Commonwealth v. Gross

232 A.3d 819

COMMONWEALTH of Pennsylvania, Appellee

v.Emily Joy GROSS, Appellant

No. 375 EDA 2016

Superior Court of Pennsylvania.

Submitted December 12, 2017

Filed April 29, 2020

George W. Westervelt, Jr., Stroudsburg, Brian J. Slipakoff, Philadelphia, Daniel R. Walworth, Philadelphia, Eric R. Breslin, Newark, NJ, for appellant.

Elmer D. Christine, Jr., District Attorney, Stroudsburg, Michael Mancuso, Assistant District Attorney, Stroudsburg, for Commonwealth, appellee.

BEFORE: GANTMAN, P.J., BENDER, P.J.E., BOWES, J., PANELLA, J., SHOGAN, J., LAZARUS, J., OLSON, J., STABILE, J., and DUBOW, J.

OPINION BY GANTMAN, P.J.:

Appellant, Emily Joy Gross, appeals from the order entered in the Monroe County Court of Common Pleas, which denied her omnibus pretrial motion to dismiss on double jeopardy grounds. We affirm.

Our Supreme Court set forth the relevant facts of this case as follows:

[Ms.] 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 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. [Ms.] 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 [Ms.] 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.

[Ms.] 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, [Ms.] Gross obtained a Pennsylvania driver's license using Autenrieth's address; within hours, [Ms.] Gross and Autenrieth went to a Berks County store, where [Ms.] Gross used her new license to buy a 9 millimeter handgun. Later, at his residence, Autenrieth showed [Ms.] 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 [Ms.] 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; [Ms.] 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 [Ms.] 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 a firearm prohibited, [ 18 Pa.C.S.] § 6105(a)(1) (accomplice); and lending or giving of firearms prohibited, [ 18 Pa.C.S.] § 6115(a) (accomplice). A preliminary hearing was held January 15, 2010, before a Monroe County magisterial district judge. Among other motions, [Ms.] Gross moved for dismissal of the case for "lack of jurisdiction[.]" Specifically, [Ms.] Gross argued "there [was] no jurisdiction in [the magisterial] district or, in fact, in Monroe County to hear these charges." The judge denied the motion, ..., and bound the charges over to the Monroe County Court of Common Pleas....

On March 3, 2010, [Ms.] Gross filed an omnibus pre-trial motion, which included a "Motion to Dismiss or, in the alternative, Transfer for Improper Venue."¹ A hearing on this motion was held May 24, 2010. The Commonwealth did not introduce evidence other than the preliminary hearing transcript and a license to carry firearm certification regarding Autenrieth. Both parties filed briefs to address the venue issue. After considering the evidence and the parties' arguments, the trial court found [Ms.] Gross's "Motion to Dismiss for Improper Venue" dispositive and dismissed the case July 15, 2010, for improper venue. The trial court addressed this motion only; it did not consider [Ms.] Gross's alternative motion to transfer for improper venue, nor did it address the remaining motions contained in her omnibus pre-trial motion.

¹ The omnibus pretrial motion consisted of a Motion for Bill of Particulars; Motion to Compel Pretrial Discovery and Inspection; Motion to Dismiss or, in the alternative, Transfer for Improper Venue; Motion for a Change of Venue or Venire to Avoid Prejudicial Pretrial Publicity; Motion to Quash Criminal Complaint or Return of Transcript, and/or Petition for Writ of Habeas Corpus ; and Motion for Recusal/Appointment of Out–of–County Judge.

Venue was held improper based on a lack of factual connection to Monroe County.² Specifically, both the trial court and the Superior Court concluded the evidence showed the alleged conspiracy was not reached in Monroe County, [Ms.] Gross committed no acts in furtherance of the conspiracy in Monroe County, and the conspiracy ended in Northampton County. The Commonwealth argues the lower courts erred in finding improper venue, noting all charges filed against [Ms.] Gross were based on conspiracy and accomplice liability and her co-conspirator, Autenrieth, committed an overt act in Monroe County. Alternatively, the Commonwealth contends that even if venue was improper, the trial court should have transferred the proceedings instead of dismissing them.

² In its Rule 1925(a) opinion, the trial court reiterated dismissal was solely because Monroe County was not a county of proper venue, and not based on any allegation of pre-trial publicity that would inhibit [Ms.] Gross from receiving a fair and impartial trial there.

Commonwealth v. Gross , 627 Pa. 383, 388-90, 101 A.3d 28, 31-32 (2014) (internal citations omitted). In the context of venue as it relates to conspiracy charges, the Supreme Court continued:

At the hearing on the omnibus motion filed by [Ms.] Gross, the Commonwealth submitted the preliminary hearing transcript, supporting its belief that venue in Monroe County was proper. [Ms.] Gross only offered legal argument in response; thus, the Commonwealth's evidence was uncontradicted and constituted the entire factual record relative to [Ms.] Gross's venue challenge. The trial court held [Ms.] Gross could not be prosecuted in Monroe County because the conspiracy between [Ms.] Gross and Autenrieth was reached and completed in Northampton County and Autenrieth's possession of the firearm in Monroe County did not constitute an overt act in furtherance of the criminal agreement. In this, the court misperceived the nature of the charges brought.

The material elements of conspiracy are: "(1) an intent to commit or aid in an unlawful act, (2) an agreement with a co-conspirator and (3) an overt act in furtherance of the conspiracy." Commonwealth v. Spotz , 562 Pa. 498, [540-41], 756 A.2d 1139, 1162 (2000) (citation omitted). An "overt act" means an act done in furtherance of the object of the conspiracy. See 18 Pa.C.S. § 903(e) ; Commonwealth v. Weimer , 602 Pa. 33, [39], 977 A.2d 1103, 1106 (2009). Additionally, in connection with questions of venue, this Court noted "a prosecution for criminal conspiracy may be brought in any county where the unlawful combination was formed, or in any county where an overt act was committed by any of the conspirators in furtherance of the unlawful combination."

Commonwealth v. Fithian , 599 Pa. 180, [201-02], 961 A.2d 66, 78 (2008) (citing Commonwealth v. Thomas , 410 Pa. 160, [164], 189 A.2d 255, 258 (1963) ).

The record is sufficient to show a criminal conspiracy between Autenrieth and [Ms.] Gross, under which [Ms.] Gross would purchase a firearm for the purpose of providing Autenrieth with access to a gun he was otherwise prohibited from possessing. Because of this criminal agreement, Autenrieth was able to use the firearm on two occasions, including the day he took the gun and used it in Monroe County. The trial court determined the conspiracy agreement ended May 29, 2009, at the time [Ms.] Gross left the firearm with Autenrieth at his residence in Northampton County. However, the trial court failed to appreciate that the object of the conspiracy articulated by the charges was to provide Autenrieth with unlimited possession and unconditional access to a firearm, and such was not completed or terminated May 29, 2009, but continued as long as [Ms.] Gross allowed Autenrieth to possess her gun. See 18 Pa.C.S. § 903(g)(1) ("[C]onspiracy is a continuing course of conduct which terminates when the crime or crimes which are its object are committed or the agreement that they be committed is abandoned by the defendant and by those with whom he conspired[.]"); Commonwealth v. Evans , 489 Pa. 85, [92], 413 A.2d 1025, 1028 (1980) ("The duration of a conspiracy depends upon the facts of the particular case, that is, it depends upon the scope of the agreement entered into by its members." (...citation omitted)). [Ms.] Gross did not object or withdraw her authorization. Autenrieth's taking the firearm and carrying it constituted the overt act, and that possessory act did not cease when he crossed into Monroe County. Accordingly, the trial court erred in dismissing the conspiracy charges, as the record was sufficient to establish [Ms.] Gross, as co-conspirator, could be found vicariously liable for Autenrieth's possession of the firearm, in Monroe County, and thus, could be prosecuted in

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