J-A25015-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

LENNE LARUE, III,

Appellant No. 77 MDA 2016

Appeal from the Order Entered December 21, 2015

In the Court of Common Pleas of Franklin County

Criminal Division at No(s): CP-28-CR-0000536-2015, CP-28-CR-0000564-

2015, CP-28-CR-0000565-2015

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, J., and STEVENS, P.J.E.*

MEMORANDUM BY SHOGAN, J.: FILED JANUARY 27, 2017

Appellant, Lenne LaRue, III, appeals from the order denying his 

motion to quash and/or dismiss criminal informations in the above-captioned 

matters. We affirm.

The trial court set forth the underlying facts of this case as follows:

Officer Jason Wolfgang of the Washington Township Police 

Department was dispatched to the Walmart in Washington 

Township, Franklin County, Pennsylvania for the report of a retail 

theft on August 28, 2014. Upon arriving at Walmart, Officer 

Wolfgang came into contact with [Appellant] who was in the 

computer aisle. Based upon information received from Holly 

Martin,2 Officer Wolfgang placed [Appellant] under arrest. At the 

time Officer Wolfgang arrested [Appellant], he was unaware of 

any criminal investigations by the Pennsylvania State Police 

involving [Appellant]. However, Officer Wolfgang was aware of 

____________________________________________

*

 Former Justice specially assigned to the Superior Court.
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another investigation being conducted by Officer Schmidt of the 

Washington Township Police Department; said investigation 

involved an alleged retail theft by [Appellant].

2 Holly Martin is a Loss Prevention Officer for 

Walmart.

Officer Wolfgang transported [Appellant] to the 

Washington Township Police Department to interview him. At 

some point during or shortly after his interview of [Appellant], 

Officer Wolfgang learned of a pending investigation by the 

Pennsylvania State Police (PSP). Trooper Cox3of PSP arrived at 

the Washington Township Police Department and interviewed 

[Appellant] in relation to the PSP investigation. Officer Wolfgang 

did not participate in the interview of [Appellant] by Trooper 

Cox, nor was he aware at the time of the exact nature of the PSP 

investigation, i.e., he was unaware of the victims/witnesses, nor 

was he aware of a pending Driving Under the Influence charge. 

Officer Wolfgang also did not speak with anyone in the District 

Attorney’s Office at the time he filed charges. The investigations 

by Officers Wolfgang and Schmidt resulted in charges being 

brought against [Appellant]; those charges were docketed and 

disposed of at CP-28-CR-1708-2014 & CP-28-CR-1709-2014.

3 Trooper Cox was conducting an investigation with 

Trooper Sebastian; Trooper Sebastian testified at the 

hearing on November 23, 2015.

On August 28, 2014, Trooper Sebastian was on duty with 

his coach, Trooper Cox. He and Trooper Cox received a dispatch 

to respond to Sunrise Electronics for an active burglary alarm at 

approximately 11:00 p.m. Sunrise Electronics is located in 

Guilford Township, Franklin County, Pennsylvania. While 

investigating the burglary alarm, the Troopers discovered a 

barcode next to the door of Sunrise Electronics. The barcode 

was from Walmart; the Troopers traveled to Walmart in Guilford 

Township4to investigate further.

4 Sunrise Electronics is located within walking 

distance of the Walmart in Guilford Township.

Upon arriving at Walmart, the Troopers consulted with the 

shift manager. The shift manager showed the Troopers 

surveillance video of an individual the manager described as 
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“suspicious.” Upon viewing the video, the Troopers observed the 

person, later identified by the Troopers as [Appellant], arrive 

without a jacket. The video also revealed [Appellant] attempting 

to countermand security measures in the electronics section. 

The troopers also observed [Appellant] leave the store with a 

jacket/hoodie that he had not paid for.

While conducting the investigation, the Troopers received a 

report that an individual had just been arrested for Retail Theft 

at the Washington Township Walmart. The Troopers traveled to 

the Walmart in Washington Township and viewed their 

surveillance video. The Troopers determined that the individual 

in the Washington Township video was the same person as the 

Guilford Township video. The Troopers then proceeded to the 

Washington Township Police Department and interviewed 

[Appellant]. During the interview, [Appellant] made the 

Troopers aware of the pending DUI investigation in the Borough 

of Chambersburg.

Both Officer Wolfgang and Trooper Sebastian indicated 

that they did not discuss their cases with the District Attorney’s 

Officer prior to filing charges. Officer Wolfgang prepared his 

charges against [Appellant] the night of [Appellant’s] arrest and 

submitted them for filing at that time. Officer Wolfgang further 

testified that it may have been a few days until the charges were 

processed through the department and at the Magisterial District 

Judge.

Trooper Sebastian testified that he was never instructed by 

the District Attorney’s Office to withhold filing of his charges. He 

testified that he prepared his incident report, prepared the 

relevant police criminal complaint, and turned everything over to 

Trooper Cox for review on or about September 8, 2015. There 

was a review process within the State Police barracks for the 

charges, and after approval by Trooper Sebastian’s supervisors, 

the charges were submitted for filing to the Magisterial District 

Judge. The charges were filed on September 22, 2015. At no 

time did Trooper Sebastian consider delaying the filing of his 

charges in order to increase the grading of any charged offense.

Trial Court Opinion, 12/21/15, at 2-4.
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At CP-28-CR-536-2015, Appellant was charged with three counts of 

DUI and one count of driving during suspension for an incident that allegedly 

occurred in the afternoon of August 27, 2014, in Chambersburg, Franklin 

County. At CP-28-CR-564-2015, Appellant was charged with retail theft for 

conduct that allegedly occurred on August 28, 2014, at the Walmart in 

Guilford Township, Franklin County. At CP-28-CR-565-2015, Appellant was 

charged with criminal attempt-burglary and criminal attempt-criminal 

trespass for conduct that allegedly occurred on August 28, 2014, at the 

Sunrise Computer & Electronics Store in Guilford Township, Franklin County. 

The criminal informations for these three cases were filed on April 24, 2015.

Appellant filed a motion to quash/dismiss the cases at CP-28-CR-536-

2015, CP-28-CR-564-2015, and CP-28-CR-565-2015, claiming that the 

compulsory joinder rule set forth at 18 Pa.C.S. § 110 required the 

Commonwealth to join for one trial these three charges with the charges 

filed by Officers Wolfgang and Schmidt at CP-28-CR-1708-2014 and CP-28-

CR-1709-2014. The trial court held a hearing on Appellant’s pretrial motion 

on November 23, 2015. On December 21, 2015, the trial court entered an 

order denying Appellant’s pretrial motion to quash/dismiss the informations. 
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This timely appeal followed. Both Appellant and the trial court have 

complied with Pa.R.A.P. 1925.1

Appellant presents the following issues for our review:

I. WHETHER APPELLANT’S CURRENT PROSECUTION IS 

BARRED BY THE COMPULSORY JOINDER RULE CODIFIED IN 

18 Pa.C.S.A §110(1)(i) BECAUSE IT IS FOR OFFENSES 

WHICH APPELLANT COULD HAVE BEEN CONVICTED OF IN A 

PREVIOUS CONVICTION DOCKETED AT 1708-2014 AND 

1709-2014?

II. WHETHER APPELLANT’S CURRENT PROSECUTION IS 

BARRED BY THE COMPULSORY JOINDER RULE CODIFIED IN 

18 Pa.C.S.A § 110(1)(iI) [sic] BECAUSE IT IS FOR CONDUCT 

THAT AROSE FROM THE SAME CRIMINAL EPISODE AS THAT 

OFFENSE FOR WHICH APPELLANT WAS PREVIOUSLY 

CONVICTED OF AND DOCKETED AT 1708-2014 AND 1709-

2014?

____________________________________________

1 On February 11, 2016, this Court issued a “rule to show cause” order 

directing Appellant to show cause why the appeal should not be quashed as 

taken from an unappealable order. On February 16, 2016, Appellant filed an 

answer to the show-cause order. On February 19, 2016, this Court issued 

an order quashing the appeal. Appellant sought reconsideration on February 

22, 2016, and filed a supplement on March 3, 2016, claiming the appeal is 

an interlocutory appeal as of right because the trial court indicated that the 

joinder claim was not frivolous. Thereafter, upon determination by the trial 

court that Appellant’s motion to quash/dismiss was not frivolous, this Court 

reinstated the appeal in an order filed March 4, 2016. We note that the 

order denying Appellant’s motion to dismiss is not a final order. However, 

because 18 Pa.C.S. § 110 statutorily “embodies the same basic purposes as 

those underlying the double jeopardy clauses, the interlocutory appealability 

of double jeopardy claims has been applied to claims based on Section 110.” 

Commonwealth v. Bracalielly, 658 A.2d 755, 759-760 (Pa. 1995). 

Therefore, we may properly consider this appeal. Commonwealth v. 

M.D.P., 831 A.2d 714, 717 n.1 (Pa. Super. 2003).
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Appellant’s Brief at 5. Both of Appellant’s issues pertain to whether 

prosecution is barred under the compulsory joinder statute.

We set forth our well-settled standard of review: “An appeal grounded 

in double jeopardy raises a question of constitutional law. This [C]ourt’s 

scope of review in making a determination on a question of law is, as 

always, plenary. As with all questions of law, the appellate standard of 

review is de novo....” Commonwealth v. Vargas, 947 A.2d 777, 780 (Pa. 

Super. 2008) (citations and quotations omitted); see also Commonwealth 

v. Simmer, 814 A.2d 696, 698 (Pa. Super. 2002) (Our review is plenary 

when the issue is whether the compulsory joinder rule, 18 Pa.C.S. § 110, 

bars prosecution.).

“The compulsory joinder statute [18 Pa.C.S. § 110,] is a legislative 

mandate that a subsequent prosecution for a violation of a provision of a 

statute that is different from a former prosecution, or is based on different 

facts, will be barred in certain circumstances.” Commonwealth v. Fithian, 

961 A.2d 66, 71 (Pa. 2008). Section 110 provides, in relevant part:

§ 110. When prosecution barred by former prosecution for 

different offense

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 same offense) and 

the subsequent prosecution is for:
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(i) any offense of which the defendant could have 

been convicted on the first prosecution;

(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 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; or

(iii) the same conduct, unless:

(A) 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; or

(B) the second offense was not 

consummated when the former trial 

began.

18 Pa.C.S. § 110.

Our Supreme Court has stated:

[18 Pa.C.S. § 110] reflects Pennsylvania’s compulsory joinder 

rule, which is designed to protect a defendant’s double-jeopardy 

interests where the Commonwealth initially declines to prosecute 

him for the present offense, electing to proceed on different 

charges stemming from the same criminal episode. 

Commonwealth v. Laird, 988 A.2d 618, 628 (Pa. 2010) (citations 

omitted).

The purpose behind section 110 is two-fold. “First, it protects a 

defendant from the governmental harassment of being subjected to 
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successive trials for offenses stemming from the same criminal episode. 

Secondly, the rule assures finality without unduly burdening the judicial 

process by repetitious litigation.” Commonwealth v. Failor, 770 A.2d 310, 

313 (Pa. 2001).

Appellant first argues that his prosecution is barred pursuant to section 

110(1)(i). Appellant’s Brief at 10-15. Essentially, Appellant contends that 

the charges at CP-28-CR-564-2015 and CP-28-CR-565-2015 should be 

dismissed under the compulsory joinder rule because Appellant could have 

been convicted of the offenses during his first prosecution on September 9, 

2014, for offenses also committed in Franklin County.

However, before we address the merits of this issue, we must 

determine whether Appellant preserved this claim for appeal.2 Pursuant to 

Pennsylvania Rule of Appellate Procedure 302, issues that are not raised in 

the lower court are waived and cannot be raised for the first time on appeal. 

Pa.R.A.P. 302(a). Moreover, we have long held that “[a] claim which has 

not been raised before the trial court cannot be raised for the first time on 

appeal.” Commonwealth v. Lopata, 754 A.2d 685, 689 (Pa. Super. 

2000). Even issues of constitutional dimension cannot be raised for the first 

time on appeal. Commonwealth v. Strunk, 953 A.2d 577, 579 (Pa. Super. 

2008). See Commonwealth v. Ryan, 909 A.2d 839, 845 (Pa. Super. 

____________________________________________

2 We note the Commonwealth has averred that Appellant failed to preserve 

this issue for appeal. Commonwealth’s Brief at 2.
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2006) (noting that “[a] theory of error different from that presented to the 

trial jurist is waived on appeal, even if both theories support the same basic 

allegation of error which gives rise to the claim for relief.”). Thus, only 

claims properly presented in the trial court are preserved for appeal. In 

addition, it is an appellant’s obligation to demonstrate which appellate issues 

were preserved for review. Pa.R.A.P. 2117(c), 2119(e).

Here, we are constrained to conclude that such arguments by the 

Appellant are waived because Appellant failed to present them to the trial 

court in the first instance. The trial court properly notes in its opinion:

[Appellant] cites to both 18 Pa.C.S. § 110(1)(i) and § 110(1)(ii) 

in his Amended Motion. See Amended Motion [to Quash, filed 

July 16, 2015], ¶ 13. However, upon review of the substantive 

averments and arguments in his Amended Motion, it is 

abundantly clear to the Court that [Appellant] is raising his claim 

under § 110(1)(ii) alone. See Amended Motion [to Quash], ¶¶ 

14-18; see also Defendant’s Brief in Support of Motion to Quash 

and/or Dismiss Information, filed August 21, 2015[, at 12-28].

Trial Court Opinion, 12/21/15, at 6 n.5.

We have reviewed the filing presented to the trial court and agree 

that, although Appellant cited section 110(1)(i), he did not present an 

argument or discussion to the trial court to support a claim that dismissal of 

the charges was appropriate under that section. Rather, our review reflects 

that Appellant focused his argument on section 110(1)(ii). Consequently, 

any claim under section 110(1)(i) is waived.

Furthermore, as the Commonwealth has observed in its appellate 

brief, Appellant failed to include in his Pa.R.A.P. 1925(b) statement a claim 
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that the trial court erred in failing to grant him relief pursuant to section 

110(1)(i). In Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998), our 

Supreme Court held that if an appellant is directed to file a concise 

statement of matters to be raised on appeal pursuant to Pa.R.A.P. 1925(b), 

any issues not raised in that statement are waived. In Commonwealth v. 

Butler, 812 A.2d 631 (Pa. 2002), the Court further expanded the Lord

holding, stating that waiver automatically applies when a Pa.R.A.P. 1925(b) 

statement is not filed or if an issue is not included in the Pa.R.A.P. 1925(b) 

statement, even when the question of waiver has not been raised by the 

other party, and even when the trial court has chosen to overlook the failure 

by addressing the issues it assumed would be raised. We have thoroughly 

reviewed Appellant’s Pa.R.A.P. 1925(b) statement and agree with the 

Commonwealth’s position that Appellant has failed to include the issue 

pertaining to section 110(1)(i) in his Pa.R.A.P. 1925(b) statement. Hence, 

for this reason too, the issue is waived. Moreover, even if Appellant had 

included the issue in his Pa.R.A.P. 1925(b) statement, we have stated that 

“[a] party cannot rectify the failure to preserve an issue by proffering it in 

response to a [Pa.R.A.P.] 1925(b) order.” Commonwealth v. Kohan, 825 

A.2d 702, 706 (Pa. Super. 2003) (citations omitted).

Appellant next argues that prosecution is barred under section 

110(1)(ii). Appellant’s Brief at 16-21. Appellant posits that he has met the 
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appropriate four-part test set forth in the associated caselaw pertaining to 

section 110(1)(ii).

As explained by our Supreme Court:

The compulsory joinder rule bars a subsequent prosecution if 

each prong of the following test is met: (1) 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 were within the same judicial district as the 

former prosecution.

Commonwealth v. Nolan, 855 A.2d 834, 839 (Pa. 2004) (footnote and 

citations omitted). “Each prong of this test must be met for compulsory 

joinder to apply.” Fithian, 961 A.2d at 72.

In the instant case, the parties do not dispute that elements one and 

four of the four-prong test set forth in Nolan are met. It is undipusted that 

on September 9, 2014, Appellant pled guilty and was sentenced for retail 

thefts at the Walmart store in Washington Township, which were docketed at 

CP-28-CR-1708-2014 and CP-28-CR-1709-2014. A guilty plea constitutes a 

conviction for purposes of pursuing further prosecution pursuant to 18 

Pa.C.S. § 110. Commonwealth v. Bracalielly, 658 A.2d 755, 760 (Pa. 

1995). Thus, the first element is satisfied. Additionally, the current charges 

and the former charges are within the same judicial district as required by 

the fourth prong. Accordingly, we agree that elements one and four have 

been met.
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Appellant posits that the second prong of the four-part test has also 

been met and therefore, the compulsory joinder rule applies. Appellant’s 

Brief at 18-21. Regarding the second prong, Appellant argues that a single 

criminal episode exists in this matter because the charges at CP-28-CR-564-

2015 and CP-28-CR-565-2015 are logically and temporally related and share 

common issues of law and fact with the charges from the prosecution at CP28-CR-1708-2014 and CP-28-CR-1709-2014. Id. at 19. We disagree.

The seminal decision discussing the term “same criminal episode” is 

Commonwealth v. Hude, 458 A.2d 177 (Pa. 1983). Our Supreme Court 

summarized that holding as follows:

In Hude, the defendant (Hude) was arrested and charged 

with twenty counts of possession and delivery of marijuana and 

one count of corruption of a minor. These charges arose from a 

series of sales to the same individual which allegedly occurred 

between October 1974 and January 1975. After nine possession 

and delivery counts were dismissed, the Commonwealth brought 

Hude to trial on three of the remaining possession and delivery 

charges and the corruption of a minor charge. Hude was 

acquitted. The Commonwealth then brought Hude to trial on the 

remaining eight possession and delivery charges.

We held that these remaining eight charges arose from 

conduct which formed part of the same criminal episode as the 

conduct on which the initial three possession and delivery 

charges were based. Therefore, we concluded that the Section 

110 barred the second attempt at prosecution and quashed the 

subsequent indictments. We reasoned:

[t]o interpret the “single criminal episode” test in 

such a manner as to permit successive trials for each 

of the alleged transactions would clearly be offensive 

to the prohibition against successive prosecutions as 

well as an unjustifiable expenditure of judicial 

resources. The interpretation of the term “single 
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criminal episode” must not be approached from a 

hypertechnical and rigid perspective which defeats 

the purposes for which it was created. Thus, where 

a number of charges are logically and/or temporally 

related and share common issues of law and fact, a 

single criminal episode exists, and separate trials 

would involve substantial duplication and waste of 

judicial resources. In such cases, failure to 

consolidate will bar successive prosecutions.

Hude [500 Pa.] at 494, 458 A.2d at 183.

Bracalielly, 658 A.2d at 761. See also Commonwealth v. Reid, 77 A.3d 

579, 582 (Pa. 2013) (applying earlier holding from Hude and instructing 

that courts considering the logical-relationship prong should look at the 

temporal and logical relationship among the charges to determine whether 

they arose from a single criminal episode). “In Hude, both prosecutions 

contained a substantial duplication of issues of fact and law, which not only 

forced a defendant to ‘run the gauntlet’ repeated times and confront the 

‘awesome resources of the state’ successively, but also sanctioned ‘an 

unjustifiable expenditure of judicial resources.’” Nolan, 855 A.2d at 839 

(quoting Hude, 458 A.2d at 180, 183).

Thus, to determine whether various acts constitute a single criminal 

episode warranting compulsory joinder, a court must consider two factors: 

1) the logical relationship between the acts; and 2) the temporal relationship 

between the acts. Commonwealth v. Spotz, 759 A.2d 1280, 1285 (Pa. 

2000). In ascertaining whether a number of statutory offenses are “logically 

related” to one another, the court should initially inquire as to whether there 
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is a substantial duplication of factual or legal issues presented by the 

offenses. Commonwealth v. M.D.P., 831 A.2d 714, 718-719 (Pa. Super. 

2003).

If there is duplication, then the offenses are logically related and 

must be prosecuted at one trial. The mere fact that the 

additional statutory offenses involve additional issues of law or 

fact is not sufficient to create a separate criminal episode since 

the logical relationship test does not require ‘an absolute identity 

of factual backgrounds.’

* * * 

The temporal relationship between criminal acts will be a factor 

which frequently determines whether the acts are ‘logically 

related.’ However, the definition of a ‘single criminal episode’ 

should not be limited to acts which are immediately connected in 

time.... ‘Transaction’ is a word of flexible meaning. It may 

comprehend a series of many occurrences, depending not so 

much upon the immediateness of their connection as upon their 

logical relationship.

Commonwealth v. Hunter, 768 A.2d 1136, 1140-1141 (Pa. Super. 2001) 

(quoting Hude, 458 A.2d at 182-183).

“[T]he inquiry as to whether a series of criminal acts constitutes a 

single criminal episode is fact dependent.” Bracalielly, 658 A.2d at 757. 

Furthermore, the single criminal episode analysis essentially considers the 

totality of the circumstances. M.D.P., 831 A.2d at 719 n.3.

In addressing whether the charges stem from the same criminal 

episode, the trial court offered the following pertinent analysis, which we set 

forth as our own:

CP-28-CR-564-2015
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[Appellant] is charged in this case with Retail Theft by the 

Pennsylvania State Police. The charge stems from an incident 

that occurred on or about August 28, 2014 in Guilford Township. 

[Appellant] argues that these charges are barred by the entry of 

his pleas in cases CP-28-CR-1708-2014 (Retail Theft, Criminal 

Mischief, and Possession of Instruments of Crime) & CP-28-CR1709-2014 (Retail Theft). The parties agree that the charges at 

CP-28-CR-1708-2014 occurred on or about August 28, 2014 at 

approximately 11:45 p.m.; the charge at CP-28-CR-1709-2014 

occurred on or about August 27, 2014 at approximately 4:01 

a.m. See Amended Motion, ¶¶ 2, 5; Answer, ¶¶ 2, 5. The 

parties also agree that the charges at CP-28-CR-564-2015 

occurred at approximately 10:00 p.m. on August 28, 2014. See 

Amended Motion, ¶ 3; Answer, ¶ 3.

* * *

Same Criminal Conduct /Criminal Episode

In the former prosecutions,19 the evidence presumably 

consisted of witnesses from the retail store who would have 

testified to their observations of [Appellant] taking items offered 

for sale and removing them or attempting to remove them from 

the Walmart in Washington Township. Further, presumably 

Officers Schmitt and Wolfgang,20 the charging officers, would 

have testified and presented evidence regarding their 

investigations. The legal questions presented in those 

prosecutions would have centered upon the taking/attempted 

taking of property from a store without paying the full retail 

value,21 intentionally damaging another person’s property,22 and 

whether [Appellant] possessed an instrument of crime with the 

intent to employ it criminally.23

19 CP-28-CR-1708-2014 (Retail Theft, Criminal 

Mischief, and Possession of Instruments of Crime) & 

CP-28-CR-1709-2014 (Retail Theft).

20 Of the Washington Township Police Department.

21 18 Pa.C.S. § 3929(a) (relating to Retail Theft).

22 18 Pa.C.S. § 3304 (a) (relating to Criminal 

Mischief).
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23 18 Pa.C.S. § 907 (a) (relating to Possessing 

Instruments of Crime).

The instant charge presumably consists of evidence in the 

nature of testimony from employees/witnesses at the Walmart 

store in Guilford Township. Trooper Sebastian would presumably 

testify as his investigation, and as to his and Trooper Cox’s 

interview of [Appellant].24 In essence, the former prosecutions 

arose from Retail Thefts involving the Walmart located in 

Washington Township, and involved investigations and 

interviews by officers of the Washington Township Police 

Department. The current prosecution involves Retail Theft from 

the Walmart located in Guilford Township, and involves an 

investigation and interview by Troopers from the Pennsylvania 

State Police. The officers and Troopers did not conduct a joint 

interview of [Appellant], and presumably different employees 

from each of the Walmarts in question would be required to 

testify in the each respective prosecution to establish the 

evidence alleged by the Commonwealth.

24 While [Appellant] was interviewed by both Officer 

Wolfgang and the Troopers Sebastian & Cox at 

Washington Township Police Department, Officer 

Wolfgang’s interview was conducted separate and 

apart from the Troopers’ interview; as such, Officer 

Wolfgang could not testify as to any statements 

made by [Appellant] in relation to the Troopers’ 

interview, and the Troopers[] cannot testify to any 

statements made by [Appellant] in relation to Officer 

Wolfgang’s interview.

While the legal questions are similar, i.e., related to 

whether [Appellant] committed Retail Theft, there is no 

substantial duplication of facts/evidence between the former 

prosecution and the instant case. The only duplication is that 

they are the same statutory offense and are alleged to have 

been committed by the same person; there is no other 

commonality between the former and current prosecutions. 

Again, while the offenses may be temporally related, that alone 

does not end the inquiry. Considering the lack of any substantial 

duplication in the evidence to be presented, the Court finds that 

the instant offense did not arise from the same criminal conduct 

or were not part of the same criminal episode as the former 

prosecution.
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* * *

CP-28-CR-565-2015

[Appellant] is charged in this case with Criminal Attempt -

Burglary,25 and Criminal Attempt - Criminal Trespass,26 by the 

Pennsylvania State Police. The charge stems from an incident 

that occurred on or about August 28, 2014 in Guilford Township. 

[Appellant] argues that these charges are barred by the entry of 

his pleas in cases CP-28-CR-1708-2014 (Retail Theft, Criminal 

Mischief, and Possession of Instruments of Crime) & CP-28-CR1709-2014 (Retail Theft). The parties agree that the charges at 

CP-28-CR-1708-2014 occurred on or about August 28, 2014 at 

approximately 11:45 p.m.; the charge at CP-28-CR-1709-2014 

occurred on or about August 27, 2014 at approximately 4:01 

a.m. See Amended Motion, ¶¶ 2, 5; Answer, ¶¶ 2, 5. The 

parties also agree that the charges at CP-28-CR-565-2015 

occurred at approximately 11:04 p.m. on August 28, 2014. See 

Amended Motion, ¶ 4; Answer, ¶ 4.

25 18 Pa.C.S. § 901 (relating to Criminal Attempt) to 

18 Pa.C.S. § 3502 (relating to Burglary).

26 18 Pa.C.S. § 901 (relating to Criminal Attempt) to 

18 Pa.C.S. § 3503 (relating to Criminal Trespass).

* * *

Same Criminal Conduct/Criminal Episode

In the former prosecutions,27 the evidence presumably 

consisted of witnesses from the retail store who would have 

testified to their observations of [Appellant] taking items offered 

for sale and removing them or attempting to remove them from 

the Walmart in Washington Township. Further, presumably 

Officers Schmitt and Wolfgang,28 the charging officers, would 

have testified and presented evidence regarding their 

investigations. The legal questions presented in those 

prosecutions would have centered upon the taking/attempted 

taking of property from a store without paying the full retail 

value,29 intentionally damaging another person’s property,

30 and 

whether [Appellant] possessed an instrument of crime with the 

intent to employ it criminally.31
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27 CP -28 -CR -1708 -2014 (Retail Theft, Criminal 

Mischief, and Possession of Instruments of Crime) & 

CP -28 -CR -1709 -2014 (Retail Theft).

28 Washington Township Police Department.

29 18 Pa.C.S. § 3929(a) (relating to Retail Theft).

30 18 Pa.C.S. § 3304(a) (relating to Criminal 

Mischief).

31 18 Pa.C.S. § 907(a) (relating to Possessing 

Instruments of Crime).

In the instant case, the evidence would consist of 

testimony from the owner of the building alleged to be 

burglarized, namely Sunrise Computer & Electronics. It would 

also presumably include testimony from witnesses for the alarm 

company as Trooper Sebastian testified that they responded to 

the report of an “active burglary alarm” at Sunrise Computer & 

Electronics. Troopers Sebastian and Cox would testify regarding 

their investigation and interview of [Appellant]. The legal 

questions involved in the instant matter center upon whether 

[Appellant] attempted to enter Sunrise Computer and Electronics 

with the intent to commit a crime therein (Attempted Burglary) 

or attempted to enter any building knowing he was not licensed 

or privileged to do so (Attempted Criminal Trespass).

Considering the evidence/witnesses and legal issues in the 

instant matter do not substantially, duplicate those involved in 

the former prosecution, the Court finds that the instant matter is 

not the result of the same criminal conduct or part of the same 

criminal episode as the former prosecution. Further, while the 

offenses in the instant matter are not necessarily temporally 

distant from the former offenses, such temporal relationship 

does not overshadow the lack of logical relationship in the 

evidence and legal issues presented. Therefore, [Appellant’s] 

Amended Motion must fail as to CP-28-CR-565-2015.

Trial Court Opinion, 12/21/15, at 12-16 (footnote omitted).
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Upon review, we are constrained to agree with the trial court that, 

although temporally related, the instant charges relating to Appellant’s 

conduct in Guilford Township do not stem from the same criminal episode 

that resulted in the former prosecution relating to Appellant’s conduct in 

Washington Township. Hence, Appellant’s claim lacks merit.

In an abundance of caution, we also address whether Appellant has 

established the third prong of the four-prong test, i.e., whether the 

prosecutor in the subsequent trial was aware of the charges before the first 

trial. In addressing this issue for purposes of our 18 Pa.C.S. § 110 analysis, 

this Court has noted that “the test is not whether [the a]ppellee could be 

charged, but whether prosecuting officers knew of the offense.” 

Commonwealth v. George, 38 A.3d 893, 898-899 (Pa. Super. 2012). 

Indeed, prosecuting authorities do not “know” of additional charges, within 

the meaning of section 110, when they only suspect that other offenses 

have been committed but do not have admissible evidence sufficient to 

support conviction of an accused. Commonwealth v. Hall, 538 A.2d 43, 

47 (Pa. Super. 1988).

In Hall, the defendant sought to have charges of burglary, theft, and 

conspiracy dismissed because there was evidence that the police had 

knowledge of those offenses when police charged him with receiving stolen 

property and unlawful sale of firearms in connection with the same incident. 
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Hall, 538 A.2d at 45. We find our ruling in Hall to be persuasive. In 

rejecting the defendant’s argument, the Hall Court noted the following:

[C]ounsel for [defendant] is of the mind that mere ‘knowledge’ 

on the part of the police that a burglary occurred at the 

[victim’s] camp site in 1986 necessitated that the [defendant] be 

charged at that time with such an offense in conjunction with the 

others initially lodged against him. Failure to do so, counsel 

would have us believe, brings this case within the prohibition of 

Commonwealth v. Campana, 452 Pa. 233, 304 A.2d 432 

(1973) and § 110 barring a subsequent prosecution because 

‘such offense was known to the appropriate prosecuting officer 

at the time of the commencement of the first trial[.]’ 18 Pa.C.S. 

§ 110(1)(ii). The fact that the police may not have had 

sufficient evidence to either arrest or convict [the defendant] is 

of no moment. Rather, ‘knowledge’ on the part of the police of 

the burglary, when viewed in conjunction with the weapon 

offenses brought against the [defendant], renders this second 

prosecution as one ‘arising out of the same episode’ as the 

former prosecution and therefore, is prohibited, so argues 

counsel for the [defendant]. We disagree.

Id.

The court in Hall held that police “knowledge” of a crime is not “the 

equivalent of the quantum of evidence necessary to support a conviction for 

such a charge so as to activate the barring effect of § 110.” Hall, 538 A.2d 

at 48. Our discussion in Hall demonstrates that although offenses may arise 

from the “same criminal episode,” they may properly be charged and tried 

separately. Such is the case with Appellant.

As the trial court aptly explained in its recitation of the facts of this 

case:

At some point during or shortly after his interview of [Appellant], 

Officer Wolfgang learned of a pending investigation by the 

Pennsylvania State Police (PSP). Trooper Cox of PSP arrived at 
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the Washington Township Police Department and interviewed 

[Appellant] in relation to the PSP investigation. Officer Wolfgang 

did not participate in the interview of [Appellant] by Trooper 

Cox, nor was he aware at the time of the exact nature of the PSP 

investigation, i.e., he was unaware of the victims/witnesses, nor 

was he aware of a pending Driving Under the Influence charge. 

Officer Wolfgang also did not speak with anyone in the 

District Attorney’s Office at the time he filed charges. The 

investigations by Officers Wolfgang and Schmidt resulted in 

charges being brought against [Appellant]; those charges were 

docketed and disposed of at CP-28-CR-1708-2014 & CP-28-CR1709-2014.

* * *

Both Officer Wolfgang and Trooper Sebastian 

indicated that they did not discuss their cases with the 

District Attorney’s Officer prior to filing charges.

Trial Court Opinion, 12/21/15, at 3-4 (footnote omitted) (emphases added).

Our review of the record supports the finding of fact made by the trial 

court that Officer Wolfgang was unaware of the nature of the investigation 

being conducted by the State Police. N.T., 11/23/15, at 14-15. The record 

further reflects that Officer Wolfgang filed retail theft charges against 

Appellant in relation to the incidents at the Washington Township Walmart 

on August 28, 2014, the night that Appellant was arrested. Id. at 15. In 

addition, Officer Wolfgang stated that he did not speak to the District 

Attorney’s office about the charges. Id. at 20. Also, Trooper Sebastian 

testified at Appellant’s pretrial hearing and explained that he participated in 

the investigation regarding the incidents in Chambersburg and was present 

with Trooper Cox at the interview of Appellant at the Washington Township 

Police Department. Id. at 23-27. Trooper Sebastian testified that he 
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ultimately filed charges against Appellant on September 22, 2014. Id. at 

29. Trooper Sebastian stated that he did not follow Appellant’s Washington 

Township retail-theft case, was not aware that Appellant had entered a 

guilty plea in that case, and did not contact the District Attorney’s office 

prior to filing the charges against Appellant. Id. at 30.

Therefore, Appellant has failed to demonstrate that the prosecutor 

knew of the instant charges before the proceedings in the prior charges as 

required by section 110(1)(ii). To the extent Appellant argues that the 

requirement that the present offenses be known by the “prosecutor” includes 

knowledge by the “police” prior to his pleading guilty on the prior charges, 

this Court has rejected that argument. See Hall, 538 A.2d at 45 

(concluding that where the appellant was previously charged with receiving 

stolen property and unlawful sale of firearms, knowledge on the part of the 

police that a burglary also occurred did not require, under section 110(1)(ii), 

that the appellant be charged with burglary when the other charges were 

lodged).

Accordingly, we conclude that the trial court properly denied 

Appellant’s pretrial motion seeking to dismiss the charges. Therefore, we 

affirm the order.

Order affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/27/2017