Commonwealth of PA v. Michael Hilton-Cribari No. CP-38-CR-16-2017

Criminal Action-Law-Motion to Dismiss-Subsequent Prosecution Barred-Former Prosecution-Same Criminal Conduct or Episode
Defendant, who was charged with three (3) counts of Receiving Stolen Property pertaining to three (3) firearms that were found in his home during the execution of a search warrant for two other (2) stolen firearms, filed a Motion to Dismiss the charges on the basis that the charges are barred by a former action at a different action number for charges of Receiving Stolen Property involving the two (2) firearms that were the subject of the search warrant that also were found in his home on the same date, charges to which he already had pled guilty and was sentenced before the charges in the instant case had been filed.
1.  Title 18 Pa.C.S. § 110 bars a subsequent prosecution if the former prosecution resulted in an acquittal or a conviction, the current prosecution was based upon the same criminal conduct or arose from the same criminal episode, the prosecutor in the subsequent trial was aware of the charges before the first trial and all charges are within the same judicial district as the former prosecution.
2.  The police are not obligated to bring charges against a defendant where there is no admissible evidence that would support conviction for an offense.
3.  In light of the fact that law enforcement investigated whether any firearms may have been stolen upon confiscation of fourteen (14) additional firearms found at Defendant’s apartment at the time of the search of his apartment by investigation of serial numbers of the firearms, law enforcement attempted to find owners of all of the firearms, law enforcement attempted to visit the owner of the three (3) firearms in the instant case on two (2) occasions at his residence but was unable to make contact during those visits and the first time when law enforcement had definitive evidence that the three (3) firearms in this case had been stolen was after Defendant already had pled guilty and was sentenced on the charges involving the two (2) firearms that were the subject of the search warrant, there has been no showing that the prosecutor in the subsequent trial was aware of the charges before the first trial so as to bar prosecution pursuant to § 110.
L.C.C.C.P. No. CP-38-CR-16-2017, Opinion by John C. Tylwalk, President Judge, May 24, 2017.
Pier Hess, Esquire, for the Commonwealth of Pennsylvania
Gary Lysaght, Esquire, for Michael Hilton-Cribari
IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY
PENNSYLVANIA
CRIMINAL DIVISION NO. CP-38-CR-16-2017

COMMONWEALTH OF PENNSYLVANIA
v.
MICHAEL HILTON-CRIBARI

ORDER OF COURT

AND NOW, this 24th day of May, 2017, upon consideration of Defendant’s Motion to Dismiss Charges When Prosecution Barred by Former Prosecution for Different Offense (18 Pa.C.S.A. 110), the evidence adduced at the hearing conducted on March 29, 2017, and the Briefs submitted by the parties, it is hereby Ordered that said Motion is DENIED.  It is further Ordered that Defendant shall appear at the Call of the List scheduled for June 20, 2017 at 8:30 a.m. in the designated Courtroom and the Term of Criminal Jury Trials to commence on July 10, 2017.
BY THE COURT:

JOHN C. TYLWALK, P.J.
APPEARANCES:
PIER HESS, ESQUIRE    FOR THE COMMONWEALTH
ASSISTANT DISTRICT ATTORNEY
GARY LYSAGHT, ESQUIRE   FOR MICHAEL HILTON-CRIBARI

OPINION, TYLWALK, P.J., MAY 24, 2017.
In this action, Defendant is charged with three counts of Receiving Stolen Property, 18 Pa.C.S.A. 3925(a) with regard to three firearms which were found in his home during the execution of a search warrant on June 12, 2015.  He has filed a Motion to Dismiss pursuant to 18 Pa.C.S.A. 110, claiming that prosecution of these charges is barred by a former action related to other firearms and controlled substances/paraphernalia which were also found in his home on that date.  We conducted a hearing on the Motion on March 29, 2017, both parties have filed Briefs, and the matter is now before us for disposition.
At the hearing, Lieutenant James Hunt (“Lt. Hunt”), of the Lebanon County Sheriff’s Office, testified that he had formerly been an officer with the Palmyra Borough Police Department.  On June 12, 2015, while still in his former employment, he assisted members of the Lower Swatara Police Department with the execution of a search warrant for two stolen firearms at Defendant’s apartment in Palmyra.  During the execution of that search warrant, the two stolen firearms were found.    Because the officers also observed numerous articles of drug paraphernalia in plain view throughout the apartment at that time, the apartment was secured and another search warrant was obtained and executed later that same day.  During the second search, controlled substances, drug paraphernalia and 14 additional firearms were found.  Defendant was charged with various drug offenses at Docket No. 1458-2015 for the two stolen guns which were the subject of the Lower Swatara Police search warrant, the controlled substances, and the paraphernalia.  Those charges were prepared and filed immediately.    Defendant pled guilty in Action 1458-2015 on November 24, 2015 and was sentenced on January 27, 2016.
Lt. Hunt had the serial numbers of the 14 additional firearms run in the NCIC data base on June 12, 2015, and again five days later, on June 17, 2015.  None of the 14 firearms seized during the second search had been reported as stolen.  Lt. Hunt checked with the Pennsylvania State Police (“PSP”) registry to find the owners of the firearms.  None of the additional firearms were registered to the person from whom the firearms in No. 1458-2015 had been stolen.  The PSP reported that two of the guns involved in this action were registered to Scott Seltzer (‘Seltzer”) and had been purchased in Lebanon County; however, the registry did not provide Seltzer’s address. 1  Several of the other seized firearms were registered to persons other than Defendant.   Lt. Hunt explained that he did not include any of the additional firearms in the charges filed at No. 1458-2015 because he had no evidence that any of them had been stolen.
Lt. Hunt ran Seltzer’s name through JNET, searching for a Lebanon County address.  Lt. Hunt was able to obtain an address for Seltzer and went to his home on two different occasions after the charges were filed in No. 1458-2015.  However, he was unable to make contact with anyone during those visits.  At the hearing, Lt. Hunt was unable to recall Seltzer’s address or the exact date or time of his two visits.  He also testified that he had gone to the addresses of other individuals who owned some of the other confiscated firearms and was also unable to recall the details of those visits.
Eventually, after the filing of the charges in No. 1458-2015, Defendant’s aunt, Cynthia Russell (“Russell”), contacted Lt. Hunt.  Russell had learned that some of the seized firearms had belonged to her father and she wanted to retrieve them.  During that meeting, Lt. Hunt mentioned that some of the firearms were registered in Seltzer’s name.  Russell informed Lt. Hunt that she knew Seltzer and could contact him, as he was the stepfather of Defendant’s girlfriend.  This was the first Lt. Hunt learned of Seltzer having any connection with Defendant.  Two weeks later, Seltzer contacted Lt. Hunt.  Seltzer came to the police station on February 23, 2016.  He verified that three of seized the guns belonged to him and explained to Lt. Hunt that he had been unaware that they were missing.  He related that Defendant had either taken the guns or had them in his possession without Seltzer’s permission.  As a result of this conversation, Lt. Hunt opened an investigation involving the three firearms.  He interviewed Seltzer’s stepdaughter in June 2016 and spoke with Defendant in order to obtain evidence that they were, in fact, stolen.   The charges in this action were then filed on October 19, 2016.
Defendant posits that the charges involving the three firearms at issue in this action should have been brought in No. 1458-2015 and that this prosecution is barred by Section 110 of the Pennsylvania Crimes Code.  Section 110 provides:
§ 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 the same offense) and the subsequent prosecution is for:
(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 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; 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.
(2) The former prosecution was terminated, after the indictment was found, by an acquittal or by a final order or judgment for the defendant which has not been set aside, reversed or vacated and which acquittal, final order or judgment necessarily required a determination inconsistent with a fact which must be established for conviction of the second offense.
(3) The former prosecution was improperly terminated, as improper termination is 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 an offense of which the defendant could have been convicted had the former prosecution not been improperly terminated.
18 Pa.C.S.A. 110.
This statute, known as 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 [are] within the same judicial district as the former prosecution.
Commonwealth v. Reid, 77 A.3d 579 (Pa. 2013).
Based on the evidence adduced at the hearing, we conclude that the third prong of this test has not been met here. Immediately upon the confiscation of the 14 additional guns from Defendant’s apartment, Lt. Hunt investigated whether any of them might have been stolen.  He ran the serial numbers of the firearms on two occasions, on June 12, 2015 and June 17, 2015; however, none of them came back as stolen.  He also attempted to find the owners of all of the firearms.  The owners were different from the owner of the firearms in No. 1458-2015.  Once he found Seltzer’s address, he visited his residence twice, but was unable to make contact with anyone during those visits.  The first time he had any definitive evidence that these three firearms had been stolen was on February 23, 2016 when Seltzer visited the police station.  Up to that point, Lt. Hunt had absolutely no information that the three guns at issue in this action had been stolen.  By that time, Defendant had already pled guilty and been sentenced in No. 1458-2015.  Once Lt. Hunt spoke with Seltzer, he pursued interviews with Seltzer’s stepdaughter in June 2016 and with Defendant on October 4, 2016 in order to investigate Seltzer’s claims.  After speaking with Defendant, Lt. Hunt filed these charges on October 19, 2016.
The police are not obligated to bring charges against a defendant where they have no admissible evidence which would support a conviction for an offense. Commonwealth v. Hall, 538 A.2d 43 (Pa. Super. 1988), appeal denied 549 A.2d 133 (Pa. 1988).  Clearly, Lt. Hunt could not file any charges for the  firearms involved in this action based on his lack of evidence of any crime having been committed and Defendant could not have been convicted of any such offenses prior to Lt. Hunt’s contact with Seltzer and his follow-up interviews with Seltzer’s stepdaughter and Defendant. The fact that the firearms were found in Defendant’s apartment where other firearms which were known to have been stolen is not the equivalent of the quantum of evidence necessary to support a conviction on a charge of receiving stolen property for the firearms belonging to Seltzer.   See, Hall, supra.
Because the charges involving the three firearms in this action could not have been brought prior to Defendant’s guilty plea and sentencing in his former action, Section 110 does not bar the prosecution of the charges in this action.  Thus, we will deny Defendant’s Motion and direct him to appear for the June Call of the List and the July 2017 Term of Criminal Jury Trials.

1) 1 A check of the serial number for the third firearm involved here did not prove ownership.  However, Seltzer was later able to describe that gun sufficiently to establish his ownership of that gun.