Com. v. Gunn, O. ( 2020 )

J-S58028-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ODELL JORDAN GUNN :
:
Appellant : No. 521 WDA 2019
Appeal from the Judgment of Sentence Entered November 29, 2017
In the Court of Common Pleas of Erie County Criminal Division at No(s):
CP-25-CR-0001212-2017
BEFORE: PANELLA, P.J., BENDER, P.J.E., and DUBOW, J.
MEMORANDUM BY BENDER, P.J.E.: FILED JANUARY 06, 2020
Appellant, Odell Jordan Gunn, appeals nunc pro tunc from the aggregate
judgment of sentence of 45 to 120 months’ incarceration, imposed after he
entered a nolo contendere plea to aggravated assault, carrying a firearm
without a license, and related offenses. On appeal, Appellant challenges the
trial court’s denial of his pretrial motion to dismiss the charges against him
based on a violation of the “compulsory joiner rule” as set forth in 18 Pa.C.S.
§ 110. We affirm.
Briefly, Appellant’s convictions are premised on evidence that he fired
multiple gunshots into an apartment building where his ex-girlfriend lived.
After the shooting, Appellant was charged with numerous offenses including
six counts of aggravated assault and carrying a firearm without a license. On
July 14, 2017, he filed a motion to dismiss all the charges, arguing that the
prosecution was barred under section 110, which states, in pertinent part:
J-S58028-19
Although a prosecution is for a violation of a different provision of
the statutes than a former prosecution or is based on different
facts, it is barred by such former prosecution under the following
circumstances:
(1) The former 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 the
same offense) and the subsequent prosecution is for:
***
(ii) any offense based on the same conduct or arising
from the same criminal episode, if such offense was
known to the appropriate prosecuting officer at the
time of the commencement of the first trial and
occurred within the same judicial district as the former
prosecution unless the court ordered a separate trial
of the charge of such offense[.]
18 Pa.C.S. § 110(1)(ii).1
After conducting a hearing on Appellant’s motion, the court issued an
order and an accompanying opinion denying it on September 21, 2017. On
October 9, 2017, Appellant entered a nolo contendere plea to several of the
charges pending against him, including one count of aggravated assault and
carrying a firearm without a license. He was sentenced on November 29,
____________________________________________
1 Appellant’s compulsory joinder claim was premised on the fact that, eight
days after the shooting in the present case, he was arrested in possession of
a semi-automatic pistol. That pistol was later determined to be the firearm
used in the shooting of the apartment building. Because Appellant was
prohibited from possessing a firearm due to an active Protection From Abuse
order that had been entered against him, he was charged in a second,
separate case with various firearm-related offenses. On February 10, 2017,
Appellant entered a guilty plea in that case. When the Commonwealth then
filed the charges against Appellant based on his shooting of the apartment,
Appellant averred, in his motion to dismiss, that the charges in the present
case were barred by the compulsory joinder rule.
-2-
J-S58028-19
2017, to the aggregate term of incarceration stated supra. Appellant did not
file a direct appeal.
On October 15, 2018, Appellant filed a petition under the Post Conviction
Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546, seeking the reinstatement of his
direct appeal rights. The court appointed counsel and an amended petition
was filed on Appellant’s behalf. On March 29, 2019, the court issued an order
granting Appellant’s petition to the extent he sought the reinstatement of his
appellate rights. On April 11, 2019, Appellant filed a timely notice of appeal
nunc pro tunc. He also complied with the court’s order to file a Pa.R.A.P.
1925(b) concise statement of errors complained of on appeal. The court filed
a Rule 1925(a) opinion on June 7, 2019. Herein, Appellant states one issue
for our review: “Whether the [trial] [c]ourt committed legal error and abused
its discretion in failing to grant [Appellant’s] Motion to Dismiss predicated on
compulsory joinder?” Appellant’s Brief at 2.
Preliminarily, we agree with the trial court that Appellant has waived his
compulsory joinder issue by entering a nolo contendere plea. As the court
correctly observes, this Court has stated that, “in terms of its effects upon a
case, a plea of nolo contendere is treated the same as a guilty plea.”
Commonwealth v. Jabbie, 200 A.3d 500, 505 (Pa. Super. 2018) (citation
omitted); see also Trial Court Opinion, 6/7/19, at 1. Additionally, “upon entry
of a guilty plea, a defendant waives all claims and defenses other than those
sounding in the jurisdiction of the court, the validity of the plea, and what has
been termed the ‘legality’ of the sentence imposed[.]” Jabbie, 200 A.3d at
-3-
J-S58028-19
505 (citation omitted). Here, Appellant makes no argument that his
compulsory joinder claim implicates the court’s jurisdiction, the validity of his
plea, or the legality of his sentence. Accordingly, we agree with the court that
Appellant waived his present issue when he pled nolo contendere.
In any event, even if not waived, we would conclude that Appellant’s
claim is meritless. We have reviewed Appellant’s argument, the certified
record, and the applicable law. We have also considered the well-reasoned
opinion, filed on September 21, 2017, by the Honorable Stephanie
Domitrovich of the Court of Common Pleas of Erie County. In that decision
(which the Commonwealth adopts on appeal), Judge Domitrovich assesses
Appellant’s compulsory joinder claim and correctly determines that it is
meritless. See Trial Court Opinion, 9/21/17, at 1-8. Therefore, even had
Appellant not waived his issue, we would reject it for the reasons set forth by
Judge Domitrovich in her September 21, 2017 opinion.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/6/2020
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J-S58028-19
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I
Circulated 12/17 /2019 12:08 PM
COMMONWEALTH 0Fr���\S8':L)(:�ljt/,'..i: :.· IN THE COURT OF COMMON PLEAS
OF ERIE COUNTY, PENNSYLVANIA
V. 2611 SEP 21 PH 4� 2l+ CRIMINAL DIVISION
l ODELL JORDAN GUNN
: Appearances:
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No. CR 1212 of2017
Jessica L. Lasley, Assistant District Attorney (Commonwealth)
Robert M. Barbato Jr., Esq., on behalf of Odell Jordan Gunn (Defendant)
OPINION
Domitrovich, J., September 2151, 2017
The instant matter is currently before this Trial Court on Odell Jordan Gunn's (hereafter
: referred to as "Defendant") Motion to Dismiss. Defendant's counsel, Robert M. Barbato Jr.,
.Esq., argues the instant criminal case should be dismissed pursuant to 18 Pa. C. S. §110 as the
· instant criminal case contains only a single criminal episode and bears a close logical and
:temporal relationship to the criminal offenses charged docket no. 3721 of 2016, to which
Defendant entered a guilty plea on December 301h, 2016 and sentenced was imposed on February
10th, 2017. The Commonwealth's counsel argues compulsory joinder pursuant to 18 Pa. C. S.
§ 110 is not required as the above-referenced criminal dockets, i.e. CR 1212 of 2017 and CR
3721 of 2016, are not part of the same criminal episode, do not contain substantial duplication of
facts and are not logically and temporally related.
Factual History1
I
(:R 1212 o/2017
The following factual history is derived from the Affidavit of Probable Cause, authored
by City of Erie Police Detective Michael Hertel, Affiant, attached to the PoJice Criminal
I
Neither the Commonwealth nor defense counsel provided this Trial Court with written Preliminary Hearing
transcripts or an otherwise written factual history for the above-referenced criminal dockets. Therefore, this Trial
Court relied upon the facts presented in the respective Affidavits of Probable Cause at the above-referenced criminal
dockets.
-m1srr .
Go""'"'
A
Complaint, which was filed on April 24
1\
2017 and is of public record as to docket no. CR 1212
of 2017:
On l 0/12/ 16 at 22:50 hours, Patrolman Gadsby was dispatched to I 302
Wallace Street for a report of shots fired. Upon arrival, Patrolman Gadsby made
contact with a witness who advised him that there were possibly nine shots heard
coming from the street, followed by the sound a vehicle speeding away
southbound on Wallace Street.
Patrolman Gadsby located eight bullet holes in the east wall of 1302
Wallace Street, Apt. #2 (Second Floor). Patrolman Gadsby photographed and
documented five bullet impacts that entered the outside wall of the 2nd floor
apartment and traveled through the apartment. The bullets impacted the interior
walls and ceilings inside the apartment causing damage. Patrolman Gadsby
located four victims that were inside the 2"d floor apartment at the time of the
shooting, one adult and three juveniles. Patrolman Gadsby located and recovered
two bullets from the interior of the apartment.
Patrolman Gadsby talked to R.M., who is currently staying at 1302
Wallace Street, Apt. #2, but was not home at the time of the shooting. R.M. stated
that she had obtained a PFA against her ex-boyfriend, Od�J1 Gunn. The PFA had
the final order of court on October 6th, 2016.
On I 0/ l 8/16, this Affiant obtained video from the St. Stans Church at 5 I 6
3
East I h Street. The video shows a small red four door vehicle traveling
1
eastbound on East 13th Street and then turning south on Wallace Street at the time
of the shooting. The vehicle is driven by a light skinned male with a white t-shirt.
The brake lights on the vehicle are activated as it drives slowly in front of l 302
Wallace Street.
On 10/20/16, this Affiant interviewed Odell Gunn, at the Erie Police
Department. Gunn was present at the Erie Police Department after he was arrested
at Kramer's Bar, 820 East A venue, and was charged with possession of a .45
caliber Colt 19 l 1 semi-automatic handgun with obliterated serial numbers. The
gun was loaded with Perfecta brand .45 caliber ammunition.
This Affiant completed a rights waiver form with Gunn and he was
advised that the interview will be recorded. Gunn was asked about the shooting
incident at l 302 Wallace Street on 10/12/16 and he denied any involvement.
Gunn stated he does borrow a red Oldsmobile Alero from his cousin when he has
something to do. Gunn stated at the end of the interview, "I probably was driving
when the house got shot up." Gunn also stated, arm sorry, I wish I could tell her
that, glad she alright, I just feel bad that I was the [ expletive removed] who was
driving." "Sometime you just make mistakes." Gunn also added, ,:I am going to
own up to driving the car."
2
On 10/20/16, this Affiant and Detective Berarducci completed a consent
search of a red Oldsmobile Alero, PA JLX-6924 in front of 650 East gm Street.
The vehicle belongs to Jessica Nelson and she advised that she lent the vehicle to
Odell Gunn on 10/12/16. The search of the vehicle produced one spent .45 caliber
shell casing, Perfecta brand name ammunition.
On 10/21116, this Affiant went to 1304 Wallace Street, Apt. #1 (First
Floor Apt.) and talked with victim B. W., who stated that her apartment was "Shot
Up" on 10/12/16 and she had located a bullet on the floor. This Affiant located
three bullet strikes on the east wall of the apartment near the ceiling. This Affiant
also recovered one bullet on the floor of the bedroom. Victim B.W. stated that she
was home at the time of the shooting with her daughter, Victim T.W.
On 2/5/17, this Affiant received a lab report from the Pennsylvania State
Police Crime Labe El6-03720-1. The lab report stated that the two recovered .45
caliber shell casings were fired from the .45 caliber Colt 1911 semi-automatic
handgun that was recovered at Kramer's Bar, 820 east Avenue, on 10/201/16.
_CR 3721 of 2016
In addition, the following factual history is derived from the Affidavit of Probable Cause,
'authored by City of Erie Police Patrolman Jason Russell, Affiant, attached to the Police Criminal
Complaint, which was filed on November 16'\ 2016 and is of public record as to docket no. CR
3721 of2016:
On 20 October 2016, the defendant, Odell Jordan Gunn D.O.B. 2-24-1997,
did appear at Kramer's on the Avenue, located at 820 East Avenue. Gunn did
have an active warrant for his arrest. Gunn was then taken into police custody. At
the time of his arrest, Gunn was found to have possessed a Colt Model 1911 .45
caliber semi-automatic pistol, which was loaded and did have an obliterated
manufacturer's number. Gunn had attempted to discard the 'weapon in a trash
receptacle as uniformed police approached. Gunn is not permitted to possess a
firearm due to his having an active PfA. In addition, Gunn does not have a valid
license to carry a firearm and would be ineligible to obtain one due to his age and
the existence of the PF A.
�rocedural History
On December 141\ 2016, the District Attorney's Office filed a Criminal Information
(docket no. CR 3721 of 2016), charging Defendant with Tampering with/Fabricating Physical
3
Evidence, in violation of 18 Pa. C. S. §4910(1); Possessing a Firearm with Manufacturer Number
Altered, in violation of 18 Pa. C. S. §6110.2(a); Firearms not to be carried without a License, in
violation of 18 Pa. C. S. §6106(a)(l ); and Persons not to Possess, Use, Manufacture, Control,
· Sell or Transfer Firearrns-Pf'A Party, in violation of 18 Pa. C. S. §6105(c)(6). On February io",
2017, Defendant, with the assistance of his counsel, Robert M. Barbato Jr., Esq., entered a guilty
plea to Count One, amended to Firearms not to be carried without a License. Judge Brabender
sentenced Defendant as follows:
• Count One (Firearms not to be carried without a License): four (4) years of
Intermediate Punishment, beginning with seventy-three (73) days of
incarceration, followed by four (4) months of Electronic Monitoring.
On May 161\ 2017, the District Attorney's Office filed a Criminal Information' (docket
no. CR 1212-2017), charging Defendant with six counts of Aggravated Assault, in violation of
18 Pa C. S. §2702(a)(l); six counts of Recklessly Endangering Another Person, in violation of
'18 Pa. C. S. §2705; two counts of Discharging a Firearm into an Occupied Structure, in violation
of 18 Pa. C. S. §2707.l(a); Firearms not to be carried without a License, in violation of 18 Pa. C.
S. §6106(a)(l); Possessing a Firearm with Manufacturer Number Altered, in violation of 18 Pa.
C. S. §6110.2(a); Possessing Instruments of Crime, in violation of 18 Pa. C. S. §907(a); and two
counts of Criminal Mischief, in violation of 18 Pa. C. S. §3304(a)(l).
Defendant, by and through Attorney Barbato, filed a Motion to Dismiss on July 141\
2017. At a hearing on August 181\ 2017, Defendant appeared and was represented by Attorney
Barbato, and Assistant District Attorney Jessica L. Lasley appeared on behalf of the
Commonwealth. Following the hearing, Attorney Barbato agreed to submit a Memorandum of
Law within ten (10) days, and ADA Lasley agreed to submit a Memorandum of Law within ten
2
The criminal action at docket no. CR 1212 of2017 was initiated on March 21'\ 2017 and a Criminal Complaint
was filed on April 24"', 2017.
4
(10) days after receipt of Attorney Barbato's Memorandum of Law. Attorney Barbato submitted
his Memorandum of Law on August 29'\ 2017. ADA Lasley submitted her Memorandum of
' Law on September 8'h, 20 l 7.
: Rationale and Conclusions
A subsequent prosecution is barred by a former prosecution under the following
: circumstances, even if the subsequent prosecution charges different criminal offenses than the
: former prosecution or is based upon different facts:
I) The former prosecution resulted in an acquittal or in a conviction as defined in
section l 09 of this title (relating to when prosecution barred by former
prosecution for the same offense) and the subsequent prosecution is for:
u. any offense based on the same conduct or arising from the
same criminal episode, if such offense was known to the
appropriate prosecuting officer at the time of the
commencement of the first trial and occurred within the same
judicial district as the former prosecution unless the court
ordered a separate trial of the charge of such offense.
See 18 Pa C. S. §JJO(l)(ii). Therefore, 18 Pa. C. S. §110, known as the "compulsory joinder
rule," bars a subsequent prosecution if each prong of the following test is met: (l) the former
prosecution resulted in an acquittal or conviction; (2) the current prosecution was based on the
.
same criminal conduct or arose from the same criminal episode; (3) the prosecutor in the
subsequent trial was aware of the charges before the first trial; and (4) all charges are within the
same judicial district as the former prosecution. Commonwealth v. Reid, 17 A.3d 579, 582 (Pa.
2013) (citing Commonwealth v. Nolan, 855 A.2d 834, 839 (Pa. 2004)). In the instant criminal
case, Defendant's prosecution at docket no. CR 3721 of2016 resulted in a conviction via a guilty
plea, and the criminal offenses charged at both docket nos. CR 3721 of 2016 and CR 1212 of
2017 occurred in Erie County, Pennsylvania. Therefore, although the first and fourth prongs have
been satisfied, the second prong, i.e. "logical relationship" of the separate criminal cases, and the
5
third prong, i.e. the Commonwealth's awareness of the subsequent criminal charges before the
first criminal case, are at issue.
Regarding the second prong, i.e. "logical relationship" of the separate criminal cases, the
Pennsylvania Supreme Court has stated that trial courts must determine the "temporal" and
"logical" relationship between the charges to determine whether they arose from a "single
criminal episode." See id at 583 (citing Commonwealth v. Hude, 458 A.2d 177, 181 (Pa. 1983)).
In ascertaining whether a number of statutory offenses are "logically related" to one another, a
trial court should initially inquire as to whether there is a substantial duplication of factual,
. and/or legal issues presented by the offenses. Id. If there is duplication, then the offenses are
logically related and must be prosecuted as one trial. Id.
When determining if there is a duplication of legal issues, for purposes of the
"compulsory joinder rule," a trial court should not limit its analysis to a mere comparison of the
charges, but should also consider whether, despite the variation in the form of the criminal
charges, there is a commonality of legal issues within the two separate prosecutions. See id at
585-586 (citing Commonwealth v. Anthony, 717 A.2d 1015, 1019 (Pa. 1998)). There is no
substantial duplication of issues of fact exists if proof of each individual instance of criminal
conduct requires the introduction of the testimony of completely different police officers or if
there were different victims in different counties requiring different investigations, and those
different witnesses were necessary at each trial. See id at 585.
At docket no. CR 1212 of 2017, the Commonwealth is alleging on October Ith, 2016,
Defendant fired a firearm into the first-floor and second-floor apartments located at 1302 and
1304 Wallace Street, thereby placing the individuals residing therein in danger of death or
6
serious bodily injury. The affiant at CR 1212 of 2017 is City of Erie Police Detective Michael
Hertel and there are several victims and witnesses to Defendant's alleged criminal act.
In contrast, at docket no. CR 3721 of 2016, the Commonwealth alleged on October 20
1'\
2016, Defendant did possess a firearm, .45 caliber Colt 1911 semi-automatic handgun, while
being subject to an active PF A Order, which prohibited Defendant from possessing said firearm.
The affiant at CR 3 721 of 2016 is City of Erie Police Patrolman Jason Russell and the only other
witness is City of Erie Police Patrolman Ira Bush, who was on patrol with Patrolman Russell
when Defendant was discovered with a firearm in his possession.
The temporal relationship of these two (2) separate criminal dockets in clearly different,
as one incident occurred on October l 2'h, 2016 and the other incident occurred on October 20'\
2016. Furthermore, the logical relationship demonstrates only a single similarity - the firearms
-possessed by Defendant. Aside from the firearm, these two (2) separate criminal dockets have
two (2) different Affiants, different witnesses and different locations within Erie County,
Pennsylvania. Finally, proof of the offenses charged at these two (2) separate criminal dockets
requires proof from different police officers and witnesses. Clearly, this Trial Court finds and
concludes no substantial duplication of factual and/or legal issues has occurred in these two (2)
separate criminal dockets and, therefore, compulsory joinder pursuant to 18 Pa. C. S. § 110 does
not apply.
In addition, the third prong - whether the Commonwealth was aware of the subsequent
criminal charges before the first criminal action - has not been satisfied. At docket no. CR 3721
of 2016, Defendant was found to have a firearm in his possession, which he discarded in the
waste receptacle in the men's restroom of Kramer's bar. Patrolmen Russell and Bush located the
firearm in the waste receptacle inside the men's restroom of Kramer's Bar and tagged said
7
firearm into evidence. Thereafter, the firearm, as well as two (2) spent Perfecta brand .45 caliber
shell casings found during the investigation of the shooting at 1302 Wallace Street, were sent to
the Pennsylvania State Police for ballistics testing. A Report from the Pennsylvania State Police
Crime Lab was received by Detective Hertel on February s", 2017, five (S) days before
Defendant pled guilty and was sentenced at docket no. 3 721 of 2016. Said Lab Report indicated
the two (2) spent .45 caliber Perfecta brand shell casings were fired from the .45 caliber Colt
1911 semi-automatic handgun found at Kramer's Bar. Following receipt of this Lab Report and
after further investigation, the Criminal Complaint at docket no. CR 1212 of 20 l 7 was filed on
April 24•h, 2017, officially commencing a criminal action against Defendant. At that point,
docket no. CR 3721 of 2016 had been officially closed following Defendant's guilty plea and
sentencing on February l 0 2017. The record, via the dates of initiation and the dates of
1\
conclusion for these two (2) separate criminal dockets, indicates the Commonwealth was
unaware of the criminal charges at docket no. CR 1212 of 2017 at the time the criminal offenses
charged at docket no. CR 3 72 l of 2016 were pending; therefore, the third prong for compulsory
joinder has not been satisfied.
Therefore, the above-referenced factual history clearly demonstrates Defendant's
criminal dockets, CR 3 721 of 2016 and CR 1212 of 201 7, do not arise from the same criminal
episode and, therefore, are not required to be joined pursuant to 18 Pa. C. S. § 110. For alt of the
reasons set forth above and others stated on the record, this Trial Court enters the following
Order:
8
COMMONWEAL TH OF PENNSYLVANIA IN THE COURT OF COMMON PLEAS
OF ERIE COUNTY, PENNSYLVANIA
v. CRIMINAL DIVISION
ODELL JORDAN GUNN, No. CR 1212 of 2017
Defendant
ORDER
ANO NOW, to-wit, this 21st day of September, 2017, after thorough review of the entire
record, including, but not Jimited to, the Memoranda of Law submitted by both counseJ, as well
as a thorough review of relevant statutory Jaw and case law, and consistent with the Opinion set
forth above, it is hereby ORDERED, ADJUDGED AND DECREED that Defendant Odell
Jordan Gunn's Motion to Dismiss is hereby DENIED.
BY THE COURT:
�--�v
�,Judge
cc: /J;ssica L. Lasley, Assistant District Attorney
ft9bert M. Barbato Jr., Esq., 1314 Griswold Plaza, Erie, PA 16501
RfdeJJ Jordan Gunn, #3 8543, Erie County Prison, 1618 Ash Street, Erie, PA 16503
Julia Bagnoni, Court Administration
9