Commonwealth v. Sewell

1

COMMONWEALTH OF PENNSYLVANIA v. GREGORY SEWELL Appellant

No. 1497 MDA 2022

No. J-S27016-23

Superior Court of Pennsylvania

August 29, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

Appeal from the Order Dated September 26, 2022 In the Court of Common Pleas of York County Criminal Division at No(s) CP-67-CR-0004395-2021

BEFORE: BENDER, P.J.E., BOWES, J., and SULLIVAN, J.

MEMORANDUM

BOWES J.

Gregory Sewell appeals from the order that denied his motion to dismiss based upon double jeopardy pursuant to 18 Pa.C.S § 110. In this Court, Brian McNeil, Esquire, has filed a petition to withdraw as Appellant's counsel and brief pursuant to Anders v. California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). We deny counsel's petition and order new briefing.

On April 2, 2021, Appellant, driving with a suspended license, struck a vehicle operated by Sandra Ramirez and left the scene without exchanging information or rendering aid. By complaint filed June 29, 2021, at CP-67-CR-4501-2021, Appellant was charged with accidents involving death or personal injury, duty to give information and render aid, duties at stop sign, drivers required to be licensed, and unlawful activities. This prosecution terminated when Appellant pled guilty on August 25, 2022, to driving while operating privilege is suspended.

The Commonwealth initiated the instant case on August 10, 2021. In the accompanying affidavit of probable cause, the prosecution asserted that, in investigating Ms. Ramirez's emergency call made on the date of the collision, Hanover Police Officer Zachariah Lloyd ultimately identified Appellant as the driver of the other vehicle. After obtaining Appellant's insurance policy information, Officer Lloyd discovered that on June 15, 2021, Appellant informed his insurance adjuster in a recorded call that Appellant had been the victim of the hit-and-run by a speeding police vehicle and that he had waited at the scene for more than half an hour after calling the police who never arrived. Accordingly, the Commonwealth charged Appellant with insurance fraud pursuant to 18 Pa.C.S. § 4117(2).^[1]

Appellant promptly filed a motion to dismiss on double jeopardy grounds, asserting that the instant, second prosecution arose from the same criminal episode as the first one that culminated in his guilty plea such that it was subject to the compulsory joinder statute codified at 18 Pa.C.S. § 110. After a hearing, the trial court denied Appellant's motion to dismiss on September 26, 2022. This timely appeal followed, and both Appellant and the trial court complied with Pa.R.A.P. 1925.^[2]

As noted, in this Court counsel filed both an Anders brief and a petition seeking leave to withdraw as counsel. Consequently, the following legal principles guide our review:

Direct appeal counsel seeking to withdraw under Anders must file a petition averring that, after a conscientious examination of the record, counsel finds the appeal to be wholly frivolous. Counsel must also file an Anders brief setting forth issues that might arguably support the appeal along with any other issues necessary for the effective appellate presentation thereof.

Anders counsel must also provide a copy of the Anders petition and brief to the appellant, advising the appellant of the right to retain new counsel, proceed pro se or raise any additional points worthy of this Court's attention.

If counsel does not fulfill the aforesaid technical requirements of Anders, this Court will deny the petition to withdraw and remand the case with appropriate instructions (e.g., directing counsel either to comply with Anders or file an advocate's brief on Appellant's behalf). By contrast, if counsel's petition and brief satisfy Anders, we will then undertake our own review of the appeal to determine if it is wholly frivolous. If the appeal is frivolous, we will grant the withdrawal petition and affirm the judgment of sentence. However, if there are non-frivolous issues, we will deny the petition and remand for the filing of an advocate's brief.

Commonwealth v. Cook, 175 A.3d 345, 348 (Pa.Super. 2017) (cleaned up). Our Supreme Court has further detailed counsel's duties as follows:

[I]n the Anders brief that accompanies court-appointed counsel's petition to withdraw, counsel must: (1) provide a summary of the procedural history and facts, with citations to the record; (2) refer to anything in the record that counsel believes arguably supports the appeal; (3) set forth counsel's conclusion that the appeal is frivolous; and (4) state counsel's reasons for concluding that the appeal is frivolous. Counsel should articulate the relevant facts of record, controlling case law, and/or statutes on point that have led to the conclusion that the appeal is frivolous.

Santiago, supra at 361.

Based upon our examination of counsel's petition to withdraw and Anders brief, we conclude that counsel has complied with the technical requirements set forth above.^[3] As required by Santiago, counsel set forth a history of the case, referred to issues that arguably support the appeal, stated his conclusion that the appeal is frivolous, and cited case law. See Anders brief at 11-19. Therefore, we now go on "'to make a full examination of the proceedings and make an independent judgment to decide whether the appeal is in fact wholly frivolous.'" Commonwealth v. Flowers, 113 A.3d 1246, 1249 (Pa.Super. 2015) (quoting Santiago, supra at 354 n.5).

Counsel identified the following issues arguably supporting this appeal, which we have re-ordered for ease of disposition:

[1.] Whether remand is required for compliance with Rule 587 because the lower court did not make specific findings of fact or a finding as to frivolousness when it denied [Appellant's motion.

[2.] Whether the lower court erred in denying [Appellant's motion to dismiss pursuant to 18 Pa.C.S. § 110 because the current prosecution arose from the same criminal episode as the former prosecution and would not have been possible without it, and there is a logical and temporal relationship between the two cases.

[3.] Whether the previous version of 18 Pa.C.S. § 110 should control because applying the current version denies [Appellant] his ex post facto protections.

Anders brief at 4 (cleaned up).

We begin with a review of the law applicable to a claim that a subsequent prosecution is barred on double jeopardy grounds because it was subject to compulsory joinder. "The question of whether a defendant's constitutional right against double jeopardy would be infringed by a successive prosecution is a question of law. When presented with a question of pure law, our standard of review is de novo and our scope of review is plenary." Commonwealth v. Gross, 232 A.3d 819, 834-35 (Pa.Super. 2020) (en banc) (cleaned up).

Whether the instant prosecution is barred by Appellant's former prosecution for different offenses is governed by § 110, which, as amended in 2022, provides in pertinent part as follows:

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:

. . . . (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 the offense of which the defendant was formerly convicted or acquitted was a summary offense or a summary traffic offense[.]

18 Pa.C.S. § 110.^[4]

This Court has explained that, "a criminal episode is an occurrence or connected series of occurrences and developments which may be viewed as distinctive and apart although part of a larger or more comprehensive series." Commonwealth v. Jefferson, 220 A.3d 1096, 1100 (Pa.Super. 2019) (cleaned up). "In making such a determination, 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. (cleaned up). For example, "[t]wo separate offenses may constitute the same criminal episode if one offense is a necessary step toward the accomplishment of a given criminal objective or if additional offenses occur because of an attempt to secure the benefit of a previous offense or conceal its commission." Commonwealth v. Perillo, 626 A.2d 163, 166 (Pa.Super. 1993). However, "a mere de minimis duplication of factual and legal issues is insufficient to establish a logical relationship between offenses. Rather what is required is a substantial duplication of issues of law and fact." Commonwealth v. Schmidt, 919 A.2d 241, 247 (Pa.Super. 2007) (cleaned up).

Procedurally, claims that a prosecution would violate double jeopardy are governed by Pa.R.Crim.P. 587(b) as follows:

(1) A motion to dismiss on double jeopardy grounds shall state specifically and with particularity the basis for the claim of double jeopardy and the facts that support the claim.

(2) A hearing on the motion shall be scheduled in accordance with Rule 577 (Procedures Following Filing of Motion). The hearing shall be conducted on the record in open court.

(3) At the conclusion of the hearing, the judge shall enter on the record a statement of findings of fact and conclusions of law and shall issue an order

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