Com. v. Barber, 1747 MDA 2006.

• Court: Superior Court of Pennsylvania
• Citation: 940 A.2d 369
• Docket Number: No. 1747 MDA 2006.,1747 MDA 2006.
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Lewis Curtis BARBER, Appellant.
• Decision Date: 03 December 2007

940 A.2d 369 COMMONWEALTH of Pennsylvania, Appellee
v.
Lewis Curtis BARBER, Appellant. No. 1747 MDA 2006. Superior Court of Pennsylvania. Argued August 28, 2007. Filed December 3, 2007. Reargument Denied February 7, 2008.

[940 A.2d 371]

Thomas K. Hooper, Duncansville, for appellant.

Andrea. F. McKenna, Assistant District Attorney, Harrisburg, for Commonwealth, appellee.

BEFORE: LALLY-GREEN, DANIELS and JOHNSON, JJ.

OPINION BY DANIELS, J.:

¶ 1 This is an interlocutory appeal from the July 14, 2006 order of the Court of Common Pleas of Perry County, denying Appellant, Lewis C. Barber's pre-trial motion to dismiss the prosecution below. For the following reasons, we affirm the lower court's order, and prescribe that the criminal trial below proceed forthwith.

FACTS & PROCEDURAL HISTORY

¶ 2 The Pennsylvania State Police began investigating Appellant's dealership, Curtis Ford Mercury, in response to a consumer complaint received in December of 2000. During the months of January and March of 2001, the Pennsylvania State Police issued twenty-four citations to Appellant for

940 A.2d 372

various summary offenses.¹ Appellant appeared before a Magisterial District Judge on January 25, January 31, and April 2, 2001, pled guilty to all twenty-four summary offenses, and paid $2,285.50 in fines and costs.

¶ 3 Thereafter, on May 23 and July 17, 2001, the Commonwealth charged Appellant, by criminal informations, with some seventy-one (71) felony and misdemeanor counts arising out of his vehicle sales activities.² On January 22, 2002, Appellant pled nolo contendere to all charges, and, on April 22, 2002, he was sentenced to 45 to 120 months of imprisonment and was ordered to pay restitution in an amount to be determined in the future. On April 26, 2002, Appellant moved to modify and reduce his sentence and, on that same date, the court vacated Appellant's sentence pending a hearing to be held in October of 2002, On May 16, 2002, Appellant made an oral motion to withdraw his nolo contendere pleas, which the court denied on June 4, 2002. On June 13, 2002, the court again imposed a sentence of 45 to 120 months of imprisonment and the payment of restitution in an amount to be determined in the future. Appellant filed timely post-sentence motions, including a motion to withdraw his earlier nob contendere pleas. A hearing was held on October 25, 2002 to address certain outstanding motions and the amount of restitution. On November 21, 2002, the court denied Appellant's motion to withdraw his pleas of nolo contendere and found the amount of restitution to be repaid by Appellant to be in the amount of $548,932.06.

¶ 4 Appellant filed a timely direct appeal to this Court on December 2, 2002, and we affirmed the judgment of sentence. Commonwealth v. Barber, 841 A.2d 569 (Pa.Super.2003) (unpublished memorandum). Appellant's application for reargument to this Court was denied in January 2004, and the Supreme Court of Pennsylvania summarily denied Appellant's petition for allowance of appeal on November 4, 2004. Commonwealth v. Barber, 580 Pa. 710, 862 A.2d 1253 (2004).

¶ 5 Thereafter, on December 28, 2004, Appellant filed a timely petition pursuant to the Post Conviction Relief Act (PCRA), 18 Pa.C.S.A. §§ 9541-46, and on June 8, 2005, the PCRA court, concluding that trial counsel had provided Appellant with ineffective assistance by erroneously advising

940 A.2d 373

Appellant that his nolo contendere pleas could be withdrawn at any time, vacated Appellant's sentence and granted Appellant a new trial.

¶ 6 Subsequently, Appellant filed pre-trial motions seeking to dismiss his prosecution on the grounds of double jeopardy and compulsory statutory joinder of charges. However, Appellant does not contend that his current trial on the felony and misdemeanor charges is barred by his having been prosecuted on those charges previously, but rather asserts that the current trial is barred by his having been convicted of and punished for the summary offenses to which he previously plead guilty on. January 25, January 31, and April 2, 2001. The lower court denied Appellant's motion to dismiss on July 14, 2006. This timely appeal followed.

PRELIMINARY MATTERS

¶ 7 The Appellant and the Commonwealth dispute precisely what issues are properly before this Court for our consideration on appeal. Accordingly, we shall address those matters at the outset.

¶ 8 In his Concise Statement of Matters Complained of on Appeal filed pursuant to Pa.R.A.P.1925(b), Appellant asserts that because he has already been convicted of and punished for certain summary offenses arising out of the same set of criminal episodes, to prosecute him now on the felony and misdemeanor charges would violate the double jeopardy protections of both the United States and Pennsylvania Constitutions, and would violate the protection from subsequent prosecutions afforded to him by Pennsylvania's compulsory joinder of charges statute, 18 Pa.C.S.A. § 110. The lower court's 1925(a) opinion responded to and rejected both of these contentions of Appellant.1925(a) Opinion, 7/14/06, pp. 3-4.

¶ 9 In his moving brief to this Court, Appellant (1) continues to assert his constitutional double jeopardy argument, (2) does not continue to assert his statutory joinder argument, and (3) seeks to have this Court consider (for the first time on this appeal) his contention that the doctrine of collateral estoppel somehow precludes the Commonwealth from now relitigating any of the elements of the nonsummary offenses that were also elements of the summary offenses (to which he has already pled guilty and for which he has already been punished); Appellant urges that this collateral estoppel doctrine, as applied to his circumstances, is part of double jeopardy jurisprudence. Brief of Appellant, pp. 6, 20-28.

¶ 10 The Commonwealth asserts, to the contrary, that Appellant cannot now challenge his new trial on double jeopardy grounds because Appellant himself secured such new trial by his own efforts in the PCRA proceedings. Brief of Appellee, pp. 5-7. The Commonwealth further contends that Appellant has abandoned his statutory joinder argument by omitting it from his moving brief to this Court, and that Appellant is now seeking to assert a new collateral estoppel argument that did not appear in his 1925(b) Statement. Consequently, the Commonwealth urges that both the compulsory statutory joinder and collateral estoppel issue that Appellant now seeks this Court to review on this appeal should be deemed to have been waived. Brief of Appellee, pp. 7-8.

¶ 11 In his reply brief, Appellant asserts that the Statutory joinder issue is not waived on appeal because it is not yet ripe for resolution, in that Pennsylvania appellate case law permits, but does not require, an interlocutory appeal from an order denying dismissal on statutory joinder grounds. Reply Brief of Appellant, pp. 3-4.

940 A.2d 374

Expressly recognizing that this Court might, nevertheless, reach the merits of the statutory joinder issue, Appellant does present his statutory argument in his reply brief. Reply Brief of Appellant, pp. 4-6.

MATTERS TO BE CONSIDERED ON APPEAL

¶ 12 We shall first address the preliminary matters referenced above in order to determine which issues are properly before this Court on appeal.

A. Double Jeopardy

¶ 13 There is very extensive and long-standing appellate court authority in this Commonwealth which clearly recognizes that an appellant who has secured a new trial on his own motion, whether on direct appeal or on collateral review, may generally not be heard to assert that the new trial so secured is barred by constitutional protections against double jeopardy. E.g., Commonwealth v. Thomas, 448 Pa. 42, 292 A.2d 352, 355 (1972); Commonwealth v. Constant, 925 A.2d 810 (Pa.Super.2007); Commonwealth v. Einhorn, 911 A.2d 960 (Pa.Super.2006). This rule has been applied where appellants argue that a previous prosecution for the same offense or offenses is the source of the alleged double jeopardy. See, e.g., Constant, supra. Such an interpretation is consistent with the constitutional sources of protection from double jeopardy. U.S. Const. amend. V ("nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb") (Emphasis Added); Pa. Const. art. I, § 10 ("No person shall, for the same offense, be twice put in jeopardy of life or limb") (Emphasis Added).

¶ 14 Here, Appellant does not assert that his upcoming second prosecution on the felony and misdemeanor charges is barred by his having been previously convicted of those charges after pleading nolo contendere in a previous proceeding. Rather, Appellant asserts that his imminent trial on the nonsummary felony and misdemeanor charges is barred, under constitutional double jeopardy principles, because of his having previously been convicted of and punished for the summary offenses. Brief of Appellant, pp. 6, 21-22. This Court declines to extend the existing case law regarding new trials secured by one's own efforts beyond its existing constitutional roots. Nevertheless, we shall consider the merits of Appellant's constitutional double jeopardy claim on this appeal.

B. Compulsory Statutory Joinder

¶ 15 This Court does not agree with Appellant's contention that the compulsory statutory joinder issue is not ripe for judicial resolution, regardless of whether that contention was motivated by a desire to excuse its being omitted from Appellant's moving brief, or by some tactical desire of Appellant to preserve that issue for some future prolongation of this already lengthy litigation. Further delay should not be either encouraged or tolerated in this matter.

¶ 16 A matter is ripe for adjudication if "the harm asserted has matured sufficiently to warrant judicial intervention." Town of McCandless v. McCandless Police Officers Ass n, 587 Pa. 525, 543, 901 A.2d 991, 1002 (2006) (quoting Warth v. Seldin, 422 U.S. 490, 499 n....