Commonwealth of PA vs. Steven Caraballo No. CP-38-CR-0000825-2017

Criminal Action-Law-Constitutional Law-Fifth Amendment-Double Jeopardy-Drug Related Offenses-Corrupt Organizations

Defendant, who was prosecuted, convicted and sentenced in 2016 at four (4) actions numbers for delivery of crack cocaine and subsequently was charged with the offenses of Corrupt Organization and Dealing in Proceeds of Unlawful Activities relating to the deliveries of crack cocaine for which he was convicted in 2016, filed a Motion to Dismiss asserting that the subsequent prosecution is based upon the drug transactions for which he already was charged and convicted.

1. The Fifth Amendment to the United States Constitution and Article I, Section 10 of the Pennsylvania Constitution guarantee that no one twice can be put in jeopardy of life or limb for the same offense.
2. The Double Jeopardy clauses are designed to protect citizens from multiple prosecutions arising from the same conduct.
3. The Appellate Courts in Pennsylvania have extended the principle of double jeopardy to declare that an individual may be punished only once for a single act that causes a single injury in the Commonwealth.
4. Title 18 Pa.C.S. § 110 provides that although a prosecution is for a violation of a different provision of the statutes than a former prosecution or based upon different facts, it is barred by such former prosecution if the former prosecution resulted in an acquittal or a conviction and the subsequent prosecution is for: any offense of which the defendant could have been convicted on the first prosecution; any offense based upon the same conduct or arising from the same criminal episode if the offense was known to the appropriate prosecuting officer at the time of the commencement of the first trial; or the same conduct unless the offense of which the defendant formerly was charged and convicted or acquitted and the subsequent prosecution each require proof of a fact not required by the other and the law defining each of the offenses is intended to prevent a substantially different harm or evil or the second offense was not consummated when the former trial began.
5. The test to be applied to determine whether there are two (2) offenses or only one (1) for purposes of double jeopardy is whether each provision requires proof of an addition fact that the other does not.
6. The mere overlap in proof offered in two (2) prosecutions will not be sufficient by itself to invoke a double jeopardy bar.
7. In light of the fact that the Commonwealth charged Defendant with the crimes of Corruption Organization and Dealing in Proceeds of Unlawful Activities based solely upon the four (4) separate predicate acts comprising the conduct for which he was charged, pled guilty and was sentenced in 2016 and failed to charge any additional predicate acts in support of the instant changes, double jeopardy bars the subsequent prosecution of Defendant under the instant Corrupt Organization and Dealing in Proceeds of Unlawful Activities charges.
L.C.C.C.P. No. CP-38-CR-0000825-2017, Opinion by Bradford H. Charles, Judge, January 16, 2018.
Nichole Eisenhart, Esquire, for the Commonwealth of Pennsylvania
Andrew Race, Esquire, for Steven William Caraballo

IN THE COURT OF COMMON PLEAS LEBANON COUNTY
PENNSYLVANIA
CRIMINAL DIVISION NO. CP-38-CR-825-2017

COMMONWEALTH OF PENNSYLVANIA
VS
STEVEN WILLIAM CARABALLO

ORDER OF COURT
AND NOW, this 16th day of January, 2018, in accordance with the attached Opinion, the DEFENDANT’s Motion to Dismiss is granted. All charges against the DEFENDANT filed to the above-referenced docket are dismissed.
BY THE COURT:

BRADFORD H. CHARLES, J.
APPEARANCES:
Nichole Eisenhart For Commonwealth
First Assistant District Attorney
of Lebanon County

Andrew Race, Esquire For Steven W. Caraballo

OPINION BY CHARLES, J., January 16, 2018
Before us is the DEFENDANT’s Motion to Dismiss based upon double jeopardy. In 2016, the DEFENDANT was prosecuted four times for drug offenses. On March 27, 2017, he was charged with being part of a corrupt organization based upon the drug trafficking he undertook in 2016. The DEFENDANT argues that he cannot be charged twice based upon the same sequence of events. We issue this Opinion to address the DEFENDANT’s arguments.
I. FACTS & PROCEDURAL BACKGROUND
DEFENDANT has been charged in the above-referenced case with violating Pennsylvania’s Statutes of Corrupt Organization and Dealing in Proceeds of Unlawful Activities. The Criminal Complaint filed against the DEFENDANT charged him with participating as part of a drug trafficking organization by facilitating “no less than five separate transactions involving U.S. currency, cocaine and crack cocaine.” At a pre-trial hearing conducted in this case, the Commonwealth produced a list of predicate acts undertaken by the alleged criminal organization. As it relates to DEFENDANT Steven Caraballo (hereafter “CARABALLO”), the list of predicate acts was as follows:
(1) On February 11, 2016, CARABALLO allegedly delivered crack cocaine in return for the sum of $40 on North Sixth Street in the City of Lebanon;
(2) On June 4, 2016, CARABALLO allegedly delivered crack cocaine in return for the sum of $100 on North Fourth Street;
(3) On August 23, 2016, CARABALLO allegedly delivered crack cocaine in return for the sum of $100 on North Sixth Street;
(4) On October 7, 2016, CARABALLO and a co-conspirator allegedly delivered crack cocaine in return for the sum of $100 on North Fourth Street.
According to Lebanon County Court records, CARABELLO was charged with four drug offenses in 2016. Our review of the Court files reveal the following:
• In Docket 1777-2016, the DEFENDANT was charged with two counts of Delivering Crack Cocaine and two counts of Criminal Use of a Communication Facility. According to the Affidavit of Probable Cause, the DEFENDANT delivered crack cocaine to an undercover informant on February 12, 2016 in return for the sum of $40 in U.S. Currency. This event occurred at 18 North Sixth Street in the City of Lebanon. In addition, the affidavit charged the DEFENDANT with delivering crack cocaine on August 23, 2016, in the first block of North Sixth Street in return for the sum of $100. The DEFENDANT entered pleas of guilty to all charges on January 24, 2017. On March 22, 2017, the DEFENDANT was sentenced by President Judge John C. Tylwalk to serve eleven (11) months to two (2) years less a day in the Lebanon County Correctional Facility.
• On Docket 1745-2016, the DEFENDANT was charged with one count of Delivering a Controlled Substance and one count of Criminal Use of a Communication Facility. According to the Affidavit of Probable Cause accompanying the complaint, the DEFENDANT delivered crack cocaine to an undercover informant in return for the sum of $100. This event was alleged to have occurred on the 400 block of North Fourth Street in the City of Lebanon. 1 The DEFENDANT entered a plea of guilty on January 24, 2017. He was sentenced by Judge Tylwalk on March 22, 2017, to serve eleven (11) months to two (2) years less a day concurrent to Docket 1776-2016.
• On Docket 1300-2016, the DEFENDANT was charged with Possession of Drug Paraphernalia, Disorderly Conduct and Possession of a Small Amount of Marijuana. This event was alleged to have occurred at 18 North Sixth Street in the City of Lebanon. DEFENDANT is alleged to have engaged in loud and profane shouting that disrupted his neighborhood at 2:46am. When confronted by police, CARABALLO was found to be intoxicated and in possession of marijuana. The DEFENDANT entered a guilty plea on November 22, 2016. He was sentenced by the undersigned to serve a period of one (1) year probation on January 25, 2017.
• On Docket 1776-2016, the DEFENDANT was charged with Delivering Crack Cocaine to an undercover police officer on October 7, 2016, on North Fourth Street in the City of Lebanon. He was also charged with conspiring with Jessie Hillard and Tiffany McQueen in the commission of this offense. On January 24, 2017, the DEFENDANT entered a plea of guilty. He was sentenced by Judge Tylwalk on March 22, 2017, to serve eleven (11) months to two (2) years less a day in the Lebanon County Prison concurrent with all other charges.
In 2016, the Commonwealth filed a Motion to Consolidate Dockets 1745-2016, 1776-2016 and 1777-2016. The Commonwealth alleged that CARABALLO and Tiffany McQueen “acted in concert with each other”. The Commonwealth also alleged “The witnesses in all cases are the same” and “The DEFENDANT’s case involves a nexus of conduct committed by all defendants.” (Motion for Consolidation dated December 15, 2016). Without objection by CARABALLO, the three dockets were consolidated. Ultimately, the DEFENDANT was sentenced simultaneously on each.
On June 8, 2017, CARABALLO filed multiple pre-trial motions. Pertinent to the issue before us today was a Motion to Dismiss. In his Motion to Dismiss, CARABALLO cited the above-referenced 2016 dockets and asserted: “The transactions upon which the Commonwealth is basing the current charges are drug transactions for which DEFENDANT has already been charged and convicted.” Because of this, the DEFENDANT argued that his current charges should be barred by the constitutional prohibition against double jeopardy. The Commonwealth responded by pointing out that the current offense of Corrupt Organizations has different elements than the drug delivery charges for which the DEFENDANT was convicted.
II. DISCUSSION
The Fifth Amendment to the United States Constitution provides that no one can be “subject for the same offense to be twice put in jeopardy of life or limb…”. Article 1 § 10 of the Pennsylvania Constitution parrots this language and states: “No person shall, for the same offense, be twice put in jeopardy of life or limb…”. These so-called “Double Jeopardy clauses” are designed to protect citizens from multiple prosecutions arising from the same conduct. See, e.g. North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. 2072, 23 L.Ed. 2d 656 (1969). In fact, the United States Supreme Court has declared that “Once a defendant is placed in jeopardy for an offense, and jeopardy terminates with respect to that offense, the defendant may neither be tried nor punished a second time for the offense.” Sattazahn v. Pennsylvania, 537 U.S. 101, 123 S.Ct. 732, 154 L.Ed. 2d 588 (2003). Pennsylvania’s Appellate Courts have extended this principle to declare that an individual may be punished only once for a single act which causes a single injury to the Commonwealth. See, Commonwealth v. Williams, 753 A.2d 856 (Pa. Super. 2000).
Reciting the general precepts of double jeopardy is relatively easy. However, as one respected commentator noted: “Double jeopardy and its related concepts constitutes one of the more complicated areas in criminal law.” See, West Pennsylvania Practice § 22:1, Double jeopardy generally. The so-called “recurring issues” involving double jeopardy include:
• What constitutes “the same offense” for purposes of double jeopardy?
• What constitutes “a second prosecution”?
• How does the Compulsory Joinder Rule interact with double jeopardy?; and
• How does double jeopardy interact with the Doctrine of Collateral Estoppel?
The first of these “recurring issues” is what we must address today.
The key case involving double jeopardy under the Federal Constitution is Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L.Ed. 306 (1932). In Blockburger, the Court adopted the so-called “same elements test”, “The test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not.” The so-called “same elements” test articulated in Blockburger has been codified in Pennsylvania at § 110 of the Crimes Code. That section is entitled “When Prosecution Barred by Former Prosecution for Different Offense” and states:
“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…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…; 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.A. § 110
Under § 110 and Blockburger, the mere overlap in proof offered in two prosecutions will not by itself be sufficient to invoke a double jeopardy bar. See, e.g. Commonwealth v. Caufmann, 662 A.2d 1050 (Pa. 1995).
This case involves a former prosecution for drug delivery and a subsequent prosecution for being a part of a Corrupt Organization relating to the same drug offenses. A similar situation confronted the Pennsylvania Superior Court in Commonwealth v. George, 38 A.3d 893 (Pa. Super. 2012). In George, the Defendant was charged with two counts of delivering cocaine plus additional charges related to the Defendant’s possession of a large amount of cocaine when police executed a search warrant at his residence. The Defendant ultimately plead guilty to these charges and was sentenced on April 1, 2008 to serve three to six years in a State Correctional Facility. At some point following the charges against the Defendant, a statewide grand jury was convened to look into narcotics trafficking in Lackawanna County. As a result of that grand jury investigation, the Defendant was arrested on October 20, 2010, and charged with two counts of Corrupt Organizations. The defendant filed a Motion for Writ of Habeas Corpus arguing that the 2010 charges were barred by double jeopardy and § 110 of the Crimes Code. The trial judge agreed and the Commonwealth appealed the decision to the Pennsylvania Superior Court.
The three judge panel which decided George began its analysis by stating:
“The policies served by the statute [§ 110] are two-fold: to protect accused persons from governmental harassment of undergoing successive trials for offenses stemming from the same episode, and to promote judicial economy and finality by avoiding repetitious litigation. ’By requiring compulsory joinder of all charges arising from the same criminal episode, a defendant need only ‘once run the gauntlet’ and confront the awesome resources of the State.” Id at page 896.
The Court then proceeded to analyze whether the defendant’s 2008 charges involved “the same criminal conduct or criminal episode” as the charges that were filed in 2010. The Court stated “In order to determine whether various acts constitute a single criminal episode, one must consider the logical relationship between the acts, i.e., whether there is a substantial duplication of issues of law and fact, and whether the acts are temporally related.” Id at page 896.
In analyzing the situation before it, the Superior Court noted “The bulk of the grand jury evidence implicating Appellee and leading to the instant prosecution referenced Appellee’s 2007 arrests and statement. Additionally, the evidence at the Preliminary Hearing on the 2010 charges arose from the same factual nucleus as the 2007 prosecution.” Id at page 898. In part because of this, the Superior Court affirmed the decision of the Trial Judge to dismiss the subsequent prosecution and stated:
“We agree with the Trial Court that the Corrupt Organization and Conspiracy charges arose from the same criminal episode as the former prosecution, and that the appropriate prosecuting officer knew of the criminal conduct, which is the subject of the present prosecution, at the time of Appellee’s guilty plea. Accordingly, the Trial Court properly applied § 110 and dismissed the charges, and we affirm.” Id at page 898.
In its brief, the Commonwealth recognizes that George presents an analytical dilemma. The Commonwealth attempted to distinguish George by citing another Superior Court decision in the case of Commonwealth v. Reid, 35 A.3d 773 (Pa. Super. 2012). Reid referenced the George decision in a footnote that read:
“In [George], another panel of the Superior Court similarly limited its analysis to the factual differences between the two prosecutions, but did not fully address the extent, if any, of the duplication of issues of fact or law. Interestingly, despite the facts in George being similar to the facts in the instant case, the panel in George did not mention [Commonwealth v. Nolen, 855 A.2d 834 (Pa. 2004)] in its analysis. Nevertheless, George is not at issue here, and we express no opinion on the propriety of its conclusions. Id at page 586.
We have read Reid and the other cases cited by the Commonwealth. All are distinguishable from the facts of this case. 2 Only George involved prior drug convictions as predicate acts to a subsequently filed Corrupt Organizations charge. 3 Only George analyzed the question of whether a charge of Corrupt Organizations can be viable when all of the predicate acts associated with the charge were the subject of prior criminal prosecutions.
Under the principle of stare decisis, this Court is bound by the decision of Pennsylvania’s Superior Court in George. Because the facts of George are so similar to the facts of this case, and because the legal pronouncement of the Superior Court was so clear, we are obligated to accept the Superior Court’s analysis in George as the law of this Commonwealth that governs a situation such as the one before us.
In this case, the Commonwealth has charged CARABALLO with the crime of Corrupt Organizations and Dealing in Proceeds of Unlawful Activities as a result of four separate “predicate acts”. The first predicate act is the Delivery of Cocaine in February of 2016 on North Sixth Street in return for the sum of $40. This very same act was the basis of the DEFENDANT’s conviction on Counts 1 and 2 of Docket 1777-2016. The second predicate act is the Delivery of Crack Cocaine on June 4, 2016, in return for the sum of $100. This is the same act that created the DEFENDANT’s conviction on Docket 1745-2016. 4 The third predicate act is Delivery of Crack Cocaine in return for $100 that occurred on August 23, 2016 on North Sixth Street. This act served as the basis for CARABALLO’s conviction on Counts 3 and 4 of Docket 1777-2016. The fourth and final predicate act alleged against CARABALLO is Delivery of Crack Cocaine on October 7, 2016 in the 400 block of North Fourth Street in the City of Lebanon. This is the same act that was charged against the DEFENDANT on Docket 1776-2016.
There are no other predicate acts charged against CARABALLO in the docket now before this Court. Every single one of the predicate acts upon which the Commonwealth now relies was charged separately by the Commonwealth in 2016. On each of these predicate acts, the DEFENDANT entered pleas of guilty and was sentenced to lose his liberty for at least eleven (11) months.
To be sure, the Commonwealth may possess additional evidence linking CARABALLO to Uwan English, Carl Whitaker, Lewis Morgan, Jamal Gray and Nashawn Pearson. However, in terms of the Commonwealth’s proof that the DEFENDANT actually delivered drugs to someone else, all such acts were separately charged and punished. Under any definition of double jeopardy, CARABALLO should not be punished twice for the same act committed at the same time at the same location and involving the same people.
Based upon the constitutional precepts relating to double jeopardy, based upon § 110 of the Crimes Code, and based upon binding precedent of Commonwealth v. George, supra, we will be granting the DEFENDANT’s Motion to Dismiss. Effectively, we will not permit the Commonwealth to punish CARABALLO twice for the drug transactions he undertook on February 11, 2016, June 4, 2016, August 23, 2016, and October 7, 2016.

1 Interestingly, the criminal information alleges that the delivery occurred in the parking lot of WalMart in North Lebanon Township. This discrepancy was not raised by the DEFENDANT in any document he filed to action # 1745-2016.

2 For example, Commonwealth v. Nolen, 855 A.2d 834 (Pa. 2004) involved similar charges filed in Lackawanna County and Luzerne County based upon separate events that occurred in each county. Similarly, Commonwealth v. Reid, 77 A.3d 579 (Pa. 2013) involved separate drug transactions that occurred at separate times in different locations. In both cases, the Appellate Courts concluded that the compulsory joinder rule articulated in 18 Pa. C.S.A. § 110 did not apply.

3 We did locate another similar case. However, the Pennsylvania Supreme Court in Commonwealth v. Wetton, 641 A.2d 574 (Pa. 1994) was equally divided on the question of whether a Corrupt Organizations charge should be dismissed because one predicate act was previously charged by Federal prosecutors. Unfortunately, Wetton does not provide either finding or persuasive authority given the sharp division of the Supreme Court.

4 Once again, we note a discrepancy with respect to the location of this drug delivery. In the Commonwealth’s list of predicate acts filed in this case, the Commonwealth alleges that the transaction occurred on the 400 block of North Fourth Street. That same information is contained in the Affidavit of Probable Cause filed to Docket 1745-2016. However, the Criminal Information filed in Docket 1745-2016 indicates that the transaction occurred in WalMart. Based upon the above, we conclude that the discrepancy of location is nothing more than a clerical or typographical error and that the predicate act referenced by the Commonwealth in this case is the exact same act that was charged in Docket 1745-2016. If this assumption turns out to be inaccurate, the Commonwealth shall be granted leave to file a Motion for Reconsideration of this Opinion.