Com. v. Ahearn

• Decision Date: 18 January 1996
• Citation: 543 Pa. 174,670 A.2d 133
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Charles D. AHEARN, III, Appellant.
• Court: Pennsylvania Supreme Court

Page 133

670 A.2d 133

543 Pa. 174

COMMONWEALTH of Pennsylvania, Appellee, v. Charles D. AHEARN, III, Appellant.

Supreme Court of Pennsylvania.

Submitted Sept. 19, 1995.

Decided Jan. 18, 1996.

William A. Hebe, Wellsboro, for C. Ahearn.

Jeff Leber, Dennis E. Boyle, Coudersport, for Commonwealth.

Before NIX, C.J., and FLAHERTY, ZAPPALA, CAPPY, CASTILLE, NIGRO and NEWMAN, JJ.

OPINION

CASTILLE, Justice.

This case presents the sole issue of whether the Commonwealth can remove a nolle prosequi and refile criminal charges against a criminal defendant when the nolle prosequi was entered on the same day that the criminal defendant pled guilty to other criminal charges resulting from a separate and unrelated criminal incident. For the reasons expressed below, we hold that the Commonwealth's removal of such a nolle prosequi and refiling of criminal charges under the circumstances discussed herein is proper, and, therefore, we affirm the Superior Court's affirmance of the judgment of sentence as to these refiled charges.

A summary of the evidence giving rise to this appeal is that on February 1, 1991, a criminal complaint was filed at No. 27 Potter County 1991 (the "first complaint"), against appellant charging him with burglary, ¹ theft, ² receiving stolen property ³ and conspiracy. ⁴ These charges arose from a burglary which occurred between 4:00 a.m. and 5:00 a.m. on that same day at Maiuro's Grocery Store in Ulysses, Pennsylvania.

On February 17, 1991, appellant was again arrested outside an occupied residence in Harrison Valley, Pennsylvania. In relation to this arrest, appellant was charged with criminal attempt ⁵ and loitering and prowling at nighttime ⁶ at No. 33 Potter County 1991 (the "second complaint").

On the morning of July 8, 1991, the Commonwealth filed a motion to nol pros the first complaint. The motion stated that the Commonwealth desired to voluntarily dismiss the first complaint because "the Commonwealth's case against the defendant lacks evidence sufficient to sustain the Commonwealth's burden of proof." The trial court granted the Commonwealth's motion and dismissed the four charges filed against appellant in connection with the February 1, 1991 burglary.

Later that same day, appellant appeared before the same trial court to enter a guilty plea to the loitering and prowling at nighttime charges set forth in the second complaint. During the plea colloquy, appellant admitted that he read and signed both the plea agreement and guilty plea statement. Appellant also admitted that he was pleading guilty knowingly and voluntarily. Moreover, appellant admitted to the conduct which resulted in the charge. The trial court then accepted appellant's guilty plea to the charges contained in the second complaint and delayed sentencing until September 4, 1991 when appellant was placed on probation for a period of twelve months and fined $500.

On March 9, 1992, the Commonwealth reinstated the charges in the first complaint that it had earlier decided to nol pros. ⁷ These charges were re-docketed at No. 83 Potter County 1992. On April 20, 1992, appellant filed a motion to dismiss the reinstated charges alleging that they should be dismissed because his guilty plea to the charges in the second complaint included an agreement that the Commonwealth would nol pros the charges in the first complaint.

On June 3, 1992, the trial court held an evidentiary hearing on appellant's motion to dismiss. At the hearing, the trial court heard the testimony of the assistant district attorney of Potter County who agreed to the plea agreement regarding the second complaint and who filed the motion to nol pros the first complaint. The assistant district attorney testified that the sole reason that the charges raised in the first complaint were voluntarily dismissed was because the Commonwealth believed that it had insufficient evidence to obtain a conviction at that time. The assistant district attorney also testified that she had expressly rejected appellant's repeated efforts to have the plea agreement for the charges in the second complaint encompass the charges raised in the first complaint. The only evidence appellant presented at this hearing to support his claim that the plea agreement was intended to cover the charges raised in the first complaint was this exchange during the plea colloquy:

Mr. Fink (appellant's counsel): Your Honor, there was a collateral charge, and I don't know whether it's appropriate to encumber the record, there was an understanding which was a corollary to this plea as it relates to the charge filed at No. ---

The Court: Is that related to the case we nolle prossed this morning?

Ms. Fletcher (assistant district attorney): Yes, we did file requesting that No. 27 of 1991 be nolle prossed.

Mr. Fink: That's the case. Thank you your Honor.

The Court: That has been done.

(Id. at 6). The trial court, however, found that neither the motion to nol pros the first complaint, the written guilty plea agreement itself, ⁸ nor the verbal plea colloquy contained any representation that the plea agreement to the charges raised in the second complaint was done because of the alleged arrangement with the Commonwealth that the charges in the first complaint would be nolle prossed. Thus, the trial court denied appellant's motion to dismiss.

After appellant's motion to dismiss was denied, the trial court held a one day jury trial on August 31, 1992 as to the reinstated charges from the first complaint. Appellant was found guilty on all four of the reinstated charges. As a result of his conviction, appellant was sentenced to the following concurrent terms of imprisonment: not less than six (6) nor more than twenty-three (23) months for burglary; not less than six (6) nor more than twenty-three (23) months for theft; not less than four (4) nor more than twenty-three and one-half (23 1/2) months for criminal conspiracy; and, court costs for receiving stolen property.

Appellant appealed to the Superior Court once again alleging that the Commonwealth was barred from reinstating the charges contained in the first complaint because his plea agreement regarding the charges raised in the second complaint involved an agreement by the Commonwealth to nol pros the charges in the first complaint. The Superior Court denied appellant's appeal finding that there was nothing in the record to support appellant's claim that the plea agreement encompassed any agreement by the Commonwealth to nol pros the charges in the first complaint. This Court granted allocatur to determine whether the Commonwealth can remove a nol pros and refile criminal charges against a criminal defendant when the nol pros was entered on the same day that the criminal defendant pled guilty to other criminal charges resulting from a separate and unrelated criminal incident.

A nolle prosequi is a voluntary withdrawal by a prosecuting attorney of proceedings on a particular criminal bill or information, which at anytime in the future can be lifted upon appropriate motion in order to permit a revival of the original criminal bill or information. Commonwealth v. Whiting, 509 Pa. 20, 22-23, 500 A.2d 806, 807 (1985). Since a nolle prosequi acts neither as an acquittal nor a conviction, double jeopardy does not attach to the original criminal bill or information. Commonwealth v. Hart, 427 Pa. 618, 235 A.2d 391, 393 (1967); Commonwealth v. McLaughlin, 293 Pa. 218, 223, 142 A. 213, 216 (1928); Accord Commonwealth v. Perillo, 426 Pa.Super. 1, 6, 626 A.2d 163, 165, appeal denied, 535 Pa. 674, 636 A.2d 633 (1993); Commonwealth v. Reider, 255 Pa.Super. 163, 166, 386 A.2d 559, 560 (1978).

In order for appellant's position to have merit, appellant must prove that there was an actual representation by the Commonwealth or that there was a representation made by the Commonwealth which led appellant to reasonably believe that his guilty plea agreement included an agreement by the Commonwealth to nol pros the charges in the first complaint as a condition of the guilty plea. The record here, however, fails to provide the needed evidence. The Commonwealth's motion to nol pros the charges included in the first complaint explicitly stated that the Commonwealth was...