J-A27018-16

2017 PA Super 51

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

EMILY JOY GROSS

Appellant No. 375 EDA 2016

Appeal from the Order January 15, 2016

In the Court of Common Pleas of Monroe County

Criminal Division at No(s): CP-45-CR-0000045-2010

BEFORE: PANELLA, J., LAZARUS, J., and FITZGERALD, J.*

OPINION BY LAZARUS, J.: FILED FEBRUARY 28, 2017

Emily Joy Gross appeals from the order entered in the Court of 

Common Pleas of Monroe County, denying, inter alia, her motion to dismiss 

on double jeopardy grounds. Upon careful review, we reverse.

Our Supreme Court has previously set forth the facts of this matter as 

follows:

Emily 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 [County] Sheriff’s office went to Autenrieth’s 

residence (also in Northampton County) to serve the temporary 

____________________________________________

*

Former Justice specially assigned to the Superior Court.
J-A27018-16

- 2 -

PFA order and to transfer custody of the children to Autenrieth’s 

wife. 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 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.

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, Gross obtained a Pennsylvania driver’s license using 

Autenrieth’s address; within hours, Gross and Autenrieth went to 

a Berks County store, where Gross used her new license to buy a 

9 millimeter handgun. Later, at his residence, Autenrieth 

showed 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 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; 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 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) (coconspirator); possession of firearm prohibited, [18 Pa.C.S.] § 

6105(a)(1) (accomplice); and lending or giving of firearms 

prohibited, [18 Pa.C.S.] § 6115(a) (accomplice). 

Commonwealth v. Gross, 101 A.3d 28, 31–32 (Pa. 2014). 

Following proceedings which are not relevant to our disposition here, 

the matter was remanded by the Supreme Court to the Common Pleas Court 

of Monroe County for trial. Prior to the date of remand, the United States 
J-A27018-16

- 3 -

Attorney filed an information in the U.S. District Court for the Eastern 

District of Pennsylvania, charging Gross with making false statements to a 

federal firearms licensee1and aiding and abetting a prohibited person to 

possess a firearm.2 The federal government alleged that Gross lied in 

connection with her acquisition of the firearm and aided and abetted 

Audenrieth in possessing a firearm when she knew him to be prohibited from 

doing so. Gross ultimately pled guilty in federal court to making false 

statements to a federal firearms licensee. 

Upon remand of the Commonwealth case to the common pleas court, 

Gross filed an omnibus pretrial motion, which she subsequently amended to 

include the instant motion to dismiss based upon double jeopardy. The trial 

court denied the motion and the instant appeal3follows, in which Gross 

raises the following question for our review:

____________________________________________

1 18 U.S.C. § 924(a)(1).

2 18 U.S.C. § 922(g)(8); 18 U.S.C. § 2.

3 As a general rule of Pennsylvania law, a defendant can immediately appeal 

as of right an order that denies a non-frivolous motion to dismiss on state or 

federal double jeopardy grounds. Commonwealth v. Orie, 33 A.3d 17, 

20–21 (Pa. Super. 2011). In this context, a frivolous double jeopardy claim 

is “a claim clearly and palpably without merit; it is a claim [that] presents no 

debatable question. Such futile claims, presumably interposed for purposes 

of delay or disruption, are to be expressly identified by the trial court 

through a written finding.” Id., quoting Commonwealth v. Gains, 556 

A.2d 870, 874–75 (Pa. Super. 1989) (en banc). Pursuant to Pa.R.Crim.P. 

587(B), in cases where the trial court denies a motion to dismiss on double 

jeopardy grounds, the court is required to make a specific finding as to 

(Footnote Continued Next Page)
J-A27018-16

- 4 -

Did the trial court err in failing to dismiss the information against 

[Gross], where the information arises out of the same conduct 

for which [Gross] has already been prosecuted . . ., convicted 

. . . and sentenced . . . by the federal government, and the 

Commonwealth did not carry its burden of proving that the 

federal government’s prior prosecution was intended to prevent 

a substantially different harm or evil than the Commonwealth’s?

Brief of Appellant, at 3.

Our scope and standard of review is as follows: “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 marks omitted).

Where a defendant asserts that her state prosecution is barred by a 

prior federal action, our determination is governed by section 111 of the 

Crimes Code, which provides in pertinent part:

When conduct constitutes an offense within the concurrent 

jurisdiction of this Commonwealth and of the United States or 

another state, a prosecution in any such other jurisdiction is a 

bar to a subsequent prosecution in this Commonwealth under 

the following circumstances:

(1) The first prosecution resulted in an acquittal or a conviction 

as defined in section 109 of this title (relating to when 

(Footnote Continued) _______________________

frivolousness. See Pa.R.Crim.P. 587(B)(4). Here, the trial court was silent 

as to whether it considered Gross’ motion to be frivolous. However, in light 

of the fact that the court determined that the Commonwealth sought to 

prosecute Gross for the same conduct that led to her federal conviction, see

18 Pa.C.S.A. § 111, we conclude that the motion was not frivolous and, as 

such, Gross’ interlocutory appeal is properly before this Court.
J-A27018-16

- 5 -

prosecution barred by former prosecution for the same offense) 

and the subsequent prosecution is based on the same conduct 

unless:

(i) 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[.]

18 Pa.C.S. § 111(1).

In applying section 111, the courts of this Commonwealth have 

consistently held that there are three relevant inquiries to be made. The 

first inquiry is whether or not the prosecution which the Commonwealth 

proposes to undertake involves the same conduct for which the individual 

was prosecuted by the other jurisdiction. Commonwealth v. Traitz, 597 

A.2d 1129, 1132-33 (Pa. 1991); Commonwealth v. Scarfo, 611 A.2d 242, 

256 (Pa. Super. 1992). If the answer to this question is yes, then we must 

determine whether each prosecution requires proof of a fact not required by 

the other, and whether the law defining the state offense is designed to 

prevent a substantially different harm or evil from the law defining the other 

jurisdiction’s offense. Scarfo, 611 A.2d at 257. If the Commonwealth 

cannot satisfy both of these requisites, then the prosecution may not 

proceed. Id.

We begin with the first inquiry, i.e., whether the Commonwealth’s 

prosecution of Gross involves the “same conduct” that formed the basis of 

her federal prosecution. In Commonwealth v. Mascaro, 394 A.2d 998 

(Pa. Super. 1978), this Court defined “same conduct,” as “encompass[ing] 
J-A27018-16

- 6 -

all criminal behavior committed in support of a common and continuing 

scheme.” Id. at 1001. Here, the trial court concluded – and the 

Commonwealth does not dispute – that the Commonwealth sought to 

prosecute Gross in state court for the same conduct that led to her federal 

conviction. Accordingly, the burden shifts to the Commonwealth to “lift[] the 

statutory bar against prosecution.” Commonwealth v. Calloway, 675 

A.2d 743, 748 (Pa. Super. 1996).

In order to satisfy its burden, the Commonwealth must first 

demonstrate that each prosecution requires proof of a fact not required by 

the other. Here, Gross pled guilty in federal court to making false 

statements to a federal firearms licensee in violation of 18 U.S.C. § 

924(a)(1)(A).4 Specifically, the federal government alleged that Gross 

knowingly lied to a licensed firearms dealer about her current residence 

when completing ATF Form 4473 in connection with the purchase of a 

firearm by stating that she resided at 24 Olde Penn Drive, Easton, 

Pennsylvania, when she actually resided in Westfield, New Jersey. 

____________________________________________

4 A person commits an offense under section 924 when she “knowingly 

makes any false statement or representation with respect to the information 

required by this chapter to be kept in the records of a person licensed under 

this chapter [e.g., a person licensed to sell firearms] or in applying for any 

license or exemption or relief from disability under the provisions of this 

chapter[.]” 18 U.S.C. § 924(a)(1)(A).
J-A27018-16

- 7 -

In Pennsylvania state court, Gross is charged with conspiracy to 

commit unlawful possession of a firearm,5firearms not to be carried without 

a license,6 possession of firearm prohibited,7and lending or giving of 

firearms prohibited.8 As the trial court correctly observes in its opinion, 

____________________________________________

5 18 Pa.C.S.A. § 903(a).

6 18 Pa.C.S.A. § 6106(a)(1). Gross was charged as a co-conspirator under 

this section, which provides as follows:

(a) Offense defined.--

(1) Except as provided in paragraph (2), any person who carries 

a firearm in any vehicle or any person who carries a firearm 

concealed on or about his person, except in his place of abode or 

fixed place of business, without a valid and lawfully issued 

license under this chapter commits a felony of the third degree.

Id.

7 18 Pa.C.S.A. § 6105(a)(1). Gross was charged as an accomplice under this 

section, which provides as follows:

(a) Offense defined.--

(1) A person who has been convicted of an offense enumerated 

in subsection (b), within or without this Commonwealth, 

regardless of the length of sentence or whose conduct meets the 

criteria in subsection (c) shall not possess, use, control, sell, 

transfer or manufacture or obtain a license to possess, use, 

control, sell, transfer or manufacture a firearm in this 

Commonwealth.

Id. At the time Gross purchased the firearm, Audenrieth was subject to a 

protection from abuse order which barred him from possessing firearms.

8 18 Pa.C.S.A. § 6115(a). Section 6115(a) provides as follows:

(Footnote Continued Next Page)
J-A27018-16

- 8 -

unlike Gross’ federal offense, none of these offenses requires proof that 

Gross made false statements or misrepresentations to a firearms dealer. 

Conversely, Gross’ federal offense did not require proof that Autenrieth was 

not authorized or licensed to possess a firearm, or that Gross and Autenrieth 

had any type of agreement. Accordingly, the Commonwealth is able to 

satisfy the first of the two requirements for lifting the bar to prosecution 

under section 111. 

In order to proceed with its prosecution of Gross, the Commonwealth 

must also demonstrate that the law defining the state offense is designed to 

prevent a substantially different harm or evil from the law defining the 

federal offense to which Gross pled guilty. After reviewing the statutes in 

question, the trial court concluded that:

[t]he federal statute is aimed at preventing fraud in connection 

with the purchasing of firearms from licensed dealers. The 

statutes underlying the Commonwealth’s proposed prosecution 

are aimed at entirely different evils: the agreement with others 

to provide a firearm, and knowingly providing a firearm to 

someone not legally able to possess it. 

Trial Court Opinion, 1/15/16, at 16.

(Footnote Continued) _______________________

(a) Offense defined.--No person shall make any loan secured by 

mortgage, deposit or pledge of a firearm, nor, except as 

provided in subsection (b), shall any person lend or give a 

firearm to another or otherwise deliver a firearm contrary to the 

provisions of this subchapter.

Id.
J-A27018-16

- 9 -

Gross argues that, in concluding that the Commonwealth satisfied the 

“interest test” under section 111, the trial court’s focus was “unacceptably 

narrow” in light of the applicable case law, and in light of the federal 

government’s own description of the interests it sought to protect by 

prosecuting Gross. For the reasons that follow, we agree.

In Commonwealth v. Mills, 286 A.2d 638 (Pa. 1971), our Supreme 

Court announced the “interest test” that was subsequently codified in section 

111, stating:

we now rule, that henceforth in Pennsylvania, a second 

prosecution and imposition of punishment for the same offense 

will not be permitted unless it appears from the record that the 

interests of the Commonwealth of Pennsylvania and the 

jurisdiction which initially prosecuted and imposed punishment 

are substantially different. In other words, [i]f it appears that 

the interests of this Commonwealth were not sufficiently 

protected in the initial prosecution, then a second prosecution 

and imposition of additional punishment in Pennsylvania will be 

allowed. 

Id. at 642.

The Court subsequently applied the Mills interest test in 

Commonwealth v. Grazier, 393 A.2d 335 (Pa. 1978). There, the 

defendants were accused of destroying a hotel by arson and using the U.S. 

mail to submit fraudulent insurance claims. They were charged, tried, and 

acquitted in federal court of mail fraud and conspiracy to commit mail fraud. 

The Commonwealth also charged them with arson. Following their acquittal 

in federal court, the defendants filed motions to quash their Commonwealth 

indictments on the basis of section 111 and the Supreme Court’s holding in 
J-A27018-16

- 10 -

Mills. The trial court dismissed the informations against both defendants. 

On appeal, this Court reversed and the Supreme Court subsequently granted 

allowance of appeal. 

After concluding that section 111 was inapplicable because the crimes 

in question predated the effective date of the act, the Court proceeded to 

analyze the case under Mills. The Court rejected the Commonwealth’s 

argument that Mills was inapplicable because the offenses charged in the 

two jurisdictions, i.e., mail fraud and arson, were different, finding this 

distinction “to be one of form over substance.” Grazier, 393 A.2d at 339. 

The Court noted:

While the purpose of the federal mail fraud statute may arguably 

be to protect the integrity of the mails, when viewed realistically 

it can be seen that the use of the mails gives jurisdiction to 

federal authorities over areas in which Congress has not 

specifically acted. As one commentator has stated, “If the 

difference between the statutes involved is primarily 

jurisdictional for example based on the presence or absence of 

the use of interstate commerce it is likely that the Governmental 

interests involved are similar.” Comment, 80 Harv.L.Rev. 1538, 

1562. Instantly, both the federal government and the 

Commonwealth’s principal interest is against the crime of arson. 

While federal mail fraud is a different crime from arson, both 

statutes as used in this case protect the same governmental 

interest. Under these facts, Mills will act as a bar to a state 

prosecution for arson following an acquittal in federal court for 

mail fraud in connection with a scheme to commit arson. 

Id. at 339-40. 

Likewise, here, while the purpose of the federal statute prohibiting 

false statements in connection with the purchase of a firearm may arguably 

be, as the trial court found, to prevent fraud in connection with the 
J-A27018-16

- 11 -

purchasing of firearms from licensed dealers, Mills requires that we take a 

broader view. The statute under which Gross was prosecuted was part of 

the Gun Control Act of 1968, “[t]he principal purpose of [which] was to curb 

crime by keeping ‘firearms out of the hands of those not legally entitled to 

possess them because of age, criminal background, or incompetency.’” 

Huddleston v. United States, 415 U.S. 814, 824 (1974). The legislation 

was “aimed at restricting public access to firearms” by requiring those 

seeking to purchase firearms to “provid[e] adequate and truthful information 

about firearms transactions.” Id. Additionally, the U.S. attorney, in its 

sentencing memorandum, urged the court to look beyond the apparent nonviolence of Gross’ crime, arguing that “[i]t would be wrong to view this crime 

in a vacuum and claim that this is merely a fraud violation for lying on a 

required form.” Government’s Sentencing Memorandum, 4/19/11, at 7. 

The government went on to note that “[o]ne need only read the newspapers 

today to understand the devastating impact which gun crimes of this type 

can have upon society.” Id. at 8. Accordingly, it is apparent that the 

federal government – both generally by enacting the Gun Control Act as well 

as specifically in its application of that law in this particular prosecution –

sought to vindicate a greater interest, separate and apart from the mere 

prevention of fraud in the submission of federal paperwork. 
J-A27018-16

- 12 -

The Pennsylvania statutes under which the Commonwealth seeks to 

prosecute Gross – provisions of the Uniform Firearms Act9 – share that same 

purpose. As this Court has previously observed, “[t]he apparent purpose of 

the Act is to regulate the possession and distribution of firearms, which are 

highly dangerous and are frequently used in the commission of crimes.” 

Commonwealth v. Corradino, 588 A.2d 936, 940 (Pa. Super. 1991). 

“[T]he mischief to be remedied was the unimpeded circulation of dangerous 

instruments and the object to be attained was the regulation and 

registration of transfers of same.” Id. at 940. Accordingly, “as used in this 

case,” Grazier, 393 A.2d at 339, both the federal and state statutes under 

which Gross was prosecuted are designed to vindicate substantially the same 

interests, i.e., the protection of the public by prohibiting the transfer of 

certain firearms to various categories of individuals. 

Because the Commonwealth has not demonstrated that the law under 

which it seeks to prosecute Gross is designed to prevent a substantially 

different harm or evil from the law defining Gross’ federal offense, see 18 

Pa.C.S.A. § 111(1), the trial court erred in holding that the “interest test” 

under section 111 was satisfied. Having failed to satisfy both requisites to 

lifting the bar to prosecution under section 111, the Commonwealth is 

prohibited from proceeding with its prosecution of Gross. 

____________________________________________

9 Gross is also charged with one count of conspiracy to commit a violation of 

the Uniform Firearms Act. 
J-A27018-16

- 13 -

Order reversed. Case dismissed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/28/2017