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Commonwealth v. Gross

Superior Court of Pennsylvania

February 28, 2017


         Appeal from the Order January 15, 2016 In the Court of Common Pleas of Monroe County Criminal Division at No(s): CP-45-CR-0000045-2010

          BEFORE: PANELLA, J., LAZARUS, J., and FITZGERALD, J. [*]


          LAZARUS, J.

         Emily Joy Gross appeals from the order entered in the Court of Common Pleas of Monroe County, denying, inter alia, her motion to dismiss on double jeopardy grounds. Upon careful review, we reverse.

         Our Supreme Court has previously set forth the facts of this matter as follows:

Emily Gross and Daniel Autenrieth began a romantic relationship in early 2009. On May 4, 2009, Autenrieth's estranged wife filed a protection from abuse (PFA) petition against him in Northampton County where she lived. The court issued a temporary PFA order the same day prohibiting Autenrieth from having contact with his wife or children and evicting him from the marital residence. The same day, deputies from the Northampton [County] Sheriff's office went to Autenrieth's residence (also in Northampton County) to serve the temporary PFA order and to transfer custody of the children to Autenrieth's wife. Gross was present, babysitting the children, and a deputy served the order on her as the adult in charge of the residence. The deputy incorrectly told Gross the temporary PFA order prohibited Autenrieth from possessing firearms. Another deputy explained the PFA order's terms to Autenrieth over the phone. On May 18, 2009, a final PFA order was issued, which prohibited Autenrieth from possessing firearms.
Gross routinely stayed overnight at Autenrieth's residence, but she lived and worked in New Jersey. On May 21, 2009, she attempted to acquire a New Jersey firearm permit but was informed the process would take several months. On May 29, 2009, Gross obtained a Pennsylvania driver's license using Autenrieth's address; within hours, Gross and Autenrieth went to a Berks County store, where Gross used her new license to buy a 9 millimeter handgun. Later, at his residence, Autenrieth showed Gross how to use the gun, offered to clean it for her, then put the gun in its box and stored it and its ammunition above his washer and dryer. This was the last time Gross saw the gun, though a few days later she learned Autenrieth had taken the gun, fired it with a friend, and replaced the ammunition used; Gross made no objection.
On June 7, 2009, Autenrieth took the gun, went to his estranged wife's house, and kidnapped his nine-year-old son at gunpoint. Police were called, Autenrieth fled, and the chase went on for 40 miles, ending with a shoot-out in Monroe County in which Autenrieth killed one Pennsylvania State Trooper and wounded another before being shot to death.
A criminal complaint was filed in Monroe County charging Gross with criminal conspiracy, 18 Pa.C.S. § 903(a); firearms not to be carried without a license, [18 Pa.C.S.] § 6106(a)(1) (co-conspirator); possession of firearm prohibited, [18 Pa.C.S.] § 6105(a)(1) (accomplice); and lending or giving of firearms prohibited, [18 Pa.C.S.] § 6115(a) (accomplice).

Commonwealth v. Gross, 101 A.3d 28, 31-32 (Pa. 2014).

         Following proceedings which are not relevant to our disposition here, the matter was remanded by the Supreme Court to the Common Pleas Court of Monroe County for trial. Prior to the date of remand, the United States Attorney filed an information in the U.S. District Court for the Eastern District of Pennsylvania, charging Gross with making false statements to a federal firearms licensee[1] and aiding and abetting a prohibited person to possess a firearm.[2] The federal government alleged that Gross lied in connection with her acquisition of the firearm and aided and abetted Audenrieth in possessing a firearm when she knew him to be prohibited from doing so. Gross ultimately pled guilty in federal court to making false statements to a federal firearms licensee.

         Upon remand of the Commonwealth case to the common pleas court, Gross filed an omnibus pretrial motion, which she subsequently amended to include the instant motion to dismiss based upon double jeopardy. The trial court denied the motion and the instant appeal[3] follows, in which Gross raises the following question for our review:

Did the trial court err in failing to dismiss the information against [Gross], where the information arises out of the same conduct for which [Gross] has already been prosecuted . . ., convicted . . . and sentenced . . . by the federal government, and the Commonwealth did not carry its burden of proving that the federal government's prior prosecution was intended to prevent a substantially different harm or evil than the Commonwealth's?

Brief of Appellant, at 3.

         Our scope and standard of review is as follows: "An appeal grounded in double jeopardy raises a question of constitutional law. This [C]ourt's scope of review in making a determination on a question of law is, as always, plenary. As with all questions of law, the appellate standard of review is de novo." Commonwealth v. Vargas, 947 A.2d 777, 780 (Pa. Super. 2008) (citations and quotations marks omitted).

         Where a defendant asserts that her state prosecution is barred by a prior federal action, our determination is governed by section 111 of the Crimes Code, which provides in pertinent part:

When conduct constitutes an offense within the concurrent jurisdiction of this Commonwealth and of the United States or another state, a prosecution in any such other jurisdiction is a bar to a subsequent prosecution in this Commonwealth under the following circumstances:
(1) The first prosecution resulted in an acquittal or a conviction as defined in section 109 of this title (relating to when prosecution barred by former prosecution for the same offense) and the subsequent ...

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