. Detective Newell was to ride with Borzelleca and Fithian, who was to join them, back to Montgomery County.

At 4:48 p.m., Montgomery County police observed Borzelleca leave his residence and followed him to a street address in Flourtown, Montgomery County. There, the police saw Borzelleca meet with Fithian. Thereafter, Fithian was seen entering a Dodge pickup truck, and Fithian followed Borzelleca's vehicle down Route 476 to Barnaby's.

At 5:30 p.m., Borzelleca and Fithian met with Detective Newell at Barnaby's. After a brief conversation, Borzelleca walked to Fithian's Dodge truck where Fithian appeared to be removing packaging material. Borzelleca and Fithian departed in Borzelleca's Subaru, and Detective Newell followed in his vehicle. Borzelleca and Fithian planned to drive both vehicles to Montgomery County and purchase two ounces of cocaine for Detective Newell and one ounce for themselves. While in Montgomery County, the vehicles stopped at a bar so that Borzelleca and Fithian could obtain money to buy the cocaine.

The vehicles then traveled out of Montgomery County, and entered Philadelphia County where Borzelleca, Fithian and Detective Newell made the actual purchase of the cocaine. Once in Philadelphia County, Borzelleca, Fithian and Detective Newell met with the supplier of the cocaine, although there is some inconsistency as to what occurred. According to a report prepared by Montgomery County Detective Roberts, the supplier sold one ounce of cocaine to Borzelleca and Fithian, and two ounces of cocaine directly to Detective Newell. Detective Newell's probable cause affidavit, however, offers a slightly different version of events. Specifically, Detective Newell contended that Fithian gave Borzelleca three bags of cocaine, and that Borzelleca handed two bags of cocaine to Detective Newell. After inspecting the cocaine, Detective Newell gave Borzelleca $1,900, and Borzelleca handed the money to Fithian. Borzelleca told Detective Newell that the third bag of cocaine was for the person at the bar. Without reconciling the discrepancy, the trial court noted that both versions of the events were consistent that the transfer occurred in Philadelphia County and that Detective Newell did not receive the cocaine or transfer the money in Delaware County.

Thereafter, Borzelleca and Fithian returned to Montgomery County in the Subaru and were stopped on Route 476 in Montgomery County by the Pennsylvania State Police. The police recovered approximately one ounce of cocaine from the interior of the Subaru.

Borzelleca and Fithian were arrested and, on July 3, 2003, charged in Montgomery County for crimes concerning the cocaine in the vehicle. The Delaware County District Attorney's Office filed a criminal complaint the same day charging both men with criminal conspiracy, possession of a controlled substance, and possession with intent to deliver a controlled substance. Fithian was also charged with possession of drug paraphernalia. The Delaware County complaints alleged that Borzelleca and Fithian arranged the sale of two ounces of cocaine in Delaware County with Detective Newell, and the Delaware County District Attorney sought to prosecute them for conspiracy and the delivery of the cocaine in Philadelphia.

On January 26, 2004, Borzelleca and Fithian each entered a guilty plea of one count of possession with intent to deliver and one count of criminal conspiracy in Montgomery County, with respect to the bag of cocaine seized upon their arrest.*fn1 The men were sentenced on April 2, 2004. At the time Borzelleca and Fithian were sentenced in Montgomery County, the criminal proceedings in Delaware County were still pending.

Thereafter, Borzelleca and Fithian filed motions to dismiss the Delaware County charges arguing that the prosecution in Delaware County was barred pursuant to 18 Pa.C.S.A. § 110; after a hearing, the trial court granted the motions. Before the trial court, the Commonwealth contended, inter alia, that the Delaware prosecution did not arise from the same criminal episode occurring in the same judicial district as the former Montgomery County prosecution. The trial court retraced the chain of events noted above and concluded that the conspiracy to sell the two ounces of cocaine to Detective Newell occurred in both Delaware and Montgomery County. That being the case, the conspiracy that formed the basis for the Delaware County prosecution occurred within the same judicial district as the Montgomery County prosecution. This satisfied one of the requirements of the compulsory joinder statute, described in greater detail below. According to the trial court, the Montgomery County officials elected to prosecute the men for the one ounce of cocaine seized in the traffic stop on Route 476 and either expressly or tacitly agreed to allow Delaware prosecutors to prosecute the balance of Borzelleca and Fithian's criminality. The trial court concluded the subsequent Delaware County prosecution was barred by Section 110.

On appeal, the Superior Court initially adopted the trial court opinion as its own for purposes of appellate review, and thus affirmed. Commonwealth v. Fithian, 909 A.2d 870 (Pa. Super. 2006). The Commonwealth sought appeal to our Court. We granted the petition for allowance of appeal and remanded the matter to the Superior Court for consideration of our then recent decision in Commonwealth v. Nolan, 579 Pa. 300, 308 n.7, 855 A.2d 834, 839 n.7 (2004), which, in footnote 7, spoke to the 2002 amendments to the compulsory joinder statute.*fn2 Commonwealth v. Fithian, 591 Pa. 655, 921 A.2d 1182 (2007).*fn3

On remand, the Superior Court acknowledged footnote 7 in Nolan, considered it to be obiter dicta, and concluded that elements of the conspiracy occurred in both Montgomery County and Delaware County, and thus the conspiracy to sell the cocaine "occurred within the same judicial district as the former prosecution." That being the case, and finding the other requirements for mandatory joinder to be satisfied, the court found that prosecution for the offense was barred by the compulsory joinder statute. Additionally, as to the non-conspiracy charges, the court reasoned that they could have been brought in Montgomery County and there was no reason not to have consolidated all charges against Fithian and Borzelleca in Montgomery County. Commonwealth v. Fithian, 932 A.2d 232 (Pa. Super. 2007).

We granted allocatur as to the single issue, as stated by the Commonwealth, of "Whether the Superior Court misapplied the unambiguous language of the 2002 amendment to the compulsory joinder rule, 18 Pa.C.S.A. § 110, that limited the rule by requiring joinder of only crimes that 'occurred within the same judicial district' as a former prosecution, an amendment that this Court has not yet authoritatively interpreted?" Commonwealth v. Fithian, __ Pa. __, 942 A.2d 894 (2008).*fn4

The compulsory joinder statute is a legislative mandate that a subsequent prosecution for a violation of a provision of a statute that is different from a former prosecution, or is based on different facts, will be barred in certain circumstances. 18 Pa.C.S.A. ...


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