Commonwealth v. Kemick

240 A.3d 214

COMMONWEALTH of Pennsylvania

v.James Patrick KEMICK, Appellant

No. 350 WDA 2020

Superior Court of Pennsylvania.

Submitted July 27, 2020

Filed September 15, 2020

Stephanie S.E. Smith, Public Defender, Smethport, for appellant.

Stephanie L. Vettenburg-Shaffer, District Attorney, Smethport, for Commonwealth, appellee.

BEFORE: OLSON, J., KING, J., and PELLEGRINI, J.^*

OPINION BY OLSON, J.:

Appellant, James Patrick Kemick, appeals from the February 7, 2020 order denying his motion to dismiss the criminal charges¹ currently pending against him on grounds that the prosecution of those charges violates the protection against double jeopardy and the compulsory joinder rule.² We vacate the order and remand this case with instructions.

The trial court summarized the factual history as follows:

At McKean County [docket number] 375 CR 2017, [Appellant] was charged with burglary, criminal attempt to commit burglary, criminal trespass, theft by unlawful taking, [and] loitering and prowling at night. It was alleged at that [docket] number that on July 26, 2017, [Appellant] entered a business, the Thrifty Cleaners, and stole a cash register. At McKean County [docket number] 453 CR 2017[, Appellant pleaded] guilty to [one] count of criminal conspiracy/theft by unlawful taking. The facts [in] that case [were] that [Appellant] and his co-defendant [ ] stole two bicycles from [the victim]. This conspiracy occurred in the City of Bradford[, Pennsylvania,] on September 2, 2017. At McKean County [docket number] 470 CR 2017[, Appellant pleaded] guilty to [loitering] and prowling at night for prowling around the residence [ ] at 52 Bedford Street[,] Bradford[, Pennsylvania]. The actions that led to this conviction occurred on August 28, 2017. At McKean County [docket number] 493 CR 2017[, Appellant pleaded] guilty to [loitering] and prowling at night. The facts [in that case] were that [Appellant], on September 6, 2017, loitered and prowled at a residence at 952 South Avenue, Bradford, [Pennsylvania].

In the current case[,] it is asserted that [Appellant], between August 18, 2017, and August 28, 2017, committed the offenses of burglary—home, no person present, theft by unlawful taking[—movable property], receiving stolen property[,] and criminal trespass. It is asserted that he entered the home [ ] at 955 South Avenue, Bradford, [Pennsylvania].

Trial Court Opinion, 3/27/20, at 2-3 (extraneous capitalization and emphasis omitted).

On October 30, 2019, Appellant filed a motion to dismiss the criminal charges pending against him in the instant case "due to prohibitions against double jeopardy under State and Federal Constitutions and the compulsory joinder rule, and that prosecution of these charges is barred by a former prosecution[.]" Appellant's Motion to Dismiss Charges/Criminal Information, 10/30/19, at ¶2. Appellant requested a hearing on the motion to dismiss. The Commonwealth filed an answer to Appellant's motion, opposing the dismissal of the criminal charges. On January 7, 2020, the trial court convened a proceeding on Appellant's motion to dismiss. At the conclusion of the proceeding, the trial court permitted Appellant and the Commonwealth to submit briefs on the matter, which both parties timely submitted. On February 7, 2020, the trial court denied Appellant's motion to dismiss the criminal charges. This appeal followed.³

Appellant raises the following issues for our review:

[1.] Whether the trial court erred in failing to enter on the record a statement of findings of fact and conclusions of law, as required under Pa.R.Crim.P. [ ] 587(B)(3), in disposing of [Appellant's] motion to dismiss charges/criminal information pursuant to prohibitions against double jeopardy and under 18 Pa.C.S.[A.] § 110 [?]

[2.] Whether the trial court erred by denying [Appellant] the opportunity to present testimony and evidence at a hearing pursuant to Pa.R.Crim.P. [ ] 587(B)(2) in support of his motion to dismiss charges/criminal information pursuant to prohibitions against double jeopardy and under 18 Pa.C.S.[A.] § 110 [?]

[3.] Whether the trial court erred in denying a motion to dismiss charges/criminal information pursuant to prohibitions against double jeopardy and under 18 Pa.C.S.[A.] § 110.[?]

Appellant's Brief at 4-5 (extraneous capitalization omitted).

Preliminarily, we must determine whether Appellant's appeal is from a final, appealable order, thereby invoking the jurisdiction of this Court.⁴ Appellant contends that the trial court's February 7, 2020 order denying his motion to dismiss the criminal charges is a collateral order and, therefore, is immediately appealable. Appellant's Answer to Show Cause Order, 4/27/20, at 3.

"An appeal may be taken as of right from a collateral order of a trial court[.]" Pa.R.A.P. 313(a). Pennsylvania Rule of Appellate Procedure 313(b) defines a collateral order as "an order separable from and collateral to the main cause of action where the right involved is too important to be denied review and the question presented is such that if review is postponed until final judgment in the case, the claim will be irreparably lost." Id. at 313(b).

"Pennsylvania law [ ] traditionally provided a criminal defendant the right to an immediate appeal from an order denying a pretrial motion to dismiss on double jeopardy grounds." Commonwealth v. Gross , 232 A.3d 819, 830 (Pa. Super. 2020) (en banc ), citing Commonwealth v. Orie , 610 Pa. 552, 22 A.3d 1021, 1024 (2011) ; see also Commonwealth v. Haefner , 473 Pa. 154, 373 A.2d 1094, 1095 (1977) (stating that "pretrial orders denying double jeopardy claims are final orders for purposes of appeal"). If the trial court enters an order denying the motion to dismiss on double jeopardy grounds and in doing so, makes no finding, in writing, that the motion is frivolous, then the order is a collateral order under Rule 313 and is immediately appealable. Gross , 232 A.3d at 837 ; see also Commonwealth v. Anthony , 553 Pa. 55, 717 A.2d 1015, 1017 (1998) (stating, "[t]he denial of a pretrial [m]otion to [d]ismiss an indictment on double jeopardy grounds is subject to appellate review unless it appears that the claim is frivolous"). "A [m]otion to [d]ismiss on the basis of the compulsory joinder rule[, codified at 18 Pa.C.S.A. § 110,] embodies the same constitutional protections underlying the double jeopardy clause" and, therefore, an order denying such a motion to dismiss is also immediately appealable as a collateral order, provided the claim is not frivolous. Anthony , 717 A.2d at 1017.

The compulsory joinder rule states,

§ 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.

Here, Appellant appeals the trial court order denying his motion to dismiss the criminal charges pending against him on grounds that the prosecution of those charges violates the protection against double jeopardy and the compulsory joinder rule. Appellant's Brief at 15-16. A review of the record demonstrates that the trial court, in denying Appellant's motion to dismiss, did not make a finding on the record that Appellant's claim was frivolous. See Trial Court Order, 2/7/20; see also N.T., 1/7/20, at 1-13; Trial Court Opinion, 3/27/20, at 1-13. Therefore, the trial court's order denying Appellant's motion to dismiss is a collateral order and immediately appealable. We now consider the merits of Appellant's issues.

We consider Appellant's first and second issues in tandem as we find them dispositive of this matter. Appellant's first issue asserts that the trial court "erred in failing to enter on the record a statement of findings of fact and conclusions of law in disposing of Appellant's" motion to dismiss the criminal charges as required by Rule 587(B)(3). Appellant's Brief at 16-18. In his second issue, Appellant asserts that the trial court "erred by denying [Appellant] the opportunity to present testimony and evidence at a hearing, pursuant to [ ] Rule 587(B)(2), in support of his" motion to dismiss the...