Com. v. Cush, C. ( 2018 )

J-S23010-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CHRISTOPHER CHARLES CUSH :
:
Appellant : No. 1965 EDA 2017
Appeal from the Judgment of Sentence April 24, 2017
In the Court of Common Pleas of Bucks County Criminal Division at
No(s): CP-09-CR-0006327-2016
BEFORE: SHOGAN, J., NICHOLS, J., and STEVENS*, P.J.E.
MEMORANDUM BY SHOGAN, J.: FILED JUNE 08, 2018
Appellant, Christopher Charles Cush, appeals1 from the judgment of
sentence entered on April 24, 2017 in the Court of Common Pleas of Bucks
County. We affirm.
The trial court summarized the factual and procedural history of this
case as follows:
On April 24, 2017, Appellant appeared before this [c]ourt
and pled nolo contendere to one count of Receiving Stolen
Property.1 These charges arose when, on May 6, 2016, victim
[Ms. M.] left her home in Newtown Township, Bucks County,
Pennsylvania at noon and returned at approximately 3:00 P.M. to
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1 In his notice of appeal, Appellant purports to appeal “from the withdrawal of
post-sentence motions, entered on June 13, 2017.” Notice of Appeal,
6/16/17, at 1. It is evident however, that Appellant is challenging the
judgment of sentence imposed on April 24, 2017. See Commonwealth v.
Shamberger, 788 A.2d 408, 410 n.2 (Pa. Super. 2001) (“In a criminal action,
appeal properly lies from the judgment of sentence made final by the denial
of post-sentence motions.”).
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* Former Justice specially assigned to the Superior Court.
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find that the interior door, basement door and kitchen window
[were] open, and that her kitchen and master bedroom [were] in
disarray. [Ms. M.] found that various items of jewelry, cash, a
violin and two DeWalt cordless drills were missing from the home.
An investigation by Detective Christopher Bush of the Newtown
Township Police Department revealed that Appellant had sold one
Yamaha violin and one DeWalt Cordless drill to a Philadelphia
pawnshop on the same day at approximately 4:39 P.M.2 Two shoe
tread impressions were found on the first floor of the victim’s
home between the kitchen and second floor stairway. Detective
Bush identified one of these partial impressions as being
consistent with that of a Converse sneaker. According to
Detective Bush, this sneaker tread impression was consistent with
the tread impression and design of a pair of Converse sneakers
worn by the Appellant. Ms[.] M[.] did not recognize the Converse
sneaker tread impression as belonging to any member of her
household.
1 18 Pa.C.S. § 3925(a).
2 Specifically, Appellant received $75 cash for the
violin, sold at 4:39 P.M., and $40 cash for the DeWalt
Cordless drill, sold at 4:44 P.M.
On August 2, 2016, Newtown Township Police charged
Appellant with Burglary,3 Criminal Conspiracy to commit
Burglary,4 Criminal Trespass by Entering a Building or Occupied
Structure,5 Theft by Unlawful Taking,6 and Receiving Stolen
Property.7 On January 3, 2017, Appellant filed a Petition for Writ
of Habeas Corpus arguing that Counts 1 through 4 were
improperly held for court following his preliminary hearing. On
March 2, 2017, a hearing was held before The Honorable Albert J.
Cepparulo in which Counts 1 [through] 4[2] were dismissed. Upon
request of the Bucks County District Attorney’s Office, the
Philadelphia District Attorney’s Office issued a McPhail8 letter on
March 8, 2017, allowing Bucks County to prosecute Appellant’s
case. Appellant proceeded to trial on Count . . . . 5, and on March
28, 2017, after a two-day jury trial before The Honorable Diane E.
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2 While the trial court in its opinion indicates that Counts 1, 3, and 4 were
dismissed by Judge Cepparulo, the parties at Appellant’s plea hearing
indicated that Counts 1 through 4 were dismissed. N.T., 4/24/17, at 27. The
same is indicated on Appellant’s sentencing order. Order, 4/24/17, at 1.
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Gibbons, the court declared a mistrial due to a hung jury. On April
24, 2017, Appellant appeared before this [c]ourt for a second trial
and subsequently entered a negotiated nolo contendere plea to
Count 5.9 Upon the Commonwealth’s recommendation, this
[c]ourt sentenced Appellant to one day less than 1 year to one
day less than 2 years [of] incarceration.
3 Count 1: 18 Pa.C.S. § 3502(a)(2).
4 Count 2: 18 Pa.C.S. § 903(a).
5 Count 3: 18 Pa.C.S. § 3503(a)(1)(i).
6 Count 4: 18 Pa.C.S. § 3921(a).
7 Count 5: 18 Pa.C.S. § 3925(a).
8 Commonwealth v. McPhail, 692 A.2d 139 (Pa. 1997).
9 Specifically, Appellant pled nolo contendere to
“retaining a violin and DeWalt drill knowing that they
had been stolen or probably been stolen.”
On April 27, 2017, Appellant filed a pro se Motion for
Reconsideration of Sentence, followed by a counseled Motion to
Modify and Reconsider Sentence on May 3, 2017. In both Motions,
Appellant argued that he intended to cooperate with the
Commonwealth in exchange for a reduced sentence. On May 24,
2017, prior to the disposition of his motions to reconsider
sentence, Appellant filed a pro se Notice of Appeal to the Superior
Court from this court’s sentence imposed April 24, 2017.
Commonwealth v. Christopher C. Cush, No. 1697 EDA 2017. On
June 13, 2017, a hearing was held and Appellant withdrew his pro
se Motion for Reconsideration and his Motion to Modify and
Reconsider Sentence. Appellant subsequently filed a counseled
Notice of Appeal to the Superior Court on June 16, 2017.
Commonwealth v. Christopher C. Cush, No. 1965 EDA 2017. On
August 7, 2017, the Superior Court dismissed Appellant’s pro se
Notice of Appeal, No. 1697 EDA 2017, as duplicative of the appeal
docketed at No. 1965 EDA 2017.
Trial Court Opinion, 10/18/17 at 1-3 (internal citations omitted).
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Appellant presents the following issue for our review: “Whether it was
improper for the Bucks County Court of Common Pleas to exercise venue when
the alleged crime of receiving stolen property occurred in Philadelphia
County?” Appellant’s Brief at 4. Appellant asserts that once the charges of
burglary, criminal trespass, and theft by unlawful taking were dismissed, the
nexus between Appellant’s charges and Bucks County was broken, and
therefore, Bucks County was no longer the proper venue in which to prosecute
Appellant for receiving stolen property. Id. at 8, 10-12. Appellant further
maintains that because venue was improper, his conviction for receiving stolen
property should be reversed and the sentence vacated. Id. at 8.
“[W]hen a defendant enters a guilty plea,[3] he or she waives all defects
and defenses except those concerning the validity of the plea, the jurisdiction
of the trial court, and the legality of the sentence imposed.” Commonwealth
v. Stradley, 50 A.3d 769, 771 (Pa. 2012). As noted, Appellant is challenging
venue in this case. Our Supreme Court has explained that “[s]ubject matter
jurisdiction and venue are distinct.” Commonwealth v. Bethea, 828 A.2d
1066, 1074 (Pa. 2003). “Subject matter jurisdiction relates to the competency
of a court to hear and decide the type of controversy presented. Jurisdiction
is a matter of substantive law.” Id. (internal citation omitted). “Venue relates
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3 “It is well established that a plea of nolo contendere is treated as a guilty
plea in terms of its effect upon a given case.” Commonwealth v. V.G., 9
A.3d 222, 226 (Pa. Super. 2010).
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to the right of a party to have the controversy brought and heard in a
particular judicial district. Venue is predominately a procedural matter,
generally prescribed by rules of this Court. Venue assumes the existence of
jurisdiction.” Id. (internal citations omitted).
Thus, Appellant’s challenge to venue is not a challenge to the court’s
jurisdiction. Additionally, Appellant’s claim does not contest the validity of the
plea or the legality of sentence. Accordingly, Appellant’s challenge to venue
has been waived by entry of his plea of nolo contendere.
Assuming arguendo that Appellant had not waived his claim, we agree
with the trial court’s conclusion that venue in this case was proper.4 “Venue
in a criminal action properly belongs in the place where the crime occurred.”
Commonwealth v. Gross, 101 A.3d 28, 33 (Pa. 2014). “Generally, venue
begins in the court with a geographic connection to the underlying crime. If
a litigant moves to change venue, that litigant must demonstrate some
necessity to justify the change in venue.” Commonwealth v. Dixon, 985
A.2d 720, 722 (Pa. 2009). The Pennsylvania Rules of Criminal Procedure
contemplate that there may be a choice of venue in a criminal case and that
cases may be transferred when necessary and appropriate. Rule 130(A)(3)
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4 Appellant challenged venue by oral motion on March 2, 2017. The trial court
denied this motion by order entered March 24, 2017. Although the notes of
testimony from these proceedings are not in the record, the parties agree that
the motion was made orally on March 2, 2017. Appellant’s Brief at 5;
Commonwealth’s Brief at 9.
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of the Pennsylvania Rules of Criminal Procedure states, “When charges arising
from the same criminal episode occur in more than one judicial district, the
criminal proceeding on all the charges may be brought before one issuing
authority in a magisterial district within any of the judicial districts in which
the charges arising from the same criminal episode occurred.” Pa.R.Crim.P.
130(A)(3). Moreover, this Court has held that where multiple offenses
committed across several counties are to be prosecuted in one county, “it is
not necessary that the county so chosen be the situs of each and every crime
charged. It is enough that one of the offenses being tried occurred in that
county.” Commonwealth v. Brookins, 10 A.3d 1251, 1259 (Pa. Super.
2010). Venue may be changed
“when it is determined after hearing that a fair and impartial trial
cannot be [sic] otherwise be had in the county where the case is
currently pending.” Pa.R.Crim.P. 584(A). The moving party bears
the burden of showing that such a change is necessary and must
demonstrate that he or she cannot receive a fair and impartial trial
in the county in which venue was originally established. See
Bethea, 828 A.2d at 1075 (“[I]t is important to keep in mind the
primary concern in change of venue cases; does the location of
the trial impact on the ability of the parties to have their case
decided before a fair and impartial tribunal?”). In evaluating the
likelihood of prejudice, our Supreme Court has considered
whether trial in the original venue caused the defendant to incur
undue expense, whether the location of the trial rendered the
defendant unable to obtain the presence of defense witnesses or
evidence, whether the prosecution was engaged in forum
shopping to obtain an advantage over the defense, see id. at
1077, and of course, whether pre-trial publicity rendered a fair
trial unlikely.
Id. at 1259 (internal citation omitted).
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Here, the evidence presented at the preliminary hearing established that
the theft of the goods occurred in Bucks County. N.T., 9/26/17, at 5-8. While
Appellant pled nolo contendere to receiving the stolen property, it is unclear
where Appellant received those goods.5 The evidence is sufficient, therefore,
to establish that at least one incident in this criminal episode occurred in Bucks
County. Moreover, this Court has provided the following analysis in
addressing charges of receiving stolen property:
It is ... well established that unexplained possession in the
defendant of property recently stolen is evidence that he is the
thief. . . . if the indictment charges receiving stolen goods only,
the unexplained possession is evidence of guilt of that crime.
However, such evidence is not conclusive and may be rebutted.
It is for the trier of fact alone to say whether the guilt of the
defendant is a reasonable inference, fairly deducible from his
possession of recently stolen property, in light of all the
circumstances, including the reasonableness of his explanation, if
any, as to how he came into possession.
Commonwealth v. Thomas, 451 A.2d 470, 473 (Pa. Super. 1982).
At the preliminary hearing, evidence established that Appellant sold the
items stolen in Bucks County at the pawn shop in Philadelphia County.
Documentation acquired from the pawn shop reflects that the stolen items
were presented for sale by Appellant. N.T., 9/26/16 at 17-20. Video
surveillance from the pawn shop reflected that Appellant was the individual
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5 There is no evidence supporting Appellant’s claim that “it is undisputed that
the alleged crime of receiving stolen property occurred in Philadelphia.”
Appellant’s Brief at 10. The evidence establishes only that Appellant sold the
stolen property in Philadelphia.
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who sold the stolen goods. Id. at 20. Further, the evidence establishes that
Appellant was at the pawn shop selling the stolen items within hours of the
theft in Bucks County. Id. at 18. Additionally, testimony established that
shoe impressions were discovered at the scene of the burglary in Bucks
County. N.T., 9/26/16, at 20-21. The treads were consistent with Converse
foot wear. Id. at 21-22. Appellant was identified as wearing Converse
sneakers. Id. at 24. Moreover, Ms. M. testified that no one in her home wore
Converse shoes. Id. at 15. Thus, the rebuttable inference that Appellant was
the thief due to his possession of the stolen goods is supported by the
additional evidence regarding Appellant’s presence at the pawn shop with the
stolen items within hours of the theft and the shoe tread marks found at the
scene of the crime. Accordingly, the totality of circumstances supports the
conclusion that Appellant was involved in the crime that occurred in Bucks
County. Venue was therefore proper in Bucks County.6
Appellant cites to Thomas in support of his position that Bucks County
was an improper venue. Appellant’s Brief at 10-11. In Thomas, a Delaware
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6Our Supreme Court has held that “[b]ecause the Commonwealth selects the
county of trial, . . . it shall bear the burden of proving venue is proper-that is,
evidence an offense occurred in the judicial district with which the defendant
may be criminally associated, either directly, jointly, or vicariously.” Gross,
101 A.3d at 33. The Court determined that venue should be proven by a
preponderance of evidence. Id. “Because venue is not part of a crime, it
need not be proven beyond a reasonable doubt as essential elements must
be.” Id. Furthermore, “venue need not be proven by direct evidence but may
be inferred by circumstantial evidence.” Id. For reasons discussed, venue in
Bucks County has been proven by a preponderance of the evidence.
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County home was burglarized, and a vehicle was stolen. Thomas, 451 A.2d
at 470-471. Thomas was later found and arrested in Montgomery County.
Id. at 471. The stolen vehicle was recovered in Montgomery County. Id.Thomas was charged in Delaware County with burglary, theft by unlawful
taking, theft by receiving stolen property, and unauthorized use of a motor
vehicle. Id. Thomas was acquitted of the burglary and theft-by-unlawful-
taking charges. Id. As a result, this Court concluded that the nexus between
the remaining charges, receiving stolen property and unauthorized use of a
motor vehicle, and Delaware County was broken. Id. As a result, this Court
reversed the conviction because Delaware County did not have jurisdiction to
prosecute the crime. Id.Thomas is distinguishable from the current case. As noted, in this case,
additional evidence tying Appellant to the theft in Bucks County supported the
inference that Appellant had committed the crimes of burglary and theft in
Bucks County. That evidence included Appellant’s possession of the stolen
items shortly after the theft, his pawning of those items, and the fact that he
wore shoes having similar tread marks to those discovered at the scene of the
burglary and theft. Moreover, Appellant has failed to present evidence
rebutting that inference. Thomas, 451 A.2d at 473. Thus, we find Thomas
to be inapplicable to this case.
Furthermore, Appellant has failed to establish that he could not receive
a fair and impartial trial in Bucks County. Brookins, 10 A.3d at 1259. Thus,
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even if Appellant’s claim had not been waived, venue was proper in Bucks
County, and the trial court did not err in denying Appellant’s motion to transfer
venue to Philadelphia County.7
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/8/18
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7 We note that even if venue were not proper, Appellant would not be entitled
to vacation of his sentence. When improper venue is determined, the
appropriate remedy is transfer of the case to another judicial district. Gross,
101 A.3d at 36. “[D]ismissal is disproportionate and unjust where a court
merely finds another judicial district provides a more appropriate forum.” Id.
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