Opinion
J-S47016-18 No. 1598 WDA 2017
08-31-2018
COMMONWEALTH OF PENNSYLVANIA v. MICHAEL LEE SCHMIDT Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered October 25, 2017
In the Court of Common Pleas of Lawrence County Criminal Division at No(s): CP-37-CR-0000973-2014 BEFORE: OLSON, J., McLAUGHLIN, J., and STRASSBURGER, J. MEMORANDUM BY McLAUGHLIN, J.:
Retired Senior Judge assigned to the Superior Court.
The Commonwealth appeals from the order entered October 25, 2017, which in part granted Michael Lee Schmidt's motion to dismiss charges pursuant to statutory double jeopardy as defined by 18 Pa.C.S.A. § 111. In this case, the Commonwealth seeks to prosecute Schmidt for his role in a conspiracy to distribute heroin in Lawrence County, Pennsylvania. However, Schmidt has already pleaded guilty to conspiracy, based upon the same conduct, in federal court in Ohio. As the Commonwealth failed to establish that its prosecution requires proof of a fact not required by the federal prosecution and that the harm it intends to prevent is substantially different, we affirm.
The Commonwealth certifies that the order granting Schmidt's motion substantially handicaps the prosecution of this case. See Pa.R.A.P. 311(d).
The trial court set forth facts and procedural history, which we adopt and incorporate herein. Trial Court Pa.R.A.P. 1925(a) Opinion, filed November 8, 2017, at 1-8.
The Commonwealth raises the following issues on appeal:
1. Whether the trial court erred in dismissing Counts 2, 3, 4, 5, 6, 7, 8, 10, 11 and 12 charging Conspiracy (18 Pa.C.S.A. § 903) pursuant to 18 Pa.C.S.A. § 111 through application of Commonwealth v. Savage , 566 A.2d 272 (Pa.Super. 1989) in finding that a single and broader conspiracy existed between the Ohio indictment and the Commonwealth's prosecution.Commonwealth's Br. at 8 (unnecessary capitalization omitted) (issues reversed for ease of analysis).
2. Whether the trial court erred in finding 18 Pa.C.S.A. § 111, through application of Commonwealth v. Wetton , 591 A.2d 1067 (Pa.Super. 1991); Commonwealth v. Besch , 544 Pa. 1, 674 A.2d 655 (1996) in dismissing the substantive corrupt organizations charge at Count 1 of the Information.
See 18 Pa.C.S.A. § 911.
The Commonwealth's issues present questions of law, which are subject to plenary review in this Court. See Commonwealth v. Williams , 151 A.3d 1113, 1114 (Pa.Super. 2016); Wetton , 591 A.2d at 1071.
In Pennsylvania, the Commonwealth may not prosecute an individual for criminal acts under certain circumstances where the individual has been prosecuted for the same conduct in another jurisdiction. A subsequent prosecution is barred, in relevant part, where:
[t]he first prosecution resulted in an acquittal or in a conviction as defined in section 109 of this title (relating to when prosecution
barred by former prosecution for same offense) and the subsequent prosecution is based on the same conduct unless:18 Pa.C.S.A. § 111(1)(i) (emphasis added).
(i) the offense of which the defendant was formerly convicted or acquitted and the offense for which he is subsequently prosecuted each requires proof of a fact not required by the other and the law defining each of such offenses is intended to prevent a substantially different harm or evil[.]
The Pennsylvania Supreme Court has approved a three-part inquiry to determine whether Section 111 bars a subsequent prosecution.
(1) Is the prosecution the Commonwealth proposes to undertake based on the same conduct for which the individual was prosecuted by the other jurisdiction?Commonwealth v. Traitz , 597 A.2d 1129, 1132-33 (Pa. 1991) (quoting Commonwealth v. Abbott , 466 A.2d 644, 649 (Pa.Super. 1983)). Although the statute is silent regarding the relevant burden of proof, it is well settled that
(2) Do each of the prosecutions require proof of a fact not required by the other?
(3) Is the law defining the state offense designed to prevent a substantially different harm or evil than the law defining the other jurisdiction's offense?
when a defendant raises a non-frivolous prima facie claim that a prosecution may be barred under 18 Pa.C.S.A. § 111, the prosecution bears a burden to prove by a preponderance of the evidence either that the "same conduct" is not involved, or that a statutory exception to the statutory bar on reprosecution applies.Commonwealth v. Savage , 566 A.2d 272, 284 (Pa.Super. 1989) (emphasis in original).
In its first issue, the Commonwealth contends the trial court erred in failing to consider appropriately the evidence in support of its contention that Schmidt engaged in multiple conspiracies to distribute heroin. See Commonwealth's Br. at 40-64 (asserting, without supportive legal authority, that federal investigation produced insufficient evidence and that Schmidt's guilty plea "bolstered" the federal investigation). However, the apparent depth and detail of the Commonwealth's investigation does not reveal different criminal conduct by Schmidt. Rather, it merely confirms that the conduct prosecuted by federal officials - and for which Schmidt has pleaded guilty - encompasses the same conduct for which the Commonwealth seeks to prosecute.
The Commonwealth's repeated citations to Exhibit A, including an affidavit signed by Special Agent James C. McCann in support of a federal wiretap application are inappropriate. See , e.g., Commonwealth's Br. at 44, 45, 46, 49, etc. Based on our review of the record, Exhibit A was never introduced or incorporated into the certified record. We caution the Commonwealth that "for purposes of appellate review, what is not of record does not exist." Commonwealth v. Johnson , 33 A.3d 122, 126 n.6 (Pa.Super. 2011). We need not sanction the Commonwealth, as the affidavit does not impair our analysis. Incidentally, even if it were of record, it would not change the outcome of this appeal.
In Savage , this Court similarly focused on an elaborate criminal conspiracy to distribute narcotics. See Savage , 566 A.2d at 273-74. At issue was the role of a single defendant, who the Commonwealth asserted was the sole link between multiple conspiracies. Id. at 275. Based on facts similar to those present here, we rejected the Commonwealth's assertion.
Plainly, the distribution of cocaine from an importer to a wholesaler or retailer envisions and in fact requires the wholesaler or retailer to enter into further agreements with others to profitably dispose of the wholesaler's or retailer's inventory, thereby providing capital for future intended purchases from the importer. Thus, the fact that appellant was the sole link between the conspiracies was rendered virtually insignificant in light of appellant's roles as a buyer in the federal conspiracy, and as a seller in the alleged state conspiracy.Id. at 285 (concluding that state-alleged conspiracy "merely a necessary facet of the broader federal conspiracy").
Here, as concluded by the trial court, Schmidt distributed heroin from the wholesale level to retailers. See Trial Ct. Pa.R.A.P. 1925(a) Op. at 14. Essentially, Schmidt's distribution network in Lawrence County was merely a facet of the broader conspiracy based in Ohio. Thus, Schmidt's link between an importer and the retail distribution network did not establish separate conspiracies. Id. (citing in support Savage ). After review of the record, the parties' briefs, and the relevant law, we affirm on the basis of the well-reasoned opinion of the Honorable J. Craig Cox, which we incorporate herein. Id. at 7-17.
The Commonwealth's argument focuses solely on the first part of the Traitz inquiry. See Commonwealth's Br. at 38-64. Thus, it has conceded that it cannot meet the "different required facts/substantially different interests" exception to the bar on re-prosecution. See Savage , 566 A.2d at 285; see also Pa.R.A.P. 2119 (Argument).
In its second issue, the Commonwealth similarly contends that, with regard to its substantive, corrupt organizations charge, the trial court erred in concluding that it seeks to prosecute Schmidt for the same conduct for which he has already pleaded guilty. See Commonwealth's Br. at 65-68. For the reasons set forth above, we reject this contention. The Commonwealth further suggests that proper analysis of the second part of the Traitz inquiry, i.e., the "different required facts" exception, militates in favor of its prosecution. Id. at 68-71. However, the Commonwealth seemingly concedes that it cannot establish the "substantially different interests" exception to the bar on re-prosecution. Id. (failing to address this exception in its analysis); see also 18 Pa.C.S. § 111(1)(i) (requiring Commonwealth to establish both different required facts and substantially different interests exceptions before re-prosecution permitted). Accordingly, the Commonwealth is due no relief.
As described succinctly in the trial court's opinion, resolution of this issue hinges upon the proper understanding of the harm the General Assembly intended to address in the corrupt organizations statute. See 18 Pa.C.S. § 911. The Assembly's legislative response to Commonwealth v. Besch , 674 A.2d 655 (Pa. 1996), is instructive. In Besch , our Supreme Court concluded that the "clear intent" of Section 911 was to prevent infiltration of legitimate businesses by organized crime. Besch , 674 A.2d at 659 (thereafter vacating appellant's judgment of sentence for corrupt organizations where drug conspiracy was entirely illegitimate). However, following this interpretation, the General Assembly amended Section 911, prohibiting racketeering activities in both "legitimate as well as illegitimate entities." See 18 Pa.C.S.A. § 911(h)(3); see also , e.g., Commonwealth v. Williams , 141 A.3d 440, 449 n.8 (Pa. 2016) (recognizing Besch superseded by statute)
Effectively, the General Assembly's amendment breathed new life into a prior, plurality opinion of the Court. In circumstances similar to those present here, in Commonwealth v. Wetton , 641 A.2d 574 (Pa. 1994), the Court stated the following:
While federal drug conspiracy is a different crime from substantive corrupt organizations, both statutes are used in this case to protect the same governmental interest the elimination of the pervasive drug trafficking network in our society. ... [T]herefore, ... the proper application of Section 111 of the Crimes Code bars [a]ppellant[']s prosecution on all substantive corrupt organizations charges, 18 Pa.C.S.A. § 911(b)(3). To hold otherwise would be to apply Section 111 in such a narrow and limiting manner so that dual prosecution would effectively be barred only where exact crimes match exact dates - crime for crime and date for date. Because the federal drug conspiracy statute and the state substantive corrupt organizations statute protect the same governmental interest, ... the third Traitz question is answered in the negative and therefore the statutory bar of 18 Pa.C.S.A. § 111 cannot be lifted.Id. at 579-80 (plurality opinion in support of reversal). Thus, after review of the record, the parties' briefs, and the relevant law, we affirm on the basis of the well-reasoned opinion of the Honorable J. Craig Cox, which we incorporate herein. Id. at 17-21.
Order affirmed; case remanded for further proceedings; jurisdiction relinquished. Judgment Entered. /s/_________ Joseph D. Seletyn, Esq.
Prothonotary Date: 8/31/2018
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