Com. v. Johnson, A. ( 2023 )

J-A02009-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
AARON ERNEST JOHNSON :
:
Appellant : No. 67 WDA 2022
Appeal from the Judgment of Sentence Entered August 26, 2020
In the Court of Common Pleas of Clarion County Criminal Division at
No(s): CP-16-CR-0000168-2019
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
AARON ERNEST JOHNSON :
:
Appellant : No. 68 WDA 2022
Appeal from the Judgment of Sentence Entered August 26, 2020
In the Court of Common Pleas of Clarion County Criminal Division at
No(s): CP-16-CR-0000169-2019
BEFORE: BOWES, J., MURRAY, J., and PELLEGRINI, J.*
CONCURRING AND DISSENTING MEMORANDUM BY PELLEGRINI, J.:
FILED: JUNE 6, 2023
While I otherwise join the majority in its resolution of the other claims
raised in this appeal, I respectfully dissent from the majority’s holding that
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-A02009-23
venue was proper in Clarion County for Case 169-2019 when all the events
upon which it was based took place in Allegheny County.
The case had its origins in the November 20, 2018 death of William
Stout in Clarion County from a drug overdose. Stout had purchased drugs
from Spencer Rudolph, a co-worker in Clarion County, who, in turn, purchased
the drugs from Joseph Hoffman in Jefferson County. Hoffman had, in turn,
obtained those drugs from William Fourness in Elk County. Fourness had
obtained the drugs either personally or with others who acted on his behalf in
Monroeville, which is outside Pittsburgh in Allegheny County. Charges were
filed against Johnson for the conduct that resulted in Stout’s death at Clarion
County Case 168-2019.
Johnson’s business relationships in Clarion County had ended by
February 2019 but he continued his drug-dealing activity in Allegheny County,
which are the basis for the charges filed at Case 169-2019 for offenses that
occurred from March 9, 2019, to March 12, 2019. Johnson claimed that venue
on this case was improper in Clarion County because those charges were not
part of the same criminal episode involved in Case 168-2019.
Johnson argues that there was no single criminal episode because no
witness or co-conspirator in Case 168-2019 had any involvement with the
criminal activity alleged in Case 169-2019. Further, he contends there was
no temporal relationship between the cases because the allegations in Case
168-2019 primarily occurred in November 2018 and ended on or before
-2-
J-A02009-23
February 2019, while the activity at issue in Case 169-2019 did not occur until
March 2019. The majority dismisses these arguments, reasoning that because
Johnson operated a continuous drug distribution in Allegheny County, even
after his association with Fourness ended, he continued to sell the same drugs
using the same packaging from the same location in the following weeks.
Thus, it concludes that the March 2019 deliveries were not a second, different
criminal episode but a continuation of what Johnson had been doing all along.
I disagree with the majority that this continued criminal enterprise
represented the same criminal episode, as contemplated by our law
governing venue. Because the charges at Case 169-2019 arose out of a drug-
dealing operation located exclusively in Allegheny County from March 9, 2019,
to March 12, 2019, I would hold that the trial court erred in denying Johnson’s
motion to dismiss for lack of venue.
I.
The requirement that a defendant be tried in the locality where the crime
took place is rooted in the Sixth Amendment to the United States Constitution
and Article I, Section 9 of the Pennsylvania Constitution. Commonwealth v.
Callen, 198 A.3d 1149, 1157 (Pa. Super. 2018) (citation omitted). The venue
requirement “provides a number of protections to the defendant, including
protecting the defendant from prosecutorial forum shopping (as to both judges
and juries) and providing the defendant with the convenience of having
relevant evidence and witnesses more readily accessible.” Id. at 1158. Thus,
-3-
J-A02009-23
as the majority explains, “‘a condition precedent to the exercise by a single
county to jurisdiction in a case involving multiple offenses in various counties
is [that] the offense must constitute a single criminal episode.’” Majority
Memorandum at 24 (alterations in original) (quoting Commonwealth v.
Witmayer, 144 A.3d 939, 946 (Pa. Super. 2016)); see also Pa. R. Crim. P.
130(A)(3).
To determine whether multiple crimes are part of a single criminal
episode, we look to whether they are “logically or temporally related and share
common issues of law and fact.” Callen, supra at 1160 (quoting Witmayer,
supra, at 946-47). In addressing this question, we look to whether there is
“substantial duplication” of the factual and legal issues presented by the
offenses, though the factual backgrounds of the cases do not need to be wholly
identical. Id. Offenses may constitute a single criminal episode even when
the offenses represent multiple occurrences over a period of time, as long as
there is a logical relationship between the offenses. Id. Finally, in conspiracy
cases, the Commonwealth may bring charges in any county in which the
conspiracy was formed or an overt act in furtherance of the conspiracy was
committed. Commonwealth v. Gross, 110 A.3d 28, 34 (Pa. 2014).
My review of the record in this case reveals that all crimes that were
committed in Clarion County, and any conspiracy to commit further crimes
there, were complete by February 2019 at the latest. At the evidentiary
hearing on Johnson’s motion, the Commonwealth relied on the preliminary
-4-
J-A02009-23
hearing transcript for its argument that venue for both cases was proper in
Clarion County. N.T., 8/12/19, at 9. At the preliminary hearing, the
Commonwealth’s only witness, Chief William H. Peck of the Clarion Police
Department, admitted that the criminal conspiracy and corrupt organization
involved in Case 168-2019 was “pretty much over with” by February 2019,
since almost all of its participants were in jail by that time. N.T., 4/9/19, at
56-57.
Just because Chief Peck’s investigation into Stout’s death in Clarion
County eventually led to Johnson’s arrest in Allegheny County does not
necessarily compel the conclusion that the arrest and search were part of the
same criminal episode as Stout’s death. We recently acknowledged as much
in Commonwealth v. Copes, __ A.3d __, 1275 EDA 2022 (Pa. Super. May
26, 2023), a case involving compulsory joinder.1 There, the defendant
assaulted the victim near a SEPTA station and fled the scene. After reviewing
surveillance footage, police officers recognized the defendant about an hour
later and approached him to effectuate an arrest. Id. at *2. As they
approached, the defendant discarded a backpack containing a firearm. As a
____________________________________________
1 The “single criminal episode test” that we rely upon in assessing venue
claims “originates from Pennsylvania’s compulsory joinder statute.”
Commonwealth v. Callen, 198 A.3d 1149, 1160 (Pa. Super. 2018) (citation
omitted).
-5-
J-A02009-23
result, he was charged at separate dockets: one docket for the assault charge
and one for charges related to his illegal possession of a firearm. Id.We concluded that the dockets did not arise out of a single criminal
episode, so compulsory joinder was not required. Even though a mere hour
passed between the two crimes, and the first crime undoubtedly precipitated
the arrest that uncovered the firearms offense, we found that there was no
logical relationship between the two crimes or substantial duplication of facts
that would compel joinder. Id. at *6. The victim in the assault case would
not be a witness to the firearms offense, and the officers who arrested the
defendant did not witness the assault. Id. The surveillance footage of the
assault had no relevance to the firearms offense. Id. Even though it was an
investigation of the assault that led to the firearms charge, we concluded that
“any duplication of evidence would be de minimus and inadequate to establish
the charges were logically related.” Id. at *6-7.
II.
The same logic applies here. Chief Peck’s investigation into Stout’s
death and Johnson’s trafficking of heroin in Clarion County ultimately
culminated in a search of Johnson’s base of operations in Allegheny County.
That is where the overlap between the two cases ends. As the majority
acknowledges, Johnson’s business relationships in Clarion County had been
severed by February 2019, though he apparently continued his drug dealing
activity thereafter in Allegheny County. In investigating Johnson’s activities
-6-
J-A02009-23
at 331 Noel Drive in March 2019, Chief Peck coordinated with the Monroeville
Police Department to conduct surveillance, examine the home’s curbside
trash, and recover a stamp bag of suspected narcotics from a third party’s
vehicle leaving the residence. They eventually stopped Johnson while he was
leaving the residence in a car driven by Timothy Smith, who had just
purchased narcotics from Johnson. After the arrest, law enforcement spoke
with Johnson’s girlfriend, Wakita Owens, to learn more about Johnson’s
dealings with Fourness.
Nothing in the record suggests that Smith, Owens or the Monroeville
Police Department were involved in the drug-dealing activities or investigation
in Clarion County or that their testimony would be relevant in the case
involving Stout’s death. Nor did any of the essential witnesses to the Clarion
County case—including Fourness, Gleixner and Hoffman—offer testimony that
was required to prosecute the Allegheny County charges. There is no
substantial duplication of facts and law between the two cases; any connection
between the two, such as Chief Peck initiating further investigation by the
Monroeville Police Department, is of the de minimus nature that we found
insufficient to compel joinder in Copes. Even the transcript of the trial
confirms this conclusion, as there is a clear demarcation between the
witnesses and evidence presented in support of both cases.
Put simply, the evidence presented establishes that Johnson continued
to deal drugs after his connection with Fourness into the Clarion County
-7-
J-A02009-23
market had evaporated. That he continued this enterprise in Allegheny
County after his co-defendants were arrested in Clarion County does not
establish that a single criminal episode connects both cases. Under the
majority’s analysis, a drug dealer who makes a sale in one county can be
prosecuted in that county for all of his future dealings, merely because he
continues to engage in the same type of criminal activity. I would not hold
that the federal or state constitutions or our rules of procedure governing
venue allow such a broad result.
Finally, unlike the majority, I would not conclude beyond a reasonable
doubt that the error is harmless. First, the majority points out that Johnson
did not challenge the ruling on the Commonwealth’s joinder motion and
asserts that it finds no error in the trial court’s ruling joining the two cases for
trial. Majority Memorandum at 26 n.14. As we explained in Callen:
Simply stated, our permissive joinder rules do not override the
constitutional requirement that “the accused hath a right to ... a
speedy public trial by an impartial jury of the vicinage” or its
corollary that “[v]enue in a criminal action properly belongs in the
place where the crime occurred.” To be sure, our venue rules
are far more narrow than our permissive joinder rules.
Thus, where Pennsylvania Rule of Criminal Procedure 582 permits
offenses in separate informations to be tried together if “the
evidence of each of the offenses would be admissible in a separate
trial for the other,” our venue rules borrow the language of our
compulsory joinder statute – and only allow an offense to be tried
in a foreign judicial district if it is part of a “single criminal episode”
as an offense that occurred within the district. Hence, in cases
where our venue and permissive joinder rules are in
irreconcilable conflict, the more specific venue rules
control over the more general permissive joinder rule.
-8-
J-A02009-23
Callen, supra, at 1160 (citations omitted; emphasis added). Accordingly, I
do not find the trial court’s ruling on a permissive joinder motion to be relevant
or dispositive to a venue or harmless error analysis.2
Second, I attach no significance to there being no evidence of the
Commonwealth engaging in impermissible forum shopping in having both
cases tried in Clarion County. Majority Memorandum at 26-27 n.14. While
evidence of forum shopping would likely always weigh against finding
harmless error, I do not believe that the absence of such evidence should
affect our analysis of whether an error—especially one of a constitutional
nature like venue—was harmless. To that end, as I do not believe that
____________________________________________
2 Indeed, the trial court seems to have recognized in its opinion on the
permissive joinder motion that Johnson’s criminal enterprise in Clarion County
had ceased well before his arrest in Allegheny County:
In the present case No. 169, numerous charges are based on
alleged possession and deliveries by the Defendant of the same
type of drugs, heroin and fentanyl, in the same area, Monroeville,
Allegheny County, during the period from March 9, 2019 to March
12, 2019. The police obtained this information in connection with
the investigation into the death of [Stout]. The evidence may
show that the Defendant was involved in a conspiracy and a
corrupt enterprise or organization for the sale and delivery of
heroin and fentanyl in the Monroeville area at that time. The
evidence may be relevant in establishing the Defendant’s
involvement in activities that lead to the charges at case
No. 168, even though the conspiracy and corrupt
organization had ended prior to March of 2019. The alleged
activities in the separate cases took place within a short period of
several weeks.
Order, 8/28/19, at 2-3 (pagination supplied; emphasis added).
-9-
J-A02009-23
Johnson’s two cases involved the same criminal episode, mere efficiency in
trying Johnson’s two cases together in the same county does not overcome
his constitutional right to be tried in the locality where the crimes of which he
is alleged to have committed took place.
For the foregoing reasons, I would reverse Johnson’s convictions at Case
169-2019 and remand for the case to be transferred for a new trial in
Allegheny County. Accordingly, I dissent.
- 10 -